Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD DAY, et al.,

Plaintiffs, v.

Case No. 10-cv-02250 (ESH)

DISTRICT OF COLUMBIA,

Defendant.

NOTICE OF FILING OF OLMSTEAD COMMUNITY INTEGRATION INITIATIVE

Defendant the District of Columbia respectfully notes the public release of its Olmstead

Community Integration Initiative, entitled “One Community for All.” A copy of this document

is attached hereto.

DATE: April 6, 2012

IRVIN B. NATHAN Attorney General for the District of Columbia

ELLEN A. EFROS Deputy Attorney General Public Interest Division

GRACE GRAHAM, D.C. Bar No. 472878 Chief, Equity Section 441 Fourth Street, NW Sixth Floor South Washington, DC 20001 Telephone: (202) 442-9784 Facsimile: (202) 741-8892 Email: grace.graham@dc.gov

/s/ Bradford C. Patrick BRADFORD C. PATRICK Bar No. 1004979 Assistant Attorney General Public Interest Division, Equity Section 441 Fourth Street, NW, Sixth Floor South Washington, D.C. 20001 (202) 724-6627 (202) 741-0599 fax Bradford.Patrick@dc.gov

Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 2 of 38 /s/ Chad A. Naso CHAD A. NASO, D.C. Bar No. 1001694 Assistant Attorney General of the Attorney General, DC 441 Fourth Street, NW Sixth Floor South Washington, DC 20001 (202) 724-7854 (202) 741-8951 fax chad.naso@dc.gov Counsel for Defendant
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EXHIBIT A

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The District of Columbia
Olmstead Community Integration Initiative
One Community for All
April 2012

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Introduction
On June 22, 1999, the United States Supreme Court ruled in Olmstead v. L.C., 527 U.S. 581, that the unjustified segregation or isolation of people with disabilities in institutions can constitute discrimination based on disability in violation of the Americans with Disabilities Act (ADA). Accordingly, the Court held that the ADA requires that States provide community-based treatment for persons with disabilities “when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the States and the needs of others with . . . disabilities.” 527 U.S. at 607.
In light of this decision, the District is instituting a comprehensive working plan to serve qualified individuals with disabilities in accordance with the Supreme Court’s holding in Olmstead. This plan establishes certain goals of the District to help ensure that community-based treatment is provided to persons with disabilities, when such treatment is appropriate. However, this plan does not create independent legal obligations on the part of the District.
A wide range of District stakeholders including persons with disabilities and Mayor Vincent Gray directed and supported the Office of Disability Rights to develop the Olmstead Community Integration Plan in accordance with policies and procedures outlined in D.C. Act 16-595 the Disability Rights Protection Act of 2006. The District values its residents with disabilities as contributing members of society and understands the cost-effective benefits of supporting them with integrated, community-based services. The DC Olmstead Community Integration Plan, One Community for All is a policy document that details the rights of each person with a disability to selfdetermination in the District of Columbia.
One Community for All endeavors to meet the needs and preferences of the individual while allowing him or her to choose where s/he wants to live in the community with the appropriate supports and services consistent with the Olmstead decision and the resources available to the District to serve such individuals, taking into account the needs of others. The Plan is a living document, providing specific goals, action steps, and tools, while allowing for better flexibility and improved services for individuals with disabilities.
Nine (9) District agencies participating in this initiative are responsible for implementing the Plan. These District agencies include: Office of the State Superintendent for Education (OSSE), Office on Aging (DCOA), Department of Youth Rehabilitation Services (DYRS), Department of Disability Services (DDS), Department of Human Services (DHS), Department of Mental Health (DMH), Child and Family Services Agency (CFSA), DC Public Schools (DCPS) and the Department of Health Care Finance (DHCF). These agencies are collaborating in the hope that the District of Columbia will become a national model for providing community services and supports to persons with disabilities.
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Table of Contents
Introduction ...........................................................................................................2 Background ..........................................................................................................4 Forward ................................................................................................................6 One Community for All .........................................................................................8 District of Columbia Primary Service Agency Priorities ........................................9 Barriers to Community-Based Services ..............................................................10 Goals ................................................................................................................... 11 Accountability ......................................................................................................12 Recommended Agency Olmstead Initiative Outline ............................................13 FY 2012 Agency Performances Measures and Outlines.....................................14 Department on Disability Services (DDS)............................................................14 Office on Aging (DCOA) ......................................................................................17 Office of the State Superintendent of Education (OSSE) ...................................19 Department of Youth Rehabilitation Services (DYRS).........................................21 Department of Human Services (DHS) ..............................................................22 Department of Mental Health (DMH) ..................................................................24 Child and Family Services Agency (CFSA) .........................................................26 DC Public Schools (DCPS) .................................................................................30 Department of Healthcare Finance (DHCF) ........................................................32
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Background
The ADA and the Olmstead Decision
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In addition, the regulations implementing Title II of the ADA contain an “integration mandate” requiring that state and local government agencies provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
On June 22, 1999, the United States Supreme Court ruled in Olmstead v. L.C., 527 U.S. 581, that the unjustified segregation or isolation of people with disabilities in institutions can constitute discrimination based on disability in violation of the ADA’s “integration mandate.” In Olmstead, the Court found that the State of Georgia Department of Human Resources violated the ADA by keeping two women with mental health conditions in a state psychiatric hospital long after their treatment professionals recommended their transfer to community-based care and while the State’s home and community based programs had the capacity to serve them.
The Supreme Court concluded that under Title II of the ADA States are required to provide community-based treatment for persons with disabilities when the:
(1) State’s treatment professionals determine that such placement is appropriate;
(2) Affected persons do not oppose such treatment; and (3) Placement can be reasonably accommodated, taking into account the
resources available to the state and the needs of others with disabilities.
Id. at 607.
In reaching this conclusion, the Court expressly recognized the States’ (the District’s) “need to maintain a range of facilities for the care and treatment of persons with diverse … disabilities, and the States' obligation to administer services with an even hand” must be taken into account in complying with the ADA. Id. at 597. Further, the Court recognized that “to maintain a range of facilities and to administer services with an even hand, the State must have [more] leeway” than the courts previously understood was allowed under ADA. The Court concluded that one way States could meet their obligations under the ADA’s “integration mandate” is by instituting a comprehensive, effectively working plan for placing individuals in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by endeavors to keep institutions fully populated. Id. at 606-607. The Olmstead Plan being instituted by the District is consistent with the Supreme Court’s decision.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 8 of 38 Disability Rights Protection Act of 2006 The Disability Rights Protection Act of 2006 (D.C. Code § 2-1431) (DRPA) and Mayor’s Order 2008-06 established the Office of Disability Rights’ authority and responsibility for creating the District’s “Olmstead Compliance Plan.” The Olmstead Compliance Plan is defined as “a comprehensive working plan, developed in collaboration with individuals with disabilities and with District agencies serving individuals with disabilities, which shall include annual legislative, regulatory, and budgetary recommendations for the District to serve qualified individuals with disabilities in accordance with Olmstead v. L.C., 527 U.S. 581, and in the most integrated setting as provided in 28 C.F.R. Part 35, App. A.” The DRPA mandated that, in developing the Olmstead Compliance Plan, the Office of Disability Rights (ODR) would work actively with the District of Columbia Commission on Persons with Disabilities (DCCPD) to ensure that individuals with disabilities, their families, and advocates participated in creating the Plan.
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Forward

In One Community for All, primary service agencies responsible for maintaining and serving people with disabilities in both in-state and out-of-state institutions are expected to increase community-based services and supports to facilitate transition to community-based living, as well as to divert individuals who are at risk for placement in institutional facilities to more inclusive, integrated settings.

These agencies include:

District of Columbia Primary Service Agencies

1.

Department on Disability Services (DDS)

6.

Department of Mental Health (DMH)

2. Office on Aging (DCOA)

7.

Child and Family Services Agency (CFSA)

Office of the State

3. Superintendent of Education

8. DC Public Schools (DCPS)

(OSSE)

Department of Youth 4. Rehabilitation Services
(DYRS)

9.

Department of Health Care Finance (DHCF)

5.

Department of Human Services (DHS)

An integral part of this endeavor includes secondary service agencies that provide community services, such as the Department of Health (DOH), Department of Employment Services (DOES), DC Housing Authority (DCHA), and the Department of Housing and Community Development (DHCD).

There are a number of key community stakeholders of One Community for All. An effective collaboration with input from a wide range of stakeholders will help agencies ensure that they are providing effective transition to community services to qualified persons with disabilities in institutional settings.

Key Community Stakeholders of One Community for All

1. Individuals with disabilities

5. Local government officials

2. Families

6. District of Columbia employers

3.

Disability advocacy groups and spokespersons

7. Community leaders

4. Service provider agencies

8. General public

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Key Elements of One Community for All
 Data collection and analysis – Current data about the number of people with disabilities living in institutional settings as well as the number of people with disabilities living in the community is critical.
 Assessment – The District must determine what general services are necessary to prevent institutional placements and allow persons with disabilities to successfully participate in their community. On an individual level, determining the services an individual should receive in a community-based setting will be based on a comprehensive assessment of the person’s needs taking individual preferences into account. The agencies currently providing institutional services will develop agency procedures to properly evaluate the needs of these individuals as they transition to community-based services and supports. ODR provided the agencies with a prototype tool for collection and analysis of this needed data.
 Prioritization – Each primary service agency will collect data regarding the number of people it serves in institutional placements and assess the individuals it serves according to established criteria. These data and assessments will allow each primary service agency to set its own criteria for identifying who will be given priority for transitioning from institutional settings to the community.
 Transition and Diversion – Each primary service agency will draft policies and guidance with criteria for identifying individuals ready for safe transitions from institutions to community-based settings. Families and caregivers will also play a vital role in the identification and transition process as agencies seek to provide accessible basic services such as housing, transportation, and employment with necessary supports.
 Communication – As each primary service agency develops and implements its individual agency plan to provide community-based supports and services to persons with disabilities currently living in institutional placements, communicating with and obtaining feedback from these individuals and their family members will become an integral part of the process. In addition to these efforts, each agency will identify and designate an agency Olmstead Liaison to communicate with stakeholders regarding their concerns and to convene an annual meeting to obtain recommendations from constituents.
 Outreach – Accurate information about available community-based options will be developed for individuals with disabilities, their families, caregivers, advocates, and service providers through a multifaceted approach designed to effectively communicate to these constituencies. These approaches will ensure that stakeholders have access to current information regarding community services.
 Quality Assurance – Agencies will develop procedures to allow persons with disabilities to receive and evaluate the quality of the community-based supports.
 Evaluation – Agency progress on community integration goals will be monitored, evaluated, and reported internally within each primary service agency and to qualified District residents with disabilities who are living in or at immediate risk of living in institutional settings.
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One Community for All: A Community Integration Plan
Vision: District of Columbia residents with disabilities will have access to personcentered services and community-based support options that will maximize
choice, self-direction, and dignity.
Four Guiding Principles
Individuals with disabilities must be able to choose where, how, and with whom they will live in the community. In pursuing this goal, the District of Columbia will develop services and supports designed and coordinated to meet the specific needs and preferences of the individual with a disability. Four guiding principles are vital to implementing the goals and objectives of One Community for All:
Guiding Principle 1: Diversity The District’s goal is to support individuals and their families in a culturally competent manner, which is responsive to their beliefs, interpersonal styles, attitudes, language and behaviors while ensuring effective and meaningful opportunities for full participation in their communities.
Guiding Principle 2: Respect and Dignity Respect and dignity are inherent rights of each individual; therefore, persons with disabilities should be the final decision-makers regarding their supports and services. Individual choice and self-determination respect the experience and knowledge of each person who receives services and supports in the District of Columbia.
Guiding Principle 3: Flexibility The lives of all persons with and without disabilities change over the course of time. Consequently, services and supports should not be static and should remain flexible throughout the lifespan of the individual.
Guiding Principle 4: Empowerment People with disabilities are given information and opportunities to be involved in planning programs and choosing activities that are of interest to them. Advocating for changes may be a part of this process, and persons with disabilities should be empowered to advocate for themselves as they influence systemic changes in support service provision that directly impacts their lives.
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District of Columbia Primary Service Agency Priorities
Priorities and eligibility criteria will be tailored to the population each agency serves and will be created collaboratively with the constituents who receive services. The following populations should be prioritized as agencies review their policies and procedures to reflect the goals of One Community for All:
 Children and adults who are receiving institutional residential services from District agencies. Priority should be given to individuals who currently receive these services outside of the District of Columbia. The agencies may need to develop service capacity to meet the needs of this population within the District of Columbia.
 Persons with disabilities who are homeless, soon to be released from jail, prison or juvenile detention facilities or otherwise known to District agencies;
 Persons who are receiving community living services, but still have significant unmet needs that put them at risk of unjustified institutionalization;
 Persons who are known to need, but currently receive few or no community living services and therefore are at immediate or long term risk of unjustifiable institutionalization; and
 Persons with disabilities who are currently not receiving services from District agencies because they live with a family member who can no longer support an individual with a disability.
Each primary service agency, in collaboration with stakeholders, will establish annual performance measures that embrace the spirit and intent of the Olmstead Community Integration Plan. In creating the annual performance measures, the primary service agencies will:
 Recommend community services and supports that reflect personal choice thus allowing individuals with disabilities to select services and supports that are designed to meet their specific needs.
 Provide information about community-based providers in accessible formats that promote effective communication and respect individual choice.
 Develop a goal of transition or diversion upon admission of an individual to institutional services. Individuals will require a reasonable amount of time based on their needs to develop a transition or diversion plan. In order to facilitate timely community placement, potential service providers must be identified when the individual is admitted to an institutional setting.
 Develop outreach materials in accessible formats to be distributed to the agency’s service population. These materials should promote effective communication and provide clear and concise information on community-based services and options.
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 Facilitate community forums for each agency’s constituency. These events will be conducted so that community members may receive accurate information on how to access community-based services and exercise personal choice. These forums will be scheduled, publicized, and hosted throughout the fiscal year to promote the education of the target population regarding community-based services and options. Barriers to Community-Based Services
In the process of developing One Community for All, the following barriers to providing community-based services have been identified for the primary service agencies to address:  Many service providers and community members may not have comprehensive
information on all available community-based supports and services for persons with disabilities.  Accessible, affordable and integrated housing is scarce.  Persons with disabilities need assistance and support to manage the impacts of institutionalization, discrimination, fear and stigma that are a part of daily life.  Basic support services such as assistance with activities of daily living, transportation, employment and education are often unavailable to persons with significant disabilities  Direct support employees who work in the community with persons with disabilities need to be competently trained (including cultural competency), adequately compensated, and available in sufficient numbers to meet the support needs individuals with disabilities.
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Goals
This plan is a living document – continuously reviewed, revised and updated to reflect current available information. In light of this fact, the following proposed tasks and activities support the successful implementation of One Community for All.
District of Columbia Primary Service Agency Responsibilities:
1. Identify an agency Olmstead Liaison to work collaboratively with the Olmstead Program Liaison at the Office of Disability Rights.
2. Identify and designate agency employees who will be responsible for identifying and assessing individuals in institutional placements who are willing and able to transition from institutional care to community-based placements.
3. Collect relevant data regarding individuals the agency serves in institutional settings, including costs, needed community-based services, and other barriers to deinstitutionalization.
4. Conduct the actual assessments of all individuals currently served in institutions to determine the individual’s readiness for community placement.
5. Identify specific individuals to be offered transition plans and community-based services on an annual basis beginning in fiscal year 2012.
6. Identify an agency transition team to work with the agency’s identified Olmstead Liaison to develop policies and procedures that promote safe transition plans for individuals with disabilities currently receiving institutional care from the agency that will transition to community-based settings.
7. Schedule, publicize, and host community forums on services offered to support persons with disabilities in community-based settings. These events should be held throughout each fiscal year.
8. Identify an Olmstead Performance Goal that will capture and measure the Agencies’ Goals for this initiative.
9. Develop outreach materials and an outreach plan designed to inform individuals, their families, caregivers, advocates, and service providers about the availability of community-based services and supports, Individual agency and cross-agency materials should be made available in order to provide a menu of all the available community-based support services and options available to persons with disabilities.
10. Develop budget projections that address financial expenditures that may be required to meet agency community integration goals.
11. Announce quarterly via website(s) and other agency specific means for communicating with constituents and other stakeholders data such as:  Number of individuals who are projected to be transitioned out of institutions  Number of individuals who are projected to be diverted away from institutions  Number of individuals transitioned out of institutions  Number of individuals who were diverted away from institutions
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Accountability
The success of One Community for All will be dependent on the accountability measures developed and implemented by the individual primary service agencies. ODR will convene semi-annual meetings with the primary service agency Directors to exchange information and collaborate on goals related to the implementation of One Community for All.
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Recommended Agency Olmstead Initiative Outline
The following outline provides guidance for each primary service agency to develop their individualized Olmstead Initiative. This outline is recommended but is not intended to be used as a strict format for agency Olmstead Initiatives.
1. Agency mission and vision 2. Agency future planning 3. Agency’s identified population and the definition of this population
a. Number of people currently living in these institutions b. The demographics of the individuals in the institution c. Number of individuals that are currently residing in out-of-state institutions
and in-state institutions d. The average length of stay for individuals in these institutions 4. Agency’s identified barriers unique to each population the agency serves a. Housing b. Transportation c. Other barrier issues and service needs unique to the populations that the
Agency serves in institutional settings d. Number of individuals who were transitioned or diverted out of institutions
safely for each fiscal year e. Available resources to be used in order to safely transition or divert these
individuals 5. Service needs that challenged the Agency to comply with the Olmstead Initiative
a. Services currently available to individuals with disabilities that support selfdetermination, transitioning, and/or diverting from institutional placements
b. Other District agencies that are currently coordinating or providing services and/or financial assistance to people currently living in institutions.
6. Barriers to providing self-determination and transitioning and diverting the Agency’s population away from institutions
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FY 2012 Agency Performance Measures and Outlines
Department on Disability Services (DDS)
FY 2012 Community Integration (Olmstead) Performance Measures:
1. Conduct 3 outreach activities quarterly (including service provider fairs, interagency liaison assignments, and relationship building with community resources).
2. Reduce the number of people receiving DDA services in congregate settings by ten (10) individuals in FY 2012. These individuals will transition to communitybased placements where they will receive needed support services.
3. Divert the placement of ten (10) individuals eligible for DDA services into institutional settings in FY 2012 through effective service planning and delivery of community-based services and supports.
4. Increase the number of qualified providers by four (4) in FY 2012 to meet identified service gaps.
FY 2012 Community Integration (Olmstead) Initiative Outline:
Agency Mission: The mission of the Department on Disability Services (DDS) is to provide innovative, high quality services that enable people with disabilities to lead meaningful and productive lives as vital members of their families, schools, workplaces and communities in every neighborhood in the District of Columbia. The Department is comprised of the Rehabilitation Services Administration (RSA) and the Developmental Disabilities Administration (DDA).
The Developmental Disabilities Administration (DDA) is responsible for the oversight and coordination of all services and supports provided to all qualified persons with intellectual disabilities in the District of Columbia. Intellectual disability is a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. The age of onset of an intellectual disability is prior to the age of 18. To be eligible for services from DDA, a person must have a diagnosis of an intellectual disability. Many persons receiving DDA services also are considered to have developmental disabilities. Developmental disabilities include a range of significant, life-long behavioral, intellectual and/or physical conditions. National prevalence data indicate that nearly one half of all persons with intellectual also have developmental disabilities. Other disabilities that may result in developmental disabilities include: cerebral palsy, Down’s syndrome, autism and other significant lifelong impairments that occur before the age of 22. Some people with developmental disabilities also have significant medical or mental health needs.
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DDA provides leadership, oversight and policy direction for the District’s Developmental Disabilities Services system. DDA delivers service coordination services for all individuals in the DC Developmental Disabilities Service system, is the operating agency for the Medicaid IDD Home and Community-Based Services Waiver Program, coordinates admission into the Intermediate Care Facilities for persons with Intellectual Disabilities (ICF/ID) program certified by the Department of Health, and operates an ongoing program of quality assurance and improvement over the District’s overall Developmental Disabilities Services system. The DDA Office of the Deputy Director is responsible for policy development and leadership in areas of best practice, performance management, and strategic planning. The Department on Disability Services provides administrative support and is responsible for budget authority, quality management and compliance with CMS and Evans v. Gray requirements and contracts and procurement.
Vision: The Department on Disability Services Developmental Disabilities Administration (DDS/DDA) is making great strides in its efforts to provide District residents with intellectual and developmental disabilities with the services and supports necessary to enable people to live in the most integrated setting appropriate to their needs. Until recently, the vast majority of persons receiving DDA services lived in restrictive ICF/DD settings. This is no longer true. Over the past two years, DDA has increased its capacity to enroll and serve persons in the Medicaid HCBS waiver and the number of people served as a result of this has grown. On December 31, 2011, DDA served 1,502 individuals with developmental and intellectual disabilities through the Medicaid HCBS waiver.
Agency’s Population and the Definition of this Population: 1. Number of people currently living in these institutions - DDS/DDA has 370 people living in ICF/IDD facilities as of December 31, 2011. 2. Number of individuals who are currently residing in out-of-state institutions and in-state institutions – DDS/DDA has twenty-one (21) people residing in out-ofstate settings not classified as community-based integrated settings. 3. Over the last two fiscal years Department on Disability Services / Developmental Disabilities Administration has averaged diverting and/or has returned 100 people to the community with the appropriate supports. This is accomplished through Home and Community-Based Services (HCBS) waiver enrollment and through the Money Follows the Person program in collaboration with the Department of Health Care Finance
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Agency’s Barriers Unique to each Population:  Housing – accessible, affordable housing in safe neighborhoods.  Transportation – Medicaid funded transportation reliability.  Due to the unique medical and behavioral challenges faced by the people who are placed out-of-state, the District has historically struggled to find providers with the unique expertise needed to support these individuals. DDS/DDA has enhanced its provider development as well as recruitment to ensure those providers deemed qualified have the expertise required to serve the people who will be returning to the district.  Home and Community-Based Services (HCBS) waiver service options- access to funded skilled nursing services in community-based settings.
Service Needs that Challenged the Agency to Comply with the Olmstead Initiative: DDS/DDA is in the process of building the infrastructure to develop a self-determination process, which accommodates quality assurance and improvement components. DDS is collaborating with Department of Health, Health Regulatory and Licensure Administration (DOH/HRLA) to ensure appropriate licensing regulations are in place which supports community-based service options. DDS is collaborating with the Department of Health Care Financing (DHCF) in the development of the DDA HCBS waiver renewal and a second DDA Supports HCBS waiver to advance self-direction.
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Office on Aging (DCOA)
FY 2012 Community Integration (Olmstead) Performance Measure:
1. DCOA and its Aging and Disability Resource Center (ADRC) will transition 60 residents from District nursing homes or hospitals back into the community through its Money Follow the Person and Hospital Discharge Planning programs.
2. DCOA/ADRC will partner with local District hospitals and the Delmarva Foundation to develop a discharge planning framework designed to identify people at risk for institutionalization and assisting them with locating the necessary home and community-based services to prevent long-term stays in health care facilities.
FY 2012 Community Integration (Olmstead) Plan Outline:
Agency Mission: The mission of the DCOA/ADRC is to assist the District’s elderly and persons with disabilities in maximizing their independence and improving their quality of life by linking people with a range of quality services. In addition, the DCOA/ADRC provides assistance and information to seniors and persons with disabilities about their current situation and helps them explore options and benefits available to them.
Vision: The vision of the DCOA/ADRC is to be a highly visible and trustworthy resource center and primary point of contact in the District for public and private-pay elderly and persons with disabilities, their families, friends, and health care providers who are seeking assistance and information on public and private long-term support programs and benefits.
Agency Future Planning: The DCOA/ADRC has a two-prong approach for addressing institutionalization in the District: hospital discharge planning and nursing home transition. Through the hospital discharge planning efforts, DCOA/ADRC will educate people about institutionalization, nursing home diversion, and about the importance of getting an effective plan of care and discharge plan if one must go to a nursing home from a hospital. DCOA/ADRC will collaborate with government agencies and private nonprofit organizations to identify individuals who are able and desire to return to the community. Such individuals will receive assistance from DCOA/ADRC in beginning the transition process and identifying resources for moving them back into the community. The transition process also consists of identifying a home for the client and securing furnishing and other household items that are essential for living in a new home.
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Agency’s Population and the Definition of this Population:
The Office on Aging and its Aging and Disability Resource Center are designed to assist older adults and persons with disabilities in locating supportive services and eldercare resources in order to continue living as they choose in their community.
Agency’s Barriers Unique to each Population:
1. Housing: Lack of accessible and affordable housing units. 2. Transportation: Lack of adequate wheelchair equipped transportation. Also,
restrictions of pick up location – clients must be able to enter transportation from the curb rather than receiving “door to door” assistance from driver. 3. Other barrier issues and service needs unique to the populations that the Agency serves in institutional settings: There is not an identified case management agency that provides wrap-around services for the targeted population under 60 years of age who is transitioning from an institutional setting back into the community. Also, some informal caregivers are unable to pay for respite care services. Thus, some type of subsidy program may be beneficial to this population. Lastly, the lack of a client’s social support network may lead a client to be without the necessary assistance to maintain an independent, quality life in the community. 4. Barriers to providing self-determination and transitioning and diverting the Agency’s population away from institutions: The lack of public knowledge about home and community-based services and the cost and programmatic restrictions associated with respite care programs make it difficult for family caregivers to support a loved one with special needs in the community. 5. Available resources to be used in order to safely transition or divert these individuals: grant funding through the Money Follows the Person and Hospital Discharge Planning programs.
Service Needs that Challenged the Agency to Comply with the Olmstead Initiative:
The following unmet service needs have hindered DCOA/ADRC from complying with the Olmstead Initiative:
There is a lack of available services for individuals with disabilities that support selfdetermination, transitioning, and/or diverting from institutional placements of persons with disabilities. As part of the Olmstead Initiative, DCOA/ADRC and its co-located agency staffs offer options counseling, which is a decision making approach, that empowers its consumers with the necessary information to make informed decisions about receiving long-term care services in an institution or at home.
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Office of the State Superintendent of Education (OSSE)
FY 2012 Community Integration (Olmstead) Performance Measure:
OSSE will determine an accurate, complete count of the number of students currently served by OSSE funds in residential treatment centers. This count will include the total number of children served by disability, gender, race/ethnicity, in-state/out-of-state, type of treatment program, and length of stay.
FY 2012 Community Integration (Olmstead) Plan Outline: OSSE maintains that all children are entitled to an equal opportunity, high quality education, in the least restrictive environment, that prepares them to be actively involved in all aspects of society. OSSE has worked to ensure that children with a disability residing in the District of Columbia are educated with their non-disabled peers to the greatest extent possible.
OSSE does not place children in residential facilities. The State Education Agency’s (SEA’s) responsibility is to pay for special education expenses for all District children placed into all nonpublic special education settings, including residential facilities, by the Local Education Agencies (LEA’s) and other District agencies.
While OSSE does not place students in facilities, OSSE plays a lead role in ensuring program quality and monitoring for compliance with federal and local law.
Agency Mission: OSSE sets high expectations, provides resources and support, and exercises accountability to ensure that all residents receive an excellent education.
Vision: All District residents will receive an excellent education.
Agency Future Planning: OSSE will continue to collect data that allows the District to focus its attention on creating a more accurate picture of the population served in-state or out-of-state in residential institutions. Toward this end, OSSE will coordinate with other agencies and its Local Education Agencies (LEAs) to improve data collection to inform city-wide future planning. OSSE will also continue to support the District’s efforts to ensure a smooth and effective transition for children returning to District LEAs from more restrictive settings.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 23 of 38
Agency’s Population and the Definition of this Population: OSSE will continue to work with the District’s placing agencies to collect district-wide for all students placed in residential treatment centers. OSSE tracks the number and types of placements made by the District of Columbia Public Schools (DCPS), the District of Columbia public charter schools, and other placing agencies. Regular compilation and verification of this information will provide an accurate picture of this population.
Agency’s Barriers Unique to each Population: OSSE is not a placing agency and therefore does not face barriers related to community-based services to the same degree. However, OSSE plays a role in supporting LEAs, through monitoring, policy issuance, and training, with appropriate placements and transitions back to less restrictive placements.
Service Needs that Challenged the Agency to Comply with the Olmstead Initiative: OSSE’s main challenges have been related to the fact that it is a new State agency that needed to develop data systems, policies, and procedures from the ground up. OSSE has effectively developed these systems and is fully able to support the work of the Olmstead committee.
Available Resources Utilized to Safely Transition or Divert Students: OSSE partners with all relevant stakeholders, including sister agencies and LEAs, to support the appropriate placement into, and return from, restrictive, separate settings. OSSE uses its monitoring, data, training, and policy teams to support this work.
Service Needs that Challenged Agency Compliance with the Olmstead Initiative: OSSE does not place students in residential facilities. The State Education Agency’s (SEA’s) responsibility is to pay for special education expenses for all District children placed into all nonpublic special education settings, including residential facilities, by other the Local Education Agencies (LEAs) and other District agencies.
Barriers to Providing Self-determination and Transitioning and Diverting the Agency’s Population Away from Institutions: OSSE does not have the authority or responsibility either to place children into or transition children from institutions. The most difficult barrier OSSE has faced is the lack of comprehensive data to accurately depict the population, to inform city-wide coordination and planning efforts.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 24 of 38
Department of Youth Rehabilitation Services (DYRS)
FY 2012 Community Integration (Olmstead) Performance Measure:
In FY 2012, DYRS will partner with the Department of Mental Health (DMH), and other community-based organizations, and aim to transition 30 committed youth with disabilities from Residential Treatment Centers (RTCs) or Psychiatric Residential Treatment Facilities (PRTFs) to their home community with services, but only if such community-based placements protect the safety of the young persons and the public.
FY 2012 Community Integration (Olmstead) Plan Outline:
Mission: The mission of the Department of Youth Rehabilitation Services is to improve public safety and give court-involved youth the opportunity to become more productive citizens by building on the strengths of youth and their families in the least restrictive, most home-like environment, consistent with public safety.
Vision: The Department of Youth Rehabilitation Services will provide the nation’s best continuum of care for court-involved youth and their families through a wide range of programs that emphasize individual strengths, personal accountability, public safety, skill development, family involvement and community support.
Agency Future Planning: In 2009, DYRS established the Lead Entity Service Coalition initiative, now known as DC YouthLink, a regionalized continuum of community-based services. Two communitybased organizations, East of the River Clergy Police Community Partnership and Progressive Life Center, were identified to broker large arrays of both traditional and non-traditional services and supports for DYRS youth returning to their home communities. Previously, either youth were sent out-of-state to access needed services or youth and their families had to travel throughout the District to access services and supports, resulting in their reduced utilization. By enhancing services available in local communities, and by adding to the array, non-traditional services (e.g., non Medicaidable services such as recreational opportunities and arts and leadership programs), DYRS strives to increase the likelihood of their successful use and to be able to keep more youth in their communities. Going forward, DYRS intends to expand the quality and breadth of services available to youth in the community through DC YouthLink.
Agency’s Population and the Definition of this Population: Many youth committed to DYRS have significant behavioral health needs. These youth may be sent to out-of-state RTCs or PRTFs to receive treatment and services. DYRS predominantly serves an African American population of males under the age of 21. In FY 2011, for example, 98% of youth committed to DYRS were African American. The most significant barrier to keeping youth in their home communities continues to be the lack of available resources in the District.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 25 of 38
Department of Human Services (DHS)
FY 2012 Community Integration (Olmstead) Performance Measure:
DHS will provide housing to 200 formerly homeless individuals with disabilities by providing an individualized mix of community-based case management services.
FY 2012 Community Integration (Olmstead) Plan Outline:
Agency Mission: The mission of the District of Columbia Department of Human Services (DHS), in collaboration with community-based homeless service providers, is to assist low-income individuals and families to maximize their potential for economic security and selfsufficiency.
Vision: The specific focus of the Homeless Services Program (HSP) is to ensure that shelter services, transitional housing, permanent supportive housing and supportive services are provided to individuals and families that are homeless (or at-risk of homelessness) with the goal of moving them beyond homelessness and towards self-sufficiency.
Agency Future Planning: During FY 2012, DHS will continue to address the need for housing and individualized case management within Homeless Services Programs such as those listed below:
 Permanent Supportive Housing for Veterans Initiative – Veterans Administration (VA) funded initiative which is a partnership between the VA Medical Center, DHS and DCHA. Through this initiative veterans in the District will be provided permanent supportive housing.
 Emergency Rental Assistance Program – This program provides crisis intervention in the form of payment of rental arrearages, security deposit, and/or first month’s rent. The purpose of the program is to prevent homelessness by enabling very low-income families, and individuals who are elderly or have disabilities, and who are at imminent risk of homelessness to remain in or access permanent housing.
Agency’s Population and the Definition of this Population: During FY 2012, DHS will continue to serve persons who are homeless that have disabilities.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 26 of 38
Agency’s Barriers Unique to each Population: All HSP populations face one or more of the following barriers:
 Availability of safe, decent and affordable housing  Availability of accessible housing units  Transportation resources  Substance Abuse  Mental illness  Medical ailments  Unemployment/underemployment (limited income)  Legal (immigration) status Agency Resources Identified to Transition Identified Population: DCHA vouchers, Housing First subsidies, Federal housing resources, local HSP budget resources. Barriers to Providing Self-Determination and Transitioning and Diverting the Agency’s Population Away from Institutions:  Limited affordable housing resources in the District  Availability of accessible housing units
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 27 of 38
Department of Mental Health (DMH)
FY 2012 Community Integration (Olmstead) Performance Measure:
Working through the Division of Integrated Care, DMH will reduce the census at Saint Elizabeth’s Hospital to 280 people with disabilities by placing them in “non-institutional” type settings by September 30, 2012.
FY 2012 Community Integration (Olmstead) Plan Outline:
Agency Mission:
The goal of the Department Mental Health is to develop, support and oversee a comprehensive, community-based, consumer-driven, culturally competent, quality mental health system. This system should be responsive and accessible to children, youth, adults, and their families. It should leverage continuous positive change through its ability to learn and to partner. It should also ensure that mental health providers are accountable to consumers and offer services that promote recovery from mental illness.
Vision: DMH strives to provide a dynamic, innovative, outcome-oriented mental health system for the residents of the District of Columbia. DMH wants to maximize consumer choice, offer flexible and responsive services, and partner with competent mental health providers committed to providing quality care.
Agency Future Planning: DMH has included a level of service goal as part of its Olmstead Compliance plan. Specifically, DMH will keep the St. Elizabeths census below 280 patients. This goal reflects a shift to providing community based supports for persons with significant behavioral health concerns. DMH has also been collaborating with DHCF and advocacy organizations on strategies to transition people with mental health diagnoses from St. Elizabeths Hospital, Mental Health Community Residential Facilities and Nursing Facilities. The DMH Chief Medical Officer and a DMH nurse consultant meet with nursing homes periodically and on an as needed basis to assist with identifying and treating mental illness and transitioning mental health consumers to community-based settings.
Agency’s Population and the Definition of this Population: There are 71 DMH monitored youth residing in Psychiatric Residential Treatment Facilities (PRTF’s). Additionally, there are 264 individuals residing at Saint Elizabeth’s Hospital. The average length of stay for this demographic is over 30 days.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 28 of 38 Agency’s Identified Barriers Unique to each Population: The Department will continue to build housing for Transition Age Youth, 18-21 years of age, which will provide services fitting their social, emotional and other needs. Medicaid is supporting some transportation needs. Other Barrier Issues and Service Needs Unique to this Population: DMH would like to widen its array of service providers for children and youth. Service Needs that Challenged the Agency to Comply with the Olmstead Initiative In partnership with all of the child/youth serving agencies in the District, the Department of Health Care Finance (DHCF), the Managed Care Organizations (MCO’s), the Office of the State Superintendent of Education (OSSE), representatives from the Deputy Mayor’s Office and youth advocates, DMH is working to develop a common set of standards for all agencies to use in making decisions regarding residential placements for children and youth.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 29 of 38
Child and Family Services Agency (CSFA)
FY 2012 Community Integration (Olmstead) Performance Measure:
In collaboration with DMH, CFSA continues to make significant progress in reducing the number of youth placed in Psychiatric Residential Treatment Facilities (PRTF), including those placed more than 100 miles from the District. Each month the agency continues to discharge or transition a steady stream of eligible youth to local community-based services.
FY 2012 Community Integration (Olmstead) Plan Outline:
Agency Mission: The Child and Family Services Agency (CFSA) is the District of Columbia’s cabinetlevel, child welfare agency. CFSA is charged with protecting children and youth from abuse and neglect and for those removed from their homes, ensuring safe, permanent placements that can effectively support them in meeting their goals for well-being.
Vision: The mission and commitment of CFSA is rooted in protecting child victims and those at risk of abuse and neglect up to age 21. CFSA’s goal is to ensure children have safe, permanent homes with their birth parents, relatives, or adoptive families, or otherwise support and prepare them to function as competent, independent adults with connections to the communities in which they reside whenever possible.
When children and youth are removed from their homes to ensure their safety, CFSA’s goal is to provide them with a family setting that promotes a continued connection to their siblings, parents, extended family members, and communities. CFSA seeks to place all children and youth in its care in family-based settings first, before seeking congregate care placement alternatives.
Agency’s identified Population and the Definition of this Population: CFSA closely monitors this population; reviews are conducted on a monthly basis and are discussed at meetings with CFSA leadership. In order to address the lack of local treatment services for youth with serious emotional, behavioral, and mental health, or who have certain disabilities, CFSA is participating in a city-wide conversation about how to bridge the service gaps in the District’s continuum of care for youth. Partner agencies will focus on incentivizing the development of appropriate and effective services in the District.
FY 2008 was the first year of the multi-year mental health plan, during which time CFSA and DMH assessed the array of existing services to determine the extent to which they met the needs of the population they served.
Rate increases for counseling/therapy and medication management services went into effect on November 1, 2008, with the expectation of increasing the pool of providers
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 30 of 38
who participate in providing community services to the target population. Four Core Service Agencies through the DMH have been selected as Choice Providers to provide evidenced-based, effective and quality services to the children and families served through CFSA.
In addition to the action steps already described, the Agency is proposing implementation of a Nurse Case Management Model in FY 2010 that will greatly enhance the supports available to resource families, particularly for those families caring for children who are medically fragile or developmentally delayed. Under this new approach to service delivery, nurses in CFSA’s Office of Clinical Practice, Clinical and Health Services Administration, will each carry a caseload and provide support to children in care. The nurses will review individual service needs and assist resource families in navigating the health care and related service systems. The Agency projects that the addition of this particular support will increase the willingness of resource families to care for medically fragile children who otherwise must remain in a congregate or hospital setting.
CFSA is also reviewing its current MOU with the Department on Disability Services Developmental Disability Administration (DDS/DDA) to ensure the terms are aligned with new proposed legislation that would enable CFSA to refer eligible youth for services prior to their 18th birthday.
Number of People Currently Living in Institutions: Children who require the highest level of specialized care are placed in residential treatment centers (RTC’s) or psychiatric residential treatment facilities (PRTF’s). This type of specialized care may include treatment for neurological impairments, medically fragile conditions, sexual abuse and/or sexual offense, as well as treatment for youth in foster care who have also been in the juvenile justice system for various crimes (assault, possession of weapons, robbery, theft, etc.).
The Demographics of the Individuals in Institutions: The children in the District’s foster care population are older than in most jurisdictions, largely African American (at approximately 90%, an over representation compared with the district’s overall ethnic population profile), and about equally distributed between male and female.
Agency’s Identified Barriers Unique to Population: Due to a lack of local treatment services for youth with serious emotional, behavioral, and mental health, or who have certain disabilities, CFSA is participating in a city-wide conversation about how to bridge the service gaps in the District’s continuum of care for youth. Partner agencies will focus on incentivizing the development of appropriate and effective services in the District.
Number of Individuals who were Transitioned or Diverted out of Institutions Safely for the Fiscal Year: CFSA’s primary goal is to transition all children and youth to the least restrictive environment possible. This is based on the treatment progress of the children or youth
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 31 of 38
in these settings. Currently, CFSA participates in treatment planning meetings to determine if the children/ youth are meeting the goals for discharge.
The Following Resources have been Instrumental in Safely Diverting Children from Institutional Care: Wraparound Pilot: CFSA’s implementation of the mental health wraparound pilot (2008) was designed to result in a fundamental shift in the way the District delivers services to children and youth with complex emotional and behavioral needs. Wraparound is an approach to care that has evolved through efforts to help families with the most challenging children function more effectively in the community. More specifically, rather than relying on PRTFs, wraparound services incorporate a definable planning process that results in a unique, individualized set of community services and natural supports that “wrap around” a child and family to further their efforts towards safety, permanency, and well-being. The philosophy that led to wraparound is relatively simple: identify the community services and supports that a family needs and provide them as long as they are needed. The wraparound process is expected to help build the District’s capacity to serve children. This pilot is jointly funded by CFSA and the District’s Department of Mental Health.
Family Team Meetings (FTM’s): FTM’s are a child welfare strengths-based, family conferencing model. FTM’s are employed to increase family and community involvement at times of critical decision-making. System of Care (SOC) meetings are designed to identify the level of supports and services that a child/ youth will require. Department of Mental Health (DMH) coordinated network of agencies and providers that make a full range of mental health and other necessary services available as needed by children with mental health problems.
Mobile Crisis Response: The District is also planning to implement new crisismanagement services to include “crisis beds” as well as a Mobile Response Stabilization Team. One of the primary objectives of crisis beds is to circumvent psychiatric inpatient hospitalization for youth ages 6 to 21. The crisis beds will provide psychiatric stabilization and rehabilitative services that address the psychiatric, psychological, and behavioral needs of the children and youth who need support.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 32 of 38
Available Services for Individuals with Disabilities that Support SelfDetermination, Transitioning, and/or Diverting Individuals from Institutional Placements: All staff is charged with supporting the mission of CFSA and ensuring the overall safety, permanence and well-being for the children and families served by the Agency. CFSA employs a multidisciplinary team approach which includes but is not limited to staff from: Program Operation (case managers), Office of Clinical Practice (Residential Treatment Center Specialist (RTC), Health Services (nurses), Special Needs Liaison, and Mental Health Specialist. Each child also has a Guardian Ad Litem (GAL) advocating on their behalf. In addition to the case management services provided by CFSA, the Agency also utilizes:  Mobile Crisis  Crisis Behavioral Intervention  Nursing  Wraparound Services  Intensive Home and Community-Based Services  Multi-Systemic Therapy Other District Agencies that are Currently Coordinating or Providing Services and/or Financial Assistance to People Currently in Institutions: CFSA’s Office of Clinical Practice works closely with the District’s Department of Mental Health (DMH) to meet the needs of the target population. DMH is responsible for coordinating and facilitating the family-focused System of Care (SOC) meeting to develop individual service plans required to meet the needs of the child or youth. These meetings are used as tools to help identify the least restrictive settings possible. Barriers to Providing Self-Determination and Transitioning and Diverting the Agency’s Population Away from Institutions: The major barrier is the lack of provider capacity in the local DC metropolitan area for any such specialized population.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 33 of 38
District of Columbia Public Schools (DCPS)
FY 2012 Community Integration (Olmstead) Performance Measure:
As of October 2011, DCPS monitored 23 students with disabilities placed in residential schools by DCPS, and DCPS will return 8 of these students to school settings in their home communities with appropriate support services.
FY 2012 Community Integration (Olmstead) Plan Outline:
Agency Mission: The mission of DCPS is to educate students with disabilities to become successful adults who live independently, have meaningful careers, and are fully engaged in the community.
Agency Future Planning: To reduce residential school placements, DCPS will proactively engage community services and exhaust school-based interventions to ensure that all possible special education and community resources are explored before residential school placements are utilized for DCPS students with disabilities. DCPS will also reduce the need of extended residential placements by creating discharge plans for DCPS-placed students with disabilities prior to their entry into residential facilities to ensure an appropriate and timely return to the District of Columbia. Services and supports provided to students with disabilities may include wraparound case management services, transition to adulthood services, and other services and supports that are specified within each student’s Individual Education Plan (IEP).
Agency’s Identified Population and the Definition of this Population: DCPS has identified special education students who are currently placed in residential school settings. OSSE is the sole source of funding for the student’s placement in these residential settings. The average length of stay for students in these placements is approximately 24 months. Residential school placements represent the most restrictive environment for a student with disabilities. The decision to place a student in a residential setting is made based on what is considered to be the most appropriate placement for the individual student as agreed during the IEP process, or as determined by an independent hearing officer as the result of a due process complaint.
Agency’s Identified Barriers Unique to the Population the Agency Serves: 1. Students placed for educational reasons have exhausted all of their other, less restrictive school options. Therefore, educational placements into residential facilities tend to be longer in duration than placements made by other District agencies. 2. Lack of school and community ability to offer the services and supports necessary to accommodate the most severe needs of students within the community.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 34 of 38
3. Lack of education for families about students’ disabilities and how to accommodate students within the home environment. Moving forward, DCPS will make efforts to link families to core service agencies that can provide family counseling.
Service Needs that Challenged the Agency to Comply with the Olmstead Initiative:
1. Lack of wraparound case management and behavioral supports to be able to serve these students within neighborhood schools.
2. Services for medically fragile students are not coordinated among schools, District government agencies (DMH, CFSA, etc.), medical providers, and community support agencies to support these students within local schools. Moving forward, DCPS will make efforts to include the student’s receiving school in the discharge planning process to ensure relevant stakeholders are aware of the student’s needs.
Barriers to Providing Self-Determination and Transitioning and Diverting the Agency’s Population Away from Institutions:
1. Students with disabilities are often placed without coordinated educational and treatment plans that comprehensively consider the goals of the placement from date of admission to the discharge planning process. DCPS is working to ensure students placed into residential facilities by DCPS enter with discharge plans clearly articulating the goals of the residential treatment to ensure an appropriate and timely return to the District.
2. Educational attorneys representing students and families and independent hearing officers may advocate for residential placements.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 35 of 38
Department of Health Care Finance (DHCF)
Agency Mission: The mission of the Department of Health Care Finance (DHCF) is to improve health outcomes by providing access to comprehensive, cost-effective and quality healthcare services for residents of the District of Columbia.
In addition to the Medicaid program, DHCF also administers insurance programs for immigrant children, the State Child Health Insurance Program (S-CHIP or CHIP) and Medical Charities (a locally funded program).
DHCF’s evolving Olmstead Initiative is a reflection of its commitment to providing a continuum of high quality long term care services and supports for all Medicaid beneficiaries who have a disability. The need for an Olmstead Initiative that evolves is based on the principles of “continuous quality improvement” - an approach to improving health care that emphasizes meeting (and exceeding) consumer needs and expectations, and using scientific methods to continually improve care.
The new DHCF Administration has identified the need for a comprehensive DHCF plan for providing services and supports to individuals with disabilities in the most integrated setting appropriate. In FY12, DHCF plans to build upon and strengthen existing Medicaid programs and assess the advantages of providing services through alternative strategies made available to states, territories, and the District of Columbia under federal Medicaid laws.
Vision: Provide services and supports to all Medicaid beneficiaries who have a disability, in the most integrated setting appropriate, through a continuum of high quality long term care services and supports in accord with a comprehensive plan that:
 Involves Medicaid beneficiaries with disabilities in the design of the long term care system;
 Provides access to a broad range of high-quality long term care services and supports through a network of providers to meet the needs of eligible beneficiaries;
 Provides care more efficiently, through ensuring program integrity, while maximizing federal resources; and
 Strengthens the partnership between DHCF and a broad network of quality providers, as well as with other government agencies, to expand healthcare services.
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Case 1:10-cv-02250-ESH Document 48 Filed 04/06/12 Page 36 of 38
FY 2012 Community Integration (Olmstead) Initiative Outline:
In FY 12, the Initiative will address:
1. Initial analysis of the needs of persons with disabilities in the DC Medicaid program, a review of barriers and the drafting of policies and procedures;
2. Restructuring and realigning Medicaid personnel and resources to provide stronger focus on community-based long term care services and supports and the quality of those services;
3. Review of the performance of the array of community-based long term care (CB-LTC) services and supports in the Medicaid program; and
4. Development of a 12-month work plan for strengthening the safety, effectiveness, patient-centeredness, timeliness, efficiency, and equity of long term care services1 including home and community-based long term care to prevent institutionalization and to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs.
DHCF conducted preliminary analysis of the magnitude of need in the DC Medicaid program. The DC Medicaid program offers CB LTC services through multiple Medicaid pathways: as a benefit under the DC Medicaid State Plan; through two waiver programs that offer more intensive services to persons with physical or intellectual disabilities; and through a Money Follows the Person (MFP) initiative aimed at helping people living in nursing facilities or Intermediate Care Facilities for the Intellectually or Developmentally Disabled (ICF – ID/DD) return to the community.
The initial focus for reform was on the Money Follows the Person (MFP) program and State plan personal care aide (PCA) benefit as the PCA benefit serves the greatest number of people, incurs the greatest cost, and historically had less attention than other CB LTC waiver programs. By more appropriately deploying these services, people who need support in the community can receive it while overutilization is controlled, freeing resources to provide other critical supports.
Reform is unfolding in three phases: 1) short term actions that could be taken within 3060 days without a state plan amendment (SPA) or new regulations; 2) more substantial modifications to existing DC Medicaid CB LTC benefits that would likely require some combination of SPA / regulations and/or contracting and therefore more time to implement; and 3) analysis of new ways to best provide CB LTC service in the future in the face of multiple delivery options.
1These six goals have been embraced nationally as the aims of good quality health care towards which all involved in health care should focus their efforts. (See IOM. 2001. Crossing the Quality Chasm. A new health system for the 21st century. National Academy Press. Available online at: http://www.nap.edu/catalog.php?record_id=10027)
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FY 2012 Community Integration (Olmstead) Performance Measure:
In FY 2012, DHCF’s Olmstead performance measures will focus on MFP activities, tracking the number of people transitioned out of institutions and into HCBS waiver settings (see item 4 above). The bulk of the agency’s activities involve planning ahead. During 2012, DHCF will aid a minimum of 60 people to transition out of institutions (i.e., ICFs/MR, Nursing Homes, Mental Health Facilities) into Home and Community-Based Services waiver (HCBS) settings.
Agency Future Planning: The foundation for DHCF planning efforts is the development of a Comprehensive DHCF Olmstead Initiative in FY 13. This will include focus on the Money Follows the Person program, as well as the continuum of other CB-LTC Medicaid benefits.
With respect to MFP, the CMS-approved Operational Protocol (OP) outlines a deinstitutionalization strategy for MFP-eligible people with Intellectual and Developmental Disabilities (I/DD) through the Intellectual and Developmental Disabilities (IDD) HCBS Waiver administered by the Developmental Disabilities Administration (DDA). In FY 2010, CMS approved the expansion of the OP to reach people who are eligible for the Elderly and Physical Disability (EPD) HCBS Waiver administered by DHCF.
Through MFP, DHCF has also been collaborating with the Department of Mental Health and advocacy organizations on strategies to transition people with mental health diagnoses from St. Elizabeths Hospital, Mental Health Community Residential Facilities and Nursing Facilities.
Agency Identified Population and the Definition of this Population:
The DHCF strategy will focus on adults (22 years old and older) who: 1. Live in DC long-term care institutions or are at risk of institutionalization; and 2. Receive DC Medicaid
For the target population, funding will shift from payment for Medicaid Inpatient Services delivered by institutions to payment for Home and Community-Based Services through one of three HCBS options:
1. Intellectual and Developmental Disabilities (IDD) HCBS Waiver - Administered by the Developmental Disabilities Administration (DDA)
2. Elderly and Physical Disability (EPD) HCBS Waiver-Administered by DHCF 3. Rehabilitation Option of the State Plan for people with Mental Illness/Mental
Health Diagnoses-Administered by the Department of Mental Health (DMH)
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Agency’s Identified Barriers Unique to the Population the Agency Serves: Perceived benefit of move. At an average size of about 6 beds, DC’s ICFs are relatively small group homes. It is sometimes challenging to convince residents, their families, other decision-makers and caregivers that a move to a home of 4 or less is beneficial. Funding for housing. DDA funding for room and board has recently been reduced. Increasingly, it will become a challenge to support home and community-based living options for IDD Waiver recipients.
EPD HCBS Waiver Eligible Isolation. Isolation after the move is a fear for both older and younger people transitioning from nursing homes, and it is a reality for some in the community who DHCF is connected to through existing deinstitutionalization efforts. Funding for housing. Diverse funding sources need to be cultivated. Currently, Housing and Urban Development Housing Choice Vouchers have been identified as an option.
MH Rehabilitation Option Eligible Community-based Housing. DHCF is working with DMH to search for available and affordable housing options that can provide the necessary supports for people who are transitioning from St. Elizabeths Hospital and from contractual Mental Health Community Residential Facilities (CRFs).
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 Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

894 F.Supp.2d 1 United States District Court,
District of Columbia.
Edward DAY, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 10–2250 (ESH). | Feb. 14, 2012.
Synopsis Background: Individuals, suing on their behalf and on behalf of proposed class of similarly-situated individuals, commenced action for declaratory and injunctive relief against District of Columbia, its Mayor, and several city officials, alleging that individuals with disabilities who were covered by Medicaid were being unnecessarily institutionalized in nursing facilities and isolated from their communities in violation of Title II of Americans with Disabilities Act (ADA) and Rehabilitation Act. Defendants moved to dismiss for failure to state a claim or, in the alternative, for summary judgment.
Holdings: The District Court, Ellen Segal Huvelle, J., held that:
[1] complaint would not be dismissed for lack of standing based on failure to allege causal connection between individuals’ placement in nursing facilities and District’s actions;
[2] complaint would not be dismissed because there was no allegation that District had determined that community-based services were appropriate for plaintiffs;
[3] it was not basis for dismissal that plaintiffs did not allege that cost of community care for given individual would be less than cost of institutional care;
[4] fact issues existed as to whether District had Olmstead Integration Plan for placement of disabled persons in community settings rather than institutions or had moved individuals to the “most integrated setting” as required by Olmstead; and
[5] claims against city officials, in their official capacities,

would be dismissed as redundant.
Motion granted in part and denied in part.
Attorneys and Law Firms
*2 Barbara S. Wahl, Brian D. Schneider, Arent, Fox LLP, Kelly R. Bagby, AARP *3 Foundation Litigation, Marjorie Lynn Rifkin, Jennifer Rachel Lav, Victoria L. Thomas, University Legal Services, Inc., Bruce B. Vignery, American Association of Retired Persons, Washington, DC, for Plaintiffs.
Bradford Collins Patrick, Melissa Lael Baker, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
Opinion

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.
Plaintiffs, five individuals who have sued on their behalf and on behalf of a proposed class of similarly-situated individuals, commenced this action for declaratory and injunctive relief against the District of Columbia, its Mayor, and several city officials (collectively “defendants”),1 alleging that individuals with disabilities who are covered by Medicaid are being unnecessarily institutionalized in nursing facilities and isolated from their communities in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. Before the Court is defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56.2 For the reasons stated herein, defendants’ motion is granted in part and denied in part.

1

The named individual defendants, all sued only in their

official capacities, include: Vincent Gray, the Mayor of

the District of Columbia, Wayne Turnage, Director of

the District of Columbia’s Department of Health Care

Finance (“DHCF”), and Stephen Baron, Director of the

1

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

District of Columbia’s Department of Mental Health (“DMH”). (Am. Compl. ¶¶ 16–17, 20–22.)

2

Defendants filed their motion to dismiss or for

summary judgment (“Defs.’ Mot.”), memorandum in

support thereof (“Defs.’ Mem.”), statement of

undisputed material facts (“Defs.’ Facts”) and exhibits

(“Defs.’ Ex.”) on April 27, 2011 [Dkt. No. 19]. After a

period of discovery to allow plaintiffs’ to respond to the

summary judgment aspect of defendants’ motion,

plaintiffs filed their memorandum in opposition (“Pls.’

Opp.”), statement of disputed material facts (“Pls.’

Facts”) and exhibits (“Pls.’ Ex.”) on September 1, 2011

[Dkt. No. 28]. Defendants filed their reply (“Defs.’

Reply”) with additional exhibits (“Defs.’ Reply Ex.”)

on October 3, 2011 [Dkt. No. 30]. In addition, the

United States filed a Statement of Interest on October 3,

2011 (“US Statement of Interest” with exhibits (“US

Ex.”) [Dkt. No. 32] ), to which defendants responded

on December 19, 2011. (“Defs.’ Resp.” [Dkt. No. 40].)

Defendants’ motion to strike the United States’

Statement of Interest (Defs.’ Mot. to Strike, Oct. 7,

2011 [Dkt. No. 33] ) was denied. (See Minute Order,

Dec. 1, 2011.)

BACKGROUND
I. INTEGRATION MANDATE
A. Statutory and Regulatory Background
Title II of the ADA provides that “no qualified individual with a disability3 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,4 or be subjected to discrimination *4 by any such entity.” 42 U.S.C. § 12132. One “for[m] of discrimination,” according to Congressional findings,” includes “segregation” of persons with disabilities.” Id. § 12101(a)(2) (“historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”); see also id. § 12101(a)(5) (“individuals with disabilities continually encounter various forms of discrimination, including ...

segregation”). The ADA’s implementing regulations5 include an express “integration” provision, requiring that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d), which is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. B.

3

In the ADA, a “qualified individual with a disability” is

defined as

an individual with a disability who, with or

without reasonable modifications to rules, policies,

or practices, the removal of architectural,

communication, or transportation barriers, or the

provision of auxiliary aids and services, meets the

essential eligibility requirements for the receipt of

services or the participation in programs or

activities provided by a public entity.

42 U.S.C. § 12131(2).

4

A “public entity” includes “any State or local

government,” and “any department, agency, [or] special

purpose district.” §§ 12131(1)(A), (B). The District of

Columbia is a public entity covered by Title II of the

ADA. (Am. Compl. ¶ 108.)

5

Congress instructed the Attorney General to issue

regulations implementing Title II’s discrimination

proscription. See 42 U.S.C. § 12134(a).

Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).6 Although the Rehabilitation Act contains no express recognition that isolation or segregation of persons with disabilities is a form of discrimination, its implementing regulations require that programs, services, and activities be administered in “the most integrated setting appropriate” to the needs of individuals with disabilities. 28 C.F.R. § 41.51(d).

6

The District of Columbia and its governmental agencies

receive federal financial assistance within the meaning

2

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

of Section 504. (Am. Compl. ¶ 115.)

In addition to directing that programs, services and activities be administered in the “most integrated setting appropriate,” the implementing regulations for both the ADA and the Rehabilitation Act prohibit either “directly or through contractual or other arrangements,” the

utiliz[ation of] criteria or methods

of administration: (i) That have the

effect of subjecting qualified

individuals with disabilities to

discrimination on the basis of

disability; [or] (ii) That have the

purpose or effect of defeating or

substantially

impairing

accomplishment of the objectives

of the public entity’s program with

respect to individuals with

disabilities.

28 C.F.R. § 35.130(b)(3)(i)-(ii)(ADA); see also 45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act); 28 C.F.R. § 41.51(b)(3)(i)-(iii) (same).

Under the ADA, a public entity must

make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7) (1998). Similarly, under the Rehabilitation Act, the recipient of federal funds must

make reasonable accommodation to

the known physical or mental

limitations of an otherwise

qualified handicapped applicant or

employee unless the recipient can

demonstrate

that

the

accommodation *5 would impose

an undue hardship on the operation

of its program.

28 C.F.R. § 41.53.7

7

Although the language of these two regulations is not

identical, they are intended to be “consistent.” See 42

U.S.C. § 12134(b) (directing Attorney General that the

regulations implementing the ADA “shall be consistent

with” the regulations implementing Section 504).

B. Olmstead v. L.C. ex rel. Zimring
[1] In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court considered whether the “proscription of discrimination” in Title II of the ADA “may require placement of persons with mental disabilities in community settings rather than in institutions.”8 Id. at 587, 119 S.Ct. 2176. The Court’s answer was “a qualified yes.” Id. at 587, 119 S.Ct. 2176. The Court first held that “[u]njustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597, 119 S.Ct. 2176.9 However, the Court also recognized that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings,” there is no “federal requirement that community-based treatment be imposed on patients who do not desire it,”10 and States “need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and [have an] obligation to administer services with an even hand.” Id. at 601–02, 119 S.Ct. 2176. In light of these considerations, the Court held11 that community placement for individuals with mental disabilities

8

Generally, courts have found that the Rehabilitation Act

is “similar in substance” to the ADA and, therefore,

“cases interpreting either are applicable and

interchangeable.” The Am. Council of the Blind v.

Paulson, 525 F.3d 1256, 1262 n. 2 (D.C.Cir.2008).

9

The Court rejected the argument that to show

discrimination based on disability “necessarily requires

uneven treatment of similarly situated individuals.”

Olmstead, 527 U.S. at 598, 119 S.Ct. 2176. Rather,

noting that Congress had a more comprehensive view

of the concept of discrimination advanced in the ADA,

the Court held that:

Dissimilar treatment correspondingly exists in this

3

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice. Id. at 601.

10

See 28 C.F.R. § 35.130(e)(1) (1998) (“Nothing in this

part shall be construed to require an individual with a

disability to accept an accommodation ... which such

individual chooses not to accept.”); 28 C.F.R. pt. 35,

App. B (“persons with disabilities must be provided the

option of declining to accept a particular

accommodation”).

11

This holding of Olmstead will hereinafter be referred to

as the “Integration Mandate.”

is in order when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607, 119 S.Ct. 2176.12 Although the plaintiffs in Olmstead had exclusively mental disabilities (mental retardation and mental illness), its holding also applies to individuals with physical disabilities. See *6 42 U.S.C. § 12102(1)(A) (qualifying disability under the ADA includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (emphasis added)); see, e.g., M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir.2011) ( Olmstead case where plaintiffs had both mental and physical disabilities); Grooms v. Maram, 563 F.Supp.2d 840, 852 (N.D.Ill.840) (Olmstead case where plaintiff had physical rather than mental disability).

12

The Court, however, explained that it was not holding

“that the ADA imposes on the States a ‘standard of

care’ for whatever medical services they render, or that

the ADA requires States to ‘provide a certain level of

benefits to individuals with disabilities,’ ” but it was

holding “that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Olmstead, 527 U.S. at 603 n. 14, 119 S.Ct. 2176.
In Olmstead, there was no dispute that the two plaintiffs were individuals “ ‘qualified’ for noninstitutional care” who did not “oppose[ ] such treatment.” Id. at 602–03, 119 S.Ct. 2176. As for whether community placement for those plaintiffs was a “reasonable accommodation,” the Court majority expressed no opinion, simply remanding “for further proceedings.” Id. at 607, 119 S.Ct. 2176. A plurality, however, went on to address in greater detail what might be the scope of “[t]he State’s responsibility, once it provides community-based treatment to qualified persons with disabilities,” noting that it was “not boundless.” Id. at 603, 119 S.Ct. 2176. The plurality started its analysis with the “reasonable-modifications regulation,” pointing out that it “speaks of ‘reasonable modifications’ to avoid discrimination, and allows States to resist modifications that entail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs.” Id. at 603, 119 S.Ct. 2176 (quoting 28 C.F.R. § 35.130(b)(7)). The plurality went on to observe that “[t]o maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow.” Id. at 605, 119 S.Ct. 2176. For example, the plurality stated:
The Court of Appeals’ construction of the reasonable-modifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State’s entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail.
Id. at 603, 119 S.Ct. 2176.13 Thus, the plurality opined:
4

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

13

The majority did agree that the Court of Appeals’

understanding that the fundamental alteration defense

was “unduly restrictive” insofar as it “permit[ted] a

cost-based defense only in the most limited of

circumstances”:

In evaluating a State’s fundamental alteration

defense, the District Court must consider, in view

of the resources available to the State, not only the

cost of providing community-based care to the

litigants [individuals with mental disabilities], but

also the range of services the State provides others

with mental disabilities, and the State’s obligation

to mete out those services equitably.

Id. at 597, 603, 119 S.Ct. 2176.

Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Id. at 604, 119 S.Ct. 2176. Finally, the plurality set forth one way that it believed a State could meet its burden of establishing a fundamental alteration defense:

If, for example, the State were to

demonstrate that it had a

comprehensive, *7 effectively

working plan for placing

qualified persons with mental

disabilities in less restrictive

settings, and a waiting list that

moved at a reasonable pace not

controlled by the State’s

endeavors to keep its institutions

fully

populated,

the

reasonable-modifications

standard would be met.

Id. at 605–606, 119 S.Ct. 2176 (emphasis added).14

14

The plan described by the Olmstead plurality will

hereinafter be referred to as an “Olmstead Integration

Plan.”

C. Compliance with Olmstead’s Integration Mandate

Since Olmstead, public entities and courts (although none

in this Circuit) have grappled with what is required to

demonstrate the existence of an Olmstead Integration Plan

and/or what is required to satisfy the Integration Mandate.

See Terence Ng, Alice Wong, and Charlene Harrington,

Home and Community Based Services: Introduction to

Olmstead Lawsuits and Olmstead Plans, Table 2 (2011),

available

at

http://www.pascenter.

org/olmstead/downloads/OlmstCasesTable_2011.pdf. A

number of States (26 as of August 2011) have expressly

adopted so-called Olmstead Plans. See id. at Table 1,

available

at

http://www.pascenter.org/olmstead/downloads/Olmstead_

Plan_2011.pdf. And the Department of Justice (DOJ) has

issued a Statement setting forth its view “[t]o assist

individuals in understanding their rights under title II of

the ADA and its integration mandate, and to assist state

and local governments in complying with the ADA and

its integration mandate, and to assist state and local

governments in complying with the ADA.” U.S.

Department of Justice, Statement of Department of Justice

on Enforcement of the Integration Mandate of Title II of

the Americans with Disabilities Act and Olmstead v. L.C.

(2011) (“DOJ Statement”) (attached as Pls.’ Ex. J.) In the

District, it is undisputed that no formal Olmstead Plan has

been adopted,15 but the District maintains that its existing

programs and services for individuals with disabilities

meet the requirements of an Olmstead Integration Plan

and, thus, satisfy the Integration Mandate.

15

The District established the “Office of Disability

Rights” as of March 8, 2007, “to advance the civil

rights of people with disabilities by coordinating the

District’s ADA Compliance Program and by ensuring

and overseeing District-wide compliance with the ADA

and related disability-rights laws.” D.C. Code §

2–1431.03(a)–(b). The Office’s responsibilities

included submitting an “Olmstead Compliance Plan to

the Mayor and City Council” by March 8, 2008, and by

“January 1 of each year thereafter.” D.C. Code §

2–1431.04(8)(A); (Am. Compl. ¶ 20). The D.C. Code

defines an “Olmstead Compliance Plan” as “a

comprehensive working plan, developed in

collaboration with individuals with disabilities and with

District agencies serving individuals with disabilities,

which shall include annual legislative, regulatory, and

budgetary recommendations for the District to serve

qualified individuals with disabilities in accordance

with Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176,

and in the most integrated setting as provided in 28

C.F.R. Part 35, App. A.” § D.C. Code § 2–1431.01(9).

5

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

In addition, the Mayor is supposed to “[e]stablish and implement an annual Olmstead Compliance Plan, as developed under § 2–1431.04(8).” D.C. Code § 2–1431.02(b)(2). Apparently, the District “ceased trying to formally adopt an Olmstead Plan after attempts during the previous administration failed.” (Pls.’ Opp. at 6 (citing Pls. Ex. I (Decl. of Gerald Kasunic), at ¶¶ 15, 18; Pls.’ Ex. H at 213:19–214:8.2).)

II. FACTUAL BACKGROUND
A. The District’s Provision of Long–Term Care to Individuals with Disabilities Medicaid is a joint federal and state program that provides medical services to *8 certain low-income persons, including individuals with disabilities, pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. Participation is voluntary, but all 50 States and the District participate. States submit Medicaid Plans, which must be approved by the federal government. See 42 USCS § 1396a(a); 42 C.F.R. § 430.16 Under the Medicaid Act, there are twenty-eight services which may be provided as part of a State’s Medicaid Plan, seven of which, including nursing facility services, are mandatory.17 42 U.S.C. § 1396a(a)(10)(A)(1). In the District, individuals with physical or mental health disabilities who are covered by Medicaid can receive long-term care services either in: (1) nursing facilities; (2) the community if the services needed are covered by DC’s Medicaid State Plan; or (3) the community through a Medicaid waiver program. (Am Compl. ¶¶ 58, 59.)

16

In the District, the Mayor is responsible for establishing

and carrying out the Medicaid Program, D.C. Code §

1–307.02, and the DHCF is “the single state agency”

that administers the D.C. Medicaid State Plan. See 42

U.S.C. § 1396a(a)(5); D.C. Code § 7–771.07.

According to statute, DHCF’s stated purposes are to:

(1) Maximize the well-being and quality of life for

eligible low-income individuals and other

populations through the provision of leadership

and direction in administering responsive,

effective, and efficient health-care benefits; (2)

Develop a comprehensive, efficient, and

cost-effective health-care system for the District’s

uninsured, under-insured, and low-income

residents; (3) Develop eligibility, service

coverage, and service delivery and reimbursement

policies for the District’s health-care-financing

programs that ensure improved access and

efficient delivery of service; (4) Ensure that District health-care programs maximize available federal financial assistance; and (5) Support the health-care policy, delivery, and access initiatives of the Department of Health and other District agencies through sound health-care financing. D.C. Code § 7–771.03. In addition, DHCF is supposed to “maximize federal assistance,” “[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars,” and “ensure coordinated health-care access and delivery for publicly funded health-care services.” D.C. Code § 7–771.07(3)–(5). DHCF is also supposed to “[d]evelop a long-term-care-finance infrastructure, in cooperation with other District agencies, including the Department of Disability Services, Office on Aging, Long–Term Care Ombudsman, and DOH [Department of Health]. D.C. Code § 7–771.07(9).

17

The other six mandatory services are inpatient and

outpatient hospital care, laboratory and x-ray services,

nurse-midwife services, and certified nurse practitioner

services. 42 U.S.C. § 1396a(a)(10)(A). Within this

federal framework, States retain “substantial discretion

to choose the proper mix of amount, scope, and

duration limitations on coverage.” Alexander v. Choate,

469 U.S. 287, 303, 105 S.Ct. 712, 83 L.Ed.2d 661

(1985).

1. Nursing Facilities
A “nursing facility” (or a “nursing home”) is defined a “24–hour inpatient facility, or distinct part thereof, primarily engaged in providing professional nursing services, health-related services, and other supportive services needed by the patient/resident.”18 D.C. Code § 4–204.61(3).19 The District provides nursing *9 facility-based services “through privately-owned and operated nursing facilities ... and through nursing facilities ... that are owned by the District and operated through leasing arrangements or contracts with nursing facility management companies.” (Am. Compl. ¶ 53.) Whether an individual is eligible for nursing facility care under the District’s Medicaid Plan is determined by Delmarva Foundation for Medical Care, Inc., the agency the District contracts with the to determine the “level of care” designation for Medicaid eligible consumers. (Pls.’ Ex. G
6

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

at 19:19–20:20, 22:6–24:17 & Ex. 2.)

18

In addition to long-term care, nursing facilities may

provide “[s]killed nursing or medical care and related

services” and “[r]ehabilitation needed due to injury,

disability,

or

illness.”

See

http://www.medicaid.gov/Medicaid-CHIP-Program-Inf

ormation/By–Topics/Delivery–Systems/Institutional-Ca

re/Nursing-Facilities-NF.html.

19

Plaintiffs describe nursing facilities as “segregated

institutions housing large numbers of unrelated people,

both elderly and non-elderly,” that are “neither

integrated into nor part of the communities in which

their residents live,” that “resemble hospitals and secure

facilities,” where there is “little, if any, privacy for ...

residents,” where there are “many limitations on

residents’ autonomy,” where “residents may sit idle for

most of the day, with little or nothing to do,” where

there are “few places for residents to gather or meet

with visitors,” and where “residents have limited access

to the community.” (Am. Compl. ¶¶ 62–66.)

There are approximately 2,700 beds in the District’s nursing facilities, with an approximate occupancy rate of over 90 percent. (Am. Compl. ¶ 54; Pls.’ Facts ¶ 17 (citing Pls.’ Ex. G at 150:4–152:2 (Dep. of Ericka Bryson–Walker, Interim Program Manager, Office of Chronic and Long Term Care, DHCF) (nursing facilities have been over 90% occupied since 2000); US Ex. BB at 158:8–159:8 (Bryson–Walker Dep.) (2009 nursing facility population was 2,531; 2005 population of 2,576). Approximately 70 percent of nursing facility residents are D.C. Medicaid recipients (Am. Compl. ¶ 50), plus there are approximately 200 additional D.C. Medicaid recipients currently placed in out-of-state nursing facilities. (Am. Compl. ¶ 55.) Pursuant to federal law, Delmarva collects information about all of the District’s nursing facility residents on a quarterly basis (known as Minimum Data Set (“MDS”) information), including whether any resident wishes to speak to someone about the possibility of returning to the community. (Defs.’ Facts ¶ 17; see 42 C.F.R. 483.20(c) ( “A facility must assess a resident using the quarterly review instrument specified by the State and approved by CMS not less frequently than once every 3 months.”) Presently, according to the most recent data, there are between 526 and 580 nursing facility residents who, in response to the MDS written questionnaire, have expressed a preference for living in the community.20 (Defs.’ Ex. 8, at 35; Pls.’

Facts ¶ 33; Pls.’ Ex. H at 32:18–33:16; Pls.’ Ex. G at 48:4–20;.)

20

These numbers are not limited to nursing facility

residents with disabilities.

2. District’s Medicaid State Plan
The District’s Medicaid State Plan covers certain community-based services, including personal care assistance, skilled nursing and mental health rehabilitation services. (Pls.’ Facts ¶ 29 (citing Pls.’ Ex. H at 23:14–24:5); Am. Compl. ¶ 57.) For example, the District covers home-based personal care aide services for up to 1,040 hours per year, with additional hours available pursuant to physicians’ orders and DHCF prior authorization. (Am. Compl. ¶ 90.) The present record does not reflect how many individuals are receiving services under this aspect of the District’s Medicaid Plan.

3. Medicaid Waiver Program—EPD Waiver
Finally, since 1981, Medicaid has provided funding for home and community-based care for individuals, who would otherwise require institutional care, through the Medicaid Home and Community–Based Services (HCBS) Waiver Program. See 42 U.S.C. § 1396n(c).21

21

Section 1396n(c) states in relevant part:

The Secretary may by waiver provide that a State

plan approved under this subchapter may include

as “medical assistance” under such plan payment

for part or all of the cost of home or

community-based services (other than room and

board) approved by the Secretary which are

provided pursuant to a written plan of care to

individuals with respect to whom there has been a

determination that but for the provision of such

services the individuals would require the level of

care provided in a hospital or a nursing facility or

intermediate care facility for the mentally retarded

the cost of which could be reimbursed under the

State plan....

42 U.S.C. § 1396n(c)(1) (emphasis added). Under

waiver programs, the federal government agrees to

“waive” certain requirements of the Medicaid Act

7

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

without jeopardizing federal financial participation in the State’s plan. 42 U.S.C. § 1396n(c)(3). One of the requirements waived is the “comparability” requirement, which requires State plans to offer services to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396(a)(10)(B). In addition, a State is permitted to “cap” the number of persons receiving waiver services, 42 U.S.C. § 1396n(c)(9)-(10), and it may elect not to offer waiver services on a statewide basis. 42 U.S.C. § 1396n(c)(3).

*10 The [waiver] program permits a State to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization. The State has broad discretion to design its waiver program to address the needs of the waiver’s target population. Waiver services complement and/or supplement the services that are available to participants through the Medicaid State plan and other federal, state and local public programs as well as the supports that families and communities provide. (Defs.’ Ex. 4, at 4.) The federal government reimburses the District 70% of the cost of services and supports for people enrolled in a HCBS Waiver. In order to obtain approval of a waiver program, a State submits an application to the Center for Medicaid and Medicare Services (“CMS”). Among other requirements, a State must demonstrate that the program is “cost-neutral”—that the “cost of the program in its entirety cannot exceed the cost of care absent a waiver program.”22 (Defs.’ Facts ¶ 6 (citing Defs.’ Ex. 2, ¶ 9)); Pls.’ Facts ¶ 12; Pls.’ Ex. M at 53:4—54:14). In addition, the number of beneficiaries who can participate in a waiver program is limited to the number proposed by a State and approved by CMS. (Defs.’ Facts ¶ 6 (citing Defs.’ Ex. 2, ¶ 10)); see 42 C.F.R. § 441.303(f)(6); (Pls.’ Facts ¶ 32.)

22

Defendants contend that cost-neutrality also means that

“nor can the cost of community-based services

necessary to meet an individual’s needs exceed the cost

of services the individual would receive in a nursing

facility.” (Defs.’ Facts ¶ 6 (citing Defs.’ Ex. 2, ¶ 9));

Although the waiver rules permit a State to adopt that

as a requirement for waiver eligibility, “the District did

not adopt an individual cost limitation as a basis for

determining cost neutrality.” (Pls.’ Facts ¶ 13 (citing

Pls.’ Ex. M at 54:15–55:6); Pls.’ Ex. G at

141:14–142:14).)

Waiver programs vary from state to state. In the District, individuals with physical disabilities or those who are over sixty-five years old who would otherwise require the level of care provided in a nursing facility can receive home and community-based care through the District’s “Elderly and Physically Disabled Waiver” (“EPD Waiver”).23 (Defs. Ex. 4, at 1–2; *11 Defs.’ Facts ¶¶ 1, 2; Defs.’ Ex. 2, ¶ 4 (Aff. of Ericka Bryson–Walker); Am. Compl. ¶ 57); see also 42 USCS § 1396a(a)(10)(ii)(VI); 42 USC § 1396n(c); 42 C.F.R. § 441.301. The District first received approval for the EPD Waiver in 1999 (Defs.’ Facts ¶ 1; Defs.’ Ex. 2, ¶ 3), and it has since been renewed twice, most recently on March 29, 2007.24 (Defs.’ Ex. 2, ¶ 3; Defs.’ Ex. 4.)25

23

The District has another HCBS waiver program for

individuals with intellectual and developmental

disabilities (ID/DD Waiver). (Pls.’ Facts ¶ 37.) The

ID/DD Waiver, through an agreement with DHCF, is

overseen by the Department on Disability Services,

Developmental

Disabilities

Administration

(DDS/DDA), which oversees and coordinates care for

2,094 individuals with intellectual and developmental

disabilities. (Defs.’ Ex. 6, ¶ 5 (Aff. of Cathy Anderson,

Deputy Director, DDS/DDA); Defs.’ Facts ¶ 33; Pls.’

Facts ¶ 37.) As of December 31, 2010, only five

individuals served by DDS/DDA resided in nursing

facilities (Defs.’ Ex. 6, ¶ 14), and these individuals are

not part of the proposed class in this case. (Defs.’ Ex. 6,

¶ 15; Pls.’ Facts ¶ 89.). DDS/DDA’s use of the ID/DD

Waiver has been a critical issue in a class action, Evans

v. Gray, Civil Action No. 76–0293 (D.D.C.), which

was commenced in 1976 and in which there was a

finding that the District’s institutionalization of

individuals with intellectual and developmental

disabilities in an institution known as Forest Haven

violated the plaintiffs’ constitutional rights. Evans v.

Washington, 459 F.Supp. 483 (D.D.C.1978). In recent

years, DDS/DDA has successfully used the ID/DD

Waiver to provide home or community-based services

to a substantial number of former residents of Forest

Haven along with other individuals with intellectual

and developmental disabilities. (See Defs.’ Ex. 8, at 3

(as of October 2010, DDS/DDA had enrolled 1212

individuals onto the ID/DD Waiver).)

24

The District’s 2007 application for renewal included

the following assurances:

E. Average Per Capita Expenditures: The State

assures that, for any year that the waiver is in

effect, the average per capita expenditures under

the waiver will not exceed 100 percent of the

8

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

average per capita expenditures that would have been made under the Medicaid State plan for the level(s) of care specified for this waiver had the waiver not been granted. F. Actual Total Expenditures: The State assures that the actual total expenditures for home and community-based waiver and other Medicaid services and its claim for FFP in expenditures for the services provided to individuals under the waiver will not, in any year of the waiver period, exceed 100 percent of the amount that would be incurred in the absence of the waiver by the State’s Medicaid program for these individuals in the institutional setting(s) specified for this waiver. G. Institutionalization Absent Waiver: The State assures that, absent the waiver, individuals served in the waiver would receive the appropriate type of Medicaid-funded institutional care for the level of care specified for this waiver. (Defs.’ Ex. 4, at 10.)

25

CMS initially approves a waiver program for three

years, and then approves renewals for five-year

intervals. (Defs.’ Ex. 4, at 5; see also Defs.’ Ex. 2, ¶ 3.)

The record does not reflect whether the District applied

to renew the EPD Waiver, which would otherwise have

expired on January 3, 2012, or, if so, the status of any

such application.

Under the EPD Waiver, which is administered by DHCF, the District may pay for case management services, homemaker services, personal care aides, respite care, environmental accessibility adaptation services and accessibility, personal emergency response system services, assisted living services, and chore aide services (Defs.’ Facts ¶ 4; Defs’ Ex. 2, ¶ 5; Defs.’ Ex. 4, at 1, 48–88), but not “[h]ousing, meals, room and board or 24–hour skilled care or supervision.” (Defs.’ Facts ¶ 4 (citing Defs.’ Ex. 2, ¶ 8).) In order to demonstrate cost-neutrality, the District projected “average costs for services each year of the waiver to be thousands of dollars less that nursing facility costs of services, with projected savings ranging from $19,970.10 in year one to $32,875.05 in year five.” (Pls.’ Facts ¶ 13 (citing Pls.’ Ex. M at 62:20–63:19 & Ex. 3).)
To qualify for the EPD Waiver, an individual need not already be institutionalized (Defs.’ Facts ¶ 3 (citing Defs.’ Ex. 2, ¶ 4)), and spots are not set aside for individuals already in nursing facilities nor allocated between the elderly and physically disabled. (Pls.’ Facts ¶¶ 1, 5 (citing

Pls.’ Ex. G at 54:12–17).) Enrollment for the EPD Waiver is capped at 3,940 individuals (Defs.’ Facts ¶ 6 (citing Defs.’ Ex. 2, ¶ 10)), and the District has no present plan to seek an increase in that number. (Pls.’ Facts ¶ 18 (citing Pls.’ Ex. G at 66:5–20).) As of July 29, 2011, approximately 3700 of *12 the spots had been filled,26 many by individuals who were already in the community receiving services under the District’s Medicaid State Plan (Pls.’ Facts ¶ 18 (citing Pls.’ Ex. G at 59:8–60:18, 63:4–16)), although the precise distribution between individuals in nursing facilities versus individuals who were already in the community is not part of the record and is not tracked by DHCF. (Pls.’ Facts ¶ 6 (citing Pls.’ Ex. G at 77:10–21); see Pls.’ Ex. G at 45:7–12.) The record also does not reveal how many EPD Waiver slots have been used by the elderly versus individuals with physical disabilities, or to what extent these two groups may overlap.

26

As of April 2010, there were 2,179 EPD Waiver

participants. (Pls.’ Ex. H at Ex. 18.) By April 2011,

3,278 individuals had been enrolled. (Defs.’ Facts ¶ 6

(citing Defs.’ Ex. 2, ¶ 12).)

Anticipating that the waiver slots will soon be used up, the District has established a first-come, first-served waiting list:
As a result of the enrollment cap and in accordance with the federally approved EPD Waiver, DHCF is initiating a waiting list. Individuals placed on the waiting list will be enrolled in the EPD Waiver program on a first-come, first-served basis. Applicants who are currently in Casenet with an approved level of care (LOC) and completed EPD Waiver application will be placed on the waiting list first.
58 D.C. Reg. 33 (Aug. 19, 2011), available at http://www.dcregs. org/Gateway/NoticeHome.aspx?noticeid=1560844 (see also Pls.’ Facts ¶ 18; Pls.’ Ex. G at 67:9–68:6); (Defs.’ Ex. 4, at 24.)
“Information about the EPD Waiver is available on the DHCF and District of Columbia Office on Aging
9

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
websites.” (Defs.’ Facts ¶ 7; Defs.’ Ex. 2, ¶ 11.) In addition, individuals who call DHCF’s Office of Chronic and Long–Term Care or the Office of the Ombudsman are sent information. (Defs.’ Facts ¶ 7.) Once an individual is referred as a candidate for the EPD Waiver, the District provides “a list of Medicaid-enrolled providers who provide case management services,” from which “[t]he candidate is responsible for selecting the provider from whom he or she would like to receive case management services.” (Defs.’ Ex. 2, ¶ 6; Defs.’ Facts ¶ 5.) The case manager is responsible for “creat[ing] an individual service plan (“ISP”) that is subject to DHCF approval and that must specify the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided.” (Defs.’ Facts ¶ 5 (citing Defs.’ Ex. 2, ¶¶ 6–7).)
B. District’s Programs Supporting Transitions to Home and Community–Based Care
1. Money Follows the Person Rebalancing Demonstration Program
As described above, the District provides long-term care for Medicaid-covered individuals with physical or mental health disabilities either in nursing facilities or in the community through the EPD Waiver or its Medicaid State Plan. In addition, the District participates in the federal Money Follows the Person Rebalancing Demonstration Program (“MFP Program”), which provides additional federal funds to State Medicaid programs to help move individuals from “inpatient facilities” to “home and community-based long-term care services under State Medicaid programs.” Deficit Reduction Act (DRA) of 2005, P.L. 109–171, Title VI, § 6071(a), 120 *13 Stat. 102, Feb. 8, 2006, as amended Pub.L. 111–148, Title II, § 2403(a), (b)(1), Mar. 23, 2010 (“MFP Statute”)27; (Defs.’ Facts ¶ 9 (citing Defs.’ Ex. 3, ¶ 4 (Aff. of Leyla Sarigol, MFP Project Director)); Am. Compl. ¶ 52.) An “inpatient facility” is defined as “a hospital, nursing facility, or intermediate care facility for the mentally retarded” and “an institution for mental diseases ... to the extent medical assistance is available under the State Medicaid plan for services provided by such institution,” and qualified home and community-based services includes services provided under a State Medicaid Plan or a waiver program. MFP Statute, § 6071(b)(3), (5). In addition to funding services to aid in transitions (Defs.’ Ex. 8, at 52), the MFP

program covers the first year of community and home-based services at an increased federal match rate. (Defs.’ Facts ¶ 10.)28 It does not pay for housing. (Defs.’ Ex. 3, ¶ 16.) In its application to participate in the MFP Program, a State must identify the “target groups of eligible individuals,”29 “the projected numbers of eligible individuals in each targeted group of eligible individuals to be assisted,” and the “estimated total annual qualified expenditures for each fiscal year of the MFP demonstration project.” Id. § 6071(c).

27

The program’s “objectives” are:

(1) Rebalancing.—Increase the use of home and

community-based, rather than institutional,

long-term care services.

(2) Money follows the person.—Eliminate barriers

or mechanisms, whether in the State law, the State

Medicaid plan, the State budget, or otherwise, that

prevent or restrict the flexible use of Medicaid

funds to enable Medicaid-eligible individuals to

receive support for appropriate and necessary

long-term services in the settings of their choice.

(3) Continuity of service.—Increase the ability of

the State Medicaid program to assure continued

provision of home and community-based

long-term care services to eligible individuals who

choose to transition from an institutional to a

community setting.

(4) Quality assurance and quality

improvement.—Ensure that procedures are in

place (at least comparable to those required under

the qualified HCB program) to provide quality

assurance for eligible individuals receiving

Medicaid home and community-based long-term

care services and to provide for continuous quality

improvement in such services.

MFP Statute, § 6071(a). Initially Congress

authorized 1.75 billion in funding through fiscal year

2011. Mathematica Policy Research, Inc., Money

Follows the Person Demonstration Grants: Summary

of State MFP Program Applications 28 (2007)

(report prepared for CMS) (“2007 MFP Report”). In

2010, Congress increased the total MFP grant

funding to $4 billion and extended the demonstration

to 2016. See Pub.L. 111–148, Title II, § 2403(a),

(b)(1); Mathematica Policy Research, Money

Follows the Person Demonstration: Overview of

State Grantee Progress xi (Dec. 2011), available at

http://www.mathematica-mpr.com/publications/PDF

s/health/mfp_ jan-jun2011_progress.pdf (“2011 MFP

Report”). States now have until the end of federal

fiscal year 2019 to transition people and until the end

of fiscal year 2020 to expend all their grant funds. Id.

10

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

28

States must use the additional money received due to

the increased federal match rate, known as MFP

rebalancing funds, to invest in programs or initiatives

that help to shift the balance of long-term supports and

services toward home and community-based services.

2011 MFP Report at xii.

29

To be eligible for transition under the MFP Program, an

individual must have lived in a long-term care facility

for at least 90 continuous days. (Defs.’ Ex. 8, at 25.)

The District’s MFP Program is aimed at three target groups: individuals with intellectual and developmental disabilities in Intermediate Care Facilities for Individuals with Mental Retardation (ICFs/MR) who are eligible for the ID/DD Waiver (see supra note 23); elderly and/or physically disabled individuals in nursing facilities are eligible for the EPD Waiver; and individuals with serious mental illness residing in *14 either nursing facilities, St. Elizabeth’s Hospital, or other “qualified institutions” (as defined by CMS) who are eligible for services covered by the District’s Medicaid State Plan. (Defs.’ Ex. 3, ¶ 3; Defs. Ex. 8, at 50.) In 2007, when the District first applied for and received approval to participate in the MFP Program30 (Defs.’ Ex. 3, ¶ 4; Defs.’ Facts ¶ 12), the District proposed transitioning a total of 1110 individuals over five years, allocated as follows: 645 individuals with physical disabilities, 100 individuals with mental illness, 215 elderly, and 150 individuals with intellectual and developmental disabilities.31 2007 MFP Report at 27. Based on these projections, the District was awarded a one-year grant in the amount of $2,546,569 and a five-year commitment of $26,377,620. 2007 MFP Report at 26; (see also Defs.’ Reply Ex. 2, at 13:1–4 (Sarigol Dep.) For each participant, the MFP Program covers the first year of qualified community-based services at an enhanced Federal match rate of 85%. (Defs.’ Facts ¶ 10; Defs.’ Ex. 3, ¶ 5.) After the initial year, MFP participants who continue to meet the eligibility requirements are transitioned from the MFP Program to a waiver program or to home and community-based services allowed under the District’s Medicaid State Plan. (Defs’ Facts ¶ 10; Defs.’ Ex 3, ¶ 5.)

30

In 2007, CMS awarded MFP demonstration grants to

30 States and the District of Columbia. 2011 MFP

Report at xi. It awarded grants to 13 more States in

2011. Id.

31

Broken down by year, the District’s MFP Program

proposed the following transitions:

FY FY FY FY FY Total 2007 2008 2009 2010 2011

All transitions

120 175 230 265 320 1,110

Elderly

25 35 45 50 60 215

ID/DD

0

15 30 45 60 150

Physically Disabled

75 105 135 150 180 645

Mental Illness

20 20 20 20 20 100

2007 MFP Report at 27.

The District began using its MFP Demonstration grant in June 2008,32 but its pilot program was initially limited to the transfer of individuals with intellectual and developmental disabilities to the ID/DD Waiver administered by DDS/DDA—individuals who are not in the proposed class. (Defs.’ Facts ¶ 12; Defs.’ Ex. 3, ¶ 4; Defs.’ Ex. 8, at 3; see supra note 23.)33 In August 2010, the District decided to expand the pilot to include forty nursing facility residents who were eligible for the EPD Waiver (at least sixteen of whom would be part of the proposed class in this case).34 (Defs.’ Facts ¶ 20; Defs.’ Ex. 3, ¶ 23; Defs.’ Ex. 8)). To begin implementation *15 of the MFP Program for the EPD Waiver, the District “established an Aging and Disability Resource Center Transition Team.” (Defs.’ Facts ¶ 16; Defs.’ Ex. 3, ¶ 24).) In September 2010, the District submitted a formal amendment to its “Operational Protocol” to cover the expansion to individuals in nursing facilities who are eligible for the EPD Waiver. (Defs.’ Ex. 3, ¶ 11; Defs.’ Ex. 8.) CMS approved the expansion on October 22, 2010, and the District began to implement the change starting at the end of 2010.35 (Defs.’ Ex 3, ¶¶ 11–12; Defs.’ Ex. 8; Defs.’ Facts ¶ 12.)

32

States were required to submit an “operational

protocol” within one year of the grant award. CMS

approved the District’s initial Operational Protocol in

June 2008. (Defs.’ Facts ¶ 12; Defs.’ Ex. 3, ¶ 4; Defs.

Ex. 8, at 3.)

33

By April 2011, approximately seventy-seven

individuals with intellectual and developmental

disabilities had been transitioned under the MFP

Program from Medicaid-funded ICF/MRs to the ID/DD

11

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

Waiver. (Defs.’ Facts ¶ 14; Defs.’ Ex. 3, ¶ 4.) By December 2011, that number had increased to 86. 2011 MFP Report at 27.

34

In March 2010, presumably to start the process of using

the MFP Program to transition individuals from nursing

facilities to the EPD Waiver, University Legal Services,

counsel for plaintiffs in this case, identified for DHCF

thirty nursing facility residents with disabilities who

wanted to transition to the community though the MFP

Program. (Defs.’ Facts ¶ 20; Defs’ Ex 3, ¶ 23.) By

August 2010, sixteen of those thirty still resided in

nursing facilities, and they were included in the

expanded pilot. (Defs.’ Facts ¶ 20; Defs.’ Ex. 3, ¶ 23.)

35

Defendants’ statement that CMS “prevent[ed] the

District from beginning to expand th[e] [MFP] program

to nursing home residents” before December 2010

(Defs.’ Facts ¶ 12) is not supported by the record. The

District submitted its expansion request in September

2010 (Defs.’ Ex. 3, ¶ 11; Defs.’ Ex. 8) and CMS

approved it the following month. (Defs.’ Facts. ¶ 12.)

The MFP Program is designed so that a MFP candidate is referred to a “Transition Coordinator,” who “provides the candidate with a list of [EPD Waiver] providers who provide case management services, from which the candidate selects the EPD Waiver case manager with whom he or she would like to work. (Defs.’ Ex. 3, ¶ 14.) The selected case manager then “work[s] with an ISP team to create an ISP,” subject to DHCF approval, that “specif[ies] the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided.” (Defs.’ Facts ¶ 11 (citing Defs.’ Ex. 3, ¶ 15).) The ISP team usually includes the candidate, the Transition Coordinator, the EPD Waiver Case Manager, the candidate’s legal representative, and nursing facility staff. (Defs.’ Ex. 3, ¶ 15.) Transition Coordinators also “meet with nursing home administrators and staff to inform them about the EPD waiver program,” “assist with housing arrangements,” “help coordinate the participant’s initial move, and assess existing barriers that prevent an otherwise willing and eligible person from successfully transitioning to the community.” (Defs’ Facts ¶¶ 15, 23 (citing Defs.’ Ex. 3, ¶ 16).) The District has two full-time Transition Coordinators focused on transitions from nursing facilities. (Defs’ Facts ¶ 15 (citing Defs.’ Ex. 3, ¶

26).)36 Candidates “are not given a spot in the program and transitioned to the community until all necessary community-based services are identified and approved and [appropriate] housing is procured.” (Defs.’ Ex. 3, ¶ 20; Defs.’ Facts ¶ 22.)

36

As of April 2011, DCOA/ARDC was “in the process of

hiring two [ ] additional full-time MFP Transition

Coordinators” to focus on transitions from nursing

facilities. (Defs.’ Facts ¶ 15.) The record does not

reflect whether those positions have been filled.

As previously noted, neither the EPD Waiver nor the MFP Program provides housing, although for transition to the EPD Waiver, the MFP Program pays for “a maximum $5,000 one-time transition service payment to purchase furniture, cooking utensils, and other essential items for community life [ ] and to cover moving expenses.” (Defs.’ Facts ¶ 10; Defs.’ Ex. 3, ¶ 19; Defs.’ Ex. 8, at 55). Candidates who lack housing may apply to the District of Columbia Housing Authority for a spot in the Housing Choice Voucher program or the Moderate Rehabilitation program; however, both are available to any qualified individual regardless of disability. (Defs.’ Facts. ¶ 23 (citing Defs.’ Ex. 3, ¶ 17).) Other barriers to transition include poor credit histories that “prevent property owners from approving leasing application,” “a lack of family members or friends willing to provide support in the community in preparation for, during, and post- *16 transition,” a need for services not provided by the EPD Waiver package or the District’s Medicaid State Plan (e.g., adult day services, 24–hour care), and a lack of providers with the capacity or willingness to provide the needed services. (Defs.’ Facts ¶¶ 24, 25 (citing Defs.’ Ex. 3, ¶ 21).)
As of April 27, 2011, when the District filed its summary judgment motion, one “nursing home resident eligible for the EPD waiver had transitioned to the community under the MFP program”—on April 13, 2011 (Defs.’ Facts ¶ 26; Defs.’ Ex. 3, ¶ 25; Pls.’ Facts ¶ 67), and it was working with twenty-six additional EPD Waiver candidates.37 (Defs.’ Facts ¶ 21; Defs.’ Ex. 3, ¶ 25.) At that time, the District predicted that “[a]ll pilot participants should be transitioned by September 2011 barring any unanticipated barriers.”38 (Defs.’ Ex. 3, ¶ 25; Defs.’ Facts ¶ 26.) On June 13, 2011, the second nursing facility resident (plaintiff Jackson) transitioned. (Pls.’ Ex. B, ¶ 10 (Decl. of Bonita Jackson); see also 2011 MFP Report at 27 (two individuals with physical disabilities transitioned to EPD
12

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

Waiver by June 2011). By the beginning of September 2011, the District reduced its projection to twelve individuals by September 2011, with another eleven by December 2011. (Pls.’ Facts ¶ 67 (citing Pls.’ Ex. H at 74:10–19).)39 On September 13, 2011, a third nursing facility resident (plaintiff Bacon) transitioned. (Defs.’ Reply Ex. 3, ¶ 3 (Second Decl. of Leyla Sarigol).) Thus, by October 3, 2011, three individuals, including two of the plaintiffs, had transitioned. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3–11; Pls.’ Ex. H at 85:14–17; Defs.’ Reply at 12).) The record does not reflect how many, if any, of the remaining pilot participants have transitioned since that time. As for the remainder of the nursing facility population, the District “maintain[s] a list” of individuals who have requested transition assistance from the MFP Program, but at least as of September 2011, it was doing nothing further to assist them. (Pls.’ Facts ¶ 50 (citing Pls.’ Ex. H at 96:4–97:1, 97:2–99:5).)

37

It is not apparent from the existing record what

happened to the other thirteen pilot participants.

38

By April 2011, Transition Coordinators had met with

all pilot participants to discuss housing and health

services, had submitted Housing Choice Voucher

applications for participants, and had connected

participants with EPD Waiver case managers to

conduct initial EPD Waiver assessments. (Defs.’ Ex. 3,

¶ 25.)

39

The District’s projected use of the MFP Program to

transition individuals to the EPD Waiver has repeatedly

changed, having been dramatically decreased. In June

2007, when the District was approved for an MFP

Program grant, it projected that from 2007 to 2011,

using the MFP Program, it would transition a total of

645 people with physical disabilities and 215 elderly to

the EPD Waiver. (See supra note 31; see also Pls.’ Ex.

H at 14:11–15:6; Pls.’ Facts ¶ 33; Pls.’ Ex. H at

14:11–15:6). In December 2009, having not yet begun

to use its MFP grant for the EPD Waiver population,

the District amended its Operational Protocol to

propose the following “benchmarks” for transitions

from nursing facilities: 30 people in 2010, 40 people in

2011, and 40 people in 2012 (for a total of 110). (Pls.’

Ex. H, at 34:16–35:2; Defs.’ Ex. 3, ¶ 8; Defs.’ Ex. 8, at

22.) In 2010, having not yet implemented the MFP

Program for the EPD Waiver population, the District

proposed a revised benchmark of transitioning 80 EPD

Waiver qualified individuals from nursing facilities in

2010 and 2011. (Pls. Ex. H at 36:12–21.) In January 2011, at which point not one person had moved, the District represented to CMS that it “anticipate[d] transitioning nursing home residents to the community under the MFP [P]rogram” at the rate of 80 per year for each year from 2011 through 2016, for a total of 480. (Defs.’ Ex. 3, ¶¶ 27, 28; Defs.’ Facts ¶ 13.)
2. Department of Mental Health (“DMH”)
Although the Department of Mental Health (“DMH”) does not operate or provide *17 services in nursing facilities (Defs.’ Facts ¶ 29), for any individual with a mental health diagnosis (primary or secondary), the DMH plays a role in their placement or continued residence in a nursing facility through its administration of the federally-required “Pre-admission Screening and Resident Reviews” (PASRR). (Defs.’ Facts ¶¶ 28–29 (citing Defs.’ Ex. 5, ¶ 3 (Decl. of Elspeth C. Ritchie, Chief Clinical Officer, DMH).); see 42 C.F.R. § 483.104 (“As a condition of approval of the State [Medicaid] plan, the State must operate a preadmission screening and annual resident review program that meets the requirements of §§ 483.100 through 438.138.”)
On the front end, the referring clinician must conduct a “Level I Screening to determine whether an individual being referred to a nursing facility has a primary or secondary diagnosis of mental illness.” (Defs.’ Ex. 5, ¶ 4). “If so, DMH conducts a Level II Screening, which requires an independent psychiatric evaluation of the individual and a determination as to whether the level of care provided by a nursing facility is required.” (Defs.’ Facts ¶ 28 (citing Defs.’ Ex. 5, ¶ 4); see also 42 C.F.R. § 483.112 (“For each [nursing facility] applicant with [mental illness] or [mental retardation], the State mental health or mental retardation authority (as appropriate) must determine, in accordance with § 483.130, whether, because of the resident’s physical and mental condition, the individual requires the level of services provided by a [nursing facility].”).
Once admitted, an individual with a mental health diagnosis must be reviewed annually. 42 C.F.R. § 483.114. In addition, the facility is “required to notify DMH and request a PASRR review if a patient with a primary or secondary mental health diagnosis has undergone significant change in his or her physical or
13

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
mental conditions.” (Defs.’ Facts ¶ 30 (citing Defs.’ Ex. 5, ¶ 5).) “In the event that a PASRR review ... identifies a resident as capable and willing to return to the community, the DMH Office of Integrated Care is responsible for coordinating with the [nursing facilities] and the [DHCF] to assist those [nursing facility] residents with mental illness in the discharge process.” (Defs.’ Ex. 5, ¶ 5.)
Dr. Elspeth Ritchie, the Chief Clinical Officer at DMH, “is responsible for managing the [PASRR] determinations for current and potential nursing facility [ ] residents.” (Defs. Ex. 5, ¶ 2; Defs.’ Facts ¶ 32.) On October 18, 2010, and again on January 12, 2011, DMH sent letters to the nineteen nursing facilities within the District “attaching the DMH PASRR Policy and reminding [them] of their continuing obligation to notify DMH of any significant changes in the physical or mental condition of a [nursing facility] resident.” (Defs.’ Ex. 5, ¶ 6; Defs.’ Facts ¶ 31.) And, as of the fall of 2011, Dr. Ritchie had visited seven nursing facilities “to discuss continued implementation of the PASRR program and coordination with DMH on discharge planning.” (Defs.’ Ex. 5, ¶ 6; Defs.’ Facts ¶ 32;)
C. Costs of Institutional and Home and Community–Based Long–Term Care The present record includes the following information about the costs of institutional and community-based long-term care:

went to home and community-based services via the EPD Waiver. (Pls.’ Facts ¶ 16 (citing Pls.’ Ex. M at 38:14–39:9).)

40

For reasons that are not apparent from the record, the

numbers that defendants use in their statement of facts

are close, but not identical, to the numbers in the

affidavit cited in support thereof. (Compare Defs.’

Facts ¶ 8 with Defs.’ Ex. 1, ¶ 3.)

2. Average Costs of Long–Term Care Services
The average annual cost of long-term care services in a nursing facility typically exceeds the annual average cost of long-term care services provided under the EPD Waiver. For example, in 2008, the average annual cost of long-term care services in a nursing facility was $58,957, whereas the average annual cost of services provided via the EPD Waiver was $21,849. (Pls.’ Facts ¶ 14 (citing Pls.’ Ex. G at 135:2–138:12).) In 2007, the average annual cost of services in a nursing facility was $62,633, as compared to an annual average cost of $46,186.23 under the EPD Waiver. (Pls.’ Facts. ¶ 15 (citing Pls.’ Ex. L at 226:17–227:5); Pls.’ Ex. G at 134:3–11; see also Pls. Ex. G at 140:13–17 (average cost per enrollee in 2010 was $29, 938).)

1. Overall Spending on Long–Term Care Services

In fiscal year 2010, the District spent a combined total of

$494,434,042

on

all

long-term

care

services—$274,141,306 (55.4%) on institutional care

(including both nursing facilities and intermediate care

facilities) and $220,292,737 (44.6%) on home and *18

community-based services under waiver programs

(including both the EPD Waiver and ID/DD Waiver).40

(Defs.’ Ex. 1, ¶ 3 (Aff. of Darrin Shaffer, Agency Fiscal

Officer, DHCF).) Of that amount, approximately $278

million went to either long-term care services in nursing

facilities, which would include, but is not limited to,

individuals with physical disabilities, or long-term care

services via the EPD Waiver, which also includes but is

not limited to individuals with physical disabilities. (Pls.’

Facts ¶ 16.) Out of that $278 million, approximately 26%

3. Mental Health Care Costs
The annual average cost of community-based mental health services is less than treatment in a psychiatric hospital. (Compare Am. Compl. ¶ 81 (alleging that average annual cost of community mental health treatment is approximately $25,000) and Pls.’ Facts ¶ 14 (citing Pls.’ Ex. L at 226:17–227:5) (agreeing that $4,200 was a reasonable estimate of the average annual cost of mental health rehabilitation services cost) with Am. Compl. ¶ 80 (alleging that average annual cost in a psychiatric hospital is over $230,000).
III. PROCEDURAL BACKGROUND On December 23, 2010, five individuals with disabilities41 who were receiving Medicaid-covered long-term care
14

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

services in nursing facilities, initiated this litigation, claiming that the District has “caused [them] to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports” (Am. Compl. ¶ 111; see also id. ¶¶ 74–79), which could be provided by the District’s Medicaid State Plan, the EPD Waiver, and Medicaid- and locally-funded services for adults with mental illness. (Pls.’ Facts ¶ 89.) Specifically, each named plaintiff is alleged to be an individual with a disability,42 who *19 resides in a nursing facility, who “could live in the community if appropriate supports and services were made available,” who “has been determined by health care professionals to be appropriate for community placement,” and who would “prefer[ ] to live in the community rather than staying in a nursing facility.” (Am. Compl. ¶¶ 29–32 (plaintiff Edward Day43); id. ¶¶ 33–36 (plaintiff Larry McDonald44); id. ¶¶ 37–40 (plaintiff Vietress Bacon45); id. ¶¶ 41–43 (plaintiff Bonita Jackson46); id. ¶¶ 44–47 (plaintiff Roy Foreman47)). Pursuant to Federal Rule of Civil Procedure 23, plaintiffs also seek to certify a class of between 500 and 2900 similarly-situated individuals (Am. Compl. ¶ 97) that would be comprised of “District of Columbia residents with disabilities that substantially limit their ability to perform major life activities,” who are “currently housed in nursing facilities that are located in the District of Columbia or are otherwise funded by [d]efendants,” whose personal care and health care services could be provided in the community, rather than in a nursing facility, and who would prefer to reside in the community.48 (Am. Compl. *20 ¶¶ 24–28, 29–47; 67–73.)49

41

All five plaintiffs have physical disabilities; some also

have mental health diagnoses. See infra notes 43–47.

42

(See Am. Compl. ¶ 106 (“Each Named Plaintiff and

class member is an ‘individual with a disability’ within

the meaning of the ADA in that they have disabilities

that substantially limit one or more major life activities,

such as self-care and social interaction. They also have

a history of such impairments and are regarded by

Defendants as having such impairments.”); id. ¶ 107

(“Each Named Plaintiff and class member is a

‘[q]ualified individual with a disability’ within the

meaning of the ADA, 42 U.S.C. § 12131(2), because he

or she is qualified to participate in Defendants’ more

integrated, community-based programs and

services.”).)

43

Plaintiff Day “is a 75–year–old man who is diagnosed

with diabetes, peripheral vascular disease,

hypertension, a seizure disorder, and depression.” (Am.

Compl. ¶ 29.) “He has had both of his legs amputated

because of his diabetes,” but he “is able to ambulate

independently in his wheelchair.” (Id.) He “needs

assistance with bathing, dressing, transferring, and

toileting.” (Id.) Day “has resided at Unique Residential

Care Center (“Unique Residential”) (formerly JB

Johnson Nursing Center) in the District of Columbia

since December 4, 2006.” (Id. ¶ 30.) He was placed

there after he retired from his job of 37 years with the

District of Columbia government. (Id.) In 2009, the

staff at Unique Residential identified Day as “high

functioning” and “able to live in the community.” (Id. ¶

31.)

44

Plaintiff McDonald “is a 57–year–old man who is

diagnosed with a seizure disorder, hypertension, and

dementia.” (Am. Compl. ¶ 33.) He “requires

supervision for two activities of daily living: bathing

and dressing.” (Id.) “McDonald has resided at Unique

Residential since September 2006, when he was

admitted after suffering a stroke.” (Id. ¶ 34.)

45

Plaintiff Bacon “is a 47–year–old woman” who has

“bi-polar disorder, depression, arthritis, traumatic brain

injury, and orthopedic limitations due to a childhood

car accident followed by multiple surgeries.” (Am.

Compl. ¶ 37.) She was “admitted to Washington

Nursing Facility (“WNF”) on September 22, 2008,

when she could no longer live with her elderly mother.”

(Id.) She “uses a motorized wheelchair to ambulate

independently,” but she “needs assistance with bathing,

dressing, transferring, and toileting.” (Id. ¶ 38.)

Plaintiff Bacon is one of the three nursing facility

residents to have transitioned to the community through

the MFP Program as of October 3, 2011. (Defs.’ Reply

Ex. 3, ¶ 3.)

46

Plaintiff Jackson “is a 52–year–old woman [who] is

diagnosed with anemia, seizures, and Hepatitis C.”

(Am. Compl. ¶ 41.) “Due to her equilibrium problems,

she uses a walker for mobility.” (Id.) She “was

admitted to WNF [Washington Nursing Facility] on

January 4, 2007, after a stroke and subsequent surgery.”

(Id.) She requires “assistance to help with personal

grooming, meal preparation, and light cleaning.” (Id. ¶

42.) Plaintiff Jackson is one of the three nursing facility

15

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

residents to have transitioned to the community through the MFP Program as of October 3, 2011. (Pls.’ Ex. B, ¶ 10.)

47

Plaintiff Foreman “is a 65–year–old man” who is

“diagnosed with decubitus ulcers, diabetes, and

depression.” (Am. Compl. ¶ 44.) “He uses a wheelchair

to ambulate independently.” (Id.) He “was admitted to

Washington Center for Aging Services in May 2006

when he was discharged from Providence Hospital

following treatment for mobility issues.” (Id.) He

requires assistance with “bathing, dressing, transferring,

and toileting.” (Id. ¶ 45.)

48

According to the complaint, the proposed class would

consist of:

All those persons who (1) have a disability; (2)

receive services in nursing facilities located in the

District of Columbia or funded by Defendants at

any time during the pendency of this litigation; (3)

could live in the community with appropriate

supports and services from Defendants; and (4)

prefer to live in the community rather than in

nursing facilities.

(Am. Compl. ¶ 96.)

49

Plaintiffs further allege that the MDS data (Defs.’ Facts

¶ 17) “vastly undercounts the preferences of nursing

home residents because of their lack of awareness of

community-based options.” (Am. Compl. ¶ 70.)

Plaintiffs claim that the District’s “failure to provide [them or the proposed class] ... services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act ... [and] Section 504 of the Rehabilitation Act.”50 In addition, plaintiffs allege that defendants’ “methods of administration arbitrarily limit access to integrated, community support services by persons with disabilities in nursing facilities.” (Am. Compl. ¶ 84.) Specifically, according to plaintiffs, defendants have “collectively fail[ed] to:

50

The complaint also alleges that plaintiffs are

“individuals with disabilities for purposes of the ADA

and the Rehabilitation Act.” (Am. Compl. ¶ 24 (citing

42 U.S.C. § 12102; 29 U.S.C. § 705(20)).)

(i) Assure that individuals with mental or physical disabilities receive services in the most integrated setting appropriate to their needs;
(ii) Develop or implement a comprehensive and effective working plan that identifies individuals with mental or physical disabilities who are needlessly in nursing facilities and helps them move to more integrated settings;
(iii) Provide adequate and appropriate community services;
(iv) Provide information about community-based alternatives or comprehensive discharge planning to enable Plaintiffs to live in more integrated settings;
(v) Assure that people with mental or physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them of the availability of integrated, community-based options for mental health and other health care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community;
(vi) Properly identify persons with mental or physical disabilities who should not be admitted into nursing facilities;
(vii) Assure that individuals with mental or physical disabilities residing in nursing facilities are periodically reviewed and assessed for community-based treatment;
(viii) Assure that individuals with mental or physical disabilities are discharged from nursing facilities when appropriate;
(ix) Provide information, transitional assistance, and referrals to facilitate Plaintiffs’ access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and
(x) Take adequate steps to preserve individuals’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
(Am. Compl. ¶ 82.) In addition to class certification,
16

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
plaintiffs ask the Court to declare that defendants’ “failure to provide Named Plaintiffs and class members with services in the most integrated setting appropriate *21 to their needs violates Title II of the Americans with Disabilities Act ... [and] Section 504 of the Rehabilitation Act”; issue an “injunction requiring [d]efendants to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs”; and award “reasonable attorneys’ fees, litigation expenses, and costs.” (Am. Compl. at 27.) Defendants have moved to dismiss or, in the alternative, for summary judgment.

ANALYSIS
Defendants’ motion to dismiss or for summary judgment includes the following arguments: (1) that the amended complaint should be dismissed for failure to state a claim; (2) that defendants are entitled to summary judgment because they have an Olmstead Integration Plan; or (3) that the individual defendants should be dismissed because the claims against them are duplicative of the claims against the District. Each of these will be addressed herein.51

51

Defendants’ motion also argues that there is no private

right of action against the Mayor to challenge the

implementation of the Olmstead Compliance Plan

(Defs.’ Mem. at 28–29.) Plaintiffs’ response makes

clear that they are not making any such claim. (Pls.’

Opp. at 36 n. 17.) In its reply, defendants raises an

additional argument, challenging the standing of the

individual plaintiffs. (Defs.’ Reply at 7). According to

the District, each of the plaintiffs lack standing because

(1) Jackson and Bacon have already moved from

nursing facilities to apartments; (2) Day wants to obtain

“prostheses for [his] legs ... before [he] return[s] to the

community”; (3) McDonald is already working with the

MFP Program to obtain a housing voucher and locate

housing in the community; and (4) Foreman has not

been able to locate a private, community-based home

health aide provider and has not sought to enroll in the

EPD Waiver program. (Id. at 7–8.) However, as

plaintiffs have not had the opportunity to respond to

this argument, the Court will not consider it at this time.

Jones v. Mukasey, 565 F.Supp.2d 68 (D.D.C.2008.)

(“As the D.C. Circuit has consistently held, the Court

should not address arguments raised for the first time in

a party’s reply.”) See, e.g., Am. Wildlands v.

Kempthorne, 530 F.3d 991, 1001 (D.C.Cir.2008) (“We

need not consider this argument because plaintiffs ...

raised it for the first time in their reply brief.”); McBride v. Merrell Dow & Pharm., 800 F.2d 1208, 1211 (D.C.Cir.1986) (“Considering an argument advanced for the first time in a reply brief ... is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.”). That said, whether the case is moot as to any of these plaintiffs or whether they cannot properly function as class representatives under Rule 23 will undoubtably have to be resolved at some future time.
I. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A. Legal Standard [2] [3] “In ruling on a motion to dismiss for failure to state a claim, the court must ‘accept as true all of the factual allegations contained in the complaint.’ ” Phillips v. Fulwood, 616 F.3d 577, 581 (D.C.Cir.2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). A court should dismiss a complaint for failure to state a claim if the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Rudder v. Williams, 666 F.3d 790, 793–94 (D.C.Cir.2012). To state a facially plausible claim, a complaint must set forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.
*22 B. Causal Connection Between Plaintiffs’ Placement in Nursing Facilities and the District’s Actions [4] Citing the test for Article III standing,52 defendants contend that plaintiffs have not stated a claim for relief because they have not alleged “a causal connection between the injury and the conduct complained of”—i.e., that “the injury [is] fairly traceable to the challenged action of the defendant.” (Defs.’ Mem. at 10–11 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))). Specifically, defendants argue that the District cannot be held responsible for plaintiffs’ residence in a nursing facility
17

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

“if the District did not cause this placement or otherwise fund the individual’s stay in a nursing facility.” (Id. at 11.) According to defendants, the complaint’s allegations fail to meet this requirement because there is no allegation that the District (1) places individuals in the nursing facility where they reside; (2) reviews or approves an individual’s placement in a nursing facility; or (3) funds plaintiffs’ care in nursing facilities. Defendants further argue that “licensing nursing facilities within the District does not create the necessary relationship between the District and a third-party non-licensee, much less create an obligation to provide community-based care to these individuals.” (Id.)

52

In order for a plaintiff to have Article III standing, there

must be: “(1) an injury in fact, (2) a causal relationship

between the injury and the challenged conduct, and (3)

a likelihood that the injury will be redressed by a

favorable decision.” United Food & Com. Workers

Union Local 751 v. Brown Group, Inc., 517 U.S. 544,

551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).

However, although defendants cite to this legal

standard, their motion seeks dismissal pursuant to Rule

12(b)(6) for failure to state a claim, not dismissal

pursuant to 12(b)(1) for lack of jurisdiction. “The

distinctions between [Federal Rules of Civil Procedure]

12(b)(1) and 12(b)(6) are important.... Rule 12(b)(1)

presents a threshold challenge to the court’s

jurisdiction, whereas 12(b)(6) presents a ruling on the

merits with res judicata effect.” Al–Owhali v. Ashcroft,

279 F.Supp.2d 13, 20 (D.D.C.2003) (quoting Haase v.

Sessions, 835 F.2d 902, 906 (D.C.Cir.1987)).

Under either Title II of the ADA or Section 504 of the Rehabilitation Act, the District is required to “administer” services, programs, and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (ADA implementing regulations); 28 C.F.R. § 41.51(d) (Rehabilitation Act implementing regulations). In addition, the District is prohibited from utilizing “criteria or methods of administration” that have either the “effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or that “have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the [District’s] program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii)(ADA); see also 45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act); 28 C.F.R. § 41.51(b)(3)(i)-(ii) (same). Accordingly, to state a claim under either the ADA or the Rehabilitation Act, plaintiffs do not need to allege that the District “caused” plaintiffs’

placement in a nursing facility. Rather, to allege the necessary “causal connection” between the District’s actions and plaintiffs’ injury, it is sufficient to allege, as plaintiffs do, that the District provides, administers and/or funds the existing service system through which plaintiffs receive long-term care services and/or that the District, in so doing, has utilized criteria or methods of administration that have “caused [plaintiffs] ... to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather *23 than facilitate their transition to the community with appropriate services and supports.” (Am. Compl. ¶ 111; see id. ¶¶ 84, 99; see, e.g., Conn. Office of Prot. & Advocacy v. Connecticut, 706 F.Supp.2d 266, 276–77, 284 (D.Conn.2010) (State’s conduct in administration of State Medicaid Plan made it a proper defendant even though plaintiffs resided in privately operated nursing facilities); Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289, 319 (E.D.N.Y.2009) (plaintiffs stated integration claim against State officials even though “State officials do not require anyone to be in an adult home,” because the “[d]efendants plan, fund and administer the State’s existing service system such that more than 12,000 adults are receiving the State’s services in adult homes”); Joseph S. v. Hogan, 561 F.Supp.2d 280, 293 (E.D.N.Y.2008) (rejecting State’s claim, on motion to dismiss, that plaintiffs had to show that the State was specifically responsible for their placement in nursing facilities); see also DOJ Statement at 3 (“a public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly operates facilities and or/programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs”).
C. Determination of Plaintiff’s Eligibility for Community–Based Care [5] The District next argues that the amended complaint should be dismissed because there is no allegation that the District has determined that community-based services are appropriate for plaintiffs, but only alleges that each named plaintiff “has been determined by health care professionals to be appropriate for community placement.” (Defs.’ Mem. at 11 (citing Am. Compl. ¶¶ 31, 35, 39, 42, 46)) According to defendants, “[i]f Plaintiffs expect the District to fund their
18

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
community-based services, Plaintiffs are subject to the District’s determination of whether or not such services are appropriate to meet their needs. A bald assertion that some unidentified healthcare professional has determined that community-based services are appropriate to meet the medical and physical needs of the named plaintiffs is not enough.” (Defs.’ Mem. at 11–12 (internal citations omitted).)
The Court disagrees. Olmstead established that where a State’s own professionals have determined that community-based treatment is appropriate, a State may be required to provide community-based services. Olmstead, 527 U.S. at 587, 119 S.Ct. 2176. However, although the Court in Olmstead noted that a State “generally may rely on the reasonable assessments of its own professionals,” id. at 602 119 S.Ct. 2176, it did not hold that such a determination was required to state a claim. Since Olmstead, lower courts have universally rejected the absolutist interpretation proposed by defendants. See Frederick L. v. Dep’t of Pub. Welfare, 157 F.Supp.2d 509, 539–40 (E.D.Pa.2001) (denying defendants’ motion to dismiss Olmstead claims and rejecting the argument that Olmstead “require[s] a formal recommendation for community placement.”); Disability Advocates, Inc. v. Paterson, 653 F.Supp.2d 184, 258–59 (E.D.N.Y.2009) (requiring a determination by treating professionals, who are contracted by the State, “would eviscerate the integration mandate” and “condemn the placements of [individuals with disabilities in adult homes] to the virtually unreviewable discretion” of the State and its contractors); *24 Joseph S., 561 F.Supp.2d at 291 (“I reject defendants’ argument that Olmstead requires that the State’s mental health professionals be the ones to determine that an individual’s needs may be met in a more integrated setting.”); Long v. Benson, No. 08–0026, 2008 WL 4571904, at *2 (N.D.Fla.2008) (refusing to limit class to individuals whom state professionals deemed could be treated in the community, because a State “cannot deny the [integration] right simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”); see also DOJ Statement at 4 (“the ADA and its regulations do not require an individual to have had a state treating professional make such a determination.... This evidence may come from their own treatment providers, from community-based organizations that provide services to people with disabilities outside of institutional settings, or from any other relevant source. Limiting the evidence on which Olmstead plaintiffs may rely would enable public entities to circumvent their Olmstead requirements by

failing to require professionals to make recommendations regarding the ability of individuals to be served in more integrated settings.”).
Indeed, even the one case cited by defendants, Boyd v. Steckel, 753 F.Supp.2d 1163 (M.D.Ala.2010)), does not support its position. In Boyd, the court denied the motion for a preliminary injunction based in part on the fact that state medical professionals had determined that community-based treatment was not appropriate and that, “[w]ithout more at this stage, this Court cannot find that Boyd has established a substantial likelihood of proving his qualification for the community-based services requested—i.e. that they are appropriate to meet his needs.” Id. at 1174. However, the court recognized that the plaintiff would have the opportunity to “demonstrate, at summary judgment or trial, that [the state medical professional’s] assessment is unreasonable or that he is still qualified for community-based services even under [that] assessment.” Id. Thus, Boyd recognized that whether community-based treatment is appropriate for a particular individual is a factual question that does not depend solely on a determination by a state medical professional.
Finally, plaintiffs’ claim here is based in part on the District’s alleged failure to systematically assess whether a nursing facility resident would qualify for community-based treatment. (Am. Compl. ¶¶ 92, 99.) Under such circumstances, to allow the District to rely on the absence of an assessment by its own professionals as grounds for dismissal would “eviscerate” the Integration Mandate. See, e.g., Colbert v. Blagojevich, No. 07–4737, 2008 WL 4442597, at *2–3 (N.D.Ill. Sept. 29, 2008) (plaintiffs appropriately sought injunction directing defendants “to create a set of objective criteria against which all proposed class members will be regularly assessed for their eligibility for community placement”). Accordingly, the Court concludes that plaintiffs’ allegation that “health-care professionals” have determined that community-based treatment is appropriate is sufficient to survive a motion to dismiss.
D. Comparative Costs [6] According to defendants, “the District is not required to fund community-based services for Medicaid recipients for whom the cost of such services would exceed the cost of care in a nursing facility.” (Defs.’ Mem. at 12 (citing 42 U.S.C. § 1396n(c)(4)(A).) Thus, defendants argue that the complaint must be dismissed because plaintiffs fail to
19

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

allege that the cost of community-based services on an individual basis for each plaintiff would be less *25 than the cost of care in a nursing facility. (Id. at 12.) Plaintiffs counter that there is no need to make any such allegation to state a claim under the ADA. (Pls.’ Mem. at 33.) In their view, the issue of cost is relevant only to a fundamental alteration defense and, even then, the proper question is “whether the sought-after community services, in the aggregate, would cost the same or less than the services in the nursing facility. (Pls.’ Opp. at 34.)
Defendants cite only 42 U.S.C. § 1396n(c)(4)(A) as legal authority for their novel proposition that there can be no liability under the ADA if the cost of funding community based services for an individual would exceed the cost of care for that individual in a nursing facility. That statutory section, however, is part of the Medicaid Act, not the ADA, and it provides only that a State may include such a individual cost-neutrality requirement as part of its waiver eligibility standards. See 42 U.S.C. § 1396n(c)(4)(A) ( “A waiver granted under this subsection may ... limit the individual’s provided benefits under such waiver to individuals with respect to whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not exceed the amount of such medical assistance provided for such individual if the waiver did not apply.”)53 This provision has nothing to do with establishing the elements of an ADA integration claim. Indeed, defendants cite no persuasive authority for their suggestion that to state a claim under Title II of the ADA, an individual must allege that the cost of the sought-after accommodation be will less than maintaining the status quo. In many instances, there will be additional costs associated with a sought-after accommodation. Nor does the Court in Olmstead suggest that any such allegation is required to state an Olmstead-type integration claim; rather, the point the Court makes in Olmstead is that the allegation that community-based care for a particular individual will be less costly is not sufficient to defeat a fundamental alteration defense—not that such an allegation is required. Accordingly, it is not a basis for dismissal that plaintiffs did not allege that the cost of community care for a given individual would be less than the cost of institutional care.

53

As previously noted (see supra note 22), the District

did not include individual cost-neutrality as a waiver

eligibility requirement.

II. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard Summary judgment is appropriate if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “In considering a motion for summary judgment, the ‘evidence of the non-movant is to be believed, and all justifiable inferences drawn in his favor.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 (1986). “If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available.” Carney *26 v. American University, 151 F.3d 1090 (D.C.Cir.1998) (internal quotations omitted). In addition, “[s]ummary judgment is not generally appropriate if both parties have marshaled inconsistent facts to support their arguments.” U.S. ex rel. Purcell v. MWI Corp., 824 F.Supp.2d 12, 2011 WL 5517352 (D.D.C.2011). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Anderson, 477 U.S. at 250–51, 106 S.Ct. 2505.
B. Compliance with Olmstead’s Integration Mandate [7] Defendants seek summary judgment on the ground it is undisputed that the District has an Olmstead Integration Plan (Defs.’ Mem. at 13), i.e., a “comprehensive, effectively working plan for placing qualified persons with ... disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 606–07, 119 S.Ct. 2176 (emphasis added). Defendants claim that the District has “comprehensive and effective working plans that ensure it does not place individuals in nursing facilities unless it is necessary and appropriate to do so, as well as programs that fund community-based services and specifically support the transition of disabled individuals from nursing facilities to community-based settings.” (Defs.’ Mem. at 14.) Defendants’ argument relies primarily on: (1) the
20

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)

existence of programs that “facilitate community-based services for disabled residents,” including the EPD Waiver and the MFP Program; (2) the use of the PASRR screening and review process by the DMH to ensure that individuals with mental health diagnoses are not inappropriately placed or kept in nursing facilities; and (3) the existence and successful use of the ID/DD Waiver and MFP Program for individuals with intellectual and developmental disabilities. (Defs.’ Mem. at 16–27.) To the extent there remain individuals in nursing facilities who are not being served in the “most integrated setting appropriate” to their needs, defendants contend that there are external barriers (e.g., lack of housing), for which they are not responsible. (Defs.’ Mem. at 24.)
In response, plaintiffs contend that the District’s existing programs do not qualify as an Olmstead Integration Plan. (Pls.’ Opp. at 4–24). According to plaintiffs, the “mere existence” of “[t]hese programs fall far short of what the law requires,” especially given that the District has no written “Olmstead Plan” and that “material disputes of fact abound as to what [d]efendants existing programs accomplish with respect to deinstitutionalizing people with disabilities from nursing facilities.” (Pls.’ Opp. at 5, 7.) Plaintiffs base their argument primarily on the standards for an “Olmstead Plan”54 set forth in the DOJ Statement. As described therein, an Olmstead Plan should

54

An “Olmstead Plan,” as defined in the DOJ Statement,

“is a public entity’s plan for implementing its

obligation to provide individuals with disabilities

opportunities to live, work, and be served in integrated

settings.” DOJ Statement at 6.

do more than provide vague assurances of future integrated options or describe the entity’s general history of increased funding for community services and decreased institutional populations. Instead, it must reflect an analysis of the extent to which the public entity is providing services in the most integrated setting and must contain concrete and reliable commitments to expand integrated opportunities. The plan must have specific and reasonable timeframes and measurable goals for which the public *27 entity may be held accountable, and there must be funding to support the plan, which may come from reallocating existing service dollars. The plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental

disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs. To be effective, the plan must have demonstrated success in actually moving individuals to integrated settings in accordance with the plan. A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case. Any plan should be evaluated in light of the length of time that has passed since the Supreme Court’s decision in Olmstead, including a fact-specific inquiry into what the public entity could have accomplished in the past and what it could accomplish in the future. DOJ Statement at 6–7. Relying largely on this framework, plaintiffs argue that the District “lacks every one of the hallmarks of a comprehensive and effective integration plan” because it has

(1) no process for identifying people who want to be reintegrated into the community from a nursing facility or (2) for assessing the needs of those individuals; (3) no policies, procedures, or practice to assist nursing facility residents who want to be deinstitutionalized in making the transition from nursing facilities to the community with necessary services and supports; (4) no idea of how many individuals who are institutionalized in nursing facilities have transitioned to the community; or (5) whether the nursing facility census has decreased over time.

(Pls.’ Opp. at 36.)55

55

Plaintiffs also contend that even if an Olmstead

Integration Plan did exist, defendants would still have

to show that plaintiffs’ requested modifications would

require a fundamental alteration of that plan. (Pls.’

Opp. at 3 (“The accommodation is reasonable unless

the state can show that it already has in place a

‘comprehensive, effectively working plan for placing

qualified persons ... in less restrictive settings,’ and

accommodating individuals further would

“fundamentally alter the nature of the service, program,

or activity.” (emphasis added).) Defendants, on the

21

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
other hand, take the view that establishing the existence of an Olmstead Integration Plan is all that is required to establish compliance with the Integration Mandate. (Defs.’ Mem. at 14 (“a program available to all Medicaid recipients, based on spots available in the program, the recipients’ medical needs, and the recipients’ ability to secure needed services in the community, satisfies the principle set forth by the Olmstead plurality”) The United States shares plaintiffs’ view. (See U.S. Statement of Interest at 12–13 & n. 8; DOJ Statement at 7 (“The Department of Justice has interpreted the ADA and its implementing regulations to generally require an Olmstead plan as a prerequisite to raising a fundamental alteration defense, particularly in cases involving individuals currently in institutions or on waitlists for services in the community. In order to raise a fundamental alteration defense, a public entity must first show that it has developed a comprehensive, effectively working Olmstead plan that meets the standards described above. The public entity must also prove that it is implementing the plan in order to avail itself of the fundamental alteration defense.”).) But there are cases on either side. Compare, e.g., Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 157 (3d Cir.2005) (existence of an Olmstead Integration Plan is a “necessary element” of a successful fundamental alteration defense) with Pitts v. Greenstein, No. 10–635, 2011 WL 1897552, at *3 (M.D.La. May 18, 2011) (State “can satisfy its obligations” by demonstrating that it has an Olmstead Integration Plan). However, as summary judgment is not warranted for other reasons, it is unnecessary to resolve the issue of whether the existence of an Olmstead Integration Plan is sufficient to defeat liability.
Neither the absence of a formal “Olmstead Plan” nor the failure to have a plan *28 that fully complies with the requirements set forth in the DOJ Statement precludes summary judgment,56 but there are other fatal flaws in the District’s argument. Although existing law does not establish what precisely constitutes an legally sufficient Olmstead Integration Plan, there is wide-spread agreement that one essential component of an “effectively working” plan is a measurable commitment to deinstitutionalization. See, e.g., DOJ Statement at 7 (plan must have “demonstrated success in actually moving individuals to integrated settings in accordance with the plan”); Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 157, 160 (3d Cir.2005) (plan must “demonstrate[ ] a reasonably specific and measurable commitment to deinstitutionalization for which [the State] may be held accountable”); Penn. Prot. & Advocacy, Inc.

v. Penn. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir.2005) (“plan must demonstrate a commitment to action in a manner for which it can be held accountable by the courts” (internal quotations omitted)); The Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 620 (9th Cir.2005) (State must be “genuinely and effectively in the process of deinstitutionalizing disabled persons”); Williams v. Quinn, 748 F.Supp.2d 892, 897–98 (N.D.Ill.2010) (consent decree approved that required individualized analysis of needs and specific timeframe for transition); Sanchez v. Johnson, 416 F.3d 1051, 1066 (9th Cir.2005) (State had legally sufficient plan where it had “a successful record of personalized evaluations leading to a reasonable rate of deinstitutionalization”).

56

Nor would the existence of a written Olmstead Plan

necessarily prove compliance with Olmstead. See, e.g.,

Benjamin v. Dep’t of Pub. Welfare of Pa., 768

F.Supp.2d 747, 755–56 (M.D.Pa.2011) (“The existence

of the Plan does not, however, automatically defeat

liability.”)

With respect to the District’s claim to have a plan that demonstrates a measurable commitment to deinstitutionalization, the undisputed numbers clearly undercut any such contention. First, the District’s nursing home population from 1995 to 2009 decreased by only 45 individuals. (See U.S. Ex. BB, 158:8–159:8.) Second, the District’s EPD Waiver has been available since 1999 (Defs.’ Facts ¶ 1; Defs.’ Ex. 2, ¶ 3), but since the District does not keep track of how many, if any, individuals have moved from nursing facilities directly to the EPD Waiver (Pls.’ Facts ¶ 6; Pls.’ Ex. G at 45:7–12, 77:10–21), it is impossible to determine whether the EPD Waiver demonstrates a measurable commitment to deinstitutionalization. Third, the District’s MFP Program was first authorized in 2007 (Defs.’ Ex. 3, ¶ 4; Defs.’ Facts ¶ 12), yet as of October 3, 2011, only three individuals have actually moved from a nursing facility to the community using the MFP Program. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3–11; Pls.’ Ex. H at 85:14–17; Defs.’ Reply at 12.) Nationwide, the District’s MFP Program (even including transitions to the ID/DD Waiver) ranks at or near the bottom in terms of achieving its transition targets. 2011 MFP Report at 30 (District achieved 9.3% of its transition target as of June 2011). In addition, the MFP Program relies on having EPD Waiver slots available, but the District is close to or has reached EPD Waiver enrollment cap of 3,940 (Defs.’ Facts ¶ 6; Defs.’ Ex. 2, ¶ 10) and has no present plans to increase it. (Pls.’
22

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
Facts ¶ 18; Pls.’ Ex. G at 66:5–20.) Finally, the problem of this lack of measurable movement to home and community-based services is magnified by the fact that there are at least 526 individuals in nursing facilities who have expressed a *29 desire to live in the community. (Defs.’ Ex. 8, at 35; Pls.’ Facts ¶ 33; Pls.’ Ex. H at 32:18–33:16.) Even assuming that community placement would only be appropriate for a subset of that group, and that there might be other barriers for which the District is not responsible, the District has not demonstrated “actual success” or “meaningful progress” when only three individuals have moved and it cannot establish a baseline from which to measure that number.
The District attempts to ignore the above undisputed facts by emphasizing the undisputed facts that establish the existence of the EPD Waiver, the MFP Program and other components of the District’s service system. Yet, there are other facts, both disputed and undisputed, that, when viewed in the light most favorable to the plaintiffs and drawing all reasonable inferences therefrom in plaintiffs’ favor, contradict or undermine defendants’ attempt to equate the existence of a specific programs designed to further deinstitutionalization with a legally adequate Olmstead Integration Plan.
1. EPD Waiver
Defendants point to the EPD Waiver as a critical component of its Olmstead Integration Plan, but ignore the evidence that creates genuine issues as to its availability for and utilization by individuals in nursing facilities. First, as previously noted, defendants do not even know how many nursing facility residents with physical disabilities have transitioned to the community using the EPD Waiver (Pls.’ Ex. G at 45:7–12), and the only undisputed evidence establishes that by October 3, 2011, only three nursing facility residents (including two of the plaintiffs) have transitioned to the EPD Waiver, all through the MFP Program. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3–11; Pls.’ Ex. H at 85:14–17; Defs.’ Reply at 12). In addition, DHCF does not have “any policies or procedures about transitioning people from nursing facilities to the community” using the EPD Waiver. (Pls.’ Ex G at 45:13–46:3.) Indeed, there is evidence that with the exception of the MFP Program, discussed further infra, there is no one in the District government who “ha[s] a hand in assisting individuals who seek to get out of nursing facilities” (Pls.’ Ex. G at 42:16–21) or an

awareness of how many individuals might want to do so. (Pls.’ Ex. G at 46:4–47:12 (“I’m not familiar with the MDS data”); Pls.’ Facts ¶ 45 (citing Pls.’ Ex. G at 97:1–16 (“DHCF has neither requested nor reviewed any MDS lists”).)
In addition, use of the EPD Waiver is not limited to individuals with disabilities in nursing facilities. It is also available to the elderly in nursing facilities, who may or may not qualify as disabled, and to individuals (either elderly or physically disabled) who are not already institutionalized. No slots are reserved for nursing facility residents, and there is an enrollment cap that the District may have already reached. (As of October 2011, only 240 slots remained open.) Even assuming technical availability for individuals such as the proposed class of plaintiffs, there is evidence that individuals seeking to enroll in the EPD Waiver confront a number of systemic barriers. For example, there is evidence that nursing facility residents may lack information about the existence of the EPD Waiver. (See Pls.’ Facts ¶ 20 (citing Pls.’ Ex. H at 108:8–18 (“[d]efendants’ internet postings include minimal and outdated information that, in any case, most nursing facility residents cannot access”)); Pls.’ Facts ¶ 21 (citing Pls.’ Ex. G at 43:1–10, 44:12–17, 121:2–16; Pls.’ Ex. H at 48:16–50:3) (defendants have failed “to conduct outreach targeted to those people who express an interest in transitioning out of nursing facilities, provide information *30 to all people in nursing facilities about their community-based alternatives, and follow up with transitional assistance to help people in nursing facilities apply for and obtain their identification documents and housing”); Pls.’ Facts ¶ 22 (citing Pls.’ Ex. G at 43:1–10, 44:1–17, 121:2–11 (“in the past four to five years, defendants have not visited nursing facilities to give presentations or distribute printed materials about the EPD Waiver Program”); Pls.’ Facts ¶ 22 (citing Pls.’ Ex. G at 41:19–42:6, 121:12–16) (the District “provide[s] information about the EPD Waiver Program only [in response to] specific requests from nursing facility staff or residents”).) There is also evidence of inadequate ISP’s (Pls.’ Facts ¶ 9 (ISP “failed to identify [plaintiff’s] needs, or the services to be provided, or the agencies designated to provide her services”) (citing Pls.’ Ex. H. 141:2–21, 142:1–20), and other ongoing problems with the process of application, approval and enrollment. (See, e.g., Pls.’ Ex. B, ¶ 11–15 (plaintiff Jackson discharged before Medicaid EPD Waiver services authorized); Pls.’ Ex. H at 142:17–144:6 (same); Pls.’ Ex. C, ¶¶ 14–18 (Decl. of Vietress Bacon) (discharge date repeatedly postponed due to case manager’s failure to complete EPD Waiver application); Pls.’ Ex. D, ¶¶ 15–17 (Decl. of Roy
23

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
Foreman) (lack of authorized community services prevented move to community); Pls.’ Ex. H at 180:10–15, 181:16–20, 182:17–183:19, 184:5–7, 184:12–185:12 (same); Pls.’ Facts ¶¶ 2–3 (same).) The evidence cited above creates genuine issues of material fact as to the efficacy of the EPD Waiver in terms of transitioning individuals with physical disabilities out of nursing facilities, and this, in turn, undermines defendants’ reliance on the EPD Waiver as evidence that it has an operational Olmstead Integration Plan.

2. MFP Program
Defendants also point to the MFP Program as a component of its Olmstead Integration Plan. (Defs.’ Mem. at 17–21.) However, there are again genuine issues as to its availability and efficacy. Although the MFP Program is the only help the District provides to assist individuals seeking to get out of nursing facilities (see Pls.’ Ex. G at 42:16–21),57 as previously noted, its actual success in transitioning such individuals has been minimal—as of October 3, 2011, only three nursing facility residents had transitioned to the community through the MFP Program (Pls.’ Facts ¶ 24 (citing Pls.’ Ex. H at 68:3–11); Pls.’ Ex. H at 85:14–17; Defs.’ Reply at 12).) In addition, the evidence suggests potential systemic problems such as not knowing how many nursing facility residents would prefer to live in the community (Pls.’ Facts ¶ 44 (“MFP Project Team requested and received only two [MDS] partial lists of nursing facility residents in selected facilities”) (citing Pls.’ Ex. H at 92:3–12)), and “delayed payments for transition costs such as security deposits, housing applications, and furnishings.” (Pls.’ Facts ¶ 28 (citing Pls.’ Ex. H at 48:16–50:3)).58 Accordingly, as there is substantial evidence to support plaintiffs’ position that the *31 “MFP Program does not operate as an effective system to transition people who wish to leave nursing facilities and receive services and supports in the community” (Pls.’ Facts ¶ 26), it cannot count as significant evidence that defendants have an adequate Olmstead Integration Plan.

57

In apparently contradictory testimony, Leyla Sarigol,

the MFP Program Director, has testified that the MFP

Program is not the “primary way” for transitioning

people out of nursing facilities to the EPD Waiver.

(Pls.’ Ex. H at 18:5–14, 85:9–86:13; Pls.’ Facts ¶ 29). If

that is the case, then the existence of the MFP Program

does little to support defendants’ claim.

58

The apparently more successful use of the MFP

Program by DDS/DDA to transition individuals with

intellectual or developmental disabilities from ICF/MR

institutions (Defs.’ Facts. ¶ 14; see supra note 33) may

not even be relevant to an analysis under Olmstead.

3. PASRR/DMH
Defendants also point to DMH’s administration of PASRR as a component of its Olmstead Integration Plan. Specifically, they claim that PASRR plays an important role in ensuring that placement in a nursing facility is appropriate.59 Again, this claim does not withstand scrutiny.

59

In another apparent contradiction, after first relying on

PASRR as evidence that the District has an Olmstead

Integration Plan, defendants’ reply discounts its

relevance on the ground that only one of the named

plaintiffs has a mental health diagnoses, and she is no

longer in a nursing facility. (Defs.’ Reply at 24–25.)

In the first place, PASRR affects only individuals with primary or secondary mental health diagnoses. (Defs. Ex. 5, ¶ 4.) Although a substantial percentage of the nursing facility population may fall into this category (Pls.’ Facts ¶ 75 (defendants estimate “10–20% of nursing facility residents have a diagnosis of schizophrenia”), the majority do not. In addition, PASRR review is designed to assure that individuals with mental illness who do not need the level of care provided by a nursing facility are not placed there in the first instance and that those who no longer need that level of care are not kept there. (Defs.’ Ex. 5, ¶ 3.) It is not designed to identify individuals who qualify for the nursing facility level of care, but who could nonetheless receive those services in the community through the EPD Waiver or other community-based service options. (See, e.g., Defs.’ Mem. at 22 n. 7 (“DMH has conducted a [PASRR] review of [plaintiff] Bacon and determined that her physical disabilities required the level of care provided in a nursing facility. [Plaintiff] Bacon therefore is working with DHCF, as part of the MFP pilot program, to transition from the nursing facility in which she currently resides to
24

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
the community.”) In addition to the limited scope of a PASRR review, the facts do not support defendants’ attempt to rely on it as part of its Olmstead Integration Plan. (See, e.g., Pls.’ Facts ¶ 83 (“[d]efendants cannot identify a single individual with a mental illness that they have transitioned from a nursing facility”) (citing Pls.’ Ex. L at 159:2–162:13); Pls.’ Facts ¶ 72 (“Prior to Spring 2011, DMH did not have any staff person assigned to work with individuals with serious mental illness in nursing facilities.”) (citing Pls.’ Ex. L at 42:17–44:6)); id. (“Currently, DMH has only two individuals whose part-time job is to “work with” individuals in nursing facilities, meaning to oversee the PASRR assessment process; only one of these individuals is assigned to assist with transitions from nursing facilities on a part-time basis”) (citing Pls.’ Ex. L at 42:17–46:6); Pls.’ Facts ¶ 75 (“DMH has no mechanism, policy, or protocol regarding how to assist individuals in nursing facilities who seek to move back to the community with the services and supports they need”) (citing Pls.’ Ex. L at 195:20–196:15; Pls.’ Facts ¶ 74 (DMH’s Department of Integrated Care “has never transitioned an individual from a nursing home to the community”) (citing Pls.’ Ex. L at 50:7–14, 52:2–53:4); Pls.’ Fact ¶ 79 (“[d]efendants only recently started tracking what happens to individuals who received PASRR II screenings”) (citing Pls.’ Ex. L at 167:15–168:15; Pls.’ Facts ¶ 79 (“DMH does not know specifically how many individuals with serious mental illness are in nursing facilities”) (citing Pls. Ex. L at 170:18–171:19); Pls.’ Facts ¶ 84 (“DMH *32 does not collaborate with the MFP Program or utilize information collected by DHCF”) (citing Pls.’ Ex. L at 182:7–183; Pls.’ Ex L at 173:16–177:5).) Accordingly, the District’s administration of PASRR reviews does little, if anything, to establish an Olmstead Integration Plan.
4. Money Expended by the District
As further evidence of an Olmstead Integration Plan, defendants rely on the overall amount of money spent on community services and their efforts to increase available funding. It is undisputed that the District spent $494,434,042 in long-term care services in institutions (including both nursing facilities and intermediate care facilities) and under waiver programs (including both the EPD Waiver and ID/DD Waiver) in fiscal year 2010, and of that amount, $274,141,306 (55.4%) covered institutional services and $220,292,737 (44.6%) covered home and community-based services waiver programs.

(Defs.’ Ex. 1, ¶ 3.) However, as plaintiffs point out, if only the cost of long-term care in nursing facilities is compared to the costs of community-based services provided under the EPD Waiver, the District only spends about 26% of its total expenditures on community-based services. (Pls.’ Facts ¶ 23; Pls’ Ex. M at 38:4–39:9) More importantly, although the District’s balance of expenditures is undoubtably relevant, see Sanchez v. Johnson, 416 F.3d at 1066 (9th Cir.2005); Disability Advocates, Inc., 653 F.Supp.2d at 269, a mere comparison between the amount spent on community-based services and long-term care in nursing facilities tells us very little in terms of whether the District can satisfy Olmstead.

5. Barriers to Integration
The most significant barrier to integration identified by defendants is the need for housing. Neither the EPD Waiver nor the MFP Program pays for housing and, although individuals may apply to the District’s Housing Authority to participate in the Housing Choice Voucher program, that program is not limited to persons with disabilities. (Defs.’ Facts ¶ 23; Defs. Ex. 3, ¶ 17.) The Court agrees that it is not the District’s responsibility to provide housing, but the record does not establish that this factor has resulted in the continued residence in nursing facilities of the proposed plaintiff class or that the housing issue cannot be overcome. Other potential barriers to integration such as the need for care not covered by the EPD Waiver, credit history problems, lack of providers and lack of family or friends willing to assist in transition (Defs.’ Mem. at 24–25), are similarly plausible, but their concrete impact (or whether the District could alleviate that impact) is not established by the present record.
In sum, the undisputed facts do not establish that the District has an Olmstead Integration Plan or that it has moved individuals to the “most integrated setting” as required by Olmstead. Therefore, defendants are not entitled to summary judgment.60

60

Denying defendants’ motion for summary judgment

does not preclude a later determination that an

individual plaintiff’s request for home or

community-based services or any proposed systemic

changes cannot be “reasonably accommodated, taking

into account the resources available to the state and the

needs of others with [similar] disabilities.” Olmstead,

527 U.S. at 607, 119 S.Ct. 2176. Id. Nor does it answer

25

Day v. District of Columbia, 894 F.Supp.2d 1 (2012)
the question whether Olmstead requires that the District’s system should be analyzed as a whole to include all types of disabilities, including the intellectually and developmentally disabled, or limited to individuals with physical and/or mental health disabilities.
III. MOTION TO DISMISS INDIVIDUAL DEFENDANTS [8] The individual defendants, the Mayor of the District, the Director of the *33 DHCF, and the Director of the DMH, move for dismissal of all claims against them on the ground that as they are sued only in their official capacities, the claims against them are redundant of the claims against the District. Defendants are correct, and plaintiffs do not disagree, that plaintiffs’ claims against the individual defendants are duplicative of the claims against the District. See, e.g., Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (a suit against a municipal official in his or her official capacity “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent”); see Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Johnson v. District of Columbia, 572 F.Supp.2d 94, 112 (D.D.C.2008) (“a lawsuit against the Mayor acting in his official capacity is the same as a suit against the District”) Brown v. Corr. Corp. of Am., 603 F.Supp.2d 73, 79 (D.D.C.2009); Holmes–Ramsey v. District of Columbia, 747 F.Supp.2d 32, 42 (D.D.C.2010) (“claims against [District] officials in their official capacities are effectively claims against the District”).
Plaintiffs argue, however, that the need for public accountability and the effective implementation of any injunctive relief counsels against dismissal of the individual defendants. Defendant, conceding that dismissal is “not required,” Owens v. District of Columbia, 631 F.Supp.2d 48 (D.D.C.2009), argue that dismissal is nonetheless appropriate because “[p]laintiffs fail to explain why the harm they have allegedly suffered cannot be remedied in an action against the District alone.” (Defs.’ Reply at 24.) On balance, the Court is persuaded that for reasons of judicial economy and lack of prejudice there is no reason to refrain from dismissing the redundant claims against the District’s officials. Accordingly, plaintiffs’ claims against individual

defendants Gray, Turnbrage, and Baron are dismissed, leaving the District of Columbia as the sole remaining defendant in the case.
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss or, in the alternative, for summary judgment is GRANTED in part and DENIED in part. An separate Order accompanies this Memorandum Opinion.
ORDER
For the reasons stated in an accompanying Memorandum Opinion, it is hereby
ORDERED that defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 19] is GRANTED IN PART AND DENIED IN PART; it is further
ORDERED that the motion is GRANTED insofar as the individual defendants, Vincent Gray, the Mayor of the District of Columbia, Wayne Turnage, Director of the District of Columbia’s Department of Health Care Finance, and Stephen Baron, Director of the District of Columbia’s Department of Mental Health, who are sued only in their official capacities, are DISMISSED and DENIED in all other respects; it is further
ORDERED that plaintiffs’ Motion for Leave to File a Motion for Class Certification by January 5, 2012 [Dkt. No. 37] is DENIED as moot; it is further
ORDERED that a telephone conference call, to be originated by the parties, will be held on Tuesday, February 28, 2012 at 2:00 p.m.; and it is further
ORDERED that a status conference is set for March 13, 2012, at 9:30 a.m. in Courtroom 23A, at which all matters pertaining *34 to future scheduling will be addressed.
	  
26

Day v. District of Columbia, 894 F.Supp.2d 1 (2012) 27

 
 Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD DAY Unique Residential Care Center 901 First St., NW, Washington, DC 20001;
LARRY MCDONALD Unique Residential Care Center 901 First St., NW, Washington, DC 20001;
VIETRESS BACON Washington Nursing Facility 2425 25th St., SE, Washington, DC 20020; and
BONITA JACKSON Washington Nursing Facility 2425 25th St., SE, Washington, DC 20020;
ROY FOREMAN Washington Center for Aging Services 2601 18th St., NE Washington, DC 20018
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
DISTRICT OF COLUMBIA, a municipal Corporation;
VINCENT C. GRAY, in his official capacity as Mayor of the District of Columbia, John A. Wilson Building, 1350 Pennsylvania Ave., NW Washington, DC 20004;

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FIRST AMENDED COMPLAINT
) ) Civil Action No.1: 10-cv-02250 (ESH)
) ) ) ) ) ) ) )

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 2 of 29

WAYNE M. TURNAGE,

)

in his official capacity

)

as Director of the District of Columbia

)

Department of Health Care Finance,

)

899 North Capitol St., NE,

)

Washington, DC 20002; and

)

)

STEPHEN BARON, in his official capacity

)

as Director of the District of Columbia

)

Department of Mental Health,

)

64 New York Ave., NE

)

Washington, DC 20002,

)

)

Defendants.

)

------------------------------)

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Federal law requires that the District of Columbia provide services to people with disabilities in the most integrated setting appropriate to their needs. But the District has failed to comply with this obligation, leaving between 500 and nearly 3,000 people with disabilities unnecessarily institutionalized in nursing facilities, segregated and isolated from their families and friends. These individuals desperately want to return to their communities and could do so if the District were to comply with federal law. This class action therefore seeks injunctive and declaratory relief to require the District of Columbia and its officials to comply with their longstanding, federally-mandated obligations.

PRELIMINARY STATEMENT 1. Plaintiffs are the named individuals and a class of similarly-situated individuals with disabilities who desperately desire the freedom to live in their community but instead remain institutionalized in nursing facilities against their will. Plaintiffs could be served in
2

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 3 of 29
community-integrated settings, but remain - and likely will continue to remain - in nursing facilities for years because Defendants provide few opportunities, if any, for Plaintiffs to obtain services in more integrated settings.
2. Defendants, the District of Columbia, its Mayor, and the officials who plan, oversee, fund, and regulate services, programs, and activities for persons with disabilities, have unnecessarily and inappropriately institutionalized Plaintiffs in nursing facilities despite federal law requiring that Defendants honor the class members' desires and abilities to live in more integrated settings in the community with appropriate services and supports.
3. Defendants are in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.c. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.c. § 794 et seq., because they unlawfully discriminate against Plaintiffs by institutionalizing them in nursing facilities and isolating them from their communities.
4. Title II of the ADA prohibits discrimination against individuals with disabilities. In enacting the ADA, Congress found that "individuals with disabilities continually encounter various forms of discrimination, including ... segregation." 42 U.S.C. § 12101(a)(5). Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The United States Department of Justice promulgated regulations under Title II requiring that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.l30(d) (emphasis added).
3

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 4 of 29
5. Section 504 of the Rehabilitation Act provides that no person with a disability "shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Regulations implementing Section 504 require that a public entity administer programs, services, and activities in "the most integrated setting appropriate" to the needs of individuals with disabilities. 28 C.F.R. § 41.51 (d).
6. The United States Supreme Court in Olmstead v. L. C. ex reZ. Zimring, 527 U.S. 581 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. The Court concluded that state and local governments may be held liable for failing to serve people with disabilities in the most integrated settings appropriate to their needs.
7. Despite the passage of nearly twelve years since Olmstead, Defendants continue to fail to facilitate access to community-based long-term care services and supports for Plaintiffs in the most integrated setting appropriate to their needs.
8. Because of Defendants' failure to fund or otherwise make available sufficient community-based alternatives, individuals with disabilities often have nowhere to go but nursing facilities.
9. Defendants' programs and activities for persons with disabilities systematically deny or ignore Plaintiffs' choices and preferences for integrated community care, leaving them to languish in institutional nursing facilities even though appropriate community-based services and settings exist that could be made available at the same or even lower cost.
4

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 5 of 29
10. Defendants are able to appropriately discharge Plaintiffs with community-based support services.
11. Plaintiffs are thus needlessly segregated from their families, friends, and community life.
12. Plaintiffs' plight is shared by many. According to federal and state data, when offered a choice between community and nursing facility-based care, more than 500 District of Columbia nursing facility residents would choose to receive long-term care services in more . integrated settings in the community instead of being forced to remain in a nursing facility.
13. Upon information and belief, many more nursing facility residents would choose to live in more integrated settings in the community if they were informed about communitybased options.
14. Plaintiffs bring this action to compel Defendants to comply with their federal legal obligations.
JURISDICTION 15. This Court has jurisdiction over the subj ect matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs' claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983. At all times relevant to this action, Defendants have acted under color of state law. 16. Plaintiffs' claims for violations of Title II of the ADA, 42 U.S.C. §§ 12131 and 12132 et seq., are asserted against the District of Columbia and the individual Defendants in their official capacities.
5

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 6 of 29
17. Plaintiffs' claims for violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., are asserted against the District of Columbia and the individual Defendants in their official capacities.
VENUE
18. Venue lies in the District of Columbia pursuant to 28 U.S.C. § 1391(b)(1) because the Defendants reside in the District, and under 28 U.S.c. § 1391 (b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in the District.
DEFENDANTS
19. Defendant District of Columbia is responsible for operating its programs, services, and activities in conformity with the ADA and Section 504 of the Rehabilitation Act. In light of the violations by its governmental agencies individually and collectively, the District of Columbia is sued under the Rehabilitation Act and the ADA.
20. Defendant Vincent C. Gray is the Mayor of the District of Columbia, and is sued in his official capacity. Mayor Gray is the chief executive officer of the District of Columbia responsible for directing, supervising, and controlling the executive departments of the District of Columbia government. D.C. Code § 1-204.22. He is responsible for establishing and carrying out the Medicaid Program in the District of Columbia. D.C. Code § 1-307.02. Mayor Gray is ultimately responsible for ensuring that the District of Columbia operates its long-term care and Medicaid systems for people with disabilities in conformity with the ADA, the Rehabilitation Act, and all other federal laws. District of Columbia law expressly requires the Mayor to establish and implement an "Olmstead Plan" by March 8, 2008, and issue annual Olmstead
6

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 7 of 29
Compliance Plans beginning January 1,2009. D.C. Code § 2-1431.04(8)(A). He has failed to do so.
21. Defendant Wayne M. Turnage is the Director of the District of Columbia's Department of Health Care Finance Administration ("DHCF"), and is sued in his official capacity. DHCF is a public agency and a recipient of federal financial assistance. DHCF is responsible for administering the District of Columbia's long-term care system for people with
disabilities. See D.C. Code § 7-771.07(9). DHCF must "maximize federal assistance,"
"[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars," and "ensure coordinated health-care access and delivery for publicly funded health-care services." D.C. Code § 7-771.07(3)-(5). DHCF also is "the single state agency" that
administers the District of Columbia's Medicaid program. See 42 U.S.C. § 1396a(a)(5); D.C. Code § 7-771.07(1). Mr. Turnage, in his role as the Director ofDHCF, is responsible for the
oversight, supervision, and control of DHCF operations, and is ultimately responsible for ensuring that the agency's services for people with disabilities are provided in conformance with federal law.
22. Defendant Stephen Baron is the Director of the District of Columbia's Department of Mental Health ("DMH"), and is sued in his official capacity. DMH is a public agency and a recipient of federal financial assistance. DMH is the primary agency responsible for planning, developing, coordinating, and monitoring "comprehensive and integrated mental health systems of care for adults ... in the District." D.C. Code § 7-1131.04(1). As Director of DMH, Mr. Baron coordinates and manages funding for all publicly funded health services and mental health supports for District of Columbia residents. D.C. Code §§ 7-1131.04(2), (3).
7

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 8 of 29
DMH is responsible for screening, evaluating, and monitoring individuals with mental illness who reside in, or are at risk of entry into, nursing facilities in the District. Among the services within DMH's jurisdiction are community support, service planning, counseling and medication management, assertive community treatment, discharge planning, transition assistance, and day treatment programs; some or all of these are the very types of services that could enable Plaintiffs to leave nursing facilities and live in more integrated settings.
23. At all times relevant to this Complaint, Defendants have acted and continue to act under color of District of Columbia law and knew or should have known of the policies, practices, acts, and conditions alleged herein.
PLAINTIFFS All Plaintiffs 24. Plaintiffs are all District of Columbia residents with disabilities that substantially limit their ability to perform major life activities. They are also regarded by Defendants as having such impairments, and therefore are individuals with disabilities for purposes of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20). 25. Plaintiffs are all currently housed in nursing facilities that are located in the District of Columbia or are otherwise funded by Defendants. 26. All Plaintiffs could be served in the community through services Defendants already have available. 27. Although residing in the community with support services is the most integrated setting where the Plaintiffs' needs can be met, Defendants have offered them personal care and health care services only in a nursing facility setting.
8

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 9 of 29
28. All Plaintiffs want to leave the nursing facilities in which they reside, and they could do so with appropriate services and supports.
The Named Plaintiffs Plaintiff Edward Day 29. Plaintiff Edward Day is a 75-year-old man who is diagnosed with diabetes, peripheral vascular disease, hypertension, a seizure disorder, and depression. He has had both of his legs amputated because of his diabetes. Although his nursing facility fitted him for a prosthetic device for one of his legs, it did not give him access to use it. Mr. Day is able to ambulate independently in his wheelchair, but he needs assistance with bathing, dressing, transferring, and toileting. 30. Mr. Day has resided at Unique Residential Care Center ("Unique Residential") (formerly JB Johnson Nursing Center) in the District of Columbia since December 4, 2006. He was placed there after he retired from his job of 37 years with the District of Columbia government. 31. Mr. Day could live in the community if appropriate supports and services were made available to him. In 2009, the staff at Unique Residential identified Mr. Day as "high functioning" and "able to live in the community." He has been determined by health care professionals to be appropriate for community placement. 32. Mr. Day prefers to live in the community rather than stay in the nursing facility.
9

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 10 of 29
Plaintiff Larry McDonald 33. Plaintiff Larry McDonald is a 57-year-old man who is diagnosed with a seizure disorder, hypertension, and dementia. Mr. McDonald is a veteran of the Army. His nursing facility records indicate that he requires supervision for two activities of daily living: bathing and dressing. 34. Mr. McDonald has resided at Unique Residential since September 2006, when he was admitted after suffering a stroke. 35. Mr. McDonald could live independently with appropriate supports and services in the community. He has been determined by health care professionals to be appropriate for community placement. 36. Mr. McDonald prefers to live independently in the community, with either a family member or on his own with appropriate health care, personal care, and residential support services.
Plaintiff Vietress Bacon 37. PlaintiffVietress Bacon is a 47-year-old woman who was admitted to Washington Nursing Facility ("WNF") on September 22, 200S, when she could no longer live with her elderly mother. Ms. Bacon has bi-polar disorder, depression, arthritis, traumatic brain injury, and orthopedic limitations due to a childhood car accident followed by multiple surgeries. 3S. Ms. Bacon uses a motorized wheelchair to ambulate independently. She needs assistance with bathing, dressing, transferring, and toileting.
10

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 11 of 29
39. Ms. Bacon could live in the community with this assistance and mental health services. She has been determined by health care professionals to be appropriate for community placement.
40. Ms. Bacon has a strong preference to live in the community rather than a nursing facility.
Plaintiff Bonita Jackson 41. Plaintiff Bonita Jackson is a 52-year-old woman who was admitted to WNF on January 4,2007, after a stroke and subsequent surgery. Ms. Jackson is diagnosed with anemia, seizures, and Hepatitis C. Due to her equilibrium problems, she uses a walker for mobility. 42. Ms. Jackson could live in the community with assistance to help with personal grooming, meal preparation, and light cleaning. She has been determined by health care professionals to be appropriate for community placement. 43. Ms. Jackson prefers to live in the community instead of in a nursing facility.
Plaintiff Roy Foreman 44. Plaintiff Roy Foreman is a 65-year-old man admitted to Washington Center for Aging Services in May 2006 when he was discharged from Providence Hospital following treatment for mobility issues. Mr. Foreman is diagnosed with decubitus ulcers, diabetes, and depression. He uses a wheelchair to ambulate independently. 45. The staff at the nursing facility assists him with bathing, dressing, transferring, and toileting.
11

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 12 of 29
46. Mr. Foreman could live in the community with appropriate services and supports. He has been determined by health care professionals to be appropriate for community placement.
47. Mr. Foreman has a strong preference to live independently in the community.
STATEMENT OF FACTS 48. Individuals with certain diagnosable mental, behavioral, or emotional disorders are eligible to receive services, including long-term care services, from the District of Columbia. 49. Defendants fund these services largely through the Medicaid program, ajoint federal and state program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. 50. Approximately 70 percent of D.C. nursing facility residents are D.C. Medicaid recipients. 51. The District receives 70 cents in federal reimbursement for every dollar it spends on Medicaid services. 52. The District also participates in the federal Money Follows the Person ("MFP") program designed to provide federal funds to state Medicaid programs to transition people into community-based settings. The District would receive 85 cents in federal reimbursement for each dollar it spends to transition people from nursing facilities under that program. 53. Defendants provide nursing facility-based services through privately-owned and operated nursing facilities - many of which are for-profit businesses - and through nursing facilities (such as Unique Residential and a skilled nursing facility unit at United Medical Center) tpat are owned by the District and operated through leasing arrangements or contracts with nursing facility management companies.
12

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 13 of 29
54. There are approximately 2,700 beds in skilled nursing facilities in the District of Columbia, with an occupancy rate of approximately 98 percent.
55. Approximately 200 additional D.C. residents currently are placed in out-of-state nursing facilities; D.C. Medicaid continues to fund their care.
56. The District also provides in-home and community-based services to people with disabilities under the Medicaid program.
57. People with disabilities are entitled to personal care aide services in their homes under the District of Columbia's Medicaid State Plan and the Medicaid Waiver Programs for those who are Elderly or have Physical Disabilities ("EPD Waiver"). The District's EPD Waiver program has a fixed number of slots (4,000) for beneficiaries.
58. The District's Medicaid Waiver Programs provide home healthcare services, home- and community-based care for functionally disabled individuals, personal care services, and other medical and remedial care recognized under the Medicaid State Plan such as skilled nursing services.
59. Under these options, people with disabilities who would otherwise qualify for nursing facility services are able to live independently with community-based supports and services, including healthcare, personal care services, personal emergency response services, and other long-term care services otherwise found in nursing facilities.
60. Defendants offer a range of other Medicaid- and locally-funded services to adults with mental illness living in the community in D.C., such as service planning, community support, assertive community treatment, diagnosis, assessment, medication management, day treatment, and crisis intervention services.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 14 of 29
61. Defendants license, certify, or contract with private home health agencies and community support agencies to provide these long-term care services in the community.
Nursing Facilities Are Institutions 62. Nursing facilities are, for the most part, neither integrated into nor part of the communities in which their residents live. They are not real homes or even home-like. They are segregated institutions housing large numbers of unrelated people, both elderly and non-elderly, in congregate settings. Many nursing facilities provide only beds, meals, and sparse rehabilitative services. 63. Many nursing facilities resemble hospitals and secure facilities. For example, Unique Residential is surrounded by a security fence with an electronic lock and requires most residents to have escorts and special permission to leave the facility even for brief periods of time. Some D.C. nursing facilities have curfews, and, at times, security guards posted to monitor people entering and leaving the facilities. Inside, many facilities have nurses' stations and are filled with the hard sterile surfaces normally found in medical facilities. 64. Often there is little, if any, privacy for nursing facility residents. Often residents must share rooms and bathrooms with other residents they did not know previously and with whom they did not choose to live; their beds are separated by only a curtain. In some facilities, such as Unique Residential, entire wards of individuals share bathrooms and shower facilities. Often residents have minimal space to call their own or to use to safeguard their personal belongings, and many residents report that their personal property has been stolen or damaged. Nursing facility residents often lack their own telephones and are frequently restricted in the use
14

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 15 of 29
of the nursing facility telephones, which lack privacy. Medications are often dispensed publicly at specific times, with residents waiting in line.
65. Nursing facilities often place many limitations on residents' autonomy. In many facilities, residents are subjected to a highly regimented lifestyle characterized by restrictive rules and policies. Daily activities are often conducted in a central location in the facility, in the company of large numbers of other individuals with disabilities. As a result, residents may sit idle for most of the day, with little or nothing to do. Many nursing facilities offer few places for residents to gather or meet with visitors.
66. Often residents have limited access to the community; it is difficult for most, and impossible for many, to participate in community activities offered by churches, clubs, or other organizations.
Plaintiffs Desire and Are Able to Live in the Community 67. The Named Plaintiffs (those identified in paragraphs 29 to 47 above) and class members prefer to live in the community with appropriate assistance, rather than reside in nursing facilities. 68. All Plaintiffs would prefer to live with family, in their own apartments or homes, or in permanent supported housing - all more integrated settings appropriate to their needs than the nursing facilities in which they currently reside. 69. The District of Columbia nursing facilities' self-reported Medicaid data reports that, in the third quarter of 201 0, 526 D.C. nursing facility residents indicated that they wanted to live in the community instead of a nursing facility.
15

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 16 of 29
70. This data vastly undercounts the preferences of nursing home residents because of their lack of awareness of community-based options.
71. Many of the class members may need education and support in order to make an informed choice about whether to receive services in nursing homes or in the community in more integrated settings.
72. All of the Plaintiffs could be served safely and appropriately in the community if Defendants facilitated their access to community-based, long-term care services and supports. These options would afford far more choice, freedom, and privacy, as well as the opportunity to maintain regular family relationships and interact with and form friendships with a variety of people. With appropriate supports and services, persons with disabilities of all ages and levels of disability can successfully move into and remain in the community and live more independently.
73. All of the Plaintiffs desire and are capable of living in a community-based setting with appropriate services and supports.
Defendants Continue to Violate Title II of the ADA and Olmstead 74. Despite Plaintiffs' desire and ability to live independently in the community with the services they need, Defendants have failed to take any meaningful action to ensure that Plaintiffs receive services in the most integrated setting appropriate to their needs. 75. Nearly twelve years after the United States Supreme Court decision in Olmstead, the District of Columbia still does not have a comprehensive, effectively-working plan to implement the requirements described in that decision.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 17 of 29
76. Instead of providing community-based services, Defendants rely heavily on nursing facilities to provide services to individuals with disabilities and to provide long-term care.
77. Defendants' services, programs, and activities for persons with mental or physical disabilities leave many hundreds of people languishing, isolated in nursing facilities. Defendants' collective actions and inactions have resulted in the needless isolation, segregation, and institutionalization of individuals with disabilities in nursing facilities.
78. Many of the individuals to whom Defendants currently provide community-based services have mental and physical conditions and functional capacities that are the same as, or are similar to, the class members currently living in nursing facilities.
79. The Medicaid-funded personal care services all Plaintiffs receive in the nursing facility could be provided in the community at the same or lower cost.
80. The District of Columbia's average annual expenditure for nursing facility care is more than $60,000 per year per person, and the average annual cost per patient in a psychiatric hospital is over $230,000.
81. In contrast, the annual cost per person to provide community-based mental health services is approximately $25,000, or 60 percent less than the District's cost for nursing facilitybased care.
82. Among other things, Defendants collectively fail to: 1. Assure that individuals with mental or physical disabilities receive services in the most integrated setting appropriate to their needs; 11. Develop or implement a comprehensive and effective working plan that identifies individuals with mental or physical disabilities who are needlessly in nursing facilities and helps them move to more integrated settings; 17

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 18 of 29
111. Provide adequate and appropriate community services; IV. Provide information about community-based alternatives or comprehensive
discharge planning to enable Plaintiffs to live in more integrated settings; v. Assure that people with mental or physical disabilities are not unnecessarily
placed in nursing facilities by, for example, informing them of the availability of integrated, community-based options for mental health and other health care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community; VI. Properly identify persons with mental or physical disabilities who should not be admitted into nursing facilities; Vll. Assure that individuals with mental or physical disabilities residing in nursing facilities are periodically reviewed and assessed for communitybased treatment; viii. Assure that individuals with mental or physical disabilities are discharged from nursing facilities when appropriate; IX. Provide information, transitional assistance, and referrals to facilitate Plaintiffs' access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and x. Take adequate steps to preserve individuals' existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return. 83. DMH has failed to provide adequate outreach to people in nursing homes or
administer services such as community-based residential supports, service planning, counseling
and medication management, assertive community treatment, discharge planning, transition
assistance, and day treatment programs for people with mental illness in nursing homes
seeking to transition to the community, and to avert placement in nursing homes in the first
instance.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 19 of 29
Defendants' Policies Undermine Olmstead's Requirements 84. Defendants administer their Medicaid program and mental health services in a manner that perpetuates the segregation of persons with disabilities. These methods of administration arbitrarily limit access to integrated, community support services by persons with disabilities in nursing facilities. As a result of the District's unbalanced long-term care system, community-based long-term care services are unavailable to many people with disabilities who need and want them, effectively compelling their institutionalization in nursing facilities. 85. For example, Defendants refuse to pay mental health service providers to provide services to individuals in nursing facilities who qualify for and need mental health services. . Instead, providers are required to terminate those services entirely once individuals enter a nursing facility. This practice prevents individuals from leaving nursing facilities because they cannot access appropriate services to transition to the community. 86. Additionally, in 2006, the District was approved to receive over $26 million in federal funds through a five-year grant to support the transition of 1,100 people from nursing facilities and other institutions to the community to live independently with the services they need. Now in its fifth year of the grant period, the District still has not transitioned a single person from a nursing facility under the grant. 87. Olmstead's integration mandate may be excused only where a state demonstrates that compliance with the mandate would result in a "fundamental alteration" of the state's services and programs. Olmstead, 527 U.S. at 603. This defense is not available, however, to states that have not developed a plan to comply with the Olmstead mandate. Frederick L. v. Dep't ofPub. Welfare, 422 F.3d 151, 158-59 (3d Cir. 2005).
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 20 of 29
88. In 2009, Defendants circulated a draft of a written "Olmstead Plan" which was never finalized or implemented.
89. Defendants' Draft Olmstead Plan is not a comprehensive, working plan because, among other things, it fails to establish or implement mechanisms to transition Plaintiffs into more integrated settings. Even if Defendants were to finalize a written Olmstead plan, the District of Columbia's system of long-term care does not operate effectively to meet its obligations under Olmstead and the ADA.
90. Defendants' violations of their federal obligations are expected to expand in 2011 due to DHCF's proposal to reduce home-based personal care aide services under the Medicaid State Plan from 1,040 hours per year per person, with additional hours available pursuant to physicians' orders and DHCF prior authorization, to 520 hours per year per person, with no provision for additional hours. As a result of these cuts, approximately 2,900 Medicaid beneficiaries were advised to apply for EPD Waiver slots, further restricting (and possibly eliminating) the availability of these slots for Named Plaintiffs and class members.
91. The addition of even several hundred of the approximately 2,900 Medicaid beneficiaries to the EPD Waiver program and its related waiting list would likely exhaust the 4,000 allotted community-based EPD Waiver slots. Defendants' service reduction thus could foreclose Plaintiffs from accessing waiver services.
92. On May 7, 2010, counsel for Named Plaintiffs sent a letter to former Mayor Fenty and former Attorney General Peter Nickles detailing the violations of Plaintiffs' rights under the integration mandate of Title II of the ADA and the Supreme Court's ruling in Olmstead. The letter cited policies and practices such as the District's "failure to inform nursing home residents
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 21 of 29
about the availability of integrated community-based options for mental health and other health care" and the lack of a "comprehensive and effective plan for identifying individuals with mental or physical disabilities who are needlessly in nursing facilities and for helping them move to more integrated settings." The letter urged former Mayor Fenty "to take strong and swift action to enable people with disabilities in nursing facilities to receive services in integrated settings."
93. On July 13,2010, and July 27,2010, Plaintiffs' counsel met with former Mayor Fenty's designees, including former Attorney General Peter Nickles, regarding Plaintiffs' May 7th letter. The July 27th meeting also included designees of Defendant Baron.
94. Defendants have not resolved Plaintiffs' grievances.
CLASS ACTION ALLEGATIONS 95. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and Local Rule 23.1, the Named Plaintiffs bring this action for prospective relief on behalf of themselves and all other persons similarly situated. 96. The proposed class consists of:
All those persons who (l) have a disability; (2) receive services in nursing facilities located in the District of Columbia or funded by Defendants at any time during the pendency of this litigation; (3) could live in the community with appropriate supports and services from Defendants; and (4) prefer to live in the community rather than in nursing facilities. 97. Numerosity: The Plaintiff class is so numerous that joinder of all its members is impracticable. The exact number of individuals in the class is not known but is believed to be between 500 and 2,900 individuals.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 22 of 29

98. Joinder is also impracticable because class members lack the knowledge and

financial means to maintain individual actions.

99. Commonality: There are questions of law or fact that are common to all the

Named Plaintiffs, as well as to all class members, including:

a. Whether Defendants violate the integration mandate of Title II of the ADA and Section 504 of the Rehabilitation Act by requiring Named Plaintiffs and class members to be confined to nursing facilities in order to receive long-term care services, rather than providing those services in more integrated, community-based settings;

b. Whether Defendants administer their services, programs, and activities in the most integrated setting appropriate to the needs of individuals with disabilities residing in nursing facilities;

c. Whether Defendants fail to offer sufficient discharge planning to enable individuals with disabilities residing in nursing facilities to be served in more integrated, community-based settings;

d. Whether Defendants fail to develop, fund, and effectively utilize existing community-based programs so that individuals with disabilities residing in nursing facilities may be placed in more integrated, community-based settings;

e. Whether Defendants fail to establish and implement a comprehensive, effective working plan to place individuals with disabilities who reside in nursing facilities into more integrated, community-based settings;

f.

Whether Defendants fail to effectively administer and implement federal

programs such as Medicaid waivers and Money Follows the Person to

afford access to community-based programs by people with disabilities in

nursing homes; and

g. Whether Defendants fail to effectively inform and provide Plaintiffs with meaningful choices of community-based long-term care alternatives to nursing facilities.

100. Typicality: The claims of the Named Plaintiffs are typical of the claims of the

class as a whole in that both the Named Plaintiffs and the class members currently are

unnecessarily isolated in nursing facilities located in or funded by the District of Columbia; they 22

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 23 of 29
could live in more integrated settings with appropriate health care, personal care, and residential support services; and they desire to live in more integrated, community-based settings.
101. Named Plaintiffs' claims that Defendants have failed to administer the District's mental health and long-term Medicaid programs to provide services in the most integrated setting appropriate to their needs are typical of the claims of the class.
102. Adequate representation: The Named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole because they suffer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and the actions of the Defendants to deprive them of their rights. The Named Plaintiffs' interests are consistent with and are not antagonistic to those of other class members. By filing this action, the Named Plaintiffs express their interest in vindicating their rights, as well as the rights of others who are similarly situated. The relief sought by the Named Plaintiffs will inure to the benefit of members of the class generally. The Named Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation.
103. Defendants have acted or refused to act on grounds generally applicable to the class by unnecessarily segregating class members, thereby making final injunctive relief appropriate with respect to the class as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. For example, Defendants have failed to inform class members of their right to
23

Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 24 of 29
community services and failed to provide them with services in the most integrated setting appropriate to their needs. Although the specific disabilities of the class members vary, they also share a common need for Medicaid and locally-funded services.
104. A class action is superior to individual lawsuits for resolving this controversy. Declaratory and injunctive relief with respect to the entire class is appropriate.
COUNT 1 AMERICANS WITH DISABILITIES ACT 105. Paragraphs 1 through 104 are incorporated by reference. 106. Each Named Plaintiff and class member is an "individual with a disability" within the meaning ofthe ADA in that they have disabilities that substantially limit one or more major life activities, such as self-care and social interaction. They also have a history of such impairments and areregarded by Defendants as having such impairments. 107. Each Named Plaintiff and class member is a "[q]ualified individual with a disability" within the meaning of the ADA, 42 U.S.C. § 12131(2), because he or she is qualified to participate in Defendants' more integrated, community-based programs and services. 108. Defendant District of Columbia is a public entity covered by Title II of the ADA. The remaining Defendants are directly responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) & (B). As such, the ADA prohibits Defendants from discriminating against individuals with disabilities in their programs and services. See 42 U.S.C. §§ 12131 and 12132.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 25 of 29
109. Regulations implementing Title II ofthe ADA require that "[a] public entity administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d).
110. The ADA's implementing regulations further provide: A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment ofthe objectives of the public entity's program with respect to individuals with disabilities.
28 C.F.R. § 35.l30(b)(3)(i)-(ii). 111. Defendants have caused the Named Plaintiffs and class members to be confined
unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports.
112. Defendants' actions violate Title II of the ADA.
COUNT II Section 504 of the Rehabilitation Act 113. Paragraphs 1 through 112 are incorporated by reference. 114. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 26 of 29
lIS. Defendant District of Columbia and its governmental agencies receive federal financial assistance within the meaning of Section S04.
116. Each Named Plaintiff and class member is an "individual with a disability" within the meaning of Section 504 because they have disabilities that substantially limit one or more major life activities, such as self-care, transferring to and from wheelchairs, and social interaction. They also have such impairments and are regarded by Defendants as having such impairments.
117. Each Named Plaintiff and class member is a "qualified person with disabilities" within the meaning of Section S04 because he or she is qualified to participate in Defendants' more integrated, community-based programs and services.
118. Regulations implementing Section S04 require that a public entity administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.S1 (d).
119. Regulations implementing Section S04 prohibit recipients of federal financial assistance from:
[U]tiliz[ing] criteria or methods of administration ... (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4)(i)-(ii); 28 C.F.R. § 41.S1(b)(3)(i)-(ii). 120. Defendants' actions violate Section S04 of the Rehabilitation Act.
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 27 of 29

REQUEST FOR RELIEF

WHEREFORE, Named Plaintiffs and class members respectfully request that this Court:

a. Certify this action as a class action;

b. Declare that Defendants' failure to provide Named Plaintiffs and class members with services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act;

c. Declare that Defendants' failure to provide Named Plaintiffs and class members with services in the most integrated setting appropriate to their needs violates Section 504 of the Rehabilitation Act;

d. Enter a permanent injunction requiring Defendants to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs;

e. Award Named Plaintiffs and class members their reasonable attorneys' fees, litigation expenses, and costs; and

f.

Grant such other relief as this Court deems just and proper.

[SIGNATURE BLOCK ON FOLLOWING PAGE]

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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 28 of 29
Dated: March 30, 2011
M;rjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 mrifkin@uls-dc.org jlav@uls-dc.org University Legal Services-Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org B vignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424
Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider. brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395
Counselfor Plaintiffs
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Case 1:10-cv-02250-ESH Document 17 Filed 03/30/11 Page 29 of 29
CERTIFICATE OF SERVICE
I certify that on March 30,2011, a true copy of the foregoing FIRST AMENDED COMPLAINT was served on all counsel of record by electronic mail.
t0JL-~
I
Brian D. Schneider

 
 Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMB IA

EDWARD DAY

)

J.B. Johnson Nurs ing Center

)

901 First St. NW, Washington, DC 2000 1;

)

)

LARRY MCDONALD

)

1.8. Johnson Nursing Center

)

901 First St. NW, Washington, DC 20001 ;

)

)

VIETRESS BACON

)

Washington Nursing Facility

)

2425 25 St. SE, Washi ngton, DC 20020; and

)

)

BONITA JACKSON

)

Washington Nursing Facility

)

242525 St. SE, Washi ngton, DC 20020;

)

)

on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs .

)

)

v.

)

)

DISTRICT OF COLUM BIA, a municipal

)

Corporation;

)

)

ADRI AN M. FENTY, in his official

)

capacity as Mayor of the District of Columbia, )

101m A Wil son Building,

)

1350 Pennsylvania Avenue, NW

)

Washington, DC 20004;

)

)

JULIE A. HUDMAN, in her official capacity

)

as Director of the District of Columbia

)

Department of Health Care Finance,

)

825 North Capitol Street NE,

)

Washington, DC 20002; and

)

COMI'LAINT Civi l Action No.

Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 2 of 28

)

STEPHEN BARON, in his official capacity

)

as Director of the District of Columbia

)

Department of Mental Health,

)

64 New York Avenue, NE

)

Washington, DC 20002,

)

)

Defendants.

)

-----------------------)

CLASS ACTION COMPLAINT FOR DECLARATORY AND IN.JUNCTIVE RELIEF Federal law requires that the District of Columbia provide services to people with disabilities in the most integrated setting appropriate to their needs. But the District has failed to comply with this obligation, leaving between SOD and nearly 3,000 people with disabi li ties unnecessarily institutionalized in nursing fac il ities, segregated and isolated from their families and friends. These individuals desperately want to return to their communities and could do so if the District were to comply with federal law. Th is class action therefore seeks injunctive and declaratory relief to require the District of Columbia and its officials to comply with their longstanding, federally-mandated obligations.

PRELIMINARY STATEMENT

I.

Plaintiffs are the named individuals and a class of similarly-situated individuals

with disabilities who desperately desire the freedom to li ve in their community but instead

remain institutionalized in nursing facilities against their wi ll. Plaintiffs could be served in

community-integrated settings, but most have and will remain in nursing fac ilities for years

2

Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 3 of 28
because Defendants provide few opportunities, if any, for Plaintiffs to obtain services in more integrated settings.
2. Defendants, the District of Columbia, its Mayor, and the officials who plan, oversee, fund, and regulate services, programs, and activities for persons with disabilities, have unnecessaril y and inappropriately institutionali zed Plaintiffs in nursi ng facilities despite federal law requiring that Defendants honor the class members' desires and abilities to li ve in more integrated settings in the community with appropriate services and suppons.
3. Defendants are in violation of Tit le II of the Americans with Di sabilities Act ("ADA"), 42 U.S.C. § 12131 ef seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., because they unlawfully discriminate against Plaintiffs by institutionalizing them in nursing facilities and isolating them from their communities.
4. Title II of the ADA prohibits discrimination against individuals with disabilities. In enacting the ADA, Congress found that " indi viduals with disabilities continuall y encounter various fonns of discrimination, including ... segregation." 42 U.S.c. § 12101 (a)(5). Title II provi des that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be SUbjected to discrimination by any such entity." 42 U.S.C. § 12132. The
United States Department of Justice promulgated regulations under Title II requiring that "[aJ public entity shall adm ini ster services, programs, and acti vities in the mosl integrated setling appropriate to the needs of qualified individuals with disabi lities." 28 C.F.R. § 35. 130(d) (emphasis added).
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 4 of 28
5. Section 504 of the Rehabilitat ion Act provides that no person with a disability "shall, solely by reason of her or his disability, be excl uded from the participation in , be denied the benefits of, or be subjected to discrimination under any program or activity receivi ng Federal finan cial assistance." 29 U.S.C. § 794(a). Regul ations implementing Section 504 require that a public entity admini ster programs, services, and activit ies in "the most integrated setting appropriate" to the needs of individuals with di sabilities. 28 C.F.R. §41 .5 1(d),
6. The United States Supreme Court in Olmstead v. L.c. ex rei. Zimring, 527 U.S.
581 (1999), held that the unnecessary institutionalization of individual s with disabi lities is a fo nn of di scrimination under Title II of the ADA. The Court concluded that state and local governments may be held liable fo r failing to serve people with disabilities in the most integrated settings appropriate to thei r needs.
7. Despite the passage of eleven years since Olmstead, Defendants continue to fai l to faci litate access to communi ty-based long-term care services and supports for Plaintiffs in the most integrated sett ing appropriate to their needs.
8. Because of Defendants' failure to fund or otherwise make avai lable sufficient community-based alternatives, individuals with disabilities often have nowhere to go but nursing fac ilities. Indeed, many individuals with disabi lities are forced to choose between residence in a nursi ng faci lity o r ho melessness.
9. Defendants' programs and activities for persons with disabi lities systematically deny or ignore Pl ainti ffs' choices and preferences for integrated community care, leaving them to languish in institutiona l nursing faci lities eve n though appropriate community-based services and sett ings exislthat could be made avai lable at the same or even lower cost.
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10. Defendants are able to appropriately discharge Plaintiffs with comm unity-based support services.
II . Plaintiffs are thus needlessly segregated from their fam ilies, friends, and community life.
12. Plaintiffs' plight is shared by many. According to federa l and state data, when offered a choice between community and nursing facility-based care, more than 500 District of Columbia nursing faci lity residents would choose to receive long-tenn care services in more integrated settings in the community instead of being forced to remain in a nursing facility.
13. Upon information and belief, many more nursing facility residents would choose to live in more integrated settings in the community if they were informed about communi tybased options.
14. Plai ntiffs bring this action to compel Defendants to comply with their federal legal obligations.
JURISDICTION 15. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 . Plaintiffs' claims fo r declaratory and inj unctive relief are authorized under 28 U.S.C. §§ 2201 -02 and 42 U.S.C. § 1983. At all times relevant to this action, Defendants have acted under color of state law. 16. Plaintiffs' claims for violat ions ofTitie II of the ADA, 42 U.S.C. §§ 1213 1 and 12132 et seq., are asserted against the individual Defendants in their official capacities; Plaintiffs do not assert claims against the District of Columbia for violations of Title II of the ADA.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 6 of 28
17. Plaintiffs' claims for violations of Section 504 of the Rehabilitation Act, 29 U.S.c. § 794 et seq., are asserted agai nst both the individual Defendants in their official capacities and the District of Co lwnbia.
VENUE 18. Venue lies in the District of Columbia pursuaut to 28 U.S.C. § 1391(b)( I) because the Defendants reside in the District, and under 28 U.S.c. § 139 1(b)(2) because a substantial part of the events or omi ssions giving rise to Plaintiffs' claims occurred in the District.
DEFENDANTS 19. Defendant Di strict of Columbia is responsible for operating its programs, services, and activities in conformity with the ADA and Section 504 of the Rehabil itation Act. In light of the vio lations by its governmental agencies individually and co llectively, the District of Columbia is sued under the Rehabilitation Act. 20. Defendant Adrian Fenty is the Mayor of the District of Columbia, and is sued in his official capac ity. Mayor Fenty is the chief executi ve officer of the District of Columbia responsible for directing, supervising, and controlling the executive departments of the District
of Columbi a government. D.C. Code § 1-204.22. He is responsible for establi shing and carrying out the Medicaid Program in the District of Columbia. D.C. Code § 1-307.02. Mayor Fenty is ultimately responsible for ensuri ng that the District of Columbia operates its long-term care and Medicaid systems for people with di sabilities in conformity with the ADA, the Rehabilitation Act, and all other fede ral laws. District of Columbi a law expressly requires the Mayor to establish and implement an "Olmstead Plan" by March 8, 2008, and issue annual Olmstead
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 7 of 28
Compliance Plans beginning January 1,2009. D.C. Code § 2-1431 .04(8)(A). He has failed to do so.
21. Defendant Julie A. Hudman is the Director of the District of Columbia's Department of Health Care Finance Administration ("DHCF"), and is sued in her official capacity. DHCF is a public agency and a recipient of federal financial assistance. DHCF is responsible for admini stering the District of Columbia's long-term care system for people with disabilities. See D.C. Code § 7-771.07(9). DHCF must " maximize federal assistance," "[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars," and "ensure coordinated health-care access and delivery for publicly funded health-care services." D.C. Code § 7-771.07(3)-(5). DHCF also is "the single state agency" that administers the District of Columbia's Medicaid program. See 42 U.S.C. § I396a(a)(5); D.C. Code § 7-771.07(1). Ms. Hudman, in her role as the Director ofDHCF, is responsible for the oversight, supervision, and control of DHCF operations, and is ultimately responsible for ensuring that the agency's services for people with disabilities are provided in conformance with federa l law.
22. Defendant Stephen Baron is the Director of the District of Co lumbia 's Department of Mental Health ("DMH"), and is sued in his official capacity. DMH is a public agency and a recipient of federal financial assistance. DMH is the primary agency responsible for planning, developing, coordinating, and monitoring "comprehensive and integrated mental health systems of care for adults ... in the District." D.C. Code § 7~ 1131.04(1). As director of DMH, Mr. Baron coordinates and manages funding for all publi cly funded health services and mental health supports for District of Co lumbia residents. D.C. Code §§ 7- 1131.04(2), (3).
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 8 of 28
DMH is responsible fo r screeni ng, evaluating, and monitori ng individuals with mental ill ness who reside in, or are at risk of entry into, nursing fac ilities in the District. Among the services within DMH's jurisdiction are community support, service planni ng, counseling and medicati on management, assertive community treatment, housing ass istance, and day treatm ent programs; some or aU of these are the very types of services that coul d enable Plainti ffs to leave nursing faci lities and live in more integrated settings.
23. At all times relevant to this Complai nt, Defendants have acted and continue to act under color of District of Co lumbia law and knew or should have known of the policies, practices, acts, and conditions alleged herein.
P L A I NT I F F S All Plaintiffs 24. Plaintiffs are all District of Co lumbia residents with disabi lities that substantially limit their ability to perfo rm major life activities. They are also regarded by Defendants as having such impai rment s, and therefore are indi viduals with di sabilities for purposes of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12 102; 29 U.S .C. § 705 (20). 25. Plaintiffs are all currentl y housed in nursing faciliti es that are located in the Distri ct of Columbia or are otherwise funded by Defendants. 26. All Plaintiffs cou ld be served in the community through services Defendants already have available.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 9 of 28
27. A lthough residing in the community with support services is the most integrated setting where the Plaintiffs' needs can be met, Defendants have offered them personal care and health care services only in a nursing facility setti ng.
28. All Plaintiffs want to leave the nursing facilities in which they reside, and could do so with appropriate services and supports.
The Na med Plaintiffs Plaintiff Edward Day 29. Plaintiff Edward Day is a 75 -year-old man who is diagnosed with diabetes, peripheral vascular disease, hypertension, a seizure disorder, and depression. He has had both of his legs amputated because of his diabetes. Although his nursing facility fitted him for a prosthetic device for one of his legs, it did not give him access to use it. Mr. Day is able to ambulate independently in his wheelchair, but he needs assistance with bathing, dressing, transferring, and using the bathroom. 30. Mr. Day has resided at JBJ Johnson Nursing Center ("181") in the District of Co lumbia since December 4, 2006. He was placed at IBI after he retired from his job of37 years with the District of Columbia government. 3 1. Mr. Day could live in the community if appropriate supports and services were made availab le to him. In 2009, the staff at IBJ identified Mr. Day as "high functioning" and «able to live in the community." 32. Mr. Day prefers to live in the community rather than stay in the nursing facility.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 10 of 28
Plaintiff Larry McDonald 33. Plaintiff Larry McDonald is a 56-year-old man who is diagnosed with a seizure disorder, hypertension, and dementia. Mr. McDonald is a veteran of the Army. His nursing fac ility records indicate that he requires superv ision for two activities of daily living: bathing and dressing. 34. Mr. McDonald has resided at 1B1 since September 2004, when he was admitted after suffering a stroke. 35. Mr. McDonald could live independently with appropri ate supports and services in the community. Mr. McDonald prefers to live independentl y in the community, with either a family member or on his own with appropriate healtll care, personal care, and residential support servIces.
Plaintiff Vietrcss Bacon 36. PlaintiffY ietress Bacon is a 46-year-old woman who was admitted to Washington Nursing Facility ("WNF") on September 22, 2008, when she could no longer live with her elderly mother. Ms. Bacon has bi-polar disorder, depression, arthritis, traumatic brain injury, and paralysis due to a chi ldhood car accident fo llowed by multiple surgeries. 37. Ms. Bacon uses a motorized wheelchair to ambulate independently. She needs assistance with bathing, dressing, transferring, and using the bathroom. Ms. Bacon could live in the community with this assistance and mental health services. 38. Ms. Bacon has a strong preference to live in the community rather than a nursing faci lity.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 11 of 28
Plaintiff Bonita Jackson 39. Plaintiff Bonita Jackson is a 52-year-old woman who was admitted to WNF on January 4, 2007, after a stroke and subsequent surgery. Ms. Jackson is diagnosed with pneumonia, anemia, seizures, and Hepatitis C. Due to her equilibrium problems, she uses a walker for mobility. 40. Ms. Jackson could live in the community with assistance to help with personal grooming, meal preparation, and li ght cleaning. 41. Ms. Jackson prefers to live in the community instead of in a nursing facil ity.
STATEMENT OF FACTS 42. Indi viduals with certain diagnosable mental, behavioral, or emotional disorders are eligible to receive services, including long-term care services, from the District of Columbia. 43. Defendants fund these services largely through the Medicaid program, ajo int federal and state program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 el seq. 44. Approximately 70 percent of D.C. nursing facility residents are D.C. Medicaid recipients. 45. The District receives 70 cents in federal reimbursement for every dollar it spends on Medicaid services. 46. The District also participates in the federal Money Follows the Person ("MFP") program designed to provide federal funds to state Medicaid programs to transition people into
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 12 of 28
community-based settings. The District would receive 85 cents in federal reimbursement for each dollar it spends to transition people from nursing facilities under that program.
47. Defendants provide nursing facility-based services through privately-owned and operated nursing facilities - many of which are for-profit businesses - and through nursing facilities (such as 1BJ and a skilled nursing facility unit at United Medical Center) that are owned by the District and operated through leasing arrangements or contracts with nursing facility management companies.
48. There are approximately 2,700 beds in skilled nursing facilities in the District of Columbia, with an occupancy rate of approximately 98 percent.
49. Approximately 200 additional D.C. residents currently are placed in out-of-state nursing facilities; D.C. Medicaid continues to fund their care.
50. The District also provides in-home and community-based services to people with disabilities under the Medicaid program.
51. People with disabilities are entitled to personal care aide services in their homes under the District of Columbia's Medicaid State Plan and the Medicaid Waiver Programs for those who are Elderly or have Physical Disabilities ("EPD Waiver"). The District's EPD Waiver program has a fixed number of slots (4,000) for beneficiaries.
52. The District's Medicaid Waiver Programs provide home healthcare services, home- and community-based care for functionally disabled individuals, personal care services, and other medical and remedial care recognized under the Medicaid State Plan such as skilled nursing services.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 13 of 28
53. Under these options, people with disabilities who would otherwise qualify for nursing facility services are able to live independently with communi ty-based supports and services, including healthcare, personal care services, personal emergency response services, and other long-tenn care services otherwise found in nursing fac ilities.
54. Defendants offer a range of other Medicaid- and locally-funded services to adults with mental illness living in the community in D.C., such as service planning, community support, assertive community treatment, diagnosis, assessment, medication management, day treatment, and crisis intervention services.
55. Defendants license, certify, or contract with private home health agencies and community support agencies to provide these long-term care services in the community.
Nursing Facilities Arc Institutions 56. Nursing facilities are, for the most part, neither integrated into nor part oftbe communiti es in which their residents li ve. They are not real homes or even home-l ike. They are segregated institutions housing large numbers of unrelated people, both elderly and non-elderly, in congregate settings. Many nursing faci lities provide only beds, meals, and sparse rehabilitative services. 57. Many nursing faci lities resemble hospitals and secure facilities. For example, JBJ is surrounded by a security fence with an electronic lock and requires most residents to have escorts and special permission to leave the facility even for brief periods of time. Some D.C. nursing faci lities have curfews, and, at times, security guards posted to monitor people entering
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 14 of 28
and leaving the fac il ities. Inside, many fac ili ties have nurses' stations and are filled with the hard steril e surfaces normally found in medical fac iliti es.
58. Often there is little, if any, pri vacy for nursing fac ility residents. Often residents must share rooms and bathrooms with other residents they did not know previously and with whom they did not choose to live; their beds are separated by only a curtain. In some fac ilities, such as JBl , ent ire wards of individuals share bathrooms and shower faci lities. Often residents have minimal space to call their own or to use to safeguard their personal belongings, and many residents report that the ir personal property has been stolen or damaged. Nursing fac ility residents often lack their own telephones and are freque ntly restricted in the use of the nursing fac ility telephones, which lack privacy. Medicat ions are often dispensed publicl y at specific times, with residents waiting in line.
59. N ursing facil ities often place many limitations on residents' autonomy. In many fac ilities, residents are subjected to a highly regimented li festyle characterized by restrictive rules and policies. Dai ly activities are often conducted in a central location in the fac ility. in the company of large numbers of other individuals with disabi lities. As a result, residents may sit idl e for most of the day. with little or nothing to do. Many nursing fac ilities offer few places for res idents to gather o r meet with visitors.
60. Often reside11ls have limi ted access to the community; it is difficult for most, and im possible fo r many. to participate in community activities offered by churches, clubs, or other organi zations.
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Plaintiffs Desire and Are Able to Live in the Co mmunity 61. The Named Plaintiffs (those identified in paragraphs 29 to 41 above) and class members prefer to li ve in the community with appropriate assistance, rather than reside in nursing facilities. 62. All Plaintiffs would prefer to live with family, in their own apartments or homes, or in permanent supporti ve housing - all more integrated settings appropriate to their needs than the nursing facilities in which they currently reside. 63. The District of Co lumbia nursing facilities ' self-reported Medicaid data reports that, in the third quarter of20 10, 526 D. C. nursing facility residents indicated that they wanted to live in the community instead ofa nursing faci li ty. 64. This data vastl y undercoun ts the preferences of nursing home residents because of their lack of awareness of community-based options. 65. Many of the class members may need education and support in order to make an informed choice about whether to receive services in nursing homes or in the community in more integrated settings. 66. All of the Plaintiffs could be served safely and appropriately in the community if Defendants faci litated their access to community-based, long-tenn care services and supp0l1S. These options would afford far more choice, freedom, and privacy, as well as the opportunity to maintain regular fam ily relationships and interact with and form friendships with a varietrof people. With appropriate supports and services, persons with disabilities of all ages and level s of disability can successfull y move into and remain in the community and live more independently.
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 16 of 28
67. All of the Plaintiffs desire and are capable of li ving in a community-based setting with appropriate services and supports.
Defendants Continue to Violate Title n of the ADA and Olmstead
68. Despite Plaintiffs' desire and ability to live independent ly in the community with the services they need, Defendants have failed to take any meaningful action to ensure that Plaintiffs receive services in the most integrated setting appropri ate to their needs.
69. Eleven years after the United States Supreme Court decision in Olmstead, the Di strict of Co lumbi a still does not have a comprehensive, effectively-working plan to implement the requirements described in that decision.
70. Instead of providing community-based services, Defendants rely heavil y on nursing facil ities to provide services to individuals with disabilities and to provide long-term care.
71. Defendants' services, programs, and activities for persons with mental or physical disabilities leave many hundreds of people languishing, isolated in nursing fac il ities. Defendants' co ll ective actions and inactions have resulted in the needless iso lat ion, segregation, and institutionalizat ion of individuals with disabilities in nursing facilities.
72. Many of the individuals to whom Defendan ts currentl y provide community-based services have mental and physical conditions and functiona l capacities that are the same as, or are simi lar to, the class members currently living in nursi ng facilities.
73. The Medicaid-funded personal care services all Plaintiffs rece ive in the nursing faci li ty could be provided in the community at the same or lower cost.
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74. The District of Columbia's average annual expenditure for nursing facility care is
more than $60,000 per year per person, and the average annual cost per patient in a psychiatric
hospital is over $230,000.
75. In contrast, the annual cost per person to provide community~based mental health
services is approximately $25,000, or 60 percent less than the Di strict's cost for nursing faci lity~
based care.
76. Among other things, Defendants co ll ectively fa il to:
I. Assure that individuals with mental or physical disabilities receive services in the most integrated setting appropriate to their needs;
II. Develop or implement a comprehensive and effective working plan that identifies individuals with mental or physical disabilities who are needlessly in nursing facilities and helps them move to more integrated settings;
Ill. Provide adequate and appropriate community services; IV. Provide info nnation about community~based alternatives or comprehensive
discharge planning to enable Plaintiffs to live in more integrated settings;
v. Assure that people with mental or physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them of the availability of integrated, community~based options for mental health and other health care services as an alternative to nursing facility placement, offering them a meaningful choice of community pl acement, or offering any assistance to those who seek to return to live in the community;
VI. Properly identi fy persons with mental or physical disabilities who shou ld not be admitted into nursi ng facilities;
VII . Assure that individuals with mental or physical di sabilities residing in nursing facili ties are periodically reviewed and assessed for community~ based treatment;
viii. Assure that individuals with mental or physical disabilities are discharged from nursing facilities when appropriate;
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IX. Provide supportive housing as necessary to enable Plaintiffs' to no longer be unnecessarily segregated in nursing facilities ; and
x. Take adequate steps to preserve individuals ' community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
77. DMH has failed to provide adequate outreach to people in nursing homes or administer services such as community-based residential supports, service planning, counseling and medication management, assertive communi ty treatment, housing assistance, and day treatment programs for people with mental illness in nursing homes seeking to transition to the community, and to avert placement in nursing homes in the first instance.
Defendants' Policies Undermine Olmsfead's Requirements 78. Defendants administer their Medicaid program and mental health services in a maruler that perpetuates the segregation of persons with disabilities. These methods of administration arbitrarily limit access to integrated, community support services by persons with disabilities in nursing facilities. As a result of the District's unbalanced long-teon care system, community-based long-tenn care services are unavailable to many people with disabilities who need and want them, effectively compelling their institutionalization in nursing faci lities. 79. For example, Defendants refuse to pay mental health service providers to provide services to individuals in nursi ng facilities who qualify for and need mental health services. Instead, providers are required to terminate those services entirely once indi viduals enter a nursing facility. This practice prevents individuals from leaving nursing facilities because they cannot access appropriate services to transition to the community.
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80. Additionally, in 2006, the District was approved to receive over $26 million in federa l funds through a five-year grant to support the transition of 1, I00 people from nursing facilities and other institutions to the community to live independently with the services they need . Now in its fifth year of the grant period, the District still has not transitioned a single person from a nursing facility under the grant.
81. Olmstead's integration mandate may be excused only where a state demonstrates that compliance with the mandate would result in a "fundamental alteration" of the state's services and programs. Olmstead, 527 U.S. at 603. This defense is not avai lable, however, to states that have not developed a plan to comply with the Olmstead mandate. Frederick L. v. Dep't ofPub. Welfare, 422 F.3d 151, 158-59 (3d Cir. 2005).
82. In 2009, Defendants circulated a draft of a written "Olmstead Plan" which was never finalized or implemented.
83. Defendants' Draft Olmstead Plan is not a comprehensive, working plan because, among other things, it fails to establish or implement mechanisms to transition Plaintiffs into more integrated settings. Even if Defendants were to finalize a written Olmstead plan, the District of Columbia's system of long-term care does not operate effectively to meet its obligations under Olmstead and the ADA.
84. Defendants' violations of their federal obligations are already expected to expand in January 201 1, when DHCF will reduce home-based personal care aide services under the Medicaid State Plan from 1,040 hours per year per person, with additional hours available pursuant to physicians' orders and DHCF prior authorization, to 520 hours per year per person, with no provision for additional hours. As a result of these cuts, approximately 2,900 Medicaid
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 20 of 28
beneficiaries were advised to apply for EPD Waiver slots, further restricting (and possibly eliminating) the availability of these slots for Named Plaintiffs and class members.
85. The addition of even several hundred of the approxi mately 2,900 Medicaid beneficiaries to the EPD Waiver program and its related waiting list will likely exhaust the 4,000 allotted community-based EPD Waiver slots. Defendants' service reduction thus wi ll foreclose Plaintiffs from accessing waiver services.
86. On May 7, 20 10, counsel for Named Pl aintiffs sent a letter to Defendant Fenty and Attorney General Peter Nickl es detailing the violations of Plaintiffs' rights under the integration mandate of Title II of the ADA and the Supreme Court's ruling in Olmstead. The letter cited policies and practices such as the District's "failure to inform nursing home residents about the availability of integrated community-based options for mental health and other health care" and the lack of a "comprehensive and effective plan for identifying individuals with mental or physical di sabi lities who are needlessly in musing facilities and for helping them move to more integrated settings." The letter urged Defendant Fenty "to take strong and swift action to enable people with disabilities in nursing faci lities to receive services in integrated settings."
87. On July 13,2010, and July 27, 2010, Plaintiffs' counsel met with Defendant Fenty's designees, including Attorney General Peter Nickles, regarding Plaintiffs' May 7th letter. The Jul y 27th meeting also included designees of Defendant Baron.
88. Defendants have not resolved Plaintiffs' gri evances.
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CLASS ACTION ALLEGATIONS 89. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules o[Civi l Procedure, and
Local Rule 23.1, the Named Plaintiffs bring this action for prospective relief on behalf of
themselves and all other persons simi larly situated.
90. The proposed class consists of:
All those persons who (1) have a disability; (2) receive services in nursing fac ili ties located in the District of Columbia or funded by Defendants at any time during the pendency of this litigation; (3) cou ld live in the community
with appropriate supports and services from Defendants; and
(4) prefer to live in the community rather than in nursing faci lities. 91. Numerosity: The Plaintiff class is so numerous that joinder of all its members is
impracticable. The exact number of individuals in the class is not known but is believed to be
between 500 and 2,900 individuals,
92. Joinder is also impracticable because class members lack the knowledge and
financia l means to maintain individual actions,
93. Commonality: There are questions of law or fact that are common to all the
Named Plaintiffs, as we ll as to all class members, including:
a, Whether Defendants violate the integration mandate of Title II of the ADA and Section 504 of the Rehabilitation Act by requiring Named Plaintiffs and class members to be confined to nursing facilities in order to receive long-term care services, rather than provid ing those services in more integrated, community-based settings;
b, Whether Defendants admin ister their services, programs, and activities in the most integrated setting appropriate to the needs of individuals with disabilities residing in nursing facilities;
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c. Whether Defendants fail to offer sufficient di scharge planning to enable individuals with disabilities residing in nursing facilities to be served in more integrated, community.based setti ngs;

d. Whether Defendants fail to develop, fund, and effectively utili ze ex isti ng community-based programs so that individuals with disabilities residing in nursing faci lities may be placed in more integrated, community·based settings;

e. Whether Defendants fa il to establish and implement a comprehensive, effective working plan to place indi viduals with disabilities who reside in nursing fac ilities into more integrated, community·based settings;

f.

Whether Defendants fail to effectively administer and implement federal

programs such as Medicaid waivers and Money Follows the Person to

afford access to communi ty-based programs by people with disabi lities in

nursing homes; and

g. Whether Defendants fail to effectively inform and provide Plaintiffs with meaningful choices of community-based long·term care alternatives to nursi ng faci lities.

94. Tvpicality: The clai ms of the Named Plaintiffs are typical of the claims of the

class as a whole in that both the Named Plaintiffs and the class members currentl y are

U1mecessarily isolated in nursing fac ilities located in or funded by the District of Columbia; they

could live in more integrated settings with appropriate health care, personal care, and residential

support services; and they desire to live in more integrated, community·based settings.

95. Named Plaintiffs' claims that Defendants have fai led to administer the District's

mental health and long-term Medicaid programs to provide services in the most integrated

setting approp riate to their needs are typical of the claims of the class.

96. Adequate representation: The Named Plaintiffs will fairly represent and

adequately protect the interests of members of the class as a whole because they suffer from

deprivations identical to those of the class members and have been denied the same federal ri ghts

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that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and the actions of the Defendants to deprive them of their rights. The Named Plaintiffs' interests are consistent with and are not antagonistic to those of other class members. By filing this action, the Named Plaintiffs express their interest in vindicating their rights, as well as the rights of others who are similarly situated. The relief sought by the Named Plaintiffs will inure to the benefit of members of the class generally. The Named Plaintiffs are represented by counsel who are ski ll ed and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation.
97. Defendants have acted or refused to act on grounds generally applicable to the class by unnecessarily segregating class members, thereby making final injunctive relief appropriate with respect to the class as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. For example, Defendants have failed to inform class members of their right to community services and failed to provide them with services in the most integrated setting appropriate to their needs. Although the specific disabilities of the class members vary, they also share a common need for Medicaid and locally~funded services.
98. A class action is superior to individual lawsuits for resolving this controversy. Declaratory and injunctive relief with respect to the entire class is appropriate.
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COUNT I AMERICANS WITH DISABILITIES ACT 99. Paragraphs 1 through 98 are incorporated by reference. 100. Each Named Plaintiff and class member is an "individual with a disability" within the meaning of the ADA in that they have disabilities that substantially limit one or more maj or life activiti es, such as self-care and social interaction. They also have a history of such impairments and are regarded by Defendants as having such impairments. 10 1. Each Named Plaintiff and class member is a "[qJualified individual with a disability" within the meaning of the ADA, 42 U.S.c. § 12 13 1(2), because he or she is qualified to participate in Defendants' more integrated, community-based programs and services. 102 . Defendants are directly responsible for the operation of public entities covered by Title II of the ADA . 42 U.S.C. §§ 12 13 1(1 )(A) & (8). As such, the ADA prohibits them from discriminating against individuals with disabilities in their programs and services. See 42
U.s.c. §§ 12131 and 12132.
103. Regulations implementing Title II of the ADA require that a public entity administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 35. 130(d).
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104. The ADA's implementing regulations further provide: A public entity may not, directly or through contractual or other arrangements, utili ze criteria or [other] methods of administration: (i) that have the effect of subjecting qualifi ed individuals with disabilities to discri mination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substant ially impairing acco mplishment of the objectives of the public entity's program with respect to individuals with disabilities.
28 C.F.R. § 35.130(b)(3). 105. Defendants have caused the Named Plainti ffs and class members to be confined
unnecessarily in nursing facilities in order to obtain long-term care services, rather than faci litate their transition to the community with appropriate services and supports.
106. Defendants' actions violate Ti tle II of the ADA.
COUNT II Section 504 of the Rehabilitation Act 107. Paragraphs I through 106 are incorporated by reference. 108 . Section 504 ofthe Rehabilitation Act states that "[n] o otherwise qualified individual with a disability .. . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). 109. Defendant District of Columbia and its governm ental agencies receive federal finan cial assistance within the meaning of Section 504. 110. Each Named Plaintiff and class member is an "individual with a disability" within the meani ng of Section 504 because they have disabilities that substantially limit one or more
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 26 of 28
major life activities, such as self-care, transferring to and from wheelchairs, and social interaction. They also have such impairments and are regarded by Defendants as having such impairments.
III. Each Named Plaintiff and class member is a "qualified person with disabilities" within the meaning of Section 504 because he or she is qualified to participate in Defendants' more integrated, community-based programs and services.
11 2. Regulations implementing Section 504 require that a public entity adm ini ster its services, programs, and activities in "the most integrated setti ng appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
11 3. Regulations implementing Section 504 prohibit recipients of federal financial assistance from:
[U]tiliz[ing] criteria or methods of administration ... (i) that have the effect of subj ecting qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have the purpose or effect of defeating or substantially impairing accompli shment of the obj ectives of the recipient ' s program with respect to handicapped persons. 45 C. F.R. § 84.4(b)(4); 28 C.F.R. § 41.5 I(b)(3)(i). 114. Defendants' actions violate Section 504 of the Rehabil itation Act.
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REQUEST FOR RELIEF WHEREFORE, Named Plaintiffs and class members respectfully request that this Court:
a. Certify this action as a class action; b. Declare that Defendants' failure to provide Named Plaintiffs and class
members with services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act; c. Declare that Defendants' failure to provide Named Plaintiffs and class members with services in the most integrated setting appropriate to their needs violates Section 504 of the Rehabilitation Act; d. Enter a permanent injunction requiring Defendants to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs; e. Award Named Plaintiffs and class members their reasonable attorneys' fees, litigation expenses, and costs; and f. Grant such other relief as this Court deems just and proper.
(SIGNATURE BLOCK ON FOLLOWING PAGE]
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Case 1:10-cv-02250-ESH Document 1 Filed 12/23/10 Page 28 of 28

Dated: December 23, 2010

Respectfull y submitted,
-fJ
arjorie Rifkin , D.C . Bar No. Jennifer Lav, D.C. Bar No. 499293 mrifkin@uls-dc.org jlav@uls-dc.org University Legal Services- Protection & Advocacy 220 I Street NE # 130 Washington, DC 20002
(202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org Bvignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424
Barbara Wahl , D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider. brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue , NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395
COllJlsel for Plaintiffs

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 Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD DAY, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA, et al., Defendants.

Case No. 1:10-cv-02250-ESH Judge Ellen Segal Huvelle

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

I.

INTRODUCTION

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because

this litigation implicates the proper interpretation and application of title II of the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. (―ADA‖). In particular, this case involves title II‘s

integration mandate, 28 C.F.R. § 35.130(d). See Olmstead v. L.C., 527 U.S. 581, 607 (1999).

The Department of Justice has authority to enforce title II, and to issue regulations implementing

the statute. 42 U.S.C. §§ 12133-34. The United States therefore has a strong interest in the

resolution of this matter.

This lawsuit alleges that the District of Columbia (―District‖) administers its program of

long-term care services for persons with disabilities in a manner that unnecessarily confines them

to segregated nursing facilities. (First Amended Complaint (―Compl.‖) at ¶¶ 82, 84, 99, 101,

ECF No. 17, March 30, 2011.) The District continues to fund costly, unnecessary institutional

1 Under 28 U.S.C. § 517, ―[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.‖

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 2 of 23
placements in violation of the integration mandate of title II of the ADA, as interpreted by the Supreme Court in the Olmstead decision, when it could provide appropriate community-based services and supports at the same or even lower cost. (Compl. at ¶¶ 3-4, 6-9, 50, 55, 76, 79-80, 106-112.)
The United States respectfully urges this Court to deny the Defendants‘ Motion to Dismiss, or in the Alternative, for Summary Judgment. First, a public entity‘s financing and administration of its long-term care system can constitute a violation of title II. Second, a determination by the public entity‘s treatment professionals regarding the appropriateness of community placement is one method of establishing this element of an Olmstead claim, but is not the only way to do so. Third, in order to prevail on a fundamental alteration defense, a public entity must demonstrate that it has a comprehensive, effectively working plan for placing qualified persons with disabilities in integrated community settings and that the relief requested would fundamentally alter that plan or the entity‘s programs.
II. STATUTORY AND REGULATORY BACKGROUND Congress enacted the ADA ―to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities.‖ 42 U.S.C. § 12101(b)(1). It found that ―hisotrically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.‖ 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
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42 U.S.C. § 12132. As directed by Congress, the Attorney General issued regulations implementing title II,
which are based on regulations issued under section 504 of the Rehabilitation Act of 1973.2 See
42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Exec. Order 12250, 45 Fed. Reg. 72995 (1980),
reprinted in 42 U.S.C. § 2000d-1. The title II regulations require public entities to ―daminister
services, programs, and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.‖ 28 C.F.R. § 35.130(d). The preamble discussion of the
―integration regulation‖ explains that ―themost integrated setting‖ is one that ―neables individuals
with disabilities to interact with nondisabled persons to the fullest extent possible . . . .‖ 28 C.F.R.
Pt. 35, App. B at 673 (2011). This integration mandate advances one of the principal purposes of
title II of the ADA—ending the isolation and segregation of persons with disabilities. See
Olmstead, 527 U.S. at 588-89 (citing 42 U.S.C. §§ 12101(a)(2), (3), (5)).
Twelve years ago, the Supreme Court applied these authorities and held that title II
prohibits the unjustified segregation of individuals with disabilities. Olmstead, 527 U.S. at 597.
The Court held that public entities are required to provide community-based services for persons
with disabilities when: 1) such services are appropriate; 2) the affected persons do not oppose
such services; and 3) the community-based placement can be reasonably accommodated, taking
2 Section 504, like title II, prohibits disability-based discrimination. 29 U.S.C. § 794(a) (―No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .‖). In all ways relevant to this discussion, the ADA and Section 504 of the Rehabilitation Act are generally construed to impose similar requirements. See, e.g., Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1261 n.2 (D.C. Cir. 2008); Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999). This principle follows from the similar language employed in the two acts. It also derives from the Congressional directive that implementation and interpretation of the two acts ―becoordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same requirements under the two statutes.‖ Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-69 (4th Cir. 1999) (citing 42 U.S.C. § 12117(b)) (alteration in original).
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into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607.
The Court explained that this holding ―reflects two evident judgments.‖ Id. at 600. ―First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.‖ Id. ―Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.‖ Id. at 601. Olmstead thus clarifies that unnecessary institutionalization violates the ADA‘s integration mandate.
To comply with the integration requirement of title II of the ADA, a public entity must reasonably modify its policies, procedures, or practices when necessary to avoid discrimination, unless the public entity demonstrates that making the modifications would fundamentally alter the entity‘s programs or services. 28 C.F.R. § 35.130(b)(7); see also Olmstead, 527 U.S. at 60306.
III. SUMMARY OF FACTS A. The Plaintiffs
Each of the five named Plaintiffs (Bonita Jackson, Vietress Bacon, Roy Foreman, Edward Day, and Larry McDonald) is a person with a disability whose care in nursing facilities is or was funded by the District‘s Medicaid program. (Plaintiffs‘ Opposition to Defendants‘ Motion to Dismiss, or in the Alternative, for Summary Judgment (―Opp.‖) Ex. B, ¶¶ 2-4, ECF No. 28, Sept. 1, 2011; Opp. Ex. C, ¶¶ 3-5, 9; Opp. Ex. D, ¶¶ 2-3, 7-8; Opp. Ex. E, ¶¶ 3-4, 8-9; Opp. Ex. F, ¶¶ 3-4, 9.) Each named Plaintiff would prefer to live in the community and could do
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so with appropriate supports and services. (Opp. Ex. A, ¶ 16; Opp. Ex. B, ¶ 5; Opp. Ex. C, ¶¶ 11, 21; Opp. Ex. D, ¶¶ 10, 21; Opp. Ex. E, ¶¶ 11-13; Opp. Ex. F, ¶ 14.)
Bonita Jackson is 53 years old and lived at Washington Nursing Facility for more than four years. (Opp. Ex. B, ¶¶ 1-2.) She has depression and equilibrium problems that require her to use a walker for mobility. (Opp. Ex. B, ¶ 3.) She was very unhappy living in a nursing home, and spent more than two years informing nursing facility staff that she wanted to be discharged to live in the community. (Opp. Ex. B, ¶¶ 5-6.) She was finally discharged while the parties were briefing the District‘s Motion. (Opp. Ex. B, ¶ 10.)
Vietress Bacon is 47 years old and lived at Washington Nursing Facility for three years. (Opp. Ex. C, ¶¶ 1, 4.) She has a mobility impairment, brain injury, depression, and bipolar disorder. (Opp. Ex. C, ¶¶ 2, 5.) She has repeatedly told nursing facility staff that she wants to live in the community. (Opp. Ex. C, ¶ 11.) She would like to attend the church she used to go to routinely. (Opp. Ex. C, ¶ 8.) According to Plaintiffs‘ counsel, Ms. Bacon was discharged on September 13, 2011.
Roy Foreman is 66 years old and has lived at Washington Center for Aging Services for five years. (Opp. Ex. D, ¶¶ 1, 3.) He has diabetes, depression, orthopedic limitations that require him to use a wheelchair for mobility, and pressure ulcers. (Opp. Ex. D, ¶ 7.) He misses socializing with friends and family and attending football games. (Opp. Ex. D, ¶¶ 5-6.) Mr. Foreman is eager to leave the nursing facility and return to life in the community, and he has been trying to get out of the nursing facility since he was admitted. (Opp. Ex. D, ¶¶ 11, 14.)
Edward Day is a 76-year-old Air Force veteran who has lived at Unique Residential Care Center for five years. (Opp. Ex. E, ¶¶ 1-2, 4.) He has diabetes, seizures, kidney disease, depression, and anemia, and has had both of his legs amputated. (Opp. Ex. E, ¶ 8.) He wants to
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Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 6 of 23
get prostheses, leave the nursing facility, and return to the community. (Opp. Ex. E, ¶¶ 11-12.) He would like to be able to talk to his friends in private, outside of visiting hours. (Opp. Ex. E, ¶ 7.)
Larry McDonald is a 57-year-old Army veteran who has lived at Unique Residential Care Center for more than five years. (Opp. Ex. F, ¶¶ 1-2, 4.) He has a seizure disorder and mild dementia. (Opp. Ex. F, ¶ 9.) He wants to leave the nursing facility so that he can help his family, attend community events and family gatherings, and live near his siblings. (Opp. Ex. F, ¶¶ 7-8, 15.)
The individually named Plaintiffs seek to represent a class of similarly situated individuals who 1) have a disability; 2) receive services in nursing facilities located in the District of Columbia or funded by Defendants; 3) could live in the community with appropriate supports and services; and 4) prefer to live in the community rather than in nursing facilities. (First Amended Complaint (―Compl.‖) at ¶ 96, ECF No. 17, March 30, 2011.) The putative class includes between 500 and 2,900 members. (Compl. at ¶ 97.)
B. The District of Columbia’s Long Term Care System The District‘s long term care system includes institutional care such as nursing facilities, as well as community-based services. The District‘s Medicaid state plan funds nursing facility care.3 There are nineteen nursing facilities in the District of Columbia, two of which are owned by the District. (Defendants‘ Motion to Dismiss, or in the Alternative, for Summary Judgment
3 D.C. Department of Health Care Finance, State Plan Under Title XIX of the Social Security Act, Section 3.1, Attachment 3.1A at 2, ¶ 4a; Attachment 3.1B at 1, ¶ 4, available at http://dhcf.dc.gov/dhcf/cwp/view,A,1413,Q,609171.asp (last visited Sept. 19, 2011). Medicaid is a medical assistance program cooperatively funded by the federal and state governments. See 42 U.S.C. § 1396 et seq.; Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985).
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(―Motion‖), Ex. 5, ¶ 6, ECF No. 19, Apr. 27, 2011; Ex. AA, 96:18-97:4; Opp. Ex. I, ¶ 8.4) According to the most recent data reported by the Centers for Medicare and Medicaid Services (―CMS‖), 2,516 people lived in nursing facilities in the District in the third quarter of 2010,5 and 70.5% of these individuals had their nursing facility care funded by Medicaid.6 The District also funds out-of-state nursing facility placements for approximately 200 individuals. (Opp. Ex. G, 118:9-119:1.)
The District provides community-based services for individuals with disabilities, including services through its Medicaid state plan and the Medicaid Home and Community Based Services Waiver Program for the Elderly and Physically Disabled (―EPD Waiver‖). Through its Medicaid state plan, the District provides community-based services, including home health services, physical and occupational therapy, skilled nursing services, case management, assertive community treatment, crisis intervention, and personal care services for assistance with activities of daily living. (Opp. Ex. G, 69:2-21; Ex. BB, 70:1-11; Opp. Ex. H, 18:18-21:18; Ex. CC, 17:11-19:19, 29:2-30:12, 33:20-35:4, 36:6-18; Opp. Ex. L, 39:18-40:4.)
Through the EPD Waiver, the District provides community-based services to some Medicaid recipients who would otherwise be eligible to receive care in nursing facilities. See Motion Ex. 4; 42 U.S.C. §§ 1396n(c), 1396n(d). For a waiver to be approved by CMS, it must
4 Exhibits referred to by numbers were filed with the District‘s Motion. Exhibits referred to by single letters were filed with Plaintiffs‘ Opposition. Exhibits referred to by double letters were filed with this Statement of Interest. 5 CMS, MDS Active Resident Count Report: Sept. 30, 2010, http://www.cms.gov/ MDSPubQIandResRep/04_activeresreport.asp?isSubmitted=rescnt&date=32 (last modified May 2, 2011). 6 CMS, MDS Active Resident Information: Third Quarter 2010, A7a: Identification and Background Information - Current Payment Sources for N.H. Stay - Medicaid per diem, http://www.cms.gov/MDSPubQIandResRep/04_activeresreport.asp?isSubmitted=res3&var=A7a &date=32 (last modified May 2, 2011).
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be cost-neutral, meaning that it costs the same amount of money or less to provide the waiver services in the community than it would to provide services in an institution. (Motion Ex. 2, ¶ 9; Opp. Ex. M, 53:19-54:14.) Participants in the EPD Waiver can receive up to sixteen hours of personal care assistance per day, as well as homemaker services, chore aide services, case management, and other services. (Motion Ex. 2, ¶ 5; Opp. Ex. H, 21:19-23:5, 134:1-20; Opp. Ex. DD, 133:19-21.) The waiver is approaching capacity, and the District has announced its intention to establish a waiting list instead of increasing the capacity of the waiver to serve more individuals. (Ex. G, 63:4-16, 67:2-68:6; 58 D.C. Reg. 7592 (Aug. 19, 2011).) No slots in the waiver are set aside for individuals transitioning out of nursing facilities, and individuals in nursing facilities will not be given priority on the waiver waiting list. (Opp. Ex. G, 54:12-56:18; 58 D.C. Reg. 7592 (Aug. 19, 2011).)
The District receives additional funding through the federal Money Follows the Person Rebalancing Demonstration Program (―MFP‖) to transition individuals from institutions to the community. MFP provides enhanced federal funding to assist states in transitioning currently institutionalized individuals into the community. See 42 U.S.C. 1396a, Pub. L. 109-171, tit. VI, § 6071, 120 Stat. 102 (Feb. 8, 2006). Under the program, the federal government reimburses at least 85% of the District‘s costs for providing the first year of community-based services to individuals with disabilities who transition from institutions. (Motion Ex. 3, ¶ 5; Opp. Ex. H, 51:14-53:3.) CMS authorized $26,377,620 in MFP funds to facilitate these transitions. (Opp. Ex. H, 14:18-15:18.)
IV. ARGUMENT To survive a motion to dismiss, a complaint must state a plausible claim for relief,
contain a short and plain statement of the claim showing that the pleader is entitled to relief, and
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give the defendant fair notice of what the claim is and the grounds upon which it rests. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir. 2008); Dean v. Walker, 756 F. Supp. 2d 100, 102 (D.D.C. 2010). The plaintiff is granted the benefit of all inferences that can be derived from the facts alleged in the complaint. Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). A motion for summary judgment should only be granted if ―there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‖ FED. R. CIV. P. 56(a); see Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 49-50 (D.C. Cir. 2011). Because the Plaintiffs have stated a plausible claim for relief, there are genuine disputes as to material facts, and the District is not entitled to judgment as a matter of law, the District‘s Motion to Dismiss, or in the Alternative, for Summary Judgment should be denied.
A. A Public Entity Can Violate the Integration Mandate Through Its Funding and Administration of Programs and Services.
The District incorrectly argues that it only violates the ADA‘s integration mandate if it directly places individuals with disabilities in nursing facilities. (Motion at 10-11.) To the contrary, a public entity violates the integration mandate when it finances the segregation of individuals with disabilities in public or private facilities or promotes the segregation of individuals with disabilities in such facilities through its planning, system design, funding choices, or service implementation. See 28 C.F.R. § 35.130(b)(3)(i) (stating that a public entity may not ―dierctly or through contractual or other arrangements, utilize criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability‖); Disability Advocates, Inc. v. Paterson (DAI I), 598 F. Supp. 2d 289, 316-19 (E.D.N.Y. 2009) (finding that the defendants‘ planning, funding, and administration of a service system was sufficient to support an Olmstead claim and rejecting the argument that public entities could not be held liable when services were provided in privately-
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operated facilities); Martin v. Taft, 222 F. Supp. 2d 940, 981 (S.D. Ohio 2002) (finding that liability does not depend on whether the public entity owns or runs institutional settings).
Courts have consistently applied title II‘s integration mandate in cases brought by individuals unnecessarily institutionalized in private nursing homes. See, e.g., Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266, 276-277 (D. Conn. 2010) (denying motion to dismiss although plaintiffs resided in privately-operated nursing homes); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 286-87, 293 (E.D.N.Y. 2008) (denying motion to dismiss where defendant funded nursing home placements); Long v. Benson, No. 4:08cv26RH/WCS, 2008 WL 4571904, at *3 (N.D. Fla. Oct. 14, 2008) (certifying class of Medicaideligible individuals who resided in nursing homes that receive Medicaid funding); Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597, at *1, *10 (N.D. Ill. Sept. 29, 2008) (granting motion for class certification when plaintiffs were housed in private nursing facilities that received state and federal funding); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (finding it immaterial to a motion to dismiss that plaintiffs resided in private nursing facilities).
B. There Are Many Ways to Establish That Community Placement Is Appropriate for an Individual.
As part of an Olmstead case, an individual must show that community placement is ―appropriate‖ for his or her needs. 527 U.S. at 607. The District argues that Plaintiffs‘ claim should be dismissed because ―Plaintiffs . . . have failed to allege that the District has determined community-based services are appropriate for their needs.‖ (Motion at 11.) The District further, and incorrectly, states that, ―i[]f Plaintiffs expect the District to fund their community-based services, Plaintiffs are subject to the District‘s determination of whether or not such services are appropriate to meet their needs.‖ (Motion at 11-12.) Contrary to Defendants‘ assertions, the Plaintiffs are not required to allege that the District has determined that community placement is
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appropriate in order to plead or prove an Olmstead claim. Nothing in the ADA or its implementing regulations requires an individual to show a
determination by a state treatment professional as to whether community care is appropriate. An individual may rely on a variety of evidence to establish the appropriateness of an integrated setting, and a reasonable, objective assessment by a public entity‘s treatment professional is only one way of doing so. See Joseph S. v. Hogan, 561 F. Supp. 2d 280, 290-91 (E.D.N.Y. 2008) (rejecting the argument that the state‘s treatment professionals must be the ones to make an appropriateness determination). If the District were correct in its interpretation of the law, a public entity would be able to indefinitely retain individuals with disabilities in institutions by either failing to evaluate them for community placement or by refusing to recommend community placement. Allowing the public entity to hold ultimate control over individuals‘ rights would contradict the spirit and purpose of the Olmstead decision and the ADA.7 See, e.g., Disability Advocates, Inc. v. Paterson (DAI II), 653 F. Supp. 2d 184, 258-59 (E.D.N.Y. 2009) (finding that plaintiffs need not provide determinations from state treatment professional to demonstrate that they are qualified for community placement and noting that holding otherwise would ―eviscerate the integration mandate‖); Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (noting that the right to receive services in the community would become illusory if the state could deny the right by refusing to acknowledge the appropriateness of community placement); Frederick L. v. Dep’t of Pub. Welfare, 157 F. 7 Olmstead‘s statements on this issue do not mandate a different result. See 527 U.S. at 602, 607 (noting that ―the State generally may rely on the reasonable assessments of its own professionals‖ in determining whether community placement is appropriate and stating that community-based treatment is required when ―the State‘s treatment professionals determine that such placement is appropriate‖). The Olmstead Court did not need to address this issue because, as it noted, in that case the State‘s treatment professionals had already determined that community placement would be appropriate for the plaintiffs. Id. at 602-03. Thus, the Court in Olmstead simply acknowledged one set of facts, but did not establish a legal standard that was confined solely to those facts.
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Supp. 2d 509, 540 (E.D. Pa. 2001) (finding that states cannot avoid the integration mandate by failing to make recommendations for community placement).
The District incorrectly relies on Boyd v. Steckel, 753 F. Supp. 2d 1163 (M.D. Ala. 2010), to assert that, as a matter of law, only a public entity‘s treatment professional can determine appropriateness for community services. (Motion at 11-12.) In fact, the District Court for the Middle District of Alabama considered the plaintiff‘s own declaration regarding his appropriateness for community placement, as well as an affidavit by the State‘s treatment professional to the contrary. Boyd, 753 F. Supp. 2d at 1173-74. The court did not hold that only a public entity‘s treatment professional may opine as to whether community placement is appropriate, but rather found that the plaintiff had not met the high burden necessary to obtain a preliminary injunction. Id. at 1168-69, 1174.
C. To Defeat an Olmstead Claim, A Public Entity Must Demonstrate that the Relief Requested Would Be a Fundamental Alteration.
Under title II of the ADA, public entities must make reasonable modifications to programs, services, or activities when necessary to prevent discrimination on the basis of disability, unless they are able to demonstrate that those modifications would be a fundamental alteration. 28 C.F.R. § 35.130(b)(7). This is also true in the Olmstead context. 527 U.S. at 59697, 603-06; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 379-80 (3d Cir. 2005). It is the defendants‘ burden to demonstrate that the requested relief would fundamentally alter its system of services. Olmstead, 527 U.S. at 603-06; Frederick L. v. Dep’t of Pub. Welfare (Frederick L. I), 364 F.3d 487, 492 n.4 (3d Cir. 2004).
A public entity can establish that the relief requested on an Olmstead claim would be a fundamental alteration by demonstrating that it has a ―comprehensive, effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list
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that move[s] at a reasonable pace not controlled by the State‘s endeavors to keep its institutions
fully populated.‖ 527 U.S. at 605-06. The defense is only applicable when the requested relief
would so disrupt the orderly implementation of a comprehensive, effectively working Olmstead
plan as to cause a fundamental alteration of that plan.8 See 28 C.F.R. 35.130(b)(7); Olmstead,
527 U.S. at 605-06.
A public entity can also assert a fundamental alteration defense if ―in the allocation of
available resources, immediate relief would be inequitable, given the responsibility the State has
undertaken for the care and treatment of a large and diverse population of persons with . . .
disabilities.‖ Olmstead, 527 U.S. at 604. Public entities may not avail themselves of this defense
unless they can first demonstrate that they have a comprehensive, effectively working plan to
comply with the Olmstead mandate. See, e.g., Frederick L. v. Dep’t of Pub. Welfare of Pa.
(Frederick L. II), 422 F.3d 151, 157 (3d Cir. 2005); Sanchez v. Johnson, 416 F.3d 1051, 1067-68
(9th Cir. 2005); Pa. Prot. & Advocacy, Inc., 402 F.3d at 381-82.
8The District appears to argue that a comprehensive, effectively working plan is the sole requirement it must meet to comply with Olmstead. Motion at 13. This is incorrect. Olmstead’s central holding is that unnecessary institutionalization violates the ADA. Olmstead, 527 U.S. at 597. The Court made clear that a comprehensive, effectively working plan does not constitute a public entity‘s integration obligation; rather, it enables an entity to establish a fundamental alteration defense. Olmstead, 527 U.S. at 605-06 (linking this language to the fundamental alteration defense and noting that if this standard is met, a court would have no warrant to order injunctive relief); see also Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 619-20 (9th Cir. 2005) (noting that state must demonstrate that remedy would constitute a fundamental alteration); Sanchez v. Johnson, 416 F.3d 1051, 1063-64 (9th Cir. 2005) (describing a comprehensive, effectively working plan as a state defense); Pa. Prot. & Advocacy, Inc., 402 F.3d at 381-82 (noting that agency must establish fundamental alteration defense); Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004) (providing the state the opportunity to show that relief would be a fundamental alteration); Frederick L. I, 364 F.3d at 492 & n.4 (noting that the defendant has the burden of establishing a fundamental alteration defense); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003) (stating that fundamental alteration can serve as a defense to the requirements of the integration regulation); Pitts v. Greenstein, No. 10– 635–JJB-SR, 2011 WL 1897552, at *3 (M.D. La. May 18, 2011) (state can satisfy its obligations by demonstrating that it has a comprehensive, effectively working plan); Haddad v. Dudek, No. 3:10-cv-414-J-34TEM, 2011 WL 1892322, at *15 (M.D. Fla. March 16, 2011) (characterizing a comprehensive, effectively working plan as the defendants‘ affirmative defense).
13

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 14 of 23
1. To Successfully Assert a Fundamental Alteration Defense, a Public Entity Must Have a Comprehensive, Effectively Working Plan.
There are unresolved questions of fact about whether the District even has an Olmstead plan,9 or if it does, whether this plan constitutes a ―comprehensive, effectively working plan,‖ as
required by Olmstead. While the Court of Appeals for the District of Columbia Circuit has not
had the occasion to enunciate what constitutes a comprehensive, effectively working plan, the
District has not established, as a matter of law, that its plan meets the standard of either of the
circuit courts that have considered this issue. The Third Circuit has properly required a public
entity to prove that it has developed and is implementing an Olmstead plan that demonstrates a
specific and measurable commitment to action by the public entity, including goals, benchmarks, and timeframes for which the entity can be held accountable.10 Frederick L. II, 422 F.3d at 156-
59. The Third Circuit has also rejected a public entity‘s vague, general assurances and good faith
intentions of future community placement because such assurances may change, and has
properly found that past progress in deinstitutionalization alone is insufficient to establish a
comprehensive, effectively working Olmstead plan. Id.; Frederick L. I, 364 F.3d at 499-501; Pa.
Prot. & Advocacy, Inc., 402 F.3d at 383-85. Although the Ninth Circuit, incorrectly in the
9 Twelve years after the Olmstead decision, the District of Columbia has never finalized a written Olmstead plan, and is no longer even having interagency meetings to attempt to do so. (Opp. Ex. H, 213:19-214:8.) It is not clear that what the District of Columbia has done is sufficient to be considered an Olmstead plan at all. However, for purposes of this Statement, the United States will refer to the District‘s inchoate efforts as an Olmstead plan. 10The Third Circuit held that:
a viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. Frederick L. II, 422 F.3d at 160.
14

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 15 of 23
Department‘s view,11 has not required public entities‘ Olmstead plans to include the same level
of specificity, jurisdictions must still be able to show a past successful record of
deinstitutionalization and other evidence of their ongoing commitment to integration. Arc of
Wash. State, Inc. v. Braddock, 427 F.3d 615, 619-21 (9th Cir. 2005); Sanchez, 416 F.3d at 1067-
68.
The District has not demonstrated, as a matter of law, that it has a comprehensive,
effectively working Olmstead plan that can support a fundamental alteration defense because
questions of fact remain about whether: 1) the District‘s systems for transitioning individuals
with disabilities out of nursing facilities are effectively working; 2) its plan has specific
timeframes, concrete and reliable commitments, or measurable goals for which it may be held
accountable; and 3) it has demonstrated success in actually moving individuals with disabilities
to integrated settings.
a) A Comprehensive, Effectively Working Plan Includes Effectively Working Systems for Achieving Successful Transitions.
The testimony of the District‘s own representatives raises questions of fact about whether
its systems for transitioning individuals with disabilities out of nursing facilities are effectively
11 The Department of Justice, pursuant to a Congressional mandate, promulgated the title II integration regulation at issue. 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Exec. Order No. 12250, 45 Fed. Reg. 72995 (Nov. 2, 1980), reprinted in 42 U.S.C. § 2000d-1. As such, its interpretation of its own regulation is entitled to substantial deference. See Olmstead, 527 U.S. at 597-98 (Justice Department‘s views warrant respect because it is the agency directed by Congress to issue regulations implementing title II of the ADA); Bragdon v. Abbott, 524 U.S. 624, 642, 646 (1998) (granting the Justice Department‘s views on the ADA deference because ―hte well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance‖); Auer v. Robbins, 519 U.S. 452, 461 (1997) (agency‘s interpretation of its regulations ―ocntrolling unless plainly erroneous or inconsistent with the regulation‖); Fiedler v. Am. Multi-Cinema, Inc., 871 F. Supp. 35, 39 (D.D.C. 1994) (as ―the author of the [ADA] regulation, the Department of Justice is also the principal arbiter as to its meaning‖).
15

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 16 of 23
working. The director of the District‘s only program to assist individuals seeking to leave nursing facilities (Opp. Ex. G, 42:16-21, 127:8-12) stated, ―I think we need to consider if there‘s a systemic mechanism by which people transition, and I would say the answer is no.‖ (Opp. Ex. H, 86:7-11.)
Furthermore, the District‘s Medicaid agency has refused to allow any additional transitions beyond the 27 that are currently planned because, according to the agency‘s own assessment, there is not an appropriate mechanism in place to assist individuals with establishing community living arrangements. (Ex. DD, 64:16-65:21; Opp. Ex. H, 66:1-19, 232:1-20.) Plaintiffs have submitted evidence indicating that the District‘s Medicaid agency lacks policies, procedures, or guidance for transitioning people from nursing homes into the community. (Opp. Ex. G, 45:13-16.) Plaintiffs also submitted evidence raising disputes of fact about whether there is a comprehensive process for assessing individuals in nursing facilities for community placement – even when these individuals affirmatively contact the District (Ex. DD, 64:1965:17, 81:5-21; Opp. Ex. H, 82:1-12; 97:7-98:10; 231:17-233:3) – and whether the District is monitoring nursing facilities to ensure that they properly identify and assist individuals with community placement. (Opp. Ex. H, 86:14-21). Though the District has several lists of individuals who expressed an interest in leaving nursing facilities, or were identified by nursing facilities as ideal candidates for transition, the Plaintiffs have submitted evidence suggesting that the District is not working to transition these individuals. (Opp. Ex. H, 96:4-11, 97:2-99:5.)
Plaintiffs‘ evidence concerning Bonita Jackson‘s transition also raises material disputes of fact about the effectiveness of the District‘s systems for transitioning individuals out of nursing facilities. Plaintiff Jackson, who the District counts as one of its ―successful‖ transitions, was discharged from Washington Nursing Facility on June 13, 2011, during the
16

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 17 of 23
briefing of this Motion. (Opp. Ex. B, ¶ 10.) Her case manager reportedly did not even know she was being discharged. (Opp. Ex. B, ¶ 9.) She had no money. (Opp. Ex. B, ¶ 12.) Her apartment was not furnished. (Opp. Ex. B, ¶ 16.) Her medications were placed in one unmarked bag, and she was not given dosage instructions. (Opp. Ex. B, ¶¶ 11, 14, 18.) For five days following her discharge, Ms. Jackson did not have the home health care services she needed for bathing, meal preparation, housekeeping, and medication management. (Opp. Ex. B, ¶¶ 3, 4, 9, 13.)
Plaintiffs‘ evidence concerning Plaintiffs Roy Foreman and Vietress Bacon‘s attempts to transition from nursing facilities into the community raises additional questions of fact about the effectiveness of the District‘s systems. With the D.C. Housing Authority‘s help, Plaintiff Roy Foreman was able to secure wheelchair accessible public housing, and he signed a lease for his own apartment in March 2011. (Opp. Ex. D, ¶¶ 12-13.) He requested assistance from both the District‘s Aging and Disability Resource Center and his social worker at Washington Center for Aging Services, which is owned by the District (Opp. Ex. I, ¶ 8), in finding home health services to help him with transferring into his wheelchair, bathing, dressing, and toileting. (Opp. Ex. D, ¶¶ 8-9, 11, 16.) Mr. Foreman‘s social worker terminated his lease instead of assisting him to access the personal care assistance services he needed to live in the apartment he had already obtained. (Opp. Ex. D, ¶ 17.) As of August 16, 2011, he was still living in the nursing facility. (Opp. Ex. D, ¶ 3.) Plaintiff Vietress Bacon‘s discharge from Washington Nursing Facility was scheduled for July 1, 2011. (Opp. Ex. C, ¶¶ 4, 14.) She is one of the few participants in MFP, and was able to secure a wheelchair accessible apartment and sign a lease. (Opp. Ex. C, ¶ 13.) However, her discharge was postponed because District case managers and program coordinators did not complete and process her applications for needed home health services. (Opp. Ex. C,
17

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 18 of 23
¶¶ 14-17.) As of August 29, 2011, she was still living in the nursing facility (Opp. Ex. C, ¶ 12.), though she appears to have been discharged on September 13, 2011.
Finally, the District asserts that it has a comprehensive, effectively working Olmstead plan because some individuals could receive services in the community through the MFP and EPD Waiver programs. (Motion at 16-21.) However, the mere existence of some communitybased programs does not demonstrate, as a matter of law, that the District has a comprehensive, effectively working plan to ensure that individuals with disabilities receive services in the most integrated setting appropriate for their needs. To the contrary, the existence of these programs, as well as the fact that the District already provides the services in the community that individuals would need once they transition, indicate that the requested relief would not fundamentally alter the District‘s programs.
b) A Comprehensive, Effectively Working Plan Must Include Meaningful Transition Goals for Which a Public Entity May Be Held Accountable.
Because the District has no consistent, measurable benchmarks for nursing home transitions for which it may be held accountable, questions of fact persist regarding whether it has a comprehensive, effectively working Olmstead plan. See Frederick L. II, 422 F.3d at 15657. In the Frederick L. cases, the court refused to allow the fundamental alteration defense in situations involving transition goals that were more concrete than the District of Columbia‘s. In Frederick L. I, the State of Pennsylvania had planned 33 community placements for the next year, but the court found that this fell ―far short of the type of plan . . . the Court referred to in Olmstead‖ and did not provide sufficient assurance to the court that there would be ongoing progress toward community placement. 364 F.3d at 499-500. In Frederick L. II, the court again rejected the State‘s fundamental alteration defense where the State had set a vague goal of
18

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 19 of 23
closing up to 250 institutional beds per year. 422 F.3d at 157-58. The District‘s constantly shifting and decreasing benchmarks for transitioning individuals
with disabilities out of nursing facilities precludes a finding that, as a matter of law, it has a comprehensive, effectively working Olmstead plan. The District points to its MFP program as evidence that it has a comprehensive, effectively working Olmstead plan. (Motion at 17-21.) However, it is undisputed that the District‘s transition target for individuals with physical disabilities and mental illness under MFP keeps changing: first 960 individuals by the end of 2011, then 0, then 70, then 80, then 26, finally landing on 27. (Opp. Ex. H, 14:18-15:18 (target of 960), 43:15-20 (only transitioning people with intellectual and developmental disabilities), 34:16-20 (target of 30 in 2010 and 40 in 2011), 36:12-38:7 (target of 80 in 2011); Motion Ex. 3, ¶ 25 (target of 26 by September 2011), ¶ 28(a) (target of 80 by December 2011); Opp. Ex. H, 85:5-8 (target of 27 by December 2011).) Moreover, the District is in the process of lowering its benchmarks yet again, based on its ―histoyr of setting benchmarks [it] cannot attain‖ and its desire ―to set a target that [it] will achieve.‖ (Opp. Ex. H, 38:21-40:2.) The District‘s current best estimate of transitions is as amorphous and non-specific as the plan the Frederick L. court rejected. Compare Motion Ex. 3 ¶ 25 (―all pilot participants should be transitioned by September 2011 barring any unanticipated barriers‖) (emphasis added) with Frederick L. II, 422 F.3d at 158 (―The final plan substituted the more amorphous, i.e., non-specific, goal of closing ‗up to 250 [institutional] beds a year.‘‖).
Given the District‘s acknowledgments that it sets goals that it cannot attain, that these goals continue to shift, and that it is still in the process of formulating its latest target, the District‘s ―failure to articulate [its] commitment in the form of an adequately specific comprehensive plan for placing eligible patients in community-based programs by a target date
19

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 20 of 23
places the ‗fundamental alteration defense‘ beyond its reach.‖ See Frederick L. II at 158-59. c) A Comprehensive, Effectively Working Plan Includes Demonstrated Success in Transitioning Individuals Out of Nursing Facilities.
The Third Circuit and the Ninth Circuit both consider a jurisdiction‘s past progress in deinstitutionalization when evaluating whether a public entity has a comprehensive, effectively working Olmstead plan. Even when jurisdictions have demonstrated significant progress, the Third Circuit has correctly refused to allow the fundamental alteration defense, absent a detailed plan for the future. Frederick L. I, 364 F.3d at 490-91, 499-501 (over 400 new community placements in five years and an over 90% reduction in the state mental hospitals‘ population), Frederick L. II, 422 F.3d at 160 (describing necessary plan components). The court noted that that it was ―unrealistic (or unduly optimistic) [to] assum[e] past progress is a reliable prediction of future programs.‖ Frederick L. I, 364 F.3d at 500. Instead, there must be a ―plan for the future.‖ Id. Even under the Ninth Circuit standard, public entities must prove that they are ―genuinely and effectively in the process of deinstitutionalizing disabled persons ‗with an even hand‘‖ before they can assert the fundamental alteration defense. Arc of Wash. State, Inc., 427 F.3d at 619, 621-22 (quoting Olmstead, 527 U.S. at 605-06) (permitting Washington State to assert the defense when it had ―significantly reduced‖ the size of its institutionalized population, by 20% over seven years); accord Sanchez, 416 F.3d at 1067-68 (permitting California to assert the defense where it had a ―reasonable rate of deinstitutionalization,‖ with a 20% decrease in its institutional population over five years).
The District‘s minimal progress in transitioning persons with disabilities out of nursing facilities prevents its Olmstead plan from being considered a comprehensive, effectively working plan under either Circuit‘s standard. Even the cases in which the Ninth Circuit has permitted a
20

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 21 of 23
fundamental alteration defense involve significantly more progress than the District has demonstrated. The District does not dispute that there are at least 526 individuals with disabilities living in nursing facilities in the District of Columbia who do not object to community placement, and in fact would prefer to live in the community. (Compl. at ¶ 69; Opp. Ex. H, 32:5-33:16.) Yet, as of July 2011, the District had not moved a single individual with mental illness from a nursing home into the community. (Opp. Ex. L, 52:2-53:4.) And the District only transitioned a total of two individuals with physical disabilities out of nursing facilities into the community between 2007 and August 2011. (Opp. Ex. H, 67:3-68:10.) Considering the lowest possible number of persons with disabilities who wish to leave nursing facilities, the District had only transitioned 0.38% according to its plan at the time this Motion was filed. (Compl. ¶ 69 (District nursing facilities‘ reports show that 526 individuals would prefer to live in the community); Opp. Ex. H, 67:3-68:10 (two individuals with physical disabilities have been transitioned as of July 27, 2011).) Even taking into consideration the period before the District‘s plan was in place, the actual number of nursing home occupants in the District has dropped by just 45 individuals (1.7%) between 1995 and 2009. (Ex. BB, 158:8159:8.) Unlike California in Sanchez and Washington in Arc of Washington, the District has not significantly reduced its relevant institutionalized population.
2. A Public Entity Can Successfully Assert an Affirmative Defense if the Relief Requested Would Be So Inequitable Given Available Resources as to Cause a Fundamental Alteration of Its Programs.
Disputes of fact also remain about whether ―in the allocation of available resources, immediate relief for the plaintiffs would be inequitable . . . .‖ Olmstead, 527 U.S. at 604. The District‘s own calculations provide support for Plaintiffs‘ claim that providing services to the putative Plaintiff class in the community instead of in nursing facilities would not be so costly
21

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 22 of 23
that it would require a fundamental alteration of the District‘s programs. In order to receive approval for the EPD Waiver, the District was required to submit cost estimates to CMS demonstrating that it costs the same amount of money or less to provide the waiver services in the community than it would to provide services in an institution. (Motion Ex. 2, ¶ 9; Opp. Ex. M, 53:19-54:14.) The District estimates that it would save between $19,970 and $32,875 per person every year by providing services to an individual in the community instead of in a nursing facility. (Motion Ex. 4 at 172; see also Opp. Ex. M, 61:6-63:14 (explaining factors utilized in calculations); 63:15-19 (noting that it costs less money to provide services for recipients through the waiver program than to provide institutional care).) Because the District has not established, as a matter of law, that the relief requested would be so costly as to constitute a fundamental alteration of its service system, it is not entitled to summary judgment.
V. CONCLUSION For the reasons stated above, the Court should deny Defendants‘ Motion to Dismiss, or in
the Alternative, for Summary Judgment. With the Court‘s permission, counsel for the United States will be present and prepared to argue the present Statement at any upcoming hearings regarding the Motion, should such argument be helpful to the Court.
22

Case 1:10-cv-02250-ESH Document 32 Filed 10/03/11 Page 23 of 23

Dated: October 3, 2011

Respectfully submitted,

RONALD C. MACHEN, JR. United States Attorney
RUDOLPH CONTRERAS Chief, Civil Division
Office of the United States Attorney District of Columbia 555 4th Street, NW Washington, DC 20530 Telephone: (202) 252-7566 Facsimile: (202) 353-0121

THOMAS E. PEREZ Assistant Attorney General
ALISON N. BARKOFF Special Counsel for Olmstead Enforcement
Civil Rights Division
/s/ Joy Levin Welan ALLISON J. NICHOL, Chief KATHLEEN P. WOLFE, Acting Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief REGAN RUSH (D.C. Bar No. 980252) JOY LEVIN WELAN (D.C. Bar No. 978973) Trial Attorneys

Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 305-1894 Facsimile: (202) 305-9775 joy.welan@usdoj.gov Counsel for the United States

23

 
 Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 1 of 45

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________________

)

EDWARD DAY, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-cv-02250-ESH

)

DISTRICT OF COLUMBIA, et al.

)

)

Defendants.

)

)

_______________________________________)

DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Pursuant to the Fe deral Rules of Civil Pr ocedure 12(b)(6), Defendants the District of

Columbia, Vincent Gray in his of ficial capacity as Mayor of the District of Colum bia, Wayne

Turnage in his of ficial capacity as Directo r of the District of Colum bia Department of Health

Care Finance, and Stephen Baron in his of ficial capacity as Director of the District of Colum bia

Department of Mental Health, (collectively “D efendants” or the “Distric t”), hereby move to

dismiss Plaintiffs’ claims against the Distr ict and the i ndividually-named Plaintiffs. I n the

alternative, the District also mo ves for summary judgment on each of Plaintiffs’ claims under the

Federal Rules of Civil Procedure 56 and Local Civil Rule 7(h).

Plaintiffs allege in Count I of their First Amended Complaint (“Complaint”) that the District

has caused Plaintiffs and class me mbers to be conf ined in nursing homes in order to obtain long-

term services and, in doing so, has violated Title II of the Americans With Disabilities Act, 42 U.S.C

§§ 12132 et seq. (“ADA”). In Count II , Plaintiffs claim that, for the same reason, the District has

violated the Reha bilitation Act, 29 U.S.C. §§ 794 et seq.. These claims m ust be dism issed, or

summary judgment granted in favor of the District, for the following reasons:

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 2 of 45

 First, Plaintiffs have fail ed to allege any re lationship between themselves a nd the District that suggests the District’s actions either resulted in or otherwise affects their residence in a nursing facility.

 Second, even assuming that there is a relationship betwee n the Distri ct and Plai ntiffs’ continued residence in nursing facilities, Plaint iffs have not alleged that the District has determined community-based services are appropriate to meet their needs or that the cost of such care would be less than the cost of the care they receive in nursing facilities.

 Third, Plaintiffs’ claims against the i ndividually named defendants, in their official capacities only, are redundant of Plaintiffs’ claims against the District.

 Fourth, despite Plaintiffs’ attempts to suggest otherw ise, the Distr ict has instituted several comprehensive and effective programs that facilitate community-based care and transitions from nursing facilities to community-based care.

A statement of points and authorities, a statement of material facts as to which t here are no

genuine issues, and proposed orders are attached hereto.

Dated: April 27, 2011

Respectfully submitted,

IRVIN B. NATHAN Acting Attorney General for the District of Columbia

GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division

ELLEN A. EFROS Assistant Attorney General Chief, Equity Section I

/s/

Sarah A. Sulkowski

SARAH A. SULKOWSKI

Assistant Attorney General

Bar Number 493235

Suite 600 South

441 Fourth Street, N.W.

Washington, D.C. 20001

(202) 724-6627

(202) 730-1454 (fax)

E-mail: sarah.sulkowski@dc.gov

/s/ Melissa L. Baker MELISSA L. BAKER Assistant Attorney General Bar Number 499368
2

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 3 of 45 Suite 600 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 442-9887 (202) 730-1499 (fax) E-mail: melissa.baker@dc.gov
3

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 4 of 45

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________________

)

EDWARD DAY, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-cv-02250-ESH

)

DISTRICT OF COLUMBIA, et al.

)

)

Defendants.

)

)

_______________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Dated: April 27, 2011 /s/

Respectfully submitted,
IRVIN B. NATHAN Acting Attorney General for the District of Columbia
GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division
ELLEN A. EFROS Assistant Attorney General Chief, Equity Section I
Sarah A. Sulkowski SARAH A. SULKOWSKI Assistant Attorney General Bar Number 493235 Suite 600 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 724-6627 (202) 730-1454 (fax) E-mail: sarah.sulkowski@dc.gov
/s/ Melissa L. Baker

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 5 of 45 MELISSA L. BAKER Assistant Attorney General Bar Number 499368 Suite 600 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 442-9887 (202) 730-1499 (fax) E-mail: melissa.baker@dc.gov
2

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 6 of 45
TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………………….3 TABLE OF AUTHORITIES……………………………………………………………………....4 PRELIMINARY STATEMENT……………………………………………………………………6 ARGUMENT……………………………………………………………………………………….8
I. LEGAL STANDARDS FOR MOTIONS TO DIMISS AND MOTIONS FOR SUMMARY JUDGMENT……………………………………………….8
II. THE DISTRICT CANNOT BE HELD RESPONSIBLE FOR CHOICES MADE BY INDIVIDUALS WITH WHOM IT HAS NO RELATIONSHIP ………………………………………………………………10
III. THE DISTRICT’S COMPREHENSIVE AND EXPANSIVE PROGRAMS REASONABLY FACILITATE THE ABILITY OF DISABLED INDIVIDUALS TO RECEIVE COMMUNITY-BASED SERVICES AND CARE………………………12 a. The District’s Comprehensive, Effective, Programs That Facilitate Community-Based Services For Disabled Residents Are Available To Plaintiffs………………………………………………………..16 i. Elderly and Physically Disabled Waiver Program………………………16 ii. Money Follows the Person Program……………………………………..17 b. The District Will Only Approve Placement For Individuals In Nursing Facilities If Necessary And Appropriate……………….21 c. The District Has, and Continues to, Successfully Implement Its Comprehensive Programs that Support and Facilitate Community-Based Services……………………………………………………24
IV. MAYOR VINCENT GRAY, WAYNE TURNAGE AND STEPHEN BARON SHOULD BE DISMISSED AS PARTY DEFENDANTS……………………………….27
V. D.C. OFFICIAL CODE § 2-1431.048(A) DOES NOT CONFER A PRIVATE RIGHT OF ACTION………………………………………………………28
CONCLUSION ………………………………………………………………………………….29
3

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 7 of 45

CASES

TABLE OF AUTHORITIES

Alexander v. Choate, 469 U.S. 287 (1985 )…………………………………………………………………………..24
The Am. Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008)……………………..12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)………………………………………….. 9

The Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) ………………………..14

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)……………………………………………………….8, 9

Barnes v. District of Columbia, 2005 U.S. Dist. LEXIS 10435 (D.D.C. May 24, 2005)…………………………………………………………………………..28

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)…………………………………….8, 9

Boyd v. Steckel, 2010 U.S. Dist. LEXIS 120802 (MDAL Nov. 12, 2010)………………….12, 13, 14

Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839 (D.C. Cir. 2007)…………………9

Cal. v. Sierra Club, 451 U.S. 287 (1981)………………………………………………………...29

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)………………………………………………..9, 10

Cooke-Seals v. District of Columbia, 973 F. Supp. 184 (D.D.C. 1997)…………………………28

Foley v. Bates, 2007 U.S. Dist. LEXIS 27390 (NDCA March 30, 2007)………………………….11

Gerneth v. Detroit, 465 F.2d 784 (6th Cir. 1972)…………………………………………………..11

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)……………………………………………………..28

Kentucky v. Graham, 473 U.S. 159 (1985)………………………………………………………27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)…………………………………………….10

Olmstead, et al. v. L.C., et al, 527 U.S. 581 (1999)………………………………………….8, 12, 13

Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)………………………………………….12, 14

Smith v. Washington Metro. Area Transit Auth., 631 A.2d 387 (D.C. 1993) …………………….9

STATUTES AND REGULATIONS

29 U.S.C. §§ 794 et seq……………………………………………………………………………6

4

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 8 of 45 42 U.S.C. § 1396a……………………………………………………………………………15, 16 42 U.S.C. § 1396d(a)…………………………………………………………………………….15 42 USC § 1396n(c)…………………………………………………………………………...12, 16 42 U.S.C §§ 12132 et seq……………………………………………………………………...12, 16 42 C.F.R. § 441.301……………………………………………………………………………….16 42 C.F.R. § 441.303(f)(6)………………………………………………………………………….17 D.C. OFFICIAL CODE § 2-1431.048(A)………………………………………………..….28, 29, 30 FED. R. CIV. P. 12(b)(6)………………………………………………………………………..…..8
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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 9 of 45
PRELIMINARY STATEMENT Plaintiffs appear to be lieve that they are entitled to unlim ited Medicaid benefits and immediate placement in whatever program provides them the services th at they wish to receive in the manner in which they receive them. This position simply is not supported by the Title II of the Americans With Disabilities Act, 42 U.S.C §§ 12132 et seq. (“ADA”), and the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. As a preliminary matter, Plaintiffs have failed to allege facts that are necessary for them to prevail on t heir claims against the District. Fir st, and most surprisingly, Plaintiffs have failed to allege any relationship between their continued residence in nursing facilities and the actions of the District. Second, they have not alleged anything that suggests that, if the District was somehow involved in their placement or continued stay in nursing facilities, that the Distr ict has determined community-based services are appropriate to meet their needs or that the cost of such care would be less than the cost of the care they receive in nursing facilities. In add ition, Plaintiffs’ claims against the individually named defendants, in t heir official capacities only, are redundant of Plaintiffs’ claims against the District and should be dismissed accordingly. Of greater significance, Plaintiffs fail to understand that the District can, and has, met its obligation to provide its program s in the m ost integrated m anner possible by developing and implementing comprehensive, effective, programs to facilitate care to disabled p ersons with disabilities in the least restrictive setting appropriate to meet their individual needs. Since 1999, the District has of fered the Elderly and Physical Disabilities (“EPD”) waiver program and Developmental Disabilities Home and Community Based Services waiver (“DD HCB S”) waiver programs, through which any qualifying individual who requires the level of care provided in nursing facilities m ay instead receive community-b ased services funded through Medicaid. Through these program s, the District has cont inually supported hom e and community based
6

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 10 of 45
services for individuals with disability . For ex ample, in Fiscal Year 2010, the District spen t $495,887,575 in long -term care services in ins titutions and under waiver prog rams. Of that amount, $275,625,616 (55.6%) covered institutional serv ices (intermediate care facilities and nursing homes); $220,261,959 (44.4%) covered hom e and community-based services under 1915(c) waiver programs for the elderly and physic ally disabled and persons with intellectual and development disabilities. (Exh . 1, ¶ 3.) Currently , approximately 3,278 individuals are enrolled in the EPD waiver pr ogram, which represents a 50% increase from the number of individuals enrolled in the pr ogram in 2007. ( Exh. 2, ¶ 12.) Moreover , the EPD waiver has not even reached capacity; CMS has approved a cap at 3,940 individuals. (Id., ¶ 10.)
In addition to these waiver programs, the District also has developed and implemented its Money Follows the Person (“MFP ”) program to provide addition al funding and support to individuals transitioning from institutional settings to the c ommunity. Under this program , the District has successfully transitioned approximately seventy-seven (77) people from ICFs/MR to the DD HCBS waiver. The District has only recently obtained approval from the federal Center for Medicaid and Medicare Services (“CMS”) to extent to extend its program to individuals who reside in nursing hom es and who would qualify for the EPD waiver , however. (Exh. 3, ¶ 4.) Now that it has done so, DHCF is working d iligently to f ully implement this program and provide this additional assistance to individu als eligible for the EPD wai ver. CMS also recen tly approved an additional expansion of the MFP program in March of this year, allowing DHCF to accept an additional three hundred twenty (320) qualified nursing home residents into the MFP program through 2016. (Id., ¶ 27.)
Plaintiffs apparently are not satisf ied with these programs, or the District’s demonstrated willingness to facilitate community-based services for individuals with disabilities. They appear unwilling to work with the Distri ct to help th em transition from nursing homes to community-
7

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 11 of 45
based services under these com prehensive programs that still have capacity to serve them . But the ADA, the Rehabilitation Act and the principles set forth by a plurality of the United States Supreme Court in Olmstead, et al. v. L.C., et al, 527 U.S. 581, 606-07 (1999) do not require that the District provide unlimited funding and dedicat e unlimited resources to immediately effect the transition of every individual from a nursi ng facility who wish es to leave. U ltimately, Plaintiffs have failed to state a cause of action for which relief can be granted. Also, assuming, arguendo, that their allegations could survive this m otion to dismiss, the District is entitled to summary judgment in its favor . Judgm ent therefore shoul d be entered in favor of the District and Plaintiffs’ First Amended Complaint should be dismissed in its entirety with prejudice.
ARGUMENT I. LEGAL STANDARDS FOR MOTIONS TO DISMISS AND MOTIONS FO R
SUMMARY JUDGMENT Under the Federal Rules of Civil Procedure, the com plaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-d efendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancem ent.’” Id. (quoting Twombly, 550 U.S. at 557) (alteration marks omitted). To survive a Rule 12(b)(6) m otion to dism iss, a com plaint “must contain suf ficient factual matter, accepted as true, to ‘state a cla im to relief that is plaus ible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintif f pleads
8

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 12 of 45
factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). This facial plausibility standard “asks for more than a sheer possibil ity that a defendant has acted unlaw fully.” Id. (citing Twombly, 550 U.S. at 556). “ Where a complaint pleads facts that are m erely consistent with a def endant’s liability, it stops short of the line between po ssibility and p lausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
Although the allegations in the complaint m ust be taken as true, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (internal quotation marks omitted); see also Iqbal, 129 S. Ct. at 1949 (“the tenet that a court must accept as true all of the alleg ations contained in a co mplaint is inapplicable to legal conclusions”). “[W ]here the well-pleaded facts do not p ermit the cour t to infer more than the mere possibility of m isconduct, the com plaint has alleged – but it has not ‘shown’ – ‘that the pleader is e ntitled to re lief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ . P. 8(a)(2)) (alteration marks omitted). Under this standard, the instant complaint must be dismissed.
On the other hand, a “motion for summary judg ment test[s] the legal suf ficiency of a cause of action.” Smith v. Washington Metro. Area Transit Auth., 631 A.2d 387, 390 (D.C. 1993). Summary judgment is appropriate “where there is no genuine issue as to any m aterial fact and the moving party is entitled to a judgment as a matter of law.” Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 843 (D.C. Cir. 2007) (ellipsis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). It is “regarded not as disfavored procedural shortcut, but rather as an integral part” of the o verall scheme of the rules of civil procedure, “which are designed to secure the just, speedy and in expensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotation omitted).
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The party moving for summary judgm ent bears the initial responsibility of informing the trial court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genui ne issue of material fact. See Celotex Corp., 477 U.S. at 323; see also Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988). The moving party has no burden, however , of introducing eviden ce that negates the nonm ovant’s claim. See Celotex Corp., 477 U.S. at 323; Frito-Lay, Inc., at 1032. Instead, the moving party need only assert that there is a lack of necessary evidence to support the plaintiff’s case. At that point, the burden shifts to the nonmoving party to show t he existence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. A trial court shou ld enter summary judgm ent against a nonmoving party “who fails to make a showing sufficient to establish the existence of an element essential to that p arty’s case, and on which the party will bear the burde n of proof at trial.” Celotex Corp., 477 U.S. at 322.
By either burden, and as set forth below , Plaintiffs’ claims agains t the District cannot stand. As such, the District is entitled to dismissal with prejudice and/or judgment entered in its favor as a matter of law.
II. THE DISTRICT CANNOT BE HELD RESPONSIBLE FOR CHOICES MADE BY INDIVIDUALS WITH WHOM IT HAS NO RELATIONSHIP
Plaintiffs have filed this lawsuit on behal f of five named plaintiffs and a s a putative class action that would include any disabled individual “receiving services in nursing faciliti es located in the District of Columbia or funded by the Defendants at any ti me during the pendency of thi s litigation.” (Pls’ Amend. Cmplt. at ¶ 96.) A fundamental principle of the American judicial system requires that there be some relationship between a defendant and the alleged harm suffered by the plaintiff before the defendant can be hel d responsible, however. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring that th ere be “a causal connection between the
10

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 14 of 45
injury and the conduct com plained of – the injury has to be fairly traceable to the challenged action of the defendant” as one of the three prongs required to establish constitutional standing). Accordingly, the Di strict cannot be held re sponsible for an individual “receiving services i n a nursing facility” if the District did not cause this placement or otherwise fund the individual’s stay in a nursing f acility. See, e.g. Fol ey v. Bates, 2007 WL 1831133, at *6 (NDCA March 30, 2007)(dismissing claims to allege any facts that demonstrate a connection between these defendants' purportedly wrongful acts and the plaintiff’s alleged harm). Licensing nur sing facilities within the District does not create the n ecessary relationship between the Di strict and a third-party nonlicensee, much less cr eate an obligation to provide community-based care to these individuals. See Gerneth v. Detroit, 465 F.2d 784 (6th Cir. 1972).
Surprisingly, the named Plaintiffs have not alleged any facts that suggest a connection or a between the District and their pla cement, or continued st ay, in nursing f acilities. They do not, and cannot in good faith, claim that the District placed them in the nursing facility in which they reside; as discussed below, the only District agencies that approve or revi ew the placement individuals in nursing facilities, the De partment on Disability Services and the Department on Mental Health, were not involved in the placement of the named plaintiffs. Plaintiffs have not even alleged that the District funds their care in nursing facilities. Therefore, even taking all of Plaintiffs' allegations as true, the District’s actions, or lack of action, have no effect on the named plaintiffs’ continued stay in nursing facilities.
Plaintiffs also have failed to all ege that t he District has det ermined community-based services are appropriate for their needs. Instead, t hey alleged that each nam ed Plaintiff “has been determined by health care professionals to be appropriate for community placement.” (Pls’ Amend. Cmplt., ¶¶ 31, 35,39, 42, 46.) If Plai ntiffs expect the District to fund their community-based services, Plaintiffs are subject to the District's determination of whether or not such services are
11

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 15 of 45

appropriate to meet their needs. Boyd v. Steckel, 2010 U.S. Dist . LEXIS 120802 at *33 (MDAL Nov. 12, 2010). A bald assertion that som e unidentified healthcare professional has determ ined that community-based services are appropriate to m eet the m edical and physical needs of the named plaintiffs is not enough. (Id.)
Moreover, the District is not required to fu nd community-based services for Medicaid recipients for whom the cost of such services would exceed the cost of care in a nursing facility. 42 U.S.C. § 1396n(c)(4(A). See also, Sanchez v. Johnson, 416 F.3d 1051,1054 (9th Cir. 2005). Yet none of the nam ed Plaintiffs even suggest that the cost of the comm unity-based services which they believe would allow them to live in the co mmunity would be less than the cost of their care in a nursing facility. For these reasons, the named Plaintiffs have failed to set forth specific facts that, if taken as true, could im pose any liability on the District. Therefore, Plaintiffs' First Amended Complaint, both Counts I and II, must be dismissed in its entirety.
III. THE DISTRICT’S COMPREHENSIVE AND EXPANSIVE PROGRAMS REASONABLY FACILITATE THE ABILITY OF DISABLED INDIVIDUALS TO RECEIVE COMMUNITY-BASED SERVICES AND CARE
In addition to failing to state a caus e of action for which relief can be granted, the ADA and the Rehabilitation Act do not provide the expansive and unlimited benefits to which Plaintiffs appear to believe they are entitled. 1 The gravamen of Plaintiffs’ Complaint is that th e District discriminates against people with disabilities by only funding long-term care in nursing facilities, rather than funding community-based services, thus effectively segregating people with disabilities from the community. (Pls’ Amend. Cmplt. ¶ 111.) Plaintiffs appear to believe that

1

Unlike the ADA, the Rehabilitation Act does not expressly recognize segregation of disabled individuals as

discrimination and courts are divided on whether interpret the single sentence addressing discrimination attached to

vocational rehabilitation legislation to encompass segregation. Olmstead, et al. v. L.C., et al, 527 U.S. 581, 600 fn 11

(1999). Nevertheless, courts have found that the Rehabilitation Act is “similar in substance” to the ADA and, therefore,

“cases interpreting either are applicable and interchangeable.” The Am. Council of the Blind v. Paulson, 525 F.3d

1256, 1262 fn 2 (D.C. Cir. 2008).

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the law requires the District to appropriate unlimited funds and resources to guarantee community-based services to every disabled individual w ho wishes to receive them .2 Despite their apparently interpretation of applicable law , the District is under no such extensive or unlimited obligation.
The principle set forth by the Supreme Court plurality in Olmstead, a case stemming from the state’s continued institutiona lization of me ntally ill individuals long after their treatment professionals recommended their tr ansfer to community-based care, requires only that the District have a:
comprehensive, effectively working plan for placing q ualified persons with . . . disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated. Olmstead, 527 U.S. at 606-07. The District is not obligated to fund community-based services for every individual who otherwis e would be entitled to funding fo r care in a nu rsing facility. Boyd, 2010 U.S. Dist. LEXIS 120802 at *45 (stating that “this Court is not convinced that the intended interaction between the statutes is such that States who choose to have Medicaid and who choose to use optional waiver program s must therefore provide such community-based services to all persons who coul d benefit from them even when the waiver programs are full”). Moreover, the ADA and the Olmstead plurality, “do[] not require the immediate, state-wide deinstitutionalization of all eligible developmentally disabled persons, nor th at a State’s plan be

2

Plaintiffs may have based this action upon Disability Advocates, Inc. v. Paterson, 653 F.Supp.2d 184

(E.D.N.Y. 2009), a case b rought on behalf of individuals with mental illness living in “adult homes.” The Eastern

District of New York granted the relief t he plaintiff sought in that case because the state defendant did not have a

plan in place to enable the plaintiff’s constituents to receive community-based services. Id., 269-78 (finding that

general oversight of the mental health system, inspection of ad ult homes, and the addition of residents of adult

homes to supported living beds, without any actual attempt to include such residents in the supported living

program, did not constitute a transition plan). The situation before the Disability Advocates court is inapposite to the

situation here. As explained in detail below, and as set forth in the affidavits accompanying this motion, the District

has developed comprehensive, successful, plans to enable individuals to receive community-based services and to

assist individuals transitioning from nursing facilities, and has expanded these plans to cover individuals such as the

five named plaintiffs as soon as the federal program has approved it to do so.

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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 17 of 45
always and in all cases s uccessful.” Sanchez, 416 F.3d at 1067 (upholding California’s program as “genuine, comprehensive, and reasonable,” as California had steadily increased the percentage of people receiving community-based services, reduced its institu tion population by 20%, an d applied for increased waiver spo ts). Instead, a program available to all Med icaid recipients, based on spots available in the program , the recipients’ medical needs, and the recipients’ ability to secure needed services in the co mmunity, satisfies the principle set forth by the Olmstead plurality. See, e.g., The Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 620-21 (9th Cir . 2005).
As a preliminary matter, the District does not concede that Olmstead applies to nursing facilities. As recognized by the District Court for the Mi ddle District of Alabama, “the key i n Olmstead is that the institutionaliza tion must be unjust ified and unnecessary.” (Boyd, 2010 U.S. Dist. LEXIS 120802 at 29 (emphasis added). Olmstead dealt with two individuals who had have been deemed to no l onger require institutional care. By defi nition, however, and as explai ned below, Medicaid recipients, or DDS or DMH consumers, who reside in nursing facilities require the level of care provided there. Accordingly, their residence in nursing facilities cannot be unjustified or unnecessary.
Nevertheless, even if the Court were to find that Olmstead applies to nursi ng facilities, Plaintiffs’ unwillingness to work with the District to obtain spots in programs for which they may be eligible and that currently have capacity to f acilitate their transition to commun ity-based services does not sugge st, much less establish, that the Distr ict has fai led to meets its obligations under applicable law. The District has comprehensive and effective working plans that ensure it does not place individuals in nursing facilities unless it is necessary and appropriate to do so, as well programs that fund comm unity-based services and speci fically support the transition of disa bled individuals from nursing facilities to community-based settings.
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The District has embraced its obligation to provide community-based care. Three District agencies help determine whether placement in a nursing facility is appropriate or otherwise fund care for residents of nursing facilities. The Department on Disability S ervices, Developmental Disabilities Administration (“DDS” and “DDA,” respectively) provides outreach and service coordination services, among other things, to individuals with in tellectual disabilities. The Department of Mental Health provides com prehensive mental health se rvices and supports to District residents in need of th e public mental health system. As part of their operations, DDA and DMH m ay determine th at placement in n ursing facilities is appropriate if the individual requires the level of care available there.
Conversely, the Department of Health Care Finance (“DHCF”), the District agency that administers the Medicaid program within the District, do es not place individuals in nursing facilities. Rather , DHCF funds care received by individuals eligible for its program s (“recipients” or “beneficiaries”) by making direct payments to providers enrolled with the state Medicaid organization.3 As a condition of receiving f ederal funds to pay for medical services received by qualified individuals, the District was required to submit a State Plan to be approved by the federal Centers for Medicaid and Medical Services (“CMS”). 42 USCS § 1396a. The District’s State Plan is a com prehensive document that de scribes the nature and scope of DC Medicaid, including the manner in wh ich DC Medicaid complie s with the specif ic requirements of Title XIX of the Social Security Act. 42 USCS § 1396a(a); 42 C.F.R.§ 430.10 DHCF will pay for nursing

3

State Medicaid organizations are required to “provide for making medical assistance available,” 42 U.S.C.

§ 1396a(a)(10). The statute defines "medical assistance" as the “payment of part or all of the cost of the following

care and services or the care and services themselves, or both,” however. 42 U.S.C. § 1396d(a). Therefore, states

are not required to directly provide medical services under the Medicaid Act, but to pay for the cost enumerated

services provided to Medicaid beneficiaries. See also, Ok. Chapter of the Am. Academy of Pediatrics v. Fogarty,

472 F.3d 1208, 1215 (10th Cir. 2007).

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home care if the vendor with whom DHCF contracts to make level of care determinations, currently Delmarva, decides the recipient requires the level of care provided in such a facility.
a. The District’s Comprehensive, Effective, Programs That Facilitate CommunityBased Services For Disabled Residents Are Available To Plaintiffs
Notwithstanding Plaintiffs’ characterizations to t he contrary, DHCF is f ully committed to funding community-based services and f acilitating the transition of i ndividuals from nursing facilities. In furtherance of this goal, DHCF has been working with private and public partners and stakeholders such as University Legal Services to develop strategies to best transition individuals with disabilities from institutional settings to community-based services since 2007. (Exh. 3, ¶ 3.) DHCF has done si gnificantly more than discuss best practices, however. DHCF operate s several programs for which t he named plaintiffs appear to be eligible that fund community-based services and, specifically, supports the transition of Medicaid r ecipients from nursi ng facilities to community-based services, including the EPD waiver program and the MFP program.
i. Elderly and Physically Disabled Waiver Program The District has offered the EPD waiver program since 1999, using federal and local money to pay f or home and comm unity-based care to any qualif ied individuals aged si xty-five (65) a nd over and the physically disabled population aged eighteen (18) to sixty-four (64) who other wise would require the level of care provided in a nursing home. (Exh. 3, ¶ 4.) See also, 42 USCS § 1396a (a)(10)(ii)(VI); 42 USC § 1396n(c); 42 C.F.R. § 441.301. Any individual who meets the eligibility requirements for the EPD waiver may participate, regardless of whether they reside in a nursing facility o r whether they reside in the community when they apply for the program .4 (Id.)

4

Information about the EPD waiver is available on the DHCF and District of Columbia Office on Aging web-

sites. (Exh. 3, ¶ 11) DHCF’s Office of Chronic and Long-Term Care (CLTC) and the Office of the Ombudsman also

send out information about the EPD Waiver program to callers requesting information. The Aging and Disabilities

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Candidates for the EPD wai ver program work w ith a case manager, a private, Medicaidenrolled, provider selected by the candidate to create an individual service plan (“ISP”) that is subject to DCHF approval and that must specify the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided. (Id., ¶¶ 6-7.) As pa rt of this program, DHCF may pay for case management services, homemaker services, personal care aides, respite care, environmental adaptation and accessibility, personal emergency response services, assisted living services, and chore services. (Id., ¶ 5; see also, Exh. 4 EPD 2007 Renewal, at 48-88.) DHCF is prohibi ted from paying for housing, meals, room and board, or 24-hour skilled care or superv ision under the program. (Exh. 2, ¶ 8; Exh. 4, at 70, 167.)
DHCF could not implement its EPD waiver program before it received approval from CMS to do so, which it first received in 1999. (Exh. 2, ¶ 3.) CMS has twice approved the continuation of this program, most recently on March 29, 2007 and which remains valid for 5 years. (Id.) The cost of the EPD waiver program cannot exceed the cost of c are absent a wavier program, nor can the cost of communit y-based services necessary to meet an indi vidual's needs exceed t he cost o f services the individual would receive in a nursing facility. (Id., ¶ 9.) Furthermore, the number of beneficiaries who can participate in each year in a waiver program is limited to the number approved by CM S. 42 C.F.R. § 441.303( f)(6). Cur rently, the EPD w aiver is capped at 3,940 participants. (Exh. 2, ¶ 10.)
ii. Money Follows the Person Program In addition to the EPD waiver, DHCF administers the Money Follows the Person (“MFP”) program specifically desi gned to facilitate transitions from institutional settings to the community
Resource Center in is the process of finalizing a brochure about the EPD Waiver program in conjunction with DHCF. (Id..)
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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 21 of 45
and community-based services by helping such individuals identi fy and procure services necessary to allow them to live in the community. (Exh. 2, ¶ 4.). As with the EPD waiver program, the MFP program is limited to the number approved by CMS annually. (Id., ¶ 6.) Af ter initial referral of a nursing home resi dent for the MFP program, a c andidate is r eferred to a Transition Coordinator, who then provides the candidate with a list of Medicaid enrolled case management providers from which the candidate selects the case manager with whom he or she would like to work. (Id., ¶ 14.) MFP case managers work with an ISP team, usually comprised of the candidate, the case manager, the candidates’ legal representative, and nursing facility staf f familiar with the resident to create an ISP specifying the community-based services to be furnished, their frequency, the type of provider who will furnish each specif ied service, and how backup and emergency services will be provided. (Id., ¶ 15.)
Unlike the EPD waiver program, however, only individuals currently residing in institutional settings, and therefore able to transition to community-b ased services, are eligible for this program. An MFP participant’s transition to the community and f irst year of qualified community-based services are paid for at an enhanced Federal Match rate (89.65%. decreasing in 2011 to 85% under Federal regu lation) under the MFP program, including a maximum $5,000 one-time transition service payment to purchas e furniture, cooking utensils, and other items essential to living in the community, and to cover moving expenses. (Id., ¶ 18.) After this initial year, MFP participants who conti nue to meet the eligibility re quirements are transitioned from the MFP program to the EPD waiver program. (Id., ¶ 5.)
CMS initially approved the Distri ct’s MFP program in 2007. ( Id., ¶ 4.) The District could not begin the operational phase of the MFP program until CMS approved the Operational Protocol in June 2008, at which tim e CMS limited the District to running a pilot program limited solely to supporting the transfer of individuals with intellectual disabilities from Intermediate Care Facilities
18

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for individuals with Mental Retard ation (“ICFs/MR”) under the DD HCBS. 5 (Id.) Furthermore, CMS did not approve DHCF’s Operational Protocol for the MFP waiver program until October 2010, thereby preventing the District from beginning to expand this program to nursing hom es residents eligible for the EPD waiver until the end of 2010. (Id., ¶¶, 11-12; see also, Exh. 8, Oct. 22, 2010 Operational Protocol Amendment.)
Even though CMS ha d not yet approved the District’s MFP Operational Protocol, University Legal Services provided DHCF a list of thirty (30) nursing home residents it claimed wished to transition to the MFP program in Ma rch 2010. ( Id., ¶ 23.) In anticipation of CMS approval of the MFP operational protocol, DHCF therefore launched an expanded MFP pilot project involving forty (40) nur sing home residents in collaborat ion with the DC’ s Aging and Disability Resource Center, in August 2010. DHCF included any of the th irty (30) individuals identified by University Legal Services who still resided in nursing facilities at the time the pilot project was initiated, or sixteen (16) people. (Id.)
Furthermore, since CMS approved the expans ion of the MFP pilot program to include individuals eligible for the EPD waiver, DHCF has been able to take other steps to implement the MFP program. For example, DHCF has hired tw o full-time Transition Coordinators focused on transitions from nursing facili ties who, am ong their other dut ies, meet with nursing hom e administrators and staf f to inf orm them about the EPD waiver program . ( Id., ¶ 26.) DCOA/ARDC also is in the process of hiring two (2) additional full-tim e MFP Transition Coordinators who will focus on transitions from nursing facilities. (Id.) Transition Coordinators

5

Plaintiffs’ counsel are well aware of the District’s efforts in this area as University Legal Services (“ULS”),

who represent Plaintiffs’ in this lawsuit, was a member of the Money Follows the Program Advisory Committee and

continued to receive updates from this program until this lawsuit was filed. Indeed, ULS has characterized itself as a

co-author of the MFP proposal that was submitted to CMS and has taken credit for drafting portions of the MFP

Operation Protocol. (Exh. 7, ULS newsletter from Summer 2008, at pp. 13-14, recognizing that DHCF could not

implement the MFP program until CMS ap proved the Operational Protocol describing how the District’s MFP

program will work).

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also assist with housing arrangements, work with the EPD waiver Case Manager selected by the

participant to develop the particip ant’s ISP, help coordinate the particip ant’s initial move, and

assess existing barrie rs that preven t an otherwise willing a nd eligible person f or successfully

transition to the community . ( Id.) The District also estab lished an Aging and Disability

Resource Center Transition Team (“ARDC Transition Team”) to begin the implementation of the

MFP Operational P rotocol. The ARDC Transition Team used a p reference interview tool to

identify residents of nursing facilities identifi ed by ULS a nd nursing hom e administrators to

determine eligibility for the MFP Demonstration. (Id., ¶ 24.)

Through its Data Use Agreement with the District’s Department of Health, DHCF and the

MFP Project Team also requests and receives qua rterly Minimum Data Set ( MDS) information

from The Delmarva Foundation. ( Id., ¶ 13.) Nursing facilities ar e required to collect certain

information about their residents at least every three months by federal law. 42 C.F.R. 483.20(c)

(“A facility must assess a resid ent using the quarterly review instrument specified by the State

and approved by CMS not less frequently than once ev ery 3 months.”) As part of what has been

designated Section Q of this review , CMS requires nursing facilities to ask resid ents directly if

they wish to speak to som eone about the possib ility of returning to the community and to ref er

any individual who answers af firmatively to the District. DHCF relies on this information and

lists of possible candidates for the MDP program submitted by advocacy groups and nursin g

facilities, including individuals who have self-identified as being interested in transitioning to the

community, to identify whether a nursing hom e resident is a potential candidate for the MFP

program.

DHCF also has worked closely with the DC Health Care Association (“DCHCA”), the

trade association for nursing homes, to inform

administrators and staf f about the MFP

demonstration program. (Exh. 3, ¶ 13.) The Executive Director of th e DCHCA is an active 20

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 24 of 45
member of the MFP Stakeholder Advisory Commission and has worked with mem bers of the MFP Project Team to disseminate information to administrators and staff via email and in person at DCHCA meetings. ( Id.) The MFP Outreach Specialist housed in the DC Of fice on Aging/Aging and Disability Resource Center also contacted each nursing home in the District by telephone in June 2010 to reintroduce the MFP Demonstration and conducted one-on-one follow-up visits with interested administrators and social work/nursing staf f to provide preliminary information in anticip ation of the official submission and approval of the MF P Operational Protocol expanding the MFP program to people eligible for the EPD waiver . (Id.) The Outreach Specialist has begun a list of nursi ng home residents’ names who are candidates for MFP either based on nursing hom es administrators’ and/or staf f recommendations or selfreferral. (Id.) Moreover, the Outreach Specialist will continue to provide information to nursing home residents, adm inistrators and staf f through meetings of the DCHCA, and nursing hom e resident councils, as well as one-on-one m eetings with residents who e xpress an interest in transitioning to the community. (Id.)
b. The District Will Only Approve Placement Of In dividuals In Nursing Facilities If Necessary And Appropriate
As referenced above, DMH and DDA, may determine that placement in a nursing facility is appropriate for individuals fr om the populations that they serve. Signif icantly, however, both DMH and DDA require stringen t reviews of any proposed placement in a nu rsing facility to ensure that placem ent in a nursing hom e is both medically necessary and the least restrictive, most appropriate, location to meet the needs of this individual.
Under federal regulations which require an independent evaluation of all referrals to nursing facilities for individuals with mental illness and mental retardation, DMH conducts Preadmission Screening and Resident Reviews (“PASRR”) for any individual indentified by his or
21

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 25 of 45

her provider as having a mental health diagnosis and for whom the provider has reason to believe placement in a nurs ing facility will be app ropriate. (Exh . 5, ¶ 3. ) The referring clinician conducts the Level 1 Screening to determ ine whether an individual bei ng referred to a nursing facility has a primary or secondary diagnosis of mental illness. (Id., ¶ 4.) If so, DMH conducts a Level II Screening, which requires an independen t psychiatric evaluation of the individual and a determination as to whether the level of care provided by a nursing facility is required. (Id.)
DMH does not operate, or provide services in, nursing facilities. Therefore, if placement in a nursing facility is deemed appropriate and the ind ividual is admitted into a nursing facility, the facility assum es all respons ibility for that individual’ s physical and m ental health care. 6 Nevertheless, nursing facilities are required to notify DMH and request a PASSR review if a patient with a primary or secondary mental health diagnosis has undergone significant change in his or her physical or mental conditions. 7 (Id., ¶ 5.) DMH rem inded the nineteen (19) nursing facilities within the District of Columbia, which provide direct care to th eir residents, of their continuing obligation to notify DMH of any si gnificant changes in the physical or m ental condition of a nursing facilities resident on October 8, 2010 and again on January 12, 2011. (Id., ¶ 6.) In addition, Dr . Elspeth Ritchie, the Chief Clinical Of ficer with DMH who is responsible for managing the PASRR determinations for current and potential nursing facility residents, has personally reached out to nursing facilities to remind them of their obligations to reques t PASARR reviews. To date, she has visited se ven (7) nursing facilities to discuss the P ASRR program and provide technical assistance and has two (2) additional visits scheduled. (Id., ¶ 6.)

6

The District has been unable to find any legal support for Plaintiffs’ apparent assertion that the District is

responsible for ensuring continuity of care by facilitating continued access to the same providers from whom

residents of nursing facilities were receiving care in the community.

7

Vietress Bacon is the only named plaintiff in this lawsuit who has alleged a primary or secondary diagnosis

of mental illness. DMH has conducted a PASARR review of Ms. Bacon and determined that her physical

disabilities required the level of care provided in a nursing facility. Ms. Bacon therefore is working with DHCF, as

part of the MFP pilot program, to transition from the nursing facility in which she currently resides to th e

community.

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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 26 of 45
DDA, which oversees and coor dinates care for 2,094 i ndividuals with developmental disabilities, and none of whom are the named plaintiffs, also requires a thorough review of an individual’s needs before placing him or her in a nursing f acility. (Exh. 6, ¶¶ 3-5, 15.) When determining which services are necessary for an individual it serves, DDA assumes that all individuals can live in the most inclusive setting possible, and an individual’s ISP must address any deviation from this assumption and must be reviewed by DDA’s Human Rights Advisory Committee (“HRAC”). (Id., ¶¶ 6-7.) Before DDA approves placem ent in a nurs ing facility, the individual, his or he r family or guardian and advocate, if any , the current service provider and medical staff, and the HRAC must be involved in that decision. ( Id., ¶ 9.) Moreover , the ISP must document why a community setting is not appropriate, a determination that must be corroborate by a medical provider not currently direc tly involved in the indi vidual’s ongoing care. ( Id.) The ISP also must include a description of the specific supports and services required due to the individual’s diagnosis and medical status, and specify a planning process to address th e individual’s needs and potential barriers to the individual’s transition back to a community-based setting. (Id.)
Finally, after an ind ividual has b een placed in a nursing facility, his or her advocate or DDA service coordinator must appear monthly before the HRAC to justify the individual’s continued residence in a nursing facility . (Id., ¶ 11.) If the HRAC believes placement in a nursin g facility no longer is appropriate for an indivi dual, it recommends that D DA aggressively pursue an alternative, less restrictive, setting that can appropriately meet the individual’s needs. ( Id., ¶ 12.) DDA’s Provider Resource Managem ent Unit and Service Planning and Coordination Division will w ork to iden tify the appropriate res idential setting and/or oth er relevant support and service providers and, once these providers are s ecured, the individual is transitioned to the community-based residential setting. (Id., ¶ 13.)
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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 27 of 45

c. The District Has, and Continue s to, Successfully Implement Its Comprehensive Programs that Support and Facilita te Community-Based Services
Plaintiffs’ insinuation that the District has done nothing to support home and communitybased services for its disabled residents is belied by reality. As required by the ADA and the core principle of Olmstead, the Dis trict has com prehensive programs, policies, and procedures in place that ef fectively ensure that individuals with disab ilities are receiving care in the m ost integrated setting appropriate to care for th eir physical, medical, and m ental health needs. As evidenced by the num ber of individuals currently served in the waiver program s, the amount of money spent on community-based services, and th e District’s diligent efforts to increase available funding, the District’s efforts overall have been successful.
Candidates for the MFP program are not given a spot in the program and transitioned to the community until all necessa ry community-based services are id entified and approved, and housing appropriate to meet his or her nee ds is procured. (Exh. 3, ¶ 20.) Candid ates for the MFP program with whom DHCF is cu rrently working, and who would be eligible for the EPD waiver , have encountered several barriers to transition to the community, and thus barriers to being placed in the MFP program. For exa mple, certain candidates lack housing in the community in which they ca n receive community-based services; they require public housing assistance. (Id., ¶ 21.) DHCF does not pay for housing. 8 MFP candidates eligible for the EPD Waiver may apply to t he District of Columbia Housing Authority (“DCHA”) for a spot in the Housing Choice Voucher program and the

8

The District is not aware, and has not been able to locate, any statue or legal decision that would obligate it to

provide or subsidize housing for any and all i ndividuals otherwise medically eligible for Medicaid. As explained in

footnote one, supra, DHCF’s legal duty is to fund qualifying care for beneficiaries. DHCF’s mandate does not

change or expand because its beneficiaries lack housing in which to receive community-based services. Nor is the

District required to provi ding housing or e xtra financial support because of a possible lack of acces sible housing

stock on th e market. As long as th e District is ad ministering the programs it o ffers evenly across the disabled

population, it has satisfied the requirements of the ADA. The District is not required to attempt to remedy a lack of

resources for individuals with disabilities through new or additional government-run programs. The ADA “seeks to

assure even handed treatment and the opportunity for han dicapped individuals to participate in and benefit from

[government] programs, [it] does not guarantee the handicapped equal results.” Liberty Resources at 566 (discussing

Alexander v. Choate, 469 U.S. 287, 301 (1985 )and the Supreme Court’s application of the Rehabilitation Act)

24

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 28 of 45

Moderate Rehabilitation pr ogram, but these programs are ava ilable to any qual ified individual regardless of disability.9 (Id., ¶ 17.) Transition Coordinators work with MFP and EPD candidates to

secure housing, including by assi sting them in fi ling out t he appropriate housing voucher for ms.

(Id., ¶ 26.) In 201 1, DHCF was able to sec ure ten ( 10) additional housing c hoice vouchers

specifically for non-elderly Medicaid recipients. (Id., ¶ 18.) Nevertheless, there is a limited supply

of Housing Choice Vouchers set aside specifically for MFP participants (currently under 100 for al l

MFP transitions through the end of the Dem onstration) and a di minished use of other fede ral

housing subsidy program s. ( Id., ¶ 21.) Some candidates also have credit histories that prevent

property managers from approving l easing applications; others lack fami ly members or friends

willing to provide support in the community in preparation for, during, and post-transition. (Id.)

Furthermore, some candidates cannot secure the services necessary to meet t heir physical

and medical needs in t he community. Some require a level of care that cannot be provided by the

District’s current Home and Co mmunity-Based Service (HCBS) system. In addition, some

necessary services are not provided in the HCBS waiver package (adult day services, 24-hour care),

and in certai n situations the curre nt pool of HCBS wai ver providers do not ha ve the capacity to

provide these services based on the number of qualified staff and a provider’s ability, readiness, and

willingness to accept liability for level care needed). (Id.)

Despite the complexities inherent in fully implementing a program as necessarily intricate

as the MFP program and a lack of housing a ppropriate to m eet the needs of t he disabled

population available on the market, the District has demonstrated that its efforts with individuals

eligible for the DD HCBS waiver have been s uccessful. In Fiscal Year 2010, the District spent

$495,887,575 in long-term care services in institutions and under waiver programs in Fiscal Year

2010. Still, $220,261,959 of the money spent covered h ome and community-based services

9

Individuals aged sixty-two (62) and older also may be eligible for housing subsidies available to residents of

seniors-only housing. (Id., ¶ 15.)

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Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 29 of 45
under 1915(c) waiver program s for the elderly a nd physically disabled and persons with intellectual and development disabilities. (Exh. 1, ¶ 3.)
Moreover, as of April 2011, approximately 3,278 individuals are enrolled in the EPD waiver program. (Exh. 2, ¶ 15.) Further, since October 2008, the District has transitioned approximately seventy-seven (77) people from ICFs/MR to th e DD HCBS waiver – these indiv iduals are now receiving community-based services. (Id., ¶ 4.) CMS also approved an additional expansion of the MFP program, allowing DHCF to accept an addi tional three hundred tw enty (320) qualified nursing home residents into the MFP program through 2016. (Id., ¶ 27.)
The District reasonably expects to have th e same success with the MFP program as it pertains to individu als eligible for the EPD waiver program as it has had with individuals transitioning from institutional settings to the DD HCBS waiver. DHCF is wor king with 26 candidates for the MFP program, including all MPF p ilot participants who remain interested in receiving community-based services. (Exh. 3, ¶ 25.) For exam ple, DHCF is not currently working with plaintif f Edward Day, as he i ndicated to the ARDC Transition Coordinator who met with him to discuss a possible transition to community-based s ervices that h e was not interested in leaving the nursing facility where he resides.
Transition Coordinators have met with all residents in the pilot to al ign both housing and health services and Housing Choic e Voucher applications have been subm itted to the DC Housing Authority for all pilot participants. ( Id.) Participants have also been connected to EPD HCBS Waiver case management agencies to con duct initial EPD Waiver assessments. The first nursing home resident transitioned on April 13, 2011, and all pilot par ticipants should be transitioned by Septem ber 2011 barring any unantic ipated barriers, many of which were listed above. ( Id.) DHCF also anticipates transition ing eighty (80) nursing hom e residents to the community under the MFP program each year from 2011 through 2016. (Id., ¶ 28.)
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The efforts of DMH and DDS also have succe ssfully increased the number of individuals within the populations se rved by these agencies receiving community-based services. For example, as a result of DDA’s rigorous human rights policy, very few individuals served by DDA are placed in nursing facilities. As of December 31, 2008, eight (8 ) individuals served by DDA resided in nursing facilities; as of December 31, 2009, six (6) individuals served by DDA resided in nursing facilities; and as of December 31, 2010, five (5) individuals served by DDA resided in nursing facilities. (Exh. 6, ¶ 13.)
Plaintiffs may wish that the District could provide unlimited funding and support to allow for the immediate de-institutionalization for all individuals for whom community-based services could be appropriate. But Plaintif fs’ desires do not create legal obligations under which the District must operate. The District has the comprehensive and effective programs to transition individuals from nursing facilities to comm unity-based services as req uired by th e Olmstead plurality, and is working with plaintiffs to do just that. Plaintiffs cannot prevail under the theo ry of liability they have put forth in their Fi rst Amended Complaint, an d judgment accordingly should be entered in favor of this District.
IV. MAYOR VINCENT GRAY, WAYNE TURNAGE AND STEPHEN BARON SHOULD BE DISMISSED AS PARTY DEFENDANTS
In addition to the reasons above w hy Plaintiffs’ claims should be dism issed in their entirety, Plaintiffs cannot m aintain a suit agai nst the individually-nam ed defendants who have been sued in their official capacities only. A suit against a municipal official in his or her official capacity is a suit again st the municipality that employs that official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (recognizing that of ficial capacity suits “generally represent only another way of pleading an ac tion against an e ntity of which an officer is an agen t”) (internal citations omitted). Accordingly, “[b]ecause it is duplicative to name both a governm ental entity
27

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and the entity’s employees in their of ficial capacity, claims against individuals nam ed in their official capacity have been rout inely dismissed as redundant and an inefficient use of judicial resources.” Barnes v. District of Columbia , 2005 U.S. Di st. LEXIS 10435, at *9 (D.D.C. May 24, 2005) (internal quotation marks omitted) (quoting Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997)).
Here, the plaintif fs have sued defendant s Vincent Gray, Wayne Turnage and Stephen Baron solely in their official capacities as the Mayor of the District of Columbia, the Director of the District of Columbia Department of Health Care Fin ance and Director of the District of Columbia Department of Mental Health, respectively. The suits against them are duplicative and redundant of the plaintif fs’ claims against the D istrict; thus, all claim s against defendants Gray, Turnage, and Baron should be dism issed, these individuals should be dism issed from this lawsuit, and the caption amended accordingly.
V. D.C. OFFICIAL CODE § 2-1431.048(A) DOES NOT CONFER A PRIVATE RIGHT OF ACTION
Plaintiffs also appear to com plain about Mayor Vincent Gray’s purported failure to finalize, through the O ffice of Disability Rights, an “ Olmstead Plan” as required by D.C. OFFICIAL CODE § 2-1431.048(A). (First Amend. Complaint, ¶ 20.) While all charges should be dismissed against Mayor Gray for the reasons di scussed above, to the extent Plaintif fs would pursue a claim under D.C. OFFICIAL CODE § 2-1431.048(A), this provision does not establish a private right of action.
Plaintiffs have no cause of action under a st atutory provision unless the legislative body enacting the provision intended to confer individual rights upon a cl ass to which the plaintif fs belong. Gonzaga Univ. v. Doe, 536 U.S. 273, 285-86 (2002) (findi ng no cause of action “where the text and structure of a st atute provide no indication that Congress intends to create new
28

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 32 of 45
individual rights”). To determine whether a priv ate right of action exists, courts m ust consider whether plaintiffs are “of the class for whose especial benefit the statute was en acted” and whether there is “any indication of legislative intent, explicit or im plicit, either to create such a remedy or to deny one.” Cal. v. Sierra Club, 451 U.S. 287, 293 (1981) (finding that neither the language of the statute in question or its legislative history suggested that the legislature intended to create a private righ t of action). Pursuant to D.C. OFFICIAL CODE § 2-1431.048(A), the District of Columbia Office of Disability Rights is instruc ted, “[n]o later than one year af ter the establishment of the Of fice, and by January 1 o f each year thereafter , submit to the Mayor and Council an Ol mstead Compliance Plan.” Nothing in this provision authorizes Plaintif fs to sue for relief. As is clear from the plain language, it does grant rights to a ny class of persons and does not contain the elem ents required for an i mplied right of action under the law . Indeed, this provision refers only to a report to be subm itted annually to the Mayor and th e D.C. Council. Because the statute does not contain any languag e indicating, or even implying, that enforceable rights are created in private citizens or other third parties, the District is entitled to a dismissal of this implied claim.
CONCLUSION Because Plaintiffs have failed to allege any relationship between their continued residence in nursing facilities and th e actions of the District , that the District has concluded that communitybased services are appropriate to meet their needs, or that t he cost of such care w ould be less than the cost of t he care they receive in nursing facilities, Plaintiffs have failed to allege facts necessary to prove t heir claims against the Di strict. Fu rthermore, because Plaintiffs have sued the individually-named defendants in their official capacities only , these claims are redundant. In addition, any implied claim under D.C. OFFICIAL CODE § 2-1431.048(A) cannot stand, as this provision does not confer a priv ate cause of action. For these reasons, Plaintiffs’ First Amended
29

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 33 of 45 Complaint should be dism issed in its entirety , or the claim s against the individually-named defendants and any i mplied claim under D.C. OFFICIAL CODE § 2-1431.048(A) should be dismissed.
Moreover, because the District h as several com prehensive, effective, programs to facilitate community-based servic es for disabled individuals, it is entitled to judg ment in its favor. Plaintif fs simply are not entitled to the u nlimited government-funded services or to demand different procedures because they are unwilling to work with the District to obtain spots in the District’s existing programs. For thes e reasons, judgment therefore should be entered in favor of the District and Plaintiffs’ First Amended Complaint should be dismissed in its entirety.
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

EDWARD DAY, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-cv-02250-ESH

)

DISTRICT OF COLUMBIA, et al.

)

)

Defendants.

)

)

______________________________________)

STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE 1. The District has of fered the Elderly and Phys ical Disabilities (“EPD”) waiver prog ram since 1999, when it first received approval fr om the Center for Medicaid and Medicare Services (“CMS”) to do so. (Exh. 2, ¶¶ 3-4.) 2. Through the EPD waiver program, the District uses federal and local money to pay for home and community-based care to any qualified individuals aged sixty-five (65) and over and the physically disabled population aged e ighteen (18) to si xty-four (64) who other wise would require the level of care provided in a nursing home. (Id., ¶ 4.) 3. Any individual who m eets the elig ibility requirements for the EPD waiver m ay participate, regardless of whether they reside in a nursing facility or whether they reside in the community when they apply for the program. (Id., ¶ 4.) 4. DHCF may pay for case m anagement services, hom emaker services, personal care aides, respite care, environmental adaptation and accessibility , personal emergency response services, assisted living services, and chore services. (Id., ¶ 5; see also, Exh. 4 EPD 2007

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Renewal, at 48-88.) Housing, meals, room and board, or 24-hour skilled care or supervision are not eligible expenses under the EPD waiver program. (Exh. 2, ¶ 8.) 5. Candidates for the EPD wai ver program work with a case manager , a private, Medicaidenrolled, provider selected by the candidate to create an individual service plan (“ISP”) that is subject to DCHF a pproval and t hat must specify the community-ba sed services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided. (Id., ¶¶ 6-7.) 6. The EPD waiver program must be cost-neutral; the cost of the program in its entirety cannot exceed the cost of care abse nt a wavier program, nor can the cost of community-based services necessary to meet an i ndividual's needs exceed the cost of servi ces the individual would receive in a nursing facility. (Id., ¶ 9.) In a ddition, the number of beneficiaries who can participate in each year in a waiver program is limited to the number approved by CMS. (Id., ¶ 10.) CMS has approved a cap at 3,940 individuals. ( Id., ¶ 10.) Approximately 3,278 individuals are enrolled in the EPD waiver program. (Id., ¶ 12.) 7. Information about the EPD waiver is available on the DHCF and Di strict of Columbia Office on Aging websites. ( Id., ¶ 14) D HCF’s Office of Chronic and Long-Term Care (CLTC) and the Of fice of the Om budsman also send out inform ation about the EPD Waiver program to callers re questing information. The Aging and Disabilities Resource Center in is the process of finalizing a brochure about the EPD Waiver program in conjunction with DHCF. (Id., ¶ 14.) 8. In Fiscal Year 2010, the District spent $495,887,575 in long-term care services in institutions and under waiver program s. Of that a mount, $275,625,616 (55.6%) covered institutional services (interm ediate care facilities and nursing hom es); $220,261,959 (44.4%) covered hom e and community-based se rvices under 1915(c) waiver program s
2

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for the elderly and physically disabled and persons with intellectual and developm ent disabilities. (Exh. 1, ¶ 3.) 9. DHCF also operates the Money Follows the Person (“MFP”) program , providing additional funding and support to individuals tran sitioning from institutional settings to the community. (Exh. 3, ¶ 4.). 10. An MFP participant’s transition to the community and first year of qualified communitybased services are paid for at an enhanced Federal Matc h rate (89.65%. decreasing in 2011 to 85% under Federal regulation) unde r the MFP program, including a maximum $5,000 one-time transition service payment to purchase furniture, co oking utensils, and other items essential to living in the community, and to cover moving expenses. (Id., ¶ 18.) After this initial year, MFP participants who continue to meet the eligibility requirements are transitioned from the MFP program to the EPD waiver program. (Id., ¶ 5.) 11. As with the EPD waiver program, a candidat e for the MFP program is r eferred to a Transition Coordinator, who t hen provides the candidate with a list of Medicaid enrolled case management providers from which the candidate selects the case manager with whom he or she would li ke to work. (Id., ¶ 14.) Case Mana gers work with an ISP team to create an ISP specifying the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup a nd emergency services will be provided. (Id., ¶ 15.) 12. CMS initially approved the Di strict’s MFP program in 2007, but di d not approve the Operational Protocol until June 2008. ( Id., ¶ 4.) At that time, CMS limited the District to running a pilot program limited solely to supporting the transfer of indivi duals with intellectual disabilities from Intermediate Care Facilities for individuals with Mental Retardation (“ICFs/MR”) under the DD HCBS. ( Id.) C MS did not approve DHCF’s
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Operational Protocol for the MFP waiver program until October 2010, thereby preventing the District from beginning to expand this program to nursing hom es residents eligible for the EPD waiver until the end of 2010. (Id., ¶¶, 11-12.) 13. The MFP program is limited to the number annually approved by CMS annually. (Id., ¶ 6.) CMS recently approved an addition al expansion of the MFP program in March o f this year, allowing DHCF t o accept an additional three hundred twenty (320) qualified nursing home residents into the MFP program through 2016. (Id., ¶ 27.) 14. Under the MFP program, the District has successfully transitioned approximately seventy-seven (77) people from ICFs/MR to the DD HCBS waiver. 15. Since the MFP Operational Proto col was approved, DHCF has hired two full-tim e Transition Coordinators focused on transi tions from nursing facilities who, a mong their other duties, meet with nursing home administrators and staff to inform them about the EPD waiver program. (Id., ¶ 26.) DCOA/ARDC al so is in the process of hiring two (2) additional full-time MFP Transition Coordinators who will f ocus on transitions f rom nursing facilities. ( Id.) Transition Coordinators also assist with housing arrangem ents, work with the EPD waiver Case Manager se lected by th e participant to develop the participant’s ISP, help coordinate the part icipant’s initial move, and assess ex isting barriers that prevent an otherwise willing and eligible person for successfully transition to the community. (Id.) 16. The District estab lished an Aging and Disa bility Resource Center Transition Team (“ARDC Transition Team”) to begin the implementation of the MFP Operational Protocol. The ARDC Transition Team has used a preferen ce interview tool to identify residents of nursing faciliti es identified by ULS and nursi ng home administrators to determine eligibility for the MFP Demonstration. (Id., ¶ 24.)
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17. DHCF and the MFP Project Team requests an d receives quarterly Minimum Data Set (MDS) information from The Delmarva Foundation, comprised of infor mation nursing facilities are required to collect about their residents at least every three m onths. (Id., ¶ 13.) This information includes whether resi dents wish to speak to someone about the possibility of returning to th e community and to refer any individual who answers affirmatively to the District.
18. DHCF also has work ed closely with the DC Health Care Association (“DCHCA”), the trade association for nursing hom es, to infor m administrators and staf f about the MFP demonstration program. ( Id.) The Executive Director o f the DCHCA is an active member of the MFP Stakeholder Advisory Commission and has worked with members of the MFP Project Team to diss eminate information to adm inistrators and staff via em ail and in person at DCHCA meetings. (Id.)
19. The MFP Outreach Specialist housed in th e DC Of fice on Aging/Aging and Disability Resource Center also is in contact with each nursing hom e in the District reg arding the MFP Demonstration and has conducted one-on -one follow-up visits with inte rested administrators and social work/nursi ng staff to provide prelim inary. (Id.) The Outreach Specialist has begun a list of nursing hom e residents’ names who are candidates for MFP either based on nursing hom es administrators’ and/or staf f recommendations or selfreferral. (Id.)
20. University Legal Serv ices (“ULS”) was a member of the Money Follows the Progra m Advisory Committee and continued to rece ive updates from this program until this lawsuit was filed in December 2010. In March 2010, they provi ded DHCF a list of thirty (30) nursing home residents it claimed wished to transition to the MFP program. (Id., ¶ 23.) DHCF subsequently launched an expande d MFP pilot project involving forty (40) 5

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 39 of 45
nursing home residents in collaboration with the DC’ s Aging and Disability Resource Center, in August 2010, including any of th e thirty (30) individuals identified by University Legal Services who still res ided in nursing f acilities at the tim e the pilot project was initiated, or sixteen (16) people. (Id.) 21. DHCF is working with 26 candidates for th e MFP program, including all MPF pilot participants who rem ain interested in receiving community-based services. ( Id., ¶ 25.) Transition Coordinators have met with all residents in the pilot to align both housing and health services and Housing Choice Voucher applications have been submitted to the DC Housing Authority for all pilot participants. ( Id.) Participants have also been connected to EPD HCBS Waiver case m anagement agencies to conduct initial EPD Waiver assessments. 22. Candidates for the MFP program are not given a spot in the program and transitioned to the community until all necessary community-based services are identified and approved, and housing appropriate to meet his or her needs is procured. (Id., ¶ 20.) 23. Some candidates for the MFP program with whom DHCF is working lack housing in the community in which th ey can receive community- based services; they require public housing assistance. (Id., ¶ 21.) MFP candidates eligible for the EPD Waiver may apply to the District of Columb ia Housing Authority (“DCHA”) for a spot in the Housing Choic e Voucher program a nd the Moderate Rehabi litation program, which are available to any qualified individual regardless of disability. (Id., ¶ 17.) Individuals aged sixty-two (62) and older also may be eli gible for housing subsi dies available to re sidents of seni ors-only housing. (Id., ¶ 15.) Transition Coordinators work with MFP and EPD candidates to secure housing, including by as sisting them in filing out t he appropriate housing voucher forms. (Id., ¶ 26.) I n 2011, DHCF was able to secure ten (10) additional housing choice
6

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 40 of 45
vouchers specifically for non-el derly Medicaid recipients. ( Id., ¶ 18.) There also is a limited supply of Housing C hoice Vouchers set aside specifically for MFP participants (currently under 100 for all M FP transitions through the end of the Demonstration) and a diminished use of other federal housing subsidy programs, however. (Id., ¶ 21.) 24. Some candidates for t he MFP program also have credit hi stories that prevent property managers from approving leasing applications; and ot hers lack family members or friends willing to provide supp ort in the community in preparation for, during, and post-transition. (Id.) 25. Some candidates for the MFP program cannot secure the services necessary to meet their physical and medical needs i n the community because they re quire a l evel of care that cannot be provided by the District’s current Home an d Community-Based Service (HCBS) system, because cer tain necessary services are not provided in the HCBS waiver package (adult day services, 24-hour care),and/or the current pool of HCBS waiver providers do not have the capacit y to pr ovide these servi ces based on the num ber of qualified staff and a provider’s ability, readiness, and willingness to accept liability for level care needed). (Id.) 26. The first nursing home resident eligible for the EPF waiver transitioned to the community under the MFP program on April 13, 201 1, and all pilot participants should be transitioned by September 2011 barring any una nticipated barriers, many of which were listed above. (Id.) 27. DHCF anticipates transitioning eighty (80) nursing hom e residents to the comm unity under the MFP program each year from 2011 through 2016. (Id., ¶ 28.) 28. The Department of M ental Health (“DM H”) conducts Pre-adm ission Screening and Resident Reviews (“PASRR”) for a ny individual indentified by his or her provider as having a mental health diagnosis and for whom the provider has reason to believe
7

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 41 of 45
placement in a nursing facility will be appropr iate. (Exh. 5, ¶ 3.) The referring clinician conducts the Level 1 S creening to determine whether an indi vidual being referred to a nursing facility has a prim ary or secondary diagnosis of m ental illness. ( Id., ¶ 4.) If so, DMH conducts a Level II Screening, whic h requires an independent psychiatric evaluation of the individual and a determ ination as to whether the level of care provided by a nursing facility is required. (Id.) 29. DMH does not operate, or provide services in, nursing facilities. 30. Nursing facilities are required to notify DMH and request a PASSR review if a patient with a primary or secondary m ental health diagnosis has undergone significant change in his or her physical or mental conditions. (Id., ¶ 5.) 31. DMH reminded the nineteen (19) nursing faci lities within the District of Columbia, which provide direct care to their residents, of their continuing obligation to notify DMH of any sign ificant changes in the physical or mental condition of a nursing facilities resident on October 8, 2010 and again on January 12, 2011. (Id., ¶ 6.) 32. Dr. Elspeth Ritchie, the Chief Clinical Officer with DMH who is responsible for managing the PASRR determinations for current and potential nursing fa cility residents, has personally reached out to nursing facilities to rem ind them of their obligation s to request PASARR reviews. She ha s visited seven (7) nursing facili ties to discus s the PASRR program and provide tech nical assistance and ha s two (2) a dditional visits scheduled. (Id., ¶ 6.) 33. The Department on Disability Services, De velopmental Disabilities Administration (“DDA”) oversees and coordinates care for 2,09 4 individuals w ith developmental disabilities, and none of whom are the named plaintiffs. (Exh. 6, ¶¶ 5, 15.)
8

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 42 of 45

34. DDA assumes that all individuals can live in the most inclusive setting possible, and an

individual’s ISP must address any deviation from this assu mption and must be reviewed

by DDA’s Human Rights Advisory Committee (“HRAC”). ( Id., ¶¶ 6-7.) Before DDA

approves placement in a nursing facility, the individual, his or her family or guardian and

advocate, if any, the current serv ice provider and medical staff, and the HRAC m ust be

involved in that decision. ( Id., ¶ 9.) The individual’s ISP must document why a

community setting is not appropriate, a de termination that m ust be corroborate by a

medical provider not currently directly i nvolved in the individual’ s ongoing care. ( Id.)

The ISP also must include a description of the specific supports and services required due

to the individual’s diagnosis and medical status, and specify a planning process to address

the individual’s needs and potential barriers to the ind ividual’s transition back to a

community-based setting. (Id.)

35. The advocate for any individual whose placem ent in a nursing facility has been approved

by DDA must appear monthly before the HR AC to justify the individual’ s continued

residence in a nursing facility. (Id., ¶ 11.) If the HRAC believes placem ent in a nursing

facility no longer is appropriate for an indi vidual, it recommends that D DA aggressively

pursue an alternative, less restrictive, setting that can appropriatel y meet the individual’s

needs. (Id., ¶ 12.)

36. As of December 31, 2008, eight (8) individu als served b y DDA resided in nursing

facilities; as of December 31, 2009, six (6) individuals served by DDA resided in nursing

facilities; and as of Decem ber 31, 2010, five (5) individuals served by DDA resided in

nursing facilities. (Id., ¶ 13.)

Dated: April 27, 2011

Respectfully submitted,

IRVIN B. NATHAN 9

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 43 of 45

Acting Attorney General for the District of Columbia

GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division

ELLEN A. EFROS Assistant Attorney General Chief, Equity Section I

/s/

Sarah A. Sulkowski

SARAH A. SULKOWSKI

Assistant Attorney General

Bar Number 493235

Suite 600 South

441 Fourth Street, N.W.

Washington, D.C. 20001

(202) 724-6627

(202) 730-1454 (fax)

E-mail: sarah.sulkowski@dc.gov

/s/ Melissa L. Baker MELISSA L. BAKER Assistant Attorney General Bar Number 499368 Suite 600 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 442-9887 (202) 730-1499 (fax) E-mail: melissa.baker@dc.gov

10

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 44 of 45

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

EDWARD DAY, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-cv-02250-ESH

)

DISTRICT OF COLUMBIA, et al.

)

)

Defendants.

)

)

______________________________________)

PROPOSED ORDER

Upon consideration of Defendants’ motion to dismiss or, in the alternative, for summ ary

judgment, any opposition thereto, and the entire record in this matter, it is hereby

ORDERED that Defendants’ motion is GRANTED, and it is further

ORDERED that Counts One and Two of Pl aintiffs’ Complaint are DIS MISSED WITH

PREJUDICE.

SO ORDERED.

Dated: ________________________ Hon. Judge,

___________________________ Ellen S. Huvelle United States District Court

11

Case 1:10-cv-02250-ESH-AK Document 19 Filed 04/27/11 Page 45 of 45 CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2011, a true copy of the foregoi ng Defendants’ Motion to Dismiss or, in the Alternative, for Su mmary Judgment, Memorandum of Points and Authorities in Support of De fendant’s Motion for Summary Judgment, Statement of Material Facts As To Which There Is No Genuine Issue, and Proposed Orders were served by filing with the Court’s electronic filing system, thereby electronically serving all counsel of record.
/s/ Melissa L. Baker Melissa L. Baker Assistant Attorney General
12

 
 Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 1 of 45

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD DAY, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA, et al.

)

)

Defendants.

)

_________________________________________ )

Civil Action No.1:10-cv-02250 Judge Ellen S. Huvelle

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Marjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 Victoria L. Thomas, D.C. Bar No. 1001027 mrifkin@uls-dc.org jlav@uls-dc.org vthomas@uls-dc.org University Legal Services–Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org Bvignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424

Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider.brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395
Counsel for Plaintiffs

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 2 of 45
TABLE OF CONTENTS
Page I. INTRODUCTION. ................................................................................................................. 1 II. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT. ............................ 2
A. Summary Judgment Standard. ..........................................................................................2 B. The ADA Requires a Comprehensive and Effective Working Plan.................................2 C. Defendants Do Not Comply With the Requirements of the ADA, the Integration
Mandate, and Olmstead. ...................................................................................................4 1. Community placement is appropriate and Plaintiffs do not oppose it. ....................4 2. The District fails to establish that it complies with the Integration Mandate. .........5
a. Defendants have not evaluated the current needs of the population in nursing facilities..............................................................................................9
b. There is no effective interagency collaboration in the District.....................13 c. There is a material dispute as to whether Defendants have specific,
measurable, and reasonable timeframes and goals. ......................................15 d. There is a material dispute as to whether Defendants have rebalanced
their long-term care spending from institutional care to communitybased services................................................................................................17 e. Defendants cannot show success in actually transitioning individuals from nursing facilities into the community under an integration plan or process...........................................................................................................20 D. Defendants Cannot Raise a Fundamental Alteration Defense. .......................................24 III. DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED.................................... 26 A. Standard for Motion to Dismiss. .....................................................................................27 B. Olmstead’s Requirements Apply to Plaintiffs in Nursing Facilities...............................28 C. Plaintiffs Have Alleged a Relationship Between Defendants and Plaintiffs’ Treatment in Nursing Facilities. .....................................................................................29
i

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 3 of 45 D. The ADA Does Not Require Defendants’ Medical Professionals to Assess
Plaintiffs’ Eligibility to Receive Care in a Community-Based Setting. .........................31 E. The ADA Does Not Require Allegations of Cost Neutrality at the Pleading Stage.......33 F. The Individual Defendants Are Appropriately Sued in Their Official Capacities. ........35 IV. CONCLUSION..................................................................................................................... 36
ii

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 4 of 45

TABLE OF AUTHORITIES

CASES

Page(s)

Alston v. Washington Metropolitan Area Transit Authority, 571 F. Supp. 2d 77 (D.D.C. 2008) (Huvelle, J.) ........................................................................2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................................................................................................2

ARC of Washington State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) .....................................................................................7, 8, 17, 20

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .............................................................................................................27

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................27

Benjamin v. Dep’t of Pub. Welfare of Pa., 768 F. Supp. 2d 747 (M.D. Pa. 2011) ..................................................................................6, 24

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001).................................................................................................................35

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)...................................................................................................................7

Boyd v. Steckel, 753 F. Supp. 2d 1163 (M.D. Ala. 2010) ..................................................................................32

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) ...................................................................................15

Bryant v. Pepco, 730 F. Supp. 2d 25 (D.D.C. 2010) ...........................................................................................27

Chase v. City of Portsmouth, 428 F. Supp. 2d 487 (E.D. Va. 2006) ......................................................................................35

Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008)...........................................28, 33

iii

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 5 of 45
Conn. Office of Protection & Advocacy for Persons With Disabilities v. Conn., 706 F. Supp. 2d 266 (D. Conn. 2010) ..........................................................................28, 30, 31
Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) ............................................25
Disability Advocates Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ..................................................................25, 30, 31, 35
Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) ..............................................................8, 13, 15, 28, 32
Dominion CoGen, D.C., Inc. v. D.C., 878 F. Supp. 258 (D.D.C. 1995) ..............................................................................................35
Fisher v. Maram, No. 06-4405, 2006 WL 2505833, (N.D. Ill. Aug. 28, 2006) .....................................................7
Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) .........................................................................................25, 28
Frederick L. v. Department of Public Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001) .......................................................................................31
Frederick L. v. Department of Public Welfare of Pennsylvania, 364 F.3d 487 (3d Cir. 2004) (“Frederick L. I”) .............................................................6, 15, 25
Frederick L. v. Department of Public Welfare of Pennsylvania, 422 F.3d 151 (3d Cir. 2005) (“Frederick L. II”)......................................................8, 13, 15, 24
Ihebereme v. Capital One, N.A., 730 F. Supp. 2d 40 (D.D.C. 2010) (Huvelle, J.) ......................................................................27
Johnson v. District of Columbia, 572 F. Supp. 2d 94 (D.D.C. 2008) ...........................................................................................35
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) ...................................................................27, 28, 30, 32
Ligas v. Maram, No. 05 C 4331, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006) .....................................................33
Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008)............................28, 32
iv

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 6 of 45
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................29
M.A.C. v. Betit, No. 2:02CV1395, at 15 (D. Utah Feb. 28, 2006).................................................................8, 24
Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002) ..............................................................................24, 25
Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008) ........................................................................................9
Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008) ...................................................................................................7
Owens v. District of Columbia, 631 F. Supp. 2d 48 (D.D.C. 2009) (Huvelle, J.) ................................................................27, 35
Pennsylvania Protection & Advocacy Inc. v. Department of Public Welfare, 402 F.3d 374 (3d Cir. 2005)...............................................................................................15, 28
Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) ...................................................................................................7
Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) ...............................................................................................7, 35
Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999) ........................................................................................31
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) ...................................................................................8, 9, 11, 20
Williams v. Quinn, 748 F. Supp. 2d 892 (N.D. Ill. 2008) .....................................................................................8, 9
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) .........................................................................................20
Winder v. Erste, No. Civ.A 03-2623(JDB), 2005 WL 736639 (D.D.C. 2005)...................................................35
STATUTES
29 U.S.C. § 794(a) ...........................................................................................................................2
v

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 7 of 45
42 U.S.C. § 1396n(C)(2)(D) ..........................................................................................................34 42 U.S.C. § 1396n(c)(4)(A) ...........................................................................................................34 42 U.S.C. §§ 12101(a)(2), (5) ..........................................................................................................2 42 U.S.C. § 12132............................................................................................................................2 42 U.S.C. § 12134............................................................................................................................7 D.C. Code § 2-1431.04(8)(A) ........................................................................................................36 OTHER AUTHORITIES 28 C.F.R. § 35.130(b)(1)................................................................................................................31 28 C.F.R. § 35.130(b)(7)................................................................................................................24 28 C.F.R. § 35.130(d) ..................................................................................................................3, 7 42 C.F.R. § 441.303 .......................................................................................................................34 42 C.F.R. § 483.100 et seq.............................................................................................................12 56 Fed. Reg. 35,694 (July 26, 1991)................................................................................................3 Fed. R. Civ. P. 8(a)(2)....................................................................................................................27 Fed. R. Civ. P. 56(a) ........................................................................................................................2 Fed. R. Civ. P. 12(b)(6)..................................................................................................................27
vi

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 8 of 45
I. INTRODUCTION. Defendants assert that they are, as a matter of law, not in violation of the Integration
Mandate of the Americans with Disabilities Act (“ADA”) because they provide long-term care services in the community. But there are material disputes as to what Defendants actually provide and, moreover, what they provide falls woefully short of meeting their legal obligations.
The ADA, its implementing regulations, and the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), require far more than simply offering some community services. They require that the District have a comprehensive, effectively working plan to affirmatively and systematically transition institutionalized individuals with disabilities from nursing facilities to the community. Defendants have no process to identify people who want to be reintegrated into the community from nursing facilities or to assess the needs of those individuals. They do not assist nursing facility residents who want to be deinstitutionalized in making the transition from nursing facilities to the community with the services and supports they need. They do not even know how many individuals institutionalized in nursing facilities have transitioned to the community. In fact, despite Defendants’ recognition that between 526 and 580 nursing facility residents desire community placement, Defendants can identify just two individuals with disabilities whom they have ever transitioned from nursing facilities. In addition, while Defendants claim that their existing programs are robust, material disputes of fact exist as to the extensiveness and effectiveness of those programs in transitioning people from nursing facilities to the community. Accordingly, Defendants are not entitled to summary judgment.

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 9 of 45
Furthermore, Plaintiffs have sufficiently pled Defendants’ role in causing Plaintiffs’ injuries, including why each of the Defendants should remain in this matter. Defendants’ arguments for dismissal thus also fail. II. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT.
A. Summary Judgment Standard. Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In considering a motion for summary judgment, the ‘evidence of the non-movant is to be believed, and all justifiable inferences drawn in his favor.’” Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. 2d 77, 81 (D.D.C. 2008) (Huvelle, J.) (quoting Anderson, 477 U.S. at 255). As set forth below, there are genuine issues of material fact in dispute, and Defendants cannot show that they are entitled to judgment as a matter of law. B. The ADA Requires a Comprehensive and Effective Working Plan. The isolation and segregation of individuals with disabilities in institutions is a form of discrimination under the ADA. 42 U.S.C. §§ 12101(a)(2), (5). Title II of the ADA prohibits discrimination in the provision of public services: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly provides that no person with a disability may “solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
2

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 10 of 45
The Department of Justice regulations implementing these provisions require a “public entity [to] administer . . . programs . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).1 This requirement – known as the “Integration Mandate” – cannot be satisfied simply by the existence of community-based services. Rather, when appropriate, a state must take proactive steps to successfully transition individuals from more restrictive settings, like nursing facilities, to less restrictive ones, like ordinary housing.
In Olmstead, the Supreme Court clarified the contours of the Integration Mandate, holding that unjustified institutionalization of individuals with disabilities constitutes illegal discrimination on the basis of disability. 527 U.S. at 597. The Court held that Title II of the ADA requires a state agency to place an individual with disabilities in a community-based setting when each of three basic elements is met: First, community placement must be appropriate for the individual. Id. at 587. Second, community placement cannot be opposed by the affected individual. Id. Third, community placement must be a reasonable accommodation, when taking into account the resources available to the state and the needs of others with the same type of disabilities. Id. The accommodation is reasonable unless the state can show that it already has in place a “comprehensive, effectively working plan for placing qualified persons . . . in less restrictive settings,” and accommodating individuals further would “fundamentally alter the nature of the service, program, or activity.” Id. at 596-97, 605-06. When these elements are met, the state has a legal duty to provide community-based treatment, rather than subjecting individuals to the segregated environment of nursing facilities. Id. at 607.
1 The “most integrated setting appropriate” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 56 Fed. Reg. 35,694, 35,705 (July 26, 1991).
3

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 11 of 45
C. Defendants Do Not Comply With the Requirements of the ADA, the Integration Mandate, and Olmstead.
There is ample evidence that the first two elements of Olmstead’s requirements are satisfied. But material disputes of fact abound as to what Defendants’ existing programs accomplish with respect to deinstitutionalizing people with disabilities from nursing facilities, as well as whether those programs comply with the Integration Mandate, thus precluding a finding of summary judgment in Defendants’ favor.
1. Community placement is appropriate and Plaintiffs do not oppose it. There is no dispute that community placement is appropriate for Plaintiffs. Defendants admit that Plaintiffs “appear to be eligible” for community-based services. Mem. of Points and Authorities in Supp. of Defs.’ Mot. to Dismiss, or in the Alternative, for Summ. J. (“Defs.’ Mem.”) at 16. This is consistent with the opinions of medical professionals, who have concluded that Plaintiffs are eligible for community placement. Declaration of Kenneth S. Duckworth, M.D. (attached hereto as Ex. A) ¶ 16. There also is no dispute that Plaintiffs do not oppose community placement. All five named Plaintiffs state that they affirmatively desire to move to the community with transition assistance and appropriate community-based supports and services from Defendants. Am. Compl. ¶¶ 28, 32, 40, 43, 47; Declarations of Bonita Jackson (attached hereto as Ex. B) ¶ 5, Vietress Bacon (attached hereto as Ex. C) ¶ 11, Roy Foreman (attached hereto as Ex. D) ¶ 10, Edward Day (attached hereto as Ex. E) ¶¶ 11-13, and Larry McDonald (attached hereto as Ex. F) ¶ 14; Ex. A ¶ 16. Defendants further admit that there are between 526 and 580 individuals who have expressed a desire to transition from nursing facilities, but Defendants have not followed up or assisted these individuals in making the transition to the community. Deposition Transcript of
4

Case 1:10-cv-02250-ESH Document 28 Filed 09/01/11 Page 12 of 45
Ericka Bryson-Walker (attached hereto as Ex. G) at 48:4-12, 96:6 – 97:10 & Exs. 3 & 9; Deposition Transcript of Leyla Sarigol (attached hereto as Ex. H) at 32:12 – 33:16. The only dispute in this regard may be whether there are hundreds, or even thousands, of additional prospective Plaintiff class members receiving District Medicaid-funded services in nursing facilities who desire community placement but have not been identified by Defendants. Because the District does not provide information about available community-based services to nursing facility residents, Ex. H at 103:11-15; Ex. G at 43:1-10, 44:5-17, 121:2-16, there may be many more than 526 to 580 residents who would prefer to be served in the community.
2. The District fails to establish that it complies with the Integration Mandate.
The dispute in this matter ultimately hinges on Olmstead’s final element, whether community placement is a reasonable accommodation. To refute the reasonableness of the accommodation, Defendants must demonstrate that they have a comprehensive, effectively working Integration Plan and that the requested change to that plan would constitute a fundamental alteration. Defendants cannot satisfy this burden because they do not have an effectively working Integration Plan. See Olmstead, 527 U.S. at 596-97, 605-06.
Defendants’ papers both misrepresent the factual contours of the programs they have in place and misconstrue the legal requirements governing those programs. Defendants admit that Olmstead requires the District to have a “comprehensive, effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings.” Defs.’ Mem. at 13. But Defendants seem to misunderstand what that means. Defendants assert that they comply with Olmstead because they have sufficient community-based programs and services in place. Defs.’ Mem. at 24-27. But the mere existence of (1) a Medicaid Waiver Program for People who are
5

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Elderly and/or have Physical Disabilities (“EPD Waiver Program”) that provides communitybased services; (2) a fledgling Money Follows the Person Program (“MFP Program”) designed by the Federal government to transition individuals out of institutions that has transitioned only two individuals from District-funded nursing facilities; and (3) use of the federally mandated Pre-Admission Screening and Resident Review (“PASRR”) process (a screening tool to determine whether individuals have a mental illness or cognitive disability), are not sufficient to constitute a comprehensive and effective Olmstead Plan. Yet this is all that Defendants identify – without a single case citation in support – to bolster their assertion that they have already implemented an acceptable Olmstead Plan. See generally Defs.’ Mem. at 12-27.
Preliminarily, the District lacks a crucial starting point for Olmstead compliance – a written Olmstead Plan. Because Olmstead requires states to ensure that people with disabilities are not unnecessarily segregated, most states have spear-headed their efforts to comply with Olmstead by developing and formally adopting a written Olmstead Plan. Terence Ng, MA, Alice Wong, MS and Charlene Harrington, PhD, “A Table of State Olmstead plans and related state activity,” available at http://www.pascenter.org/olmstead/downloads/olmstead_plans_table.pdf (Aug. 2009). While Defendants admit that the District must have an Olmstead Plan, Defs.’ Mem. at 13, the District has not taken the basic step of adopting or implementing any written plan. Indeed, the District ceased trying to formally adopt an Olmstead Plan after attempts during the previous administration failed. Declaration of Gerald Kasunic (attached hereto as Ex. I) ¶¶ 15, 18; Ex. H at 213:19 – 214:8.2
2 Even if the District formalized a written Olmstead Plan today, it would still be lacking in compliance with Olmstead, as the examination of compliance requires concrete evidence of a commitment to deinstitutionalization. See Benjamin v. Dep’t of Pub. Welfare of Pa., 768 F. Supp. 2d 747, 755-56 (M.D. Pa. 2011) (“The existence of the Plan does not, however, automatically defeat liability because we do not read Olmstead, Frederick L. I., or
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Without a formal plan or policy, Defendants maintain that three of their existing efforts – the EPD Waiver Program, the MFP Program, and use of the PASRR screening tool – constitute a comprehensive and effectively working Olmstead Plan. These programs fall far short of what the law requires. Whether Defendants have a comprehensive, effectively working plan involves a fact-intensive inquiry into a state’s efforts to make reasonable modifications to policies, practices, and procedures to avert unjustified, discriminatory institutional isolation, taking into account the resources available to the state and the needs of others with the same type of disabilities. See Olmstead, 527 U.S. at 607; ARC of Wash. State, Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Fisher v. Maram, No. 06-4405, 2006 WL 2505833, at *3-4 (N.D. Ill. Aug. 28, 2006). In short, the court must evaluate a state’s plans and processes to avoid segregation, along with – if those plans and processes are insufficient – the state’s ability to better serve individuals under existing programs or expand its systems.
A comprehensive, effectively working plan under the ADA, Rehabilitation Act, and implementing regulations “must do more than provide vague assurances of future integrated options . . . .” U.S. Department of Justice, Statement of the Dept. of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., at 6-7, available at http://www.ada.gov/olmstead/q&a_olmstead.htm (June 22, 2011) (“DOJ Olmstead Statement”) (attached hereto as Ex. J).3
Frederick L. II., or any of their progeny to stand for the proposition that a written document purporting a commitment to deinstitutionalization alone satisfies the requirements of those cases.”). 3 The Department of Justice (“DOJ”) has the authority to promulgate regulations implementing Title II, see 42 U.S.C. § 12134, and it was DOJ that issued the ADA’s Integration Mandate. See 28 C.F.R. § 35.130(d) (public entities must administer services and program in “the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). An agency’s interpretation of its own regulations, such as DOJ’s Olmstead
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The public entity’s plan must: a. “[R]eflect an analysis of” the current needs of the population, and “the extent to which the public entity is providing services in the most integrated setting;” b. “[H]ave specific and reasonable timeframes and measurable goals for which the public entity may be held accountable;” c. Include interagency collaboration; d. Be appropriately funded; and e. “[H]ave demonstrated success in actually moving individuals to integrated settings in accordance with the plan.”
Id. at 7. Accord Sanchez v. Johnson, 416 F.3d 1051, 1066 (9th Cir. 2005) (increased spending on community based programs and actual success at moving individuals is evidence of compliance); ARC of Wash. State Inc., 427 F.3d at 620 (state must show “commitment to deinstitutionalization”); Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 157, 160 (3d Cir. 2005) (“Frederick L. II”) (plan must “demonstrate[] a reasonably specific and measurable commitment to deinstitutionalization for which [the state] may be held accountable”; and should include “a general description of the collaboration required” between agencies); Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 269 (E.D.N.Y. 2009) (“DAI II”) (budget and spending are relevant considerations); Williams v. Quinn, 748 F. Supp. 2d 892, 897-98 (N.D. Ill. 2008) (consent decree approved requiring individualized analysis of needs and specific timeframe for transition); M.A.C. v. Betit, No. 2:02CV1395, at 19 (D. Utah Feb. 28, 2006)
Statement, is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also Olmstead, 527 U.S. at 598 (citing Bragdon v. Abbott, 524 U.S. 624, 642 (1998); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C. Cir. 1997) (same); Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008) (same).
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(attached hereto as Ex. K) (progress toward deinstitutionalization is evidence of effective plan). As set forth below, Defendants fail to demonstrate compliance with each of these requirements.
a. Defendants have not evaluated the current needs of the population in nursing facilities.
A public entity cannot create a comprehensive, effectively working integration plan without knowing how many individuals are in nursing facilities, how many individuals seek to move back to the community, and what kind of community-based services and supports they would need in order to make that transition. See Sanchez, 416 F.3d at 1066 (finding California’s efforts to identify and resolve gaps in services and needs were central to its comprehensive plan); see also Williams, 748 F. Supp. 2d at 897-98 (approving settlement that required assessment of the needs of all nursing facility residents within two years). Defendants must demonstrate that they have taken proactive steps to identify appropriate individuals interested in accessing services under a waiver for community services. Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 338 (D. Conn. 2008). The Integration Mandate thus requires the District to:
take affirmative steps to remedy [its] history of segregation and prejudice in order to ensure that individuals have an opportunity to make an informed choice. Such steps include providing information about the benefits of integrated settings; facilitating visits or other experiences in such settings; and offering opportunities to meet with other individuals with disabilities who are living, working and receiving services in integrated settings. DOJ Olmstead Statement at 4. For example, in Sanchez v. Johnson, the Ninth Circuit found that California’s identification of individualized needs and creation of services to assist such individuals to be an important element of a well-working Olmstead Plan, including assessments that were then
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utilized for “enhancing and developing the local resources needed to move the consumer from a Developmental Center into the community.” 416 F.3d at 1066.
In contrast to California’s plan in Sanchez, the District of Columbia does not have a plan based on an actual needs assessment of individual nursing facility residents, because the District of Columbia does not conduct such assessments and inquiries. Defendants do not provide information about community-based alternatives to nursing facility residents unless the residents affirmatively request it. Ex. G at 121:12-16. Defendants do not identify or follow up with people in nursing facilities who wish to transition to the community. Ex. H at 86:14-21, 96:498:11; Ex. G at 47:8-12. There is no systematic way for those with physical disabilities or mental illness to transition from nursing facilities, nor are there policies, procedures, or practices in place for transitioning people from nursing facilities other than through the MFP Program. Ex. H at 85:9-86:13, 87:21-88:7; Ex. G at 42:16-21, 45:13-16, 120:16-121:7, 127:8-12.
Indeed, Defendants acknowledge that they do not provide any transition assistance to nursing facility residents except for the few people designated to participate in the MFP Program pilot demonstration program. Ex. G at 42:7-21. The MFP Program therefore is the only District of Columbia program Defendants can identify through which they assess the needs of, and affirmatively assist, a limited number of designated individuals in nursing facilities to access services and supports in the community. But the MFP Program, as discussed further below, has transitioned only two individuals to the community, which is insufficient as a matter of law. See Section II.C.2.e, infra.
On one hand, Defendants’ witnesses state that the MFP Program must not be the primary way in which individuals transition to the community from nursing facilities because Defendants
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have transferred so few individuals under that program and it is “not ready to transition . . . everyone who is interested.” Ex. H at 17:20-18:14, 85:9-86:13, 99:12-15. While on the other hand, Defendants do not know the number of people, who transitioned from nursing facilities to the community through means other than the MFP Program. Ex. G at 45:7-12, 59:14-17, 77:1078:5. This leaves Defendants pointing in their briefs to the MFP Program as their prime mechanism for compliance with Olmstead, while admitting in reality that it is not the primary tool and has failed to transition more than two people to date.
Furthermore, and contrary to Defendants’ representations, Defs.’ Stmt. of Mat’l Facts ¶¶ 11, 15, 23, Defendants do not use the EPD Waiver Program to identify opportunities for, and facilitate, transitions of people from institutions to the community. While the EPD Waiver Program provides community-based supports to individuals with physical disabilities who are able to obtain slots in the program, Defendants do not use it to transition individuals from nursing facilities to the community. Indeed, Defendants’ designated witness testified that Defendants have no idea how many current EPD Waiver Program recipients transitioned from nursing facilities. Ex. G at 45:7-12, 59:14-17, 77:10-78:5. Defendants have filled hundreds of EPD Waiver Program slots with people who were already in the community receiving State Plan personal care assistant (“PCA”) services. Id. at 59:18-60:18.4 To make matters worse, the Department of Health Care Finance (“DHCF”) does not reserve any EPD Waiver Program slots for people transitioning from institutions such as nursing facilities. Id. at 54:12-17. Once the remaining 240 available EPD Waiver Program slots are filled, Defendants do not plan to increase
4 Compare Ex. H at Ex. 18 (2,179 EPD Waiver Program participants as of April 5, 2010) with Ex. G at 59:8-13 (3,700 EPD Waiver participants as of July 29, 2011 using all but 240 slot of the 3,940 total allotted EPD Waiver Program slots for 2011). By proposing to cut the State Plan PCA services, the District actively urged PCA users in the community with minimal service needs to apply for the EPD Waiver Program, thereby limiting the availability of the remaining waiver slots for individuals seeking to leave nursing facilities.
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the number of slots; instead, they will establish a waiting list of people seeking to access EPD Waiver Program services. Ex. G at 66:5-68:6; D.C. Register (Aug. 19, 2011), available at http://www.dcregs.org/Gateway/NoticeHome.aspx?noticeid=1560844.
Similarly, Defendants have no idea which individuals may be eligible for DMH housing or need other readily available DMH supports to transition back to the community. Although Defendants estimate that between ten and twenty percent of nursing facility residents have a serious mental illness, Defendants do not know specifically how many individuals with serious mental illness are in nursing facilities. Deposition Transcript of Elspeth Cameron Ritchie, M.D. (attached hereto as Ex. L) at 170:18-171:19. In fact, the Department of Mental Health’s (“DMH’s”) policy of disenrolling from DMH services people with mental illness upon their admission to nursing facilities explicitly prevents nursing facility residents from accessing housing and mental health services, including transitional services, through DMH and its core service agency providers. Compare id. at 39:18-40:13 with Defs.’ Stmt. of Mat’l Facts ¶¶ 28, 31-32. No one keeps a list of individuals who have been disenrolled. Ex. L at 168:20-169:21. And DMH has not utilized the Minimum Data Set information available to identify which individuals with serious mental illness would like to transition from nursing facilities. Id. at 175:9-177:5.
Finally, Defendants assert that they rely on the PASRR process to ensure that individuals are identified for transition. Defs.’ Mem. at 21-22. PASRR is a federal Medicaid requirement. To comply, DMH must screen individuals who may have a mental illness prior to entering a nursing facility and when there is a change in mental status after nursing facility placement. 42 C.F.R. § 483.100 et seq. Although PASRR should be used as a “powerful tool for diversion . . .
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[and] transition,” Ex. L at Ex. 6, the District has misused that process. Much of DMH’s outreach to nursing facilities was pursuant to federal directives regarding technical requirements for gathering accurate PASRR information, id. at 79:1-12 & Ex. 5, and Defendants admit that they have actually used the PASRR process to encourage nursing facilities to accept more people with serious mental illness. Id. at 88:19 – 90:14. Defendants have not used PASRR to reasonably assess the transition needs of individuals in nursing facilities, id. at 75:8 – 78:4 & Ex. 4, and only recently started tracking what happens to individuals who received PASRR II screenings.5 Id. at 167:15-168:15. Indeed, Defendants cannot identify a single individual who was diverted or transitioned from a nursing facility through the PASRR process. Id. at 159:2162:13.
The District is operating in an information vacuum. It cannot create a comprehensive, effectively working Olmstead Plan because it has no reliable data on which to base it. District officials have no idea how many individuals have transitioned or seek their assistance to transition from nursing facilities, what services they need in order to do so, or what barriers they face. Without such basic assessment, information, and outreach to the individuals in nursing facilities, Defendants cannot plausibly argue that they have a comprehensive, effectively working plan that is responsive to Plaintiffs’ needs.
b. There is no effective interagency collaboration in the District. Interagency collaboration is an essential component of an effectively working Olmstead Plan:
To alleviate the concerns articulated in Olmstead, we believe that a viable integration plan at a bare minimum should specify . . . a
5 All individuals should receive a PASRR I screening, and those with a positive screen go on to the more in-depth PASSR II screening. Ex. L at 65:5-9.
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general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. Frederick L. II, 422 F.3d at 160; see also DAI II, 653 F. Supp. 2d at 301-02. Defendants lack any policy, procedure, or practice to address the inter- and intra-agency collaboration necessary to facilitate the community transition of nursing facility residents. Ex. G at 45:13-16; Ex. H at 85:9 – 86:13, 87:21 – 88:7. As a result of the lack of intra- or inter-agency coordination between the MFP Program and DHCF, Defendants delayed and, in some cases, prevented MFP Program participants from transitioning to the community. Ex. H at 48:16 – 51:13, 233:4 – 235:15. The MFP Program and the District of Columbia Office on Aging (“DCOA”) fail to provide transportation for residents of nursing facilities to search for potential facilities in the community. Id. at 170:17-173:11. Furthermore, despite an award of 200 federally-funded housing vouchers earmarked for nonelderly people with disabilities, Defendants failed to coordinate among the MFP Program/DHCF, the D.C. Housing Authority, and DMH to secure sufficient housing vouchers for people transitioning from nursing facilities. Id. at 42:6-17, 202:4 -203:20. As a result, only ten vouchers were allocated for people leaving nursing facilities and other institutions. Id. Defendants’ MFP Program consultant specifically cited the Defendants’ lack of a process for people to access housing subsidy vouchers as a barrier to transitions, as well as the separate “silos” in which Defendants operate, which are significant barriers precluding successful community transitions for those in nursing facilities. Id. at 210:2-20, 211:1-10 & Ex. 21. The failure of District agencies to work effectively internally or externally undermines any attempt by Defendants to comply with the ADA.
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Moreover, there is little or no coordination between DMH and DHCF, the Directors of which are Defendants here. Despite the fact that data confirms that ten to twenty percent of nursing facility residents have a diagnosis of schizophrenia, id. at 118:2-119:21; Ex. L at 170:18171:19; Ex. I ¶ 29, DMH has no mechanism, policy, or protocol regarding how to assist individuals in nursing facilities who seek to return to the community with necessary services and supports. Ex. L at 194:13-196:15; Ex. H at 120:1-18. District agencies do not provide printed materials describing the community-based mental health services available to people in nursing facilities, or conduct outreach to residents of nursing facilities with psychiatric disabilities to inform them of existing community-based services and how to access them. Ex. H at 108:2-7.
c. There is a material dispute as to whether Defendants have specific, measurable, and reasonable timeframes and goals.
An effective plan must have “specific and measurable” targets for transitioning individuals into the community. Frederick L. II, 422 F.3d at 157. An Olmstead Plan must demonstrate a state’s commitment to community placement for “which it can be held accountable by the courts.” Pa. Prot. & Advocacy Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare of Pa., 364 F.3d 487, 500 (3d Cir. 2004) (“Frederick L. I”). Courts require specific measures that track the states’ successful movement of people from institutions into the community. See, e.g., Frederick L. II, 422 F.3d at 157; DAI II, 653 F. Supp. 2d at 305 (Olmstead Plan “at the very least . . . requires a ‘reasonably specific and measurable commitment to deinstitutionalization’ for which the State ‘may be held accountable.’”). At a minimum, the Plan must “specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, [and] the eligibility for discharge.” Frederick L. II, 422 F.3d at 160. For example, in Frederick L., the
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Third Circuit was troubled that the state’s integration plan lacked any defined standard by which to measure the state’s success in moving individuals into the community. Id. at 158. The court held that a plan’s “general assurances and good faith intentions” is not enough to satisfy federal laws or the expectations of people with disabilities. Id. Instead, a working Olmstead Plan must be “adequately specific.” Id.; see also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1174 (N.D. Cal. 2009) (finding that the state “bear[s] the burden of ensuring more than a ‘theoretical’ availability” of alternative services in the community).
Defendants purport to have specific goals, but the only targets they offer have changed continuously as Defendants inevitably fail to meet them, even in the few months since Defendants filed their Motion. Defendants’ assertions in their papers are thus not only insufficient as a matter of law, but also conflict with Defendants’ own witnesses’ testimony. Defendants slashed the targeted slots in the MFP Program over a five-year period for people who are elderly or have physical and/or psychiatric disabilities, from 960 to 80. Ex. H at 36:12 – 37:4. Defendants then advised this Court that they planned to transition 80 individuals to the community by September 2011 and an additional 80 individuals each year for two years thereafter. Defs.’ Mem. at 26. Yet, contrary to Defendants’ assertions, they now plan to transition a total of 12 people from nursing facilities by September 30, 2011, Ex. H at 74:10-19, and an additional 15 people by December 31, 2011, for a total of 27, only one-third of the 80 people they pledged to transition. Id. at 85:2-8.
To date, Defendants cannot demonstrate that they are meeting even these meager goals. Four years after the commencement of the MFP Program, and twelve years after Olmstead, Defendants have transitioned only two people with physical disabilities from nursing facilities to
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the community. Defendants recognize that there are 526 to 580 prospective Plaintiff class members who have expressed a preference to receive services in the community rather than in nursing facilities. Ex. H at 32:12-33:16; Ex. G at 48:4-12, 96:6-97:10 & Exs. 3 & 9.
The law requires more than illusory targets. There are disputes of material fact as to whether – more than twelve years since the Olmstead decision – Defendants have meaningful, measurable targets for transitioning people from nursing facilities or whether they will meet such goals within specific, reasonable timeframes.
d. There is a material dispute as to whether Defendants have rebalanced their long-term care spending from institutional care to community-based services.
An Olmstead Plan should result in an increase in community-based waiver budgets for a particular population along with a decrease in the number of institutionalized individuals who can be adequately served by the community-based services. Put simply, expenditures alone – even increases in expenditures – cannot demonstrate an effectively working Integration Plan when there is no corresponding decrease in institutionalization. For instance, the Ninth Circuit acknowledged that the state of Washington’s integration plan involved a doubling of its budget for community-based programs “despite significant cutbacks or minimal budget growth for many state agencies. . . . During the same period, the budget for institutional programs remained constant, while the institutionalized population declined by 20%.” ARC of Wash. State Inc., 427 F.3d at 621. An increase in community-based spending for the relevant population of individuals with disabilities, absent a decrease in institutionalization, does nothing to remedy a plaintiff’s injury.
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Plaintiffs remain unnecessarily institutionalized, and Defendants have failed to demonstrate that they cannot accommodate Plaintiffs in the community. Unlike Washington’s experience, Defendants’ nursing facility occupancy rate has remained consistently above ninety percent for the last eleven years. Ex. G at 150:15-151:4, 151:18-152:2. Defendants can point to no evidence that they are rebalancing their long-term care expenditures for the relevant population of people with disabilities in favor of community-based services.
Defendants assert that they have spent large sums on community-based services in a proportion that is nearly equal to spending on institutional services. Defs.’ Mem. at 25-27. But these claims are skewed by Defendants’ inclusion of expenditures for services for people with intellectual and developmental disabilities which are both immaterial to Plaintiffs’ claims and disputed. The only valid comparison for Plaintiffs is between the costs under an EPD Waiver and the costs of nursing facility services. Contrary to Defendants’ contention, Defendants’ expenditures for the proposed Plaintiff class are severely lopsided toward institutions: When considering only the EPD Waiver Program, and excluding individuals with intellectual disabilities who are not part of this case,6 the current balance of institutional versus home and community-based services (“HCBS”) in the District for Plaintiffs is weighted heavily toward institutional care in that Defendants expended only about twenty-six percent of the total fiscal year 2010 Medicaid long-term care budget (for nursing facilities and the EPD Waiver Program) on EPD Waiver Program services. Deposition Transcript of Darrin Shaffer (attached hereto as
6 People with intellectual and developmental disabilities (IDD) in institutions called intermediate care facilities are eligible for community-based Medicaid Waiver services under an entirely separate waiver program administered by the D.C. Department on Disability Services with an entirely separate range of services. These individuals are not part of the prospective Plaintiff class in this case.
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Ex. M) at 38:4-39:9 & Ex. 2.7 While the ratio of nursing facility placements to communitybased waiver services may appear inflated if individuals eligible for the Medicaid Waiver Program for those with intellectual and developmental disabilities are included in this count, when appropriately separating out individuals who are eligible for the EPD Waiver Program, a genuine issue of material fact exists regarding whether the District is rebalancing its budget to allow for increased investment in community-based programs.
Moreover, if Defendants were to effectively rebalance long-term care spending in favor of community services, Defendants’ own evidence suggests that they would save money. Defendants ultimately spend substantially more on average per person in nursing facilities than they do on average per person in the EPD Waiver Program. For example, in 2007, the average annual cost of services in the District’s nursing facilities was $62,633 as compared with the average annual cost in the EPD Waiver Program of $46,186. Ex. M at 66:10-21 & Ex. 4. In 2008, nursing facilities cost $58,957 on average per person as compared to $21,849 for EPD Waiver Program services. Ex. G at 135:2-138:12 & Ex. 15.
Making matters worse, Defendants are losing millions of dollars in federal matching funds by not transitioning individuals from nursing facilities to the community. Id. at 57:19-59:7 & Ex. 5 at i. Defendants have lost out on a substantial ninety percent federal subsidy match for community-based services as a result of their failure to transition people from nursing facilities under the MFP Program. Defs.’ Stmt. of Mat’l Facts ¶ 10; Ex. H at 52:5-9. Defendants have squandered multiple opportunities to save millions of dollars in federal subsidies by their failure to provide Plaintiffs and prospective class members with community-based alternatives to
7 Defendants admit that there are only a few persons with Intellectual and Developmental Disabilities (“IDD”) in nursing facilities (five as of this year), and persons who are elderly and/or disabled but without an IDD tag are ineligible for Intermediate Care Facilities or IDD Waiver services. Defs.’ Stmt. of Mat’l Facts ¶ 8.
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services in nursing facilities. In addition to the factual disputes identified above, Defendants cannot show that they have, as a matter of law, effectively invested in community-based longterm care while deinstitutionalizing individuals and lowering expenditures on institutional care.
e. Defendants cannot show success in actually transitioning individuals from nursing facilities into the community under an integration plan or process.
To prove the existence of a comprehensive, effectively working Olmstead Plan, a state must show that it has actually transitioned people from institutions to the community. See DOJ Olmstead Statement at 7. In ARC of Washington State Inc., for example, the court found that Washington had a comprehensive, effectively working integration plan because the state could show an increase in community services coupled with a twenty percent drop in its institutionalized population. 427 F.3d at 621. Accord Sanchez, 416 F.3d at 1066 (California’s actual success at moving individuals provided evidence of compliance); DOJ Olmstead Statement at 7.
The evidence is clear that Defendants have utilized the MFP Program to transition only two people with physical disabilities from nursing facilities to the EPD Waiver Program. Ex. H at 68:3-11. Defendants have not transitioned any individuals with mental illness from nursing facilities. Ex. L at 62:1-64:1. The transition of only two people does not demonstrate that Defendants have an effective plan in place. Courts require much more to establish a state’s commitment to and actual track record of integration. See, e.g., ARC of Wash. State Inc., 427 F.3d at 621 (20% drop in institutionalized population); Williams v. Wasserman, 164 F. Supp. 2d 591, 634 (D. Md. 2001) (state’s institutionalized population decreased from 7,114 in 1970 to 1,200 in 1997).
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In addition to Defendants’ failure to show the requisite track record of success transitioning individuals from nursing facilities, several disputes of material fact exist as to Defendants’ efforts to meet this requirement. Contrary to Defendants’ assertions, Defendants fail to make basic information about the EPD Waiver Program and other community-based services readily available to nursing facility residents and staff. Defendants rely on various internet postings that include minimal information that, in any case, most nursing facility residents cannot access. Compare Ex. H at 108:8-18 with Defs.’ Stmt. of Mat’l Facts ¶ 7. Defendants admit that they have not visited nursing facilities to give presentations or distribute updated printed materials about the EPD Waiver Program or community mental health services in the past four to five years. Compare Ex. G at 43:1-10, 44:12-17, 121:2-11 with Defs.’ Stmt. of Mat’l Facts ¶¶ 7, 11, 15, 16. Instead, Defendants provide information about the EPD Waiver Program only when they receive specific requests from nursing facility staff or residents. Ex. G at 41:19-42:6, 121:12-16.
The MFP Program staff does not provide specific printed materials about the EPD Waiver Program. Compare Ex. H at 103:16-104:2 with Defs.’ Stmt. of Mat’l Facts ¶¶ 9, 11, 15, 16, 18, 19. With the exception of the MFP Program demonstration pilot involving only 27 people, Defendants fail to conduct outreach targeted to those people who express an interest in transitioning out of nursing facilities, or to follow up by providing transitional assistance to help nursing facility residents apply for and obtain identification documents and housing. Compare Ex. G at 42:7-21, 44:12-17, 121:2-11; Ex. H at 98:7-10 with Defs.’ Stmt. of Mat’l Facts ¶ 7.
Moreover, Defendants have slashed transition goals repeatedly, see Section II.C.2.c, supra, and in spite of increased federal money available to support efforts to deinstitutionalize
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nursing facility residents, the District delayed by two years its submission to CMS of the necessary operational protocol to secure such funding, leaving nursing facility residents to languish.8 In addition, as of July 29, 2011, there were 240 EPD Waiver Program slots available until December 2011, but Defendants do not plan to increase the number of slots by submitting a request to CMS, or to reserve slots for people in nursing facilities. Ex. G at 62:15-21, 63:4-16, 66:21-67:18; D.C. Register (Aug. 19, 2011), available at http://www.dcregs.org/Gateway/NoticeHome.aspx?noticeid=1560844. This will prolong individuals’ unnecessary segregation in nursing facilities.
Rather than establishing a track record of successfully transitioning people from nursing facilities, Defendants have created enormous barriers that obstruct access to community services and supports for Plaintiffs and prospective class members. For example, DHCF is responsible for resolving delays in the prior authorization process for EPD Waiver Program services, but has failed to ensure the timely processing or authorization of waiver services, thereby delaying nursing facility residents’ discharge to the community. Ex. G at 108:6-12, 111:19-113:4, 116:721 & Exs. 10 & 11; Defs.’ Stmt. of Mat’l Facts ¶¶ 2-5.
Defendants have also failed to process essential payments in a timely manner for housing applications, security deposits and other transition costs to ensure that the few individuals designated for MFP Program participation have basic furnishings and supplies once they leave nursing facilities. Ex. H at 48:19-50:3. Defendants’ actions have delayed the successful
8 Defendants contend that the Centers for Medicare and Medicaid Services (CMS) tied their hands from implementing the MFP Program for nursing facility residents prior to October 2010. See Defs.’ Mem. at 7. But Defendants’ own evidence calls that contention into doubt. Ex. H at 34:5-20, 35:20 – 36:2, 44:6 – 45:18, 229:4-19 & Ex. 23; Defs.’ Stmt. of Mat’l Facts ¶ 12 (confirming that CMS would allow the District to include nursing facility residents in its Money Follows the Person Program as early as October 2008, rather than October 2010, when Defendants finally submitted their operational protocol). Defendants have still not submitted the protocol to CMS necessary to implement the MFP Program for people with psychiatric disabilities. Ex. H at 111:6-10.
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transition of some people and seriously thwarted the transition prospects of others. In the case of named Plaintiff Bonita Jackson, Defendants failed to coordinate her transitional services, or develop a comprehensive individualized service plan, or ensure home health aide or nursing services for her in her home for five days after her discharge. Id. at 142:17 – 144:6; Ex. B ¶¶ 918. In the case of named Plaintiff Roy Foreman, Defendants failed to assist him or his social worker in setting up services under the EPD Waiver Program and as a result, Mr. Foreman’s social worker terminated his lease on a wheelchair-accessible subsidized apartment in a building for seniors. Ex. H at 180:10-15, 181:16-20, 182:17 – 183:19, 184:5-7, 184:12 – 185:12; Ex. D ¶¶ 11-17. Defendants have also failed to coordinate transitional services for named Plaintiff Vietress Bacon, forcing her to remain in the nursing facility for months after her accessible apartment was available. Ex. C ¶¶ 13-14, 18-19. At the time of filing this Opposition, it is still unclear when she will be able to leave, as her services are still pending approval by Defendants. Id. ¶¶ 17-19.9
All of this demonstrates that Defendants fail to transition institutionalized individuals into the community. In fact, Defendants’ failure to inform nursing facility residents about the available personal care and waiver services, facilitate their access to those services, reserve EPD Waiver Program slots for people in nursing facilities, timely authorize waiver services, request additional EPD slots, and engage in inter- and intra-agency cooperation prevents nursing facility residents from transitioning to the community. Accordingly, as is the case for each of the other requirements of a comprehensive, effectively working plan, Defendants cannot show that they
9 Even if Ms. Bacon were transitioned to the community, she could remain a plaintiff in this action because she may remain at risk of returning to an institution. DOJ Olmstead Statement at 5 (“[T]he ADA and Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.”).
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meet this legal requirement. In addition, disputes of material fact exist as to Defendants’ efforts to comply, which preclude a grant of summary judgment for Defendants.
D. Defendants Cannot Raise a Fundamental Alteration Defense. If an individual who may be appropriately served in the community requests that the state provide the reasonable accommodation of community-based services, the state must modify existing programs unless it can show that doing so would constitute a “fundamental alteration.” See, e.g., Martin v. Taft, 222 F. Supp. 2d 940, 971-72 (S.D. Ohio 2002); M.A.C. v. Betit, No. 2:02CV1395, at 15 (D. Utah Feb. 28, 2006); see also 28 C.F.R. § 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity”). The Justice Department explains:
The obligation to make reasonable modifications may be excused only where the public entity demonstrates that the requested modifications would “fundamentally alter” its service system. DOJ Olmstead Statement at 2; accord Olmstead, 527 U.S. at 604-07. This Court should not entertain Defendants’ argument that transitioning Plaintiffs from nursing facilities to community-based services would fundamentally alter their programs for three independent reasons. First, the existence of “[a] comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.” Frederick L. II, 422 F.3d at 157; Benjamin, 768 F. Supp. 2d at 754; DOJ Olmstead Statement at 7. “General assurances and good-faith intentions neither meet the federal laws nor a patient’s expectations.” Frederick L. II, 422 F.3d at 158. As discussed above, Defendants do not have a comprehensive,
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effectively-working Olmstead Plan in place, despite the passage of twelve years since the Supreme Court’s Olmstead decision.
Second, the “fundamental alteration” analysis is a “complex fact-intensive inquiry” that is not appropriate for resolution at the summary judgment stage. Martin, 222 F. Supp. 2d at 986; accord Disability Advocates Inc. v. Paterson, 598 F. Supp. 2d 289, 335 (E.D.N.Y. 2009) (“DAI I”); Frederick L. I, 364 F.3d at 497-98; Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *28 (M.D. Tenn. Dec. 19, 2008). Evaluation of the fundamental alteration defense requires courts to focus on the likely cost of the requested relief in light of the state’s obligations to serve additional individuals with the same disabilities. Courts must consider the “allocation of available resources” and the duty to provide “the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604. Consequently, lower courts require states to provide a “specific factual analysis” in order to determine whether the requested relief would be a “fundamental alteration.” See, e.g., Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1183 (10th Cir. 2003) (requiring the state to present specific evidence that the cost of providing the requested relief would “in fact, compel cutbacks in services to other Medicaid recipients” or be inequitable to others with disabilities); accord Townsend, 328 F.3d at 520.
Finally, even if the Court were to entertain Defendants’ argument, Defendants cannot show that Plaintiffs’ requests would be an inequitable use of their resources, necessitate cutbacks in services to others, or, for that matter, require increased spending. Defendants spend substantially more on average per person in nursing facilities than they do on average per person in the EPD Waiver Program. Ex. M at 63:15-19, 66:6-21 & Ex. 4; Ex. G at 134:3-15 & Ex. 14 at
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1-2 & Ex. 15. For example, in 2007, the average annual cost of services in the District’s nursing facilities was $62,633 as compared with the average annual cost in the EPD Waiver Program of $46,186. Ex. M at 66:10-21 & Ex. 4. In 2008, services in nursing facilities cost $58,957 on average per person as compared to $21,849 for EPD Waiver Program services. Ex. G at 135:2138:12 & Ex. 15. By moving people from nursing facilities to the community under the EPD Waiver Program, the District stands to save thousands, if not millions of dollars. Id. at 58:7-59:7 & Ex. 5 at i.10 Consequently, acceding to Plaintiffs’ requests for transition to the community would actually free up resources to allow Defendants to serve scores of additional people with physical or psychiatric disabilities in the community, rather than fundamentally alter existing programs.
Plaintiffs have requested that Defendants develop and implement a comprehensive, effective Olmstead Plan, Am. Compl. ¶ 82; take steps necessary to inform, identify, and serve Plaintiffs and prospective class members in the most integrated community settings appropriate to their needs, id. ¶ 27; and assist nursing facility residents in transitioning to the community with necessary services and supports, id. ¶¶ 71-72. Defendants simply cannot meet their burden to establish that the accommodations Plaintiffs request would fundamentally alter Defendants’ programs. III. DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED.
As an alternative to their meritless motion for summary judgment, Defendants have contrived a series of arguments for dismissal of Plaintiffs’ Complaint.11 Each is without merit,
10 Similarly, community-based mental health rehabilitation services cost on average $4,200, which is a fraction of the cost of these services in nursing facilities. Ex. L at 226:17 – 227:5. 11 All references to Plaintiffs’ Complaint are to the Amended Complaint filed by Plaintiffs on March 30, 2011.
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and their Motion should be denied. As another federal court acknowledged for similar Olmstead plaintiffs, Plaintiffs will
prevail [on their motion to dismiss] if the complaint alleges, with sufficient factual detail to render their claims plausible, that individuals are placed in nursing facilities even though (1) a determination has been made that a particular individual’s needs may be met in a more integrated setting, (2) the individual consents to reside in a more integrated setting, and (3) the state can reasonably accommodate a placement in a more integrated setting. Joseph S. v. Hogan, 561 F. Supp. 2d 280, 290 (E.D.N.Y. 2008). Plaintiffs’ Complaint makes the requisite allegations and includes sufficient detail for each allegation. A. Standard for Motion to Dismiss. To withstand a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), “a plaintiff need only plead ‘enough facts to state a claim to relief that is plausible on its face to nudge[ ] [his or her] claims across the line from conceivable to plausible.’” Bryant v. Pepco, 730 F. Supp. 2d 25, 28 (D.D.C. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint need only contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). This requires more than labels and conclusions, but detailed factual allegations are not necessary. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Twombly, 550 U.S. at 555. “So long as the pleadings suggest a plausible scenario to show that the pleader is entitled to relief, a court may not dismiss.” Owens v. D.C., 631 F. Supp. 2d 48, 53 (D.D.C. 2009) (Huvelle, J.) (internal quotation marks and citation omitted). In considering a motion to dismiss, the Court accepts Plaintiffs’ allegations as true and
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construes all reasonable factual inferences in Plaintiffs’ favor. Ihebereme v. Capital One, N.A., 730 F. Supp. 2d 40, 46 (D.D.C. 2010) (Huvelle, J.).
B. Olmstead’s Requirements Apply to Plaintiffs in Nursing Facilities. Defendants suggest without citing any legal precedent whatsoever that Olmstead’s requirements do not apply to nursing facilities. Defs.’ Mem. at 14. However, every court to consider the issue disagrees, and federal courts consistently apply Olmstead to cases brought by plaintiffs in nursing facilities. See, e.g., Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005); Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); Conn. Office of Prot. & Advocacy for Persons With Disabilities v. Conn., 706 F. Supp. 2d 266 (D. Conn. 2010); Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008); Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008); Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008). Defendants also assert that because Medicaid recipients living in nursing facilities require the level of care provided in facilities, their institutionalization cannot be “unjustified or unnecessary.” Defs.’ Mem. at 14. This is a non sequitur. The crux of Plaintiffs’ Complaint is that, while Plaintiffs do require personal care assistance services, and therefore meet what is called the “nursing facility level of care,”12 they need not be institutionalized and segregated in nursing facilities to receive the care they require. Whether Olmstead applies in the first instance is not based on the setting in which a person currently receives care, but on whether treatment in a more integrated setting is appropriate and can be reasonably accommodated. See Olmstead, 527 U.S. at 607; DAI II, 653 F. Supp. 2d at 223 (a plaintiff need not be institutionalized to
12 The level of care eligibility criteria for the Medicaid home and community-based waiver is the same as that for services in a nursing facility. That is, the same level of need makes an individual eligible for both nursing facility care and home health care via the EPD Waiver Program. Ex. G at 20:9-15.
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prevail on an ADA integration claim; he must simply show that his current setting does not enable interaction with nondisabled persons to the fullest extent possible). Accordingly, Defendants’ argument that Olmstead is somehow inapplicable to plaintiffs in nursing facilities fails.
C. Plaintiffs Have Alleged a Relationship Between Defendants and Plaintiffs’ Treatment in Nursing Facilities.
Defendants contend that dismissal is warranted because Plaintiffs failed to allege a sufficient connection between Defendants and Plaintiffs’ treatment in nursing facilities. Defs.’ Mem. at 10-11. Plaintiffs need only describe a causal connection between Defendants and their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs satisfy this requirement through the many allegations in the Complaint addressing the relationship between Plaintiffs’ injuries and Defendants’ Medicaid Program, contracted and owned facilities, and provision of community-based services.
Plaintiffs’ Complaint discusses at length “[t]he Medicaid-funded personal care services all Plaintiffs receive in . . . nursing facilit[ies],” Am. Compl. ¶ 79, and Plaintiffs’ “claims that Defendants have failed to administer the District’s mental health and long-term Medicaid programs to provide services in the most integrated setting appropriate to their needs,” id. ¶ 101; see also id. ¶¶ 20-21, 49-52, 55-60, 69, 84, 90-91, 99. Plaintiffs assert that the putative class members “share a common need for Medicaid and locally-funded services.” Id. ¶ 103. Plaintiffs further allege that the ADA applies in this case, and that Defendants have failed to honor their responsibilities in the provision and administration of public benefits and services. See, e.g., id. ¶¶ 3-7, 108-110, 114-115, 118-119 (alleging that individuals with disabilities must not be excluded from public benefits or services due to discrimination, that public benefits and services
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must be provided in “the most integrated setting appropriate,” and that Defendants have failed to provide benefits covered under Title II of the ADA to Plaintiffs in the most integrated setting appropriate); ¶¶ 75, 87-89, 92 (alleging that Defendants have failed to meet the requirements of Olmstead, which apply to services administered, provided, or funded by a public entity).
Plaintiffs’ allegations that the District provides, administers, and/or funds Plaintiffs’ services in its role as a public entity provides, as a matter of law, an adequate nexus between Plaintiffs and Defendants. See Conn. Office of Prot. & Advocacy, 706 F. Supp. 2d at 276-77, 284 (state’s administration of Plaintiffs’ care through the Medicaid program provided sufficient causal relationship). For example, one district court concluded that, “[w]hile State officials do not require anyone to be in an adult home, Defendants plan, fund and administer the State’s existing service system such that more than 12,000 adults are receiving the State’s services in adult homes.” DAI I, 598 F. Supp. 2d at 319. Accord Joseph S., 561 F. Supp. 2d at 293 (rejecting defendant state’s claim, on motion to dismiss, that plaintiffs had to show that the state was specifically responsible for their placement in nursing facilities); DOJ Olmstead Statement at 3(“a public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly operates facilities and or/programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs.”).
Moreover, while Defendants assert that the District did not place Plaintiffs in nursing facilities, Def.’ Mem. at 11, Defendants are, in fact, intimately involved in placing individuals with disabilities in nursing facilities. Defendants contract with The Delmarva Foundation to
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determine whether people with disabilities seeking long-term care Medicaid services require a level of care that would justify their access to services either in nursing facilities or in the community. Ex. G at 19:19 – 20:20, 22:6 – 24:17 & Ex. 2.13 In making the level of care determinations, Delmarva utilizes a tool developed by Defendants to measure the assistance needed in performing activities of daily living (e.g., bathing, dressing, toileting, eating, mobility assistance) and instrumental activities of daily living (e.g., medication management, meal preparation, housekeeping). Defendants’ involvement in Plaintiffs’ access to long-term care services is further reflected in their close monitoring of Delmarva’s assessments, including their blanket authorizations for nursing facility admissions. Id. at 26:10 – 27:9, 28:15-20.
Defendants fund and administer Plaintiffs’ care. Defendants thus are responsible for Plaintiffs’ unjustified segregation in nursing facilities. Plaintiffs have pled a causal link, and Defendants’ Motion to Dismiss should be denied.
D. The ADA Does Not Require Defendants’ Medical Professionals to Assess Plaintiffs’ Eligibility to Receive Care in a Community-Based Setting.
Defendants acknowledge that Plaintiffs “appear to be eligible” for community-based services, Defs.’ Mem. at 16, but argue that the Complaint must be dismissed because Plaintiffs do not allege that the District’s own professionals have determined community-based services appropriate to meet Plaintiffs’ needs. Id. at 11-12. There is no requirement for such an allegation because it is not necessary as a matter of law that the District’s own professionals
13 The law is clear that Defendants cannot skirt their obligations under the ADA simply by contracting out their services to private third-parties. See Conn. Office of Prot. & Advocacy, 706 F. Supp. 2d at 277 (“The state cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services.”); DAI I, 598 F. Supp. 2d at 317 (“It is immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.”); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (it is “immaterial, at this [motion to dismiss] juncture, that many Plaintiffs reside in private rather than public nursing facilities” because defendants “still have obligations in accordance with the ADA.”); 28 C.F.R. § 35.130(b)(1) (public entity may not discriminate “directly or through contractual, licensing or other arrangements, on the basis of disability”).
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make the determination. In fact, every court to consider the issue has held as such. See Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 539-40 (E.D. Pa. 2001) (denying defendants’ motion to dismiss Olmstead claims and rejecting the argument that Olmstead “require[s] a formal recommendation for community placement.”); DAI II, 653 F. Supp. 2d at 258-59 (requiring a determination by a state treatment provider “would eviscerate the integration mandate” and “condemn the placements of [individuals with disabilities] to the virtually unreviewable discretion” of the state and its contractors); Joseph S., 561 F. Supp. 2d at 291 (“I reject defendants’ argument that Olmstead requires that the state’s mental health professionals be the ones to determine that an individual’s needs may be met in a more integrated setting.”); Long, 2008 WL 4571904, at *2 (refusing to limit class to individuals whom state professionals deemed could be treated in the community, because a state “cannot deny the [integration] right simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”); see also DOJ Olmstead Statement at 4 (“the ADA and its regulations do not require an individual to have had a state treating professional make such a determination. . . . Limiting the evidence on which Olmstead plaintiffs may rely would enable public entities to circumvent their Olmstead requirements by failing to require professionals to make recommendations regarding the ability of individuals to be served in more integrated settings.”).14
14 Indeed, in Olmstead, neither party disputed the plaintiffs’ eligibility for community-based services in light of the fact that the hospital at issue was state-run and its medical staff had already deemed the plaintiffs eligible for community services. Plaintiffs note that Defendants’ reference to Boyd v. Steckel, 753 F. Supp. 2d 1163, 1174 (M.D. Ala. 2010), is inapposite. The court in Boyd denied a preliminary injunction based on evidence by the State that the plaintiff’s needs could not be met in the existing community Medicaid waiver program. Plaintiffs’ case is both procedurally and substantively distinguishable from Boyd.
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Moreover, even if a determination by the District’s treatment professionals were necessary before the District actually transitions an individual, Plaintiffs may appropriately seek an injunction to compel the District to comply with Olmstead and systematically and objectively evaluate their needs. See, e.g., Colbert, 2008 WL 4442597, at *2-3 (plaintiffs appropriately sought injunction directing defendants to employ objective criteria in evaluating them for community placement); Ligas v. Maram, No. 05 C 4331, 2006 WL 644474, at *4 (N.D. Ill. Mar. 7, 2006) (same). Plaintiffs have requested such equitable relief. For the foregoing reasons, Plaintiffs have sufficiently pled that community-based care is appropriate.
Here, Plaintiffs’ Complaint sufficiently alleges that the named Plaintiffs’ needs can be served in the community according to healthcare professionals. See Am. Compl. ¶¶ 27, 31, 35, 39, 42, 46. And Defendants have not disputed that this is the case. Defendants’ Motion to Dismiss thus should be denied.
E. The ADA Does Not Require Allegations of Cost Neutrality at the Pleading Stage.
Defendants argue that Plaintiffs have failed to allege that the cost of the communitybased services they seek would be less than the cost of their care in nursing facilities. Defs.’ Mem. at 12. Here, Defendants not only misstate the ADA’s pleading requirement with respect to the cost neutrality of community services sought by Plaintiffs, but they also misrepresent the standard of the comparative cost analysis.
First, the ADA does not require Plaintiffs to allege at the pleading stage that the cost of community-based services would be less than the cost of care in the nursing facilities. The cost of services arises only if: (1) the State demonstrates that it has a comprehensive, effectively working plan to transition people with disabilities from institutions to integrated settings; and (2)
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asserts a “fundamental alteration” defense, arguing that the cost of Plaintiffs’ requested relief would constitute a fundamental alteration of the State’s program. Olmstead, 527 U.S. at 603-04.
Second, the proper comparative cost standard is cost neutrality, i.e., whether the soughtafter community services, in the aggregate, would cost the same or less than the services in the nursing facility. Olmstead, 527 U.S. at 601 & n.12. It is not, as Defendants assert, whether the cost of individual care in the community is less than the cost of care in nursing facilities. Defs.’ Mem. at 12.15 For EPD Waiver Program purposes, CMS is concerned with the aggregate costs of waiver services. One of the requirements for CMS approval of a § 1915(c) waiver is that the waiver be “cost neutral” – the cost of home and community-based services, combined with the other Medicaid “state plan” services, must be equal to or less than the cost of providing services to a comparable population in a nursing facility. 42 U.S.C. § 1396n(C)(2)(D); 42 C.F.R. § 441.303. The District of Columbia does not determine cost neutrality based on individual costs, but rather on the aggregate cost of care calculated based on the average annual cost of services in the community as compared to the average annual cost of services in nursing facilities. See Ex. G at Ex. 17; Ex. M at 53:1 – 55:6 & Exs. 4 & 6.
Even if Plaintiffs were required to plead cost neutrality, which they are not, the Amended Complaint includes sufficient allegations to establish cost neutrality of community-based services. Am. Compl. ¶¶ 80-81. As further explained supra at Section II.D, the evidence establishes that the cost of community-based services is consistently and substantially far below the cost of services in nursing facilities. Defendants’ cost neutrality arguments accordingly cannot result in dismissal of Plaintiffs’ Complaint.
15 Defendants cite the Federal Medicaid statute which grants discretion to the states to adopt cost neutrality standards based on the expectation that the cost of Medicaid Waiver services to individuals will not exceed their cost of care in institutions. 42 U.S.C. § 1396n(c)(4)(A).
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F. The Individual Defendants Are Appropriately Sued in Their Official Capacities.
Defendants additionally argue that the individuals sued in their official capacities – Mayor Vincent Gray, Director of DHCF Wayne Turnage, and Director of DMH Stephen Baron – must be dismissed from this suit because the claims against them are redundant of Plaintiffs’ claims against the District. Defs.’ Mem. at 27-28. But there are compelling reasons to keep the individual Defendants in this suit.
A suit against an individual acting in his official capacity may be the same as a suit against the entity he represents, but “there is no requirement that, because of the equivalence, the public official defendant must be dismissed.” Owens, 631 F. Supp. 2d at 54 (Huvelle, J.). “In cases . . . where elected officials are alleged to have violated federal laws protecting a local constituency, public accountability is of utmost importance.” Chase v. City of Portsmouth, 428 F. Supp. 2d 487, 490 (E.D. Va. 2006) (allowing suit against city and city council members). Accordingly, this Court has, on numerous occasions, allowed claims to proceed against both the District and individuals acting in their official capacities on behalf of the District. See, e.g., id.; Johnson v. D.C., 572 F. Supp. 2d 94, 111 (D.D.C. 2008); Winder v. Erste, No. Civ.A 032623(JDB), 2005 WL 736639, at *5 (D.D.C. 2005); Dominion CoGen, D.C., Inc. v. D.C., 878 F. Supp. 258, 264 n.5 (D.D.C. 1995). See also DAI I, 598 F. Supp. 2d at 357 (declining to drop state governor as defendant in suit seeking relief under Title II of the ADA and Olmstead).16
This is not a case seeking damages, which would be paid by the entity instead of the individuals. Rather, Plaintiffs seek injunctive relief, and the named individuals – the Mayor, the
16 Moreover, the Supreme Court, in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001), “explicitly recognized the right of a private plaintiff to assert an ADA claim for injunctive relief against a state official in federal court.” Radaszewski, 383 F.3d at 606.
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Director of DHCF, and the Director of DMH – will be integrally involved in implementing any such relief. An order directed to individual officials would increase their public accountability. The individuals named in Plaintiffs’ Complaint are well aware that both federal and District law require them to adopt an Olmstead Plan and abide by the Integration Mandate. And yet, despite the passage of twelve years since Olmstead (and an independent D.C. statute requiring an Olmstead Plan be in place by 2008, see D.C. Code § 2-1431.04(8)(A),17) these officials continue to fail to meet their obligations. A court order directing these individual Defendants to take specific actions to satisfy their obligations to Plaintiffs is both appropriate and necessary to achieve long overdue compliance with the ADA and Olmstead. IV. CONCLUSION.
The Federal requirement is clear. The District of Columbia lacks every one of the hallmarks of a comprehensive and effective integration plan. Defendants have: (1) no process for identifying people who want to be reintegrated into the community from a nursing facility or (2) for assessing the needs of those individuals; (3) no policies, procedures, or practice to assist nursing facility residents who want to be deinstitutionalized in making the transition from nursing facilities to the community with necessary services and supports; (4) no idea of how many individuals who are institutionalized in nursing facilities have transitioned to the community; or (5) whether the nursing facility census has decreased over time. In fact, despite their recognition that 526 nursing facility residents desire community placement, Defendants can identify only two individuals with physical disabilities who have been deinstitutionalized from nursing facilities with the District’s assistance. This extraordinarily poor track record completely
17 Plaintiffs do not assert a claim under this statute, despite Defendants’ suggestion to the contrary. See Defs.’ Mem. at 28-29. However, this provision illustrates that Defendants, though aware of their obligations, have failed to meet them.
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undermines the Defendants’ assertion that they are in compliance with Olmstead, and material

disputes of fact abound relating to Defendants’ current programs.

Neither summary judgment nor dismissal is warranted. Plaintiffs thus respectfully

request that this Court allow them to continue to litigate their case without further delay.

Dated: September 1, 2011

Respectfully submitted,
/s/ Brian D. Schneider Marjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 Victoria L. Thomas, D.C. Bar No. 1001027 mrifkin@uls-dc.org jlav@uls-dc.org vthomas@uls-dc.org University Legal Services–Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662

Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org Bvignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424

Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider.brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395

Counsel for Plaintiffs 37

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CERTIFICATE OF SERVICE I certify that on September 1, 2011, a true copy of the foregoing was served on all counsel of record by filing with the Court’s electronic filing system.
/s/ Brian D. Schneider Brian D. Schneider

 
 Case 1:10-cv-02250-ESH-AK Document 54-1 Filed 05/15/12 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACQUALYN THORPE, et al. Plaintiffs,
v. DISTRICT OF COLUMBIA,
Defendant.

) ) ) ) Civil Action No. 1:10-cv-02250 (ESH) ) ) ) ) ) )

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

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TABLE OF CONTENTS Page
I. FACTUAL BACKGROUND .............................................................................................1 A. District of Columbia Programs............................................................................................2 B. Plaintiffs’ Experts. ...............................................................................................................3 C. Named Plaintiffs. .................................................................................................................4 D. Numerosity of Class and Typicality of Claims. ..................................................................9
II. ARGUMENT ....................................................................................................................10 A. Plaintiffs Satisfy the Requirements of Rule 23(a). ............................................................12 1. Numerosity: The class of 500 to 2,900 individuals is so numerous that joinder of all members is impracticable...................................................................................13 2. Commonality: There are numerous questions of law and fact common to the class resulting from Defendant’s system-wide discrimination....................................14 3. Typicality: The named Plaintiffs’ claims are typical of the claims of the class..........18 4. Adequacy of Representation: The named Plaintiffs and their attorneys will fairly and adequately protect the interests of the class. ...............................................20 B. Rule 23(b)(2) is Satisfied Because Defendant Acted on Grounds Generally Applicable to the Class, Making Final Injunctive and Declaratory Relief Appropriate. ....................................................................................................................... 23 C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel. .................................23
III. CONCLUSION .................................................................................................................24
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TABLE OF AUTHORITIES

CASES

Page(s)

Amchem Products v. Windsor, 521 U.S. 591 (1997) ................................................................................................................23

Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003) ............................................................................................15, 17

Chambers v. City and Cnty. of San Francisco, No. 06-CV-06346 (N.D. Cal. July 12, 2007) ....................................................................12, 22

Chang v. U.S., 217 F.R.D. 262 (D.D.C. 2003) ................................................................................................11

Colbert v. Blagojevich, No. 07-CV-4737, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008).............................................12

Coleman v. Pension Benefit Guar. Corp., 196 F.R.D. 193 (D.D.C. 2000) ................................................................................................17

Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980) .................................................................................................13

Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D. Cal. 2010).....................................................................................12

Daniels v. City of N.Y., 198 F.R.D. 409 (S.D.N.Y. 2001).............................................................................................16

Day v. District of Columbia, No. 10-cv-02250-ESH-AK, 2012 WL 456491 (D.D.C., Feb. 14, 2012).......................1, 2, 3, 4

*Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006) .............................................................................................passim

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ................................................................................................................11

Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982) ..............................................................................................11, 13, 19, 21

Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994), cert. denied sub. nom., Dillon v. Powell, 534 U.S. 1078 (2002) .................................................................................................................11, 15, 16

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Hartman v. Duffy, 158 F.R.D. 525 (D.D.C. 1994) ................................................................................................19
Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) ....................................................................................................13
In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12 (D.D.C. 2001) ..................................................................................................19
In re Veneman, 309 F.3d 789 (D.C. Cir. 2002).................................................................................................23
Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) .................................................................................................13
Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174 (D.D.C. 1999) ..........................................................................................14, 21
Ligas v. Maram, No. 05-CV-4331, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006) ...........................................12, 16
Long v. Benson, No. 08-CV-0026, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008) ............................................12
Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006)...........................................................................................17, 18
Love v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009).................................................................................................23
M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003) .....................................................................................12
McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428 (D.D.C. 2002) ..........................................................................................11, 19
Meijer, Inc. v. Warner Chilcott Holdings Co. III, 246 F.R.D. 293 (D.D.C. 2007) ....................................................................................11, 13, 21
Moore v. Napolitano, 269 F.R.D. 21 (D.D.C. 2010) ..................................................................................................17
*Olmstead v. L.C., 527 U.S. 581 (1999) .........................................................................................................passim
Pitts v. Greenstein, No. 10-CV-635, 2011 WL 2193398 (M.D. La. June 6, 2011) ................................................12
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Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass., Jan. 10, 2000) .....................................................................................4
Smith v. Texaco, 263 F.3d 394 (5th Cir. 2001) ...................................................................................................17
*State of Conn. Office of Prot. and Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266 (D. Conn. 2010) ...............................................................................12, 16
Stewart v. Rubin, 948 F. Supp. 1077 (D.D.C. 1996), aff’d 124 F.3d 1309 (D.C. Cir. 1997) ..............................19
Vargas v. Meese, 119 F.R.D. 291 (D.D.C. 1987) ................................................................................................14
Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987).................................................................................................11
Young v. District of Columbia, Case No. 01-CV-0650 (D.D.C.) ..............................................................................................22
STATUTES 29 U.S.C. § 794(a) ...........................................................................................................................3 42 U.S.C. § 12132 ...........................................................................................................................3 OTHER AUTHORITIES 28 C.F.R. § 35.130...........................................................................................................................3 28 C.F.R. § 35.130(d) ......................................................................................................................3 28 C.F.R. § 35, App.........................................................................................................................3 5 James W. Moore et al., Moore's Federal Practice § 23.21[4][a] (3d ed. 2001) ........................11 Fed. R. Civ. P. 23 ...................................................................................................................passim
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Index of Exhibits Cited in Plaintiffs’ Memorandum of Points and Authorities
in Support of their Motion for Class Certification

Exhibit Numeral A B C D E F G H I J K L

Description Declaration of Kenneth S. Duckworth, M.D. Declaration of Jacqualyn Thorpe Declaration of Roy Foreman Declaration of Larry McDonald Declaration of Curtis Wilkerson Declaration of Judith Miller Declaration of Donald Dupree Declaration of Mary E. McGinnis, RN, BSN, LNC Declaration of Dr. Orit Simhoni Declaration of Kelly Bagby, Esq. Declaration of Marjorie L. Rifkin, Esq. Declaration of Barbara S. Wahl, Esq.

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Like thousands of other District residents with disabilities, Plaintiffs desperately want to live in the community. But Defendant’s systemic, discriminatory failure to carry out the “integration mandate” of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 leaves them unnecessarily institutionalized in nursing facilities and denies their right to receive the community-based services they need to live in their own homes in the community. See Olmstead v. L.C., 527 U.S. 581, 600 (1999) (holding that a state government’s failure to provide services in the most integrated setting appropriate to a disabled person’s needs is “unjustified isolation of persons with disabilities” and constitutes discrimination under the ADA); Day v. District of Columbia, No. 10-cv-02250-ESH-AK, 2012 WL 456491 (D.D.C., Feb. 14, 2012). Plaintiffs seek class certification to support their demand that Defendant remedy its failure to implement an effective Olmstead integration system through which Plaintiffs and those similarly situated can transition from institutional nursing facilities to community-based services.1
I. FACTUAL BACKGROUND Plaintiffs are individuals with disabilities who are institutionalized in nursing facilities.
Second Amended Compl. (“Compl.”) ¶ 1. Each of them has the desire and the ability to live in the general community if given access to appropriate supports and services. Id. All of the named Plaintiffs would prefer to receive services in the community and live with independence. Duckworth Decl. ¶¶ 17, 22, 28-29, 31, 42-43, 46, 51, 54, 68, 85-86, 89, 97-98 (attached as Exhibit A); Thorpe Decl. ¶¶ 8, 10 (attached as Exhibit B); Foreman Decl. ¶¶ 4, 9, 19 (attached as Exhibit C); McDonald Decl. ¶¶ 7-8, 14 (attached as Exhibit D); Wilkerson Decl. ¶¶ 9-11 1 Pursuant to LCvR 7(m), Plaintiffs’ counsel conferred with Defendant’s counsel about this motion on April 26, 2012, and Defendant objects generally to this Motion. However, Defendant represented that it will not dispute either the numerosity of the class or the adequacy of representation by Plaintiffs’ counsel.
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(attached as Exhibit E); Miller Decl. ¶ 10 (attached as Exhibit F); Dupree Decl. ¶ 9 (attached as Exhibit G). Despite this, Defendant has unnecessarily kept Plaintiffs institutionalized and isolated from the community by failing to develop and implement an effective system whereby they and others like them can receive necessary services in integrated, community-based settings rather than in nursing facilities. Compl. ¶ 2. Plaintiffs seek, among other things, a court order to compel Defendant to develop a working system that takes affirmative steps toward offering Plaintiffs appropriate community supports and services. Id. ¶¶ 2-14.
A. District of Columbia Programs. Through its Medicaid program, Defendant coordinates and funds medical services for District of Columbia low-income residents with disabilities. Id. ¶ 56. Among the benefits available to those with mental and physical disabilities are long-term care services, including inpatient care in a nursing facility and community-based services that are either provided for in the District’s Medicaid State Plan or available via the Medicaid Waiver Program for People who are Elderly and/or have Physical Disabilities (the “EPD Waiver”). Id. ¶¶ 57-59. Title II of the ADA and the Rehabilitation Act, along with their implementing regulations, require state and local governments to provide services to persons with disabilities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” See 42 U.S.C. § 12132; 29 U.S.C. § 794(a); 28 C.F.R. § 35.130(d). The most integrated, appropriate setting is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35, App. B (describing requirements for integration under 28 C.F.R. § 35.130). The “unjustified isolation [of individuals with disabilities] . . . is properly regarded as discrimination based on disability.” 527 U.S. at 597 (quoted in Day, 2012 WL 456491 at *19). Defendant has failed to implement a sufficient community-care transition program. In
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April 2011, Defendant moved to dismiss Plaintiffs’ action, or, in the alternative, for summary judgment. On February 14, 2012, this Court denied Defendant’s motion, concluding that the District had not demonstrated “a measurable commitment to deinstitutionalizations,” nor “‘actual success’ or [even] ‘meaningful progress’” in implementing community placement of appropriate disabled persons. Day, 2012 WL 456491 at *19. Far from proving that it has a “comprehensive, effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings,” Olmstead, 527 U.S. at 606, the record in fact demonstrated that the District had transitioned a mere three nursing facility residents (including two then-namedplaintiffs) in four years, 2012 WL 456491 at *10. On this record, this Court held that it is undisputed that the District lacks an Olmstead Integration Plan and has failed to “move[] individuals to the ‘most integrated setting’ as required by Olmstead.” Id. at *22.
B. Plaintiffs’ Experts. Plaintiffs retained two expert witnesses to evaluate each named Plaintiff’s ability to live in the community with available, District-funded services and supports. Dr. Kenneth Duckworth is a well-respected expert in adult, child and adolescent, and forensic psychiatry. Ex. A ¶ 6. His experience ranges from practicing as a clinical psychiatrist to serving as Medical Director for the Massachusetts Mental Health Center, Medical Director for the Massachusetts Department of Mental Health, and, for a time, Acting Commissioner for the latter agency. Id. ¶ 8. From 2005 to 2011, Dr. Duckworth was the Medical Director for Vinfen Corporation, a nonprofit human and mental health services organization in Massachusetts. Id. ¶ 10. In that role, he conducted many assessments of individuals with disabilities for the purpose of determining their support service needs and whether those needs could appropriately be met outside of the institutional setting. Id. ¶ 10. Since May 2011, Dr. Duckworth has worked as the Associate Director of Behavioral Health for Blue Cross and Blue Shield of Massachusetts,
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where he supervises twelve doctors who make level of care and medical necessity determinations. Id. ¶ 11.
Mary McGinnis is a Registered Nurse with 29 years of experience in patient care in a variety of settings. McGinnis Decl. ¶ 5 (attached as Exhibit H). She currently is the Director of Nursing for Vinfen Corporation in Cambridge, Massachusetts. While at Vinfen, she has worked to successfully transition people with disabilities from nursing homes to the community as part of the litigation in Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass. Jan. 10, 2000) (approving class settlement agreement). Ex. H. ¶ 6. She assisted Dr. Duckworth to assess each of the named Plaintiff’s potential for community placement and service needs. Id. ¶ 3.
Dr. Duckworth and Ms. McGinnis reviewed each named Plaintiff’s medical records and interviewed each of them. Ex. A ¶ 4. Dr. Duckworth concludes that each named Plaintiff could live in the community with services and supports already available to others in the District. Id. ¶¶ 30, 44, 53, 67, 87, 99.
C. Named Plaintiffs. Plaintiffs are all persons with disabilities, the Defendant having determined that each meets the criteria for long-term care based on their disabilities under Defendant’s Medicaid program. Compl. ¶¶ 21, 55-56. Each named Plaintiff resides in a 24-hour care nursing facility and receives care that is paid for in whole or in part by Defendant’s Medicaid program. Id. ¶¶ 22, 26, 31, 36, 40, 45, 51; Ex. B ¶ 2; Ex. C ¶ 3; Ex. D ¶ 3; Ex. E ¶ 2; Ex. F ¶ 2; Ex. G ¶ 2. Although the named Plaintiffs have varied disabilities and medical conditions, they all meet the criteria to receive services in nursing facilities or home- and community-based settings, and they all are appropriate candidates for community placement. Compl. ¶ 23; Ex. A ¶¶ 30, 44, 53, 67, 87, 99-100. The only impediment to each named Plaintiff’s transition back into the community is the Defendant’s failure to provide effective transition assistance. See generally
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Compl. Plaintiff Jacqualyn Thorpe is a sixty-two-year-old woman and has resided at Deanwood
Rehabilitation and Wellness Center since March 2008. Ex. A ¶ 47; Compl. ¶ 26. She has been diagnosed with Guillain-Barre Syndrome and hypertension, and has a history of a stroke and deep vein thrombosis. Ex. A ¶ 47; Compl. ¶ 27; Ex. B ¶ 7. She is highly social, serving as the president of the Red Hat social club at Deanwood and enjoying frequent visits from friends and family members. Ex. A ¶ 50; Compl. ¶ 28. Ms. Thorpe strongly prefers to live in the community and reports that she believes she has been ready to return to the community for over two years, although she recognizes that she needs support. Ex. A ¶ 51. She is able to use a manual wheelchair for mobility, dresses and feeds herself, no longer receives physical therapy in the nursing facility, and wants to leave the facility and return to the community. Ex. A ¶¶ 49, 51; Ex. B ¶ 8. Ms. Thorpe has been assessed as an appropriate candidate for community placement, and she could live in the community with appropriate services and supports. Ex. A ¶ 53; Compl. ¶ 29.
Plaintiff Roy Foreman is a sixty-six-year-old man and has resided at Washington Center for Aging Services since May 2006. Ex. A ¶ 33. Mr. Foreman was admitted to Washington Center for Aging Services from the Specialty Hospital of Washington, D.C., after he sustained a fall at home and suffered a spinal cord injury, resulting in paraplegia. Id. ¶ 34. He has also been diagnosed with decubitus ulcers and diabetes, and he reports that he became depressed after moving into his nursing facility. Id. ¶¶ 35-36, 40. He uses a wheelchair for mobility, but is able to feed himself and handle most of his own finances. Id. ¶¶ 37, 39. The staff at the nursing facility assist him with transferring in and out of bed and with a few other daily activities. Id. ¶ 39. Mr. Foreman has a clear, passionate, and persistent desire to live
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independently in the community and realizes that he needs support and assistance with his activities of daily living to do so. Id. ¶¶ 43-44. Mr. Foreman could live in the community with appropriate services and supports. Id. ¶ 45.
Since the start of 2011, Mr. Foreman has twice been offered public housing assistance by the District of Columbia Housing Authority; both times he was forced to remain in the nursing facility because no one in the District government provided him or his nursing home social worker assistance securing the services and supports he needed to move back to the community. Ex. C ¶ 11. He lost both apartments for the simple reason that Defendant failed to secure services for him through the District’s “EPD Waiver” program or the Money Follows the Person (“MFP”) program, which is designed specifically to transition people from nursing facilities, among other institutions, and provides an enhanced federal funding subsidy for services provided to transition each person. Id. ¶¶ 12, 16. It was not until February 22, 2012, nearly a year after he first signed a lease for an accessible public housing unit, that Mr. Foreman was notified that Defendant at last had even placed him on the waiting list for an EPD waiver. Id. ¶ 17. He was number 441 on the waiting list at that time. Id. Mr. Foreman was very disappointed that he was unable to move into either new home and wants to move back to the community as soon as possible. Id. ¶ 18.
Plaintiff Larry McDonald is a fifty-eight-year-old Army veteran who has resided at Unique Residential Care Center since September 2006. Ex. D ¶¶ 2, 4; Ex. A ¶ 19. He was admitted to the nursing facility from the hospital after sustaining a persistent seizure that lasted three days. Ex. A ¶ 20. When he came to the facility, Mr. McDonald used a cane, but within five days he could walk without assistance. Id. Mr. McDonald is diagnosed with a seizure disorder and dementia, and he has a history of high blood pressure, elevated cholesterol,
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pancreatitis, and stroke. Ex. A ¶ 20. He is quite active in the nursing facility and is often seen helping wheelchair riders and friends move about the facility. Id. ¶ 21. He grieves about the time he has spent away from his family, as several of his relatives have died during the time he has been in the nursing facility. Ex. D ¶ 8; Ex. A ¶ 26. He wants to volunteer in the community, serve as a sponsor for Alcoholics Anonymous, and to help and spend time with his remaining family. Ex. D ¶¶ 7-8; Ex. A ¶¶ 25-26. Mr. McDonald has been assessed as an appropriate candidate for community placement, and he can live in the community with some assistance. Ex. A ¶ 30. Because of his many years of homelessness and his cognitive limitations, he will need a case manager to help him develop, sustain, and manage the services he will need in the community. Id.
Plaintiff Curtis Wilkerson is a forty-eight-year-old man and has resided at United Medical Center since December 2009. Ex. A ¶ 55. He transferred to that facility from Fox Chase Nursing Home, where he resided for six years. Mr. Wilkerson is diagnosed with paraplegia, neurogenic bladder, Hepatitis C, anemia, and recurring bladder infections. Id. Although wheelchair dependent, Mr. Wilkerson is self-sufficient and very independent. Id. ¶ 56. He navigates the facility easily, is very social, and serves as the current president of the facility’s Resident Council. Id. ¶¶ 56-57. He requires one person to assist him with transfers in and out of his wheelchair and with some activities of daily living. Id. ¶ 58. Mr. Wilkerson has been assessed as an appropriate candidate for community placement, and he can live in the community with some assistance and support. Id. ¶ 67. He is frustrated that as a resident of a nursing facility, he cannot attend or participate in activities that he used to enjoy, such as college football games, basketball games, church, and concerts. Ex. E ¶ 6. Mr. Wilkerson strongly prefers to leave the nursing facility and to live in the community. Id. ¶ 11. He has
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expressed to the staff of his nursing facility that he wants to be more independent and move back to the community, but that he needs their assistance to ensure that all the services he needs are in place before he moves. Id.
Plaintiff Judith Miller is a sixty-year-old woman and has resided at Deanwood Rehabilitation and Wellness Center since September 2008. Ex. A ¶ 69. Ms. Miller was admitted for bilateral lower extremity weakness, altered mental status, and skin ulcers. Id. Her current diagnoses include skin ulcers, diabetes, “foot drop,” and neurogenic bladder, with a history of deep vein thrombosis, depression, trouble swallowing, cervical cancer, and falling. Id. ¶¶ 73-75. Although she can walk 100 feet with a rolling walker, Ms. Miller relies primarily on a wheelchair for mobility, and she can transfer from her chair to her bed independently. Id. ¶¶ 80-81. An active and social resident, she is the treasurer of the Resident Council and a member of the Red Hat Society at the facility. Id. ¶ 84. She enjoys and is dedicated to church and attends services at the facility whenever they are available. Id. ¶ 86. She is also the Chair of the Food Committee at the facility and is interested in learning more about her diabetes and about weight control. Id. ¶ 77. Ms. Miller is eager to live in the community and finds it hard to believe that she has been at the facility for so many years. Ex. F ¶ 10; Ex. A ¶ 85. Prior to coming to the facility, Ms. Miller lived with her daughter and granddaughter, who are very supportive of her. Ex. A ¶ 71. She has four children and fifteen grandchildren. Id. With appropriate services and supports, Ms. Miller could live in the community, closer to her relatives. Id. ¶¶ 87-88.
Plaintiff Donald Dupree is a forty-seven-year-old man and has resided at Washington Nursing Facility since June 2006, when he was admitted for post-surgical recovery following removal of a brain tumor. Ex. A ¶ 90; Simhoni Decl. ¶¶ 3, 5 (attached as Exhibit I). Mr.
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Dupree has a history of cerebellopointe angle (CPA) tumor, alcohol abuse, glaucoma, and schizoaffective disorder. Ex. A ¶ 90; Ex. I ¶ 5. Mr. Dupree’s condition has consistently improved since he was first admitted to the facility. Ex. A ¶ 91. Following his admission and until mid-2010, Mr. Dupree was dependent on a wheelchair for mobility, but he now uses a rollator (a walker on wheels) to move around. Id. He no longer requires occupational therapy, speech therapy, or physical therapy services, and he ambulates around the nursing home freely. Id. Mr. Dupree could live independently in a community residential facility (group home) with some appropriate health and personal care supports. Id. ¶¶ 99-100. Mr. Dupree would welcome transitioning back to a group home, and he looks forward to being able to sing in his church choir and “hawk newspapers” as he used to. Id. ¶ 97. His psychiatrist through the District’s Department of Mental Health (“DMH”) core services agency, Community Connections, reported in March 2012 that “[i]t does seem most appropriate for this individual to transition as quickly as possible from a nursing facility, which he does not seem to need any longer and which seems rather restrictive for him, and may indeed intensify his difficulties with impulse control.” Id. ¶ 94. His legal guardian, Dr. Orit Simhoni, concurs with this assessment and believes Mr. Dupree should return to the community. Ex. I ¶¶ 6, 9. Dr. Simhoni has contacted DMH, the Aging and Disability Resource Center, the Department of Health Care Finance, and the MFP program to seek assistance with obtaining appropriate community-based services for Mr. Dupree, but to no avail. Id. ¶ 9. Dr. Simhoni filed a grievance with DMH in April 2011 over Community Connections’ failure to assist Mr. Dupree in leaving the nursing facility. Id. ¶ 10. As of November 17, 2011, there continued to be no movement on Mr. Dupree’s requests to return to the community. Id. ¶¶ 11-12.
D. Numerosity of Class and Typicality of Claims. There are between 500 and 2,900 individuals in the same position as the named
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Plaintiffs, segregated in nursing facilities but willing and able to live in the community with appropriate support. Compl. ¶ 105. The named Plaintiffs are aware of many residents in their own nursing facilities who want to live in the community and who are confident that they could live in the community with appropriate services and supports. Ex. B ¶ 11; Ex. D ¶ 17; Ex. E ¶ 11; Ex. F ¶ 11; Ex. G ¶ 11. Moreover, greater than 500 individuals have identified themselves to Defendant as seeking to return to life in the community. Compl. ¶ 76.
II. ARGUMENT Plaintiffs’ claims are perfect for class action status. Adjudication of these claims on a
class-wide basis will be the most cost-effective, efficient way to adjudicate this matter. Moreover, Plaintiffs satisfy all of the Rule 23 criteria: The class is readily defined; the claims affect (at least) several hundred individuals in the District; common elements of fact and law abound, with the District’s systemic discrimination caused by a discrete set of decision-makers; Plaintiffs seek only injunctive and declaratory relief; and Plaintiffs are represented by experienced counsel.
A class action is appropriate to conserve “the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (internal quotation omitted). A district court has “broad discretion in deciding whether to permit a case to proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994) (citations omitted), cert. denied sub. nom., Dillon v. Powell, 534 U.S. 1078 (2002). “[T]he allegations in the complaint are presumed true for purposes of a motion for class certification . . . .” McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428, 431 (D.D.C. 2002) (citing In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 14 (D.D.C. 2001)). But class
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certification neither requires nor permits courts to determine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”); Meijer, Inc. v. Warner Chilcott Holdings Co. III, 246 F.R.D. 293, 299 (D.D.C. 2007) (same).
Parties seeking class certification must satisfy all of the requirements of Federal Rule of Civil Procedure 23(a), as well as at least one subsection of Rule 23(b). These requirements are met if plaintiffs make a “specific presentation” of facts demonstrating a “reasonable basis for crediting the assertion that aggrieved individuals do exist in the broader class they propose . . . .” Wagner v. Taylor, 836 F.2d 578, 587 n.57 (D.C. Cir. 1987) (citation omitted). A class description is sufficient if it provides “the general outlines of the membership of the class.” Chang v. U.S., 217 F.R.D. 262, 269 (D.D.C. 2003); see also 5 James W. Moore et al., Moore's Federal Practice § 23.21[4][a] (3d ed. 2001).
Plaintiffs readily satisfy these requirements for class certification, just as similar classes across the country seeking injunctive relief under Olmstead have repeatedly satisfied those requirements. See State of Conn. Office of Prot. and Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266, 273 (D. Conn. 2010) (granting class certification for similarly defined class with nearly identical Olmstead claims); Colbert v. Blagojevich, No. 07-CV-4737, 2008 WL 4442597 (N.D. Ill. Sept. 29, 2008) (same); Ligas v. Maram, No. 05-CV-4331, 2006 WL 644474 (N.D. Ill. Mar. 7, 2006) (same); Chambers v. City and County of San Francisco, No. 06-CV-06346, slip op. at 9 (N.D. Cal. July 12, 2007) (same); Pitts v. Greenstein, No. 10-CV635, 2011 WL 2193398 (M.D. La. June 6, 2011) (granting class certification for Olmstead class defined as those at risk of institutionalization); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D.
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Cal. 2010) (same); Hampe v. Hamos, No. 10-CV-3121, U.S. LEXIS 125858 (N.D. Ill. Nov. 22,
2010) (same); Long v. Benson, No. 08-CV-0026, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008)
(certifying class of disabled Medicaid recipients “who could and would reside in the community
with appropriate community-based services”), vacated as moot by legislative action, slip op. at 2
(N.D. Fla. Jan. 3, 2012). See also M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1303 (D. Utah 2003)
(granting class certification for class of Medicaid-eligible, disabled individuals “denied a
meaningful choice between [community-based] services and institutionalization . . . .”).
As demonstrated below, Plaintiffs meet all of the criteria for class certification and the
Court should grant their motion to certify the following class consisting of:
All persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility. This definition is sufficiently discrete and readily ascertainable so as to satisfy the Court’s need
to understand the contours of class membership. See Disability Rights Council of Greater Wash.
v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006) (“All class members
meeting this definition are individuals with disabilities who by definition meet readily defined
eligibility criteria for [defendant’s] services.”). A. Plaintiffs Satisfy the Requirements of Rule 23(a). Rule 23(a) enables members of a class to sue as representative parties on behalf of all
class members if:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class.
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Fed. R. Civ. P. 23(a). These requirements are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. Rule 23(a) should be read liberally in the context of civil rights suits. Hassine v. Jeffes, 846 F.2d 169, 179-80 (3d Cir. 1988); Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980); Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975). See also Falcon, 457 U.S. at 157 (acknowledging the theory “that suits alleging . . . discrimination are often by their very nature class suits . . . .”).
1. Numerosity: The class of 500 to 2,900 individuals is so numerous that joinder of all members is impracticable.
A class action may be maintained if “the class is so numerous that joinder of all parties is impracticable.” Fed. R. Civ. P. 23(a)(1). Impracticability addresses the expense and burden, to the parties and the court, of litigating each claim individually, rendering the case difficult or inconvenient without joining all members of the class. Meijer, 246 F.R.D. at 306-7. Typically, a proposed class of at least 40 members satisfies the numerosity requirement. See, e.g., id. at 306; Disability Rights Council, 239 F.R.D. at 25-26 (“courts in this jurisdiction have observed that a class of at least forty members is sufficiently large”); 1 Newberg on Class Actions (4th ed. 2002) § 3.5 at 247 (“as few as 40 class members should raise a presumption that joinder is impracticable”). The fact that the exact size of the class cannot be easily ascertained does not preclude class certification, so long as there is a reasonable basis for the estimate. Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999); Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987) (“plaintiffs . . . need not show a precise number of class members”).
Here, the proposed class consists of at least 500 people, and possibly as many as 2,900. Compl. ¶ 105. The lowest figure is based upon publicly available data for the number of individuals living in District nursing facilities who have affirmatively stated a preference to live in the community. Compl. ¶ 76. Furthermore, Defendant’s counsel represented at the April 10,
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2012 status hearing that Defendant’s survey had, at that point, identified 100 of 118 survey respondents to meet the class definition in that they are willing to receive, and appropriate for, alternative community-based services. This indicates that 85% of the nearly 3,000 District Medicaid-funded nursing facility residents could be part of the proposed class. Joinder is thus impracticable and the numerosity requirement is satisfied.2
2. Commonality: There are numerous questions of law and fact common to the class resulting from Defendant’s system-wide discrimination.
The second requirement for class certification under Rule 23(a) is commonality, which exists when there are questions of law or fact common to all members of the class. Fed. R. Civ. P. 23(a)(2). At the class certification stage, plaintiffs need only make a showing sufficient for “the court to infer that members of the class suffered from a common policy of discrimination . . . .” Hartman, 19 F.3d at 1472. Rule 23(a)(2) does not require the named plaintiffs to “have endured precisely the same injuries that have been sustained by the class members.” Bynum v. District of Columbia, 214 F.R.D. 27, 33-34 (D.D.C. 2003). Not every question of law or fact must be common to each member of the class; plaintiffs need only present a single issue of law or fact common to all class members. Id. It is enough if the proposed class members suffered from a common harm. Id.
There are numerous questions of law and fact common to the class, including: • Whether Defendant violates the integration mandate of Title II of the
ADA and Section 504 of the Rehabilitation Act by requiring the named Plaintiffs and putative class members to be confined to nursing facilities in order to receive long-term care services, rather than providing those services in more integrated, community-based settings;
2 As noted above, Defendant has agreed not to challenge the numerosity element of class certification.
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• Whether Defendant administers its services, programs, and activities in the most integrated setting appropriate to the needs of individuals with disabilities residing in nursing facilities;
• Whether Defendant fails to offer sufficient discharge planning to enable individuals with disabilities residing in nursing facilities to be served in more integrated, community-based settings;
• Whether Defendant fails to develop, fund, and effectively utilize existing community-based programs so that individuals with disabilities residing in nursing facilities may be placed in more integrated, community-based settings;
• Whether Defendant fails to establish and implement a comprehensive, effective working plan to transition individuals with disabilities who reside in nursing facilities into more integrated, community-based settings;
• Whether Defendant fails to effectively administer and implement federal programs such as Medicaid waivers and Money Follows the Person to afford access to community-based programs by people with disabilities in nursing facilities; and
• Whether Defendant fails to effectively inform and provide Plaintiffs with meaningful choices of community-based long-term care alternatives to nursing facilities.
In sum, the District’s system-wide failures cause a consistent form of discrimination against
Plaintiffs by failing to provide appropriate transition systems and supports. Accord State of Conn.
Office of Prot. and Advocacy for Persons with Disabilities, 706 F. Supp. at 287 (granting class
certification for plaintiffs with Olmstead claims very similar to the present case); Ligas, 2006 WL
644474, at *5 (class certification granted where common issues included “Defendant’s failure to
establish and/or implement a comprehensive, effectively working plan to provide services in the
most integrated setting appropriate to the proposed class’s needs, segregation of the class in the
[nursing facilities], failure to inform the proposed class of their right to integrated community-
based services, and failure to evaluate the proposed class for readiness for community
placement”).
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Any variations among the individual class members in the particular services that they need cannot defeat class certification. As a preliminary matter, the relief sought in this case is not based on each individual class member’s medical and other needs; Plaintiffs seek Districtwide change in Defendant’s processes and support systems. Moreover, it is well-settled that variations in the personal circumstances of individual plaintiffs are not pertinent for purposes of class certification. See, e.g., Hartman, 19 F.3d at 1472 (commonality found notwithstanding differences in job descriptions); Disability Rights Council, 239 F.R.D. at 25 (commonality found despite differences in disabilities and particular service needs); Daniels v. City of N.Y., 198 F.R.D. 409, 417 (S.D.N.Y. 2001) (commonality found where class members’ circumstances were individual but injuries were derived from “unitary course of conduct by a single system”) (quoting Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)). In fact, “factual variations are not sufficient to deny class treatment to the claims that have a common thread of discrimination.” Coleman v. Pension Benefit Guar. Corp., 196 F.R.D. 193, 198 (D.D.C. 2000) (quoting Paxton v. Union Nat'l Bank, 688 F.2d 552, 561 (8th Cir. 1982), cert. denied, 460 U.S. 1083 (1983)) (emphasis added). Accord Smith v. Texaco, 263 F.3d 394, 405 (5th Cir. 2001) (“the commonality hurdle is not particularly high” because there need be only “one issue, the resolution of which will affect all or a significant number of the putative class members”) (citation omitted); Bynum, 214 F.R.D. at 33. Here, all class members are suffering discrimination based on a systemic failure by the District of Columbia to provide transition services and supports.
Furthermore, class actions seeking only injunctive and declaratory relief “‘by their very nature’ present common questions of law and fact.” Moore v. Napolitano, 269 F.R.D. 21, 28 (D.D.C. 2010) (internal quotations omitted); Disability Rights Council, 239 F.R.D. at 26 (quoting
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7A Wright, Miller & Kane, Federal Practice and Procedure § 1763 (3d ed. 2006)). Disability Rights Council v. Washington Metro Area Transit Authority, a recent case in this Circuit, illustrates this point. There, the plaintiffs alleged that the Washington Metro Area Transit Authority (“WMATA”) systemically discriminated against them with regard to the availability of “comparable” transit services for disabled individuals, in violation of the ADA and the Rehabilitation Act. Disability Rights Council, 239 F.R.D. at 9. WMATA opposed class certification on the theory that plaintiffs had not alleged a broad policy of discrimination that affected the class members in the same way, so that the individual class members’ injuries could not be sufficiently linked to system-wide discrimination. Id. at 26-27. In support of its position, WMATA pointed to cases like Love v. Johanns, where the court held that commonality was lacking because claims of discrimination against the USDA’s loan program ultimately “turn[ed] on a series of individualized inquiries” about each plaintiff’s experience. Id. (citing Love v. Johanns, 439 F.3d 723, 730 (D.C. Cir. 2006)).
The court disagreed, finding the comparison to Love inapt. The court explained that, although evidence pertaining to each individual’s discrimination would be relevant to the dispute, the “evidence [would] be assessed in the context of a comprehensive inquiry into WMATA’s systems, patterns, and practices.” Id. at 27. Concluding that class certification was appropriate, the court determined that the disabled plaintiffs’ claims were “fundamentally different” from the typical discrimination case:
This is a universal claim, the metric for which is systemic, rather than specific; either the system provided to the putative class members is comparable, or it is not. Unlike the typical discrimination claim, the individualized claims are not so much that the plaintiffs have suffered targeted, personalized discrimination, but rather that they have been individually discriminated against via systems-level violations of the ADA (and, derivatively, the Rehabilitation Act and § 1983).
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Id. at 26 (emphasis in original). Thus, the court granted class certification despite the distinct disabilities and needs of the individual class members. Id.
Here, Plaintiffs’ claims ultimately concern just one central issue: Defendant’s compliance with the federal statutes that require it to implement a working set of policies and practices that provide access to community-based services for persons with disabilities in nursing facilities who are able to live in the community. See Olmstead, 527 U.S. 581. Each of the named Plaintiffs and each member of the proposed class has been and continue to be harmed by Defendant’s systemic policy failures and resulting conduct (or lack thereof). Plaintiffs request that this Court address Defendant’s systems-level violations of the ADA and the Rehabilitation Act.
Given the multiple common elements of fact and law, litigation as a class is the most efficient and appropriate way to proceed.
3. Typicality: The named Plaintiffs’ claims are typical of the claims of the class.
Rule 23(a)(3) requires that the claims of the class representatives be typical of the class claims. Fed. R. Civ. P. 23(a)(3). “A class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156 (internal citations omitted). The primary purpose of the typicality requirement is to ensure that the interests of the class members will be fairly and adequately protected in their absence. Id. at 157. In other words, the interests of the class representatives must align with the interests of the class. See Disability Rights Council, 239 F.R.D. at 28 (finding typicality where the named plaintiffs’ claims derive from the same legal theories as the claims of the proposed class). When analyzing whether a named plaintiff’s claim is typical under Rule 23(a)(3), the courts look to whether the defendant’s conduct gives rise to claims of other class members “based on the same
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legal theory.” Stewart v. Rubin, 948 F. Supp. 1077, 1088 (D.D.C. 1996), aff’d, 124 F.3d 1309 (D.C. Cir. 1997).
The Supreme Court has recognized that “the commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 n.13. In discrimination cases, “[t]he court must consider whether the class representatives suffered injury from a specific discriminatory [practice] in the same manner that the members of the proposed class did . . . .” McReynolds, 208 F.R.D. at 445. Accordingly, the typicality prong of Rule 23(a) is met when plaintiffs “[make] a convincing showing of a common policy of discriminatory treatment . . . .” Id. Thus plaintiffs may satisfy the typicality requirement despite differences in individual factual circumstances and in damages. See, e.g., In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. at 28 (typicality present despite differences in damages); Hartman v. Duffy, 158 F.R.D. 525, 537 (D.D.C. 1994) (commonality and typicality satisfied in sexual discrimination action despite factual differences among the plaintiffs).
Here, the named Plaintiffs, like the class members, are individuals with disabilities who are able to receive, and wish to receive, services in the community. Their claims typify the claims of the class and they seek the same relief as all class members. The named Plaintiffs’ factual characteristics are consistent with the proposed class:
a. Defendant has determined that each of the named Plaintiffs is disabled. Compl. ¶¶ 21, 55.
b. The named Plaintiffs currently reside in a nursing facility where they receive care that is funded by the District. Compl. ¶¶ 22, 26, 31, 36, 40, 45, 51.
c. Each of the named Plaintiffs could live in the community with the necessary services and supports, which the Defendant could provide. Compl. ¶ 23; Ex. A ¶¶ 30, 44, 53, 67, 87, 89.
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d. Each of the named Plaintiffs would rather live in the community instead of in a nursing facility. Compl. ¶ 75; Ex. A ¶¶ 28, 42, 43, 51, 54, 85, 97; Ex. B ¶ 10; Ex. C ¶¶ 4, 18; Ex. D ¶¶ 8, 14; Ex. E ¶ 10; Ex. F ¶ 10; Ex. G ¶ 9.
Similarly, the named Plaintiffs’ legal claims are typical of the class’s claims because they arise from the same course of systemic, discriminatory conduct by Defendant resulting in unnecessary segregation of Plaintiffs and class members in nursing facilities. Regardless of any individual differences among class members, each has experienced the same institutionalization and sustained the same type of injuries resulting from the same course of conduct by Defendant.
Accordingly, the typicality requirement of Rule 23 is satisfied. 4. Adequacy of Representation: The named Plaintiffs and their attorneys will fairly and adequately protect the interests of the class.
The fourth requirement of Rule 23(a) is that the representative parties must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy the requirements of Rule 23(a)(4), the interests of the class representatives must not be antagonistic to those of the remaining class members, and the representative parties, through their attorneys, must be prepared to vigorously prosecute the action. Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 177 (D.D.C. 1999) (citations omitted); Meijer, 246 F.R.D. at 302. Consequently, the adequacy of representation requirement focuses on “concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S. at 157 n.13.
The class representatives do not have any interests that are antagonistic to the interests of the class. As discussed above, the individual, named Plaintiff’s circumstances and their claims and injuries are typical of those of the proposed class members. None of the named Plaintiffs seek personal monetary damages or other individualized relief to the exclusion of other class members. To the contrary, the focus of this litigation is the grant of broad injunctive relief that will benefit the entire class. No conflicts exist that could hinder the named Plaintiffs’ ability to
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vigorously pursue the litigation on behalf of the class. And the named Plaintiffs are prepared to fairly and adequately protect the interests of the class. Ex. B ¶ 12; Ex. C ¶ 20; Ex. D ¶ 18; Ex. E ¶ 12; Ex. F ¶ 12; Ex. G ¶ 12.
Similarly, named Plaintiffs’ counsel are prepared to vigorously pursue the class’s interests.3 No conflicts exist between counsel, named Plaintiffs, and the proposed class members that would compromise their ability to represent the class. Plaintiffs’ attorneys are counsel with deep experience in many public interest cases and in the litigation of complex federal actions, including class actions involving disability and health programs. They are highly qualified, and their resources are more than adequate to represent the class completely:
• AARP Foundation Litigation is an advocate in courts nationwide for the rights of people 50 and older addressing diverse legal issues. Kelly Bagby specializes in civil rights, disability rights, special education, health law, and other public interest areas, with an emphasis on litigation. Bagby Decl. ¶ 3 (attached as Exhibit J). She is presently class counsel in Darling v. Douglas (formerly Cota v. Maxwell-Jolly and Brantley v. MaxwellJolly), No. 09-CV-0148 (N.D. Cal.), a case that resulted in a settlement agreement to protect Medi-Cal beneficiaries from unnecessary institutionalization in nursing facilities because of State cuts to their community-based services. Ex. J ¶ 3. Bruce Vignery has served as class counsel for nursing facility residents in cases that present legal issues similar to those presented in this case, including Lee v. Dudek, No. 08-CV-0026 (N.D. Fla.) and Chambers v. City and Cnty. of San Francisco, No. 06-CV-06346 (N.D. Cal.). Ex. J ¶ 5.
3 As noted above, Defendant has agreed not to challenge the adequacy of class counsel. 21

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• University Legal Services (“ULS”) is the designated protection and advocacy program for the District of Columbia that represents people with disabilities to promote their civil rights and ensure their access to quality services and supports in the most integrated settings appropriate to their needs. Rifkin Decl. ¶¶ 1-2 (attached as Exhibit K). Marjorie Rifkin is a Managing Attorney at ULS, where she has worked since 1999. Id. ¶ 1. During her time at ULS and prior to coming to ULS, Ms. Rifkin has litigated many complex civil rights cases, most of which were class actions, including Young v. District of Columbia, Case No. 01-CV-0650 (D.D.C.), a class action resulting in a consent order that addresses the failure of the District of Columbia’s Housing Authority to have sufficient numbers of accessible housing units. Ex. K ¶ 6. Jennifer Lav is a Managing Attorney at ULS who has worked on many civil rights cases in federal court, both while at ULS and while with the Alabama Disability Advocacy Program. Id. ¶¶ 13, 19. Victoria Thomas has extensive disability experience and a great deal of legal experience. Id. ¶ 25.
• Arent Fox LLP is a law firm headquartered in Washington, D.C., and has served as class counsel in many, large discrimination class action cases. Wahl Decl. ¶ 2 (attached as Exhibit L). Barbara Wahl chairs the Commercial Litigation practice group at Arent Fox, where she has been a partner since 1987. Id. ¶ 3. She has served as class counsel in many class action cases, including Love v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009). Ex. L ¶ 4. Brian D. Schneider is an associate at Arent Fox with significant experience in complex civil litigation before state and federal courts. Id. ¶ 5. He focuses on cases affecting the health care industry. Id.
Plaintiffs thus are ready to pursue the class’s claims, and their counsel are prepared to support
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that objective. The adequacy of representation requirement is plainly met. B. Rule 23(b)(2) is Satisfied Because Defendant Acted on Grounds Generally Applicable to the Class, Making Final Injunctive and Declaratory Relief Appropriate. Plaintiffs easily satisfy Rule 23(b)(2)’s requirement that “the party opposing the class has
acted or refused to act on grounds generally applicable to the class, thereby making appropriate final and injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) is satisfied when “(1) the defendant’s action or refusal to act [is] generally applicable to the class; and (2) plaintiffs must seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Disability Rights Council, 239 F.R.D. at 28 (citing 7A Wright, Miller & Kane § 1775; Bynum, 214 F.R.D. at 48) (internal quotations omitted). Civil rights cases against parties charged with class-based discrimination are “prime examples” of actions under Rule 23(b)(2). Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997); In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002) (Rule 23(b)(2) certification is “particularly well-suited for civil rights actions where ‘a party is charged with discriminating unlawfully against a class.’”) (quoting Fed. R. Civ. P. 23(b)(2) Advisory Comm. Notes).
This case fits precisely within Rule 23(b)(2) because Defendant’s policies and practices affect all members of the class, Plaintiffs seek only declaratory and injunctive relief, and remediation of Defendant’s violations of federal law will apply to all class members.
C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel. Upon certifying the class, the Court also must appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B), (g). The Federal Rules list four factors the court must consider in appointing class counsel:
i. the work counsel has done in identifying or investigating potential claims in the action;
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ii. counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
iii. counsel’s knowledge of the applicable law; and iv. the resources that counsel will commit to representing the
class. Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). Pursuant to these four factors, Plaintiffs’ counsel qualify for appointment in this case. As demonstrated through the course of this litigation to date, Plaintiffs’ counsel have committed extensive time and resources to investigating and analyzing Plaintiffs’ claims. They are experienced in class actions and complex litigation, and they have extensive knowledge of discrimination and benefits law. See Ex. J; Ex. K; Ex. L. The Court thus should appoint Plaintiffs’ counsel as class counsel in its class certification order. III. CONCLUSION
Hundreds, if not thousands, of disabled individuals, including the named Plaintiffs and those in the proposed class, have languished in nursing facilities due to the District’s discriminatory practices. Plaintiffs are anxious to move forward, together. Plaintiffs thus respectfully request that this Court:
a. Certify this case as a Rule 23(b)(2) class action; and b. Appoint Plaintiffs’ counsel to serve as class counsel. An oral hearing is requested.
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Dated: May 15, 2012

Respectfully submitted,
/s/ Brian D. Schneider Marjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 Victoria Thomas, D.C. Bar No. 1001027 mrifkin@uls-dc.org jlav@uls-dc.org vthomas@uls-dc.org University Legal Services–Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org Bvignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424
Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider.brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395
Counsel for Plaintiffs

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 Case 1:10-cv-02250-ESH-AK Document 42 Filed 02/14/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWARD DAY, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

)

)

)

)

)

)

Civil Action No. 10-2250 (ESH)

)

)

)

)

)

ORDER For the reasons stated in an accompanying Memorandum Opinion, it is hereby ORDERED that defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 19] is GRANTED IN PART AND DENIED IN PART; it is further ORDERED that the motion is GRANTED insofar as the individual defendants, Vincent Gray, the Mayor of the District of Columbia, Wayne Turnage, Director of the District of Columbia’s Department of Health Care Finance, and Stephen Baron, Director of the District of Columbia’s Department of Mental Health, who are sued only in their official capacities, are DISMISSED and DENIED in all other respects; it is further ORDERED that plaintiffs’ Motion for Leave to File a Motion for Class Certification by January 5, 2012 [Dkt. No. 37] is DENIED as moot; it is further ORDERED that a telephone conference call, to be originated by the parties, will be held on Tuesday, February 28, 2012 at 2:00 p.m.; and it is further

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ORDERED that a status conference is set for March 13, 2012, at 9:30 a.m. in Courtroom 23A, at which all matters pertaining to future scheduling will be addressed.

Date: February 14, 2012

/s/ ELLEN SEGAL HUVELLE United States District Judge

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 Case 1:10-cv-02250-ESH-AK Document 46 Filed 04/02/12 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACQUALYN THORPE Deanwood Rehabilitation Center 5000 Nannie Helen Burroughs Ave., NE Washington, DC 20019;
ROY FOREMAN Washington Center for Aging Services 2601 18th St., NE Washington, DC 20018;
LARRY MCDONALD Unique Residential Care Center 901 First St., NW Washington, DC 20001;
CURTIS WILKERSON United Medical Center Nursing Home 1310 Southern Ave., SE Washington, DC 20032;
JUDITH MILLER Deanwood Rehabilitation Center 5000 Nannie Helen Burroughs Ave., NE Washington, DC 20019; and
DONALD DUPREE Washington Nursing Facility 2425 25th St., SE Washington, DC 20020,
on behalf of themselves and all others similarly situated,
Plaintiffs, v.
DISTRICT OF COLUMBIA, a municipal Corporation,
Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SECOND AMENDED COMPLAINT ) ) Civil Action No. 1:10-cv-02250 (ESH) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:10-cv-02250-ESH-AK Document 46 Filed 04/02/12 Page 2 of 29
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Federal law requires that the District of Columbia provide services to people with disabilities in the most integrated setting appropriate to their needs. But the District has failed to comply with this obligation, leaving between 500 and roughly 2,900 people with disabilities unnecessarily institutionalized in nursing facilities, segregated and isolated from their families and friends. These individuals desperately want to return to their communities and could do so if the District was to comply with federal law.
This class action therefore seeks injunctive and declaratory relief to require the District of Columbia to comply with its long-standing, federally-mandated obligations. The class consists of all persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility. This class, which includes each of the Named Plaintiffs, commonly requires a District-wide system of transition services to connect its members with community-based supports and services.
PRELIMINARY STATEMENT 1. Plaintiffs are the named individuals and a class of similarly-situated individuals with disabilities who desperately desire the freedom to live in their community but instead remain institutionalized in nursing facilities against their will. Plaintiffs could be served in community-integrated settings, but remain – and likely will continue to remain – in nursing
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facilities for years because Defendant provides few opportunities, if any, for Plaintiffs to obtain services in more integrated settings.
2. Defendant, the District of Columbia, through its Mayor and the officials who plan, oversee, fund, and regulate services, programs, and activities for persons with disabilities, has unnecessarily and inappropriately institutionalized Plaintiffs in nursing facilities despite federal law requiring that Defendant honor the class members’ desires and abilities to live in more integrated settings in the community with appropriate services and supports.
3. Defendant is in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., because it unlawfully discriminates against Plaintiffs by institutionalizing them in nursing facilities and isolating them from their communities.
4. Title II of the ADA prohibits discrimination against individuals with disabilities. In enacting the ADA, Congress found that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation.” 42 U.S.C. § 12101(a)(5). Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The United States Department of Justice promulgated regulations under Title II requiring that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis added).
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5. Section 504 of the Rehabilitation Act provides that no person with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Regulations implementing Section 504 require that a public entity administer programs, services, and activities in “the most integrated setting appropriate” to the needs of individuals with disabilities. 28 C.F.R. § 41.51(d).
6. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. The Court concluded that state and local governments may be held liable for failing to serve people with disabilities in the most integrated settings appropriate to their needs.
7. Despite the passage of thirteen years since Olmstead, Defendant continues to fail to facilitate access to community-based long-term care services and supports for Plaintiffs in the most integrated setting appropriate to their needs.
8. Because of Defendant’s failure to fund or otherwise make available sufficient community-based alternatives, individuals with disabilities often have nowhere to go but nursing facilities.
9. Defendant’s programs and activities for persons with disabilities systematically deny or ignore Plaintiffs’ choices and preferences for integrated community care, leaving them to languish in institutional nursing facilities even though appropriate community-based services and settings exist that could be made available at the same or even lower cost.
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10. Defendant is able to appropriately discharge Plaintiffs with community-based support services.
11. Plaintiffs are thus needlessly segregated from their families, friends, and community life.
12. Plaintiffs’ plight is shared by many. According to federal and state data, when offered a choice between community and nursing facility-based care, more than 500 District of Columbia nursing facility residents would choose to receive long-term care services in more integrated settings in the community instead of being forced to remain in a nursing facility.
13. Upon information and belief, many more nursing facility residents would choose to live in more integrated settings in the community if they were informed about communitybased options.
14. Plaintiffs bring this action to compel Defendant to comply with its federal legal obligations.
JURISDICTION 15. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983. At all times relevant to this action, Defendant has acted under color of state law. 16. Plaintiffs’ claims for violations of Title II of the ADA, 42 U.S.C. §§ 12131 and 12132 et seq., are asserted against the District of Columbia, a “State or local government” as defined by the statute.
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17. Plaintiffs’ claims for violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., are asserted against the District of Columbia, a “State or local government” as defined by the statute.
VENUE 18. Venue lies in the District of Columbia pursuant to 28 U.S.C. § 1391(b)(1)-(2) because the Defendant is the District of Columbia, and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District.
DEFENDANT 19. Defendant District of Columbia is responsible for operating its programs, services, and activities in conformity with the ADA and Section 504 of the Rehabilitation Act. In light of the violations by its governmental agencies individually and collectively, the District of Columbia is sued under the Rehabilitation Act and the ADA. 20. At all times relevant to this Complaint, Defendant knew or should have known of the policies, practices, acts, and conditions alleged herein.
PLAINTIFFS All Plaintiffs 21. Plaintiffs are all District of Columbia residents with disabilities that substantially limit their ability to perform major life activities. They are also regarded by Defendant as having such impairments, and therefore are individuals with disabilities for purposes of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20).
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22. Plaintiffs are all currently housed in nursing facilities and their care is funded by the District.
23. All Plaintiffs could be served in the community through services Defendant already has available.
24. Although residing in the community with support services is the most integrated setting where the Plaintiffs’ needs can be met, Defendant has offered them personal care and health care services only in a nursing facility setting.
25. All Plaintiffs want to leave the nursing facilities in which they reside, and they could do so with appropriate services and supports.
The Named Plaintiffs Plaintiff Jacqualyn Thorpe 26. Plaintiff Jacqualyn Thorpe is a sixty-three year old woman who has resided at Deanwood Rehabilitation Center since March 2008. 27. Ms. Thorpe is diagnosed with Guillain Barre Syndrome and hypertension, and has a history of a stroke and deep vein thrombosis. 28. Ms. Thorpe is the president of the Red Hat Society at the facility and has family members who visit her. 29. Ms. Thorpe could live in the community with appropriate services and supports. She has been determined by health care professionals to be appropriate for community placement.
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30. Ms. Thorpe dresses and feeds herself, no longer receives physical therapy in the nursing facility, and wants to leave the facility and return to the community.
Plaintiff Roy Foreman 31. Plaintiff Roy Foreman is a sixty-six year old man who has resided at Washington Center for Aging Services since May 2006. 32. Mr. Foreman was admitted to Washington Center for Aging Services from the Specialty Hospital of Washington, DC after sustaining a fall at home which resulted in a spinal cord injury resulting in paraplegia. He is also diagnosed with decubitus ulcers, diabetes, and depression. 33. The staff at the nursing facility assists him with bathing, dressing, transferring, and toileting. 34. Mr. Foreman could live in the community with appropriate services and supports. He has been determined by health care professionals to be appropriate for community placement. 35. Mr. Foreman has a strong preference to live independently in the community. Plaintiff Larry McDonald 36. Plaintiff Larry McDonald is a fifty-eight year old man who has resided at Unique Residential Care Center since September 2006 when he was first admitted for a seizure that lasted three days. 37. Mr. McDonald is diagnosed with a seizure disorder, hypertension, and dementia. Mr. McDonald is a veteran of the Army. His nursing facility records indicate that he requires assistance with three activities of daily living: medication management, bathing, and dressing.
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38. Mr. McDonald could live independently in the community, with either a family member or on his own with appropriate health care, personal care, and residential supports. He has been determined by health care professionals to be appropriate for community placement.
39. Mr. McDonald has family with whom he wants to spend time in the community, and he prefers to live in the community.
Plaintiff Curtis Wilkerson 40. Plaintiff Curtis Wilkerson is a forty-nine year old man who has resided at United Medical Center since December 2009. He transferred to that facility from Fox Chase Nursing Home where he resided for six years. 41. Mr. Wilkerson is diagnosed with paraplegia, neurogenic bladder, and recurring bladder infections. 42. Mr. Wilkerson’s records indicate that he is self-sufficient in the nursing facility and is the president of the Resident Council in the facility. 43. Mr. Wilkerson could live in the community with appropriate services and supports. He has been determined by health care professionals to be appropriate for community placement. He requires one person to assist him with transfers and activities of daily living. 44. Mr. Wilkerson prefers to live in the community. He has a supportive family and a clear understanding of his care needs and medicines, and he is a strong advocate for himself. Plaintiff Judith Miller 45. Plaintiff Judith Miller is a sixty year old woman who has resided at Deanwood Rehabilitation Center since September 2008.
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46. Ms. Miller is diagnosed with several wounds, diabetes, and previously had a GTube for feeding but that is now permanently removed. She relies primarily on a wheelchair and can transfer from her chair to her bed independently. She also is diagnosed with depression and a mood disorder.
47. She is the treasurer of the Resident Council and a member of the Red Hat Society at the facility.
48. Prior to coming to the facility, Ms. Miller lived with her daughter and granddaughter. She has four children and fifteen grandchildren.
49. Ms. Miller could live in the community with appropriate services and supports. She has been determined by health care professionals to be appropriate for community placement.
50. Ms. Miller prefers to live in the community. Plaintiff Donald Dupree 51. Plaintiff Donald Dupree is a forty-seven year old man who has resided at Washington Nursing Facility for the past six years, since June 2006, when he was admitted for post-surgery recovery after he had a brain tumor removed. 52. Mr. Dupree has been diagnosed with a cerebellopointe angle (CPA) tumor and schizophrenia. His nursing facility records indicate that he requires assistance with the following activities of daily living: medication management, bathing, meal preparation, overall mobility, money management, and housekeeping.
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53. Mr. Dupree could live independently in the community, with appropriate health care, personal care, and residential supports. He has been determined by health care professionals to be appropriate for community placement.
54. Mr. Dupree wants to live in the community. Dr. Orit Simhoni is his court appointed guardian. She supports his desire to live in the community.
STATEMENT OF FACTS 55. Individuals with certain diagnosable mental, behavioral, or emotional disorders are eligible to receive services, including long-term care services, from the District of Columbia. 56. Defendant funds these services largely through the Medicaid program, a joint federal and state program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. 57. Approximately 83 percent of D.C. nursing facility residents are D.C. Medicaid recipients. 58. The District receives 70 cents in federal reimbursement for every dollar it spends on Medicaid services. 59. The District also participates in the federal Money Follows the Person (“MFP”) program designed to provide federal funds to state Medicaid programs to transition people into community-based settings. The District would receive 85 cents in federal reimbursement for each dollar it spends to transition people from nursing facilities under that program. 60. Defendant provides nursing facility-based services through privately-owned and operated nursing facilities – many of which are for-profit businesses – and through nursing
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facilities (such as Unique Residential and a skilled nursing facility unit at United Medical Center) that are owned by the District and operated through leasing arrangements or contracts with nursing facility management companies.
61. There are approximately 2,700 beds in skilled nursing facilities in the District of Columbia, with an occupancy rate of over 90 percent.
62. Approximately 200 additional D.C. residents currently are placed in out-of-state nursing facilities; D.C. Medicaid continues to fund their care.
63. The District also provides in-home and community-based services to people with disabilities under the Medicaid program.
64. People with disabilities are entitled to personal care aide services in their homes under the District of Columbia’s Medicaid State Plan and the Medicaid Waiver Programs for those who are Elderly or have Physical Disabilities (“EPD Waiver”). The District’s EPD Waiver program has a fixed number of slots (4,000) for beneficiaries.
65. The District’s Medicaid Waiver Programs provide home healthcare services, home- and community-based care for functionally disabled individuals, personal care services, and other medical and remedial care recognized under the Medicaid State Plan such as skilled nursing services.
66. Under these options, people with disabilities who would otherwise qualify for nursing facility services are able to live independently with community-based supports and services, including healthcare, personal care services, personal emergency response services, and other long-term care services otherwise found in nursing facilities.
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67. Defendant offers a range of other Medicaid- and locally-funded services to adults with mental illness living in the community in D.C., such as service planning, community support, assertive community treatment, diagnosis, assessment, medication management, day treatment, and crisis intervention services.
68. Defendant licenses, certifies, or contracts with private home health agencies and community support agencies to provide these long-term care services in the community.
Nursing Facilities Are Institutions 69. Nursing facilities are, for the most part, neither integrated into nor part of the communities in which their residents live. They are not real homes or even home-like. They are segregated institutions housing large numbers of unrelated people, both elderly and non-elderly, in congregate settings. Many nursing facilities provide only beds, meals, and sparse rehabilitative services. 70. Many nursing facilities resemble hospitals and secure facilities. For example, Unique Residential is surrounded by a security fence with an electronic lock and requires most residents to have escorts and special permission to leave the facility even for brief periods of time. Some D.C. nursing facilities have curfews, and, at times, security guards posted to monitor people entering and leaving the facilities. Inside, many facilities have nurses’ stations and are filled with the hard sterile surfaces normally found in medical facilities. 71. Often there is little, if any, privacy for nursing facility residents. Often residents must share rooms and bathrooms with other residents they did not know previously and with whom they did not choose to live; their beds are separated by only a curtain. In some facilities,
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such as Unique Residential, entire wards of individuals share bathrooms and shower facilities. Often residents have minimal space to call their own or to use to safeguard their personal belongings, and many residents report that their personal property has been stolen or damaged. Nursing facility residents often lack their own telephones and are frequently restricted in the use of the nursing facility telephones, which lack privacy. Medications are often dispensed publicly at specific times, with residents waiting in line.
72. Nursing facilities often place many limitations on residents’ autonomy. In many facilities, residents are subjected to a highly regimented lifestyle characterized by restrictive rules and policies. Daily activities are often conducted in a central location in the facility, in the company of large numbers of other individuals with disabilities. As a result, residents may sit idle for most of the day, with little or nothing to do. Many nursing facilities offer few places for residents to gather or meet with visitors.
73. Often residents have limited access to the community; it is difficult for most, and impossible for many, to participate in community activities offered by churches, clubs, or other organizations.
Plaintiffs Desire and Are Able to Live in the Community 74. The Named Plaintiffs (those identified in paragraphs 26 to 54 above) and class members prefer to live in the community with appropriate assistance, rather than reside in nursing facilities.
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75. All Plaintiffs would prefer to live with family, in their own apartments or homes, or in permanent supported housing – all more integrated settings appropriate to their needs than the nursing facilities in which they currently reside.
76. The District of Columbia nursing facilities’ self-reported Medicaid data reports that, in the third quarter of 2010, 526 D.C. nursing facility residents indicated that they wanted to live in the community instead of a nursing facility.
77. This data vastly undercounts the preferences of nursing home residents because of their lack of awareness of community-based options.
78. Many of the class members may need education and support in order to make an informed choice about whether to receive services in nursing homes or in the community in more integrated settings.
79. All of the Plaintiffs could be served safely and appropriately in the community if Defendant facilitated their access to community-based, long-term care services and supports. These options would afford far more choice, freedom, and privacy, as well as the opportunity to maintain regular family relationships and interact with and form friendships with a variety of people. With appropriate supports and services, persons with disabilities of all ages and levels of disability can successfully move into and remain in the community and live more independently.
80. All of the Plaintiffs desire and are capable of living in a community-based setting with appropriate services and supports.
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Defendant Continues to Violate Title II of the ADA and Olmstead 81. Despite Plaintiffs’ desire and ability to live independently in the community with the services they need, Defendant has failed to take any meaningful action to ensure that Plaintiffs receive services in the most integrated setting appropriate to their needs. 82. Thirteen years after the United States Supreme Court decision in Olmstead, the District of Columbia still does not have a comprehensive, effectively-working plan to implement the requirements described in that decision. 83. Instead of providing community-based services, Defendant relies heavily on nursing facilities to provide services to individuals with disabilities and to provide long-term care. 84. Defendant’s services, programs, and activities for persons with mental or physical disabilities leave many hundreds of people languishing, isolated in nursing facilities. Defendant’s actions and inactions have resulted in the needless isolation, segregation, and institutionalization of individuals with disabilities in nursing facilities. 85. Many of the individuals to whom Defendant currently provides community-based services have mental and physical conditions and functional capacities that are the same as, or are similar to, the class members currently living in nursing facilities. 86. The Medicaid-funded personal care services all Plaintiffs receive in nursing facilities could be provided in the community at the same or lower cost. 87. The District of Columbia’s average annual expenditure for nursing facility care is more than $60,000 per year per person, and the average annual cost per patient in a psychiatric hospital is over $285,000.
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88. In contrast, the annual cost per person to provide community-based mental health
services is approximately $25,000, or 60 percent less than the District’s cost for nursing facility-
based care.
89. Among other things, Defendant fails to:
i. Assure that individuals with mental or physical disabilities receive services in the most integrated setting appropriate to their needs;
ii. Develop or implement a comprehensive and effective working plan that identifies individuals with mental or physical disabilities who are needlessly in nursing facilities and helps them move to more integrated settings;
iii. Provide adequate and appropriate community services;
iv. Provide information about community-based alternatives or comprehensive discharge planning to enable Plaintiffs to live in more integrated settings;
v. Assure that people with mental or physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them of the availability of integrated, community-based options for mental health and other health care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community;
vi. Properly identify persons with mental or physical disabilities who should not be admitted into nursing facilities;
vii. Assure that individuals with mental or physical disabilities residing in nursing facilities are periodically reviewed and assessed for communitybased treatment;
viii. Assure that individuals with mental or physical disabilities are discharged from nursing facilities when appropriate;
ix. Provide information, transitional assistance, and referrals to facilitate Plaintiffs’ access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and
x. Take adequate steps to preserve individuals’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
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90. The District of Columbia’s Department of Mental Health (“DMH”) is the primary agency responsible for planning, developing, coordinating, and monitoring “comprehensive and integrated mental health systems of care for adults . . . in the District.” D.C. Code § 71131.04(1). DMH is responsible for screening, evaluating, and monitoring individuals with mental illness who reside in, or are at risk of entry into, nursing facilities in the District. Among the services within DMH’s jurisdiction are community support, service planning, counseling and medication management, assertive community treatment, discharge planning, transition assistance, and day treatment programs; some or all of these are the very types of services that could enable Plaintiffs to leave nursing facilities and live in more integrated settings.
91. DMH has failed to provide adequate outreach to people in nursing homes, to appropriately administer and provide the services listed above, and to avert placement in nursing homes in the first instance.
Defendant’s Policies Undermine Olmstead’s Requirements 92. Defendant administers its Medicaid program and mental health services in a manner that perpetuates the segregation of persons with disabilities. These methods of administration arbitrarily limit access to integrated, community support services by persons with disabilities in nursing facilities. As a result of the District’s unbalanced long-term care system, community-based long-term care services are unavailable to many people with disabilities who need and want them, effectively compelling their institutionalization in nursing facilities. 93. For example, Defendant refuses to pay mental health service providers to provide services to individuals in nursing facilities who qualify for and need mental health services.
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Instead, providers are required to terminate those services entirely once individuals enter a nursing facility. This practice prevents individuals from leaving nursing facilities because they cannot access appropriate services to transition to the community.
94. Additionally, in 2006, the District was approved to receive over $26 million in federal funds through a five-year grant to support the transition of 1,100 people from nursing facilities and other institutions to the community to live independently with the services they need. The grant period was extended. Now in its sixth year of the grant period, the District has transitioned only a small fraction of the original targeted number of persons from nursing facilities under the grant.
95. Olmstead’s integration mandate may be excused only where a state demonstrates that compliance with the mandate would result in a “fundamental alteration” of the state’s services and programs. Olmstead, 527 U.S. at 603. This defense is not available, however, to states that have not developed a plan to comply with the Olmstead mandate. Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 158-59 (3d Cir. 2005).
96. In 2009, Defendant circulated a draft of a written “Olmstead Plan” which was never finalized or implemented.
97. Defendant’s Draft Olmstead Plan is not a comprehensive, working plan because, among other things, it fails to establish or implement mechanisms to transition Plaintiffs into more integrated settings. Even if Defendant was to finalize a written Olmstead plan, the District of Columbia’s system of long-term care does not operate effectively to meet its obligations under Olmstead and the ADA.
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98. The District of Columbia’s Department of Health Care Finance Administration (“DHCF”) is responsible for administering the District of Columbia’s long-term care system for people with disabilities. See D.C. Code § 7-771.07(9). DHCF must “maximize federal assistance,” “[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars,” and “ensure coordinated health-care access and delivery for publicly funded health-care services.” D.C. Code § 7-771.07(3)-(5). DHCF also is “the single state agency” that administers the District of Columbia’s Medicaid program. See 42 U.S.C. § 1396a(a)(5); D.C. Code § 7-771.07(1).
99. Defendant’s violations of its federal obligations worsened in 2011 to 2012 due to DHCF’s proposal to reduce home-based personal care aide services under the Medicaid State Plan from 1,040 hours per year per person, with additional hours available pursuant to physicians’ orders and DHCF prior authorization, to 520 hours per year per person, with no provision for additional hours. As a result of these proposed cuts, the District advised approximately 2,900 Medicaid beneficiaries to apply for EPD Waiver slots. The addition of several hundred Medicaid beneficiaries in the community to the EPD Waiver program exhausted the 4,000 allotted community-based EPD Waiver slots. In August 2011, the District established a waiting list for participation in the EPD Waiver Program.
100. On May 7, 2010, counsel for Named Plaintiffs sent a letter to former District of Columbia Mayor Adrian Fenty and former Attorney General Peter Nickles detailing the violations of Plaintiffs’ rights under the integration mandate of Title II of the ADA and the Supreme Court’s ruling in Olmstead. The letter cited policies and practices such as the District’s “failure to inform nursing home residents about the availability of integrated community-based
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options for mental health and other health care” and the lack of a “comprehensive and effective plan for identifying individuals with mental or physical disabilities who are needlessly in nursing facilities and for helping them move to more integrated settings.” The letter urged former Mayor Fenty “to take strong and swift action to enable people with disabilities in nursing facilities to receive services in integrated settings.”
101. On July 13, 2010, and July 27, 2010, Plaintiffs’ counsel met with former Mayor Fenty’s designees, including former Attorney General Peter Nickles and designees from DMH, regarding Plaintiffs’ May 7th letter.
102. Defendant has not resolved Plaintiffs’ grievances.
CLASS ACTION ALLEGATIONS 103. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and Local Rule 23.1, the Named Plaintiffs bring this action for prospective relief on behalf of themselves and all other persons similarly situated. 104. The proposed class consists of:
All persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility. 105. Numerosity: The Plaintiff class is so numerous that joinder of all its members is impracticable. The exact number of individuals in the class is not known but is believed to be between 500 and 2,900 individuals.
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106. Joinder is also impracticable because class members lack the knowledge and
financial means to maintain individual actions.
107. Commonality: There are questions of law or fact that are common to all the
Named Plaintiffs, as well as to all class members, including:
a. Whether Defendant violates the integration mandate of Title II of the ADA and Section 504 of the Rehabilitation Act by requiring Named Plaintiffs and class members to be confined to nursing facilities in order to receive long-term care services, rather than providing those services in more integrated, community-based settings;
b. Whether Defendant administers its services, programs, and activities in the most integrated setting appropriate to the needs of individuals with disabilities residing in nursing facilities;
c. Whether Defendant fails to offer sufficient discharge planning to enable individuals with disabilities residing in nursing facilities to be served in more integrated, community-based settings;
d. Whether Defendant fails to develop, fund, and effectively utilize existing community-based programs so that individuals with disabilities residing in nursing facilities may be placed in more integrated, community-based settings;
e. Whether Defendant fails to establish and implement a comprehensive, effective working plan to place individuals with disabilities who reside in nursing facilities into more integrated, community-based settings;
f. Whether Defendant fails to effectively administer and implement federal programs such as Medicaid waivers and Money Follows the Person to afford access to community-based programs by people with disabilities in nursing homes; and
g. Whether Defendant fails to effectively inform and provide Plaintiffs with meaningful choices of community-based long-term care alternatives to nursing facilities.
108. Typicality: The claims of the Named Plaintiffs are typical of the claims of the
class as a whole in that both the Named Plaintiffs and the class members currently are
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unnecessarily isolated in nursing facilities and receiving care funded by the District of Columbia; they could live in more integrated settings with appropriate health care, personal care, and residential support services; and they desire to live in more integrated, community-based settings.
109. Named Plaintiffs’ claims that Defendant has failed to administer its mental health and long-term Medicaid programs to provide services in the most integrated setting appropriate to their needs are typical of the claims of the class.
110. Adequate representation: The Named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole because they suffer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and the actions of the Defendant to deprive them of their rights. The Named Plaintiffs’ interests are consistent with and are not antagonistic to those of other class members. By filing this action, the Named Plaintiffs express their interest in vindicating their rights, as well as the rights of others who are similarly situated. The relief sought by the Named Plaintiffs will inure to the benefit of members of the class generally. The Named Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation.
111. Defendant has acted or refused to act on grounds generally applicable to the class by unnecessarily segregating class members, thereby making final injunctive relief appropriate
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with respect to the class as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. For example, Defendant has failed to inform class members of their right to community services and failed to provide them with services in the most integrated setting appropriate to their needs. Although the specific disabilities of the class members vary, they also share a common need for Medicaid and locally-funded services.
112. A class action is superior to individual lawsuits for resolving this controversy. Declaratory and injunctive relief with respect to the entire class is appropriate.
COUNT 1 AMERICANS WITH DISABILITIES ACT 113. Paragraphs 1 through 112 are incorporated by reference. 114. Each Named Plaintiff and class member is an “individual with a disability” within the meaning of the ADA in that they have disabilities that substantially limit one or more major life activities, such as self-care and social interaction. They also have a history of such impairments and are regarded by Defendant as having such impairments. 115. Each Named Plaintiff and class member is a “[q]ualified individual with a disability” within the meaning of the ADA, 42 U.S.C. § 12131(2), because he or she is qualified to participate in Defendant’s more integrated, community-based programs and services. 116. Defendant District of Columbia is a public entity covered by Title II of the ADA. As such, the ADA prohibits Defendant from discriminating against individuals with disabilities in its programs and services. See 42 U.S.C. §§ 12131 and 12132.
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117. Regulations implementing Title II of the ADA require that “[a] public entity administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
118. The ADA’s implementing regulations further provide: A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.
28 C.F.R. § 35.130(b)(3)(i)-(ii). 119. Defendant has caused the Named Plaintiffs and class members to be confined
unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports.
120. Defendant’s actions violate Title II of the ADA.
COUNT II REHABILITATION ACT 121. Paragraphs 1 through 120 are incorporated by reference. 122. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
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123. Defendant District of Columbia and its governmental agencies receive federal financial assistance within the meaning of Section 504.
124. Each Named Plaintiff and class member is an “individual with a disability” within the meaning of Section 504 because they have disabilities that substantially limit one or more major life activities, such as self-care, transferring to and from wheelchairs, and social interaction. They also have such impairments and are regarded by Defendant as having such impairments.
125. Each Named Plaintiff and class member is a “qualified person with disabilities” within the meaning of Section 504 because he or she is qualified to participate in Defendant’s more integrated, community-based programs and services.
126. Regulations implementing Section 504 require that a public entity administer its services, programs, and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
127. Regulations implementing Section 504 prohibit recipients of federal financial assistance from:
[U]tiliz[ing] criteria or methods of administration . . . (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4)(i)-(ii); 28 C.F.R. § 41.51(b)(3)(i)-(ii). 128. Defendant’s actions violate Section 504 of the Rehabilitation Act.
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REQUEST FOR RELIEF WHEREFORE, Named Plaintiffs and class members respectfully request that this Court:
a. Certify this action as a class action; b. Declare that Defendant’s failure to provide Named Plaintiffs and class
members with services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act; c. Declare that Defendant’s failure to provide Named Plaintiffs and class members with services in the most integrated setting appropriate to their needs violates Section 504 of the Rehabilitation Act; d. Enter a permanent injunction requiring Defendant to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs; e. Award Named Plaintiffs and class members their reasonable attorneys’ fees, litigation expenses, and costs; and f. Grant such other relief as this Court deems just and proper.
[SIGNATURE BLOCK ON FOLLOWING PAGE]
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Dated: April 2, 2012

Respectfully submitted,
/s/ Brian D. Schneider Marjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 Victoria Thomas, D.C. Bar No. 1001027 mrifkin@uls-dc.org jlav@uls-dc.org vthomas@uls-dc.org University Legal Services–Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Bruce Vignery, D.C. Bar No. 297911 Kbagby@aarp.org Bvignery@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2060 Fax: (202) 434-6424
Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 wahl.barbara@arentfox.com schneider.brian@arentfox.com Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 (202) 857-6000 Fax: (202) 857-6395
Counsel for Plaintiffs

28

Case 1:10-cv-02250-ESH-AK Document 46 Filed 04/02/12 Page 29 of 29
CERTIFICATE OF SERVICE
I certify that on April 2, 2012, a true copy of the foregoing SECOND AMENDED COMPLAINT was served on all counsel of record by electronic mail.
/s/ Brian D. Schneider Brian D. Schneider

 
 Thorpe v. District of Columbia, 916 F.Supp.2d 65 (2013)

916 F.Supp.2d 65 United States District Court,
District of Columbia.
Jacqualyn THORPE, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 10–2250 (ESH). | Jan. 9, 2013.
Synopsis Background: Individuals, suing on their behalf and on behalf of proposed class of similarly-situated individuals, commenced action for declaratory and injunctive relief against District of Columbia, its Mayor, and several city officials, alleging that individuals with disabilities who were covered by Medicaid were being unnecessarily institutionalized in nursing facilities and isolated from their communities in violation of Title II of Americans with Disabilities Act (ADA) and Rehabilitation Act. Defendants moved to dismiss claims of two named plaintiffs for lack of jurisdiction on the ground that their claims were moot.
[Holding:] The District Court, Ellen Segal Huvelle, J., held that named plaintiffs’ claims were not moot.
Motion denied.
Attorneys and Law Firms
*65 Kelly R. Bagby, Aarp Foundation Litigation, Lyndsay Ayanna Niles, Marjorie Lynn Rifkin, Jennifer Rachel Lav, Victoria L. Thomas, University Legal Services, Inc., Barbara S. Wahl, Brian D. Schneider, Arent, Fox LLP, Washington, DC, for Plaintiffs.
Bradford Collins Patrick, Chad Alan Naso, Office of the Attorney General, District of Columbia, Washington, DC, for Defendant.
Opinion

*66 MEMORANDUM OPINION AND ORDER
ELLEN SEGAL HUVELLE, District Judge.
Before the Court are two motions filed by the District of Columbia to dismiss the claims of two named plaintiffs, Donald Dupree and Curtis Wilkerson, for lack of jurisdiction on the ground that their claims are moot. (DC’s Mot. to Dismiss the Claims of Pl. Donald Dupree as Moot, Sept. 18, 2012 (“Dupree Mot.”) [ECF No. 64]; DC’s Mot. to Dismiss the Claims of Pl. Curtis Wilkerson as Moot, Dec. 13, 2012 (“Wilkerson Mot.”) [ECF No. 81].) The District argues that these plaintiffs’ claims are moot because each has obtained the relief he sought in this lawsuit and, thus, is no longer a member of the putative class. (See DC Mem. in Support of Dupree Mot. at 4; DC Mem. in Support of Wilkerson Mot. at 3–4).
[1] “A case is moot when ‘the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated’ in circumstances where ‘it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.’ ” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.Cir.2009) (quoting United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C.Cir.2009)); see also Amer. Bar Ass’n v. F.T.C., 636 F.3d 641, 645–46 (D.C.Cir.2011) (“The mootness doctrine, deriving from Article III, limits federal courts to deciding actual, ongoing controversies. Even where litigation poses a live controversy when filed, the doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.”)
[2] [3] It is undisputed that both Dupree and Wilkerson have recently moved out of nursing facilities and presently are receiving care in the least restrictive setting appropriate to their needs.1 Nonetheless, there are exceptions to the mootness doctrine that apply to this case. First, “a plaintiff’s challenge will not be moot where it seeks declaratory relief as to an ongoing policy.” Del Monte Fresh Produce, 570 F.3d at 321. That is precisely the type of relief, indeed the only relief, that plaintiffs seek.2 Second, for class actions prior to a ruling on class certification when the “claims are live when filed but moot before the adjudication of the class certification
1

Thorpe v. District of Columbia, 916 F.Supp.2d 65 (2013)
motion,” courts have recognized an “inherently transitory” exception to mootness where “the population of the claimant population is fluid, but the population as a whole retains a continuing live claim.” Newberg on Class Actions §§ 2:11, 2:13; see Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (“There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.”); see also *67 County of Riverside v. McLaughlin, 500 U.S. 44, 51–52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” because “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires” and “in such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.”); Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (same). Given the facts this case, the “inherently transitory” exception applies. The length of any individual’s stay in a nursing facility is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals. See, e.g., Olson v. Brown, 594 F.3d 577, 582 (7th Cir.2010), cert. denied, ––– U.S. ––––, 130 S.Ct. 3478, 177 L.Ed.2d 1058 (2010) (“While the ultimate length of confinement does affect the applicability of the ‘inherently transitory’ exception, the essence of the

exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class.”)

1

Dupree was discharged from a nursing facility in

September 2012 and presently resides in an assisted

living facility. Wilkerson was discharged from a

nursing facility in October 2012 and presently resides

in a private apartment.

2

At the hearing on January 7, 2013, plaintiffs confirmed

that the only relief they were seeking was systemic

declaratory and injunctive relief.

As exceptions to the mootness doctrine apply, the Court concludes that the fact that Dupree and Wilkerson no longer reside in nursing facilities does not render their claims moot.3

3

The Court reserves the right to consider whether there

may other reasons to exclude Dupree or Wilkerson as

class members depending on the ultimate resolution of

the definition of any class that may be certified.

ORDERED that the District’s motion to dismiss the claims of plaintiff Dupree as moot [ECF No. 64] and the District’s motion to dismiss the claims of plaintiff Wilkerson as moot [ECF No. 81] are DENIED.
	  

2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

JACQUALYN THORPE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA,

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 10-2250 (ESH)

MEMORANDUM OPINION In this Olmstead action, plaintiffs, who include nine1 current and former nursing facility
residents, claim that the District of Columbia (“District” or “defendant”) provides Medicaid-
funded long-term care services to individuals with physical disabilities in a manner that results in
the unnecessary segregation of such individuals in nursing facilities in violation of Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq.2 (Third Am. Compl., Mar. 27, 2013 [ECF No. 98]
(“3d Am. Compl.”).) Before the Court is plaintiffs’ renewed motion for class certification,
seeking to certify a class of nursing facility residents who allegedly are “stuck” in nursing
facilities due to the District’s lack of an “effective system of transition assistance.” (Pls.’
Renewed Mot. for Class Certification, May 6, 2013 [ECF No. 103] (“CC Mot.”).) Defendant
1 The Third Amended Complaint names eleven plaintiffs, but two (Lavondia Carter and Carl Magby) have since passed away. The remaining nine are Jacqualyn Thorpe, Donald Dupree, Roy Foreman, Larry McDonald, Curtis Wilkerson, Robert Collins, Winifred Goines, and Joseph Gray, and Denise Rivers. 2 These actions are named for the 1999 Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999), which recognized for the first time that unjustified segregation was a form of discrimination prohibited by the ADA and the Rehabilitation Act.

opposes the motion (Def.’s Opp’n to CC Mot., June 4, 2013 [ECF No. 106] (“CC Opp.”)), and
has moved to dismiss the complaint. (Def.’s Mot. to Dismiss, Apr. 11, 2013 [ECF No. 99]
(“MTD Mot.”).) For the reasons stated herein, defendant’s motion to dismiss is denied and
plaintiffs’ motion for class certification is granted. BACKGROUND3
I. LEGAL BACKGROUND: THE INTEGRATION MANDATE The Supreme Court concluded in Olmstead that the “integration mandate” of the ADA
and the Rehabilitation Act requires a public entity such as the District to administer its Medicaid
program in a manner that does not result in the “unjustified segregation or isolation” of individuals with disabilities. See Olmstead v. L.C., 527 U.S. 581, 607 (1999).4 Thus, under
Olmstead, the District is “required to provide community-based treatment for persons with . . .
disabilities” when three conditions are satisfied: (1) the District’s “treatment professionals
determine that such placement is appropriate”; (2) the “affected persons do not oppose such
treatment”; and (3) “placement can be reasonably accommodated, taking into account the
resources available to the [District] and the needs of others with . . . disabilities.” See Olmstead,
3 The Court assumes familiarity with its prior opinion and the background set forth therein. See Day v. District of Columbia, 894 F. Supp. 2d 1 (D.D.C. 2012). 4 The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term “qualified individual with a disability” means “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The Rehabilitation Act provides that no person with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
2

527 U.S. at 607; see also 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d).5 However, even if these
three conditions are satisfied, there is no violation of law if the public entity can show “that
making the modifications would fundamentally alter the nature of the service, program, or
activity,” 28 C.F.R. § 35.130(b)(7), or that it has “a comprehensive, effectively working plan for
placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that
move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully
populated.” Olmstead, 527 U.S. at 605-06.
Since Olmstead, numerous “integration mandate” or “Olmstead” cases have been
brought.6 Across a wide range of services, programs and activities, these cases have challenged
undue segregation of individuals with disabilities (or at risk of segregation) in nursing facilities,7
mental health facilities,8 institutions for individuals with intellectual and developmental
5 The ADA’s implementing regulations provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The Rehabilitation Act’s implementing regulations provide that programs, services, and activities must be administered in “the most integrated setting appropriate” to the needs of individuals with disabilities. 28 C.F.R. § 41.51(d). The “most integrated setting” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. B. 6 See, e.g., U.S. Dep’t of Justice, Olmstead: Community Integration for Everyone (http://www.ada.gov/olmstead/index.htm) (listing Olmstead cases with DOJ involvement); see also Terence Ng, Alice Wong and Charlese Harrington, UCSF National Center for Personal Assistance Services, Olmstead and Olmstead-related Lawsuits (updated May 2013) (http://www.pascenter.org/state_based_stats/olmstead/olmsteadcases.php) (listing of Olmstead lawsuits by state). 7 See, e.g., United States v. Florida, No. 1:13-cv-61576 (S.D. Fla. filed July 22, 2013); A.R. v. Dudek, No. 0:12-cv-60460 (S.D. filed Mar. 13, 2012) (consolidated with United States v. Florida on Dec. 12, 2013); Steward v. Perry, No. 5:10-cv-1025 (W.D. Tex. filed Dec. 20, 2010); Hiltibran v. Levy, No. 2:10-cv-4185 (W.D. Mo. filed Aug. 23, 2011); Boyd v. Mullins, No. 10cv-00688 (M.D. Ala. filed Aug. 12, 2010); Haddad v. Arnold, No. 3:10-cv-414 (M.D. Fla. filed May 13, 2010); Long v. Benson, No. 4:08-cv-0026 (N.D. Fla. filed Jan. 15, 2008); Conn. Office of Protection and Advocacy v. Connecticut, No. 06-cv-00179 (D. Conn. filed Feb. 6, 2006). 8 See, e.g., United States v. New York, No. 1:13-cv-4165 (E.D.N.Y. filed July 23, 2013); United States v. North Carolina, No. 5:12-cv-557 (E.D.N.C. filed Aug. 23, 2012); Amanda D. v.
3

disabilities,9 and sheltered workshops/segregated day services.10 Some cases are private actions
brought by individuals, some are class actions, and some are enforcement actions by the
Department of Justice. Where a private action raises systemic issues, courts have uniformly
granted class certification to allow plaintiffs to pursue those claims, even after the Supreme
Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), which
arguably tightened the standard for class certification.11 In the present case, named plaintiffs
seek to bring a class action on behalf of individuals with physical disabilities who are receiving
Hassan, No. 1:12-cv-53 (D.N.H. filed Feb. 9, 2012); United States v. Delaware, No. 1:11-cv0591 (D. Del. filed July 6, 2011); United States v. Georgia, No. 1:10-cv-249 (N.D. Ga. filed Jan. 28, 2010); Williams v. Quinn, No. 05-cv-4673 (N.D. Ill. filed Aug. 15, 2005). 9 See, e.g., United States v. Virginia, No. 3:12-cv-0059 (E.D. Va. filed Jan. 26, 2012); United States v. Nebraska, No. 8:08-cv-0271 (D. Neb. filed June 30, 2008); Benjamin v. Pennsylvania Dept. of Public Welfare, No. 1:09-cv-1182 (M.D. Pa. filed Jun. 22, 2009); Disability Rights New Jersey, Inc. v. Velez, No. 3:05-cv-4723 (D.N.J. filed Sept. 29, 2005); Ligas v. Hamos, No. 05-cv04331 (N.D. Ill. filed July 28, 2005). 10 See, e.g., United States v. Rhode Island, No. 1:13-cv-00442 (D.R.I. filed June 13, 2013); Lane v. Kitzhaber, 283 F.R.D. 587, 589 (D. Ore. 2012). 11 See, e.g., Kenneth R. v. Hassan, 293 F.R.D. 254, 271-72 (D.N.H. 2013) (certifying class of adults with serious mental illness seeking expanded and enhanced community-based services); Lane v. Kitzhaber, 283 F.R.D. at 589 (certifying class under Rule 23(b)(2) of “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services”); Oster v. Lightbourne, 2012 WL 685808, at *6 (N.D.Cal. March 2, 2012) (certifying class of persons whose state in-home support services would be “limited, cut, or terminated” by 20% under a new law); Pashby v. Cansler, 279 F.R.D. 347 (E.D.N.C. 2011) (certifying class of eligible adult Medicaid recipients challenging the legality of a new rule that would terminate eligibility for inhome care). Pre-Wal-Mart cases include: Hampe v. Hamos, 1:10-cv-3121 (N.D. Ill. Nov. 22, 2010) (certifying class of young adults seeking to challenge a state policy that places medically fragile individuals with disabilities at risk of institutionalization after turning 21); Connecticut Office of Protection and Advocacy v. Connecticut, 706 F. Supp. 2d 266 (D. Conn. Mar. 31, 2010) (certifying class of individuals with mental illness challenging state’s reliance on nursing facilities to provide care); Benjamin v. Pennsylvania Dep’t of Public Welfare, No. 1:09-cv-1182 (M.D. Pa. Sept. 2, 2009) (certifying class of individuals with developmental disabilities seeking to end segregation in state’s large, publicly-run congregate care institutions); Long v. Benson, No. 4:08-cv-0026, 2008 WL 4571904, at *3 (N.D. Fla. Oct. 14, 2008) (certifying class of Medicaid-eligible adults who are unnecessarily confined to a nursing facility).
4

Medicaid-covered long-term care services in nursing facilities, but who want to be receiving
such services in the community.
II. FACTUAL BACKGROUND
A. Existing Medicaid Coverage of Long-Term Care Services for Individuals with Physical Disabilities
In the District, individuals with physical disabilities who require Medicaid-covered long-
term care services12 have three options for accessing those services: (1) in a nursing facility; (2)
in the community with services provided by a Medicaid waiver program; or (3) in the
community with personal care assistance services covered by the District’s Medicaid Plan.
Nursing Facility Care: Federal rules provide that all Medicaid programs must cover
long-term care services provided by an institution (e.g., a nursing facility),13 although states
determine the “level-of-care” criteria an individual must satisfy to qualify for such services. To
define level-of-care criteria, states may use “functional” criteria, such as an individual’s ability to
perform certain Activities of Daily Living (“ADLs”); or “clinical” level-of-care criteria, such as
diagnosis of an illness, injury, disability or other medical condition; treatment and medications;
or a combination of both. In the District, a Medicaid beneficiary qualifies for long-term care
12 Long-term care services “refer to a broad range of health and health-related services and supports needed by individuals who lack the capacity for self-care due to a physical, cognitive, or mental disability or condition. Often the individual’s disability or condition results in the need for hands-on assistance or supervision over an extended period of time.” Kirsten J. Colello, Congressional Research Service 7-5700, Medicaid Coverage of Long-Term Services and Supports 1 (2013); see also District of Columbia Dep’t of Health Care Finance, EPD Waiver Program Participant Handbook 9 (long-term care services “assist people who are aging, have disabilities, or have chronic care needs and who require assistance to maintain their independence in personal or health-related activities”). 13 Long-term care is one of the three primary types of services provided by nursing facilities. The other two are skilled nursing (medical care and related services) and rehabilitation. Federal Medicaid rules preclude states from limiting access to nursing facility services or making them subject to waiting lists. See http://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Delivery-Systems/Institutional-Care/Nursing-Facilities-NF.html.
5

services in a nursing facility if he/she requires (1) “extensive assistance” or “total dependence”
with at least two of five “basic activities of daily living” (“BADLs”)—“bathing, dressing,
mobility, eating, and toilet use,” or (2) “supervision” or “limited assistance” with at least two of
the five BADLs and “extensive assistance, total dependence, supervision, or limited assistance”
with three of five “instrumental activities of daily living” (“IADLs”)—“medication management,
meal preparation, housekeeping, money management and telephone use.” (Def.’s Response to
the Court’s Oral Order During the Dec. 11, 2013 Hrg. 4, Dec. 13, 2013 [ECF No. 122] (“Def.’s
12/13/2013 Supp. Filing”) (citing Iscandari Dep. 27-28, Mar. 20, 2013)); see also 29 D.C. Mun.
Regs. § 5099.
As of January 1, 2013, there were 2,765 available beds in nineteen Medicaid-certified nursing facilities in the District and 2388 of those beds were filled by Medicaid recipients.14
(Def.’s 12/13/2013 Supp. Filing 2; Turnage Dep. 99-100, Mar. 15, 2013.) Of the Medicaid recipients, 2019 had been in the nursing facility for more than 90 days.15 (Def.’s 12/13/2013
Supp. Filing 2.) In addition, there were approximately 200 D.C. Medicaid beneficiaries in
nursing facilities outside of the District. (See Iscandari Dep. 24.) Approximately 21% of the
District’s nursing facility population is under the age of 65. 2012 NHDC, supra n.14, at 156
(Table 3.5).
14 Occupancy rates in the District’s nursing facilities have historically exceeded 90%. See Center for Medicare & Medicaid Services, 2012 Nursing Home Data Compendium (“2012 NHDC”) at 156 (Table 3.5) (showing occupancy rates of 92.9% in 2007; 91.8% in 2008; 93.3% in 2009; 92.2% in 2010; and 90.9% in 2011) (available at https://www.cms.gov/Medicare/ProviderEnrollment-andCertification/CertificationandComplianc/downloads/nursinghomedatacompendium_508.pdf); see also Day, 894 F. Supp. 2d at 28 (“the District’s nursing home population from 1995 to 2009 decreased by only 45 individuals”). 15 The 2012 numbers were very similar. As of January 1, 2012, there were 2343 Medicaid recipients in nursing facilities in the District, and 1990 of those individuals had been in a nursing facility for more than 90 days. (Def.’s 12/13/2013 Supp. Filing 1.)
6

The existing record does not establish with certainty how many nursing facility residents
have “physical disabilities” within the meaning of the ADA and the Rehabilitation Act.
Plaintiffs take the position that “most” do based on the fact that in order to enter a nursing home,
an individual must meet the requirements for nursing home level of care. Plaintiffs’ assumption
is not without flaws, but it is not unreasonable. First, even though the ADA’s definition of a
physical disability and the District’s nursing home level-of-care standard are not identical, there is substantial overlap.16 Indeed, the only exception suggested by the District is an individual
who suffers from a developmental disability, a population that has few, if any, individuals still
residing in District nursing facilities. Second, although a nursing facility resident’s condition
may have improved over time such that he/she no longer qualifies for a nursing home level of
care, annual record reviews of all nursing facility residents are performed to assess whether a current resident continues to require a nursing facility level of care.17 (Iscandari Dep. 52-53,
181-183.) At trial, of course, any material factual disputes will need to be addressed, but at
present it is reasonable to assume that most nursing facility residents are also individuals who
satisfy the legal definition of an individual with a physical disability.
The existing record also does not establish with certainty how many current nursing
facility residents (other than the named plaintiffs who still reside in nursing homes) would prefer
16 Under the ADA, an individual has a disability if he or she has “a physical or mental impairment that substantially limits one or more major life activities . . . .” 42 U.S.C. § 12102(1). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A). In addition, “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. § 12102(2)(B). 17 One study in 2011 found that 22% of the District’s nursing facility residents had zero ADL impairments. 2012 NHDC at 158 (Table 3.7).
7

to live in the community. The closest proxy for that information comes from a survey mandated by the Center for Medicare and Medicaid Services (“CMS”) that nursing facilities administer to their residents on a quarterly basis. As part of that survey, known as the “Minimum Data Set” (“MDS”) survey, each resident is asked “Do you want to talk to someone about the possibility of returning to the community?” (Def.’s Reply Brief in Support of its Mot. to Dismiss the Third Am. Compl. (“MTD Reply”) [ECF No. 107] Ex. C, at 31, June 4, 2013 (2010 MDS Survey) (Q500B); see also Iscandari Dep. 48-50.) In 2010, approximately 524 nursing facility residents (out of 2,499 surveyed) answered yes to that question. (See Turnage Dep. 97-98; Iscandari Dep. 48-50; see also Turnage Dep. 95 & Ex. 14 (Oct. 22, 2010 DHCF MFP Operational Protocol Amendment) (indicating that 580 residents had expressed desire to move).) The existing record does not include any information about more recent answers to this question. Publicly available data from the MDS survey,18 however, suggests that the number of residents who are interested in returning to the community has remained fairly stable. For example, for the fourth quarter of 2013 (the most recent available data), 27.50% of 2182 residents surveyed (approximately 600 individuals) “expect[ed] to be discharged to the community.” See MDS 3.0 Frequency Report, 4th Quarter 2013, supra n.18. The only other preference data in the existing record comes from a screening the District did in 2012: at that time it screened 354 nursing facility residents and identified 256 who wanted to return to the community. (Def.’s Resps. to Pls.’ First Set of Interrogatories 5, Feb. 15, 2013 (“Def.’s Interrog. Resps.”).)
18 The MDS 3.0 Frequency Reports are publicly available reports summarizing by state the answers to questions in the MDS survey for every quarter from the fourth quarter of 2011 through the fourth quarter of 2013, but all responses are not included. See CMS, MDS 3.0 Frequency Report, 4th Quarter 2013 (available at http://www.cms.gov/Research-Statistics-Dataand-Systems/Computer-Data-and-Systems/Minimum-Data-Set-3-0-Public-Reports/MinimumData-Set-3-0-Frequency-Report.html (“Q0500B: Participation in Assessment and Goal Setting Possibility of returning to Community. Q0500B is not included in the Current Resident Information Report.”)
8

Home and Community-Based Services Waiver Programs: In addition to the mandatory
coverage of long-term care services provided in a nursing facility, a state Medicaid program may
opt to cover home and community-based long-term care services via a “Home and Community
Based Services (HCBS) Waiver” program. See 42 U.S.C. § 1396n(c).19 Generally, a waiver
program serves targeted population groups, such as individuals with mental illnesses, intellectual
disabilities, or physical disabilities. Subject to approval by CMS, each state decides how many
waiver programs to offer and determines the eligibility requirements, number of participants, and
scope of services covered.20 Waiver participants remain eligible for all other Medicaid-covered
services.
In the District, the “Elderly and Persons with Disabilities Waiver” (“EPD Waiver”)
covers home and community-based long-term care services for individuals who are aged 65 and
over and adults with physical disabilities who are 18 or older who meet the District’s nursing
home level-of-care requirements.21 29 D.C. Mun. Regs. § 4200 (citing 42 CFR § 440.40; 42
19 Section 42 U.S.C. § 1396n(c)(1) provides in pertinent part: The Secretary may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility . . . the cost of which could be reimbursed under the State plan.
42 U.S.C. § 1396n(c)(1). Prior to its enactment, the Medicaid Act precluded state Medicaid plans from covering home and community-based long-term care services. 20 Forty-seven states and the District are now operating at least one waiver program, with more than 300 waiver programs active nationwide. See http://www.medicaid.gov/Medicaid-CHIPProgram-Information/By-Topics/Long-Term-Services-and-Support/Home-and-CommunityBased-Services/Home-and-Community-Based-Services-1915-c.html. 21 The EPD Waiver covers case management services, homemaker services, respite services, chore services, personal care aide services (PCA), personal emergency response services
9

CFR § 440.155). A participant can receive up to sixteen hours of care per day without prior authorization and up to twenty-four hours with prior authorization. (Iscandari Dep. 55, 164.)
The District began enrolling individuals in the EPD Waiver in 2008. At the time the District did not keep track of whether EPD Waiver participants were coming directly from the community or from nursing facilities. By August 2011, the available slots (3940) were filled, and on August 17, 2011, the Department of Health Care Finance (“DHCF”) started a waiting list. (See DHCF Transmittal No. 11-24; DHCF Transmittal No. 11-32; Iscandari Dep. 33.) In December 2011, the EPD waiver was reauthorized for the next five years (from January 4, 2012 – January 3, 2017). (Iscandari Dep. 24.) For the first year, there were 4050 slots; for the second year, there were 4162 slots; and the number was set to increase to 4278 in 2014, 4387 in 2015 and 4520 in 2016.22 (EPD Waiver Renewal Application, Appendix B; Turnage Dep. 150-51.) Forty slots per year are reserved for nursing facility residents. (Turnage Dep. 150; Iscandari Dep. 34-35.)
By July 2012, there were 681 people on the EPD waiver waiting list. (Turnage Dep. 15859.) By the beginning of January 2013, there were 1084, including 114 nursing facility residents, seven of whom were named plaintiffs (Carter, Collins, Goines, Magby, McDonald, Rivers, and Thorpe). (Iscandari Decl. ¶¶ 6-7, June 3, 2013.) On January 7, 2013, the District sent letters offering waiver slots to the 1084 individuals then on the waiting list. (Iscandari Decl. ¶ 4.) By June 4, 2013, the District reported that of the 1084 individuals who had been sent offer letters, approximately 246 had enrolled; 472 were in the process of enrolling; and 366 had not
(PERS), assisted living, and environmental accessibility adaptation services (EAA). EPD Waiver Program Participant Handbook 11-12. 22 These numbers represents the “maximum number of participants served at any point during the year.” EPD Waiver Renewal, Appendix B (available at http://www.medicaid.gov/MedicaidCHIP-Program-Information/By-Topics/Waivers/Waivers.html?filterBy=1915(c)#waivers).
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responded, including all of the named plaintiffs. (Iscandari Decl. ¶ 5.) Additional names have been added to the waiting list since January 2013, but it is not clear how many. (Compare Iscandari Dep. 105 (estimating that 220 individuals were added to the waiting list between January 7, 2013 and March 20, 2013); Iscandari Decl. ¶ 4 (as of May 21, 2013, there were 1519 individuals on the EPD Waiver waiting list, out of which 1084 had been offered waiver spots) with DHCF, DC Medical Care Advisory Committee Report (“MCAC”),23 Apr. 2013 (reporting 1397 individuals on the EPD Waiver waiting list, 1084 of whom had been notified of an available slot); id., Jan. 2014 (same).)
State Plan Coverage of Personal Care Services: Finally, a state Medicaid program may opt to cover certain “personal care assistance” services. The District’s Medicaid State Plan includes coverage for “personal care assistance” for up to eight hours per day or 1040 hours per year, although additional care may be authorized. See 29 D.C. Mun. Regs. §§ 5003.5, 5003.6; (Iscandari Dep. 55.) To be eligible to receive personal care assistance services, a Medicaid beneficiary must have an “extensive need for assistance with at least one of the activities of daily living,” making these services available to individuals who may not meet the nursing facility/EPD Waiver level-of-care requirements. (Iscandari Dep. 53-56.)
B. Transitioning Individuals from Nursing Facilities to Home and CommunityBased Long-Term Care Services 1. Money Follows the Person (“MFP”) Program
The MFP Program is a federally-funded grant program with the specific goal of helping Medicaid beneficiaries who have been in an institutional setting for over 90 days transition to a
23 The DC MCAC Reports are available at http://dhcf.dc.gov/page/dc-medical-care-advisorycommittee.
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home and community-based services waiver.24 See Day, 894 F. Supp. 2d at 13-16; (Sarigol Dep. 21, July 27, 2011). The District’s first official attempt to transition nursing facility residents to community-based long term care services began in October 2010 when it implemented its MFP program targeting individuals in nursing facilities who qualified for services under the EPD Waiver. (2010 MFP Operational Protocol Amendment 35.) Since then, 49 nursing facility residents have transitioned to the community through the MFP program. Although this number is not negligible, it is far fewer than the District predicted and there is record evidence that many more residents are eligible for but have not yet received assistance from the MFP program.
First, as a prerequisite for participation in the MFP program, the District is required to set annual targets or benchmarks for the number of physically disabled nursing facility residents it anticipates transitioning via MFP to the EPD Waiver. In 2007, when the District first applied for and received approval to participate in the MFP program, the District proposed transitioning a total of 645 individuals with physical disabilities out of nursing facilities at a rate of over 100 per year. (See Turnage Dep. 186-88 & Ex. 27 (2007 MFP Rebalancing Demonstration Grant Award for the District of Columbia)); see also Day, 894 F. Supp. 2d at 14. In 2010, the District’s benchmarks were reduced to 30 residents in 2010; 40 residents in 201125; 40 residents in 2012; 40 residents in 2013; and 40 residents in 2014. (2013 Olmstead Plan at 39; Sarigol 2013 Dep. 60-61; Def.’s 12/13/2013 Supp. Filing 5.) To date, the MFP program has consistently fallen far
24 MFP participants are eligible for a payment of up to $5000 in transition expenses related to moving and household set up, total case management during the MFP Demonstration Year, and a one-time community integration payment of up to $1500. The District had previously been approved for and was using MFP grant money to transition developmentally disabled individuals from intermediate care facilities to the IDD Waiver. See http://www.medicaid.gov/MedicaidCHIP-Program-Information/By-Topics/Waivers/Waivers.html?filterBy=1915 (c)#waivers. 25 At one point, the District had set its benchmark for 2011 at 80 (Turnage Dep. 188), but it then reduced it to 40. In July 2011, it further reduced it to 26. (Iscandari Dep. 129-130; Sarigol 2013 Dep. 60.)
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short of its targets, transitioning 0 residents in 2010, 17 residents in 2011; 16 residents in 2012; and 16 residents in 2013, for a total of 49 MFP program transitions from October 2010 through December 6, 2013. (Def.’s 12/13/2013 Supp. Filing 1-2 & Ex. 1 (“MMIS Data Chart”); Sarigol 2013 Dep. 58-59, 65-66.) And although the District reiterated in December 2013 that it had a goal of 40 MFP transitions for 2014 (Def.’s 12/13/2013 Supp. Filing 5), it has now reduced that to goal to 30. (See Notice of the District of Columbia’s Public Release of Fiscal Year 2014 Agency Olmstead Goals Ex. 1, Mar. 11, 2014 (“2014 Olmstead Goals”) [ECF No. 127].)
Second, in 2012, the MFP program screened 354 nursing facility residents who had either “asked to be screened or [were] otherwise referred to the Transition Coordinators” and identified 256 who desired to return to the community. (Def.’s Interrog. Resps. 5.) Out of the 256, 132 were preliminarily determined to be eligible for MFP. (Def.’s Interrog. Resps. 5; Sarigol Dep. 140, Feb. 25, 2013.) In August 2012, the MFP program purportedly “began assisting all MFPeligible nursing home residents with an identified home address outside of the nursing facility for whom funding in the [EPD] Waiver program [wa]s available to continue home and communitybased long term services in the year following the MFP Demonstration” (Sarigol Decl. ¶ 4, June 4, 2013 (“Sarigol Decl. I”)), but the record does not indicate how many residents fell into this category or how many transitions resulted from this assistance. In March 2013, DHCF held a lottery among the MFP-eligible group (130 individuals) to select 40 residents who did not have an identified housing option to participate in MFP with the assistance of housing subsidies.26
26 Of the 40 selected, 30 were to be assigned Housing Choice Vouchers while 10 were to receive assistance finding housing through the District of Columbia Housing Authority. Six named plaintiffs (Carter, Collins, Goines, Magby, Rivers, and Thorpe) participated in the lottery and two (Carter and Goines) were selected. (Sarigol Decl. I ¶¶ 6, 7, 9.) Carter died before she was able to transition. (Sarigol Decl. I ¶ 13.) As of June 4, 2013, the transition process for Goines was underway (Sarigol Decl. I ¶¶ 14-15), but the record does not reflect whether she has since transitioned. Of the remaining plaintiffs, two (Dupree and Wilkerson) were no longer in a
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(Sarigol Decl. I ¶¶ 5, 6.) Of those 40, only 16 had transitioned by December 2013. The record
does not reflect whether, and, if so, when, any more of the 40 are expected to transition or
whether the District has selected any new MFP participants since then.
The pace of the District’s transitions through the MFP program has been flagged as too
slow by CMS. Following an “on-site” visit, CMS sent a letter to the DHCF’s Medicaid Director
in July 2012, noting that there had been a “limited number of transitions” via MFP as of May
2012, and advising the District that “[t]he lack of meeting MFP transition benchmark issue and
repeated revision to lower numbers since the start of the 2008 MFP Demonstration program has
hampered meeting the intent of [] Olmstead. Without significant improvement in the number of
individuals with significant disabilities transitioned, there is a distinct possibility the continuation
of the DC MFP program could be in jeopardy.” (Sarigol 2013 Dep. Ex. 25, at 2 (July 6, 2012 CMS letter to DHCF Medicaid Director)27; Teasdell Dep. 184, Feb. 28, 2013 (describing the
MFP Program as having “been in a dormant stage for the past thirteen months”).) CMS also
“identified several practices that could be improved” in the administration of the MFP Program and “provide[d] recommendations for action.”28 (Sarigol Dep. Ex. 25, at 1.) As a result of the
CMS review, the District’s MFP Program was placed “on an Action Plan for not meeting its
nursing home, one (Foreman) had been selected to participate in MFP in 2011, although he had not yet transitioned, and one (Gray) has not been identified as MFP-eligible. (Sarigol Decl. I ¶¶ 16, 19, 22-23.) 27 CMS’s visit and letter addressed both the EPD and IDD components of the MFP program. (Sarigol Dep. Ex. 25, at 1.) 28 Among the issues noted by CMS were: “numerous organizational and management/leadership changes in the past 1-2 years,” a lack of “robust” “leadership support,” potential underutilization of MFP funds due to the implementation of a waiting list for the EPD Waiver, a need for “additional transition case managers and housing specialists to assist with the requirement of increasing the number of transitions, along with other pertinent programmatic transition services such as advocacy, housing, pre-transition services, employment, and other in-kind support services,” incomplete outreach and marketing of the MFP program to nursing home residents, and “inadequate assistance in finding housing.” (Sarigol Dep. Ex. 25 at 2-6.)
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transition benchmarks for 2011,” and the District was told that “the expectation is for [the District] to meet its required transition benchmarks for 2012.” (Sarigol Dep. Ex. 25, at 6.) CMS further advised the District that “[i]f this requirement as specified in the terms and conditions of the MFP grant does not occur, the receipt of future supplemental funds for 2013 and possibly the future operations of MFP in DC could be negatively impacted.” (Sarigol Dep. Ex. 26, at 6.) Since the CMS letter, the number of MFP transitions has increased, but it remains far below the transition benchmarks.
2. The District’s Olmstead Plan In April 2012, the District released its first official “Olmstead Plan,” which it updated in April 2013. (Def.’s 12/13/2013 Supp. Filing Ex. 1, at 2 (District of Columbia, Olmstead Community Integration Plan: One Community for All, Apr. 2013 (“2013 Olmstead Plan”)).) Under the Plan, the District’s overall goal is to “institute a comprehensive, effectively working plan for placing individuals with disabilities in less restrictive settings” in order “to meet the needs and preferences of the individual while allowing him or her to choose where s/he wants to live in the community with the appropriate supports and services.” (Id. at 2.) Moving nursing facility residents back to the community is one component of the plan.29 (2013 Olmstead Plan at 17, 38.) Two entities in the District are identified as having a role in nursing facility transitions: DHCF and the Aging and Disability Resource Center (“ADRC”), which is part of the District’s Office on Aging. (2013 Olmstead Plan at 17, 38.) DHCF administers the MFP Program and the EPD Waiver, both of which were in place prior to the adoption of the written Olmstead Plan. The ADRC’s role with respect to nursing facility transitions has developed during the pendency
29 A total of nine District agencies are part of the District’s Olmstead Plan, covering a wide range of services and disabilities. (2013 Olmstead Plan at 1.)
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of this case.30 After the MFP program completed its screening in 2012, it referred the 124 residents who wanted to move but were not eligible for MFP to the ADRC for further assistance, and it thereafter referred the 91 individuals who were not selected in the March 2013 lottery. (Def.’s Interrog. Resp. 5; Sarigol Decl. I ¶ 8.) In April 2013, ADRC established a “Nursing Home Transition Team” to “provide assistance to all nursing home residents who wish to move to less restrictive settings,” hired five “full-time Transition Care Specialists” whose sole job is “assisting nursing facility residents transition to community-based settings” (Teasdell Decl. ¶ 4, June 4, 2013), and began tracking 175 current residents whom DHCF had identified as interested in moving to the community. (Def.’s Notice of Data in Resp. to the Court’s Order of Nov. 22, 2013, at 2, Dec. 6, 2013 [ECF No. 118] (“Def.’s 12/6/2013 Supp. Filing”); Def.’s 12/6/2013 Supp. Filing Ex. 2 (ADRC Nursing Home Transition Team Report) (“ADRC Tracking Rep.”).) ADRC’s assistance is available to all nursing facility residents, not just Medicaid beneficiaries. (Teasdell Decl. ¶ 6.) In 2013, the District calculates that the ADRC has assisted 56 residents transition to less restrictive settings. (Def.’s Reply to Pls.’ Resp. to Def.’s Dec. 13, 2013 Supp. Submission of Nursing Facility Data 5, Dec. 20, 2013 [ECF 124] (“Def.’s 12/20/2013 Supp. Filing”).) It now oversees all nursing facility transitions except those accomplished under the MFP program, and if a nursing facility resident indicates in the MDS survey an interest in moving to the community, the nursing facility is supposed to give that individual’s name to the ADRC.
30 In 2012, although it reported that it “collaborated with DHCF, through a memorandum of understanding, to assist nursing facility residents in transitioning into community-based settings” and set a goal of transitioning 60 individuals from both hospitals and nursing facilities, the 41 transitions it accomplished that year were all from hospital settings and not from nursing facilities. See District of Columbia Gov’t Office of Disability Rights, DC – One Community for All, FY 2012 Summary 5 (Feb. 12, 2013).
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The District has not yet issued an updated Olmstead Plan for 2014, but it has publicly released numerical “Olmstead goals” for fiscal year 2014. (See 2014 Olmstead Goals.) As noted, the MFP goal for 2014 is 30 transitions, 10 less than the MFP benchmark. For the first time, DHCF has also set a numerical goal of transitioning 25 nursing facility residents directly to the EPD waiver (2014 Olmstead Goals at 10), although it is not clear whether there are any waiver slots available for the nursing facility residents who are seeking to transition outside of the MFP program. (See Turnage Dep. 150; Iscandari Dep. 34-35.) Also for the first time, ADRC has distinguished between hospital discharges and nursing facility discharges and set a goal of assisting 80 nursing facility residents transition to the community. For ADRC, though, any nursing facility resident who transitions, regardless of Medicaid coverage or length of stay, is counted toward that goal. (2014 Olmstead Goals at 3.)
3. Transition Data Getting an accurate picture of how many nursing facility residents in the District have transitioned to community-based long-term care services since Olmstead is exceedingly difficult given the variety of sources of data (some of which is conflicting) both within and outside the District, the significant gaps in the available data, and the parties’ disputes over its accuracy and how it is to be interpreted. According to data submitted by the District, 31 since this lawsuit was filed, a total of 412 Medicaid beneficiaries have been discharged from nursing facilities to community-based long-
31 In an attempt to obtain more current transition data, the Court asked the District to provide it with “updated information as to the number of nursing home residents in 2013 that have been discharged to less restrictive settings with home- and community-based services.” (Order, Nov. 22, 2013 [ECF No. 117].) The District attempted to do so, relying primarily on data extracted from its Medicaid Management Information System (“MMIS”), a system that keeps track of Medicaid claims for a particular service, e.g. long-term care, but is admittedly not up-to-date because providers have up to a year after the service is provided to submit their claims. (Def.’s 12/6/2013 Supp. Filing 1.) It supplemented its initial response to answer additional questions
17

term care services (102 in 2010; 118 in 2011; 112 in 2012; and 81 in 2013 (as of Dec. 6, 2013)0. (Def.’s 12/6/2013 Supp. Filing 2.) Out of the 412, approximately 221 had been in a nursing home for 90 days or longer. (Def.’s 12/6/2013 Supp. Filing 2.) Of the over 90-day transitions, 49 were through the MFP program and 14 were through ADRC.32 (Def.’s Reply to Pls.’ Resp. to Def.’s Dec. 13, 2013 Supp. Submission of Nursing Facility Data 5, Dec. 20, 2013 [ECF No. 124] (“Def.’s 12/20/2013 Supp. Filing”).)
The District has further broken down the overall discharge numbers for 2012 and 2013 for Medicaid beneficiaries who had been in the nursing home for over 90 days to identify how many transitions came under the MFP program, how many were attributable to the ADRC, and how many were not attributable to either the MFP program or the ADRC. For 2012, the District calculates that there were a total of 63 discharges, 16 under the MFP program, zero with assistance from the ADRC, and 47 “other” discharges. (Def.’s 12/13/2013 Supp. Filing 1.) For 2013, the District calculates a total of 57 discharges, 16 under the MFP program, 14 assisted by the ADRC, and 27 other discharges. (Def.’s 12/13/2013 Supp. Filing 2; Def.’s 12/20/2013 Supp. Filing 5.)
This data, as has been the situation throughout this litigation, is fraught with problems. At the time of the Court’s prior decision, the District had very little information about nursing home transitions. See Day, 894 F. Supp. at 28. The record showed that as of October 2011 only three residents had moved via the MFP program but no data existed as to how many residents
from the Court (see Def.’s 12/13/2013 Supp. Filing), which led plaintiffs to file a response challenging various aspects of the District’s generation and interpretation of its data (Pls.’ Resp. to Def.’s Dec. 13, 2013 Supp. Submission of Nursing Facility Data, Dec. 18, 2013 (“Pls.’ 12/18/2013 Supp. Filing”), and the to file a reply thereto. (Def.’s 12/20/2013 Supp. Filing.) Although these disputes will ultimately have to be resolved, it is neither necessary nor possible of the Court to do so based on the existing record. 32 Plaintiffs contend that ADRC assisted at most only nine over 90-day Medicaid-recipients. (Pls.’ 12/18/2013 Supp. Filing 3.)
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had moved to the EPD Waiver or the State Plan. Id. Since then, we know from the District that, as of its latest filing in late 2013, it calculates that for the period 2010-2013, there were 221 discharges of Medicaid residents who had been in a nursing home for over 90 days, 49 residents had moved via the MFP program, 14 residents had been assisted by ADRC, and some unknown number of the remaining 160 “other discharges” may have been assisted by the District in their return to community-based long-term care services. But even assuming that the total discharges of persons in nursing homes for over 90 days to community-based services is 221, that figure covers a four-year period and its significance is vigorously disputed by plaintiffs. III. PROCEDURAL BACKGROUND
Plaintiffs commenced this litigation in December 2010, 11 years after the Supreme Court’s decision in Olmstead. After plaintiffs filed their first amended complaint (1st Am. Compl., Mar. 30, 2011 [ECF No. 17]), defendants filed a motion to dismiss or, in the alternative, for summary judgment. (Def.’s Mot. to Dismiss Or, in the Alternative, for Summary Judgment, April. 27, 2011 [ECF No. 19].) In addition to its arguments for dismissal, defendants argued that they were entitled to summary judgment because “the District ha[d] instituted several comprehensive and effective programs that facilitate community-based care and transitions from nursing facilities to community-based care.” (Id.) Plaintiffs were allowed discovery in order to respond to the motion for summary judgment. (Minute Order, Apr. 29, 2011.) On February 14, 2012, the Court denied the motion, except that it dismissed all claims against the individual defendants on the ground that official capacity claims against them were redundant of the claims against the District. See Day v. DC, 894 F. Supp. 2d 1, 33 (D.D.C. 2012). The Court concluded that (1) plaintiffs had alleged a sufficient causal connection between their injury and the District’s actions to establish standing, id. at 22-23; (2) plaintiffs did not need to allege, in order to state an Olmstead integration claim, that the District’s own health-care professionals had
19

determined that community-based services were appropriate, given the allegation that other “health-care professionals” had made that determination, id. at 23-24, or that the cost of community-based care would be less than the cost of care in a nursing facility, id at 24-25; and (3) the undisputed facts did not establish that the District had a “measurable commitment to deinstitutionalization,” an “essential component of an ‘effectively working’ [Olmstead integration] plan,” but rather that the evidence as of October 2011 demonstrated that the District’s nursing facility population had remained constant; only three nursing facility residents had transitioned to the EPD Waiver through the MFP program, and although the EPD Waiver had been available since 1999, the District kept no record of how many waiver slots were filled by nursing facility residents. Id. at 27-28 (quoting Olmstead, 527 U.S. at 606–07).
A. Second Amended Complaint & First Motion for Class Certification Thereafter, plaintiffs filed their second amended complaint (2d Am. Compl., Apr. 2, 2012 [ECF No. 46]), and shortly thereafter, their first motion for class certification. (Pls.’ Mot. for Class Certification, May 15, 2012 (“1st CC Mot.”) [ECF No. 54].) Plaintiffs sought to certify a class composed of: All persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility. (1st CC Mot. 2.)33 As relief, plaintiffs sought “a permanent injunction requiring Defendant to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs.” (2d Am. Compl., Prayer for Relief.)
33 In their original and first amended complaints, plaintiffs defined the class as: All those persons who (1) have a disability; (2) receive services in nursing facilities located in the District of Columbia or funded by Defendants at any time
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The Court held a hearing on plaintiffs’ motion on January 7, 2013. During the hearing,
the Court confirmed that plaintiffs were seeking only systemic relief and that they were not
seeking any relief from the Department of Mental Health (“DMH”). At the end of the hearing,
the Court advised plaintiffs that it would not grant the motion to certify the class as “presently
constituted” for several reasons, including (1) the discrepancy between the purported systemic
goals of the litigation and the undefined but individualized injunctive relief sought by the second
amended complaint; and (2) plaintiffs’ failure to avoid overlap between their claims and the class
action settlement in Dixon v. Gray, No. 74-cv-0285 (D.D.C. Feb. 16, 2012), which created an
integrated community-based mental health system designed to guarantee the rights of individuals with mental illness to community-based treatment under the least restrictive conditions.34 (Hrg.
Tr. 92-94, Jan. 7, 2013 (“1/7/13 Hrg. Tr.”).) To allow plaintiffs an opportunity to address these
deficiencies, the Court denied the motion for class certification without prejudice and set a
schedule for plaintiffs to file a third amended complaint and a renewed motion for class
certification. (Am. Scheduling Order, Jan. 17, 2013 [ECF No. 87].) The District, in the
meantime, sought a stay “to allow for the implementation of a new nursing facility community transition initiative”35 that would “likely be highly relevant to the merits of Plaintiffs’ claims,
during the pendency of this litigation; (3) could live in the community with appropriate supports and services from Defendants; and (4) prefer to live in the community rather than in nursing facilities.
(Compl. ¶ 90; 1st Am. Compl. ¶ 96.) 34 See Consent Order, Dixon v. Gray, No. 74-0285 (D.D.C. Feb. 16, 2012) (approving settlement agreement whose purpose was to “ensure continuity of numerous improvements made by the District government to its community-based mental health system over the last decade, increase the stock of supported housing within the District, and ensure the expansion of numerous evidence-based practices of importance to mental health consumers”); see also Dixon v. Weinberger, 405 F. Supp. 974, 975, 979-80 (D.D.C. 1975). 35 Presumably, this new initiative is the initiative that appeared a few months later in the 2013 Olmstead Plan.
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and will almost certainly impact the scope of any injunctive relief that the Court may ultimately
order.” (Proposed Revised Case Mgmt. Order 1-2, Jan. 15, 2013 [ECF No. 86].) This request
was denied, but the District’s request to delay the identification of experts and expert discovery
until after a decision on class certification was granted. (Hrg. Tr. 3, 7, Jan. 17, 2013 (“1/17/2013
Hrg. Tr.”))
B. Third Amended Complaint & Renewed Motion for Class Certification
On March 27, 2013, plaintiffs filed their third amended complaint, which added six new
class representatives, revised the proposed class definition in several ways, and amplified
plaintiffs’ requests for relief. Of the remaining nine named plaintiffs, see supra n.1, six (Thorpe,
McDonald, Collins, Goines, Gray and Rivers) presently reside in nursing facilities and receive
Medicaid-covered long-term care services,36 while three (Dupree, Foreman, and Wilkerson) have
transitioned to less restrictive settings during the pendency of this lawsuit.37
The revised class definition differs from the prior definition in that it limits the class to
individuals who have a physical disability, have been in a nursing facility for over 90 days, and
36 Collins has resided in a nursing facility since January 19, 2012 (Collins Decl. ¶ 3, Mar. 27, 2013); Goines has resided in a nursing facility since December 1, 2009 (Goines Decl. ¶ 5, Apr. 23, 2013); Gray has resided in a nursing facility since February 16, 2010; McDonald has resided in a nursing facility for over six years (McDonald Decl.¶ 4, Mar. 26, 2013); Rivers has resided in a nursing facility since June 22, 2011 (Rivers Decl. ¶ 5, Mar. 15, 2013); Thorpe has resided at a nursing facility since March 2008. (Thorpe Decl. ¶ 3, Apr. 2, 2013.) 37 Dupree spent approximately six years, from 2006 to August 2012, in a nursing facility before transitioning to an assisted living facility. (Simhoni Decl. ¶ 2.) On September 18, 2012, the District filed a motion to dismiss the claims of Dupree as moot due to his move out of the nursing facility. (Def.’s Mot. to Dismiss the Claims of Plaintiff Donald Dupree as Moot, Sept. 18, 2012 [ECF No. 64].) Wilkerson spent almost ten years in a nursing facility, from December 2003 to October 10, 2012, before transitioning to the community. (Wilkerson Decl. ¶¶ 4-6, Dec. 27, 2012.) On December 13, 2012, the District also moved to dismiss Wilkerson’s claims as moot. (Def.’s Mot. to Dismiss the Claims of Plaintiff Curtis Wilkerson as Moot, Dec. 13, 2012 [ECF No. 81].) In January 2013, the Court denied both motions. (See Mem. Op. and Order, Jan. 9, 2013 [ECF No. 85].) Since then, Foreman, who had spent over seven years in a nursing facility from May 12, 2006, to September 25, 2013, transitioned to the community. (Foreman Decl. ¶ 4, Apr.13, 2013; Foreman Decl. ¶ 2, Oct. 22, 2013).)
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need transition assistance from the District in order to leave the nursing facility and obtain
community-based long-term care services. The proposed revised class definition reads:
All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible38 to live in the community; and (3) would live in the community instead of a nursing facility if the District of Columbia would provide transition assistance to facilitate their access to long-term care services in the community.
(3d Am. Compl. ¶ 153.)
According to this latest iteration, the class “requires a District-wide common system of
transition services to connect its members with community-based supports and long-term care
services.” (3d Am. Compl. at 2.) It alleges that the District’s existing system of transition
assistance is deficient because the District “fails to”:
i. Assure that individuals with physical disabilities receive long-term care services in the most integrated community-based setting appropriate to their needs;
ii. Develop and implement a comprehensive and effectively working integration plan with measurable targets for transitioning sufficient numbers of Plaintiffs from nursing facilities to the community within specified time frames, demonstrate progress toward meeting those targets, and sustainability of the transition process and community-based service infrastructure through resource allocation and systemic reform that rebalances the long-term care service system. The integration plan must guide the District’s inter-agency actions to: inform Plaintiffs about community-based alternatives, identifies Plaintiffs prefer to get their long-term care services in the community, and help them move to the community with the long-term care services and supports they need;
iii. Ensure capacity in its Medicaid long-term care programs and services under the EPD Waiver Program, the State Plan Personal Care Assistance Program, Money Follows the Person Program, and programs for senior citizens and adults with physical disabilities to enable named Plaintiffs and class members to transition from nursing facilities to the community with these long-term care services and case management assistance;
38 Plaintiffs have clarified that they are using the term “eligible” to mean eligible for existing Medicaid-covered home and community-based long-term care services for the physically disabled, such as through the EPD Waiver or the Medicaid State Plan.
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iv. Ensure sufficient staffing to inform individuals with physical disabilities in nursing facilities about available long-term care services in the community and assess the community eligibility of individuals with physical disabilities in nursing facilities and provide transition assistance, i.e., assist named Plaintiffs and class members to obtain identification documents, complete housing applications, and arrange long-term care services upon discharge from the nursing facilities;
v. Provide adequate and appropriate community-based long-term care services to assist Plaintiffs with their activities of daily living (bathing, dressing, mobility, toileting, eating) and instrumental activities of daily living (e.g., meal preparation, grocery shopping, laundry), and skilled nursing needs;
vi. Assure that people with physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them prior to, and upon admission of the availability of integrated, community-based options for long-term care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community;
vii. Assure that individuals with physical disabilities residing in nursing facilities are periodically asked about their interest in, assessed for, and where appropriate, transitioned from nursing facilities to community-based long-term care services;
viii. Ensure that all nursing facilities that receive DC Medicaid funding inform individuals with physical disabilities about community-based alternatives and begin discharge planning upon admission to assist Plaintiffs to transition back to the community from nursing facilities;
ix. Provide clear and accurate information to Plaintiffs regarding their eligibility for community-based long-term care services, the process for accessing these services, and assisting them to apply for the services;
x. Provide information, transitional assistance, and referrals to facilitate Plaintiffs’ access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and
xi. Take adequate steps to preserve Plaintiffs’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
(3d Am. Compl. ¶ 139.)
The above request for relief still seeks broad and far-ranging institutional reform of the
care and treatment of several thousand DC Medicaid recipients who have physical disabilities
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and currently reside in nursing homes. Specifically, the relief goes far beyond transitional
services by seeking “a permanent injunction requiring Defendant to promptly take the following
steps that are necessary to serve Plaintiffs in the most integrated settings appropriate to their
needs,” with the steps defined as “develop[ing] and implementing a working system of transition
assistance for Plaintiffs,” “ensur[ing] sufficient capacity of community-based long-term care
services,” “successfully transition[ing] Plaintiffs from nursing facilities to the community with
the appropriate long-term care community-based services” with a specified “minimum number
of transitions in each of the next four years,”39 and “sustain[ing] the transition process and
community-based long-term care service infrastructure.” (3d Am. Compl., Prayer for Relief
(emphasis added).)40
39 Plaintiffs’ request to move a targeted number of people on an annual basis appears to directly contradict counsel’s representation at the January 7, 2013 hearing that they were not seeking an injunction to move a certain number of people. (1/7/2013 Hrg. Tr. 17 (“[W]e’re not asking this Court to give us a number of people to have to get out in a year. Because we believe that what we would like to see is that the system is built.”).) Despite this representation, plaintiffs persist in seeking a specified number of transitions per year for four years, even though this arguably runs afoul of Wal-Mart’s prohibition against individualized injunctive relief, see Wal-Mart, 131 S. Ct. at 2557, a limitation that was extensively addressed by the Court at the January 7 hearing (see 1/17/2013 Hrg. Tr. 19, 36, 62, 98-99) and acknowledged by plaintiffs’ counsel. (1/7/2013 Hrg. Tr. 62.) 40 Plaintiffs request that the District be ordered to:
i) Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.
ii) Ensure sufficient capacity of community-based long-term care services for Plaintiffs under the EPD, MFP, and PCA programs, and other long-term care
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On April 11, 2013, the District filed a motion to dismiss the third amended complaint.
On May 6, 2013, plaintiffs filed their renewed motion for class certification based on the third
amended complaint. The United States is not a party to this litigation but it filed a Statement of
Interest in support of the plaintiffs’ renewed motion for class certification. (Statement of Interest
of the United States of America, June 26, 2013 [ECF No. 109].) On December 13, 2013, the
Court held a hearing on both motions.
ANALYSIS
The pending motions present many challenging issues, several of which raise serious
questions as to whether plaintiffs can prevail on the merits and whether they are entitled to the
far-ranging systemic relief they seek. For example, many nursing facility residents, including
named plaintiffs, lack readily affordable housing in the community, and it is agreed that the
service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs;
iii) Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other longterm care programs, with the following minimum numbers of transitions in each of the next four years:
80 class members in Year 1; 120 class members in Year 2; 200 class members in Year 3; and 200 class members in Year 4.
iv) Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District’s ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semiannual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by Defendant to transition to the community with long-term care services through each of the MFP, EPD, and PCA, and other long-term care programs; and the aggregate dollars Defendant saves (or fails to save) by serving individuals in the community rather than in nursing facilities.
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Court cannot order the District to provide housing. Plaintiffs may therefore be unable to establish causation – a causal link between any proven deficiencies in the District’s system of transition assistance and the injury associated with being “stuck” in a nursing facility. Similarly, there is a substantial question as to whether plaintiffs’ request for injunctive relief exceeds the scope of their claims (in particular their request for “sufficient capacity of community-based long-term care services” and the transition of a specified number of individuals ranging from 80 per year to 200 class members in year 4), even if they succeed in proving that the District’s system is deficient and that there is a causal link between those deficiencies and their injuries. In addition, ruling on plaintiffs’ motion for class certification is complicated by the Supreme Court’s decision in Wal-Mart and the application of that decision by the Court of Appeals in DL. As discussed herein, these decisions suggest that a court must take a hard look at the merits before finding that the commonality requirement has been satisfied, but how this is to be accomplished in an Olmstead case prior to an adjudication on the merits is far from clear, especially since the District’s progress to date has been, at best, difficult to assess.41
Nonetheless, despite these serious problems, the Court concludes that plaintiffs here have carried their burden under Rule 23. Although admittedly the District has made some progress in the recent past, and this progress appears to be continuing, there remain a number of indisputable facts that support class certification. Over the course of this litigation, the number of Medicaid
41 Obviously, if the District is ultimately able to demonstrate that its Olmstead Plan is effective, it may be that it will be appropriate to revisit certification. For instance, an Olmstead class of nursing facility residents or potential residents was decertified in the Northern District of Florida in Lee v. Dudek, No. 4:08-cv-0026 (N.D. Fla. Jan. 3, 2012) after the judge found that “[a]n unrelated legislative development—a virtually limitless appropriation for transitioning Medicaid beneficiaries from nursing homes into the community—led to substantial changes in the state’s Medicaid program,” with the result that it “was no longer true that the state ‘has refused to act on grounds that apply generally to the class” and, therefore, the class no longer satisfied the requirements of Rule 23(b)(2). Id. at 2, 12.
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recipients who have been in nursing facilities for more than 90 days has been a relatively constant figure of approximately 2000. Despite goals under the MFP to transition 40 nursing facility residents per year from 2011-2013,42 during that three-year time period only 49 residents (or approximately 40% of the goal) were in fact transitioned. The 2014 Olmstead goal for ADRC has been set at 80 nursing home residents (2014 Olmstead Goals at 3), but that goal encompasses all nursing home residents, not only Medicaid beneficiaries and not dependent on the length of stay. And, in 2013, while the ADRC assisted a total of 56 residents, at most 14 of these individuals were Medicaid recipients who had been in a nursing home for over 90 days. With respect to nursing facility transitions directly to the EPD Waiver, the District does not keep track of that information on a current basis, although to some extent it can extract the information from the MMIS data. In addition, questions remain about the availability of waiver slots and the status of the waiver waiting list, making it hard to know what to make of the 2014 Olmstead goal of 25 transitions from nursing facilities directly to the EPD waiver. Yet, it is undisputed that many Medicaid residents in nursing homes have expressed a desire to receive services in a less restrictive setting in the community, but have not been able to do so.
In short, the District has yet to demonstrate that its Olmstead Plan is an “effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 606-07. On this basis, to the extent that Wal-Mart requires the Court to take a hard look at the merits in deciding whether the Rule 23 prerequisites for deciding class certification have been met, the Court finds, as more fully explained below, that these requirements have been met.
42 If 2010 were included, where the target was 30 residents, but no residents transitioned, the rate would fall to approximately 33%.
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I. THE DISTRICT’S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT A. Implied Requirement of Definiteness The District first argues that the Third Amended Complaint should be dismissed because
the proposed class definition has “several, fatal defects” that render it “not sufficiently definite to permit certification.”43 (MTD 5.)
The requirement of “definiteness” has been imposed by courts as an “implied requirement” for class certification, in addition to the express requirements in Rule 23. See DL v. District of Columbia, No. 05-cv-1437, 2013 WL 6913117, at *11 (D.D.C. Nov. 8, 2013) (“Definiteness is not mandated by Rule 23 but is a judicial creation requiring that the class be (1) adequately defined; and (2) clearly ascertainable.” (internal quotations omitted)). The “commonsense requirement” that plaintiffs “establish that a class exists” is “not designed to be a particularly stringent test,” but rather requires plaintiffs to “be able to establish [that] ‘the general outlines of the membership of the class are determinable at the outset of the litigation.’” See Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C.1998) (quoting 7A Charles Alan Wright, et al., Federal Practice & Procedure § 1760 (3d ed.)). “The level of precision . . . required varies depending on the type of class sought to be certified” under Rule 23(b). See Kenneth R. v. Hassan, 293 F.R.D. 254, 263-64 (D.N.H. 2013); William B. Rubenstein, Newberg on Class Actions § 3:7 (5th ed.). For example, in a Rule 23(b)(3) class action, “a high level of precision in defining class membership is necessary . . . because all class members must be identified in order to notify each of his or her opt-out rights, and, later, to distribute monetary relief.”44 Kenneth R., 293
43 Although the District first raises this argument in its motion to dismiss, it also adopts it by reference in its opposition to plaintiffs’ motion for class certification. (See CC Opp. 15.) 44 Fed. R. Civ. P. 23(b)(3) provides that a class action “may be maintained if” . . . “the court finds that the questions of law or fact common to class members predominate over any questions
29

F.R.D. at 264; see also Newberg on Class Actions § 3:3 (critical question is whether class
membership “can be ascertained” with reference to “objective criteria”). By contrast, “where
certification of a (b)(2) injunctive class is sought, actual membership of the class need not . . . be
precisely delimited” because such cases will not require individualized notice, opt-out rights, or
individual damage assessments, and the defendant will be required to comply with the relief
ordered no matter who is in the class.45 Kenneth R., 293 F.R.D. at 264 (internal quotations
omitted); see Newberg on Class Actions § 3:7. In those cases, the definiteness requirement is
satisfied as long as plaintiffs can establish the “existence of a class” and propose a class
definition that “accurately articulates ‘the general demarcations’ of the class of individuals who
are being harmed by the alleged deficiencies.” See, e.g., Kenneth R., 293 F.R.D. at 264; see also
DL, 2013 WL 6913117, at *12 (“Because the rationale for precise ascertainability is inapposite
in the 23(b)(2) context, . . . it is not required in cases such as this where only injunctive relief is
sought and notice is not required.”).46
affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” 45 See also McCuin v. Sec. of Health and Human Svcs., 817 F.2d 161, 167 (1st Cir. 1987) (“[W]here only declaratory and injunctive relief is sought for a class, plaintiffs are not required to identify the class members once the existence of the class has been demonstrated.”); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004) (“Rule 23(b)(2) [is] well suited for cases where the composition of a class is not easily ascertainable” due to the “shifting” nature of the population, although “[e]lements of manageability and efficiency are not categorically precluded in determining whether to certify a 23(b)(2) class.”); Floyd v. City of New York, 283 F.R.D. 153, 172 (S.D.N.Y. 2012) (“[G]eneral class descriptions based on the harm allegedly suffered by plaintiffs are acceptable in class actions seeking only declaratory and injunctive relief under Rule 23(b)(2).”) (internal quotations omitted). 46 The cases cited by the District are not to the contrary for none of them sought certification under Rule 23(b)(2). (See MTD 4 (citing John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443 (5th Cir. 2007); Schilling v. Kenton County, No. 10-cv-0143, 2011 WL 293759, at *6-7 (E.D. Ky. Jan. 27, 2011); Hylaszek v. Aetna Life Ins. Co., No. 94-cv-5961, 1998 WL 381064 (N.D. Ill. July 1, 1998)).)
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The District urges the Court to reject the proposed class definition for lack of definiteness
because (1) the identity of class members is not “readily ascertainable” with reference to
“objective criteria” now that the proposed class includes only individuals who need transition
assistance from the District47; and (2) the definition is overbroad because it does not exclude
individuals who lack identified housing in the community or individuals who are under DMH’s
umbrella.
1. Ascertainability
The District contends that the identity of class members is not “readily ascertainable”
with reference to “objective criteria” because the term “transition assistance” is too “vague,”48
and even if the term had a clear definition, it would be impossible to know who needs transition
assistance from the District without extensive “individualized” inquiry. (MTD 7; MTD Reply
2.) Neither criticism is persuasive.
Although the term “transition assistance” could mean a number of things, plaintiffs have
set forth in their complaint (see 3d Am. Compl. ¶ 139 & Prayer for Relief), and in response to the
District’s motion, a fairly specific description of what they intend it to mean:
Defendant must establish and implement a policy of transition assistance that identifies the services each class member currently receives and needs, identifies the corresponding services available in the community, and then takes steps to bridge the divide. The Court is asked only to order the implementation of the
47 Plaintiffs agree that the revised definition includes this limitation. (MTD Opp. 8 (“If individuals, on their own, are able to leave nursing facilities and subsequently obtain long-term care services from the District in the community, they have not been harmed by the District’s policies governing their access to community-based long-term care services to help them with their activities of daily living, and its resulting failure to provide assistance to enable them to transition to the community. Plaintiffs have proposed the more narrow definition to ensure Defendant’s resources are not misdirected toward people who are not suffering violations of their Olmstead rights. The class thus includes only those who are stuck in nursing facilities because they need assistance to return to the community”).) 48 The District makes a similar point when challenging plaintiffs’ ability to show typicality. See infra § II.A.3.a.
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system itself; the system will then carry out the work needed to desegregate the class members. This might include, for example: the distribution of, and assistance with completing applications for identification documents, housing, transportation, and personal care assistance services, and the arrangement of these services prior to nursing facility discharge to ensure implementation upon class members’ transition to the community. Defendant’s policy and practice must make assistance available to class members to enable them to complete the steps toward moving back to the community with the Medicaid long-term personal care assistance services that exist in the community and are needed by all class members to help them with their activities of daily living.
(Pls.’ Opp’n to Def.’s Mot. to Dismiss the Third Am. Compl. at 10, May 6, 2013 (“MTD Opp.”)
[ECF No. 102]).
Moreover, while it may be correct that it is impossible to identify specifically who needs transition assistance from the District without individualized determinations (see MTD 6-7),49
this is not a “fatal” defect. First, as this is a Rule 23(b)(2) class action, absolute precision is not
required. See supra § I.A; see also Kenneth R., 293 F.R.D. at 264. Second, although exact
identification of class members who need transition assistance would be impossible without
individualized inquiries, the proposed class definition also includes a requirement that residents
have been in a nursing facility for more than 90 days, which plaintiffs suggest is a fair proxy for
determining which residents are “stuck” in a nursing facility and need the District’s assistance to
leave. (MTD Opp. 9.) As plaintiffs point out, the MFP Program uses a similar 90-day length of
stay requirement to ensure that the program serves its purpose of increasing the use of home and
community-based rather than institutional long-term care services. (MTD Opp. 9.) Of course,
not every resident who has been in a facility for over 90 days necessarily needs transition
assistance, but that criteria is an adequate proxy to “accurately articulate[] ‘the general
49 The Court does not agree with plaintiffs’ suggestion that the 2010 MDS survey data provides this information. (See MTD Opp. 5.) The MDS data only identifies residents who wish to speak to someone about moving to the community (or expect to move to the community), but does not include information about whether they need transition assistance from the District to do so.
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demarcations’ of the class of individuals who are being harmed by the alleged deficiencies” under Rule 23(b)(2). See, e.g., Kenneth R., 293 F.R.D. at 264. If plaintiffs ultimately prevail, the District may have to implement a system that identifies which residents need transition assistance and what assistance they need, but until then, there is no reason for the Court to insist on a more definitive class definition.
2. Overbreadth The District also argues that the proposed class definition is “fatally overbroad in two important respects” -- it fails “to exclude Dixon class members and/or individuals who would receive assistance from DMH,” and individuals “who lack a housing option in the community.” (MTD 9-11.) According to the District, “[c]ourts will not certify a class where the definition includes a substantial number of individuals who have no claim to relief.” (MTD 9 (citing Vigus v. S. Ill. Riverboat/Casino Cruises, Inc., 274 F.RD. 229, 235 (S.D. Ill. 2011) (“Where a class is overbroad and could include a substantial number of people who have no claim under the theory advanced by the named plaintiff, the class is not sufficiently definite.”).) The District’s analysis is flawed. First, the court in Vigus was applying a stringent version of the definiteness requirement, which is not required for a Rule 23(b)(2) class action. Second, and more importantly, the inclusion of DMH consumers and those who lack identified housing in the community does not render the class overbroad.
a. Failure to Exclude All DMH Consumers As the District rightly points out, the proposed class definition “continues to incorporate individuals with serious and persistent mental illnesses” if those individuals also have physical disabilities. (MTD 9; MTD Reply 10.) The District argues that these individuals should be excluded because DMH “would assist [their] moving into less restrictive settings.” (MTD 9; MTD Reply 10.) Plaintiffs maintain that by limiting the class to individuals with physical
33

disabilities, they have excluded residents who are exclusively the DMH’s responsibility, but that residents who have both physical and mental disabilities are properly part of the class because DHCF and DCOA are the agencies through which they access community-based long-term care services. (MTD Opp. 12.)50
At this point, plaintiffs’ revised class definition satisfies the Court’s primary concern, for it excludes any request for systemic changes to DMH, which is the subject of the Dixon settlement. The District reads the discussion during the January 7, 2013 hearing as requiring the exclusion of all DMH consumers and requiring plaintiffs to conduct discovery to identify those individuals. (See MTD 11 n.5.) But the Court agrees with plaintiffs that there is no need for the class to be narrowed to that extent as long as the DMH consumers in the class are also physically disabled and eligible for long-term care services and transition assistance administered by DHCF or DCOA. The Court finds ample evidence in the record to support plaintiffs’ contention that these individuals are no different than any other Medicaid-covered physically disabled resident in terms of their eligibility for the long-term care services administered by DHCF and for nursing facility transition assistance provided by DHCF and DCOA. Contrary to the District’s view, it is not necessary for plaintiffs to establish “that DMH has no role in assisting individuals with physical disabilities to leave nursing facilities.” (MTD Reply 9-11.) DMH clearly has a role, but just because a resident is a DMH consumer and eligible for transition assistance from the DMH does not preclude him or her from being eligible for and benefiting from transition assistance from DHCF or DCOA. (See, e.g., Teasdell 30(b)(6) Dep. 98–99, Feb. 28, 2013; Sarigol 2011
50 The record supports this contention. (See 2013 Olmstead Plan; Sarigol 30(b)(6) Dep. 59 (MFP assists those with physical and mental health needs); Teasdell 30(b)(6) Dep. 17-19, 98-99 (DHCF and ADRC are the two agencies responsible for the day-to-day assistance of nursing facility residents to transition to the community); Teasdell Dep. 288 (discharge planning by ADRC staff includes identifying home health services and mental health services).)
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Dep. 19-21), Absent evidence that the DMH has exclusive responsibility for DMH consumers in nursing facilities, these individuals do not have to be excluded from the class.
b. Failure to Exclude Residents Who Lack Housing The District also argues that the revised class definition is overbroad because it fails to exclude nursing facility residents who lack “an identified housing option” in the community. (MTD 11.) According to the District, such individuals must be excluded because they cannot be in need of “transition assistance.” (MTD Reply 9 (“To demand that the District provide transition assistance to individuals without a place to go is baffling”).) Plaintiffs counter that even though they have “never requested the Court to order [the District] to create, or even fund, housing,” part of an effective system of transition assistance would include assistance to “access available housing resources in the community.” (MTD Opp. 13, 18.) There is no question that many of the proposed class members lack an “identified housing option.” (See Def.’s Interrog. Resps. 7 & n.1; see also CC Opp. 21-22 (list of citations to record re housing problem).) What this will mean for plaintiffs’ case on liability cannot be determined at this stage, for if the only barrier to movement for most residents is the lack of a place to go (and not the lack of transition services), plaintiffs may not be able to prove a causal link between the alleged deficiencies in the District’s system of transition assistance and the alleged unnecessary segregation. At this stage, however, the Court is not in a position to resolve the merits, but only whether the proposed class definition is overbroad. On that limited issue, the Court agrees with plaintiffs that there is no overbreadth problem. Just because a resident lacks readily-identifiable housing in the community does not automatically mean that plaintiffs will not be able to show that there is “transition assistance” that the District could and should provide. Indeed, one of the named plaintiffs who initially lacked readily identifiable housing in the community (see Dupree
35

Dep. 112), has since been able to transition. (Simhoni Decl. ¶ 10, Apr. 5, 2013.) Accordingly,
the Court agrees with plaintiffs that a lack of readily-identifiable housing does not require categorical exclusion from the class.51
B. Standing Arguments The District’s motion to dismiss also challenges plaintiffs’ standing on two grounds,
neither of which has merit. First, it argues that if the proposed class definition is deficient, the
named plaintiffs “lack standing to pursue the system-wide injunctive relief set forth therein.”
(Mot. to Dismiss at 12.) As the Court has rejected the District’s challenges to the proposed class
definition, this argument is moot.
The District also argues that named plaintiffs lack standing even if the class definition is
not rejected because “the broad systemic relief requested . . . still far exceeds the specific injuries
alleged by the named Plaintiffs.” (MTD 16 (complaint “seeks relief to address purported
inadequacies of the District’s long-term care system that are not even alleged to have injured the
named Plaintiffs”).) To support this argument the District relies Lewis v. Casey, wherein the
Supreme Court observed:
That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.
518 U.S. 343, 357 (1996) (internal quotations omitted).
51 There are significant factual disputes pertaining to the availability of housing vouchers and other housing-related issues. (Compare MTD Opp. 13 (the District should provide assistance “to access the 1,500 housing subsidy vouchers currently administered by [the District]”) (citing Otero Dep. 82-84 & Ex. 15 (chart dated July 1, 2011, showing “Federal Vouchers Set Aside for City-related Projects”), Mar. 27, 2013 with MTD Reply 8-9 (“[t]he reality is that only 30 Housing Choice Vouchers are set aside for nursing home residents who are not DMH consumers, and those Vouchers have already been allocated through a lottery administered by MFP earlier this year” (citing Sarigol Decl. I ¶ 5).)
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In Lewis, a class action challenging various prison rules, the Court vacated the systemic aspects of the district court’s injunction on the ground that the district court had “found actual injury on the part of only one named plaintiff.” Id. at 358. Under those circumstances, the Court explained, “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U.S. at 357.
The District ignores, however, that Lewis was in a different posture from the present case. In Lewis, the Supreme Court was reviewing an injunction that had been entered after a trial on the merits. In reaching its decision, the Court emphasized that the procedural posture of a case was critical when considering whether the elements of standing were satisfied. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. at 358 (internal quotations omitted). “[A]t the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.” Id. (internal quotations omitted).
Here, the District is asking the Court to reject plaintiffs’ requested relief for lack of standing at the motion to dismiss stage. Although the Court agrees with the District that there is a serious question as to whether at least a part of the “broad systemic relief requested . . . exceeds the specific injuries alleged by the named plaintiffs” (MTD 16), that is not the case for all of the relief. Moreover, plaintiffs’ potential inability to prove an injury that justifies the relief sought does not require that their claims be dismissed for lack of standing.52
52 Having considered and rejected the District’s motion to dismiss on the merits, the Court need not address plaintiffs’ contention that the District was barred from filing its motion by Fed. R. Civ. P. 12(g) and 12(h)(2). (See MTD Opp. 22-24.)
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While the Court will undoubtedly have to return to Lewis’s admonition that not only must the remedy be limited to a proven inadequacy, but the “inadequacy [must be] widespread enough to justify systemwide relief,” Lewis, 518 U.S. at 359, that inquiry will have to wait until another day.53 II. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
A. LEGAL STANDARD A principal purpose of class certification is to save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical manner. See General Tel. Co.. v. Falcon, 457 U.S. 147, 155 (1982). Rule 23(a) sets forth the formal “prerequisites” for any class action: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of
the class. If these prerequisites are satisfied, Rule 23(b)(2) provides that a class action “may be maintained” if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” “The party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all prerequisites of Rule 23(a) are
53 See also Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 417 (1977) (“[I]nstead of tailoring a remedy commensurate with the three specific violations, the Court of Appeals imposed a systemwide remedy going beyond their scope”); id., at 420 (“[O]nly if there has been a systemwide impact may there be a systemwide remedy”); Califano v. Yamasaki, 442 U.S. 682, 702, (1979) (“scope of injunctive relief is dictated by the extent of the violation established”).
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satisfied[,] and the class falls within one of the categories of Rule 23(b).” Bynum v. District of Columbia, 214 F.R.D. 27, 30–31 (D.D.C. 2003) (citations omitted); Johnson v. District of Columbia, 248 F.R.D. 46, 51 (D.D.C. 2008).
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 131 S. Ct. at 2551. Rather, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. “[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Id. (internal quotations omitted); see also Falcon, 457 U.S. at 160 (“actual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim” because “‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’” Wal-Mart, 131 S. Ct. at 2551-52 (quoting Falcon, 457 U.S. at 160). However, “‘Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.’” DL v. District of Columbia, 713 F.3d 120, 125-26 (D.C. Cir. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194–95 (2013)). Ultimately, “[a] district court exercises broad discretion in deciding whether to permit a case to proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994) (trial courts are “uniquely well situated to make class certification decisions” as they “have the primary responsibility of ensuring the orderly management of litigation and that
39

the purpose of class actions lies in advanc[ing] the efficiency and economy of multi-party
litigation” (internal quotations omitted)).
B. RULE 23 REQUIREMENTS 1. Numerosity (Rule 23(a)(1))
The first requirement for a class action is that “the class is so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no specified or minimum number
of plaintiffs needed to maintain a class action.” Pashby v. Cansler, 279 F.R.D. 347, 353
(E.D.N.C. 2011). Here, the parties agree that a class of 40 or more is sufficiently numerous (CC
Mot. 19; CC Opp. 33), but the District argues that plaintiffs have failed to meet their burden to
show that there are “in fact” a sufficient number of class members. See Wal-Mart, 131 S. Ct. at
2551. Despite weaknesses in plaintiffs’ arguments,54 the Court is satisfied that the numerosity
requirement has been met based on the following: (1) the total population of Medicaid-recipients
in nursing facilities in the District who have been there for over 90 days exceeds 2000, and that
number has not significantly changed in the past few years; (2) each quarter, there are usually
more than 500 current nursing facility residents who have either expressed interest in speaking to
someone about receiving services in the community or want to return to the community (See
54 Plaintiffs initially asserted that “the proposed class consists of at least 500 people and possibly as many as 2,900,” taking the lower number from the 2010 MDS survey data and the higher number from the total population of D.C. Medicaid recipients in nursing facilities. (CC Mot. at 19.) This initial estimate had serious flaws. First, the total population of D.C. Medicaid beneficiaries is closer to 2600 (2388 in nursing facilities in the District plus approximately 200 in out-of-state facilities). Nor does the “total population” of Medicaid recipients account for the other criteria for class membership. Nor does it make sense to assume that every nursing home resident who had indicated an interest in talking to someone about moving to the community (the MDS preference number) satisfies all of the other criteria for class membership. Even the 256 residents identified through the MFP screening, which the plaintiffs focus on in their reply, may not satisfy all of the other criteria for class membership.
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MDS 3.0 Frequency Reports 2011-2013); (3) when the District’s MFP program did a screening of 354 residents in 2012, it identified 256 who wanted to move to the community, and 132 of those individuals were eligible for MFP; (4) the District’s initial estimate of the number of individuals with physical disabilities that it would transition through the MFP program was 645; (5) since the MFP program formally began in 2010, the District has set annual targets of at least 40 MFP transitions, even though it has never met those targets; and (6) in addition to a goal of 30 MFP transitions for 2014 (10 fewer than the MFP “target”), the District has set a goal of transitioning an additional 105 nursing facility residents to the community (25 through DHCF directly to the EPD Waiver and 8055 more through ADRC). In addition to these numbers, plaintiffs have submitted declarations from the named plaintiffs and other nursing facility residents who know other residents who would like to return to the community and need assistance to do so.56 So even if the size of the potential class cannot be precisely determined, it is reasonable to conclude from the available evidence that plaintiffs have established numerosity.
2. Commonality (Rule 23(a)(2)) The “commonality” requirement of Rule 23(a)(2) “require[s] a plaintiff to show that ‘there are questions of law or fact common to the class.’” Wal-Mart, 131 S. Ct. at 2250-51 (quoting Rule 23(a)(2)). Prior to the Supreme Court’s decision in Wal-Mart, the commonality inquiry was rarely the subject of disagreement, but Wal-Mart “defined common question with more specificity than it had in prior decisions while reiterating the importance of . . . centrality.” Newberg on Class Actions § 3:18. As explained in Wal-Mart, a common question is one that “is such a nature that it is capable of classwide resolution—which means that determination of its 55 As noted, the ADRC’s goal of 80 nursing facility transitions covers all transitions out of nursing facilities irrespective of length of stay, Medicaid coverage, or a need for communitybased services, so it is impossible to know how many of those 80 are potential class members. 56 (See, e.g., Thorpe Decl. ¶ 11; McDonald Decl. ¶ 19; Boylan Decl. ¶ 9.)
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truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 2251; see also Kenneth R., 293 F.R.D. at 267 (common questions “can be answered either ‘yes’ or ‘no’ for the entire class” – they are “central questions whose answers will not vary by individual class members” (internal quotations omitted)). Even a single common question will do, but the question must be more specific than simply asking whether plaintiffs “have all suffered a violation of the same provision of law” because the same provision of law “can be violated in many different ways.” Wal–Mart, 131 S. Ct. at 2551, 2556 (“What matters to class certification . . . is not the raising of common ‘questions’ – even in droves – but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”); see also Love v. Johanns, 439 F.3d 723, 729–30 (D.C. Cir. 2006) (“at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality” (internal quotations omitted)); see also Kenneth R., 293 F.R.D. at 266 (plaintiffs must “avoid framing common questions so generally that they encompass myriad, distinct claims”); Newberg on Class Actions § 3:18. Rather, plaintiffs must bridge the “gap” between individual claims of harm and the “‘existence of a class of persons who have suffered the same injury as that individual.’” Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 157); DL, 2013 WL 6913117, at *6 (commonality requires the plaintiff to demonstrate that the “class members have suffered the same injury for the same reason, such as a uniform policy or practice that is illegal”). “[W]here plaintiffs allege widespread wrongdoing by a defendant . . . a ‘uniform policy or practice that affects all class members’ bridges the gap.” DL, 2013 WL 6913117, at *6 (quoting DL, 713 F.3d at 128)); see also Kenneth R., 293 F.R.D. at 266 (plaintiffs must “provide significant proof that ‘there exists a common policy or practice . . . that is the alleged source of
42

the harm to [the] class members.’” (quoting M.D. v. Perry, 294 F.R.D. 7, 28–29 (S.D. Tex. Aug. 27, 2013).
In Wal-Mart, the Court concluded that the gap was impossible to overcome because plaintiffs sought to certify a class of one and a half million women, all current or former employees of Wal-Mart, who alleged that “the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women.” 131 S. Ct. at 2546. The pay and promotion decisions, however, were made by thousands of geographically-dispersed managers and “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552 (emphasis in original).
Thereafter, in DL, a case brought under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., the Circuit Court for the District of Columbia reversed the district court’s decision to certify a single class where the class members alleged that the District had failed to comply with each distinct step of the four-step “Child Find” process required under the IDEA due to “multiple, disparate failures” associated with each step. 713 F.3d at 128. The Court of Appeals found that because “the harms alleged to have been suffered by the plaintiffs here involve different policies and practices at different stages of the District’s Child Find and FAPE process,” the district court had “identified no single or uniform policy or practice that bridges all their claims.” Id. at 127. The Court concluded that “[a]fter Wal–Mart it is clear that defining the class by reference to the District’s pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members ‘have all suffered a violation of the same provision of law,’” DL, 713 F.3d at 126 (quoting Wal-Mart, 131
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S. Ct. at 2551)), that is, whether “the District has violated the IDEA as to each class member.” Id. at 128..
On remand, the district court certified four subclasses based on each step of the Child Find process. DL, 2013 WL 6913117, at *7 (“Each proposed subclass poses the question whether the District’s policies were adequate to fulfill a specific statutory obligation under the IDEA.”). Following the district court’s certification decision, defendants sought an interlocutory appeal under Fed. R. Civ. P. 23(f), but the Court of Appeals rejected the petition, finding that the defendants “ha[d] not adequately demonstrated that interlocutory review of the district court’s class certification decision is necessary or appropriate” and “ha[d] not shown that the class certification decision is ‘manifestly erroneous.’” Order, In re District of Columbia, No. 13-8009 (D.C. Cir. Jan. 30, 2014).
Plaintiffs contend that this case raises a number of “common” questions that satisfy both Wal-Mart and DL. (CC Mot. 21; see also 3d Am. Compl. ¶ 156.) The Court agrees. The gravamen of plaintiffs’ case is their contention that the District is violating the integration mandate and injuring each and every class member by virtue of its failure to implement an effective system of transition assistance.57 (See CC Mot. 23 (“this case hinges on [the District’s] failure to create and implement effective transition policies and practices to connect individuals who are eligible for and desirous of community-based long-term care services”).) Thus, plaintiffs’ claims raise the following common questions: (1) are there deficiencies in the District’s existing system of transition assistance? (2) if so, what are those deficiencies?58 and
57 The District’s argument that “transition assistance” is too amorphous a concept to constitute a “uniform practice or policy,” thus defeating typicality, is addressed below. See infra § II.B.3.a. 58 To prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies. For example, does the District in fact “fail[] to offer sufficient discharge planning” or “fail[] to inform and provide [nursing facility residents] with meaningful choices of
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(3) are the proven deficiencies causing unnecessary segregation? True or false, resolution of
these common contentions will generate common answers for the entire class and resolve issues
that are central (and potentially dispositive) to the validity of each plaintiff’s claim and the claims of the class as a whole.59
Although there are no post-Wal-Mart Olmstead cases in this Circuit, courts elsewhere
have distinguished Wal-Mart and found commonality. See, e.g., Kenneth R., 293 F.R.D. at 267
(“common questions susceptible to common answers” included “whether there is a systemic
deficiency in the availability of community-based services, and whether that deficiency follows
from the State’s policies and practices”); Lane v. Kitzhaber, 283 F.R.D. 587, 597 (D. Ore. 2012)
(“despite the individual dissimilarities among class members, commonality is satisfied where the
lawsuit challenges a system-wide practice or policy that affects all of the putative class
members” (internal quotations omitted)). Recognizing that “it may be a matter of degree, and
perhaps discretion, as to where the line should be drawn,” this Court agrees with the holdings in
Kenneth R. and Lane and concludes that plaintiffs in this case have identified at least one
common question “at a low enough level of generality (or high enough level of specificity) to
pass muster under Wal–Mart” and to satisfy the requirement of commonality. Kenneth R., 293 F.R.D. at 268.60
community-based long-term care alternatives to nursing facilities.” (3d Am. Compl. ¶ 156.) 59 Not all of the “common questions” identified by plaintiffs raise satisfy these requirements. For example, the question “[w]hether Defendant segregates Plaintiffs in nursing facilities in order to receive long-term care services, rather than providing those services in more integrated, community-based settings” (3d Am. Compl. ¶ 156) is really “nothing more than an allegation that class members ‘have all suffered a violation of the same provision of law’– namely the ‘integration mandate’ of the Americans with Disabilities Act.” (CC Opp. 18.) But the Court does not agree with the District that the transition assistance plaintiffs seek is “functionally identical” to the relief that was rejected by Wal-Mart and DL since plaintiffs purport not to be seeking individualized relief. 60 The District also challenges commonality based on plaintiffs’ lack of housing, arguing that
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3. Typicality (Rule 23(a)(3)) The third prerequisite for class certification is that “the claims or defenses of the represented parties are typical of the claims and defenses of the class.” Fed. R. Civ. P. 23(a)(3). The “typicality” requirement “ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart, 131 S. Ct. at 2550. “The typicality requirement aims at ensuring that the class representatives have suffered injuries in the same general fashion as absent class members.” Hardy v. District of Columbia, 283 F.R.D. 20, 24-25 (D.D.C. 2012) (internal quotations omitted). “The facts and claims of each class member do not have to be identical to support a finding of typicality,” Lightfoot v. District of Columbia, 246 F.R.D. 326, 338 (D.D.C. 2007), but the class representatives “must be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156 (internal quotations omitted); Pigford, 182 F.R.D. at 349 (typicality requirement “is satisfied if each class member’s claim arises from the same course of events that led to the claims of the representative parties and each class member makes similar legal arguments to prove the defendant’s liability”). Plaintiffs contend that the named plaintiffs claims are “typical” of the class as a whole because they have all “experienced the same unnecessary institutionalization and sustained the same injury resulting from the same failure of the [the District] to develop and implement an effective system of transition assistance.” (CC Mot. 32.) The District challenges plaintiffs’ claim of typicality on three grounds: (1) that plaintiffs have not identified a “specific
housing status operates to defeat commonality (and typicality) because it, rather than the lack of transition assistance, is the cause of plaintiffs’ segregation. (CC Opp. 21-22 (“the most prevalent obstacle preventing putative class members from leaving their nursing facilities is a lack of available, accessible, and affordable housing”).) However, as the Court has previously noted, the effect of a lack of housing is a question that cannot be decided at this stage.
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discriminatory practice” that has injured the named plaintiffs and the putative class in the same manner; (2) that several of the named plaintiffs do not meet the proposed class definition; and (3) that the District has unique defenses applicable to several of the named plaintiffs. (CC Opp. 2528.)
a. Same Manner of Injury According to the District, the lack of “effective . . . transition assistance” is too “amorphous” a concept to constitute a specific discriminatory practice that has injured class members in the same manner because the transition assistance required “necessarily will vary based upon the particular needs and circumstances of individual class members.”61 (CC Opp. 25.) While this question is not free from doubt, the Court is persuaded that the concept of a system of transition assistance is sufficiently definite to constitute a practice that could violate Olmstead’s integration mandate, if the lack of transition services contributes to the lack of placements of residents into community-based services. In the area of Olmstead litigation, “transition assistance” has been defined in a concrete manner. Even if the particulars change depending on the nature of the claim and the facts of an individual case, the key components of an effective system of transition assistance for individuals in nursing facilities or other institutional settings are: (1) individual assessments upon admission and periodically thereafter for all residents to determine interest in community-based services; (2) provision of accurate information about available community-based services and
61 There is no question that if the “specific discriminatory practice” of “lack of transition assistance” were defined any more narrowly, it is unlikely that named plaintiffs’ claims would be typical. For example, as the District points out, one of the things that plaintiffs include in their definition of transition assistance is “assistance with completing applications for. . . housing” (MTD Opp. 10), but as of June 2013 “10 of the 11 named Plaintiffs ha[d] successfully applied for subsidized housing.” (CC Opp. 25 (citing CC Opp. Ex. 19 (DCHA Housing Applications Status)).)
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eligibility requirements for those services; (3) discharge/transition planning that commences upon admission and includes a comprehensive written discharge/transition plans; (4) identification of what community-based services are needed and assistance in arranging for those services; (5) assistance in applying for and enrolling in available waivers or transition programs; and (6) identification of barriers to transition and assistance in overcoming those barriers to the extent possible (e.g., if housing is a barrier, providing assistance in applying for supported housing). See, e.g., Interim Settlement Agreement, Steward v. Perry, No. 5:10-cv-1025 (W.D. Tex. Aug. 19, 2013);; Order Entering Settlement Agreement, United States v. Delaware, No. 1:11-cv-0591 (D. Del. July 18, 2011); Class Action Settlement Agreement, Kenneth R., No. 1:12-cv-0053 (D.N.H. Feb. 12, 2014); Settlement Agreement, United States v. North Carolina, No. 5:12-cv-557 (E.D.N.C. Aug. 23, 2012); Amended Settlement Agreement,United States v. New York, No. 1:13-cv-4165 (E.D.N.Y. Mar. 17, 2014). Transition assistance has also been defined to include ensuring sufficient waiver capacity and increased transition funding. See, e.g., Order Amending and Entering Settlement Agreement, United States v. Georgia, No. 1:10-cv-249 (N.D. Ga. Oct. 29, 2010); Settlement Agreement as Final Order,United States v. Virginia, No. 3:12-cv-0059 (E.D. Va. Aug. 23, 2012). In addition, plaintiffs have alleged a number of concrete deficiencies in the District’s existing system (see 3d Am. Compl. ¶ 139; CC Mot. 4-9) which help to clarify what they conceive of as an “effective system of transition assistance.” Plaintiffs identify as deficiencies the lack of: (1) an effective Olmstead Plan; (2) a successful and appropriately-sized MFP program; (3) effective use of EPD Waiver slots; (4) adequate assistance with respect to obtaining necessary documentation, completing housing and other applications, tracking applications and keeping them up-to-date, arranging for community-based service providers, responding to offers of housing or EPD waiver slots, and visiting community living
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options prior to transitioning; (5) interagency coordination as to housing options; (6) the provision to residents of up-to-date, accurate information about community-based care options; and (7) appropriate and measurable transition goals. (CC Mot. 4-9.) Given this explication of deficiencies and relevant caselaw, the concept of transition assistance is sufficiently concrete to constitute a discriminatory practice that injures class members in the same manner.
b. Meeting the Class Definition The District next argues that two of the remaining named plaintiffs (McDonald and Foreman) are not “typical” of the putative class because each fails to meet the proposed class definition. (CC Opp. 26 (citing Virtue v. Int’l Brotherhood of Teamsters Retirement & Family Protection Plan, 292 F.R.D. 8, 13 (D.D.C. 2013) (“Inherent in Rule 23 is the requirement that the class representatives be members of the class.”). The Court does not agree. First, the District contends that McDonald does not satisfy the class definition because he does not have a “physical disability.” (CC Opp. 26 (“McDonald repeatedly conceded during his deposition that he does not have any physical disabilities or require[] assistance with any activities of daily living”) (citing McDonald Dep. 39-42, 74-76, Mar. 8, 2013).) However, McDonald’s testimony is not that clear. Although he initially answered no to the question whether he “consider[s] [him]self to have any physical disabilities, he also appeared to be confused by the question, stating that he “didn’t have to go to school to learn that stuff.” (McDonald Dep. 39-40.) In addition, his declaration states that he has a seizure disorder and mild dementia and needs help with his medications. (McDonald Decl. ¶¶ 9, 12; see also McDonald Dep. 113 (“I don’t know when I need any of that medication.”).) As for Foreman, the District asserts that he does not satisfy the class definition “due to the complexity of his medical needs,” which “cannot be met by the community-based [long-term care] services covered by the EPD Waiver and/or the Medicaid State Plan.” (CC Opp. 26 (citing Sarigol Decl. I ¶¶ 17-21).)
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Since the District made that argument, though, Foreman has in fact successfully transitioned to long-term care services in the community (Foreman Decl. ¶ 2, Oct. 22, 2013; Sarigol Decl. ¶ 21, Nov. 8, 2013 (“Sarigol Decl. II”)), belying the District’s contention that he required more services than are available. Moreover, even if Foreman had not yet transitioned, the record indicates that 24-hour care is available under either the EPD Waiver or the District’s Medicaid Plan’s personal care assistance benefit (see Sarigol 2013 Dep. 148; Sarigol 30(b)(6) Dep. 60-61; Iscandari Dep. 163-64), but that the problem for Foreman had been the need to locate an available provider. (Sarigol Decl. II ¶¶ 10-11.) The fact that Foreman needed assistance with identifying and securing providers would not exclude him from the class; to the contrary, such assistance is presumably part of the system of transition assistance that plaintiffs seek. Accordingly, the District has not demonstrated that either McDonald or Foreman fails to meet the class definition.
c. Unique Defenses The District’s final challenge to typicality is to assert that it has three “unique defenses” to the claims of several named plaintiffs. First, it claims that it has a unique defense to the claims of all the named plaintiffs who were offered the chance in January 2013 to participate in the EPD Waiver, but who failed to contact the District by June 2013 to begin the enrollment process. Second, as to Gray, it claims that he never sought a place on the EPD Waiver waitlist or attempted to access any community-based services. And, as to Dupree, it claims that he was discharged from the nursing facility with the help of DMH, not DHCF or ADRC. The critical question for the Court is not whether these defenses are legally viable, but rather, assuming they are supportable,62 whether they would “skew the focus of the litigation and create a danger that
62 As plaintiffs point out, there is evidence in the record that suggests that these defenses are not supportable. For example, there is evidence that the EPD Waiver office was badly run (Turnage
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absent class members will suffer [because] their representative is preoccupied with defenses
unique to it.” Meijer, Inc. v. Warner Chilcott Holdings Co. III, 246 F.R.D. 293, 302 (D.D.C.
2007). The Court does not foresee any such risk. Indeed, characterizing any of these defenses as
“unique” is somewhat misleading, as they likely apply to a number of potential class members.
Accordingly, the Court is not persuaded that the District has “unique defenses” that “destroy
typicality.”
4. Adequacy of Representation (Rule 23(a)(4))
The fourth Rule 23(a) requirement that is that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Two criteria for
Dep. Ex. 25 (letter from DC Council member Mary Cheh to Turnage alleging that office is “so poorly run, so poorly managed that we have eligible people who are not getting the money that is available”); Iscandari Dep. 76 (case management provider reported on 2/13/2012 that 10 of the 23 names she submitted had not made it to the waiting list); Smith Decl. ¶ 8 (“management of the EPD Waiver Program remains a mystery to those of us who try to enroll our frail clients”); that slot letters were incomprehensible (Smith Decl. ¶¶ 10 (describing waiver offer letter as “jargon-filled”); Turnage Dep. Ex. 25 (describing waiver offer letter as “such a collection of gobbledygook of bureaucratese that the person receiving it had absolutely no idea what it meant”); that DHCF was unresponsive to callers who did respond to the slot offer letters (Turnage Dep. Ex. 25; Smith Decl. ¶ 10 (“letter instructed recipients to call a phone number at Health Care Finance that led to a recording telling them to call one of three other phone numbers and to not leave a message”); and no evidence that EPD Waiver slots were in fact available. There is also evidence that Gray did not know he had the option of living in the community until plaintiffs’ counsel explained it to him (Gray Dep. 59, Apr. 29, 2013; Gray Decl. ¶ 10, Apr. 29, 2013 (“On February 6, 2012, I learned about this lawsuit and the option of living in the community and getting the services I need. No one had ever talked to me about that possibility before even though I am always telling anyone who will listen that I want to get out of here.”); was not aware of any MFP information sessions at his nursing facility because, despite his repeated requests for help with community transition to his nursing facility social workers, neither MFP nor the nursing facility staff informed him of his options (Gray Dep. 50); and would not have applied for the EPD Waiver in any event because he believes he needs only the daily Medicaid State Plan PCA services of eight hours or less. (Gray Dep. 68; Gray Decl. ¶ 14.) Finally, as previously discussed, even if Dupree ultimately received assistance from DMH, that does not mean that he was not eligible for and could not have benefitted from a system of transition assistance aimed at all nursing facility residents with physical disabilities, irrespective of whether a resident also has a mental health diagnosis. See supra n.48.
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determining the adequacy of representation are generally recognized: (1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997) (internal quotations omitted); see also Falcon, 457 U.S. at 157 n.13 (adequacy of representation focuses on “concerns about the competency of class counsel and conflicts of interest”); Newberg on Class Actions § 3:54 (“[T]he standard for adequacy splits into two prongs: adequacy of the proposed class representative and adequacy of the attorneys seeking appointment as class counsel.”). The District does not challenge the competency of counsel, but only challenges the adequacy of the named plaintiffs.
The District first argues that plaintiffs’ decision not to pursue monetary damages raises a potential conflict of interest with the putative class. On the contrary, it is well-established that damage claims are not barred by membership in a class seeking solely equitable relief. See Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C. Cir. 1983). That said, a plaintiff in a later suit might be barred by collateral estoppel or issue preclusion from contesting an issue of fact or law that is decided in the defendant’s favor. See Cooper v. Fed. Reserve Bank, 467 U.S. 867, 874 (1984) (“A judgment in favor of either side [in a class action] is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment.”) Here, though, there is no real conflict of interest, since the scope of the current litigation is limited to a systemic challenge, and the District has not identified any issues that if decided in its favor would preclude an individual Olmstead action for damages.
The District also argues that the individual circumstances of several plaintiffs (Collins, Gray, and Rivers) render them inadequate to represent the class, focusing on statements that
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suggest that they have limited legal knowledge about the facts or legal theories of the case or a limited understanding about class action generally and the role of a “class representative.” (CC Opp. 32-33.) However, Rule 23(a)(4) does not require either that the proposed class representatives have legal knowledge or a complete understanding of the representative’s role in class litigation. See, e.g., New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007) (“A class representative need only possess a minimal degree of knowledge necessary to meet the adequacy standard.” (internal quotations omitted)); Newberg on Class Actions § 3:67 (“lack of knowledge about the facts or legal theories of a particular case will usually not bar a finding that the proposed representative can adequately represent the class”); id. (“Adequacy is satisfied, though, if the plaintiff has some rudimentary knowledge of her role as a class representative and is committed to serving in that role in the litigation”). Moreover, given the circumstances of the named plaintiffs, it is unrealistic to expect that they understand the legal intricacies of class actions, which remain a mystery to many in the legal profession.
Accordingly, the Court concludes that plaintiffs have satisfied the adequacy of representation requirement.
5. Rule 23(b)(2) The final issue is whether plaintiffs satisfy Rule 23(b)(2), which provides that a class action “may be maintained” if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs’ claim is that the District has violated the Olmstead integration mandate by failing to implement an effective system of transition assistance, and they seek injunctive and declaratory relief to remedy that alleged failure. As recently explained by the Supreme Court in Wal-Mart,
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The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. 131 S. Ct. at 2557 (internal quotations and citations omitted). As numerous other courts have recognized, both before and after the Supreme Court’s decision in Wal-Mart, plaintiffs’ claim is precisely the type of claim that satisfies Rule 23(b)(2). First, the District’s alleged failure to implement an effective system of transition assistance is obviously an action or inaction that “can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. at 2557. Next, the Court has already determined that plaintiffs’ claim raises common questions that will generate common answers, and that these common answers will determine what, if any, injunctive relief plaintiffs are entitled to, satisfying the requirement that a single injunction “would provide relief to each member of the class.” See id.; see, e.g., Lane, 283 F.R.D. at 602 (Rule 23(b)(2) satisfied where plaintiffs seek an injunction “that describes each of the activities that must be undertaken to modify the defendants’ employment service system, including infrastructure modifications, service definitions, provider development, staff training, family education, and interagency coordination”). Although particular aspects of the relief that plaintiffs seek may exceed the relief that the Court would order even if plaintiffs were to prevail on the merits, other elements of the relief sought may well be warranted if plaintiffs prove that the deficiencies in the District’s system of transition assistance have caused their injuries. For purposes of satisfying Rule 23(b)(2), it is sufficient that plaintiffs have proffered evidence of systemic deficiencies in the District’s system of transition assistance and that those deficiencies appear to be affecting the
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class. See, e.g., Kenneth R., 293 F.R.D. at 270-71 (Rule 23(b)(2) satisfied where plaintiffs “submitted evidence to support their allegation that a systemic deficiency in the State’s community-based mental health services system affects the class”); M.D. v. Perry, 675 F.3d 832, 847-48 (5th Cir. 2012) (“class claims could conceivably be based on an allegation that the State engages in a pattern or practice of agency action or inaction—including a failure to correct a structural deficiency within the agency, such as insufficient staffing—with respect to the class, so long as declaratory or injunctive relief settling the legality of the [State’s] behavior with respect to the class as a whole is appropriate”); M.D. v. Perry, 294 F.R.D. at 47 (“The Court need not, at this stage, determine what remedy Plaintiffs would be entitled to if they prevailed on the merits of their claim. Rather, the Court must determine that the Plaintiffs’ claim is one that is susceptible to common, specific relief.”). The Court’s conclusion is “consistent with the intent of the drafters of Rule 23(b)(2), who explicitly endorsed its use in cases such as this that challenge widespread illegal practices because the class members are often ‘incapable of specific enumeration.’” DL, 2013 WL 6913117, at *12 (quoting Adv. Comm. Notes to Rule 23). Finally, plaintiffs have repeatedly assured the Court that they are not seeking individualized relief, and thus this is not a case where “each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 131 S. Ct. at 2557.
CONCLUSION As a district court in New Hampshire recently noted in a similar case: Reasonable minds may of course differ as to whether the traditional approach taken in ADA integration cases (or related disability cases) of certifying broad classes of persons with different specific disabilities, needs, and preferences (an approach taken both before and after Wal–Mart), is in tension with Wal–Mart’s recent procedural commands.
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Kenneth R., 293 F.R.D. at 271. But this Court agrees with that court’s conclusion that plaintiffs
in an Olmstead case can “meet Wal-Mart’s demands” where they
have defined the class more narrowly than is usually done in ADA integration cases; their class claims are limited to parallel claims under the ADA and RA; they challenge alleged deficiencies related to a discrete set or class of services; and they seek a single declaration or injunction aimed at correcting a systemic discriminatory imbalance (not mini-injunctions for each class member . . . .
Id.
Plaintiffs have met this standard, and therefore, their motion for class certification, with
minor modifications to the proposed class definition, will be granted and the District’s motion to
dismiss the third amended complaint will be denied. A separate Order accompanies this
Memorandum Opinion.

Date: March 29, 2014

/s/ ELLEN SEGAL HUVELLE United States District Judge

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 Case 1:10-cv-02250-ESH Document 162 Filed 09/10/15 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IVY BROWN Transitions Healthcare Capitol City 2425 25th Street SE Washington, DC 20020;
DONALD DUPREE Joye Assisted Living 6417 Kansas Avenue NE Washington, DC 20012;
ROY FOREMAN 1845 Harvard Street NW Washington, DC 20009;
LARRY MCDONALD Unique Residential Care Center 901 First Street NW Washington, DC 20001;
JAMES BUMPASS United Medical Center Nursing Facility 1310 Southern Avenue SE Washington, DC 20032;
TANITA SANDERS Transitions Healthcare Capitol City 2425 25th Street SE Washington, DC 20020;
DENISE RIVERS United Medical Center Nursing Facility 1310 Southern Avenue SE Washington, DC 20032;
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PLAINTIFFS’ ) FOURTH AMENDED COMPLAINT ) Civil Action No. 1:10-cv-02250 (ESH) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:10-cv-02250-ESH Document 162 Filed 09/10/15 Page 2 of 33

)

DISTRICT OF COLUMBIA, a municipal

)

Corporation,

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)

Defendant.

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FOURTH AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Federal law requires that the District of Columbia provide services to people with

disabilities in the most integrated setting appropriate to their needs. But the District has failed to

comply with this obligation, leaving an estimated 500 to 2,900 people with disabilities

unnecessarily institutionalized in nursing facilities, segregated and isolated from their families

and friends. These individuals desperately want to return to their communities and could do so if

the District were to comply with federal law.

This class action therefore seeks injunctive and declaratory relief to require the District of

Columbia to comply with its long-standing, federally-mandated obligations and prohibit its

unlawful practice of unnecessarily segregating people with physical disabilities in nursing

facilities in order to access the long-term care services they need. This class, which includes each

of the Named Plaintiffs, requires a District-wide common system of transition services to

connect its members with community-based supports and long-term care services.

PRELIMINARY STATEMENT

1. Plaintiffs are the named individuals and a class of similarly-situated individuals

with physical disabilities who desperately desire the freedom to live in their community but

instead remain institutionalized in nursing facilities against their will. Plaintiffs could be served

in community-integrated settings, but remain – and likely will continue to remain – in nursing

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facilities for years because Defendant provides few opportunities, if any, for Plaintiffs to obtain long-term care services in more integrated settings.
2. Defendant, the District of Columbia, through its Mayor and the officials who plan, oversee, fund, and regulate services, programs, and activities for persons with disabilities, has unnecessarily and inappropriately institutionalized Plaintiffs in nursing facilities despite federal law requiring that Defendant honor the class members’ desires and abilities to live in more integrated settings in the community with appropriate long-term care services and supports.
3. Defendant is in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., because it unlawfully discriminates against Plaintiffs by institutionalizing them in nursing facilities and isolating them from their communities.
4. Title II of the ADA prohibits discrimination against individuals with disabilities. In enacting the ADA, Congress found that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation.” 42 U.S.C. § 12101(a)(5). Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The United States Department of Justice promulgated regulations under Title II requiring that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis added).
5. Section 504 of the Rehabilitation Act provides that no person with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied
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the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Regulations implementing Section 504 require that a public entity administer programs, services, and activities in “the most integrated setting appropriate” to the needs of individuals with disabilities. 28 C.F.R. § 41.51(d).
6. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that the unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. The Court concluded that state and local governments may be held liable for failing to serve people with disabilities in the most integrated settings appropriate to their needs.
7. Despite the passage of sixteen years since the decision in Olmstead, Defendant continues to fail to facilitate access to community-based long-term care services and supports for Plaintiffs in the most integrated setting appropriate to their needs for assistance with activities of daily living (e.g., bathing, dressing, toileting, mobility, eating) and instrumental activities of daily living (e.g., grocery shopping, meal preparation, laundry, medication management).
8. Because of Defendant’s failure to fund or otherwise make available sufficient community-based alternatives, individuals with physical disabilities often have nowhere to go but nursing facilities.
9. Defendant’s programs and activities for persons with physical disabilities systematically deny or ignore Plaintiffs’ choices and preferences for integrated community-based long-term care, leaving them to languish in institutional nursing facilities even though appropriate community-based long-term care services and settings exist that could be made available at the same or even lower cost.
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10. Defendant is able to appropriately discharge Plaintiffs with community-based long-term care services.
11. Plaintiffs are needlessly segregated from their families, friends, and community life.
12. Plaintiffs’ plight is shared by many. According to federal and local data, when offered a choice between community and nursing facility-based care, more than 500 District of Columbia nursing facility residents would choose to receive long-term care services in more integrated settings in the community instead of being forced to remain in a nursing facility. Based on local data, 84% of individuals screened are eligible to live in the community with the existing network of community-based long-term care services.
13. Upon information and belief, many more nursing facility residents would choose to live in more integrated settings in the community if they were informed about communitybased options to assist them with their activities of daily living (e.g., bathing, dressing, toileting, mobility, eating), and instrumental activities of daily living (e.g., meal preparation, grocery shopping, laundry, housekeeping).
14. Plaintiffs bring this action to compel Defendant to comply with its federal legal obligations.
JURISDICTION 15. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983. At all times relevant to this action, Defendant has acted under color of state law.
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16. Plaintiffs’ claims for violations of Title II of the ADA, 42 U.S.C. §§ 12131 and 12132 et seq., are asserted against the District of Columbia, a “State or local government” as defined by the statute.
17. Plaintiffs’ claims for violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., are asserted against the District of Columbia, a “State or local government” as defined by the statute.
VENUE 18. Venue lies in the District of Columbia pursuant to 28 U.S.C. § 1391(b)(1)-(2) because the Defendant is the District of Columbia, and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District.
DEFENDANT 19. Defendant District of Columbia is responsible for operating its programs, services, and activities in conformity with the ADA and Section 504 of the Rehabilitation Act. In light of the violations by its governmental agencies individually and collectively, the District of Columbia is sued under the Rehabilitation Act and the ADA. 20. At all times relevant to this Complaint, Defendant knew or should have known of the policies, practices, acts, and conditions alleged herein.
PLAINTIFFS All Plaintiffs 21. Plaintiffs are all District of Columbia residents with physical disabilities that substantially limit their ability to perform major life activities. They are also regarded by Defendant as having such impairments, and therefore are individuals with disabilities for purposes of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20).
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22. Plaintiffs are all currently housed in nursing facilities and their care is funded by the District.
23. All Plaintiffs could be served in the community through the long-term care services Defendant already has available.
24. Although residing in the community with long-term care services is the most integrated setting where the Plaintiffs’ needs can be met, Defendant has offered them personal care and long-term care services only in a nursing facility setting.
25. All Plaintiffs want to leave the nursing facilities in which they reside, and they could do so with appropriate long-term care services and supports.
The Named Plaintiffs Plaintiff Ivy Brown 26. Plaintiff Ivy Brown is a fifty-nine year old woman who has resided at Transitions Healthcare Capitol City since August 2013. Ms. Brown was admitted to the nursing facility after being hospitalized when she had a stroke in April 2013. Prior to her stroke, she lived in the community with her mother. 27. Ms. Brown is diagnosed with hyperlipidemia, hypertension, morbid obesity, obstructive sleep apnea, and has a history of malignant neoplasm. She uses a wheelchair and needs assistance getting in and out of bed, bathing, dressing, toileting, managing her medications, and housekeeping. Ms. Brown does not require assistance feeding herself. 28. Ms. Brown could live in the community with appropriate health care and personal care assistance services and supports. She has been determined appropriate for community placement.
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29. Ms. Brown has told nursing facility staff and the District that she wants to leave the nursing facility and return to the community. Ms. Brown, with the assistance of her nursing facility social worker, was referred to the ADRC and MFP on several occasions since 2013. She was entered into the 2015 MFP lottery pool but received a notice that she was not selected. Ms. Brown has not received transition assistance from Defendant. She continues to express her desire to leave the nursing facility, to live in wheelchair-accessible housing in the community, attend church, and continue to pursue her leisurely activities independently.
Plaintiff Donald Dupree 30. Plaintiff Donald Dupree is a fifty-one year old man who resided at Washington Nursing Facility from June 2006 until his discharge in late August 2012. He was initially admitted for post-surgery recovery after he had a brain tumor removed. 31. Mr. Dupree has been diagnosed with a cerebellopointe angle (CPA) tumor and schizophrenia. His nursing facility records indicate that he requires assistance with the following activities of daily living: medication management, bathing, meal preparation, overall mobility, money management, and housekeeping. 32. Mr. Dupree is capable of living independently in the community with appropriate health care, personal care assistance, and residential supports. He has been determined by health care professionals to be appropriate for community placement. 33. Mr. Dupree wanted to live in the community. Dr. Orit Simhoni is his courtappointed guardian. She supports his desire to live in the community and located a community placement for him and arranged for him to get the services he needed. 34. Mr. Dupree was discharged from Washington Nursing Facility to an assisted living facility on August 29, 2012.
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35. Mr. Dupree did not start receiving his home health services until September 8, 2012.
36. On September 13, 2012, he was assigned to an Assertive Case Management (ACT) team for case management services.
37. Mr. Dupree began day program services on September 11, 2012. Mr. Dupree was briefly hospitalized in the winter of 2013 and in June 2013.
38. Mr. Dupree lives in fear that he may be forced to return to a nursing facility in the future should he require even short-term hospitalization.
Plaintiff Roy Foreman 39. Plaintiff Roy Foreman is a seventy year old man who resided at Washington Center for Aging Services until his discharge to the community on September 25, 2013. 41. Mr. Foreman was admitted to Washington Center for Aging Services in 2006 after sustaining a fall at home that led to a spinal cord injury resulting in paraplegia. He has a history of strokes and is also diagnosed with acute respiratory failure, decubitus ulcers, diabetes, and has a colostomy. 40. Mr. Foreman lives in a wheelchair-accessible public housing apartment in Northwest DC. He receives health care services under DC Medicaid and long-term care services under the Medicaid Waiver Program for People who are Elderly and/or have Physical Disabilities (EPD Waiver Program) from the Medstar Medical Housecalls Program. 41. Mr. Foreman lives in the community with appropriate services and supports to help him with transferring in and out of his wheelchair, bathing, dressing, bowel and bladder care, grocery shopping, laundry, and housekeeping. He also receives nurse visits for medication management, colostomy and wound care.
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42. He has been determined by health care professionals to be appropriate for community placement.
43. Mr. Foreman has maintained a strong preference to live independently in the community and has consistently asked for transition assistance at the nursing facility and the hospitals to which he was admitted subsequently. The District failed to provide Mr. Foreman with transition assistance to access long-term home and community based services. Prior to his discharge from the nursing facility, the DC Housing Authority had offered Mr. Foreman three wheelchair-accessible apartments but failed to assist him to access the Medicaid Waiver for People who are Elderly or have Physical Disabilities (EPD Waiver).
44. Due to his chronic conditions, Mr. Foreman has been hospitalized approximately six times since his discharge from the nursing facility.
45. Mr. Foreman lives in fear that he may be forced to return to a nursing facility in the future should he require even short-term hospitalization.
Plaintiff Larry McDonald 46. Plaintiff Larry McDonald is a sixty-one year old man who has resided at Unique Residential Care Center since September 2006 when he was first admitted for a seizure that lasted three days. 47. Mr. McDonald is diagnosed with a seizure disorder, hypertension, and dementia. His nursing facility records indicate that he requires assistance with medication management, bathing, and dressing. Based on the level of his needs, Defendant has recertified Mr. McDonald for nursing facility care. 48. Mr. McDonald could live independently in the community, with either a family member or on his own with appropriate health care, personal care, and residential supports. He
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needs help with managing medications, meal preparation, getting to appointments, housekeeping, counseling, sobriety supports and finding community doctors and specialists.
49. He has been determined by health care professionals to be appropriate for community placement.
50. Mr. McDonald has family with whom he wants to spend time in the community, and he prefers to live in the community. He told his social worker and other staff at the nursing facility that he wants to move into the community.
51. In the summer of 2011, MFP staff visited Mr. McDonald and found him eligible for MFP assistance. In 2012 and again in 2014, he was referred by his nursing facility social worker to the ADRC in hopes that he would receive transition assistance. .
52. Mr. McDonald applied for public housing in June 2011. 53. Mr. McDonald has not received further transition assistance from Defendant to help him move back to the community. He has not received any notice regarding his MFP status. Plaintiff James Bumpass 54. Plaintiff James Bumpass is sixty-one years old. He has resided at United Medical Center (UMC) since November 7, 2012. 55. Mr. Bumpass has physical disabilities due to a toe amputation and neuropathy, secondary to diabetes. He has also been diagnosed with hyperlipidemia, anxiety, depression, gastritis, gastroparesis, incontinence due to neurogenic bladder, and cataracts. 56. Mr. Bumpass experiences intense pain in his legs; he is unsteady and primarily uses a wheelchair to move around. He needs assistance with transferring, bathing, using the bathroom, managing medications and mobility.
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57. Mr. Bumpass has been requesting to leave the nursing facility at least since 2013. He told the nursing facility social workers that he would like to leave. He has been deemed eligible to live in the community. He is not aware of his status with MFP. To date, he does not believe anyone from the District of Columbia is providing the transition assistance he needs to move out.
58. Mr. Bumpass would like to leave the nursing facility and live by himself in the community, as he has done the majority of his life.
Plaintiff Tanita Sanders 59. Plaintiff Tanita Sanders is a thirty-four year old woman. She has resided at Transitions Healthcare Capitol City since March 1, 2013. Prior to her admission, she resided in the community with her four children. 60. Ms. Sanders has physical disabilities due to a stroke which resulted in paralysis of her left side. She also has a history of seizure disorder, diabetes, left hip and leg pain, pulmonary embolism, and obesity. 61. Ms. Sanders uses a motorized wheelchair and needs assistance with bathing, dressing, toileting, transferring, and overall mobility. 62. Ms. Sanders has expressed her desire to leave the facility and transition back to the community to her social worker and the staff of District of Columbia since 2013. 63. She has been deemed eligible to live in the community. Her family and social worker at the nursing facility support her desire to return to the community. . 64. Ms. Sanders’ nursing facility social worker referred her to the ADRC in May 2013 for transition assistance. She was entered into the March 2015 MFP lottery pool but was not selected. Ms. Sanders continues to express her strong desire to leave the facility and live with
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her children in a wheelchair- accessible apartment. No one from DC government has provided her with the assistance she needs to move back to the community with the long-term care services she needs.
65. Ms. Sanders knows other residents who are interested in transitioning back to the community.
Plaintiff Denise Rivers 66. Plaintiff Denise Rivers is fifty three years old. She has resided at the nursing facility at United Medical Center (UMC) since June 22, 2011. 67. Ms. Rivers has physical disabilities due to a blood vessel that burst in her leg which led to surgery. She also has hepatitis C, diabetes, and osteoarthritis. Some of her osteoarthritis symptoms include contracture of her joints, joint pain, inflammation, and muscle weakness. Ms. Rivers uses a wheelchair to get around. 68. Ms. Rivers needs assistance with bathing, getting dressed, using the bathroom, medication management, mobility, and meal preparation. She can transfer independently in and out of her bed and wheelchair, but due to limited mobility, needs assistance with bathing and dressing. With that help, she is capable of independent living. 69. UMC is housed within a hospital; it is sterile and nothing like a home. Ms. Rivers has no privacy and no control over her living space. 70. Nursing facility health care professionals have determined that she meets the EPD Waiver level of care requirements. 71. Ms. Rivers, through her nursing facility social worker, repeatedly requested assistance from MFP because she meets the required level of care for both the EPD Waiver and
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MFP. To date, no one from the DC government, including MFP, has provided the assistance Ms. Rivers needs to move back to the community.
72. Ms. Rivers has expressed her desire to leave the nursing facility and live with her family in an apartment.
GENERAL ALLEGATIONS 73. Individuals with long-term care needs requiring assistance with activities of daily living (bathing, dressing, mobility, toileting, and eating) are eligible to receive long-term care services from the District of Columbia. 74. Defendant funds these services largely through the Medicaid program, a joint federal and state program that provides medically-necessary services to low-income persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. 75. Approximately 83 percent of D.C. nursing facility residents are D.C. Medicaid recipients. 76. The District receives 70 cents in federal reimbursement for every dollar it spends on Medicaid services. 77. The District also participates in the federal MFP Program designed to provide federal funds to state Medicaid programs to transition people into community-based settings. The District would receive 85 cents in federal Medicaid reimbursement for each dollar it spends for services provided to people who transition from nursing facilities to the community under the MFP Program. 78. Defendant provides nursing facility-based services through privately-owned and operated nursing facilities – many of which are for-profit businesses – and through nursing facilities (such as Unique Residential and a skilled nursing facility unit at United Medical
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Center) that are owned by the District and operated through leasing arrangements or contracts with nursing facility management companies.
79. There are approximately 2,700 beds in 19 skilled nursing facilities in the District of Columbia, with an occupancy rate of over 95 percent.
80. Approximately 200 additional D.C. residents currently are placed in 31 out-ofstate nursing facilities; D.C. Medicaid continues to fund their care.
81. The District also provides in-home and community-based long-term care services to people with disabilities under the Medicaid program.
82. People with disabilities are entitled to personal care aide services in their homes under the District of Columbia’s Medicaid State Plan and the Medicaid Waiver Programs for those who are Elderly or have Physical Disabilities (“EPD Waiver”). The District’s EPD Waiver program had a fixed number of slots (4,278 ) for beneficiaries for 2014.The District’s Medicaid EPD Waiver Program provides up to sixteen hours of daily home and community-based longterm care services for adults with physical disabilities, including personal care services. The Medicaid State Plan provides up to eight hours of daily personal care services as well as skilled nursing services. The Department on Aging also provides home health care assistance to individuals with physical disabilities.
83. Under these options, people with disabilities who would otherwise qualify for nursing facility services are able to live independently with long-term care community-based supports and services, including personal care services, personal emergency response services, and other long-term care services otherwise found in nursing facilities.
84. Defendant licenses, certifies, or contracts with private home health agencies and community support agencies to provide these long-term care services in the community.
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Nursing Facilities Are Institutions 85. Nursing facilities are, for the most part, neither integrated into nor part of the communities in which their residents live. They are not real homes or even home-like. They are segregated institutions housing large numbers of unrelated people, both elderly and non-elderly, in congregate settings. Many nursing facilities provide only beds, meals, and sparse rehabilitative services. 86. Many nursing facilities resemble hospitals and secure facilities. For example, Unique Residential is surrounded by a security fence with an electronic lock and requires most residents to have escorts and special permission to leave the facility even for brief periods of time. Some D.C. nursing facilities have curfews, and, at times, security guards posted to monitor people entering and leaving the facilities. Inside, many facilities have nurses’ stations and are filled with the hard sterile surfaces normally found in medical facilities. 87. Often there is little, if any, privacy for nursing facility residents. Often residents must share rooms and bathrooms with other residents they did not know previously and with whom they did not choose to live; their beds are separated by only a curtain. In some facilities, such as Unique Residential, entire wards of individuals share bathrooms and shower facilities. Often residents have minimal space to call their own or to use to safeguard their personal belongings, and many residents report that their personal property has been stolen or damaged. Nursing facility residents often lack their own telephones and are frequently restricted in the use of the nursing facility telephones, which lack privacy. Medications are often dispensed publicly at specific times, with residents waiting in line. 88. Nursing facilities often place many limitations on residents’ autonomy. In many facilities, residents are subjected to a highly regimented lifestyle characterized by restrictive
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rules and policies. Daily activities are often conducted in a central location in the facility, in the company of large numbers of other individuals with disabilities. Residents may sit idle for most of the day, with little or nothing to do. Many nursing facilities offer few places for residents to gather or meet with visitors.
89. Often residents have limited access to the community; it is difficult for most, and impossible for many, to participate in community activities offered by churches, clubs, or other organizations.
Plaintiffs Desire and Are Able to Live in the Community 90. The named plaintiffs identified above (the “Named Plaintiffs”) and all class members (together with the Named Plaintiffs, the “Plaintiffs”) prefer to live in the community with appropriate long-term care services, rather than reside in nursing facilities. 91. All Plaintiffs would prefer to live with family, in their own apartments or homes, or in permanent supported housing – which are all more integrated settings appropriate to their needs than the nursing facilities in which they currently reside. The District of Columbia-based nursing facilities’ self-reported Medicaid data reports that, in the fourth quarter of 2013, 27.50% of 2182 D.C. nursing facility residents surveyed (approximately 600 individuals) “expected to be discharged to the community” or otherwise indicated that they wanted to live in the community instead of a nursing facility. In its Operational Protocol, the MFP Program acknowledges the demand by 580 people with physical disabilities in nursing facilities for community-based longterm care services. 92. This data vastly undercounts the preferences of nursing facility residents because of their lack of awareness of community-based long-term care options.
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93. Many of the class members may need education and support in order to make an informed choice about whether to receive long-term care services in nursing facilities or in the community in more integrated settings.
94. All of the Plaintiffs could be served safely and appropriately in the community if Defendant facilitated their access to community-based, long-term care services and supports. These options would afford far more choice, freedom, and privacy, as well as the opportunity to maintain regular family relationships and interact with and form friendships with a variety of people. With appropriate supports and services, persons with disabilities of all ages and levels of disability can successfully move into and remain in the community and live more independently.
95. All of the Plaintiffs desire and are capable of living in a community-based setting with appropriate services and supports.
Defendant Continues to Violate Title II of the ADA and Olmstead 96. Despite Plaintiffs’ desire and ability to live independently in the community with the services they need, Defendant has failed to take any meaningful action to ensure that Plaintiffs receive services in the most integrated setting appropriate to their needs. 97. Sixteen years after the United States Supreme Court decision in Olmstead, the District of Columbia still does not have a comprehensive, effectively-working system through which it can implement the requirements described in that decision. The essential components of an effectively-working integration plan which are lacking in the District’s plan are: targets for transitioning sufficient numbers of people with disabilities from nursing facilities within specified time frames; demonstrable progress toward meeting those transition targets; interagency coordination designed to facilitate transitions of people from nursing facilities, and
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mechanisms for sustaining the transitions systems and community-based long-term care alternatives to nursing facility placement through resource allocation and systemic reform.
98. Instead of providing community-based long-term care services, Defendant relies heavily on nursing facilities to provide long-term care services to individuals with disabilities.
99. Defendant’s services, programs, and activities for persons with physical disabilities that require assistance with activities of daily living leave many hundreds of people languishing and isolated in nursing facilities. Defendant’s actions and inactions have resulted in the needless isolation, segregation, and institutionalization of individuals with disabilities in nursing facilities.
100. Many of the individuals to whom Defendant currently provides community-based long-term care services have physical conditions and functional capacities that are the same as, or are similar to, the class members currently living in nursing facilities.
101. The District of Columbia has determined that all of the Plaintiffs are eligible for a nursing facility “level of care,” which means that it has determined that their disabilities are significant enough to require the level of services provided in a nursing facility. The same “level of care” is used to determine eligibility for EPD waiver services and for participation in the MFP Program.
102. Some Plaintiffs may subsequently require a reduced level of service below the nursing facility level of care because their condition has improved, and those Plaintiffs typically are still eligible for long-term care assistance in the community through the District’s State Plan Personal Care Assistance (PCA) program.
103. The Medicaid-funded personal care services all Plaintiffs receive in nursing facilities could be provided in the community at the same or lower cost.
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104. The District of Columbia’s 2013 average annual expenditure for nursing facility
care was $153,842 per year per person, and the average annual cost per person in the EPD
Waiver Program in the community was approximately $54,704.
105. Among other things, Defendant fails to:
i. Assure that individuals with physical disabilities receive long-term care services in the most integrated community-based setting appropriate to their needs;
ii. Develop and implement a comprehensive and effectively working integration plan with measurable targets for transitioning sufficient numbers of Plaintiffs from nursing facilities to the community within specified time frames, demonstrate progress toward meeting those targets, and sustainability of the transition process and community-based service infrastructure through resource allocation and systemic reform that rebalances the long-term care service system. The integration plan must guide the District’s inter-agency actions to: inform Plaintiffs about community-based alternatives, identifies Plaintiffs prefer to get their long-term care services in the community, and help them move to the community with the long-term care services and supports they need;
iii. Ensure capacity in its Medicaid long-term care programs and services under the EPD Waiver Program, the State Plan Personal Care Assistance Program, Money Follows the Person Program, and programs for senior citizens and adults with physical disabilities to enable named Plaintiffs and class members to transition from nursing facilities to the community with these long-term care services and case management assistance;
iv. Ensure sufficient staffing to inform individuals with physical disabilities in nursing facilities about available long-term care services in the community and assess the community eligibility of individuals with physical disabilities in nursing facilities and provide transition assistance, i.e., assist named Plaintiffs and class members to obtain identification documents, complete housing applications, and arrange long-term care services upon discharge from the nursing facilities;
v. Provide adequate and appropriate community-based long-term care services to assist Plaintiffs with their activities of daily living (bathing, dressing, mobility, toileting, eating) and instrumental activities of daily living (e.g., meal preparation, grocery shopping, laundry), and skilled nursing needs;
vi. Assure that people with physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them prior to, and upon
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admission of the availability of integrated, community-based options for long-term care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community;
vii. Assure that individuals with physical disabilities residing in nursing facilities are periodically asked about their interest in, assessed for, and where appropriate, transitioned from nursing facilities to community-based long-term care services;
viii. Ensure that all nursing facilities that receive DC Medicaid funding inform individuals with physical disabilities about community-based alternatives and begin discharge planning upon admission to assist Plaintiffs to transition back to the community from nursing facilities;
ix. Provide clear and accurate information to Plaintiffs regarding their eligibility for community-based long-term care services, the process for accessing these services, and assisting them to apply for the services;
x. Provide information, transitional assistance, and referrals to facilitate Plaintiffs’ access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and
xi. Take adequate steps to preserve Plaintiffs’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
Defendant’s Policies Undermine Olmstead’s Requirements
106. Defendant administers its Medicaid Program and services for adults with physical
disabilities in a manner that perpetuates the segregation of persons with physical disabilities. All
Named Plaintiffs and class members are subject to the District’s policy and practice that
determines their level-of-need for assistance with activities of daily living (e.g., bathing,
dressing, toileting, mobility, eating) and instrumental activities of daily living (e.g., meal
preparation, grocery shopping, laundry, housekeeping). The District’s level-of-need
determination qualifies all Plaintiffs to receive long-term care services either in nursing facilities
or in the community under the Medicaid Waiver Program for People Who are Elderly and/or
have Physical Disabilities (EPD Waiver). The District’s methods of administration arbitrarily 21

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limit access to integrated, long-term community support services by persons with physical disabilities in nursing facilities. As a result of the District’s unbalanced long-term care system, community-based long-term care services are unavailable to many people with disabilities who need and want them, effectively compelling their institutionalization in nursing facilities.
107. In 2006, the District was approved to receive over $26 million in federal funds through a five-year grant to support the transition of 1,100 people from nursing facilities and other institutions to the community to live independently with the services they need. The grant period was extended through 2016. Now in its ninth year of the grant period, the District has transitioned only a tiny fraction of the original targeted number of persons from nursing facilities under the grant.
108. Olmstead’s integration mandate may be excused only where a state demonstrates that compliance with the mandate would result in a “fundamental alteration” of the state’s services and programs. Olmstead, 527 U.S. at 603. This defense is not available, however, to states that have not developed an effectively working plan to comply with the Olmstead mandate. Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 158-59 (3d Cir. 2005).
109. In 2007, Defendant began work on a written “Olmstead Plan” which was not released until 2012, thirteen years after the Supreme Court’s landmark decision.
110. Defendant’s plan is not a comprehensive or effectively working integration plan because, among other things, it fails to establish or implement inter-agency mechanisms to transition Plaintiffs from nursing facilities into more integrated community settings in sufficient numbers within specific time frames. The plan also lacks evidence of sustainability demonstrated through allocation of resources and system reform to rebalance the long-term care system away
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from its reliance on institutional nursing facility care rather than community-based services. Furthermore, the plan contains no measurable objectives beyond 2012.
111. The fact that the District of Columbia’s system of long-term care does not operate effectively to meet its obligations under Olmstead and the ADA is shown most dramatically by the Defendant’s failure to make demonstrable progress toward meeting the very low numeric targets the agencies that serve people in nursing facilities have committed to meet.
112. The District of Columbia’s Department of Health Care Finance Administration (“DHCF”) is responsible for administering the District of Columbia’s long-term care system for people with disabilities. See D.C. Code § 7-771.07(9). DHCF must “maximize federal assistance,” “[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars,” and “ensure coordinated health-care access and delivery for publicly funded health-care services.” D.C. Code § 7-771.07(3)-(5). DHCF also is “the single state agency” that administers the District of Columbia’s Medicaid program. See 42 U.S.C. § 1396a(a)(5); D.C. Code § 7-771.07(1).
113. Defendant’s violations of its federal obligations worsened in 2011 to 2012 due to DHCF’s proposal to reduce home-based personal care aide services under the Medicaid State Plan from 1,040 hours per year per person, with additional hours available pursuant to physicians’ orders and DHCF prior authorization, to 520 hours per year per person, with no provision for additional hours. As a result of these proposed cuts, the District advised approximately 2,900 Medicaid beneficiaries who had not previously been serviced under the EPD waiver to apply for slots under that waiver in order to maintain their services. The addition of several hundred Medicaid beneficiaries in the community to the EPD Waiver program exhausted the 4,000 allotted community-based EPD Waiver slots. In August 2011, the District
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established a waiting list for participation in the EPD Waiver Program and Plaintiffs and other class members seeking placements out of nursing facilities are subject to this waiting list. But the District fails to inform or assist people with physical disabilities in nursing facilities to get on the EPD Waiver waiting list. The District suspended the EPD Waiver waiting list on March 27, 2014.
114. On May 7, 2010, counsel for Named Plaintiffs sent a letter to former District of Columbia Mayor Adrian Fenty and former Attorney General Peter Nickles detailing the violations of Plaintiffs’ rights under the integration mandate of Title II of the ADA and the Supreme Court’s ruling in Olmstead. The letter cited policies and practices such as the District’s “failure to inform nursing home residents about the availability of integrated community-based options for mental health and other health care” and the lack of a “comprehensive and effective plan for identifying individuals with mental or physical disabilities who are needlessly in nursing facilities and for helping them move to more integrated settings.” The letter urged former Mayor Fenty “to take strong and swift action to enable people with disabilities in nursing facilities to receive services in integrated settings.”
115. Six months before the present lawsuit was filed, on July 13, 2010, and July 27, 2010, Plaintiffs’ counsel met with former Mayor Fenty’s designees, including former Attorney General Peter Nickles and designees from DMH, regarding Plaintiffs’ May 7th letter.
116. During 2012, the parties engaged in mediation for over three months in an effort to negotiate a settlement.
117. Defendant has not resolved Plaintiffs’ grievances.
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CLASS ACTION ALLEGATIONS
118. Pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and
Local Rule 23.1, the Named Plaintiffs bring this action for prospective relief on behalf of
themselves and all other persons similarly situated.
119. In March 2014, the U.S. District Court for the District of Columbia certified the
Plaintiff class under Fed. R. Civ. P. 23(b)(2). In June 2015, the U.S. Court of Appeals for the
D.C. Circuit dismissed Defendant’s petition that sought an interlocutory appeal of the District
Court’s class certification.
120. The class consists of:
All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.
121. Numerosity: The Plaintiff class is so numerous that joinder of all its members is
impracticable. The exact number of individuals in the class is not known but is believed to be
between 500 and 2,900 individuals.
122. Joinder is also impracticable because class members lack the knowledge and
financial means to maintain individual actions.
123. Commonality: There are questions of law or fact that are common to all the
Plaintiffs, including:
a. Whether Defendant segregates Plaintiffs in nursing facilities in order to receive long-term care services, rather than providing those services in more integrated, community-based settings; 25

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b. Whether Defendant administers its long-term care services, programs, and activities in the most integrated setting appropriate to the needs of individuals with physical disabilities residing in nursing facilities;
c. Whether Defendant fails to offer sufficient discharge planning to enable individuals with physical disabilities residing in nursing facilities to be served in more integrated, community-based settings;
d. Whether Defendant fails to develop, fund, and effectively utilize existing long-term care community-based programs so that individuals with physical disabilities residing in nursing facilities may be placed in more integrated, community-based settings;
e. Whether Defendant fails to establish and implement a comprehensive, effective working plan to place individuals with physical disabilities who reside in nursing facilities into more integrated, community-based settings;
f. Whether Defendant fails to administer and implement federal programs such as EPD Medicaid Waiver long-term care services, Medicaid State Plan Personal Care Assistance Services, and Money Follows the Person to afford access to community-based long-term care service programs by people with physical disabilities in nursing facilities; and
g. Whether Defendant fails to inform and provide Plaintiffs with meaningful choices of community-based long-term care alternatives to nursing facilities.
124. Typicality: The claims of the Named Plaintiffs are typical of the claims of the
class as a whole in that both the Named Plaintiffs and the class members currently are
unnecessarily isolated in nursing facilities and, based on their level of need, receiving long-term
care services funded by the District of Columbia; they could live in more integrated settings with
appropriate long-term care to assist with their activities of daily living (e.g., bathing, dressing,
toileting, mobility, eating) and instrumental activities of daily living (e.g., grocery shopping,
meal preparation, laundry, housekeeping), personal care assistance, and support services; and
they desire to live in more integrated, community-based settings.
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125. Named Plaintiffs’ claims that Defendant has failed to administer its long-term care Medicaid programs to provide services in the most integrated setting appropriate to their needs are typical of the claims of the class.
126. Adequate representation: The Named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole because they suffer from deprivations identical to those of the class members and have been denied the same federal rights that they seek to enforce on behalf of the other class members, many of whom are unable to pursue claims on their own behalf as a result of their disabilities, their limited financial resources, and the actions of the Defendant to deprive them of their rights. The Named Plaintiffs’ interests are consistent with and are not antagonistic to those of other class members. By filing this action, the Named Plaintiffs express their interest in vindicating their rights, as well as the rights of others who are similarly situated. The relief sought by the Named Plaintiffs will inure to the benefit of members of the class generally. The Named Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation.
127. Defendant has acted or refused to act on grounds generally applicable to the class by unnecessarily segregating class members, thereby making final injunctive relief appropriate with respect to the class as a whole under Rule 23(b)(2) of the Federal Rules of Civil Procedure. For example, Defendant has failed to inform class members of their right to community services and failed to provide them with long-term care services in the most integrated setting appropriate to their needs. Although the specific disabilities of the class members vary, they also share a common need for Medicaid and locally-funded long-term care services. In addition, Plaintiffs are
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all subject to the District’s policy and practice under which their level of need is determined which, in turn, qualifies them to receive long-term care services either in nursing facilities or in the community under the Medicaid EPD Waiver Program.
128. A class action is superior to individual lawsuits for resolving this controversy. Declaratory and injunctive relief with respect to the entire class is appropriate.
COUNT 1 AMERICANS WITH DISABILITIES ACT 129. Paragraphs 1 through 128 are incorporated by reference. 130. Each Named Plaintiff and class member is an “individual with a disability” within the meaning of the ADA in that they have disabilities that substantially limit one or more major life activities, such as self-care and social interaction. They also have a history of such impairments and are regarded by Defendant as having such impairments. 131. Each Named Plaintiff and class member is a “[q]ualified individual with a disability” within the meaning of the ADA, 42 U.S.C. § 12131(2), because he or she is qualified to participate in Defendant’s more integrated, community-based programs and services. 132. Defendant District of Columbia is a public entity covered by Title II of the ADA. As such, the ADA prohibits Defendant from discriminating against individuals with disabilities in its programs and services. See 42 U.S.C. §§ 12131 and 12132. 133. Regulations implementing Title II of the ADA require that “[a] public entity administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). 134. The ADA’s implementing regulations further provide: A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of
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administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. 28 C.F.R. § 35.130(b)(3)(i)-(ii). 135. Defendant has caused the Named Plaintiffs and class members to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports. 136. Defendant’s actions violate Title II of the ADA.
COUNT II REHABILITATION ACT 137. Paragraphs 1 through 128 are incorporated by reference. 138. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 139. Defendant District of Columbia and its governmental agencies receive federal financial assistance within the meaning of Section 504. 140. Each Named Plaintiff and class member is an “individual with a disability” within the meaning of Section 504 because they have disabilities that substantially limit one or more major life activities, such as self-care, transferring to and from wheelchairs, and social interaction. They also have such impairments and are regarded by Defendant as having such impairments.
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141. Each Named Plaintiff and class member is a “qualified person with disabilities” within the meaning of Section 504 because he or she is qualified to participate in Defendant’s more integrated, community-based programs and services.
142. Regulations implementing Section 504 require that a public entity administer its services, programs, and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
143. Regulations implementing Section 504 prohibit recipients of federal financial assistance from:
[U]tiliz[ing] criteria or methods of administration . . . (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4)(i)-(ii); 28 C.F.R. § 41.51(b)(3)(i)-(ii). 144. Defendant’s actions violate Section 504 of the Rehabilitation Act.
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Case 1:10-cv-02250-ESH Document 162 Filed 09/10/15 Page 31 of 33
REQUEST FOR RELIEF
WHEREFORE, Named Plaintiffs and class members (together, “Plaintiffs”) respectfully request
that this Court:
a. Certify this action as a class action.
b. Declare that Defendant’s failure to provide Plaintiffs with long-term care services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act.
c. Declare that Defendant’s failure to provide Plaintiffs with long-term care services in the most integrated setting appropriate to their needs violates Section 504 of the Rehabilitation Act.
d. Enter a permanent injunction requiring Defendant to promptly take the following steps that are necessary to serve Plaintiffs in the most integrated settings appropriate to their needs:
i) Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.
ii) Ensure sufficient capacity of community-based long-term care services for Plaintiffs under the EPD, MFP, and PCA programs, and other long-term care service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs;
iii) Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other longterm care programs, with the following minimum numbers of transitions in each of the next four years:
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80 class members in Year 1; 120 class members in Year 2; 200 class members in Year 3; and 200 class members in Year 4. iv) Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District’s ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by Defendant to transition to the community with long-term care services through each of the MFP, EPD, and PCA, and other long-term care programs; and the aggregate dollars Defendant saves (or fails to save) by serving individuals in the community rather than in nursing facilities. e. Award Named Plaintiffs and class members their reasonable attorneys’ fees, litigation expenses, and costs; and f. Grant such other and further relief as this Court deems just and proper.
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Dated: September 1, 2015

Respectfully submitted,
/s/ Brian D. Schneider Marjorie Rifkin, D.C. Bar No. 437076 Jennifer Lav, D.C. Bar No. 499293 Lyndsay Niles, D.C. Bar No. 1003427 Kristina Majewski, D.C. Bar. No. 1024975 mrifkin@uls-dc.org jlav@uls-dc.org lniles@uls-dc.org kmajewski@uls-dc.org University Legal Services–Protection & Advocacy 220 I Street NE #130 Washington, DC 20002 (202) 547-0198 ext. 128 Fax: (202) 547-2662
Kelly Bagby, D.C. Bar No. 462390 Iris Gonzalez, DC Bar No. 987156 Kbagby@aarp.org igonzalez@aarp.org AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 (202) 434-2103 Fax: (202) 434-6424
Barbara Wahl, D.C. Bar No. 297978 Brian D. Schneider, D.C. Bar No. 983171 Alison L. Andersen, D.C. Bar No. 997260 wahl.barbara@arentfox.com schneider.brian@arentfox.com alison.andersen@arentfox.com Arent Fox LLP 1717 K St., NW Washington, DC 20036 (202) 857-6000 Fax: (202) 857-6395
Counsel for Plaintiffs

33

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

JACQUALYN THORPE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DISTRICT OF COLUMBIA,

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 10-2250 (ESH)

MEMORANDUM OPINION AND ORDER Before the Court is defendant District of Columbia’s renewed motion for a stay of discovery pending the Court of Appeals’ disposition of its petition pursuant to Federal Rule of Civil Procedure 23(f) for permission to file an interlocutory appeal challenging this Court’s order granting class certification.1 (Def.’s Renewed Mot. for Stay, June 26, 2014 [ECF No. 138] (“Renewed Mot. for Stay”).) Upon consideration of the motion, plaintiffs’ opposition thereto, defendant’s reply, and for the reasons stated herein, the motion will be denied.
BACKGROUND In this Olmstead action, plaintiffs are challenging the District of Columbia’s provision of Medicaid-funded long-term care services to persons with physical disabilities as causing unnecessary segregation in nursing facilities in violation of Americans with Disabilities Act and

1 Rule 23(f) provides that “A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.” Fed. R. Civ. P. 23(f).

the Rehabilitation Act.2 On March 29, 2014, this Court granted plaintiffs’ motion for class certification and certified, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), a class that consists of:
All persons with physical disabilities who, now or during the pendency of this lawsuit:
(1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based longterm care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community. (Order, Mar. 29, 2014 [ECF No. 129].) Defendant filed its Rule 23(f) petition with the Court of Appeals on April 15, 2014. See Petition for Permission to Appeal Under Federal Rule of Civil Procedure 23(f), In re District of Columbia, No. 14-8001 (D.C. Cir. Apr. 15, 2014) (“Rule 23(f) Petition”). A few days later, defendant filed its first motion to stay proceedings in the district court pending the disposition of that petition. (Def.’s Mot. to Stay Discovery, Apr. 17, 2014 [ECF No. 134].) After hearing argument from the parties, the Court granted defendant’s motion in part, staying expert discovery, but allowing fact discovery to proceed. (Order, Apr. 24, 2014 [ECF No. 135].) The Court gave the parties until June 30, 2014, to propound additional document requests and interrogatories (limited to 10 of each) and directed the parties to file a joint status report by July 10, 2014, regarding a proposed discovery schedule and a “specific listing of any remaining discovery.” (Id. at 1-2.) Under the current schedule, all fact discovery
2 These actions are named for the 1999 Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999), which recognized for the first time that unjustified segregation was a form of discrimination prohibited by the ADA and the Rehabilitation Act.
2

is to be completed by December 31, 2014. (Id.) Defendant did not seek a more extensive stay from the Court of Appeals pursuant to Federal Rule of Appellate Procedure 8(a)(1).
On June 24, 2014, the Court of Appeals ordered on its own motion that the Rule 23(f) petition “be referred to a merits panel.” Order at 1, In re District of Columbia, No. 14-8001 (D.C. Cir. June 23, 2014). That order advised the parties that “[i]n addition to addressing whether the petition should be granted,” they should “address in their briefs whether the district court properly granted plaintiffs’ renewed motion for class certification under Fed. R. Civ. P. 23.” Id. According to the current schedule, briefing for the merits panel will be completed by September 29, 2014.3 See Order, In re District of Columbia, No. 14-8001 (D.C. Cir. July 3, 2014). No date for oral argument has been set.
Relying on the Court of Appeals’ decision to refer the Rule 23(f) petition to a merits panel, defendant has renewed its motion for a stay of discovery pending disposition of that petition. (Renewed Mot. for Stay at 1.) That motion is now ripe for review.
ANALYSIS I. STAY OF DISCOVERY PENDING DISPOSITION OF A PENDING RULE 23(f)
PETITION Rule 23(f) expressly provides that the decision by a court of appeals to permit an appeal from a class certification order “does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” Fed. R. Civ. P. 23(f). When a district court is confronted with a motion to stay pending a Rule 23(f) appeal, the decision whether to grant a stay is
3 Defendant’s brief is due on August 15, 2014; plaintiffs’ brief is due on September 15, 2014; defendant’s reply brief is due on September 29, 2014. See Order, In re District of Columbia, No. 14-8001 (D.C. Cir. July 3, 2014).
3

a discretionary matter to be informed by a flexible application of the wellestablished, four-factor balancing test employed to consider preliminary injunctive relief and other stays pending appeal in this Circuit – (1) whether there is a substantial likelihood that the movant will succeed on the merits of the claims/appeal; (2) whether the movant will suffer irreparable injury if an injunction/stay does not issue; (3) whether others will suffer harm if an injunction/stay is granted; and (4) whether the public interest will be furthered by an injunction/stay.
In re Lorazepam v. Clorazepate Antitrust Litig., 208 F.R.D. 1, 3 (D.D.C. 2002); see In re Rail
Freight Fuel Surchage Antitrust Litig., 286 F.R.D. 88, 91 (D.D.C. 2012); DL v. D.C., No. 05-cv-
1437, 2014 WL 29260 (D.D.C. Jan. 3, 2014); see also Order, In re Veneman, No. 02-5021 (D.C.
Cir. Feb. 8, 2002) (applying “stringent standard for a stay pending appeal” to motion for a stay
pending disposition of a Rule 23(f) petition). In weighing these four factors, a stay is appropriate
if “the probability of error in the class certification decision is high enough that the costs of
pressing ahead in the district court exceed the costs of waiting.” In re Rail Freight, 286 F.R.D.
at 93. Balancing these four factors leads to the conclusion that no stay is warranted.
A. First Factor: Substantial Likelihood of Success on the Merits of the Appeal Where, as here, the Court of Appeals has not yet ruled on the Rule 23(f) petition, the
“substantial likelihood of success on appeal” inquiry has “two layers”: (1) whether the moving
party will obtain permission to appeal; and (2) if permission to appeal is granted, whether the
moving party will prevail on the merits of its appeal. In re Lorazepam, 208 F.R.D. at 4. Thus,
the first question for this Court is whether there is a substantial likelihood that the Court of
Appeals will grant defendant permission to appeal.
In a recent decision, the Court of Appeals confirmed that it has recognized “three reasons
for which interlocutory review of a class certification order is appropriate under Rule 23(f)”:
“(1) when a ‘questionable’ class certification decision creates a ‘death-knell situation’ for either party; (2) when the certification decision presents ‘an
4

unsettled and fundamental issue of law relating to class actions . . . that is likely to evade end-of-the-case review’; and (3) when the certification decision is manifestly erroneous.” In re Johnson, No. 13-8002, 2014 WL 3765707, at *3 (D.C. Cir. Aug. 1, 2014) (quoting In re Veneman, 309 F.3d 789, 794 (2002) (quoting In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir. 2002)). “[O]ther circumstances may also justify review per Rule 23(f),” but “such review should be ‘granted rarely.’” In re Johnson, 2014 WL 3765707, at *3 (quoting In re Lorazepam, 289 F.3d at 105). Defendant’s Rule 23(f) petition rests on a claim that the certification decision was manifestly erroneous. As the Court of Appeals has observed, “[t]his is a difficult standard to meet” and there is a “high bar for doing so.” In re Johnson, 2014 WL 3765707, at *4 (citing Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir. 2005)). As explained in In re Johnson, as long as a district court has “applied the correct standards and the cases relied upon by the [petitioning party] do not squarely foreclose the class certification,” there is no manifest error. Id. Indeed, the court in In re Johnson observed that the D.C. Circuit has “never before granted Rule 23(f) review on the basis of a manifest error.” Id. Applying this standard to the instant case, the Court does not believe that there is a substantial likelihood that the District’s Rule 23(f) petition will be granted. Defendant asserts that the class certification order was “manifestly erroneous” because this Court misapplied the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and the D.C Circuit’s decision in DL v. DC , 713 F.3d 120 (D.C. Cir. 2013). Specifically, defendant claims that (1) the District’s alleged “failure to implement an effective system of transition assistance” does not satisfy the “commonality” requirement of Rule 23(a)(2), which requires plaintiffs to identify a uniform policy or practice that affects all class members; and (2) for
5

essentially the same reason, there is no indivisible injunction that could provide relief to all of the class members at once, as required by Rule 23(b)(2). Defendant acknowledges, however, that these alleged errors concern the Court’s application of existing law to the unique facts of this case, which is not the type of error that the Court of Appeals considers “manifest.” See In re Johnson, 2014 WL at 3765707, at *4; see also Chamberlan, 402 F.3d at 952 (“It is difficult to show that a class certification order is manifestly erroneous unless the district court applies an incorrect Rule 23 standard or ignores a directly controlling case. Class certification decisions rarely will involve legal errors, however, simply because class actions typically involve complex facts that are unlikely to be on all fours with existing precedent.”). Indeed, the Court of Appeals has already denied one Rule 23(f) petition challenging a district court’s application of its opinion in DL v. DC, finding that it was not manifestly erroneous. See In re District of Columbia, No. 13-8009 (D.C. Cir. Jan. 30, 2014).
Defendant strongly urges the Court to take the Court of Appeals’ decision to refer the Rule 23(f) petition to a merits panel as a strong signal that the petition will be granted. However, the Court is aware of seven Rule 23(f) petitions that have been referred to merits panels since 2001, only one of which was granted and that was not based on a finding of manifest error. Compare In re Lorazepam., 289 F.3d at 100 (Rule 23(f) petition referred to merits panel then denied), In re Veneman, 309 F.3d 789 (D.C. Cir. 2002) (same), In re James, 444 F.3d 643 (D.C. Cir. 2006) (same), In re D.C. Water and Sewer Auth., 561 F.3d 494 (D.C. Cir. 2009) (same), In re U–Haul, Int’l Inc., No. 08–7122, 2009 WL 902414 (D.C. Cir. April 6, 2009) (same), and In re Johnson, 2014 WL 3765707, at *1, with In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 247 (D.C. Cir. 2013) (granting review based on “special circumstances,” including a “confluence of multiple rationales” and a subsequent decision of the Supreme Court). As other
6

district judges have noted, “[i]t is a fool’s errand to try to predict what the court of appeals is likely to do before it acts or, absent explanation, to speculate on why it has made a certain procedural decision.” In re Rail Freight, 286 F.R.D. at 93.
Although the Court has made no secret of its view that the class certification issues in this case are complicated and, to some extent, novel in this Circuit, it certainly does not believe that the Court of Appeals could find its rulings to be “manifestly erroneous,” at least not as that standard has been defined. Accordingly, the Court finds that defendant has not shown a substantial likelihood of success on its Rule 23(f) petition, which necessarily means that it has not shown a substantial likelihood of success on appeal.
B. Three Remaining Factors The three remaining factors for the Court to weigh are (1) whether defendant will suffer irreparable injury if a stay does not issue; (2) whether others will suffer harm if a stay is granted; and (3) whether the public interest will be furthered by a stay. Of these factors, only the first arguably weighs in defendant’s favor. On the question of irreparable injury to defendant if a stay is denied, defendant argues that it will suffer irreparable injury due to the expenditure of time and resources on unnecessary discovery. In the first place, “litigation expenses alone do not necessarily qualify as irreparable harm.” In re Lorazepam, 208 F.R.D. at 6. Moreover, the Court has already stayed expert discovery pending disposition of the Rule 23(f) petition, and the remaining fact discovery is limited in scope, thereby minimizing any injury to defendant if the stay is denied. Thus, to the extent this factor weighs in defendant’s favor, it is not a significant consideration. On the question of harm to others from granting a stay, defendant argues that a stay of discovery would not cause harm to plaintiffs because any delay would be de minimus. However,
7

just as it is almost impossible to predict whether the Court of Appeals will grant the Rule 23(f) petition, it is impossible to know when it will make its decision. What the Court does know is that with briefing not scheduled to be completed until the end of September and no date set for oral argument, the delay will certainly be more than a couple of months, cf. In re Lorazepam, 208 F.R.D. at 4–5 (staying case where expected delay would be limited to a few months), and it could over a year. See, e.g., In re Johnson, No. 13-8002 (Rule 23(f) petition filed on March 11, 2013; referred to merits panel on June 21, 2013; fully briefed by December 16, 2013; oral argument date set on February 18, 2014; oral argument held on April 21, 2014; petition denied on August 1, 2014, one year and 5 months after it was filed). In addition, given the injunctive nature of the relief sought in this case, and the nature of the class, delaying the litigation will almost certainly deprive some class members of the opportunity to benefit from any relief that is obtained.4 Thus, on balance, the Court finds that plaintiffs “have demonstrated a risk of significant harm that offsets that faced by defendants, particularly in light of defendants’ failure to show a substantial likelihood of prevailing on the merits of their appeal.” In re Rail Freight, 286 F.R.D. at 94.
Finally, on the question of the public interest, the Court finds that if the public interest is “rooted in the proper resolution of the important issues raised in this case,” as defendant contends, granting a stay of discovery would not further that interest.
In sum, the Court finds that defendants have failed to demonstrate that the likelihood of success of their appeal is sufficiently high that the costs of proceeding with fact discovery
4 As defendant is aware, since the commencement of this litigation in 2010 several named plaintiffs have died.
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outweigh the costs of further delay. Accordingly, the Court concludes that no stay of fact discovery is warranted. II. DISCOVERY ISSUES
The parties’ Joint Status Report proposes a schedule for remaining fact discovery should the Court decide, as it has, to deny defendant’s motion for a stay. (Joint Status Report, July 10, 2014 [ECF No. 140].) According to that report, the parties agree that all answers to all interrogatories (including supplementation of existing responses) and production of all responsive documents (including supplementation of existing document productions) shall be completed by September 12, 2014, and that all fact witness depositions, including 30(b)(6) depositions, shall be completed by December 31, 2014. (Id. at 1.) Defendant does not contemplate any additional depositions of the named plaintiffs, but may seek a third-party deposition related to a recently released report on long-term care. (Id. at 2.) Plaintiffs intend to take additional depositions in preparation for trial. (Id. at 2.)
The parties disagree on only two matters. First, “it is the District’s position that Plaintiffs are required to obtain leave of Court, pursuant to Rule 30(a)(2), in order to conduct any additional depositions, as they already have taken twelve depositions in this matter.” (Id. at 2 (citing Fed. R. Civ. P. 30(a)(2)(A)(i)).) Second, plaintiffs “question the purpose of Defendant’s notice of specific third-party discovery subjects at this junction.” (Id. at 2.) To the extent these anticipated discovery disputes cannot be resolved by the parties, the Court will refer them to Magistrate Judge Kay for resolution.
CONCLUSION Accordingly, and for the reasons stated above, it is hereby
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ORDERED that defendant’s renewed motion for a stay of discovery [ECF No. 138] is DENIED; and it is further
ORDERED that all discovery disputes are referred to Magistrate Judge Alan Kay for resolution.

Date: August 8, 2014

/s/ ELLEN SEGAL HUVELLE United States District Judge

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 Case 1:10-cv-02250-ESH Document 257 Filed 09/13/17 Page 1 of 91

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IVY BROWN, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 10-2250 (ESH)

MEMORANDUM OPINION This action was brought by a class of individuals with physical disabilities who (1) have received DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services; and (3) would prefer to live in the community instead of a nursing facility. (4th Am. Compl. ¶ 120, Sept. 10, 2015, ECF No. 162.) Plaintiffs allege that the District’s failure to provide effective transition services has caused the class to remain in nursing facilities, in violation of the integration mandate of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. (See id. ¶¶ 1–3.) The integration mandate was first recognized by the Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Under Olmstead, the essential inquiry is whether a state administers its Medicaid programs in a manner that unjustly segregates individuals with disabilities. Olmstead involved the question of whether the integration mandate had been violated with respect to two disabled individuals. Here, plaintiffs are proceeding as a class

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action, and therefore, the question is far more complicated. To succeed, plaintiffs have the burden under Rule 23, as interpreted by Supreme Court
and Circuit precedent, to show a systemic policy or practice of the District’s operation of its Medicaid system that has caused a common harm to plaintiffs. Plaintiffs have a further burden to show that the common harm can be remedied by a single injunction, which would result in the class members being transitioned out of the nursing facilities. Thus, the essential question before the Court is whether plaintiffs have shown concrete systemic deficiencies that harm the class and, if these deficiencies exist, whether they are redressable by a single injunction.
Based on the testimony and exhibits admitted at trial, the parties’ arguments, and the applicable law, the Court has reached the Findings of Fact and Conclusions of Law set forth below, and it concludes that plaintiffs have failed to demonstrate that they are entitled to classwide relief under Fed. R. Civ. P. 23. The class-wide claims will therefore be dismissed, and as plaintiffs do not seek individual relief, judgment will be entered for the District.
BACKGROUND1 LEGAL BACKGROUND Proceeding under an Olmstead theory of liability, plaintiffs contend that the District is violating the so-called “integration mandate” of Title II of the ADA and Section 504 of the Rehabilitation Act by failing to provide effective transition services to a class of physically disabled individuals who receive Medicaid-funded long-term care, have lived in nursing facilities for more than 90 days, and would prefer to live in the community. Plaintiffs seek class-wide
1 Both the legal and factual background has been laid out in great detail in the Court’s prior opinions in this case. See Day v. District of Columbia, 894 F. Supp. 2d 1 (D.D.C. 2012); Thorpe v. District of Columbia, 916 F. Supp. 2d 65 (D.D.C. 2013) (“Thorpe I”); Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014) (“Thorpe II”), petition for interlocutory appeal denied, In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015).
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declaratory and injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2). A. The Integration Mandate of the ADA and the Rehabilitation Act Title II of the ADA and Section 504 of the Rehabilitation Act, along with their
implementing regulations, require that public entities and programs receiving federal funds take reasonable steps to avoid administering their programs in a manner that results in the segregation of individuals with disabilities. This is the crux of the integration mandate.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” under the ADA is
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. Id. § 12131(2). A “public entity” is “any State or local government,” and “any department, agency, [or] special purpose district,” including the District of Columbia. See id. §§ 12131(1)(A), (B). Congress included in Title II of the ADA its express finding that “segregation” of persons with disabilities is a “form[] of discrimination” forbidden by the statute. Id. § 12101(a)(5); see id. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”). Congress instructed the Attorney General to promulgate regulations implementing Title II’s proscription against disability-based discrimination, including unjust segregation. See id. § 12134(a). To this end,
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the ADA’s implementing regulations include an “integration” provision, which requires that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d). The regulations define the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Id. pt. 35, App. B.
Similarly, Section 504 of the Rehabilitation Act, which applies to “any program or activity receiving Federal financial assistance,” such as Medicaid, provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination.” 29 U.S.C. § 794(a). Although the Rehabilitation Act does not contain an express finding that segregation is a form of discrimination, the Rehabilitation Act’s implementing regulations mirror those of Title II of the ADA by requiring that programs, services, and activities be administered in “the most integrated setting appropriate” to the needs of individuals with disabilities. See 28 C.F.R. § 41.51(d).
Albeit in slightly different formulations, the regulations implementing both statutes require “reasonable accommodations” to avoid discrimination of individuals with disabilities. Under ADA regulations, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7). Similarly, under the Rehabilitation Act, the recipient of federal funds must “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation
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would impose an undue hardship on the operation of its program.” Id. § 41.53. These
regulations, while not identical, are intended to be “consistent.” See 42 U.S.C. § 12134(b) (the
regulations implementing the ADA “shall be consistent with” the regulations implementing
Section 504).
The regulations of each law also prohibit the use, direct or otherwise, of
criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.
28 C.F.R. § 35.130(b)(3) (ADA); 45 C.F.R. § 84.4(b)(4)(i)–(ii) (Rehabilitation Act). Read
together, these regulations require that public entities and programs receiving federal funds take
reasonable steps to avoid administering their programs in ways that result in discrimination.
B. Olmstead In Olmstead, the Supreme Court expounded on the meaning of the integration mandate
for disabled individuals receiving Medicaid-funded care in institutions. In that case, the Court
considered whether the “proscription of discrimination” in Title II of the ADA “may require
placement of persons with mental disabilities in community settings rather than in institutions.”
527 U.S. at 587. The Court answered with “a qualified yes,” holding a state government liable
for its failure to provide community care for two individual plaintiffs with mental disabilities. Id. at 587, 598.2
2 This case differs from Olmstead. First, plaintiffs in this case bring causes of action under both Title II of the ADA and Section 504 of the Rehabilitation Act. Although Olmstead only dealt with Title II of the ADA, “the courts have tended to construe section 504 in pari materia with Title II of the ADA, reasoning that these statutory provisions are similar in substance . . . [and consequently] cases interpreting either are applicable and interchangeable.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1261 n.2 (D.C. Cir. 2008) (internal citations and quotation marks omitted).
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The Court first held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. In doing so, the Court concluded that “[u]njustified isolation” of individuals with disabilities, even without a showing of disparate treatment, constitutes discrimination prohibited by Title II of the ADA, id., and that the government’s failure to provide “reasonable accommodations” for individuals with disabilities to access community care is actionable under the law, id. at 601.
Olmstead sets forth a three-part test to determine whether a state has unjustly segregated an individual with a disability. Community placement for individuals with disabilities “is in order” when (1) “the State’s treatment professionals have determined that community placement is appropriate,” (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual,” and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 587. The Court cautioned that it was not holding “that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities,’” but rather, “that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. at 603 n.14.
Applying the three-part test to the two individuals in Olmstead, the Court noted that it was undisputed that the two plaintiffs satisfied the first two prongs, as they were “qualified for
Second, plaintiffs in this case are physically disabled, unlike the Olmstead plaintiffs, who had mental disabilities. Nevertheless, Olmstead applies with equal force to individuals with physical disabilities. See 42 U.S.C. § 12102(1)(A) (qualifying disability under the ADA includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (emphasis added)); see, e.g., M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011) (plaintiffs were both mentally and physically disabled); Grooms v. Maram, 563 F. Supp. 2d 840, 852 (N.D. Ill. 840) (plaintiff was physically disabled only).
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noninstitutional care” and did not “oppose[] such treatment.” Id. at 602–03. However, as to the third factor—whether community placement for those plaintiffs was could be “reasonably accommodated”—the Court remanded the matter for the lower courts to determine in the first instance whether providing community care to the plaintiffs would have been “reasonable.” Id. at 607. The Court counseled that, although it is a fact-bound inquiry, a state’s obligation to make particular modifications is “not boundless.” Id. at 603. For instance, states are not required to make a modification that would constitute a “fundamenta[l] alter[ation]” of the existing services. Id. (quoting 28 C.F.R. § 35.130(b)(7)).
A plurality of the Court expounded on the scope of “[t]he State’s responsibility, once it provides community-based treatment to qualified persons with disabilities.” Id. at 603. The plurality observed that “[t]o maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamentalalteration defense to allow.” Id. at 605. For instance, the plurality reasoned that it would not be proper to compare the cost of community-based treatment for the two individual plaintiffs who brought the lawsuit against the entire mental health budget of the state. Instead,
the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Id. at 604. According to the plurality, one way that a state could defeat liability with a fundamentalalteration defense was by “demonstrat[ing] that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions
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fully populated.” Id. at 605–06. Such a comprehensive, effectively working plan is now commonly known as an “Olmstead Plan.” A number of states, as well as the District, have adopted their own Olmstead Plans, although the name alone is obviously not enough to make it a legally sufficient defense.
C. Federal Rule of Civil Procedure 23: Class Actions As will be discussed more fully herein, plaintiffs in this case proceed as a class under Federal Rule of Civil Procedure 23(b)(2), unlike the two plaintiffs in Olmstead, who sought individual injunctive relief. See infra Conclusions of Law Part I. Thus, plaintiffs carry an additional burden under Rule 23 to demonstrate that they have met the Rule 23(a) prerequisites.3 As plaintiffs seek declaratory and injunctive relief, they must also show that the action meets the requirements of Rule 23(b)(2). Certification under Rule 23(b)(2) for injunctive relief requires plaintiffs to show that the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Courts may certify classes under this provision “only when a single injunction or declaratory judgment would provide relief to each member of the class.” DL v. District of Columbia, 860 F.3d 713, 723 (D.C. Cir. 2017) (“DL II”) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)).To proceed as a Rule 23(b)(2) class, the party seeking certification must “adequately allege[] that the class has suffered a uniform deprivation, and that such deprivation could be remedied by a single injunction” for purposes of
3 Federal Rule of Civil Procedure 23(a) requires plaintiffs to show that (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). 8

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commonality. In re District of Columbia, 792 F.3d 96, 101 (D.C. Cir. 2015). In other words, a Rule 23(b)(2) class must identify a “policy or practice affecting all members of the class.” Id. at 100 (citing DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (“DL I”)). This requirement means that plaintiffs here must “proffer[] evidence of systemic deficiencies in the District’s system of transition assistance and that those deficiencies appear to be affecting the class.” Thorpe v. District of Columbia, 303 F.R.D. 120, 151 (D.D.C. 2014) (“Thorpe II”).
At the class certification stage, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 350. But at the trial stage, the class must do more than “be prepared to prove” the Rule 23 requirements. See id. Instead, the class must actually prove that it has complied with Rule 23. Importantly, the class must answer the common questions that they identified at the class certification stage, and the answers to those questions must justify “final injunctive relief or corresponding declaratory relief . . . respecting the class as a whole.” See Fed. R. Civ. P. 23(b)(2). Here, “to prevail on the merits and obtain the relief they seek, plaintiffs [must] prove concrete[,] systemic deficiencies” in the District’s system of transition assistance and that these deficiencies have caused a common harm to class members. See Thorpe II, 303 F.R.D. at 146 n.58, 151.
PROCEDURAL HISTORY A. Plaintiffs’ Initial Complaint and the District’s First Motion to Dismiss On December 23, 2010, four plaintiffs filed a putative class action against the District, the Mayor of the District, and various District officials seeking declaratory and injunctive relief
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for the plaintiffs’ alleged segregation. (Compl. at 27 (Request for Relief), ECF No. 1.)4 At the time, the proposed class consisted of
[a]ll those persons who (1) have a disability; (2) receive services in nursing facilities located in the District of Columbia or funded by [the District] at any time during the pendency of this litigation; (3) could live in the community with appropriate supports and services from [the District]; and (4) prefer to live in the community rather than in nursing facilities. (Id. ¶ 90.) The Complaint alleged that the District’s “programs and activities for persons with disabilities systematically deny or ignore Plaintiffs’ choices and preferences for integrated community care,” in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. (Id. ¶ 9.) At the time, by virtue of not qualifying “disability,” the proposed class included individuals with both mental and physical disabilities. (See Status Conf. Tr. at 3:25–4:3, Apr. 29, 2011, ECF No. 22 (“4/29/2011 Status Conf. Tr.”).) Before defendants filed a responsive pleading, plaintiffs amended their Complaint to add an additional plaintiff. (See 1st Am. Compl., March 30, 2011, ECF No. 17.) On April 27, 2011, defendants then filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. (Defs.’ Mot. to Dismiss 1st Am. Compl., ECF No. 19.) The parties appeared for a Status Conference on April 29, 2011, at which the Court set a briefing schedule on the pending Motion to Dismiss and relieved plaintiffs of the filing deadline for their motion for class certification. (See Minute Order, April 29, 2011.) Consistent with the Court’s Minute Order, plaintiffs filed their Opposition to the District’s Motion to Dismiss on
4 The original named individual defendants, sued only in their official capacities, were Adrian M. Fenty, the Mayor of the District of Columbia; Julie A. Hudman, Director of the District of Columbia’s Department of Health Care Finance (“DHCF”); and Stephen Baron, Director of the District of Columbia’s Department of Mental Health (“DMH”). (Compl. at 1–2.) Since February 14, 2012, when the Court granted in part these defendants’ motion to dismiss, the District has been the sole defendant. Day, 894 F. Supp. 2d at 33.
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September 1, 2011. (Pls.’ Opp’n to Defs.’ Mot. to Dismiss 1st Am. Compl., ECF No. 28.) Defendants filed their Reply on October 3, 2011. (Defs.’ Reply in Support of Mot. to Dismiss 1st Am. Compl., ECF No. 30.)
On February 14, 2012, this Court granted in part and denied in part the District’s motion. Day v. District of Columbia, 894 F. Supp. 2d 1, 33 (D.D.C. 2012). In doing so, the Court rejected the District’s argument that plaintiffs had failed to state a claim because they had not properly alleged “a causal connection between the injury and the conduct complained of,” or, in other words, that plaintiffs had not properly alleged that “the injury [is] fairly traceable to the challenged action of the defendant.” (Defs.’ Mot. to Dismiss 1st Am. Compl. at 10–11 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).) The Court concluded that it was sufficient for plaintiffs to have alleged that
the District provides, administers and/or funds the existing service system through which plaintiffs receive long-term care services and/or that the District, in so doing, has utilized criteria or methods of administration that have “caused [plaintiffs] . . . to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports.” Day, 894 F. Supp. 2d at 22 (quoting 1st Am. Compl. ¶ 111). The Court also rejected the District’s argument that summary judgment should be granted because it had adopted an Olmstead Integration Plan and specific programs designed to further deinstitutionalization. Id. at 29. The undisputed figures regarding the District’s nursing-home occupancy “clearly undercut” its contention that it had any “plan that demonstrates a measurable commitment to deinstitutionalization,” one generally accepted component of an “effectively working” Olmstead plan. Id. at 28. Moreover, the District had operated a waiver program for elderly and physically disabled individuals (“EPD Waiver”) since 1999, and it was impossible to determine how many individuals had transitioned to community-based long-term care from
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nursing facilities, as the District did not keep any such data. Id. at 29. But at least with respect to the Money Follows the Person (“MFP”) federal grant program, operated in part to transition physically disabled nursing-facility residents to community-based long-term care, the District had only transitioned three such individuals as of October 3, 2011, even though the program had been authorized in 2007. Id. Given the fact that, at the time, there were at least 526 physically disabled individuals living in nursing facilities who expressed an interest in living in the community, the undisputed facts demonstrated that the Districts’ Olmstead Plan had not been effective. Id.
However, the Court was persuaded by the District’s argument that the claims against the individual defendants were redundant to those against the District. Id. at 33. The Court therefore dismissed plaintiffs’ claims against the individual defendants, leaving the District as the sole remaining defendant. Id.
B. Plaintiffs’ Second Amended Complaint and First Motion for Class Certification
On February 28, 2012, the District answered plaintiffs’ Amended Complaint. (Answer to 1st Am. Compl., ECF No. 44.) On April 2, 2012, Plaintiffs filed a Second Amended Complaint, which removed three plaintiffs and added four new plaintiffs. (2d Am. Compl., ECF No. 46.) The District filed its Answer to the Second Amended Complaint on April 17, 2012. (Answer to 2d Am. Compl., ECF No. 51.) Then, based on the parties’ request, the matter was referred to a Magistrate Judge for mediation, which did not succeed.
Between the first and second settlement conferences, plaintiffs filed their Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. (Pls.’ Mot. for Class Cert. May 15, 2012, ECF No. 54.) The District filed its Opposition on August 20, 2012 (Def.’s Opp’n to Pls.’ Mot. for Class Cert., ECF No. 61), and a supplemental Memorandum in Opposition on
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September 20, 2012. (Def.’s Supp. Opp’n to Pls.’ Mot. for Class Cert., ECF No. 68.) Plaintiffs file their reply on September 28, 2012. (Pls.’ Reply in Support of Mot. for Class Certification, ECF No. 70.)
Before the Court decided plaintiffs’ Motion for Class Certification, the District filed three additional motions: (1) a Motion to Amend its Answer to the Second Amended Complaint, which sought leave to add the defenses of res judicata and collateral estoppel to the claims of those putative class members whose “claims overlap with claims previously litigated and resolved in Dixon v. Gray.”5 (Def.’s Mot. to Amend Answer to 2d Am. Compl. at 1, Sept. 18, 2012, ECF No. 65); (2) a Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree (Def.’s Mot. to Dismiss Claims of Donald Dupree as Moot, Sept. 18, 2012, ECF No. 64); and (3) a Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Curtis Wilkerson. (Def.’s Mot. to Dismiss Claim of Curtis Wilkerson as Moot, Dec. 13, 2012, ECF No. 81.) On January 7, 2013, the Court heard argument on the District’s pending motions. (Minute Entry, Jan. 7, 2013.)
At the hearing, the Court granted the District’s motion to amend its answer. (Hrg. Tr. at 87:11–12, Jan. 7, 2013, ECF No. 90 (“1/7/2013 Hrg. Tr.”); Minute Order, Jan. 7, 2013.) , The Court also indicated that it would deny the District’s two remaining motions, which sought dismissal for lack of jurisdiction of two individual plaintiffs, as their claims satisfied a number of exceptions to the mootness doctrine. (1/7/2013 Hrg. Tr. at 3:19–23.)6
5 Dixon v. Gray, Civil Action No. 74-0285, “created an integrated community-based mental health system designed to guarantee the rights of individuals with mental illness to communitybased treatment under the least restrictive conditions.” Thorpe II, 303 F.R.D. at 134. The transition services created as a result of the Dixon litigation are administered by the Department of Mental Health. Id. at 141.
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At the end of the hearing, the Court advised plaintiffs that it would not grant the motion to certify the class as “presently constituted” for several reasons, including (1) the discrepancy between the purported systemic goals of the litigation and the undefined but individualized injunctive relief sought by the second amended complaint; and (2) plaintiffs’ failure to avoid overlap between their claims and the class action settlement in Dixon.
Thorpe II, 303 F.R.D. at 134 (quoting 1/7/2013 Hrg. Tr. at 98:1). The Court was persuaded that
it would be inappropriate to issue an injunction that included orders to the Department of Mental
Health, which was already under a consent decree in the Dixon case. (1/7/2013 Hrg. Tr. at 86:7–
9.)
In order for plaintiffs to address the deficiencies the Court identified, the Court denied
plaintiffs’ first Motion for Class Certification without prejudice and set a schedule for plaintiffs
to file a Third Amended Complaint and a renewed Motion for Class Certification. (Minute
Order, Jan. 17, 2013; Am. Scheduling Order, Jan. 17, 2013, ECF No. 87.) The Court determined
that fact discovery would continue but that expert discovery would be stayed until after the Court
ruled on the renewed Motion for Class Certification. (Am. Scheduling Order at 1-2.).)
C. Plaintiffs’ Third Amended Complaint and Renewed Motion for Class Certification
On March 27, 2013, plaintiffs filed their Third Amended Complaint. (3d Am. Compl.,
ECF No. 98.) The Third Amended Complaint “added six new class representatives, revised the
proposed class definition in several ways, and amplified plaintiffs’ requests for relief.” Thorpe
II, 303 F.R.D. at 135. Under the Third Amended Complaint, the class was defined as
[a]ll persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible to live in the community; and (3) would live in the community instead of a nursing facility if the District of Columbia would provide transition assistance to facilitate their access to long-
6 The Court issued a Memorandum Opinion summarizing its rulings on January 9, 2013. Thorpe I, 916 F. Supp. 2d at 66-67.
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term care services in the community. (3d Am. Compl. ¶ 153.) This definition “limit[ed] the class to individuals who have a physical disability, have been in a nursing facility for over 90 days, and need transition assistance from the District in order to leave the nursing facility and obtain community-based long-term care services.” Thorpe II, 303 F.R.D. at 135. The Third Amended Complaint alleged a laundry list of some 11 deficiencies in the District’s transition services, which the Court characterized as “broad and far-ranging institutional reform” that went “far beyond transitional services.” Id. at 136 (discussing 3d Am. Compl. ¶ 139).
On April 11, 2013, the District filed a Motion to Dismiss the Third Amended Complaint. (Def.’s Mot. to Dismiss 3d Am. Compl., ECF No. 99.) On May 6, 2013, plaintiffs filed their Renewed Motion for Class Certification (Pls.’ Renewed Mot. for Class Cert., ECF No. 103), and the Department of Justice filed a Statement of Interest in support of plaintiffs’ renewed Motion for Class Certification. (Statement of Interest of the United States, June 26, 2013, ECF No. 109.)
In its motion, the District argued that the Third Amended Complaint should be dismissed because the proposed class was not “readily ascertainable” with reference to “objective criteria” and that the class was overbroad. (Def.’s Mem. in Support of Mot. to Dismiss 3d Am. Compl. at 5-6.) The District further argued that, should the Court find the proposed class to be deficient, plaintiffs would lack standing to seek “system-wide injunctive relief” and that, even if the class were certified, plaintiffs would lack standing to seek “broad systemic relief [that] . . . exceeds the specific injuries alleged.” (Id. at 12, 15.) On December 13, 2013, the Court held a hearing on the two pending motions, and on March 29, 2014, the Court issued a Memorandum Opinion denying the District’s Motion to Dismiss and granting plaintiffs’ renewed Motion for Class Certification. Thorpe II, 303 F.R.D. at 124.
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As to the District’s Motion to Dismiss, the Court found that the class was sufficiently definite, notwithstanding plaintiffs’ use of the length of stay in the nursing facility as a proxy for needing the District’s transition assistance. Id. at 140–41. The Court also found that it was not fatal to plaintiffs’ case that individuals who lack housing (or physically disabled individuals who are also mentally disabled) were included in the class. Id. at 141–42. The Court, mindful that its role at the motion to dismiss stage was “not . . .to resolve the merits,” found no overbreadth problem even though it expressed concern about plaintiffs’ ability to prove “a causal link between the alleged deficiencies in the District’s system of transition assistance and the alleged unnecessary segregation.” Id. at 142.
The Court also explained its conclusion that, “despite . . . serious problems” as to whether plaintiffs would be able to prevail on the merits and prove their entitlement to the class-wide relief they sought in their Complaint, plaintiffs had, at that juncture, carried their burden under Rule 23. Id. at 138. The Court found that “the District ha[d] yet to demonstrate that its Olmstead Plan is an ‘effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.’” Id. (quoting Olmstead, 527 U.S. at 606–07).
Importantly, grappling with the Supreme Court’s decision in Wal-Mart and the D.C. Circuit’s decision in DL I, the Court identified common questions whose “common answers [were] apt to drive the resolution of the litigation.” Id. at 145–46 (quoting Wal-Mart, 564 U.S. at 350). Namely, the Court determined that
[t]o prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies. For example, does the District in fact “fail[] to offer sufficient discharge planning” or “fail[] to inform and provide [nursing facility residents] with meaningful choices of community-based long-term care
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alternatives to nursing facilities. Id. at 146 n.58 (quoting 3d Am. Compl. ¶ 156(c), (g)).
The Court modified slightly plaintiffs’ proposed class definition, and, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), it certified a class of
[a]ll persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community. (Order, March 29, 2014, at 1.) D. The District’s Petition for Interlocutory Appeal After the Court certified the class, the District filed its Answer to the Third Amended Complaint. (Def.’s Answer to 3d Am. Compl., Apr. 14, 2014, ECF No. 131.) The next day, the District filed a petition to the U.S. Court of Appeals for the D.C. Circuit pursuant to Fed. R. Civ. P. 23(f) for an interlocutory appeal of the class-certification decision. (See Notice of Petition for Interlocutory Appeal, Apr. 15, 2014, ECF No. 132.) A merits panel of the D.C. Circuit held oral argument on the District’s petition on February 6, 2015, and on June 26, 2015, it denied the Petition for Interlocutory Appeal. In re District of Columbia, 792 F.3d at 102. Although the D.C. Circuit expressed serious doubts about plaintiffs’ ability to ultimately meet the requirements of Rule 23, the panel concluded that it was not “manifest error to conclude, at this procedural juncture, that those two alleged deficiencies”– failing to offer sufficient discharge planning and failing to inform nursing facility residents of
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community-based alternatives to nursing facilities–“could represent the sort of systemic failure that might constitute a policy or practice affecting all members of the class in the manner Wal– Mart requires for certification.” Id. at 100 (citing DL I, 713 F.3d at 126, 128). That is to say, the “two specific deficiencies” identified by this Court in a footnote of its Memorandum Opinion were pivotal to the panel’s holding that this Court did not manifestly err by finding sufficient allegations that “the class has suffered a uniform deprivation, and that such deprivation could be remedied by a single injunction.” Id. at 101 (citing Thorpe II, 303 F.R.D. at 146 n.58).
E. Plaintiffs’ Fourth Amended Complaint and Pretrial Conference After the Court of Appeals denied interlocutory review, this Court permitted expert discovery and set deadlines for the parties to complete all discovery. (Scheduling Order, July 15, 2015, ECF No. 158.) By consent motion, plaintiffs sought to amend their Third Amended Complaint to account for recent developments in the litigation. (Pls.’ Mot. to Amend 3d Am. Compl., Sept. 1, 2015, ECF No. 160.) The Court granted the motion by Minute Order on September 10, 2015, and plaintiffs filed their Fourth Amended Complaint the same day. The Fourth Amended Complaint—the operative complaint at the time of trial–added two new named plaintiffs, removed named plaintiffs who had died during the pendency of the litigation, and “updated [plaintiffs’] factual averments,” but did not “alter the substance or basis for Plaintiffs’ claims.” (Pls.’ Mot. to Amend 3d Am. Compl. at 1.) Importantly, the 11 alleged failures or deficiencies of the District’s transition system from the Third Amended Complaint remained the same. (Compare 3d Am. Compl. ¶ 139 with 4th Am. Compl. ¶ 105.) The class definition, although slightly modified from the Third Amended Complaint, was identical to the class definition in the Court’s Order certifying the class. (Compare 4th Am. Compl. ¶ 120 with Order, March 29, 2014, at 1.) The District answered the Fourth Amended Complaint on September 24, 2015. (Def.’s Answer to 4th Am. Compl., ECF No. 166.) In the Joint Pretrial
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Statement, plaintiffs set forth their proposed injunction, which would set deadlines for the District to transition class members and require it to “[d]evelop and implement a working system of transition assistance to facilitate all class members’ access to long-term care services in community-based settings.” (Joint Pretrial Statement at 10, Aug. 8, 2016, ECF No. 190.)
At the pretrial conference, the Court decided that the bench trial would be bifurcated into a “liability” phase and, if necessary, a “relief” phase. In the first phase of trial, the Court would determine whether plaintiffs had proven that deficient transition services had resulted in a violation of Olmstead’s integration mandate, entitling them to class-wide relief. In other words, plaintiffs would first present their evidence that they were unjustly segregated under Olmstead and that the District has a uniform policy or practice causing the unjust segregation that could be remedied in a single injunction, as required by Rule 23(b)(2). If plaintiffs were successful in proving liability, the Court would then decide the scope of the injunction. At this second phase, the District could raise the “fundamental alteration” defense recognized by the plurality in Olmstead. See 527 U.S. at 604.
F. The Trial The liability phase of the bench trial was held on September 13, 14, and 16; October 4 and 5; and November 8, 9, and 15, 2016. The issue before the Court related to the District’s current efforts to comply with Olmstead; the deficiencies in its transition services; and whether the lack of transition services contributed to the class members’ segregation in nursing facilities. The evidence related to the years 2014–2016, as the Court’s prior opinion in Thorpe II covered in detail the District’s failure to transition class members through 2013. See 303 F.R.D. at 132– 33. But that Opinion expressly left unanswered the question of whether the problem of available housing, as opposed to a lack of transition services, resulted in the class members’ continued segregation in nursing facilities, since that was an issue of fact that had to be decided at trial. Id.
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at 147 n.60. Plaintiffs presented their case-in-chief over five days, calling ten live witnesses, reading
portions of the depositions of four other witnesses, and introducing exhibits. After plaintiffs rested, the District moved for Judgment as a Matter of Law. (Def.’s Mot. for Judgment as a Matter of Law, Oct. 6, 2016, ECF No. 223.) The Court took the motion under advisement and ultimately permitted the parties to incorporate by reference their arguments from their memoranda addressing the District’s Motion for Judgment as a Matter of Law into their Proposed Findings of Fact and Conclusions of Law.
The District presented its defense over four days, calling six live witnesses, reading counter-designations of the depositions of plaintiffs’ four deposition witnesses, and introducing exhibits.
G. Briefing and Argument on the Court’s Findings of Fact and Conclusions of Law
After the close of the first phase of trial, the Court ordered the parties to “specifically address liability, causation, and the propriety of maintaining a class under Fed. R. Civ. P. 23.” (Order, Nov. 15, 2016, ECF No. 227, at 1.) Thereafter, the parties submitted simultaneous Proposed Findings of Fact and Conclusions of Law (Pls.’ Proposed FF&CL, Jan. 30, 2017, ECF No. 232; Def.’s Proposed FF&CL, Jan. 30, 2017, ECF No. 233) and simultaneous responses to the opposing party’s Proposed Findings of Fact and Conclusions of Law. (Pls.’ Response to Def.’s Proposed FF&CL, March 10, 2017, ECF No. 239; Def.’s Response to Pls.’ Proposed FF&CL, March 10, 2017, ECF No. 239.)
On July 20, 2017, the Court held oral argument. Prior to the hearing, the Court posed specific questions and ordered the District to produce some updated information regarding evidence that had been admitted at trial. (Notice to Counsel, July 12, 2017, ECF No. 248; see
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Def.’s Response to Order of the Court, July 24, 2017, ECF No. 252.)7 The first question related to causation:
How should the Court analyze the argument that factors beyond the District’s control resulted in the plaintiffs’ unjustified segregation?
i. Under ADA and/or Rehabilitation Act case law; ii. As a question of commonality under Rule 23(a); iii. As an issue of redressability; or iv. As a matter of the third Olmstead factor–”the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” 527 U.S. 581, 587 (1999). (Notice to Counsel at 1.) The parties could not agree on a governing legal standard, nor could they cite any relevant case law involving an Olmstead class action. The District stated that “[t]he standard is whether the District is administering its Medicaid program in the least restrictive setting appropriate when considering the state’s resources.” (Hrg. Tr., July 20, 2016, at 6:8–15.) The District further argued that, without plaintiffs having identified a “uniform policy or practice,” plaintiffs’ claims should fail. (See id. at 8:12–20.) In response, plaintiffs argued that the causation standard is “substantial factor,” i.e., plaintiffs must prove that the District’s deficient policy or practice with respect to transition services was a substantial factor in causing the class members’ segregation. (Id. at 23:15–25) Plaintiffs stated that the “substantial factor” causation standard “is in the Department of Justice’s guidance on how to implement the integration mandates.” (Id.; see Pls.’ Opp’n to Def.’s Motion
7 Plaintiffs objected to the Court’s reliance on any materials outside of the trial record. (See Pls.’ Response to Def.’s Suppl. Submission, July 27, 2017, ECF No. 253.)
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for Judgment as a Matter of Law at 5, Oct. 28, 2016, ECF No. 225.)8 In addition to grappling with identifying the appropriate legal standard for analyzing
causation, the Court has, since the inception of this case, expressed its concern about the existence of barriers beyond the District’s control that have resulted in the class members’ inability to move out of nursing facilities. The gravamen of the District’s position has consistently been that the lack of available, affordable, and accessible housing is the real reason that class members have not been able to move out of nursing facilities to receive long-term care in the community. Plaintiffs, for their part, have maintained that housing is not a barrier, nor is it the cause of class members’ institutionalization. Both parties, however, agree that the supply of public and subsidized housing is under the control of the D.C. Housing Authority (“DCHA”), which is an independent authority not subject to the control of the District.
At the very first Status Conference, the Court asked plaintiffs where the putative class members would live if they received long-term care outside of a nursing facility. Plaintiffs represented that the supply of accessible, affordable housing was not an issue, but that class members needed assistance securing the required documents to apply for housing. (See 4/29/2011 Status Conf. Tr. at 5:16–21 (“[A]s an initial matter, people would obviously have to have homes to live in. . . . [T]he good news . . . is that there are hundreds of wheelchair accessible units available in the District of Columbia now.”); id. at 7:17–20 (“People have to
8 The DOJ’s Olmstead Statement notes that, “[i]n Olmstead, the Court held that the plaintiffs could make out a case under the integration mandate even if they could not prove ‘but for’ their disability, they would have received the community-based services they sought.” U.S. Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (June 22, 2011), http://www.ada.gov/olmstead/q&a_olmstead.htm. This statement, however, was made in the context of an individual discrimination case under the ADA, not in a class action alleging an Olmstead violation on a behalf of class of physically-disabled people.
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apply for the units and go through the application process, but they need assistance as part of that process to reestablish documentation, their identification.”).)
Plaintiffs further represented that housing was not a barrier for many of the putative class members. According to plaintiffs, many class members “have houses already. They have apartments. They have homes, they have families. But what their families don’t have is the capacity to provide the home care necessary to support them, and they don’t have capacity to help to make physical accommodations to their houses so that people can be wheeled in.” (Id. at 17:5–11.)
At the January 7, 2013 hearing, the Court pointed out that it had no power to order the District to create new housing, even if that is what would solve class members’ institutionalization. Plaintiffs responded that they were not asking the District “to provide the housing.” (1/7/2013 Hrg. Tr. at 16:1.) Rather, plaintiffs maintained that “there are housing resources in the District of Columbia that people with disabilities who are Medicaid recipients can access. But they can’t do it from where they sit in a nursing home.” (Id. at 16:2-5.) Rather than a lack of housing, plaintiffs argued that class members remained in nursing facilities because they were unable to “[g]et their driver’s license, fill out the applications, get on the wait list, all the things that are barriers that are keeping our class members unnecessarily segregated.” (Id. at 63:8–11.)
At the December 11, 2013 hearing, the Court again brought up the causation issue that had been looming from the outset of the litigation. The Court reasoned that it would have to resolve this as a factual issue. (See Hrg. Tr., Dec. 11, 2013, at 3:7–14.) Plaintiffs again maintained that the lack of transition services, not housing, was the problem:
[Plaintiffs are] not asking DC to provide the housing through this lawsuit, but there are available housing vouchers and there are accessible housing units in the
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District of Columbia. In order to make that application, you need identification documents, you need the application, you need to fill out the application, you need to track the application that’s been filled out proper. Which is what a lot of our plaintiffs are doing. (Id. at 13:24–14:7.) The Court also reminded plaintiffs that they have the burden to demonstrate that any injunction would solve class members’ institutionalization. The Court noted that it “would have to find by [a] preponderance of the evidence [that plaintiffs] have shown that the absence of transition services means the person is stuck, not the inability to have a house, [a] place to live [in].” (Id. at 46:25–47:3.) The Court asked plaintiffs, “[h]ow are you going to prove at trial that if we beef up the services that you’re actually going to succeed in getting people out. You have to prove causation. And that gets down to the old housing problem.” (Id. at 33:8–12.) Plaintiffs responded that expert testimony is “how we would prove a big part of that case. Because this is not rocket science.” (Id. at 33:15–17.) Using then-named-plaintiff Jacqualyn Thorpe as an example, plaintiffs doubled down on their argument that housing presented no insurmountable barrier to class members: “The fact is, you know, if people were assisting Miss Thorpe and other people to secure the necessary documents, applications, different things to get housing, Miss Thorpe, you know, could get housing.” (Id. at 61:20–23.)
FINDINGS OF FACT As explained above, the trial focused on the current state of the District’s efforts to comply with Olmstead’s integration mandate,9 and whether there were specific, concrete deficiencies in the District’s transition services that “represent[ed] the sort of systemic failure that . . . constitute[d] a policy or practice affecting all members of the class in the manner Wal-
9 In Thorpe II, the Court had found that the District had yet to transition meaningful numbers of class members into community-based care. 303 F.R.D. at 138.
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Mart requires for certification. In re District of Columbia, 792 F.3d at 100 (citing DL I, 713 F.3d at 126, 128).
PLAINTIFFS’ WITNESSES Plaintiffs offered testimony from the following named plaintiffs, former named plaintiffs, and two class members, either live, by deposition, or through a guardian: A. Jacqualyn Thorpe 1. On September 13, 2016, plaintiffs read excerpts of Jacqualyn Thorpe’s March 7, 2013 deposition. The District read counter-designations of Ms. Thorpe’s deposition in the afternoon of November 9, 2016, and plaintiffs read additional designations in response to the District’s counter-designations on the same day. 2. Ms. Thorpe, who was formerly a named plaintiff, is now deceased. (Joint Pretrial Statement, Appendix B, at 3.)10 Ms. Thorpe was a Medicaid recipient. (Trial Tr., Sept. 13, 2016, a.m., at 15:24–16:1.) Ms. Thorpe was physically disabled and needed a wheelchair. (Id. at 16:9–22.) She needed assistance getting in and out of the wheelchair to get into bed, cooking, and getting in and out of the bathtub. (Id. at 16:23–17:22.) However, Ms. Thorpe did not need assistance using a phone or filling out paperwork. (Id. at 19:9–20.) 3. As of March 2013, Ms. Thorpe resided at Deanwood Rehabilitation Center in Washington, D.C. (Id. at 14:2–3.) At the time of her March 2013 deposition, Ms. Thorpe had resided in that nursing facility for approximately five years. (Id. at 15:5–6.) Ms. Thorpe wanted to move out of the nursing facility into the community. (Id. at 23:8–10.)
10 Ms. Thorpe was removed as a named plaintiff on September 10, 2010, when plaintiffs filed their Fourth Amended Complaint, as “her health rendered her unable to continue in her role as a Named Plaintiff.” (See Pls.’ Mem. in Support of Consent Mot. to Amend 3d Am. Compl. at 2 n.1.)
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4. Prior to moving to the nursing facility, Ms. Thorpe lived with her sister in the community. (Id. at 15:13–15.) She moved to the nursing facility because of a worsening medical condition that impaired her mobility. (Id. at 15:18–23.) Ms. Thorpe believed that she would eventually return to live with her sister, but her sister died. (Id. at 29:10–12.) 5. Although Ms. Thorpe wanted to move out of the nursing facility, she agreed that the “lack of an identified place to move is the prior reason why [she was] still in the nursing home.” (Trial Tr., Nov. 9, 2016, a.m., at 17:19–22.) She did not know where she would move to. (Trial Tr., Sept. 13, 2016, a.m., at 25:14–17.) She had not visited any housing options, and she was not aware of what housing was available. (Id. at 27:21, 28:3–5.) 6. Ms. Thorpe spoke to her social worker about moving to the community. (Id. at 28:7–12.) She did not ask for information on housing, because she was initially planning on moving back in with her sister. (Trial Tr., Nov. 9, 2016, a.m., at 11:6–12.) Ms. Thorpe knew of one or two meetings about community-based options held at her nursing facility. (Trial Tr., Sept. 13, 2016, a.m., at 30:25–31:12.) Ms. Thorpe spoke to another nursing-facility staff member about applying for public housing and submitted her application. (Id. at 31:13–32:22.) She also spoke with a transition coordinator from the District’s Money Follows the Person (“MFP”) grant program, who had apparently been notified by Ms. Thorpe’s social worker that she wanted to move to community care. (Id. at 32:23–11.)11
B. Larry McDonald 7. Larry McDonald testified live on September 13, 2016. “As of July 25, 2016, Plaintiff
11 The record does not support plaintiffs’ contention, based on their expert’s conclusion, that “DC’s failure to provide information about available services prevented [Thorpe] from moving out.” (See Pls.’ Proposed Findings of Fact and Conclusions of Law at 10, ¶ 27, Jan. 30, 2017, ECF No. 232 (“Pls.’ FF&CL”).) Rather, it appears Ms. Thorpe did receive information from the nursing home staff and from the MFP staff.
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Larry McDonald had at least one physical disability and required assistance with at least two activities of daily living.” (Joint Pretrial Statement, Appendix A, Stipulated Facts ¶ 18 (“Stipulated Facts”).) At the time of trial, Mr. McDonald had been living in a District nursing facility for approximately 12 years, since September 2004. (Trial Tr., Sept. 13, 2016, a.m., at 39:7–16.) 8. Mr. McDonald does not have housing in the community. (Id. at 65:24–67:18.) His nephew had a private family home, but he would not allow Mr. McDonald to move in with him because of Mr. McDonald’s drug history. (Id. at 67:4–5; Trial Tr., Oct. 7, 2016, p.m., at 29:12– 20 (Newland).) 9. As of the time of trial, Mr. McDonald was in contact with social workers at the nursing home and employees of the District, who were “working on papers” for him to transition to the community. (Trial Tr., Sept. 13, 2016, a.m., at 56:2–58:12.)
C. Lavondia Carter 10. Excerpts of Lavondia Carter’s April 23, 2013 deposition were read into the record on September 13, 2016. On November 15, 2016, the District read counter-designations of Ms. Carter’s deposition, and on the same day, plaintiffs read additional designations in rebuttal to the District’s counter-designations. 11. Ms. Carter, formerly a named plaintiff, is now deceased. (Notice of Death, May 28, 2013, ECF No. 105.) At the time of her deposition, Ms. Carter was living in a District nursing facility. (Trial Tr., Sept. 13, 2016, a.m., at 71:9–11.) She had been living there since April 2011. (Id. at 71:12–16.) Ms. Carter died on May 20, 2013. (Notice of Death at 1.) 12. Ms. Carter did not have housing in the community when she was seeking to transition to community-based care. (Trial Tr., Sept. 13, 2016, a.m., at 76:21–24.) She previously lived on her own in the community. (Id. at 71:17–25.) She wanted to live in the nursing facility during
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her recovery from an illness. (Trial Tr., Nov. 15, 2016, p.m., at 59:16–24.) She gave up her apartment in July 2011, 3 months after she moved to the nursing home, because she couldn’t pay her rent. (Trial Tr., Sept. 13, 2016, a.m., at 75:1–10.) In addition to an apartment, she needed a home health aide. (Id. at 76:24–25.) She did not actively try to move out of the nursing home at first; instead she “just waited around to see if [she] could find another residence.” (Trial Tr., Nov. 15, 2016, p.m., at 61:8–15.) At first, there were no openings at her former residence so she “just left it alone.” (Id. at 61:22–62:1.) She testified that she would need a wheelchair accessible apartment. (Id. at 62:9–18.) Nevertheless, she temporarily moved back into her former residence, which was not wheelchair accessible. (Id. at 62:9–18.)12 13. Ms. Carter worked with the District to move out of the nursing home. (Trial Tr., Sept. 13, 2016, a.m., at 78:14–17.) She was a winner of the 2013 MFP lottery. (Id. at 77:16–24.) She was told to have her mother go look at potential apartments for her or to use Metro Access to see the apartments herself. (Id. at 79:3–10.) Ms. Carter did not want to use Metro Access because she would have to “wait so long just to get back.” (Id. at 79:9–10.)
D. Orit Simhoni 14. Orit Simhoni testified on September 13, 2016. She is a court-appointed guardian, occupational therapist, and District case worker for the EPD waiver. (Id. at 81:11–18.) As a legal guardian, she is an advocate on behalf of the individuals on her caseload. (Id. at 81:11–18.) 15. Ms. Simhoni is the legal guardian of named plaintiff Donald Dupree. (Id. at 82:2–4.) She became Dupree’s legal guardian in May 2010. (Id. at 82:5–6.) At that time, Dupree was living in a nursing facility in the District. (Id. 83:6–13.) “As of July 25, 2016, Plaintiff Donald
12 Ms. Carter died before she permanently transitioned out of a nursing facility. Thorpe II, 303 F.R.D. at 130 n.26.
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Dupree had at least one physical disability and required assistance with at least two activities of daily living,” and he “resided in a setting other than a nursing facility.” (Stipulated Facts ¶¶ 14– 15.) 16. Mr. Dupree was diagnosed with schizophrenia and was receiving care from Community Connections, a Department of Behavioral Health contractor, while living in the nursing facility. (Trial Tr., Sept. 13, 2016, p.m., at 35:20–37:14.) Doctors at St. Elizabeth’s and doctors at Community Connections determined he was not a candidate for community transition because of his performance on various health assessments. (Id. at 37:1–39:19.) Ms. Simhoni disagreed with the opinion of Mr. Dupree’s care providers and the “totally subjective” assessments. (Id. at 39:4–19.) After two years in the nursing facility, in August 2012, Ms. Simhoni succeeded in transitioning Mr. Dupree to a community-based assisted living facility. (Id. at 36:5–6, 37:21– 38:10.) 17. Since December 2014, Ms. Simhoni has been the guardian of “Mr. R.,” a class member who is not named in the complaint. (Id. at 7:8–12.) Mr. R. was living in a nursing facility in December 2014, receiving long-term Medicaid services there, and has a physical disability. (Id. at 7:13–8:10.) When he was admitted to the nursing home, Mr. R. had housing in the community. (Id. at 8:11–17.) The first obstacle for Mr. R. was the Delmarva assessment of the number of personal-care hours Mr. R. required. (Id. at 13:2–7.) Mr. R. had to go through an appeals process to secure the number of hours Ms. Simhoni thought would be appropriate for him to live in the community. (Id. at 13:7–8.) The “huge delay” was to “assure[] his needs were met when he got home.” (Id. at 13:8–11.) 18. Class member Mr. R. expressed his desire to move back to the community to Ms. Simhoni at the end of December 2014. (Id. at 8:18–9:2.) One to two months later, in January or
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February of 2015, Ms. Simhoni contacted the MFP program, the ombudsman, DCOA and DHCF on his behalf. (Id. at 9:25–10:10, 11:11–16.) The MFP staff had apparently already gotten a referral for Mr. R. (Id. at 14:7–13.) Mr. R. transitioned to the community in August 2016, approximately a year and a half after Ms. Simhoni contacted the District government on his behalf. (Id. at 12:4–9.) 19. Although he had housing and was being cared for under the State-plan PCA services before moving to the community, Mr. R. needed to secure EPD Waiver services for personalcare assistance in addition to those provided under the State Medicaid Plan before he could move back to his original housing. (Id. at 12:18–13:2.) In Ms. Simhoni’s words, “you can’t consent to discharge without knowing that it’s going to be . . . a safe and successful discharge home. He needed equipment, he needed supplies.” (Id. at 17:22–25.) 20. MFP transition coordinators provided assistance to Mr. R. (Id. at 16:1–12.) Although the coordinators were not actively working with Mr. R. when Ms. Simhoni became his guardian, they “start[ed] to work on the situation again.” (Id.) The District paid Mr. R.’s rent through the MFP program, although it was paid late “because of delays in processing.” (Id. at 20:19–22.)
E. Tijuana Tucker 21. Class member Tijuana Tucker testified on September 13, 2016. Ms. Tucker has lived in a nursing facility for at least seven years, and her long-term care is paid for by Medicaid. (Id. at 45:7–10, 46:7–8.) She needs a wheelchair to move around and needs assistance bathing, but she can otherwise care for herself. (Id. at 47:19–48:15.) At the time of trial, Ms. Tucker wanted to live in the community. (Id. at 52:13.) 22. Ms. Tucker has declined to live in a private, family residence instead of the nursing facility. She would be allowed to live with either of her two children, but she does not want to live with them. (Id. at 51:25–52:6.) Instead, she would prefer to live alone. (Id. at 52:4–5.)
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23. Ms. Tucker was apparently working with the District to secure public or subsidized housing. She entered into a lottery with the MFP program and was selected for a set-aside housing-choice voucher. (Id. at 53:2–6.) Ms. Tucker had not used her voucher as of the trial. The problem was a lack of available housing that could accommodate her wheelchair. (Id. at 64:22–65:5.) 24. Ms. Tucker assumed that she “would be able to move once they find [her] a place and stuff like that,” but the District “never brought [her] the voucher.” (Id. at 53:18–25.) Ms. Tucker visited one apartment in the community. (Id. at 58:22–25.) It was not fully wheelchair accessible. (Id. at 59:2–5.) She never went to see the other apartments that might have been available, and the District did not offer to take her to see them. (Id. at 59:6-13.) Her daughterin-law was looking for apartments for her. (Id. at 61:19–25.) 25. The MFP vouchers are generally for one-bedroom apartments. (Trial Tr., Oct. 7, 2016, p.m., at 28:23–25 (Newland).) Ms. Tucker preferred to live with her daughter and grandson, so she had to go through a process to get approved for a three-bedroom unit. (Id. at 28:21–29:2 (Newland).) After the lottery, Ms. Tucker got to the top of the public-housing waiting list for a three-bedroom unit, but she chose to not take the unit and attempt to find a private, subsidized unit with the MFP voucher instead. (Id. at 29:3–6 (Newland).) At the time of trial, Ms. Tucker was awaiting DCHA’s decision on whether she could use the MFP voucher for a three-bedroom unit, which would require her daughter to be approved as a live-in aide. (Id. at 29:6–11 (Newland).)
F. Ivy Brown 26. Named plaintiff Ivy Brown testified on September 13, 2016. She was admitted to a nursing facility in April of 2013 after she had a stroke. (Trial Tr., Sept. 13, 2016, p.m., at 6:22– 23.) Thus, at the time of trial, she had been living in a nursing facility for over three years.
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27. Ms. Brown does not have housing in the community. (Id. at 16:12–17.) Before she went to the nursing facility, she lived with her mother, but she can no longer navigate the stairs in her mother’s house. (Id. at 11:6–9.) In 2015 or the beginning of 2016, the District paid for an assessment of the modifications necessary to make her mother’s house accessible. (Id. at 17:1821, 18:16–19.) Modification of Ms. Brown’s mother’s home was not an option, as it would have been “prohibitively expensive.” (Trial Tr., Oct. 7, 2016, p.m., at 48:13–25 (Newland).) She cannot live with her brother or sister because their homes are not wheelchair accessible. (Trial Tr., Sept. 13, 2016, p.m., at 11:13–18.) Ms. Brown’s sister declined to modify her home if there was a risk of damage to her home. (Id. at 19:16–22.) 28. When Ms. Brown first got to the nursing home, a social worker asked her various questions, including about her preference to live in the community. (Id. at 20:4–21:2.) Another social worker asked her the same set of questions the next year. (Id. at 20:4–21:2.) She expressed her desire to leave the nursing facility and receive home-based care on both occasions. (Id. at 20:4–21:2.) However, according to her October 27, 2015 deposition testimony, Ms. Brown twice, in December 2014 and January 2015, expressed her desire to transition to community care only after she finished her rehabilitation in the nursing facility. (Id. at 22:13–23:1.) She has changed her mind about transitioning and indicated that she wanted to wait to leave the nursing facility. (Trial Tr., Oct. 7, 2016, p.m., at 49:1–14 (Newland).) Ms. Brown explained that she had indicated that she wanted to continue to look for housing while she did her rehabilitation, and she “was fine staying” in the nursing home “as long as they continued to give [her] therapy while [she] was looking for housing in the community.” (Trial Tr., Sept. 13, 2016, p.m., at 22:22– 23:1.) 29. Ms. Brown entered the 2015 MFP lottery but was not selected to receive one of the
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vouchers. (Pls.’ Ex. 78.) G. Roy Foreman
30. Excerpts of Roy Foreman’s March 21, 2013 deposition were read into the record on October 4 and November 15, 2016. At the time of trial, Mr. Foreman was unavailable to testify due to his medical condition. (Trial Tr., Oct. 4, 2016, p.m., at 62:18–23.) Mr. Foreman was a named plaintiff at the time of trial. (Joint Pretrial Statement, Appendix A, Stipulated Definitions ¶ 1 (“Stipulated Definitions”).) He died on January 15, 2017, after the close of trial. (Notice of Death, Jan. 17, 2017, ECF No. 231.) 31. In 2006, after a stay in the hospital, Mr. Foreman moved from the community to a nursing facility. (Trial Tr., Oct. 4, 2016, p.m., at 64:1–5, 66:22–24.) At the time of his March 2013 deposition, Mr. Foreman was still in a nursing facility. (Id. at 64:22–65:1.) “As of July 25, 2016, Plaintiff Roy Foreman resided in a setting other than a nursing facility.” (Stipulated Facts ¶ 23.) Thus, Mr. Foreman lived for between six and ten years in a nursing facility before he transitioned to community-based long-term care. 32. During his nursing-facility stay, Mr. Foreman did not move back in with his sister, with whom he previously lived, because she did not want to tend to his medical needs any more. (Trial Tr., Nov. 15, 2016, p.m., at 66:9–67:1.) Mr. Foreman would accept housing only in the Northwest quadrant of the District. (Id. at 68:21–69:5.) 33. In order to move out of the nursing home, Mr. Foreman applied for public housing, got Metro Access services, and looked at four apartments between 2006 and 2010. (Trial Tr., Oct. 4, 2016, p.m., at 66:25–67:14.) He accepted an apartment at the Regency. (Id. at 67:18–20.) However, at the time of the deposition he had not moved because he had not located a home care agency that could provide the 24-hour care he needed. (Id. at 67:21–25.) Mr. Foreman had previously attempted to take two other apartments, but he could not sign the lease before his
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home care assistance was in place. (Id. at 68:1–13.) After his deposition was taken, Mr. Foreman transitioned to the community. (Stipulated Facts ¶ 23.) 34. Mr. Foreman received transition assistance from the MFP program, which paid his rent while he waited for approval for 24-hour Medicaid-funded personal care assistance. (Trial Tr., Nov. 15, 2016, p.m., at 74:17–75:6.)
H. Curtis Wilkerson 35. Excerpts of Curtis Wilkerson’s March 28, 2013 deposition were read into the record on October 4 and November 15, 2016. Mr. Wilkerson was formerly a named plaintiff, but he died before trial. (Notice of Death, Jan. 21, 2015, ECF No. 151.) 36. Mr. Wilkerson was physically disabled, as a spinal cord injury left him paralyzed from the chest down. (Trial Tr., Oct. 4, 2016, p.m., at 80:5–13.) He received long-term care through Medicaid. (Id. at 79:20–25.) Mr. Wilkerson entered a series of nursing facilities after a surgery in January 2002, and he resided in nursing facilities for over ten years. (Id. at 78:16–18; 97:4–9). In March 2012, a year after he had updated his application to reflect that he required a wheelchair-accessible unit, Mr. Wilkerson reached the top of the public housing waiting list. (Id. at 96:11–97:9.) 37. Prior to his surgery, Mr. Wilkerson was living with his parents in the community. (Id. at 78:6–15.) However, he could not climb the steps to his parents’ property, which was on the top floor of the building. (Id.) Because he was unable to get into his parents’ home and could not find another suitable place to live, he went into a nursing home after his rehabilitation. (Trial Tr., Nov. 15, 2016, p.m., at 4:16–25.) At the time, Mr. Wilkerson thought the nursing facility was the “best place to meet [his] needs.” (Id. at 5:4–7.) Mr. Wilkerson could not get home care assistance from his family members. (Trial Tr., Oct. 4, 2016, p.m., at 79:8–19.) 38. Mr. Wilkerson had been on the public housing waiting list since 2002. (Id. at 86:18–22.)
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He updated his preferences in 2008 and again in 2011. (Id. at 86:18-87:3; 96:11–14.) In March 2012, DCHA contacted Mr. Wilkerson to notify him that public-housing unit was available, and he saw the apartment in June or July of 2012. (Id. at 84:19–85:4.) Mr. Wilkerson testified that his wheelchair could not fit in the elevator, but he managed to see the apartment and paid a $100 deposit. (Id. at 85:10–24.) The next day, he called DCHA to say he would not take the apartment. (Id.) Without services in place, he did not want to take the apartment. (Id. at 85:25– 86:5.) At the time of his 2013 deposition, Mr. Wilkerson had transitioned from a nursing facility to the community. (Id. at 77:2–19.) 39. Mr. Wilkerson heard about the MFP grant program in 2009. (Id. at 80:17–81:9.) He attempted to make contact with the MFP program coordinators in 2009 and 2010, but he was unsuccessful because the voicemail of the number he had was full. (Id. at 81:17–82:4.) He spoke to a nursing home social worker about the program in 2009. (Id. at 82:5–8.) He also attended an MFP information session in 2011 with the woman whom he had attempted to contact in 2009 and 2010. (Id. at 82:18–83:6.) 40. As of at least 2012, Mr. Wilkerson was in contact with MFP transition coordinators. (Id. at 85:17–24.) He did not tell the MFP staff when DCHA notified him for the first time about an available apartment in March 2012. (Id. at 86:10–17.) The next time Mr. Wilkerson was notified of an open apartment, he told the MFP transition coordinators about it immediately. (Id. at 89:10–12.) He met with an MFP transition coordinator to have a planning meeting thereafter. (Id. at 90:9–22.) To assist his transition, MFP paid for Mr. Wilkerson’s furniture and paid $520 of his apartment fees. (See Pls.’ Ex. 511, at 21.) MFP also reimbursed him for the security deposit and the first month’s rent that he paid on his own. (Trial Tr., Oct. 4, 2016, p.m., at 88:11–88:22.)
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In addition to the named plaintiffs and class members present at trial, plaintiffs called the following witnesses:
I. Randy Smith 41. Randy Smith testified on September 13 and 14, 2016. Mr. Smith is a part-time social worker for Iona Senior Services, one of five “lead” agencies that is partially funded by the District to provide case management to individuals living in a given geographic area of the District. (Trial Tr., Sept. 13, 2016, p.m., at 66:22–25, 67:8–68:4.) Iona case workers help individuals living in the community “get in touch with or learn about options for home care which would include the EPD Waiver, the Medicaid State Plan or private home agencies,” access transportation, and enroll in other benefits programs. (Id. at 68:5–69:18.) 42. Mr. Smith primarily serves individuals already living in the community, never having had more than “one client at a time, at any given time [who was in a nursing facility]. And maybe not even that.” (Trial Tr., Sept. 14, 2016, a.m., at 59:18–60:6.) Since “Iona helps people in the community,” Mr. Smith would only interact with nursing-facility residents if someone on his caseload moved from the community to a nursing facility. (Id. at 59:18–60:1.) 43. Mr. Smith has tried to get his clients subsidized housing vouchers. (Id. at 59:12–14.) According to Mr. Smith, getting a subsidized rent apartment through a voucher is “like gold.” (Id. at 59:5–7.) However, he has never succeeded in getting a client a voucher, as “it’s impossible” to secure one. (Id. at 59:15–17.) Mr. Smith notes that securing coverage “easy . . . if there’s family to help out. Or if [the individual seeking long-term care in the community] ha[s] sufficient resources.” (Trial Tr., Sept. 13, 2016, p.m., at 72:4–7.)
J. Leyla Sarigol 44. Leyla Sarigol testified on September 14 and 16, 2016. Ms. Sarigol is the project director for the District’s MFP grant program, a federal initiative administered by the District in order to
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assist disabled individuals transition from nursing facilities to community-based care within the District’s Department of Health Care Finance (“DHCF”). (Trial Tr., Sept. 14, 2016, p.m., at 5:23–24, 6:2–6.)
K. Claudia Schlosberg 45. Claudia Schlosberg testified on September 16 and November 9, 2016. She has been senior deputy director of DHCF and the State Medicaid Director for the District since April 2014. (Trial Tr., Sept. 16, 2016, p.m., at 17:23–18:9.) Ms. Schlosberg has over 30 years of experience in the Medicaid field, during which most of her work has related to long-term care. (Trial Tr., Nov. 9, 2016, a.m., at 63:7–13.)
L. Brenda Fisher 46. Brenda Fisher testified on October 4, 2016. She is the director of social work at Transitions Nursing Facility, a nursing facility in the District. (Trial Tr., Oct. 4, 2016, a.m., at 5:22–6:4.)
M. Jennifer Crawley 47. Jennifer Crawley testified on October 4, 2016. Ms. Crawley has been the DHCF program director of long-term care since November 16, 2015. (Id. at 31:8–18; 31:23–24.) In this capacity, she oversees the operation of the EPD Waiver and the Medicaid State Plan PersonalCare Assistance (“State Plan PCA”) program. (Id. at 31:25–32:5.) 48. Ms. Crawley holds a master’s degree in social work, and she has been a licensed social worker since 1998. (Id. at 86:21–87:4.) She has over fifteen years of experience in long-term care in the District, having worked for MedStar Health Washington Hospital Center’s House Call Program from 2001 until November 2015. (Id. at 83:23–84:16.). There, she began as a community social worker and was eventually promoted to senior social worker and chief social worker. (Id. at 84:17–86:13.)
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N. Gerald Kasunic 49. Gerald Kasunic testified on October 5, 2016. He has been the deputy associate director at the Aging and Disability Resource Center (“the ADRC”), within the D.C. Office on Aging (“DCOA”), since October 2014. (Trial Tr., Oct. 5, 2016, a.m., at 4:25-5:2; 5:14–16). 50. From 1999 to 2010, Mr. Kasunic was the District’s Long-Term Care Ombudsman. (Id. at 5:21–6:14, 8:25–9:3.) The Long-Term Care Ombudsman’s office is an independent, federallymandated office, which is contracted through DCOA. (Id. at 7:11–15.) Its mission is “to improve quality care and long[-]term care facilities” and “to actually reach the outcome desired by the resident,” including assisting with transitions from nursing homes to the community. (Id. at 8:2–18.) Mr. Kasunic assisted with transitions, educated nursing facility residents about services available in the community, and trained his team to do the same. (Id. at 8:16–9:13.)
O. Roger Auerbach 51. Roger Auerbach, plaintiffs’ retained expert, submitted his expert report in lieu of testifying on direct examination, as required by the Court. (See Pls.’ Ex. 884.) The District cross examined Mr. Auerbach on October 5, 2016. 52. Mr. Auerbach provides consulting services to states regarding their long-term care programs. (See Pls.’ Ex. 884, ¶ 11 & Appendix A.) He was retained by plaintiffs to offer his opinions about the District’s efforts to assist Medicaid beneficiaries with physical disabilities who live in nursing facilities and want to return to community-based settings. (Id. ¶ 1.)
THE DISTRICT’S WITNESSES In addition to recalling Ms. Schlosberg and reading counter-designations, the District called the following live witnesses: A. Laura Newland 53. Laura Newland testified on October 7 and November 8, 2016. She has been the
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executive director of DCOA since November 2015. (Trial Tr., Oct. 7, 2016, a.m., at 5:14–18.) DCOA provides services and supports for people who are age 60 and older, adults with disabilities, and their caregivers. (Id. at 8:24–9:2.) 54. Before beginning in her current role at DCOA, Ms. Newland was special assistant for community living to the Deputy Mayor for Health and Human Services, Brenda Donald. (Id. at 6:1–11.) The special assistant for community living is the liaison for DCOA, the Department on Disability Services (DDS), DHCF, and the Office of Disability Rights. (Id. at 6:24–7:5.) Ms. Newland’s work was primarily focused on assessing the agencies’ collective long-term care services and supports. (Id. at 7:6–11.)
B. Sharon Lewis 55. Sharon Lewis testified on November 8, 2016. She is the senior deputy director of the Health Regulation and Licensing Administration at the D.C. Department of Health. (Trial Tr., Nov. 8, 2016, p.m., at 25:6–9.) In that role, Ms. Lewis is responsible for overseeing regulatory compliance of health facilities within the District, including nursing facilities. (Id. at 25:18–23.)
C. Hammare Gebreyes 56. Hammare Gebreyes testified on November 8, 2016. She is the chief of staff at DCHA. (Id. at 56:2–4.) DCHA administers the District’s public-housing and subsidized-housing programs. (Id. at 55:23–56:1.)
D. Ronald McCoy 57. Ronald McCoy testified on November 9, 2016. He is the DCHA’s director for the Housing Choice Voucher Program. (Trial Tr., Nov. 9, 2016, a.m., at 24:25–25:3.) In that capacity, Mr. McCoy manages the federal vouchers and the local-housing vouchers in the Local Rent Supplement Program. (Id. at 25:8–26:6.)
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58. Nathan Bovelle testified on November 15, 2016. He is the deputy executive director for operations at DCHA. (Trial Tr., Nov. 15, 2016, p.m., at 25:9–14.) In that capacity, he oversees the administration of the public-housing units owned and operated by the District. (Id. at 25:24– 26:6.)
MEDICAID-FUNDED LONG-TERM CARE IN THE DISTRICT 59. Medicaid, a federal program administered in the District by the local government, funds long-term care for individuals in the District who have physical disabilities and meet certain financial requirements. “A ‘Medicaid State Plan’ is an agreement between a state and the Federal government that describes how that state shall administer its Medicaid program and provides assurance that a state will abide by Federal rules and may claim Federal matching funds for its program activities.” (Stipulated Definitions ¶ 11.) The Center for Medicare and Medicaid (“CMS”) is the federal agency that provides oversight of services provided under the District’s Medicaid plan. 60. Under the District’s Medicaid plan, individuals may receive long-term care in nursing facilities or through “Home and Community-Based Services.” In either setting, individuals are provided with assistance performing activities of daily living (“ADLs”) or instrumental activities of daily living (“IADLs”). ADLs are “self-care tasks, including eating, bathing, toileting, dressing, and mobility/transferring.” (Id. ¶ 8.) IADLs include “medication management, meal preparation, housekeeping, money management, and telephone use.” (Pls.’ Ex. 139, at 1.) 61. The federal government reimburses a portion of the District’s expenditures on its Medicaid-funded long-term care, based on what is known as the Federal Medicaid Assistance Percentage (“FMAP”). (See Stipulated Facts ¶ 39.) Under the standard FMAP, applicable to nursing-facility services and home and community-based care, the federal government pays 70%
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of Medicaid costs, and the District pays 30%. (See id.) A. Nursing Facilities
62. A nursing facility is “any facility licensed to operate as a nursing facility under Title 22B, Section 3200 et seq. of the D.C. Municipal Regulations.” (Stipulated Definitions ¶ 10.) “Nursing facilities are ‘institutions’ within the meaning of Olmstead . . . and Title XIX of the Social Security Act, 42 U.S.C.A. § 1396r.” (Stipulated Facts ¶ 27.) The District does not operate nursing facilities itself; rather, it funds long-term care in nursing facilities for eligible Medicaid beneficiaries through its Medicaid State Plan. (Trial Tr., Nov. 9, 2016, a.m., at 79:14– 80:3.) 63. “There are 19 nursing facilities in the District that are certified for reimbursement through DC Medicaid.” (Stipulated Facts ¶ 25.) Those nursing facilities provide approximately 2,770 beds to the DC Medicaid population. (Trial Tr., Sept. 16, 2016, a.m., at 73:1–10; Pls.’ Ex. 87, at 19). To be eligible for Medicaid-funded long-term care in a nursing facility, an individual must meet the “nursing-facility level of care,” meaning he or she requires extensive assistance with two or more ADLs, or supervision with two or more ADLs and one IADL. (Trial Tr., Sept. 16, 2016, p.m., at 22:2–19; Pls.’ Ex. 139.) 64. As discussed below, Qualis, the District’s independent quality improvement organization contractor, determines whether an individual meets the nursing-facility level of care. (Trial Tr., Sept. 16, 2016, p.m., at 34:9–15.) Qualis conducts the initial assessment at the time of admission and does continuing reviews after 30 days, 6 months, one year, and then once a year thereafter. (Trial Tr., Nov. 9, 2016, a.m., at 82:6–12.) 65. The class is defined as physically disabled people who have been receiving Medicaidfunded long-term care in such nursing facilities for over 90 days and wish to transition from
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nursing homes to community care. (See 4th Am. Compl. ¶ 120.)13
66. “The DC Medicaid Program does not maintain a waiting list for nursing facility
placement.” (Stipulated Facts ¶ 26.) According to the District’s 2016 Olmstead Plan, the
District’s nursing facility occupancy rate for the fourth quarter of Fiscal Year 2014 was 98%.
(Pls.’ Ex. 87, at 19; see Trial Tr., Oct. 7, 2016, p.m., at 61:19–22.) The District’s nursing-facility
occupancy rate has remained well above 90% for the relevant timeframe—from 2012 to the
present. (Trial Tr., Nov. 9, 2016, p.m., at 61:16–19.).
67. In the fourth quarter of Fiscal Year 2014, the average length of stay in a nursing facility
(for both class members and non-class members) in the District was 537 days. (Pls.’ Ex. 87, at
19; Trial Tr., Sept. 16, 2016, a.m., at 73:22–74:6.) The District compiled data of the time spent
in nursing facilities for individuals who successfully transitioned to community-based long-term
care. (See Pls.’ Ex. 803 (updated as of July 20, 2017 hearing).)14
68. From 2011–2016, 182 class members transitioned from nursing facilities to home and
community-based long-term care. (See Pls.’ Ex. 803.)15 In 2011, 16 class members transitioned:
13 Plaintiffs presented a great deal of testimony related to class members’ experiences in nursing facilities. Whether living in a nursing home is restrictive or unpleasant is not at issue in this case: under Olmstead, plaintiffs must show that class members can and want to live in a less restrictive environment in the community, not that they have suffered in nursing facilities. 14 The Court included the reported data through the end of 2016, which the District supplemented at the July 2017 hearing. There are many ways to slice these data. The Court has focused only on class members, by eliminating any individuals who spent less than 90 days in nursing facilities. The Court grouped the class members who transitioned by the year that they left the nursing facility and by the type of housing to which they transitioned (private or public/subsidized). Public/subsidized housing includes public housing, senior housing, housing secured through a DCHA housing-choice voucher, or housing secured through the MFP housing voucher. The Court used the date of admission to the nursing facilities as the baseline, rather than the date that an individual requested transition assistance. 15 The number of transitions specific to the MFP program are detailed below. (See infra Findings of Fact ¶¶ 88–99.)
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all 16 went to public/subsidized housing, and they spent an average of 1,361 days in nursing facilities. (See id.) In 2012, another 16 class members transitioned: seven of them went to private housing, spending an average of 410 days in nursing facilities; and nine went to public/subsidized housing, spending an average of 1,193 days in nursing facilities. (See id.) In 2013, 27 class members transitioned: 16 went to private housing, spending an average of 240 days in nursing facilities; and 11 went to public/subsidized housing, spending an average of 1,087 days in a nursing facility. (See id.) In 2014, 39 class members transitioned: 13 went to private housing, spending an average of 414 days in nursing facilities; and 26 went to public/subsidized housing, spending an average of 1,083 days in nursing facilities. (See id.) In 2015, 42 class members transitioned: 21 went to private housing, spending an average of 320 days in nursing facilities; and 21 went to public/subsidized housing, spending an average of 909 days in nursing facilities. (See id.) In 2016, 51 class members transitioned: 18 went to private housing, spending an average of 640 days in nursing facilities; 33 went to public/subsidized housing, spending an average of 1,115 days in nursing facilities. (See id.)
B. Medicaid-Funded Home and Community-Based Services 69. DC Medicaid runs two home and community-based long-term care programs that are relevant to this case: the State Plan PCA services and the EPD Waiver. (See Stipulated Definitions ¶ 3 (“‘DC Medicaid’ refers to the State Plan for Medical Assistance approved by CMS under Title XIX of the Social Security Act.”); id. ¶ 4 (The “‘EPD Waiver’ is the Medicaid Waiver for People who are Elderly and/or have Physical Disabilities established under Section 1915(c) of the Social Security Act.”); id. ¶ 9 (“Home and Community-Based Services” are “services provided in community settings under the District’s Medicaid State Plan and the EPD
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Waiver”).)16 70. Both the State Plan and the EPD Waiver are Medicaid-funded programs overseen by DHCF. (Trial Tr., Oct. 4, 2016, a.m., at 34:22–35:15.) Each program provides personal-care assistance in community-based settings, based on slightly different eligibility criteria. (See Stipulated Facts ¶ 36 (“State Plan PCA services provide in-home personal care aides to Medicaid-eligible individuals.”).) The EPD Waiver, unlike the State Plan, also provides casemanagement and other services for individuals receiving long-term care in community-based settings. In addition to personal-care assistance and case management, the EPD Waiver provides the following services: adult day health, homemaker, chore aide, respite, personal emergencyresponse system, environmental-accessibility adaptations, assisted living, participant-directed service, occupational therapy, and physical therapy. (Pls.’ Ex. 87, at 20.) An individual who receives the EPD Waiver can have a friend or family member provide personal care assistance instead of a home-health agency under the Participant Directed Care Initiative. (Trial Tr., Sept. 14, 2016, a.m., at 64:10–24.) 71. As of 2015, there have been more than enough EPD Waiver slots to accommodate all class members who need services under the EPD Waiver. (Trial Tr., Sept. 16, 2016, p.m., at 38:23–39:9.) This was not the case as of the time of Thorpe II, for at least through 2013, there was a waiting list of hundreds of individuals waiting for EPD Waiver services. There is no longer a waiting list for the EPD Waiver. (Id. at 56:6–9.) 72. Eligibility for State Plan PCA services is based on an individual’s need for “assistance with at least one [ADL].” (Stipulated Facts ¶ 36.) Because the State Plan does not require a
16 The District also operates an “ID/DD Waiver” program for “individuals with developmental and intellectual disabilities.” (Pls.’ Ex. 87, at 19.) Individuals who have only intellectual disabilities are not included in the class.
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“nursing facility level of care,” authorization for Medicaid payments for State Plan PCA services does not require a level-of-care determination by the District’s contractor, Qualis. (Trial Tr., Oct. 4, 2016, a.m., at 37:3–5.) Still, before Medicaid will pay for State Plan PCA services, an individual must be assessed by Delmarva, another District contractor, to determine the number of hours of personal care that he or she needs. (Id. at 37:5-8.) 73. An individuals’ eligibility for the EPD Waiver is the same as his or her eligibility for long-term care in a nursing facility. (Id. at 37:9–20; Trial Tr., Sept. 16, 2016, p.m. at 23:2–15; Pls.’ Ex. 139.) That is, he or she must require extensive assistance with two or more ADLs or supervision with two or more ADLs and one IADL. (Trial Tr., Sept. 16, 2016, p.m. at 22:2–19; Pls.’ Ex. 139.) Like eligibility for nursing-facility care, Qualis assesses whether an individual meets this requirement. (Trial Tr., Sept. 16, 2016, p.m., at 34:9–15.) As with State Plan PCA services, Delmarva determines the number of hours of PCA the individual needs before Medicaid will fund such services under the EPD Waiver. 74. State Plan PCA services cover up to eight hours of personal-care assistance per day. (Id. at 26:7–11.) The EPD Waiver covers up to sixteen hours of personal-care assistance per day. (Trial Tr., Oct. 5, 2016, a.m., at 26:21–25.) An individual can access both sources of home and community-based long-term care at the same time: “[d]epending on a qualified individual’s needs, PCA services available through the Medicaid State Plan and the EPD Waiver program can be combined so that a qualified individual receives 24 hours of care, seven days per week.” (Stipulated Facts ¶ 37.) “Because the level-of-care eligibility requirement for State Plan PCA services is lower than the requirement for the EPD Waiver program, a qualified individual could receive State Plan PCA services even if not eligible for the EPD Waiver program.” (Id. ¶ 38.) 75. Case management (under the EPD Waiver) and home-health aide services (under the
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EPD Waiver and/or the State Plan) are provided by two separate types of agencies in the District. The District has certified 19 home-health agencies (“HHAs”) and 13 case management agencies. (Trial Tr., Oct. 4, 2016, a.m., at 33:3–6; 57:13–14.)17 Under the District’s “conflict-free case management” rule, the same agency may not provide both case management and home-health aide services. (Id. at 56:5–57:1.) The rule was mandated by CMS. (Id.) This new rule came into effect in November of 2015 and required all individuals whose cases were managed by a HHA to be transferred to a different case-management agency. (Id.) This in turn caused a backlog of EPD-Waiver applications. (Trial Tr., Sept. 16, 2016, p.m., at 76:15–24.) 76. In December 2015, CMS placed the District’s provision of PCA services (under both its EPD Waiver and State Plan PCA programs) under a Corrective Action Plan (“CAP”), which still remains in effect. (Id. at 59:3–24, 61:1–20; Pls.’ Ex. 882, at 11.) CMS cited the District for abdicating responsibility for determining the amount of needed services to agency providers that stood to benefit from recommending additional services. (Trial Tr., Sept. 16, 2016, p.m., at 59:316; Pls.’ Ex. 882, at 1–2.) This resulted in the “conflict-free” case management rule. 77. In January 2016, CMS imposed a second CAP on DC’s EPD Waiver program for failing to meet all six requirements to operate an EPD Waiver. (Trial Tr., Oct. 4, 2016, a.m., at 38:10– 23; Pls.’ Ex. 437, at 1–3; Pls.’ Ex. 257; Pls.’ Ex. 712; Trial Tr., Sept. 16, 2016, p.m., at 29:19– 22.) Those requirements are (1) maintaining a process to monitor level of care determinations;
17 The parties have agreed that there are a sufficient number of providers of PCA services in the District. (Hearing Tr., July 20, 2017, at 55:1–17.) Plaintiffs’ complaint, however, is that there are insufficient transition services to connect class members with the needed services. Given the testimony of named plaintiffs’ and class members’ experiences, it appears that the problem is not always a lack of transition services but a dispute over the number of PCA hours that Delmarva is willing to authorize. (See Trial Tr., Sept. 16, 2016, p.m., at 78:20–79:7; Trial Tr., Sept. 13, 2016, p.m., at 13:2–11; 33:3–34:1 (Ms. Simhoni discussing the “huge delay” for class member Mr. R.).)
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(2) ensuring that service plans for waiver participants actually meet their needs; (3) maintaining a process to ensure that services are provided by qualified providers; (4) ensuring that the health and welfare of participants is protected; (5) retaining adequate administrative authority over the waiver; and (6) maintaining adequate financial authority over the waiver. (Pls.’ Ex. 437, at 2–3; Trial Tr., Sept. 16, 2016, p.m., at 32:19–34:15.) As conceded by Ms. Schlosberg, CMS’s findings were “embarrassingly bad,” but “not unexpected.” (Pls.’ Ex. 432.) 78. CMS faulted DC for failing to ensure quality monitoring of services and failing to (1) track how long it takes for class members to access EPD Waiver services; (2) accurately assess the services class members will need under the EPD Waiver once they leave the nursing facility; (3) have a system of resolving complaints regarding lack of access and authorization for EPD Waiver services; and (4) utilize existing slots in the EPD Waiver. (Trial Tr., Sept. 16, 2016, p.m., at 32:19–33:13, 37:23–38:10, 38:16–39:2, 39:8–9, 42:22–43:10, 43:25–44:3; Pls.’ Ex.. 437, at 5–6, 11, 13–15, 20, 36, 41; Trial Tr., Nov. 9, 2016, p.m., at 9:20–25; Pls.’ Ex. 712, at 39; Trial Tr., Oct. 4, 2016, a.m., at 47:8–15.) 79. As of October 1, 2015, there were 2,006 individuals enrolled in the District’s EPD Waiver. (Pls.’ Ex. 87, at 20.) The cap for the EPD Waiver at that time was 4,960. (Id.) Thus, the District had a 40% utilization rate of its EPD Waiver in 2015. (See id.) As of May 3, 2016, the number of enrollees in the EPD Waiver was 2,449. (Trial Tr., Sept. 16, 2016, p.m., at 50:2-6; Pls.’ Ex. 712, at 34.) Compared with the cap of 5,060 in effect at the time, the District was using 48% of the available EPD Waivers. (Pls.’ Ex. 712, at 34.) The District set the initial cap in 2007 and has requested the maximum increase of 100 slots per year regardless of the need for the slots. (Trial Tr., Sept. 16, 2016, p.m., at 40:7-10.) In the last decade, it has not reexamined the logic behind the original projections. (Id.)
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80. As the District points out, the District’s EPD-Waiver utilization rate of less than 50% means that there is more than sufficient capacity to serve any individual who has housing in the community and is eligible for Medicaid-funded home and community-based services. In addition, because individuals who require eight or fewer hours of personal-care assistance do not have to enroll in the EPD Waiver to receive their needed assistance, the EPD enrollment figures do not reflect the full population of individuals who receive Medicaid-funded home and community-based services. (See Trial Tr., Nov. 9, 2016, a.m., at 84:16–23; Trial Tr., Sept. 16, 2016, p.m., at 24:11–19.) 81. The current EPD Waiver approved by CMS was set to expire on January 4, 2017. The District recently submitted a waiver renewal application to CMS, requesting approval of the HCBS the District intends to offer under the EPD Waiver for the next five years. (Trial Tr., Sept. 16, 2016, p.m., at 46:21-48:5; see Def.’s Ex. 126.) The renewal application maintains the services currently provided by the EPD Waiver and adds community-transition services. (Compare Pls.’ Ex. 134 with Def.’s Ex. 126, at 1.) If approved by CMS, the 2017 EPD Waiver will provide for up to $5,000 of non-recurring setup expenses for individuals transitioning from a nursing facility to the community. (Trial Tr., Nov. 9, 2016, p.m., at 7:2-14; Def.’s Ex. 126, at 1.)
THE DISTRICT’S EXISING TRANSITION SERVICES A. The ADRC’s Community Transition Team (“CTT”) 82. Nursing home residents with physical disabilities seeking home and community-based long-term care are assisted by the ADRC Community Transition Team (“CTT”). (Trial Tr., Oct. 7, 2016, a.m., at 11:7–14; 19:19–20:22.) The CTT is comprised of eight ADRC nursing home transition team members and three transition coordinators from the MFP program. (Id.at 19:19– 20:22; Def.’s Ex. 125.) Although these groups of transition coordinators used to be separate, they were combined within the ADRC in 2015. (Trial Tr., Nov. 9, 2016, a.m., at 74:18–25.)
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83. The eight nursing home transition team care specialists work with individuals in nursing facilities regardless of whether they meet the additional criteria for participation in the MFP. (Trial Tr., Oct. 7, 2016, a.m., at 19:24–20:2.) The three MFP transition coordinators are funded through the federal MFP grant and work exclusively with nursing facility residents who have resided in a nursing facility for more than 90 days. (Trial Tr., Sept. 14, 2016, p.m., at 15:2–8; Trial Tr., Oct. 7, 2016, a.m., at 20:16–21:6.) 84. The District employs eight Medicaid Enrollment Specialist (“MES”) staff members who work at the ADRC and whose sole responsibility is to assist with EPD Waiver enrollment. (Trial Tr., Oct. 7, 2016, a.m., at 22:17–22:25.) The MES staff visit nursing homes, hospitals, and people’s homes to speak to them about the EPD Waiver, help them collect the required documentation, and assist with preparing and submitting the application. (Id. at 23:1–14.) 85. Although the CTT serves anyone wishing to leave a nursing home and receive community-based long-term care, “[t]he District labels certain nursing facility residents who have requested transition assistance as ‘inactive.’” (Stipulated Facts ¶ 28.) Someone is labeled “inactive” when “a transition coordinator has exhausted all available options for circumventing any type of obstacle that would interfere with the transition.” (Trial Tr., Oct. 5, 2016, a.m., at 71:2–10.) Obstacles that would interfere with a transition include lack of housing, income, and family support. (Id.) Lack of documentation may also be a barrier for some individuals. (Id. at 71:11–14.) An individual may not be put on the inactive list until the supervising case manager and the individual case manager review the determination. (Trial Tr., Nov. 8, 2016, a.m., at 86:2–6.) 86. There was no inactive list until 2015. (Trial Tr., Oct. 5, 2016, a.m., at 72:2–9.) Prior to that, all cases were marked “active,” regardless of barriers to transition. (Id.) The ADRC
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determined this was a “resource drain” and instituted the inactive list. (Id. at 72:11–24.) The CTT periodically revisits the cases of individuals on the inactive list. (Id. at 71:19–72:1.) Every six months the individual is visited in person or his or her legal guardian is contacted. (Id. at 73:6–11.)
B. Money Follows the Person (“MFP”) Federal Grant Program 87. The District provides enhanced transition services to certain individuals seeking to transition from nursing facilities to the community through the MFP program.18 MFP is a federally-funded grant program established under the Deficit Reduction Act of 2005. (See Stipulated Definitions ¶ 5.) The program is time-limited: in 2010, spending was authorized for 2012 through the end of fiscal-year 2016. (Trial Tr., Nov. 9, 2016, a.m., at 72:4–12.) The current authorization includes funding through 2020, but the MFP program will be phased out in the District by 2020. (Trial Tr., Nov. 8, 2016, a.m., at 68:16–23.) The District has written a sustainability plan for phasing out MFP. (Id. at 64:16–21.) 88. “To be eligible for the MFP Program, elderly individuals and individuals with physical disabilities must meet the EPD Waiver program’s level of care requirements, must have resided in a nursing facility for at least 90 days, and must have had their nursing facility services paid for by Medicaid for at least one day during the last 30 days.” (Stipulated Facts ¶ 32.) 89. There are nine District staff members who work exclusively on the MFP program. (Trial Tr., Sept. 14, 2016, p.m., at 8:24–9:1.) In addition to the MFP Project Director (Ms. Sarigol), there is an MFP Project Coordinator, an MFP Community Outreach Specialist, an MFP
18 MFP is for elderly/physically disabled individuals and individuals with intellectual and developmental disabilities. Only those services for elderly and physically disabled individuals— those who would receive community-based long-term care under the EPD Waiver—are relevant here.
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Management Assistant, three MFP Transition Coordinators, and two MFP Transition Case Managers. (Id. at 16:22–17:24; Pls.’ Ex. 653.) 90. “The District receives an enhanced [federal repayment] of 85% for the costs of EPD Waiver services provided to MFP Program participants” for the first year that the individual participates in MFP. (Stipulated Facts ¶ 39; Trial Tr., Sept. 14, 2016, p.m., at 18:10–13.) Thus, the District would save money for each individual in the first year that he or she is enrolled in PCA services through MFP: The District would pay 15% —rather than 30% under the standard repayment—of the costs of long-term care during that year. (Id. at 12:16–20.) 91. MFP “is designed specifically to help elderly individuals and individuals with physical disabilities transition from nursing facilities to the community.” (Stipulated Facts ¶ 31.) MFP provides “intensive wrap-around services,” including “funds to cover ‘set-up’ costs incurred as part of the transition.” (Pls.’ Ex. 87, at 20.) Specifically, under MFP, the District provides outreach and education, transition coordination, environmental accessibility adaptations up to $10,000, household setup costs up to $5,000, and intensive case management during the transition and for 365 days following discharge from the nursing facility. (Trial Tr., Sept. 16, 2016, p.m., at 10:6–20.) The household setup funds can pay for a security deposit for an apartment or home, essential household furnishings, initiation fees or deposits for utilities, and moving expenses. (Pls.’ Ex. 129; Pls.’ Ex. 511.) The District tracks how MFP funds are spent for each MFP participant. (See id.) After transitioning, MFP participants may receive PCA services in the community through the Medicaid State Plan (for those who require 8 or fewer hours of PCA per day), the EPD Waiver (for those who require more than 8 hours of PCA per day) or both (for those who require more than 16 hours of PCA services per day). (See Trial Tr., Sept. 16, 2016, p.m., at 28:7–17.)
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92. Prior to 2010, the District’s MFP targeted only individuals with intellectual disabilities. (Trial Tr., Sept. 14, 2016, p.m., at 36:14–22.) Thus, MFP did not transition any elderly or physically disabled individuals in 2008 or 2009. 93. In 2007, when the District first applied for and received approval to participate in the MFP program, the District proposed transitioning roughly 172 elderly or physically disabled individuals residing in nursing facilities per year from 2008-2013. (Pls.’ Ex. 847, at 2.) In 2010, the District began providing MFP-funded transition services to elderly and physically disabled individuals and reset its benchmarks based on the program’s success with transitioning intellectually disabled individuals in 2008 and 2009. (Pls.’ Ex. 129, at 22; Trial Tr., Sept. 14, 2016, p.m. at 36:2-22.) 94. In 2010, the District’s proposed to transition 30 elderly or physically disabled nursing facility residents in 2010 and 40 each year thereafter, for a total of 150 transitions from 2010– 2013. (Pls.’ Ex. 129, at 22; Pls.’ Ex. 113, at 2.) MFP fell far short of its targets each year from 2010–2013: it transitioned zero in 2010, 17 in 2011, 16 in 2012, and 16 in 2013. The total number of MFP transitions was 49, or 33% of its revised goal. (See Pls.’ Ex. 129, at 22; Trial Tr., Sept. 14, 2016, p.m., at 41:23–43:19.)19 95. CMS placed DC under CAPs from 2012 through 2014, as a consequence of DC missing its MFP targets. (Id. at 49:21–50:11; Trial Tr., Nov. 8, 2016, a.m., at 58:14–22; Pls.’ Ex. 107; Trial Tr., Nov. 9, 2016, p.m., at 19:23–20:7.) 96. “In 2014, the District reduced the annual goal for transitioning nursing facility residents to [home and community-based long-term care] through the MFP Program from 40 to 30.”
19 The District retroactively reduced its goal for 2011 from 40 transitions to 26 transitions. (Pls.’ Ex. 113, at 2; Trial Tr., Sept. 14, 2016, p.m., at 40:18–41:6.) Even with the revision, the District only met 62% of its goal that year. (See id. at 42:12–14.)
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(Stipulated Facts ¶ 34.) “In 2014, 24 people were transitioned from nursing facilities to the community through the MFP Program, representing 80% of the District’s goal.” (Id. ¶ 35.) Thus, even after reducing its target for 2014, the District failed to meet its transition goal. 97. For 2015, the District again set a goal of using MFP to transition 30 individuals who qualified for the EPD Waiver from nursing facilities to the community. (Pls.’ Ex. 781; Trial Tr., Sept. 16, 2016, p.m., at 14:25–15:6.) The District, for the first time since it began the MFP program, met (and exceeded) its goal, transitioning 36 elderly and physically disabled individuals that year. (Id.) 98. In 2015, the MFP staff was relocated to the ADRC “so that there could be synergy between the locally funded transition coordinators and the MFP staff.” (Trial Tr., Nov. 9, 2016, a.m., at 74:18–25.) Previously the MFP staff was housed within DHCF. (Id.) 99. In 2016, the District’s goal was to transition 30 additional people through the MFP demonstration. (Pls.’ Ex. 781.) By June 2016, the District had transitioned 16 MFP participants during calendar year 2016. (Id.; Trial Tr., Sept. 16, 2016, p.m., at 15:19-16:3.) The District was therefore on track to transition 32 MFP participants in 2016 and meet the revised goal.20
C. MFP Housing Vouchers 100. In addition to enhanced case management services, MFP has 65 “set-aside” housing choice vouchers that the program distributes to individuals who meet the program’s requirements. (Trial Tr., Oct. 7, 2016, p.m., at 15:21–22.) 101. MFP participants are eligible for the 65 set-aside vouchers, provided that they can meet the financial eligibility requirements that DCHA imposes for participants in subsidized-housing
20 In fact, the figure was 40 by the end of 2016. (See Pls.’ Ex. 365 (updated as of July 20, 2017 hearing).)
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programs. As explained below, an individual would be identified as a potential MFP participant when he or she is referred to the ADRC. If the individual needs affordable housing, he or she would be entered into the MFP’s housing-voucher lottery, which “is held when we have vouchers available.” (Id. at 15:1–2.) 102. MFP has never been able to “fully employ all of [their] vouchers that are set aside for housing.” (Id. at 17:7–10.) A voucher is only “used” when a lease is signed and the individual has moved into the property. (Id. at 21:10–12.) There are unused vouchers at any given time because MFP participants may choose not to accept a housing unit, or a landlord can, for a host of reasons, reject an applicant. (Id. at 20:12–19; 22:6-21.) If this happens multiple times, the voucher will be redistributed to an alternate from the voucher lottery. (Id. at 21:4–6; 22:23– 23:2.) 103. Winning the lottery for a housing voucher gives the recipient the opportunity to secure private, subsidized housing (as opposed to public housing) that will be paid for primarily through the voucher funds. (Id. at 17:20–18:3.) However, it does not guarantee housing. (Id.) The vouchers of individuals who cannot meet the eligibility requirements or cannot secure housing are reallocated to “alternates,” who are also selected during the lottery. 104. Lottery winners must furnish documentation and complete the DCHA eligibility screening within 30 days, unless the MFP staff determines (on a case-by-case basis) that the applicant has attempted to fulfill the requirements but needs additional time. (Id. at 21:20–22:3.) MFP staff assist the lottery winner to fill out those forms. (Trial Tr., Sept. 14, 2016, p.m., at 31:4–7.) 105. In addition, DCHA maintains a list of landlords who accept vouchers, and MFP has hired a contractor, VCare, that provides lists of landlords who accept vouchers. (Trial Tr., Oct. 7,
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2016, p.m., at 18:5–12.) The ADRC partners with local organizations D.C. Housing Counseling and D.C. Housing Search to help individuals looking for a subsidized housing unit. (Trial Tr., Oct. 5, 2016, a.m., at 70:7–13.) The ADRC also employs a housing coordinator who assists the CTT in helping locate housing for individuals and who has informal relationships with real estate developers and other landlords. (Id.; Trial Tr., Oct. 7, 2016, p.m., at 18:5–12.) The ADRC coordinates with DCHA staff who assist individuals with housing-choice vouchers to find suitable housing. (Trial Tr., Nov. 15, 2016, p.m., at 37:15–24.) In addition, transition coordinators assist nursing-facility residents to apply for income benefits. (Trial Tr., Oct. 7, 2016, p.m., at 19:2–8.) 106. Once the DCHA eligibility requirements are complete, lottery winners must find suitable private housing. They can lose their opportunity to use their vouchers for a number of reasons: (1) if they are offered a public-housing unit from DCHA, (2) if they are rejected by three landlords, or (3) if they reject 5 properties. (Trial Tr., Sept. 16, 2016, a.m., at 46:22–47:11.) The latter two reasons are known as the “3-5 Rule.” (Trial Tr., Nov. 8, 2016, p.m., 20:4–12.) 107. The lottery was designed to promote fairness, both for individuals who win the lottery and for those who do not. (Trial Tr., Oct. 7, 2016, p.m., at 19:16–22; 22:4–16.) Instead of allowing an individual to have a voucher earmarked for his or her use indefinitely, the eligibilitydetermination deadline and the 3-5 Rule ensure that alternates will have an opportunity to attempt to use the voucher. (Id. at 22:4–23:2; Trial Tr., Nov. 8, 2016, p.m., at 20:4–12.) Exceptions to the 3-5 Rule, just like the 30-day timeframe to verify financial eligibility, can be made on a case-by-case basis. (Trial Tr., Nov. 8, 2016, p.m., at 21:8–18.) 108. Since the MFP program began, it has held three lotteries—in 2013, 2015, and 2016. . (Trial Tr., Sept. 14, 2016, p.m., at 32:22–33:1.) Sixty individuals were selected in the 2015
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lottery. By December 31, 2015, 44 of the 60 lottery winners were unable to use their vouchers. (Pls.’ Ex. 348, at 2.) Four accepted public housing or subsidized housing through another program. (Id.) Nineteen declined services, either themselves or through a guardian or individual with power of attorney. (Id.) Ten could not meet the 30-day timeline to demonstrate financial eligibility to DCHA or a 30-day deadline to complete other actions. (Id.) Five died. (Id.) One individual was discharged. (Id.) Five were excluded by virtue of the 3-5 Rule. (Id.) 109. The most recent lottery was held on February 29, 2016. (Trial Tr., Sept. 14, 2016, p.m., at 25:8–11.) There were 18 available vouchers at the time. (Id. at 22:3–12.) At the time of trial, roughly seven months after the lottery, two of the lottery winners had signed a lease and two more were in the process of signing a lease. (Id. at 25:12–19.)
D. EPD Waiver Enrollment Assistance 110. To receive either State Plan PCA services or EPD Waiver services, an individual must demonstrate that he or she meets certain financial and clinical eligibility requirements. (Trial Tr., Oct. 4, 2016, a.m., at 36:2–14.) The Economic Security Administration (“ESA”) determines an applicant’s financial eligibility. The District uses a private contractor, Qualis, to verify an applicant’s clinical eligibility–whether the individual meets the minimum level of care for the EPD Waiver. (Trial Tr., Sept. 16, 2016, a.m., at 6:10–15.)21 Another contractor, Delmarva, approves the number of personal-care hours that Medicaid will fund. 111. In June 2015, DCOA and DHCF created a new EPD Waiver enrollment process. (Trial Tr., Oct. 7, 2016, a.m., at 27:3–22; Def.’s Ex. 63.) Under this new process, the ADRC is the “single point of entry for the EPD Waiver program.” (Trial Tr., Oct. 4, 2016, a.m., at 56:2–7.)22
21 Access to State Plan PCA services does not depend on the Qualis level-of-care determination. 22 Jennifer Crawley testified that, as of July 2016, some EPD case managers were unfamiliar with the new enrollment process, which came from CMS’s conflict-free case management
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112. The District tracks the time it takes to complete each step of the EPD Waiver enrollment process, from the initial referral through the enrollment for all applicants. (See Def.’s Ex. 118; Trial Tr., Oct. 7, 2016, a.m., at 37:16–38:4.) It does so in a biweekly report that the ADRC provides to DHCF. (See Def.’s Ex. 118.) 113. The first step, which initiates the EPD Waiver enrollment process, is “intake.” At this stage, the ADRC is notified—by a social worker or another individual—that someone residing in a nursing home would like to enroll in the EPD Waiver. (Pls.’ Ex. 706, at 1.) Once an individual is referred to the ADRC, an MES is assigned to the case. (See Trial Tr., Oct. 7, 2016, a.m., at 39:2–19.) From March 25, 2016, until August 26, 2016, 978 individuals were referred to the ADRC, ranging from 55-128 individuals each biweekly reporting period. (See Def.’s Ex. 118 (listing unique referrals for 11 biweekly periods); Trial Tr., Oct. 7, 2016, a.m., at 36:16– 37:14 (explaining the “Total Individuals” column in Def.’s Ex. 118).) 114. From March 25, 2016, to August 26, 2016, the average time between intake and assignment to an MES decreased steadily. (See Def.’s Ex. 118.) In the first biweekly reporting period, March 25–April 8, 2016, the average time was 83 days, with a range of 25–126 days. (Id.) Roughly two months later, from May 23–June 3, 2016, the average time was 37 days, with a range of 7–113 days. (Id.) For the last six biweekly reporting periods, from June 6–August 26, 2016, the average time was less than 20 days, with a range of 1–79 days. The outliers at the top of the range exist because of staffing limitations at the ADRC or a lack of response from the potential applicant. (Trial Tr., Oct. 7, 2016, a.m., at 39:20–40:15.) 115. The second step of the enrollment process is a face-to-face consultation between the MES
requirement, and the EPD Waiver case managers were not responsive to case-management referrals. (Trial Tr., Oct. 4, 2016, a.m., at 55:14–57:1.) The data provided by ADRC reflects that some of the difficulties that the ADRC had early on have improved since.
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and the applicant. (Id. at 42:14–22.) At the face-to-face meeting, the MES determines whether the individual is eligible for MFP or will be served by the ADRC’s transition coordinators. The average time for the MES to conduct the face-to-face consultation has varied between 8–27 days in the 11 biweekly reporting periods from March 25–August 26, 2016. (Def.’s Ex. 118.) In the most recent reporting period—August 15–August 26, 2016–the average time was 24 days, with a range of 8–70 days. (Id.) Most often, the variance is caused by scheduling difficulties with the potential applicant, although staffing issues at the ADRC can also contribute. (Trial Tr., Oct. 7, 2016, a.m., at 42:23–43:11.) 116. The EPD Waiver “application” is actually five distinct forms: (1) a Beneficiary Freedom of Choice form, for the individual’s consent to receive home and community-based long-term care; (2) a Level of Care certification, which must be approved by an approved DC Medicaid Provider; (3) a Long-Term Care Application; (4) a Combined Medicaid Application (for EPD waiver applicants who are not already enrolled in State Plan Medicaid); and (5) a Case Management Attestation Form, where an applicant indicates his or her preferences for casemanagement agencies. (Pls.’ Ex. 706, at 1.) 117. Although CMS does not dictate the particular forms that the ADRC uses in its EPD Waiver application, it requires the District to maintain certain documentation. (Trial Tr., Oct. 4, 2016, p.m., at 36:5–37:10.) For instance, the District must have an application for certain services, like long-term care and Medicaid, and to collect certain information, like the freedom of choice form, during the application process. (Id.) 118. The EPD Waiver requires the applicant to submit various official documents. An EPD Waiver applicant must have (1) proof of identity; (2) proof of residency; (3) proof of social security number; (4) proof of income and assets; (5) proof of insurances; (6) unpaid medical bills
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from the past three months; (7) proof of power of attorney; and (8) proof of guardianship. (Pls.’ Ex. 706, at 1.) The MES works with the applicant to gather the required documentation and secure the Level of Care determination. (Trial Tr., Oct. 7, 2016, a.m., at 48:17–25.) In the alternative, a community social worker can aid the applicant in securing the documentation before the MES refers the case for the Level of Care determination. (See Pls.’ Ex. 706, at 1.) 119. To complete the Level of Care determination, the MES assigns the case to Qualis. (Pls.’ Ex. 706, at 2.) Qualis is supposed to verify the level of care within 72 hours of the referral. (Id.) If the applicant meets the level of care requirement, the MES sends the application to ESA for a determination of financial eligibility. (Id.) As of the most recent biweekly reporting period, August 15–August 26, 2016, it took an average of 53 days, with a range of 8-150 days, between the MES’s in-person consultation and the submission of the completed application to ESA. (Def.’s Ex. 118.) The average time has increased, from a low of 12 days during the March 25, 2016, to April 8, 2016 biweekly reporting period. (Id.) 120. The ADRC’s role in the EPD Waiver application process—from intake until submission of a completed application to ESA–takes 94 days on average, as of the most recent biweekly reporting period. (Trial Tr., Oct. 7, 2016, a.m., at 44:25–45:5; Def.’s Ex. 118.) That is it takes approximately three months for the ADRC to assist a nursing-facility resident to complete an EPD waiver application after the ADRC is notified that the individual would like to receive community-based long-term care. (Trial Tr., Oct. 7, 2016, a.m., at 44:25–45:5.) 121. ESA is given 60 days to process the application and determine the applicant’s financial eligibility. (Pls.’ Ex. 706, at 2.) From March 25–August 26, 2016, ESA adjudicated 350 EPD Waiver applications. (Def.’s Ex. 118.) In the first three biweekly reporting periods beginning on March 25, 2016, the average time for ESA to process the application took longer than 60 days.
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(See Def.’s Ex. 118 (94 days from March 25–April 8, 2016; 132 days from April 11–April 22, 2016; and 74 days from May 9–May 20, 2016).) Beginning on May 23, 2016, as the number of applications adjudicated leveled off, the average time of processing fell below 60 days. (See id.) Outliers during those reporting periods, however, still took more than 60 days. (See id. (range of 5–147 days from May 23–June 3, 2016; range of 4–144 days from June 6–June 17, 2016.) From June 20–August 26, 2016, ESA adjudicated all applications within 60 days. (See id. (range of 457 days).) Provided that ESA determines that the applicant is eligible, the MES notifies the applicant when the case is transferred to the EPD Waiver case-management agency. (Pls.’ Ex. 706, at 2.) 122. Separate from the application procedure through ESA, in order to authorize Medicaid payments for personal-care assistance, each applicant must be assessed for the number of personal-care hours he or she requires. The District employs Delmarva to perform these “conflict free” face-to-face assessments. (Trial Tr., Sept. 16, 2016, p.m., at 72:17-21.) The applicant must secure a physician order form, which acts as a referral to Delmarva. (Id. at 74:2375:1.) The MES works with the applicant to secure the physician order form by, for instance, calling doctors. (Trial Tr., Oct. 7, 2016, a.m., at 55:9–56:1.) The ADRC has augmented its staffing in order to help applicants secure the physician order form. (Id. at 55:19–21.) The MES sends the applicant’s physician order form to Delmarva to initiate the assessment. (Id. at 49:9– 14.) 123. Once Delmarva receives the physician’s order form, it has three days to contact the applicant and five days after the initial contact to conduct the assessment. (Trial Tr., Sept. 16, 2016, p.m., at 75:1–6.) After assessing the applicant, Delmarva has two days to issue the determination letter. (Id. at 75:6–8.) The average time between receiving the physician order
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form and conducting the assessment for the biweekly reporting periods from March 25–August 26, 2016, ranged from 6–12 days. (Def.’s Ex. 118.) During the period from March 25–August 26, 2016, the average time between the assessment and the determination has been two days or less. (See Def.’s Ex. 118 (range of 0-2 days.) For the three most recent biweekly reporting periods before trial, the average time was zero days, meaning that Delmarva issued the determination on the same day as the assessment. (Trial Tr., Oct. 7, 2016, a.m., at 50:1-12.) 124. Community social workers were not always able to apply for EPD Waiver services on behalf of their clients, but, in response to requests from stakeholders, the District recently began allowing these social workers to enroll clients in the EPD Waiver. (Trial Tr., Sept. 13, 2016, p.m., at 84:17–85:3; Pls.’ Ex. 706.) Community social workers who are completing the application process for their clients are provided with information to review with their clients. (Pls.’ Ex. 706, at 1.) This includes five specific publications that discuss eligibility requirements, the application process, what to expect after enrollment, required documentation, and other policies and procedures related to the EPD Waiver. (Id.) 125. Community Social Worker Randy Smith discussed the EPD Waiver enrollment process and provided three anecdotes from his experience as a case manager. 23 In the first example, Mr. Smith’s client entered a nursing home on June 28, 2016. (Trial Tr., Sept. 14, 2016, a.m., at 43:11–19.) Mr. Smith filed a waiver application on the client’s behalf on July 7, 2016. (Id.)
23 Despite the fact that Mr. Smith was working primarily with individuals who live in the community (and therefore are not class members), plaintiffs offer his testimony on the EPD Waiver application process because it is “the same process that nursing facility social workers would have to use.” (Trial Tr., Sept. 14, 2016, a.m., at 66:14–20.) Mr. Smith’s primary role is to keep people in their housing, not to transition people from nursing homes into the community. (Trial Tr., Sept. 14, 2016, a.m., at 61:13–22.) Even if his experiences were relevant, his testimony does not illuminate any systemic deficiencies in the District’s transition services, but rather it exposes an arguably needlessly bureaucratic process.
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The client was declined for waiver services by letter dated August 11, 2016. (Id. at 28:7–9.) At the time Mr. Smith provided assistance to his client to apply for EPD Waiver services, his client had not been in the nursing home for 90 days. The reason the application was rejected was that Mr. Smith only indicated that his client needed assistance with one ADL, but assistance with two ADLs is required under the waiver program. (Id. at 30:10-15.) As of the time of his testimony, approximately one month after his client was rejected for EPD Waiver services, Mr. Smith had not filed a new application. He still has to “resubmit [her application] with enough boxes checked.” (Id. at 43:25–44:1.) At the time of his testimony, this client still had housing in the community. (Trial Tr., Sept. 14, 2016, a.m., at 44:15–17.) 126. In the second example, Mr. Smith discussed his client “C.C.” C.C. never lived in a nursing home. (Id. at 42:23-25.) In February 2016, Mr. Smith brought concerns about this client’s enrollment delays to a City Council meeting. (Id. at 35:23–25.) After that, Ms. Crawley of DHCF reached out to him to help him “unstick” C.C.’s waiver application. (Id. at 62:14–24.) A Delmarva nurse assessed Mr. Smith’s client for home-care services shortly thereafter. (Id. at 35:23–36:1.) 127. The client did not receive services for three weeks after that, so Mr. Smith reached out to Ms. Crawley again. (Id. at 36:1–6.) The reason for the delay was that C.C. was “rejected by home health agencies.” (Id. at 36:4–6, 63:5–7.) Thereafter, Ms. Crawley facilitated C.C.’s application to a fourth home health care agency that accepted her request for services. (Id. at 37:1–3.) That client ultimately received home care assistance in March 2016, approximately seven months after beginning the process. (Id. at 32:10–12.) 128. In the third example, Mr. Smith decided not to apply for EPD Waiver services for another client, who is an amputee. (Id. at 54:8–9.) The client had been approved for EPD Waiver
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services and assessed for fourteen hours of personal-care assistance, but Mr. Smith only applied
for State PCA services. (Id. at 54:12–16.) He reasoned that, given his experience with the
lengthy EPD Waiver enrollment process, the “easiest route” was the State Plan. (Id. at 54:23.)
Still, Mr. Smith concedes that, at least “in the last few months,” things have improved, since
social workers have been “invited to play a role” in securing long-term care in the community.
(Id. at 63:9–15.)24
E. The District’s Nursing-Facility Outreach 129. The District conducts outreach to nursing facility residents regarding their options for
community-based long-term care, including face-to-face outreach by the MFP outreach
coordinator and community transition team (Trial Tr., Oct. 7, 2016, p.m., at 9:22–10:11); the
ADRC’s Information Referral and Assistance unit (Trial Tr., Oct. 5, 2016, a.m., at 50:12–22);
regular assessments by Qualis (Trial Tr., Oct. 7, 2016, p.m., at 24:14–25:5); and information
provided through nursing facility social workers (Trial Tr., Nov. 8, 2016, p.m., at 34:9–13).
130. The MFP outreach coordinator visits every nursing facility in the District at least once a
month to conduct outreach. (Trial Tr., Oct. 7, 2016, p.m., at 9:22–10:6.) The ADRC’s
community transition team meets with every person on their caseload at least once a month. (Id.
24 Plaintiffs’ expert characterized this testimony as evidence that “even for people already living in the community, it takes a minimum of seven months to get services to [individuals] under the EPD Waiver program following an application.” (Pls.’ Ex. 884, ¶ 64.) Plaintiffs argue that this is evidence that “miscommunication and confusion significantly delay the EPD Waiver enrollment process.” (Pls.’ FF&CL at 7, ¶ 17.) But again this does not necessarily reflect on the adequacy of the District’s transition services. One of the clients never lived in a nursing home, and the second never had a complete application submitted. Mr. Smith did not apply for EPD Waiver services for the third. At best, Mr. Smith provided one example of the EPD Waiver enrollment process taking seven months. However, Mr. Smith’s testimony reveals that errors that he committed in turn protracted the application process. Indeed, his client who is in a nursing home did not even have an EPDWaiver enrollment application pending, even though Mr. Smith would merely have had to resubmit the paperwork with an appropriate level of care indicated.
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at 9:22–10:6.) While at the nursing facilities, the community transition team also speaks to nursing home social workers, administrators, and other residents about community transitions. (Id. at 10:7-11.) The ADRC holds monthly meetings for community social workers, and the Longterm Care Coalition holds monthly meetings at a case management agency. (Trial Tr., Sept. 14, 2016, a.m., at 60:13-19.) 131. Nursing facilities are required to ask residents if they would like to speak with someone about returning to the community as part of Section Q of the Minimum Data Set (MDS) survey. (Trial Tr., Nov. 8, 2016, p.m., at 26:7-14, 32:22-33:2.). That survey is given within 14 days of admission and each year thereafter. (Trial Tr., Sept. 16, 2016, p.m., at 62:14-20.) Residents who respond “yes” are referred to the ADRC. (Trial Tr., Nov. 8, 2016, p.m., at 34:9-13, 38:10-13.)
HOUSING AND OTHER BARRIERS TO TRANSITION A. Access to Public & Subsidized Housing in the District 132. Over 80% of nursing facility residents who want to move to the community need public housing or subsidized housing. (Pls.’ Ex. 348, at 2.) Further, many (if not most) of the physically disabled nursing facility residents require wheelchair-accessible units.25 Without available, affordable, and accessible housing, those individuals are not able to receive community-based long-term care. At present, there is not a sufficient supply of available, affordable, and accessible housing. 133. The District of Columbia is the fourth most expensive rental market of the 50 largest cities in the United States of America (behind New York, San Francisco, and Boston). (Pls. Ex.
25 Four of the current or former named plaintiffs or class members who testified, who had some of the longest waits to transition or were unable to transition out of nursing facilities, needed wheelchair-accessible housing. See supra Findings of Fact ¶ 2 (Thorpe), ¶ 23 (Tucker), ¶ 27 (Brown), ¶ 38 (Wilkerson).
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469, at 51.) DCHA provides housing assistance to over 20,000 households through public housing and private, subsidized housing (i.e., federally and locally funded housing-choice vouchers). (Id. at 47.)
DCHA’s public housing portfolio consists of over 8,360 units at 63 developments, serving families, seniors and non-elderly disabled individuals. In addition, the agency administers 11,881 federally funded vouchers through its Housing Choice Voucher program. DCHA also manages 2,304 housing subsidies through the Local Rent Supplemental Program (LRSP), a locally funded affordable housing program modeled after the federal voucher program. (Id.). 134. Over 63,000 residents live in public housing, Section 202 projects (for the elderly), Section 811 projects (for the disabled), project-based Section 8 housing, or subsidized housing through the Housing Choice Voucher program. (Id. at 82.) Nineteen percent of those public or subsidized housing residents are persons with disabilities, even though there are relatively few Section 202 or Section 811 projects in the District. (Id.) 135. “Special needs populations including older adults and persons with disabilities, are disproportionately affected by housing problems, and may require costly home modifications and supportive services.” (Id. at 32.) In 2015, about 1/3 of 68,143 disabled residents (21,496) were directly served by District government through Medicaid funded services: 18% (4,000) received support in an institutional setting, while 82% (17,000) lived in community-based setting. 20% of those in community housing (3,650) qualified for institutional care. (Id. at 105.) 136. Unfortunately, “[n]o one authoritative data source that identifies housing units restricted to older adults or persons with disabilities currently exists.” (Id. at 105) Within the first quarter of 2016, the ADRC had 634 cases for housing assistance were open. (Id. at 107.) Of those, only 6 cases were closed within that period, largely due to lack of available and affordable senior housing in the District. (Id.)
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137. “The limited supply of HUD 202 (senior) and 811 (disabled) units compared to the city’s population of persons living with a disability (11%) and older adults (16%) exacerbates the lack of available housing options for low-income seniors and disabled.” (Id. at 83.) And, the overall supply of affordable housing options is likely to contract in the coming years: 15,226 affordable housing unit subsidies across 145 projects are set to expire between May 2016 and 2020, which will result in an estimated loss of 1,714 units from the affordable-housing stock. (Id. at 82.) 138. Of the 8,360 units of public housing in the District, 6,500 (including 2,000 which are in senior or disabled properties) require some sort of rehabilitation or improvements. (Id. at 50.) Further, only 691 of the 8,360 units meet the Uniform Federal Accessibility Standards (“UFAS”) that would allow a disabled person with a mobility impairment to reside there. (Id. at 49.) Still, DCHA is outpacing the requirement that 6% of public housing units meet these federal standards. (Id.)
The DC Housing Authority also installs accessible features in its public housing units (i.e. grab bars, roll-in showers, raised toilet seats, etc.) through the reasonable accommodation process. In FY 2015, the DC Housing authority processed 1,130 requests for accessible units from public housing applicants, ranging from the examples provided above to UFAS accessible units. The housing authority processed 488 public housing resident requests for accessible units/unit features. (Id. at 50.) 139. Subsidized housing options through the Housing Choice Voucher Program are limited since “many neighborhoods in DC exceed HUD-defined market rents.” (Id. at 26.) Participants in the voucher program must find a suitable unit where the owner agrees to rent under the voucher program. (Id. at 79.) Former named plaintiff Roy Foreman would only accept housing in the Northwest quadrant of the city, which is far more expensive on average than other areas of the District. (Trial Tr., Nov. 15, 2016, p.m., at 68:21-69:5.) Once they have secured housing,
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Housing Choice Voucher participants pay at least 30% of their income for rent and utilities, and DCHA then pays the subsidy directly to the landlord to cover the shortfall between the total rent and the resident’s income contribution, up to the maximum allowable voucher payment. (Pls.’ Ex. 469, at 79-80.) If the total rent minus 30% of the resident’s income is greater than the maximum voucher payment, the resident must make up the difference. (Id. at 80.) Approximately half of the housing in the District was built before 1950, which makes it difficult to comply with environmental standards and housing regulations. (Id. at 74.) Thus, many of those units are unsuitable for elderly and disabled individuals who require wheelchair access or have other mobility impairments. (Id. at 59.) 140. More than 18,000 of the poorest disabled individuals receive Supplemental Security Income (“SSI”), “a federal income supplement program designed to help the aged and disabled, who have little or no income to pay for basic needs, such as food, clothing, and shelter.” (Id.) SSI recipients represent 27% of the total disabled population and 81% of disabled individuals with income under the federal poverty line. (Id.) DC SSI monthly payments are $721 or 16% of the median income in the District. (Id.) 141. The overall occupancy rate of public housing in the District is 97%. (Trial Tr., Nov. 15, 2016, p.m., at 53:8–10.) DCHA maintains one waiting list for all of the public and subsidized housing programs that it operates. (Id. at 32:16–33:10.) In other words, all individuals who are seeking public housing, vouchers for subsidized housing, and/or access to another housing program are all on the same waiting list, which reflects their preference to participate in one or more of the programs. In addition to choosing which particular housing programs to participate in, an individual on the waiting list indicates whether he or she requires a UFAS unit or is eligible for senior housing. Over 42,091 individuals and families are on DCHA’s waiting list for
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public housing or subsidized housing, and over 20,000 of those individuals and families report
being homeless. (Id. at 33:11-14; Pls.’ Ex. 469, at 50.)
142. As a result of the volume of individuals and families on the waiting list, DCHA is not
currently accepting additions to the waiting list, which has been closed since April 2013. (Trial
Tr., Nov. 15, 2016, p.m., at 32:11–15.) Between 400 and 600 people are moved off of the
DCHA waiting list per year. (Id. at 38:17–23.) But no one moves onto the waiting list. DCHA
has determined that, for some categories of housing, it will not have to open the waiting list for
over 20 years. (Id. at 56:3–11.)
143. DCHA does not determine whether all individuals on the waiting list are financially
eligible for public or subsidized housing. (Id. at 54:1–5.) Rather, an individual’s financial
eligibility is determined when he or she gets near the top of the waiting list, when DCHA expects
to be able to offer housing within six months. (Id. at 54:6–12.) That is because DCHA’s
certification of someone’s financial eligibility for public or subsidized housing is only valid for
six months. (Id.) The roughly 250 individuals whose financial eligibility has been determined
are part of the “selection pool” for newly-available housing. (Id. at 54:13–16.) The “selection
pool” is a subset of the waiting list, not a separate waiting list. (Id. at 53:23–25.) 144. There is no separate waiting list for wheelchair accessible units.26 However, HUD
26 Plaintiffs urge the Court to find otherwise. In support of their contention that there is a separate waiting list and that the waiting list is not frozen, plaintiffs cite to Ms. Newland’s testimony that she “thinks” there is a separate waiting list for ADA units (Pls.’ Opp’n to Def.’s Mot. for J.M.O.L. at 40 (citing Trial Tr., Oct. 7, 2016, p.m., at 58:25–59:5)) and Mr. Bovelle’s testimony that DCHA would reopen the waiting list to ensure that it met its obligation to keep 100 individuals certified for UFAS units in a “selection pool,” (Pls.’ FF&CL at 26-27, ¶ 76 (citing Trial Tr., Nov. 15, 2016, p.m., at 46:17–47:1).)
On the basis of the trial record, the Court finds the opposite to be true: there is no separate waiting list for wheelchair-accessible units, and the public and subsidized housing waiting list, from which DCHA draws when a new UFAS unit is available, is closed and has been closed since April 2013.
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requires DCHA to maintain at least 100 people who have been found to be eligible for
wheelchair-accessible housing in a “selection pool” for newly-available UFAS units. (Id. at
46:10–21.) To be in the “selection pool,” the individual’s need for a UFAS unit is first verified
and then his or her financial eligibility is confirmed when DCHA expects to be able to offer him
or her a UFAS unit within six months. (Id. at 30:20–31:8.)
145. When a public housing unit or housing voucher becomes available, DCHA chooses the
next individual on the waiting list for that particular program, drawing from the “selection pool”
of individuals whose eligibility has already been verified. If that unit is UFAS accessible or
First, Ms. Newland’s testimony that she “thinks” there is a separate “ADA waiting list” directly contradicts the testimony of Mr. Bovelle that there is only one waiting list. As Mr. Bovelle oversees DCHA’s operations (including the waiting list), his testimony is more credible on this point. The fact that DCHA would reopen the waiting list to comply with its obligations to keep a “selection pool” of 100 individuals certified for UFAS units does not mean that class members can be added to the waiting list. In fact, Mr. Bovelle testified that the waiting list has not been reopened since April 2013, notwithstanding DCHA’s obligation to maintain a “selection pool” of 100 UFAS-eligible housing applicants.
Mr. Bovelle’s testimony makes clear that no new names have been added to the waiting list since April 2013, even for UFAS units in the public-housing inventory. (Trial Tr., Nov. 15, 2016, p.m., at 56:3–11.) Rather, individuals who were already on the waiting list as of April 2013 have been moved to the “selection pool” of those DCHA has certified deemed medically eligible for a UFAS unit. Even if it is true that “many class members who have moved during this litigation (25%) have moved into public housing” (Pls.’ Response to Def.’s Suppl. Submission at 6), the trial record supports only the conclusion that those class members were added to the public-housing waiting list before it closed in April 2013. It is possible that those class members could have updated their information with DCHA to reflect that they were residing at a nursing home, which would give them preference in securing a public-housing unit as a “homeless” individual. But it does not mean that they were added to the waiting list after it was closed, even if they entered nursing homes after April 2013. When the waiting list was open, class members were joining the waiting list: as of June 2013, two months after the waiting list was closed, 10 of the 11 then-named plaintiffs had applied for subsidized housing. Thorpe II, 303 F.R.D. at 148 n.61.
Former named plaintiff Roy Foreman joined the DCHA waiting list in 2006 and was on the waiting list for approximately seven years. (FF ¶ 33.) Former named plaintiff Curtis Wilkerson was on the DCHA waiting list for 10 years, beginning in 2002, before he reached the top of the waiting list. (Id. ¶ 38.) He updated his preferences twice when he was in the nursing facility. (Id.)
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designated for a senior, the next qualifying individual in the “selection pool” for such units (i.e., whose need for such a unit has been verified by DCHA) will get the unit. However, individuals who already reside in public housing whose circumstances have changed such that they require a UFAS unit are given preference as a “transfer” when a UFAS unit becomes available. (Id. at 29:16–25.) 146. “DCHA has a ranking preference and only pulls from households reporting that they are homeless at time of admission.” (Pls.’ Ex. 469, at 48 n.2.) Consequently, individuals or families reporting that they are homeless have gotten off of the waiting list and into public or subsidized housing since the waiting list was instituted. (Id.) Nursing home residents qualify as “homeless” for purposes of DCHA’s ranking preference. (Trial Tr. Nov. 8, 2016, p.m., at 86:9–87:15.) 147. At the time of trial, there were 25 vacant wheelchair accessible units out of the 678 wheelchair-accessible public-housing units. (Trial Tr., Nov. 15, 2016, p.m., at 27:17–21.) Those units are in the process of being prepared for new tenants and will be filled from individuals who are on the transfer list or the “selection pool” for UFAS units. (See id. at 28:7–11.) At that time there were 96 individuals on the UFAS “selection pool” whose need for a UFAS unit was verified and 16 current public-housing tenants seeking a “transfer” to a UFAS unit. (Id. at 30:712, 31:15–18.) DCHA is in the process of approving five more individuals from the waiting list to be part of the UFAS “selection pool.” (Id. at 30:7–12.) In the six months preceding trial, from May 2016 to November 2016, DCHA filled approximately 35 UFAS public-housing units that had become vacant. (Id. at 32:2–8.) This was “a little higher than usual” because of new units and completed renovations that to previously unavailable units. (Id. at 57:6–14.) 148. As demonstrated by the extensive waiting list, the available, affordable housing stock does not meet the needs of the District’s population. (Trial Tr. Nov. 8, 2016, p.m., at 57:14–18;
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Pls.’ Ex. 469, at 74, 82.) Because of the minimal turnover in public housing and housing-choice voucher programs, DCHA can house only a miniscule portion of the waiting list, and that list has been closed since April 2013. (Id. at 82.)
B. Other Barriers to Transitioning 149. Over the course of trial, various other barriers to transitioning of class members were identified. For instance, Brenda Fisher testified that, in addition to a lack of housing in the community, nursing facility residents are impeded by the lack of proper identification required to access community-based services and lack of family support for their transition. (Trial Tr., Oct. 4, 2016, a.m., at 24:15–25:3.) 150. Ms. Crawley testified that, in addition to the lack of housing, barriers to nursing facility residents include (1) finding a home health agency to staff an individual’s care needs; (2) understanding the requirements of a completed EPD waiver; (3) getting a physician determination of the required level of care or the number of personal-care hours; (4) a lack of support in the community; (5) the medical complexity of the individual; and (6) a lack of training of family members who would otherwise provide personal care assistance. (Id. at 40:16–41:14.) 151. Ms. Simhoni testified that class member Mr. R.’s transition was slowed by a change in District policy requiring “conflict-free case management.” (Trial Tr., Sept. 13, 2016, p.m., at 13:12–21.) Prior to 2013, when Medicaid fraud was discovered in the District, case managers and personal care assistants could work for the same agency. (Id. at 24:6–19.) Now, home health agencies cannot also provide case management services to the individuals they serve. (Id. at 24:11–19.) All individuals whose case management was done by their home-health agency had to be transferred to case managers in “conflict free” agencies. (Id.) The home-health agencies were given approximately three years to complete the transitions. (Id. at 24:20–22.) 152. An individual may have trouble accessing a home health agency if the agency lacks
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staffing capacity or if the patient is medically complex. (Trial Tr., Sept. 14, 2016, p.m., at 56:8– 19; Trial Tr., Oct. 4, 2016, a.m., at 41:4–9.) Medical complexity might include a bariatric patient whom a single aide would be unable to move around. (Trial Tr., Oct. 4, 2016, a.m., at 93:22– 94:1.) Sometimes home health agencies will not take on a patient who “has been assessed for 16 hours but the individual has only eligibility for eight hours,” which could be the case if the person has not yet applied for the EPD waiver. (Id. at 41:20–42:10.) Sometimes an individual has not been assessed for the number of hours a social worker thinks the individual needs and will then seek reconsideration from Delmarva. (Id. at 42:11–14.) An individual home health care provider or agency can also decline to work with a patient for environmental reasons (the condition of the living quarters) or for personality reasons. (Id. at 92:19–93:6.)
CONCLUSIONS OF LAW27 This case presents the difficult legal issue of what a class of plaintiffs proceeding under an Olmstead theory of liability must prove in order to demonstrate their entitlement to relief under Rule 23. Under a traditional Olmstead case, the proof of a violation (i.e., that a disabled individual has been unjustly segregated) is that the individual is eligible for community-based care, does not oppose receiving community-based care, and could reasonably be served in the community. The resulting relief is narrow; for instance, a court could order the state to take reasonable steps to serve that individual in the community. By contrast, in a class action, the class can be defined to include only those individuals who can be served in the community and prefer to receive community-based care (i.e., those who are already segregated). In this case, for instance, the class includes all physically disabled individuals who have resided in nursing facilities for over 90 days, are eligible for community-
27 Hereafter, citations to the Court’s Findings of Fact are noted with the abbreviation “FF.” 72

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based care, prefer to receive long-term care in the community, and need the District’s assistance to transition to the community. The resulting relief in an Olmstead class suit is far more wideranging than in an individual Olmstead action, for the Court can order systemic reforms. But Rule 23 imposes additional burdens on an Olmstead class to ensure that class-wide relief is appropriate, and that any class-wide relief that the Court orders would redress the common harm.
As explained more fully herein, the Court concludes that, under Rule 23, plaintiffs must prove more than generalized allegations of deficient transition services as measured by the lack of a significant number of transitions out of nursing facilities. Rather, plaintiffs must prove that the District maintains a policy or practice (i.e., a concrete systemic deficiency) that has caused the class members to remain in nursing facilities despite their preference to receive long-term care in the community. The Court further concludes that plaintiffs have failed to carry their burden of proving the existence of a concrete systemic deficiency in the District’s transition services. Given the barriers to transitioning—both systemic and individualized—that are outside the District’s control, plaintiffs have also failed to prove that the class members’ institutionalization is caused by systemic deficiencies in the District’s transition services or that the harm can be redressed by a single injunction
I. UNDER RULE 23, PLAINTIFFS MUST PROVE MORE THAN GENERALIZED ALLEGATIONS OF “DEFICIENT” TRANSITION SERVICES
Two aspects of Rule 23 are implicated in this case: Rule 23(a)(2), which demands a plaintiff class to demonstrate that “there are questions of law or fact common to the class,” and Rule 23(b)(2), which provides that a class action “may be maintained” if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
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whole.” The requirements of Rule 23(b)(2) for class-wide injunctive or declaratory relief also implicate the requirement of commonality: the answers to the common questions identified at the class-certification stage determine whether the District “acted or refused to act on grounds that apply generally to the class,” and whether “relief is appropriate respecting the class as a whole.” See In re District of Columbia, 792 F.3d at 101–02 (noting that the District’s challenge in this case under Rule 23(b)(2) was “the same as” its argument that the class lacked commonality under Rule 23(a)(2)).
Under Rule 23(a)(2), a common question is one that “is “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350; see id. (“What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” (internal quotation marks omitted)). The common answers serve to bridge the “gap” between individual claims of harm and the “existence of a class of persons who have suffered the same injury as that individual.” Id. at 352–53 (internal quotation marks omitted)). “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 352.
This Court found a number of common questions at the class-certification stage based on plaintiffs’ allegations: “(1) are there deficiencies in the District’s existing system of transition assistance? (2) if so, what are those deficiencies? and (3) are the proven deficiencies causing unnecessary segregation?” Thorpe II, 303 F.R.D. at 146. The Court expounded on those
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questions, noting that [t]o prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies. For example, does the District in fact “fail[ ] to offer sufficient discharge planning” or “fail[ ] to inform and provide [nursing facility residents] with meaningful choices of community-based long-term care alternatives to nursing facilities.”
Id. at 146 n.58 (quoting 3d Am. Compl. ¶ 156). As the D.C. Circuit has explained, under Wal-Mart, it is not enough for commonality to
show that the defendant merely violated the law as to all class members. DL I, 713 F.3d at 128. Rather, commonality requires a “uniform policy or practice that affects all class members.” Id. When a class is “defined by reference to a uniform policy or practice,” it is “cast around common harm[s] susceptible to common proof and curable by a single injunction.” DL II, 860 F.3d at 724 (citing Wal-Mart, 564 U.S. at 360).
According to the Circuit, had this Court identified only the most general questions of “deficiencies in the District’s existing system of transition assistance,” this Court’s class certification decision might not have survived the District’s petition for interlocutory review. In re District of Columbia, 792 F.3d at 100 (“Indeed, if the [generalized questions] were all the District Court had to say about commonality, we might well agree with the District that class certification was defective in view of Wal–Mart and DL [I].). But, this Court’s further identification in footnote 58 of common questions with reference to plaintiffs’ allegations of specific transition services could, according to the Court of Appeals, “represent the sort of systemic failure that might constitute a policy or practice affecting all members of the class in the manner Wal–Mart requires for certification.” Id. The Court of Appeals therefore held that it was not manifestly erroneous for this Court to find that plaintiffs “adequately alleged that the class has suffered a uniform deprivation, and that such deprivation could be remedied by a single
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injunction.” Id. at 101. The Court of Appeals’ decision makes clear that, in order to prove commonality,
plaintiffs must prove a uniform deprivation (or a concrete systemic deficiency) at a higher level of specificity than a general claim that the provision of “transition services” to the class was deficient. Id. at 100–01. Plaintiffs also carry the burden of proving that their segregation “could be remedied by a single injunction,” by showing that the concrete systemic deficiency caused the class members’ continued institutionalization. Id. at 101. Absent the causal link between the deficiency and the segregation, the injunction would not be able to remedy the alleged harm. As the Supreme Court has counseled, “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996).
At the time that this Court certified the class, it noted “serious questions as to whether plaintiffs can prevail on the merits and whether they are entitled to the far-ranging systemic relief they seek.” Thorpe II, 303 F.R.D. at 137. In addition to proving the existence of the alleged concrete deficiencies in the District’s transition services, plaintiffs would have to prove causation. The Court observed that
many nursing facility residents, including named plaintiffs, lack readily affordable housing in the community, and it is agreed that the Court cannot order the District to provide housing. Plaintiffs may . . . be unable to establish causation—a causal link between any proven deficiencies in the District’s system of transition assistance and the injury associated with being “stuck” in a nursing facility. Id. In deciding plaintiffs’ entitlement to class-wide relief, the Court would also “undoubtedly have to return to [the Supreme Court’s] admonition that not only must the remedy be limited to a proven inadequacy, but the ‘inadequacy [must be] widespread enough to justify systemwide relief.’” Id. at 143 (quoting Lewis, 518 U.S. at 359). In its review of the District’s petition for
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interlocutory appeal, the D.C. Circuit echoed these same sentiments, recognizing that its decision on the Rule 23(f) petition was in no way predictive of plaintiffs’ chances of success in a subsequent appeal on the merits. In re District of Columbia, 792 F.3d at 101.
There is no question that plaintiffs have presented compelling evidence that many class members are stuck in nursing facilities and that the number of class members who have transitioned over the last five years is far from satisfactory. (FF ¶¶ 66–68.) However, the issue before the Court is whether the District’s current transition services—not its past failures28— constitute a concrete deficiency, and second, whether the deficiency has caused class members to remain in nursing facilities. 29
The Court sets forth its conclusions with respect to the specific deficiencies in transition services cited by plaintiffs in Part II. The Court’s conclusions as to causation are set forth in Part III.
II. PLAINTIFFS HAVE FAILED TO PROVE THE EXISTENCE OF ANY CONCRETE, SYSTEMIC DEFICIENCY
As explained above, it is not enough to prove that the District’s transition services are deficient by showing merely that there are numerous disabled individuals in nursing facilities who could receive their long-term care in the community and who want to receive their longterm care in the community. Rather, they must show that the District systematically—as a policy
28 It is significant that the experiences of four of the current or former named plaintiffs who testified (Thorpe, Wilkerson, Carter, and Foreman) related to 2013 or earlier and that one former class member (Dupree) transitioned before 2013. 29 Given the requirements of Rule 23(a)(2) and (b)(2), the Court need not decide if the causal link must be defined, as argued by plaintiffs, in terms of the deficiency being a substantial factor causing the class members’ segregation. (See Pls.’ Opp’n to Def.’s Mot. for J. as a Matter of Law at 5.) Rather, within the context of Rule 23, the issue is whether the class suffered a common harm that can be remedied by a single injunction. See In re District of Columbia, 792 F.3d at 101.
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or practice—denies class members concrete aspects of a reasonable transition-assistance
program.
While the Court indicated that plaintiffs’ class status was appropriate to determine
whether the District had “deficient transition services,” it noted that, “[i]n the area of Olmstead
litigation, ‘transition assistance’ has been defined in a concrete manner.” Thorpe II, 303 F.R.D.
at 148. The Court enumerated six “key components of an effective system of transition
assistance for individuals in nursing facilities”:
(1) individual assessments upon admission and periodically thereafter for all residents to determine interest in community-based services; (2) provision of accurate information about available community-based services and eligibility requirements for those services; (3) discharge/transition planning that commences upon admission and includes a comprehensive written discharge/transition plans; (4) identification of what community-based services are needed and assistance in arranging for those services; (5) assistance in applying for and enrolling in available waivers or transition programs; and (6) identification of barriers to transition and assistance in overcoming those barriers to the extent possible (e.g., if housing is a barrier, providing assistance in applying for supported housing).
Id. (citations omitted).30
A. Plaintiffs Have Not Proven that the District Fails to Disseminate Information Regarding Home and Community-Based Long-Term Care Options
30 These specific components of a program of reasonable transition assistance align with plaintiffs’ characterization of the District’s failures in their complaint (See 4th Am. Compl. ¶ 105), the Joint Pretrial Statement (Joint Pretrial Statement at 10–11), and plaintiffs’ Proposed Findings of Fact. (See Pls.’ Proposed FF&CL, Part I.D–E.) They also include the two specific questions regarding the District’s deficiencies that formed the basis of the D.C. Circuit’s denial of the District’s petition for interlocutory review. See In re District of Columbia, 792 F.3d at 100 (citing Thorpe II, 303 F.R.D. at 146 n.58). Plaintiffs also alleged that the District failed to ensure sufficient capacity in its EPD Waiver program, which would be necessary to provide home and community-based long-term care for physically disabled Medicaid recipients. (See 4th Am. Compl. ¶ 105(iii).) However, given that there is no longer a waiting list for EPD Waiver enrollment and that there is sufficient capacity in the District’s EPD Waiver, this is no longer an issue. (See FF ¶ 71.)
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Plaintiffs have not shown that the District provided faulty or incomplete information or failed to provide information to class members about community-based long-term care services. To the contrary, the evidence at trial showed that the District is now providing information both directly to nursing-facility residents and to other stakeholders whom it leverages to disseminate that information. Those stakeholders include nursing-facility staff, the District’s contractors who perform health assessments in nursing facilities, and community non-profits.
Nursing-facility residents are first informed of community-based options upon admission to a nursing facility. At the time of admission, residents are given the MDS Section Q survey, which asks whether they would like to speak to someone about receiving care in the community. (See FF ¶ 131.) If an individual responds to the MDS Section Q questionnaire that he or she would like information about community-based care, the nursing facility contacts the ADRC, and the CTT staff meets face-to-face with that individual to provide information about community-based care. (Id. ¶¶ 113, 115, 131.)
In addition, the CTT staff conducts monthly outreach sessions at each nursing facility in the District. (Id. ¶ 130.) Former named plaintiff Jacqualyn Thorpe reported attending one such meeting. (See id. ¶ 6.) The District also conducts more general outreach to nursing facilities and provides information about how to apply for and receive community-based services. (Id. ¶ 130.) The ADRC also maintains publications to inform nursing-facility residents seeking to transition and to educate groups that assist those nursing-facility residents to transition. (See Pls.’ Ex. 706.)
The named plaintiffs, former named plaintiffs, and class members who testified experienced the ADRC’s outreach or were otherwise put in contact with the District for assistance in receiving home and community-based long-term care. (See, e.g., FF ¶ 6 (Thorpe
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spoke to a social worker, attended meetings at her nursing facility, worked with an MFP transition coordinator); id. ¶ 9 (McDonald was in contact with nursing-facility social workers and District employees); id. ¶ 13 (Carter worked with the District through MFP); id. ¶ 23 (Tucker worked with the District through MFP); id. ¶ 28 (Brown was given information by a nursingfacility social worker and worked with the District through MFP); id. ¶ 34 (Foreman worked with the District through MFP).)
Given this evidence, the Court finds that plaintiffs have failed to prove that the District systematically fails to disseminate information on its home and community-based long-term care options.
B. Plaintiffs Have Not Proven that the District Fails to Identify Individuals in Nursing Facilities Who Would Prefer to Receive Long-Term Care in the Community
The District identifies class members in a number of ways. First, the District uses the results of the MDS Section Q questionnaire. (See id. ¶ 131.) Nursing-facility staff are required to administer the MDS at the time of admission and each year thereafter. (Id.) Without labeling it as “Section Q,” named plaintiff Ivy Brown testified to being asked about her preference for community-based care when she entered the nursing facility in 2013 and at least two times thereafter. (See id. ¶ 28 (Brown was asked her preference upon admission and one year later; she gave her preferences in December 2014 and January 2015).)
Section Q is designed to ensure that “all individuals have the opportunity to learn about home and community-based services and have an opportunity to receive long-term care in the least restrictive setting possible.” (Pls.’ Ex. 643, at 2.) Section Q specifically asks whether an individual in a nursing facility would like to speak to someone about receiving home and community-based long-term care. (FF ¶ 131.) If that person responds positively to Section Q, the nursing facility is required to notify the ADRC. (Id.) That notification acts as a referral for
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that individual, and the CTT then assigns a staff member to that case who would initiate a faceto-face meeting with the individual. (See id. ¶ 113.)
While there was some suggestion that nursing homes do not always administer the MDS as they should, the District does not have a policy or practice of not administering this CMSmandated questionnaire or ignoring the data it receives from it. As a federal requirement, the U.S. Department of Health and Human Services (“HHS”)–not the District– ensures that nursing facilities are administering Section Q and making the necessary referrals. (See Pls.’ Ex. 643, at 1.) HHS cited a District nursing facility based on its 2013 reporting for failing to properly administer Section Q and to make the proper referrals in all cases. (Id.) Even if the District relied exclusively on Section Q referrals from nursing facilities to identify individuals in need of transitions, evidence of a single nursing facility’s failure to make all Section Q referrals would not constitute a systemic failure in the District’s transition services.
DHCF has access to MDS data from the federal government, including the Section Q survey. (Trial Tr., Nov. 8, 2016, p.m., at 43:9-19.) Historically, the ADRC did not have access these data. However, as of July 2016, upon request, the ADRC can view the MDS data, rather than relying on nursing facilities to report the outcome of the Section Q survey. (Trial Tr., Sept. 16, 2016, a.m., at 65:23–66:1.) As of the time of trial, the ADRC had not yet had occasion to do so. (Id. at 66:10–14.)
There was no suggestion that the District ignores referrals or uses Section Q exclusively to identify individuals who would like assistance transitioning out of nursing facilities. In addition to nursing-facility outreach, the ADRC accepts referrals from anyone who calls the office. (Trial Tr., Oct. 5, 2016, a.m., at 19:9–21.) When someone is referred to the ADRC through a phone call, the referral functions the same way as if it had come from nursing facility
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staff: a member of the CTT is assigned to the case and performs a face-to-face visit to initiate discharge planning. (See id. at 22:21–23:9) The evidence showed that the ADRC receives a steady flow of referrals for individuals seeking transition assistance. (FF ¶ 113 (noting 55–128 referrals each two weeks, for a total of 978 referrals, from March 25–August 26, 2016).)
C. Plaintiffs Have Not Proven that the District Fails to Provide Assistance with Enrollment in Home and Community-Based Long-Term Care or Other Public Benefits.
As of the close of trial, the District employed 11 transition coordinators (8 within the ADRC and 3 through MFP) and 8 MES staff members, who collectively make up the CTT. (Id. ¶ 82.) The record reflects that the District currently assists class members to obtain identification, complete applications, and arrange long-term care services. (See id. ¶¶ 83–84.) Those who are eligible for the MFP program (which includes all class members) receive additional case-management services and “wrap-around” transition services. (Id. ¶¶ 88, 91.) Through the CTT, the District provides assistance for those seeking housing through the ADRC’s housing coordinator, the ADRC’s contractor VCare, and the CTT transition coordinators. (Id. ¶ 105.)
The District acknowledged that staffing issues have caused delays in receiving transition services, (id. ¶ 115), but the record does not reveal any instances where staffing issues have systematically denied class members those transition services. In addition, plaintiffs make much of the ADRC’s “inactive” list, touting it as an example of a practice that systematically denies transition services to certain class members. However, the record shows that the “inactive” designation is only used after the transition coordinator has determined that transition support at that time would be futile and the transition supervisor has approved that determination. (Id. ¶ 85.) Further, individuals on the “inactive” list are contacted by the ADRC every six months for the CTT to determine whether it could assist the individual in transitioning at that point. (Id.
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¶ 86.)31 D. Plaintiffs Have Not Shown that the District Fails to Track Individual Progress and Overall Programmatic Success. It is true that the District has not always kept meticulous data about individuals seeking to
transition to community-based long-term care. In fact, CMS’s Corrective Action Plan that is currently in place was due in large part to the lack of data for years 2012–2014 for CMS to evaluate the District’s EPD Waiver program. (See, e.g., Pls.’ Ex. 437, at 7.) However, at present, the ADRC tracks data on its EPD Waiver, both on an individual and programmatic basis. (See Def.’s Ex. 118 (ADRC referral timeline).) CMS noted that “The District’s 2015 data and remediation that includes the new enrollment process indicates that the District has made internal improvements on this process, but continued oversight and monitoring is required to ensure continued improvement.” (Pls.’ Ex. 437, at 7.) On the basis of the evidence introduced at trial, the Court concludes that plaintiffs have failed to carry their burden to prove that the District systematically fails to track individuals who are seeking to transition to home and communitybased long-term care or fails to track its overall programmatic success.
On an individual level, each person who contacts or is referred to the ADRC for transition assistance is recorded and assigned an MES. (FF ¶ 113.) Although there is no single document that contains specific information about each individual’s progress in transitioning, the CTT keeps separate records about each individual on its caseload. (Trial Tr., Oct. 7, 2016, p.m., at 78:23–80:4.) Thus, for any individual working with the ADRC, the District could contact the
31 Notably, as of the time of trial, the “vast majority” of class members on the inactive list were there due to a lack of housing, with “only a handful” whose transitions were stymied by barriers other than housing. (Trial Tr., Oct. 7, 2016, p.m., at 53:24–54:12; Trial Tr., Nov. 8, 2016, a.m., at 85:16–86:6; see Trial Tr., Oct. 5, 2016, a.m., at 74:20–23 (“a majority” are “inactive” due to housing problems).)
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CTT and determine at what point in the transition process that individual is and identify potential barriers that individual is facing or where in the process the transition might have gotten delayed. The ADRC also keeps track of those individuals who are on the “inactive” list or who have reached an insurmountable barrier, so that the CTT can reach out to those individuals periodically and reassess their ability to transition to home and community-based long-term care. (See FF ¶ 85–86.)
The ADRC also keeps program-wide data on referrals and the time it took those referrals to go through each step of the process of enrolling in home and community-based long-term care. (See Def.’s Ex. 118.) The ADRC tracks its overall effectiveness and reports to DHCF the time it takes to complete the various steps of the EPD Waiver enrollment on a bi-weekly basis. (FF ¶ 112.) The reporting makes the process more transparent and demonstrates improvements in the ADRC’s effectiveness in providing enrollment support over time. The MFP program keeps additional records, including the outcome of its housing voucher lotteries, the “wraparound” transition services expenditures made for individuals in the MFP program, and its overall transitions. (See, e.g., Pls.’ Ex. 78; Pls.’ Ex. 348; Pls.’ Ex. 511; Pls.’ Ex. 781.)
III. PLAINTIFFS HAVE FAILED TO PROVE THEIR INJURY WOULD BE REDRESSIBLE BY A SINGLE, CLASS-WIDE INJUNCTION
As shown above, plaintiffs have failed to prove a concrete, systemic deficiency. In addition, as explained herein, the Court concludes that there are both systemic and individualized barriers to transitioning that are beyond the control of the District, so a single injunction could not remedy plaintiffs’ institutionalization. In other words, the evidence at trial made clear that “the unique totality of barriers to community transition for each individual class member makes grouping of the claims inappropriate.” See In re District of Columbia, 792 F.3d at 102.
Individuals seeking home and community-based long-term care have four basic discharge
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needs: housing, income, wrap-around services, and in-home supports. (Pls.’ Ex. 447, at 2.) While not having wrap-around services or in-home supports in place can delay a transition, a lack of housing and income can prevent a transition altogether. (Id.) Class members face a common barrier—a lack of available, accessible, and affordable housing. Class members also face individualized issues relating to housing and other aspects of securing home and community-based long-term care.
A. The Lack of Available, Affordable, and Accessible Housing A lack of housing and a lack of income to secure housing are the most common barriers to discharge from a nursing facility. (See id.) The trial witnesses who work in long-term care in the District consistently labeled the lack of housing as a “primary” or significant barrier to transitions for nursing facility residents. (E.g., Trial Tr., Oct. 4, 2016, a.m., at 27:7–13 (Fisher); Trial Tr., Nov. 9, 2016, p.m., at 80:1–6 (Schlosberg); see e.g., Trial Tr., Sept. 14, 2016, p.m., at 70:2–7 (Sarigol); Trial Tr., Oct. 4, 2016, a.m., at 75:1–7 (Crawley); Trial Tr., Oct. 5, 2016, a.m., at 70:8–13, 70:18-22, 84:3–18, (Kasunic); Trial Tr., Oct. 7, 2016, p.m., at 7:10–20 (Newland).) Plaintiffs’ own expert agreed that “housing is one of the biggest obstacles” for class members. (Trial Tr., Oct. 5, 2016, p.m., at 14:14–17; see id. at 16:21–24.) Many of the current and former named plaintiffs and one class member testified that they did not have access to private housing and that they needed access to public or subsidized housing. (See FF ¶ 5 (Thorpe); id. ¶ 8 (McDonald); id. ¶ 12 (Carter); id. ¶¶ 22, 25 (Tucker); id. ¶ 27 (Brown); id. ¶ 33 (Foreman); id. ¶ 38 (Wilkerson).) Plaintiffs’ expert Roger Auerbach grounds his opinion that the District fails to provide effective transition services on the faulty premise that there is affordable, accessible housing in the District that is available to class members. (See Pls.’ Ex. 884, ¶ 84.) This premise, as well as his basic conclusion that deficiencies in the District’s transition services are causing the class
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members’ continued institutionalization is flatly inconsistent with a November 2012 report that
Mr. Auerbach co-authored. That report found that the biggest barrier hindering successful
implementation of the MFP program was a lack of affordable housing in the District. (Trial Tr.,
Oct. 5, 2016, p.m., at, 26:20–28:1.) Indeed, the evidence at trial showed that, even though there
are UFAS accessible units in the public-housing stock, class members who are not already on the
DCHA waiting list cannot access those units.32
The state of affordable housing in the District is bleak. (See FF Part V.A.) More than
80% of individuals in nursing facilities who want to move to the community need some form of
public assistance to secure housing. (Id. ¶ 133.) At present, and since April 2013, the DCHA
waiting list for public and subsidized housing in the District is closed. (Id. ¶ 143.) Individuals
seeking public assistance with housing cannot, at present, be added to the waiting list under any
circumstances. (Id. ¶ 144 n.26.) The waiting list has over 40,000 names on it, and, for some
categories, it will not need to be opened for over 20 years. (Id. ¶ 143.) Former named plaintiffs
Roy Foreman and Curtis Wilkerson, who joined the DCHA waiting list before it was closed,
waited seven and ten years respectively before reaching the top. (Id. ¶¶ 33, 38.) For class
32 Mr. Auerbach’s testimony about housing was not credible. Importantly, Mr. Auerbach misunderstands the DCHA waiting list and “selection pools.” (Compare Pls.’ Ex. 884, ¶ 87 with FF ¶¶ 143–49.) Mr. Auerbach reasons that “to accommodate everyone on the current waiting list for [UFAS] units, only about a quarter of the [691] units would need to become available.” (Pls.’ Ex. 884 ¶, 87.) However, that is because what Mr. Auerbach describes as the “waiting list for [UFAS] units” is actually what Mr. Bovelle explained to be a “selection pool” of 100 individuals whose eligibility for UFAS units has already been determined. (See FF ¶ 145.) DCHA has agreed to pre-screen 100 individuals for UFAS units, regardless of how soon it expects to house those individuals. (Trial Tr., Nov. 15, 2016, p.m., at 46:17–47:1.) Those 100 individuals do not represent the entire share of the 42,000 individuals on the waiting list who require a UFAS unit.
Moreover, Mr. Auerbach did not appear to understand that the DCHA waiting list has been closed since April 2013. (Trial Tr., Oct. 5, 2016, p.m., at 35:2–24.) Nor was he thoroughly familiar with the HUD study on the District’s housing, admitted as plaintiffs’ exhibit 469, when he formulated his opinion about available housing. (Id. at 29:1–8.)
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members who did not add themselves to the DCHA waiting list before it closed in April 2013, the MFP voucher lottery is essentially the only viable avenue for securing subsidized housing. With only 65 MFP set-aside vouchers, there is nowhere near enough capacity to provide housing to all class members.
While plaintiffs cite the District’s failure to utilize all MFP housing vouchers as evidence of its deficient transition services, the Court concludes that this fact speaks to the difficulty of finding housing, even when an individual has a housing-choice voucher. In addition to lamenting the failure to utilize all MFP vouchers, plaintiffs complain that the District takes vouchers away from lottery winners who are unable to find housing. (See id. ¶ 107.) Unlike some states, the District does not “target people based on how they believe they will be successful in community transitions,” by, for instance, eliminating all individuals over 80 from consideration. (Trial Tr., Nov. 9, 2016, p.m., at 81:7–13.) The District struck a balance between the efficient use of the housing vouchers, fairness to the individual who has a voucher set aside for his or her use, and fairness to those individuals who have not yet had an opportunity to obtain a housing voucher. (See FF ¶ 108.) As many, if not the majority, of class members, including those who testified at trial, require wheelchair-accessible units, finding appropriate housing is even more difficult for this population. (See id. ¶ 133.) And as discussed below, some class members face additional, individualized barriers to using housing-choice vouchers because of their credit history or criminal background.
It is true that some class members have transitioned from nursing facilities to public or subsidized housing. (See Pls.’ Ex. 884, ¶ 84.) However, that does not mean, as plaintiffs’ expert contends, that “[t]he District’s programs do not have the infrastructure to help individuals identify and then move to existing and available housing options.” (See id. at 26.) Rather, it
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means that those individuals joined the DCHA waiting list before it closed or were among the few who were selected for an MFP voucher and were able to find suitable housing. Compared to those class members who moved to private housing, class members moving to public or subsidized housing spend considerably longer in nursing facilities. (See FOF ¶ 68 (in years 2012–2016, it took class members an average of 410, 240, 414, 320, and 640 days to move to private housing versus an average of 1,193, 1,087, 1,083, 909, and 1,115 days to move to public/subsidized housing).) The time it takes for class members to transition to private housing, as compared to those without private housing, is further proof that finding a place to live in the community is often an insurmountable barrier for those who need public or subsidized housing.
Also, the Court cannot agree with plaintiffs’ argument that the District has failed to assist class members in obtaining housing. MFP helps class members to fill out forms necessary for housing and other benefits. (FF ¶ 105.)33 MFP has hired a contractor (VCare) to locate landlords who accept vouchers. (Id. ¶ 106.) The ADRC employs a housing coordinator to assist the CTT to find housing, while the ADRC transition coordinators help individuals apply for income benefits. (Id.)
B. Individualized Issues Prevent Class Members from Accessing Housing Even when a class member has a housing option in the community or has access to a housing voucher, individualized issues can prevent a successful transition. For instance, when a class member’s existing private housing is not wheelchair accessible and modifications are prohibitively expensive, he or she will not be able to transition. That was the case for named
33 Even in 2014, this Court noted that the provision of transition services for completing applications of public and subsidized housing did not appear to be an issue, since “10 out of the 11 named plaintiffs ha[d] successfully applied for subsidized housing.” Thorpe II, 303 F.R.D. at 148 n.61.
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plaintiff Ivy Brown. (See id. ¶ 27.) Also, when a class member has access to a housing voucher, he or she may not be able to
use it for a number of reasons. First, there is a dearth of wheelchair-accessible housing in the District overall, and many private units accepting vouchers may not be accessible. (See, e.g., id. ¶ 139.)
Second, an individual’s personal history might prevent a landlord from renting to him or her if, for instance, that person has a poor credit history or a criminal record. Although only certain infractions will disqualify someone from receiving a housing-choice voucher, landlords can reject an applicant for their criminal history, even if it would not otherwise categorically disqualify the applicant. (Trial Tr., Sept. 16, 2016, a.m., at 47:20-48:7; see Trial Tr., Nov. 15, 2016, p.m., at 43:10-14.) The District cannot force a landlord to rent to any particular voucher applicant. (Trial Tr., Oct. 5, 2016, a.m., at 77:17–21.)
Lastly, an individual will not be eligible for any public or subsidized housing program if he or she owes a debt to the federal government for a housing program. (Trial Tr., Nov. 15, 2016, p.m., at 43:15–18.) Thus, an MFP lottery winner would not be able to qualify to use the voucher if he or she has such an outstanding debt.
C. Other Individualized Issues Can Delay Transitions An individual’s transition may be delayed for various other individualized reasons unrelated to housing. (See FF ¶¶ 150–53.) Indeed, the process of securing home and community-based long-term care once an individual has resided in a nursing facility for over 90 days is bureaucratic and complex. But, plaintiffs have shown only case-specific, individualized issues, not system-wide deficiencies. If an individual does not have services in place, the transition may be delayed. While the parties agree that there is no lack of providers of PCA services in the District, disagreements
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between Delmarva and class members or their guardians over the number of PCA hours authorized cause delays. Further, it may take time to find a home-health agency to staff the number of hours that Delmarva authorizes. Finding appropriate staffing may also be hampered by the medical complexity of individual’s needs. (Id. ¶ 153.) Nevertheless, an individual cannot responsibly be discharged until the needed services are in place.
D. A Single Injunction Could Not Remedy Plaintiffs’ Institutionalization Because of the lack of available, affordable, and accessible housing; the individualized issues that prevent class members from accessing housing even when it is available; and other individualized issues that can derail transitions, the Court concludes that it cannot remedy plaintiffs’ institutionalization through a single injunction. Class members who have private housing in the community are on substantially different footing than class members who must rely on public or subsidized housing, as is evidenced by the grossly disproportionate times the two groups of class members spend in nursing facilities before they are able to transition. (See id. ¶ 68.) However, because of the lack of affordable housing in the District, the Court cannot order relief that would facilitate quicker transitions for those who need public or subsidized housing. In addition, each class member, regardless of his or her access to housing, faces a myriad of individualized barriers that must be addressed on a case-by-case basis in order to ensure a responsible transition to community care. Given the “the unique totality of barriers to community transition for each individual class member,” a single injunction that would result in the class members being transitioned to community-based long-term care cannot be crafted. See In re District of Columbia, 792 F.3d at 102. Thus, “grouping of the claims [is] inappropriate.” See id. Instead of issuing “a single declaration or injunction aimed at correcting a systemic discriminatory imbalance,” the Court would be forced to impose “mini-injunctions for each class member,” and/or groups of class
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members, in violation of Rule 23(b)(2). See Thorpe II, 303 F.R.D. at 152 (quoting Kenneth R. ex rel. Tri-Cty. CAP, Inc., 293 F.R.D. 254, 271 (D.N.H. 2013)).
CONCLUSION The District has little to be proud of regarding its historic inability to comply with Olmstead’s integration mandate. However, plaintiffs have failed to demonstrate the existence of a concrete, systemic failure that entitles them to class-wide relief. Mindful that “the remedy must be limited to a proven inadequacy, [and that] the ‘inadequacy [must be] widespread enough to justify systemwide relief,’” the Court concludes that plaintiffs have failed to carry their burden to prove that class-wide relief is appropriate under Rule 23(b)(2). See id. at 143 (quoting Lewis, 518 U.S. at 359). As the Court has concluded that plaintiffs have failed to meet their burden under Rule 23, it will dismiss plaintiffs’ class-wide claims. Because plaintiffs do not seek individual relief, judgment will be entered for the District. A separate Order (ECF No. 256) accompanies this Memorandum Opinion.

Date: September 13, 2017

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2019

Decided July 5, 2019

No. 17-7152

IVY BROWN, IN HER INDIVIDUAL CAPACITY AND AS REPRESENTATIVE OF THE CERTIFIED CLASS,
APPELLANT

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-02250)

Kelly Bagby argued the cause for the appellant. Maame Gyamfi, Iris Y. González, Sasha M. Samberg-Champion and Ryan Downer were with her on brief.
David A. Reiser and Jonathan H. Levy were on brief for the amici curiae The Legal Aid Society for the District of Columbia, et al. in support of the appellants.
Jonathan L. Marcus was on brief for the amici curiae American Association of People with Disabilities, et al. in support of the plaintiffs-appellants.

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Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the appellee District of Columbia. Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General were with her on brief. Stacy Anderson, Assistant Attorney General, entered an appearance.
Before: HENDERSON and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in the judgment filed by Circuit Judge WILKINS.
KAREN LECRAFT HENDERSON, Circuit Judge: In Olmstead v. L.C. ex rel. Zimring, the United States Supreme Court held that the unjustified segregation of disabled individuals in institutions is a form of disability discrimination barred by federal law. 527 U.S. 581 (1999). Consequently, the District of Columbia (“District”) violates the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101 et seq.), and the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701 et seq.), if it cares for a mentally or physically disabled individual in a nursing home notwithstanding, with reasonable modifications to its policies and procedures, it could care for that individual in the community. Plaintiffs are a class of physically disabled individuals who have been receiving care in District nursing homes for more than ninety days but wish to transition—and are capable of transitioning—to community-based care. They seek an injunction requiring the District to alter its policies and procedures in order to help them transition to the community.

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After a nine-day bench trial, the district court entered judgment in favor of the District. We now reverse and remand.
I. BACKGROUND
The District funds both nursing-facility-based and community-based care for individuals with physical disabilities. In both settings, individuals are provided with assistance in eating, bathing, toileting and dressing, as well as with their mobility, medication management, meal preparation, money management and telephone use. The District does not operate nursing facilities itself; it funds care in nursing facilities certified for Medicaid reimbursement through its Medicaid State Plan.1 There are nineteen Medicaid-certified nursing facilities in the District, which house a total of approximately 2,770 beds. Plaintiffs are physically disabled individuals in these facilities who have been receiving nursingfacility-based care for more than ninety days but wish to transition—and are capable of transitioning—to communitybased care.
This litigation began in late 2010, when four disabled individuals filed a class action against the District, alleging that the District’s failure to transition them to community-based care violated Title II of the ADA and section 504 of the Rehabilitation Act. The district court rejected the District’s initial argument that it was entitled to summary judgment because it had in place an effective “Olmstead Plan”—that is,
1 Medicaid is a cooperative federal-state program through which the federal government funds medical care provided by States to, among others, individuals with physical disabilities who meet certain financial requirements. States and the District submit Medicaid plans to the federal government for approval. In turn, the federal government reimburses a portion of the State’s or District’s Medicaid expenses.

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a “comprehensive, effectively working plan for placing qualified persons with [physical] disabilities in less restrictive settings,” with “a waiting list that move[s] at a reasonable pace not controlled by the [District’s] endeavors to keep its institutions fully populated,” Olmstead, 527 U.S. at 605–06. Day v. District of Columbia, 894 F. Supp. 2d 1, 26–32 (D.D.C. 2012). It was “undisputed” that the District had not adopted a “formal Olmstead Plan,” id. at 7, and the district court rejected the District’s argument “that its existing programs and services for individuals with disabilities me[]t the requirements of an Olmstead Integration Plan,” id., pointing to undisputed figures that showed the District lacked a “measurable commitment” to the transitioning of disabled individuals to the community, id. at 28–29.
In May 2012, Plaintiffs moved for class certification. The district court identified certain deficiencies in the proposed class and denied the motion without prejudice. In March 2013, Plaintiffs filed an amended complaint that revised the proposed class definition and alleged multiple deficiencies in the services the District provides to transition disabled individuals from nursing homes to the community. In March 2014, the district court granted Plaintiffs’ motion for class certification. Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014). The certified class consisted of:
All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaidcovered home and community-based long-term care services that would enable them to live in the community; and (3) would prefer to live in the community instead of a nursing facility but

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need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.
Order, No. 1:10-cv-2250 (D.D.C. Mar. 29, 2014), ECF 129 at 1. Although the district court found class certification appropriate, it expressed doubt—in light of the lack of “readily affordable housing in the community”—that Plaintiffs would ultimately be able to establish “a causal link between any proven deficiencies in the District’s system of transition assistance and the injury associated with being ‘stuck’ in a nursing facility.” Thorpe, 303 F.R.D. at 137.
At the same time, the district court denied the District’s renewed motion to dismiss based on its then-recent implementation of a formal “Olmstead Plan.” Id. at 131–32. The district court acknowledged that “the District has made some progress in the recent past” and that “this progress appears to be continuing.” Id. at 138. Nevertheless, it was “undisputed that many Medicaid residents in nursing homes have expressed a desire to receive services in a less restrictive setting in the community, but have not been able to do so.” Id. Thus, the district court held that the District had “yet to demonstrate that its Olmstead Plan is an ‘effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, [with] a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.’” Id. (first and third alterations in original) (quoting Olmstead, 527 U.S. at 606–07).
In April 2014, the District petitioned this Court for leave to file an interlocutory appeal of the district court’s class certification. We denied the petition in June 2015. In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015). We held that, although “[t]he District Court’s decision to certify may or may

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not have been an error,” “we cannot say that it was a ‘manifest error,’ which is the standard for us in this interlocutory appellate posture under Rule 23(f)” of the Federal Rules of Civil Procedure. Id. at 98.
After our decision, the district court ordered discovery and Plaintiffs filed another amended complaint, which contained their proposed injunction. The proposed injunction would require the District to:
1. Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.
2. Ensure sufficient capacity of communitybased long-term care services for Plaintiffs

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under the EPD,2 MFP,3 and PCA programs,4 and other long-term care service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs.
2 The Medicaid Program for the Elderly and Individuals with Physical Disabilities (EPD Waiver) is a program funded by Medicaid and overseen by the District’s Department of Health Care Finance (DHCF), which provides long-term personal-care assistance to the physically disabled in community-based settings for up to sixteen hours per day. In addition to personal-care assistance, it provides individuals with case-management services, as well as a host of other services, including adult day health, homemaker, chore aide, respite, personal emergency-response system, environmental-accessibility adaptations, assisted living, participant-directed service, occupational therapy and physical therapy.
3 The Money Follows the Person (MFP) program is a federallyfunded, time-limited grant program established under the Deficit Reduction Act of 2005, 42 U.S.C. § 1305 note, to help individuals transitioning from nursing facilities to the community. The program provides outreach and education, transition coordination, environmental accessibility adaptations up to $10,000, household setup costs up to $5,000, and intensive case management, both during an individual’s transition and for one full year following his discharge from a nursing facility. The District’s MFP Program will be phased out by 2020.
4 The Medicaid State Plan Personal Care Assistance (State Plan PCA) program is another Medicaid-funded, DHCF-overseen program, which provides long-term personal-care assistance to the physically disabled in community-based settings. The State Plan PCA program provides assistance for up to eight hours per day and does not include the ancillary services included in the EPD Waiver program. Depending on the individual’s needs, he may be eligible for placement in the EPD Waiver and State Plan PCA programs simultaneously, resulting in 24/7 care.

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3. Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other long-term care programs, with the following minimum numbers of transitions in each of the next four years:
a. 80 class members in Year 1; b. 120 class members in Year 2; c. 200 class members in Year 3; and d. 200 class members in Year 4.
4. Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District’s ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by Defendant to transition to the community with long-term care services through each of the MFP, EPD, and PCA, and other long-term care programs; and the aggregate dollars Defendant saves (or fails to save) by serving individuals in the community rather than in nursing facilities.
Fourth Am. Compl., No. 1:10-cv-2250 (D.D.C. Sept. 10, 2015), ECF 162 at 31–32.
The litigation then proceeded to a bench trial. The district court bifurcated the trial into a “liability” phase and a “remedy” phase. Order, No. 1:10-cv-2250 (D.D.C. May 9, 2016), ECF

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178 at 2. It held the “liability” phase trial over nine days between September 2016 and November 2016, and, at the conclusion of that phase, ordered the parties to submit proposed findings of fact and conclusions of law. Brown v. District of Columbia, 322 F.R.D. 51, 61–62 (D.D.C. 2017).
In September 2017, the district court concluded that Plaintiffs had failed to establish the District’s liability under both the ADA and the Rehabilitation Act. Brown, 322 F.R.D. 51. Thus, without proceeding to the “remedy” phase of the trial, the district court entered judgment in favor of the District. Id. at 96. It issued a lengthy opinion, explaining that “[t]his case presents the difficult legal issue of what a class of plaintiffs proceeding under an Olmstead theory of liability must prove in order to demonstrate their entitlement to relief under Rule 23.” Id. at 86. It concluded that, “under Rule 23,” “plaintiffs must prove that the District maintains a policy or practice (i.e., a concrete systemic deficiency) that has caused the class members to remain in nursing facilities despite their preference to receive long-term care in the community.” Id. at 87. It held that Plaintiffs both (1) “failed to carry their burden of proving the existence of a concrete systemic deficiency in the District’s transition services” and (2) “failed to prove that the class members’ institutionalization is caused by systemic deficiencies in the District’s transition services or that the harm can be redressed by a single injunction.” Id. As a result, it concluded that Plaintiffs “failed to carry their burden to prove that class-wide relief is appropriate under Rule 23(b)(2)” and “dismiss[ed] plaintiffs’ class-wide claims.” Id. at 96. Finding that Plaintiffs sought no individual relief, the district court entered final judgment for the District. Id. Plaintiffs timely appealed. We review the district court’s factual findings for clear error and its legal conclusions de novo. Armstrong v. Geithner, 608 F.3d 854, 857 (D.C. Cir. 2010).

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II. ANALYSIS
A. PLAINTIFFS NEED NOT IDENTIFY “CONCRETE, SYSTEMIC DEFICIENCY”
The district court held that the District was entitled to summary judgment primarily because Plaintiffs failed to identify a “concrete, systemic deficiency” in the District’s transition services. See, e.g., Brown, 322 F.R.D. at 53 (“[T]he essential question before the Court is whether plaintiffs have shown concrete systemic deficiencies that harm the class and, if these deficiencies exist, whether they are redressable by a single injunction.”); id. at 87 (“[P]laintiffs must prove that the District maintains a policy or practice (i.e., a concrete systemic deficiency) that has caused the class members to remain in nursing facilities despite their preference to receive long-term care in the community. The Court . . . concludes that plaintiffs have failed to carry their burden of proving the existence of a concrete systemic deficiency in the District’s transition services.”); id. at 96 (“[P]laintiffs have failed to demonstrate the existence of a concrete, systemic failure that entitles them to class-wide relief.”). Nowhere does Olmstead talk about “concrete, systemic deficiencies.”5
5 In fact, the district court seems to have adopted that formulation on its own in a footnote. Thorpe, 303 F.R.D. at 146 n.58 (declaring, without citation, that “[t]o prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies”). Granted, we quoted the district court’s entire footnote in denying the District’s petition for interlocutory review of the district court’s class certification decision. In re District of Columbia, 792 F.3d at 100 (noting “concrete systemic deficiencies” “could represent the sort of systemic failure that might constitute a policy or practice affecting all members of the class in the manner Wal-Mart requires for certification” (first quoting Thorpe, 303

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Olmstead interprets the ADA, which provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a) (parallel statutory language in Rehabilitation Act). One of the many regulations implementing the statutory mandate provides: “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). At the same time, the regulation contains a caveat: “[a] public entity shall make reasonable modifications . . . necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Id. § 35.130(b)(7)(i) (emphasis added).
In Olmstead, the Supreme Court declared that, because “unjustified isolation of persons with disabilities is a form of discrimination,” 527 U.S. at 600, the ADA and its implementing regulations “require placement of persons with mental disabilities in community settings rather than in institutions” under certain circumstances, id. at 587.6 “Such
F.R.D. at 146 n.58)). But we could not have made clearer the “limited reach” of our holding, which was “only that the District Court did not manifestly err” in certifying the class. Id. at 101. We did not delineate what Plaintiffs must establish to prevail on the merits. Nevertheless, the district court on remand stated that our decision “ma[d]e clear that . . . plaintiffs must prove a uniform deprivation (or a concrete systemic deficiency).” Brown, 322 F.R.D. at 88 (emphasis added). This foundational error affected the district court’s entire opinion.
6 Olmstead dealt specifically with the ADA and the mentally disabled but its analysis applies equally to the Rehabilitation Act and

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action is in order,” the Court said, “when [(1)] the State’s treatment professionals have determined that community placement is appropriate, [(2)] the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and [(3)] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id.
Although the Court did not expressly declare that the State bears the burden of proving the unreasonableness of a requested accommodation once the individual satisfies the first two requirements, we believe it does for three reasons. First, Olmstead’s third prong originates in the above-quoted regulation, which, again, provides: “[a] public entity shall make reasonable modifications . . . necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i) (emphasis added). Second, interpreting this regulation, the Olmstead Court confirmed that “States [can] resist modifications” requested by segregated disabled individuals only if they “would fundamentally alter the nature of the service, program, or activity.” Olmstead, 527 U.S. at 597 (quoting 28 C.F.R. § 35.130(b)(7) (1998)). Third, interpreting both Olmstead and this regulation, other circuits have put the burden of establishing the unreasonableness of a requested
the physically disabled. See Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (courts have construed section 504 of the Rehabilitation Act “in pari materia with Title II of the ADA” and thus “cases interpreting either are applicable and interchangeable” (second quoting Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999))); 42 U.S.C. § 12102(1)(A) (qualifying disability under ADA includes “a physical or mental impairment”); 29 U.S.C. § 705(20)(A)(i) (same under Rehabilitation Act).

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accommodation on the State. Steimel v. Wernert, 823 F.3d 902, 914–16 (7th Cir. 2016) (if disabled individual desires community-based treatment and medical professional determines that such placement is appropriate, “[i]t is the state’s burden to prove that the proposed changes would fundamentally alter their programs”); Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (“Because [the State] does not allow [the disabled individual] to receive the services for which he is qualified in a community-based, rather than nursing home, setting, [the disabled individual] can prove that the [State] has violated Title II of the ADA, unless [the State] can demonstrate that provision of community-based services to [him] and members of the class would fundamentally alter the nature of the services [it] provides.”); see also Frederick L. v. Dep’t of Public Welfare of Pa., 422 F.3d 151, 156–57 (3d Cir. 2005) (“[The State] is obligated by . . . federal . . . law to integrate eligible patients into local community-based settings. However, the integration mandate ‘is not boundless’ . . . [because it is] qualified by the ‘fundamental alteration’ defense, under which integration may be excused if it would result in a ‘fundamental alteration’ of the state’s mental health system . . . .” (quoting Olmstead, 527 U.S. at 603–04)).
A plurality of the Olmstead Court outlined two ways in which a State can establish that the requested accommodations are unreasonable—in other words, two ways it can make out its “fundamental alteration” defense. First, the State can “show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with [physical] disabilities.” Olmstead, 527 U.S. at 604. Second, the State can “demonstrate that it ha[s] a comprehensive, effectively working plan for placing qualified persons with [physical] disabilities in less restrictive settings, and a waiting list that move[s] at a

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reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated,” i.e., an “Olmstead Plan.” Id. at 605–06. Other courts have treated the plurality’s approach as the starting point for analyzing the “fundamental alteration” defense. Steimel, 823 F.3d at 915; Townsend, 328 F.3d at 519 n.3.
We adopt the plurality’s approach because in our view it makes good sense. It effectively requires every State that cares for disabled individuals in institutions, notwithstanding those individuals wish to, and could, be treated in the community, to have a “comprehensive, effectively working plan” for transitioning the individuals to the community and a “waiting list [for transition to the community] that move[s] at a reasonable pace,” i.e., an adequate “Olmstead Plan.” Olmstead, 527 U.S. at 605–06. Accordingly, a State that demonstrates it has an adequate “Olmstead Plan” in place meets Olmstead’s integration mandate. A State that cannot demonstrate it has such a plan in place, however, must make every modification to its policies and procedures requested by an institutionalized disabled individual who wishes to, and could, be cared for in the community, unless the modification would be so costly as to require an unreasonable transfer of the State’s limited resources away from other disabled individuals. Id. at 604.
The district court’s fundamental error was looking for the existence vel non of a “concrete, systemic deficiency” in the District’s transition services. Having determined that Plaintiffs bore the burden of demonstrating the existence of a concrete, systemic deficiency, the district court considered four potential systemic deficiencies at trial. Brown, 322 F.R.D. at 89–92. At the end of the trial, the district court concluded that Plaintiffs had not proved any of the four and therefore entered judgment

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against them. Id. at 96.7 The district court’s formulation led it to require Plaintiffs to meet a burden they should not have been made to shoulder.
B. NO CLASS CERTIFICATION ISSUE
A class can be modified or decertified at any point before final judgment is entered. Fed. R. Civ. P. 23(c)(1)(C). Although the district court did not decertify the class, it held that Plaintiffs failed to prove their injury “can be redressed by a single injunction,” as required by Fed. R. Civ. P. 23(b)(2), Brown, 322 F.R.D. at 87; see also id. at 92–96, and suggested Plaintiffs may not be able to satisfy Rule 23(a)(2), Brown, 322 F.R.D. at 87–89. At least at this stage, however, we accept that this litigation is a proper class action.
Plaintiffs who proceed as a class must satisfy the requirements of Federal Rule of Civil Procedure 23. Under Rule 23(a):
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
7 First, the district court found that Plaintiffs did not prove that the District fails to disseminate information regarding communitybased long-term care options. Brown, 322 F.R.D. at 90. Second, it found that Plaintiffs did not prove that the District fails to identify individuals in nursing facilities who would prefer to receive longterm care in the community. Id. at 90–91. Third, it found that Plaintiffs did not prove that the District fails to assist individuals who wish to enroll in community-based long-term care services. Id. at 91– 92. Fourth, it found that Plaintiffs did not prove that the District fails to track class members’ individual progress toward transition or overall programmatic success. Id. at 92.

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(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Additionally, the proposed class action must fall into one of the categories listed in Rule 23(b). Fed. R. Civ. P. 23(b). Relevant here is Rule 23(b)(2), which applies if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Id.
1. Rule 23(a)(2)
The Supreme Court examined the Rule 23(a)(2) standard, also known as the “commonality” requirement, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). There, three named plaintiffs sought to represent a class of 1.5 million female WalMart employees who sought to sue Wal-Mart under Title VII for sex discrimination in pay and promotion across the company’s more than 3,000 stores. Id. at 342–43. The district court certified a class of “[a]ll women employed at any WalMart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id. at 346. The Supreme Court concluded that the class did not satisfy Rule 23(a)(2). Id. at 349–60. Although resolution of each plaintiff’s claim turned on a common

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question—was her gender the reason she was paid less and/or not promoted?, id. at 343–45—“[w]hat matters to class certification . . . is not the raising of common ‘questions,’” id. at 350 (second alteration in original). What matters to class certification, the Court said, is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. “That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. In other words, the Court said, the class must show that its “theory can be proved on a classwide basis.” Id. at 356.
The problem with the Wal-Mart class action, then, was that there was no common proof leading to a common answer to the common question at the heart of each plaintiff’s claim. Indeed, local supervisors made all pay and promotion decisions; to prove that the reason for each pay and promotion decision was the same despite the diffuse decision-making structure, the plaintiffs had to show either (1) that each local supervisor used a particular company-wide decision-making procedure that incorporated sex as a consideration or (2) that Wal-Mart had a general company-wide policy of treating female employees worse than male employees. Id. at 352–53. The plaintiffs could not show either. They could not identify a common decision-making procedure that incorporated gender as a consideration. Id. at 353–55. And the only company-wide policy they could point to was that of granting local supervisors discretion to make pay and promotion decisions. Id. at 355. Absent evidence that all or substantially all local supervisors disfavored women, the policy did not amount to one that treats female employees worse than male employees. Id. at 355–56. The plaintiffs contended that certain statistical disparities demonstrated gender-based disparity in promotions. Id. at 356.

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But the Court rejected this argument, finding that statistics alone were not enough to establish that all local supervisors, in the exercise of their discretion, would disfavor women, at least absent a “specific employment practice” to explain the statistics. Id. at 356–57. Wal-Mart establishes that Rule 23(a)(2) is satisfied if resolution of each plaintiff’s claim turns on a common question (or questions) and if common proof leads to a common answer (or answers) to that question for each plaintiff.8
We interpreted the Wal-Mart commonality requirement in the DL litigation. See DL v. District of Columbia (“DL I”), 713 F.3d 120 (D.C. Cir. 2013); DL v. District of Columbia (“DL II”), 860 F.3d 713 (D.C. Cir. 2017). There, parents of children between the ages of three and five sued the District, alleging that it violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., which imposes on the District a number of different obligations with respect to students who require special education services. DL II, 860 F.3d at 717. The District’s IDEA obligations include providing “an effective intake and referral process,” offering “adequate and timely education placements to implement individual education plans” and ensuring “a smooth and effective transition from early intervention programs to preschool
8 Although we have noted post-Wal-Mart that a “specific employment practice” could be the kind of common proof that leads to a common answer to a common question, cf. In re District of Columbia, 792 F.3d at 100 (identifying “fail[ure] to offer sufficient discharge planning” and “fail[ure] to inform and provide [nursing facility residents] with meaningful choices of community-based long-term care alternatives” as “common,” “specific deficiencies” that would support commonality (third alteration in original)), plaintiffs need not always identify a “specific employment practice” to satisfy Rule 23(a)(2). That requirement was specific to the WalMart facts and the Title VII claim at issue.

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programs.” DL I, 713 F.3d at 128. The district court originally certified a class of all three-to-five-year-olds with respect to whom the District failed to discharge any of these obligations. Id. at 124–25. We rejected the class certification in DL I because there was no “common ‘tru[e] or fals[e]’ question [that could] be answered for each of these three different claims of harm that would assist the district court in determining the District’s liability as to each group.” Id. (first and second alterations in original). We remanded the case “so the district court [could] determine whether subclasses would meet the requirements of Rule 23(a) commonality after Wal-Mart.” Id. at 129.
On remand, the district court certified four subclasses of three-to-five-year-olds denied a special education: (1) those whom the District failed to identify as disabled; (2) those whom the District failed to evaluate within 120 days of referral; (3) those to whom the District failed to provide an eligibility determination within 120 days of referral; and (4) those denied a smooth transition from an early intervention program to a preschool program. DL II, 860 F.3d at 724. In DL II, we held that three of the four subclasses satisfied the commonality requirement. Id. at 724–25. 9 Subclass one was organized around a common question—did the District fail to identify certain individuals as disabled?—which was subject to a common answer—yes—based on common proof—evidence showing that the District failed to identify between 98 and 515 disabled children per month. Id. at 724. Subclass three was also organized around a common question—did the District fail to evaluate certain individuals within 120 days of their being referred for a disability evaluation?—which was subject to a common answer—yes—based on common proof—evidence
9 Subclass two’s claims were resolved before trial. DL II, 860 F.3d at 724.

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showing that the District failed to timely evaluate 20 per cent of those referred for a disability evaluation. Id. Likewise, subclass four was organized around a common question—did the District fail to provide certain individuals a smooth and effective transition from early intervention to preschool?— which was subject to a common answer—yes—based on common proof—evidence showing that 30 per cent of toddlers were denied a smooth transition from early intervention to preschool. Id. Thus, the DL litigation followed the holding of Wal-Mart: Rule 23(a)(2) is satisfied if resolution of each plaintiff’s claim turns on a common question (or questions) and if common proof leads to a common answer (or answers) to that question for each plaintiff.
In this case, resolution of Plaintiffs’ claims turns on the same series of questions. First, does the District have an adequate “Olmstead Plan” in place? If it does, the District has met its responsibilities. If there is some deficiency in the District’s plan, however, which leads the court to decide that it is not “comprehensive” and “effectively working” or that the District’s waiting list does not “move at a reasonable pace,” the District must make each accommodation Plaintiffs have requested unless it can show that an accommodation would be so costly to implement that it would be unreasonable to require the District to transfer its limited resources from other disabled individuals. Plaintiffs have requested four separate accommodations, reflected in the four provisions of the proposed injunction. Thus, the second, third, fourth and fifth common questions are: “How costly would it be for the District to implement the [[first], [second], [third], or [fourth]] provision of the proposed injunction and would it be unreasonable to require the District to transfer its limited resources from other disabled individuals to pay that cost?” If the answer to all four of these questions is “yes, it would be so costly as to be unreasonable,” the District is not liable. If the

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answer to at least one of the four questions is “no, it would not be so costly as to be unreasonable,” however, Plaintiffs are entitled to judgment in their favor.
There is no commonality problem here because common proof will lead to common answers to each of the five questions on which resolution of Plaintiffs’ claims turns. As to the first question, common proof will establish whether the District’s plan is “comprehensive” and “effectively working” and whether its waiting list for transition to the community “moves at a reasonable pace.” As to the second, third, fourth and fifth questions, common proof will establish both how costly it would be for the District to implement each provision of Plaintiffs’ requested injunction and whether it would be unreasonable to require the District to pay that cost, considering the District’s limited resources and its obligations to other disabled individuals.
Consider, for example, the first provision of the proposed injunction. This provision would require the District to provide all class members with information regarding communitybased long-term care options, determine whether they prefer to transition to the community and, if they do, plan their transition and assist them in accessing available resources to help them transition. Id. at 31. Common proof will establish, first, how costly it would be to provide all class members with these services and, second, whether it is reasonable to require the District to use its limited resources to pay this cost, considering the District’s obligations to other disabled individuals. The same analysis will apply to the other three provisions of the proposed injunction. Thus, on the current record, there does not appear to be a Rule 23(a)(2) deficiency.

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2. Rule 23(b)(2)
Because this litigation is a Rule 23(b)(2) class action, Plaintiffs must also show that the District “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Indeed, a Rule 23(b)(2) class action is appropriate only “when a single injunction or declaratory judgment would provide relief to each member of the class,” not “when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360; see also DL II, 860 F.3d at 726 (“To certify a class under [Rule 23(b)(2)], a single injunction must be able to ‘provide relief to each member of the class.’” (quoting Wal-Mart, 564 U.S. at 360)). Although the injunction must provide relief to each member of the class, the perfect need not be the enemy of the good. If a certain outcome is legally mandated and an injunction provides each member of the class an increased opportunity to achieve that outcome, Rule 23(b)(2) is satisfied. Indeed, in DL II, the District was required to provide each member of subclass three a timely eligibility determination and each member of subclass four a smooth transition from early intervention to preschool; we found Rule 23(b)(2) satisfied even though the injunction required the District to satisfy each of those obligations with respect to 95 per cent, rather than 100 per cent, of each subclass. 860 F.3d at 720, 724, 726. Although we did not make our reasoning explicit, we implied that the injunction aided every class member because it improved his likelihood of achieving the legally mandated outcome. See id. at 724 (“single injunction” requiring “District to meet its statutory deadline 95 percent of the time and to improve its performance by 10 percent in the first year and 5 percent each year thereafter” is sufficient remedy where “20 percent of preschoolers referred

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for a disability evaluation received an eligibility determination after the statutory deadline, if [a]t all”); id. at 724–25 (“single injunction requiring annual improvement” is sufficient under Rule 23(b)(2) (emphasis added)); id at 726 (“district court’s comprehensive order,” requiring less than 100 per cent compliance with statutory mandate, can “provide relief to each member of the class” (second quoting Wal-Mart, 564 U.S. at 360)). We note, moreover, that the Supreme Court has called “[c]ivil rights cases against parties charged with unlawful, class-based discrimination” like this one, “‘prime examples’ of what (b)(2) is meant to capture.” Wal-Mart, 564 U.S. at 361 (alteration in original) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)); see also DL II, 860 F.3d at 726 (“Rule 23(b)(2) exists so that parties and courts, especially in civil rights cases like this, can avoid piecemeal litigation when common claims arise from systemic harms that demand injunctive relief.”).
Plaintiffs claim that their transition to the community is legally mandated. Because the proposed injunction would provide, at least in part, each member of the class an increased opportunity to obtain that outcome, Rule 23(b)(2) is satisfied on the current record.
C. REMAND INSTRUCTIONS
Thus, this litigation boils down to resolution of the third Olmstead question: are the requested accommodations reasonable? If the answer to that question is yes with respect to the entire class, Plaintiffs are entitled to judgment in their favor.10 If the answer to that question is no with respect to the
10 As set forth above, the district court should concentrate on the accommodations that Plaintiffs in fact request—that is, the proposed injunction—when deciding the District’s liability. If liability is established, however, the district court retains its usual discretion to

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entire class, the District is entitled to judgment in its favor. In addition, if common proof will not lead to a common answer to that question for each member of the class, the class should be modified or decertified for failure to comply with Rule 23(a)(2). And if the requested injunction will not provide relief to each member of the class, the class should be modified or decertified for failure to comply with Rule 23(b)(2).
This case turns on whether the District can establish that the plaintiffs’ requested accommodations are in fact unreasonable (either because the District has an adequate “Olmstead Plan” in place, in which case every requested accommodation is categorically unreasonable, or because each individual accommodation is so costly that it would be unreasonable to require the District to transfer its limited resources from other disabled individuals). As discussed supra, pp. 13–14, the District can meet its burden to establish the requested accommodations are unreasonable in one of two ways. The District can establish that it has a “comprehensive, effectively working plan” for transitioning the individuals to the community and a “waiting list [for transition to the community] that move[s] at a reasonable pace,” i.e., an
enter the appropriate declaratory or injunctive relief. See Olmstead, 527 U.S. at 590 & n.4 (“Remedies both at law and in equity are available for violations of the statute.”); see also Disabled in Action v. Board of Elections in City of New York, 752 F.3d 189, 198 (2d Cir. 2014) (“If local authorities ‘fail in their affirmative obligations’ under federal law, ‘the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971))). In other words, the district court is not ultimately bound to enter the proposed injunction as a remedy; if it wishes to, it may focus its ultimate injunction on the six “key components of an effective system of transition assistance” that it has gleaned from other Olmstead cases. See Thorpe, 303 F.R.D. at 148.

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adequate “Olmstead Plan.” Olmstead, 527 U.S. at 605–06. If it cannot demonstrate the existence of an adequate “Olmstead Plan,” the District can establish, seriatim, that each of the four provisions of Plaintiffs’ requested injunction would be so costly as to require an unreasonable transfer of the District’s limited resources from other disabled individuals. Id. at 604.
The district court has not yet concluded, in clear terms and under the correct burden of proof, that the District’s “Olmstead Plan” is adequate. In fact, the district court has consistently held throughout this litigation that the District does not have an adequate “Olmstead Plan” in place. In 2012, the district court concluded that “[a] public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case.” Day, 894 F. Supp. 2d at 27. “Given the fact that, at the time, there were at least 526 physically disabled individuals living in nursing facilities who expressed an interest in living in the community, the undisputed facts demonstrated that the District’s Olmstead Plan had not been effective.” Brown, 322 F.R.D. at 58 (citing Day, 894 F. Supp. 2d at 29). In 2014, the district court held that “the District ha[d] yet to demonstrate that its Olmstead Plan [wa]s an ‘effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, [with] a waiting list that move[d] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.’” Thorpe, 303 F.R.D. at 138 (third alteration in original) (quoting Olmstead, 527 U.S. at 605–06). And in the order sub judice, the district court did not find that the District’s plan is “effectively working” or that its waiting list “moves at a reasonable pace” within Olmstead’s language. 11 In fact, it
11 The district court rejected the testimony of Plaintiffs’ expert witness, who concluded that the District “does not have an

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stated that “[t]he District has little to be proud of regarding its historic inability to comply with Olmstead’s integration mandate.” Brown, 322 F.R.D. at 96. Thus, the District has not yet demonstrated that it has an adequate “Olmstead Plan” in place and so has not shown that all requested accommodations are categorically unreasonable. The district court is, of course, free to find on remand that the District now has an adequate “Olmstead Plan” in place.12
If the District still lacks an adequate “Olmstead Plan,” its burden is to demonstrate that each accommodation requested by Plaintiffs would be so costly as to require an unreasonable transfer of the District’s limited resources from other disabled individuals. Because the district court did not identify this showing as the District’s burden, the District did not attempt to meet it. The District will have the opportunity to do so on remand.13
effectively working system of transition assistance,” Declaration of Roger Auerbach, No. 1:10-cv-2250 (D.D.C. Sept. 20, 2016), ECF 212 at 3. Brown, 322 F.R.D. at 93 (“Plaintiffs’ expert Roger Auerbach grounds his opinion that the District fails to provide effective transition services on the faulty premise that there is affordable, accessible housing in the District that is available to class members.”). But it did not conclude that the District’s plan is “effectively working.”
And although the district court found that there is no longer a waiting list for enrollment in the EPD Waiver program, Brown, 322 F.R.D. at 90 n.30, it did not find that the District’s waiting list for transition to the community moves at a “reasonable” pace.
12 The district court should consider the fact that the MFP program will be phased out next year when deciding whether the District has an adequate “Olmstead Plan” in place.
13 The district court made numerous factual findings regarding the lack of housing in the District. Brown, 322 F.R.D. at 93 (“A lack of housing and a lack of income to secure housing are the most

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If at any point on remand, the district court concludes that the relevant questions will have different answers for different members of the class, it can modify or decertify the class under Rule 23(a)(2). Likewise, if the district court concludes that the single, requested injunction will not provide all members of the class with a better opportunity to transition to the community, it can modify or decertify the class under Rule 23(b)(2).
common barriers to discharge from a nursing facility. . . . The state of affordable housing in the District is bleak. More than 80% of individuals in nursing facilities who want to move to the community need some form of public assistance to secure housing. At present, and since April 2013, the D.C. Housing Authority (DCHA) waiting list for public and subsidized housing in the District is closed. Individuals seeking public assistance with housing cannot, at present, be added to the waiting list under any circumstances. The waiting list has over 40,000 names on it, and, for some categories, it will not need to be opened for over 20 years. . . . For class members who did not add themselves to the DCHA waiting list before it closed in April 2013, the MFP voucher lottery [which will cease to be available in 2020] is essentially the only viable avenue for securing subsidized housing. With only 65 MFP set-aside vouchers, there is nowhere near enough capacity to provide housing to all class members.” (record citations omitted)).
If on remand the district court reaffirms these factual findings under the correct burden of proof, it appears the third provision of the proposed injunction, supra, p. 8, requiring the District to transfer a certain number of class members to the community each year, would likely be so costly as to be unreasonable. In fact, it is hard to imagine what the District could do to transition to the community the number of individuals specified in the third provision in the face of such a low-income-housing shortage.
To be clear, a lack of housing would have no bearing on other portions of the proposed injunction—for example, the fourth provision, which seeks a reporting requirement. Therefore, if the district court again finds a lack of available housing on remand, this finding alone would not resolve the litigation in the District’s favor.

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We recognize and appreciate the significant time and effort the district court has expended on this case, which presents complicated legal issues. That time and effort has not been wasted. On remand, the district court is free to apply certain facts it has already found to the legal standards articulated in this opinion.14 It need not start over completely.
III. RESPONSE TO CONCURRENCE
Respectfully, we have some concerns about the concurring opinion. First, in our view, the concurring opinion miscomprehends the nature of an “adequate ‘Olmstead Plan’” and, thus, our opinion. Second, in attempting to distinguish the standard enunciated by the Supreme Court in Olmstead, the concurring opinion relies on distinctions between this case and Olmstead that are inapposite.
It is important to emphasize that we view an “adequate ‘Olmstead Plan’” differently from our colleague. An “adequate ‘Olmstead Plan’” is a legal standard. Any plan that is “comprehensive,” “effectively working,” and contains a waiting list that moves at a “reasonable” pace is an “adequate ‘Olmstead Plan.’” See supra, p. 14. And the district court has discretion in applying the “comprehensive,” “effective” and “reasonable” standards. Our opinion therefore affords both the
14 As this opinion makes clear, it is the District—not, as the district court believed, Plaintiffs—that bears the burden of demonstrating that either it has an adequate “Olmstead Plan” in place or the requested accommodations are unreasonable. “[W]hen a finding of fact is based on the application of an incorrect burden of proof, the finding cannot stand.” Abbott v. Perez, 138 S. Ct. 2305, 2327 (2018). Thus, facts that were found based on an improper allocation of the burden of proof should not be reused. Some of the district court’s factual findings were based on party stipulations. Stipulated facts can, of course, be reused.

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District and the district court far more leeway than the concurrence apparently believes.
We are especially troubled by the concurrence’s suggestion that we propose “to measure success of the ADA claims based primarily on the number of completed or pending placements of disabled individuals in outside housing.” Concurring Op. 10. This is not an accurate characterization of the majority opinion. For example, the district court could find, consistent with our opinion, that, in light of the lack of available public housing, the placement of only one individual in a given year could be a “reasonable pace” of movement from the District’s waiting list. If the district court were to deem the District’s plan “comprehensive” and “effectively working,” the District would then have an “adequate ‘Olmstead Plan’” in place. The concurrence need not strain too hard to imagine a case “where a plan producing relatively few successful annual placements . . . can be called ‘effectively working,’” id. at 10– 11, for this might be such a case. In short, the concurrence’s central criticism—that we “unduly cabin the discretion that the District should have in crafting services for individuals with disabilities,” id. at 7, and that we make “speed and success of placements” the “exclusive” determinant of ADA liability, id. at 10—is mistaken.
In our view, the approach suggested by the concurring opinion does not offer a viable framework for addressing the issues in this case. The concurrence first suggests that this case and Olmstead are “apples and pears.” Id. at 1. Specifically, it claims that three distinctions between this case and Olmstead make the standard set forth in that case inapplicable here. Id. at 7–9. The concurring opinion says that, in light of “three distinctions relevant to the ADA analysis,” “we must measure [the District’s] services by using a different yardstick from what the Olmstead plurality envisaged for Georgia” in order

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“[t]o determine whether the District is satisfying its ADA obligations.” Id. at 8–9. The concurrence first points out that “we are dealing with a class action.” Id. at 8. True enough. But “general rules of practice and procedure” prescribed by the Supreme Court—such as Rule 23 of the Federal Rules of Civil Procedure—“shall not abridge, enlarge or modify any substantive right.” Rules Enabling Act, 28 U.S.C. § 2072(a)(b). Thus, the fact that this is a class action is not “relevant to the ADA analysis.” Concurring Op. 8. Indeed, in discussing the Rules Enabling Act, the concurrence never once contends that Plaintiffs can be asked to meet a different substantive liability standard because they have chosen to proceed as a class. Id. at 17–19. Nor could it. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016) (“[It] would have violated the Rules Enabling Act [to] giv[e] plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action.”).
The concurrence next says that, because “the Olmstead plaintiffs sought placements in group homes, but our class members hope to reside in their own private homes[,] [w]e are . . . dealing with a whole new level of transition.” Concurring Op. 8. The concurrence provides no basis for treating the distinction between group homes and private homes as meaningful. Olmstead drew the line between “institutions” and “community settings,” 527 U.S. at 587. Olmstead said: “we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions.” Id. And the concurrence nowhere disputes that group homes and private homes are both “community settings.”
Finally, and “most importantly,” the concurrence says, “the District does not control the housing where the plaintiff class members hope to be placed, as Georgia did in Olmstead.”

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Concurring Op. 8. Although we agree that this fact is relevant, the Olmstead standard takes it into consideration. The lack of housing is relevant to whether the pace of movement from the waiting list is “reasonable,” which, in turn, is relevant to whether the District has an “adequate ‘Olmstead Plan’” in place. We need not fashion a new legal standard to account for a fact that the existing standard already considers. In our view, this case and Olmstead are both apples.
Having eschewed the applicable Olmstead standard, the concurrence endorses the standard articulated by the district court. In particular, the concurrence says that the District must prove by a preponderance of the evidence “that there is no systemic deficiency related to the six characteristics” the district court identified as dispositive. Id. at 17. However, the concurrence does not adequately explain its preference for the district court’s six-factor approach. It concludes that the district court “reasonably derived these six characteristics from at least five settlement agreements in analogous ADA failure-toaccommodate cases.” Id. at 13. But we cannot square the standard the district court derived from its settlementagreement-survey with the standard enunciated in Olmstead. Even assuming the six-factor approach is a useful starting point, the concurrence does not adequately explain why the District must establish that it lacks a “concrete, systemic deficiency” related to those six factors to avoid liability. Id. at 17. Ultimately, the concurrence makes a valiant effort to make sense of the litigation history of this case, but its approach finds no support in Olmstead. We therefore respectfully disagree with its suggested resolution of this case.
One final note. The concurrence’s lengthy causation analysis does not represent the opinion of the court. As the concurrence recognizes, treating individuals in institutions when they wish to and could be treated in the community is

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discrimination because of disability. Id. at 27 (citing Olmstead, 527 U.S. at 601). Members of the class have thus already proven causation. See supra, pp. 4–5 (class definition). The only remaining question is whether the requested accommodations are reasonable. See supra, Section II.C (remand instructions).
* * *
For the foregoing reasons, we reverse the district court’s judgment and remand the case for further proceedings consistent with this opinion.
So ordered.

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WILKINS, Circuit Judge, concurring in the judgment: I agree with the two bottom-line holdings of the majority opinion: (1) that the District Court erred in “requir[ing] Plaintiffs to meet a burden they should not have been made to shoulder”; and (2) that the class definition comports with Rule 23 of the Federal Rules of Civil Procedure. Majority Op. 15, 21, 23. But I cannot join the opinion because I disagree with how it analyzes a key precedent – Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) – and how it instructs the District Court on remand.
The majority considers this class action a simple application of Olmstead. I don’t think it’s quite that simple. I recognize that the instant case and Olmstead both address community-based treatment and assert failure-toaccommodate claims under Title II of the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327, 337-53 (codified as amended in scattered sections of 42 U.S.C.), and § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), Pub. L. No. 93-112, 87 Stat. 355, 394 (codified as amended in 29 U.S.C. § 794). But upon closer inspection, the claims are apples and pears. I believe that failing to heed these differences takes the majority opinion slightly, but materially, off course.
I.
I start with an overview of the relevant legal authorities: the ADA, Rehabilitation Act, their implementing regulations, and Olmstead. My colleagues and I agree that the substantive standard for the ADA and Rehabilitation Act claims is the same (with one major exception noted below), see Majority Op. 11 n.6, and thus I focus primarily on the former.
Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from

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participation in” government programs. 42 U.S.C. § 12132. Because Title II protects any disabled individual who can meet the “essential eligibility requirements” of those programs with the help of “reasonable modifications to rules, policies, or practices,” the ADA requires the government to provide such modifications. See id. § 12131(2).
In a failure-to-accommodate claim under Title II, the plaintiff must first present a specific “reasonable accommodation.” See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002); see also Barth v. Gelb, 2 F.3d 1180, 118687 (D.C. Cir. 1993) (Rehabilitation Act). She may show that her accommodation is reasonable “on its face, i.e., ordinarily or in the run of cases,” or “on the particular facts.” U.S. Airways, 535 U.S. at 401, 405; see also Barth, 2 F.3d at 1187. Only after the plaintiff makes her prima facie showing does the burden shift to the defendant to prove that the accommodation would create an undue hardship or, in this case, a fundamental alteration. See U.S. Airways, 535 U.S. at 402.
The burden-shifting regime is consistent with the text of the relevant Title II regulation. The regulation provides that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). As a textual matter, § 35.130(b)(7)(i) places the burden on the government to demonstrate fundamental alteration but does not expressly do so with respect to the showing of reasonable modifications and their necessity. I interpret the omission as intentional. The regulation therefore imposes on plaintiffs the burden of initially proffering a reasonable accommodation and

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its necessity. Accord Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 492 n.4 (3d Cir. 2004).
Enter Olmstead. Two individual plaintiffs resided in Georgia-run hospitals and sought a specific accommodation: successful placement in state-contracted, community-based group homes. The Eleventh Circuit identified as an ADA violation Georgia’s failure to place them in group homes and remanded for further consideration of the fundamental alteration defense. In affirming the Eleventh Circuit’s judgment of ADA liability, Olmstead holds as a matter of law that an individual plaintiff who demonstrates (1) the state’s approval of a group-home placement and (2) her desire to receive group-home care makes a prima facie showing that successful placement is a facially reasonable and necessary accommodation. See 527 U.S. at 587, 607 (plurality opinion) (focusing on reasonableness of “placement”). My colleagues appear to agree. See Majority Op. 11-13.
After affirming the prima facie determination, the Supreme Court vacated the Eleventh Circuit’s judgment only as to the fundamental alteration defense, because the Court thought that the lower court gave erroneous instructions on remand. See Olmstead, 527 U.S. at 603-07 (plurality opinion); id. at 607-08 (Stevens, J., concurring in part and concurring in the judgment). A plurality of the Supreme Court proceeded to outline the contours of Georgia’s affirmative defense. See id. at 603-06 (plurality opinion). My colleagues and I agree that the plurality opinion provides guidance as to how any government defendant may prove a fundamental alteration in practice. But we diverge on how to interpret the opinion.

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II.
According to the majority, Olmstead “effectively requires” the District to implement a so-called “Olmstead Plan” because evidence of the plan would defeat the failure-to-accommodate claim here. Majority Op. 14. The Olmstead Plan, as described in the Supreme Court case, is a “comprehensive, effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the [government]’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 605-06 (plurality opinion). Unlike the majority opinion, I do not understand the Olmstead plurality as dictating a particular type of “plan” that the government must execute to address every potential manifestation of disability discrimination in community-based treatment.
The Olmstead plurality instead proffered a different, more abstract legal standard for evaluating fundamental alteration defenses across a wide range of treatment-related failure-toaccommodate claims. In any such case, the defendant must establish some “inequit[y]” that would result from “immediate[ly]” implementing the accommodation asserted by the plaintiff in the prima facie showing. See id. at 604 (plurality opinion) (“Sensibly construed, the fundamentalalteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities.”).
The plurality offered details as to how to apply the standard in practice. The inquiry is necessarily “case-by-case.” Id. at 606 n.16 (plurality opinion) (quoting 28 C.F.R.

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§ 42.511(c) (1998)). Just as the reasonableness of a proposed accommodation is “a contextual and fact-specific inquiry,” Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014), so too must the fundamental alteration defense depend on a fact-intensive inquiry. Cost to the government is relevant, but it is only one factor. See Olmstead, 527 U.S. at 604 (plurality opinion). But see Majority Op. 14 (focusing solely on whether a proposed accommodation is too “costly”). Other potentially relevant factors include the amount of government resources devoted to disability treatment in general, see Olmstead, 527 U.S. at 606 n.16 (plurality opinion), and potential harm to plaintiffs or other persons with disabilities caused by changes to current government programming, see id. at 604-05 (plurality opinion) (noting that the government should neither “phase out institutions” that would “plac[e] patients in need of close care at risk,” nor “move institutionalized patients into an inappropriate setting, such as a homeless shelter”). The plurality also emphasized that governments must be able, if they choose, to “maintain a range of facilities” and “administer services with an even hand.” Id. at 605 (plurality opinion).
Despite the majority opinion’s suggestions to the contrary, see Majority Op. 13-14, 24, 28, the Olmstead Plan described by the plurality is not an intrinsic part of the “fundamental alteration” standard. The plurality was offering it as an “example” of a plan that would work in Georgia. See Olmstead, 527 U.S. at 605-06 (plurality opinion) (“If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.”); see also id. at 593-94 (defining Georgia state officials as “the State”); id. at 606 (plurality opinion) (citing to representations

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of government counsel as support for Olmstead Plan); Frederick L., 364 F.3d at 498 (noting that the plurality was posing only a “hypothetical” example).
Accordingly, the Olmstead Plan hewed closely to Olmstead’s facts. Consistent with the proposed accommodation of successful group-home placement in the state, the proposed Olmstead Plan focused on “placing qualified persons with . . . disabilities in less restrictive settings” and required a “waiting line that moved at a reasonable pace.” Olmstead, 527 U.S. at 606 (plurality opinion). The plurality emphasized the importance of a waitlist because Georgia had significant control over the group homes, all of which were maintained through state contracts. See Brief for Petitioners at 8, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) (No. 98-536), 1999 WL 54623; Brief for Respondents at 4-5, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) (No. 98-536), 1999 WL 144128; see also L.C. ex rel. Zimring v. Olmstead, No. 1:95-cv-1210-MHS, 1997 WL 148674, at *4 (N.D. Ga. Mar. 26, 1997) (“[T]here is no dispute that defendants already have existing programs providing community services to persons such as plaintiffs.”), aff’d in part and remanded in part, 138 F.3d 893 (11th Cir. 1998), aff’d in part and vacated in part sub nom., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). And as the case was presented to the Supreme Court, the justices were aware that Georgia had significant authority to manage and even increase the number of beds available at those facilities. See, e.g., Oral Argument at 5 (“QUESTION: Your position is . . . that it’s up to the State to decide what voluntary facilities it will make available for the . . . [individuals with disabilities], that if the State chooses to have only institutional facilities, it may do that. And if it chooses to have, in addition, community-based facilities, it may have them in addition, but it will be up to the State how many people it will . . . allow to go into those community-

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based facilities . . . .”), Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) (No. 98-536), 1999 WL 252681; id. at 35 (“QUESTION: Can we go back one step to have . . . this basic question clear? In your view, under the statute, is the State required to have any community-based facilities? Suppose the State says, some people we know are going to need institutionalization. We’re going to provide just one room. Is there any obligation under the ADA for the State to do more than have institutional care?”); id. at 44-45 (“QUESTION: Suppose the State said we have 500 spaces in the . . . community-based facility. There are 532 people who qualify. . . . [I]s the State then required to create another community-based facility to take care of the 32 who don’t fit into the space available?”). Because Georgia had adequate capability to ensure a well-functioning system of group homes and a quickly moving waitlist to enter them, the plurality saw “no warrant effectively to order displacement of persons at the top” of the list “by individuals lower down who commenced civil actions” and sought immediate placements. Olmstead, 527 U.S. at 606 (plurality opinion).
By setting into stone an “effective[]” requirement of a plan that is identical in all respects to the Olmstead Plan in cases factually dissimilar from Olmstead, see Majority Op. 14, my colleagues unduly cabin the discretion that the District should have in crafting services for individuals with disabilities. We should not equate Georgia’s services with the District’s. This case illustrates the wisdom of providing local governments greater flexibility at the fundamental alteration stage.
Compared to Olmstead, this class action presents materially different ADA issues. Our case involves more than 1,000 plaintiffs, or about two-thirds of all individuals currently in District-funded nursing facilities. See Oral Arg. Recording 0:57-1:17. The plaintiffs seek a comprehensive government

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plan with certain transition-related services: assistance with finding housing or performing activities of daily living needed for independent living outside a nursing facility. The plaintiffs wish to move into their own homes or the homes of friends or family members. The housing targeted by the plaintiffs is controlled by either the D.C. Housing Authority (DCHA) or private citizens, and neither are parties to this lawsuit or under the District’s control. See Brown v. District of Columbia, 322 F.R.D. 51, 63, 72, 83 (D.D.C. 2017) (noting that class members have been placed into private housing or “public/subsidized housing” managed by the independently run DCHA).
These facts reveal three distinctions relevant to the ADA analysis. First, we are dealing with a class action. An appropriate remedy, on the one hand, could create enormous costs for the government but, on the other hand, could appropriately bring about broad policy changes benefiting an entire population, not merely one or two litigants. Second, the plaintiffs are at different stages of community transition and deinstitutionalization; the Olmstead plaintiffs sought placements in group homes, but our class members hope to reside in their own private homes. We are thus dealing with a whole new level of transition – let’s call it “Olmstead Phase II.” Third, and most importantly, the District does not control the housing where the plaintiff class members hope to be placed, as Georgia did in Olmstead.
These factual differences do not meaningfully change the prima facie analysis. The plaintiff class members here have all established that they are long-term residents of District-funded nursing facilities, that they desire to leave, and that the District has deemed it appropriate for them to enter outside care. See id. at 87 (“In this case, . . . the class includes all physically disabled individuals who have resided in nursing facilities for over 90 days, are eligible for community-based care, prefer to

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receive long-term care in the community, and need the District’s assistance to transition to the community.”). As in Olmstead, the isolation in nursing facilities seems facially unjustified, which is enough to establish a presumption that the government violated the ADA. See 527 U.S. at 600 (“[U]njustified institutional isolation of persons with disabilities is a form of discrimination . . . .”). Thus, the plaintiffs have demonstrated an entitlement to facially reasonable accommodations.
But the factual distinctions matter significantly in the fundamental alteration analysis. At bottom, they reveal the unsuitability of executing an identical Olmstead Plan requirement here. One monumental distinction in this Olmstead Phase II litigation is the reasonableness of placing a burden on the government to create a “waiting list that move[s] at a reasonable pace.” See id. at 606 (plurality opinion). The record appears to indicate that the District cannot increase the number of housing units available to the plaintiff class members, and the plaintiffs do not contend otherwise. Certainly, the District exercises materially less control over the housing being targeted in this case than Georgia did over group-home placement in Olmstead. Moreover, because we are dealing with a broad class of disabled individuals, not just two plaintiffs, the District Court reasonably may address more systemic changes than a one-off group-home placement.
To determine whether the District is satisfying its ADA obligations, we must measure its services by using a different yardstick from what the Olmstead plurality envisaged for Georgia. My colleagues disagree, setting the Olmstead Plan as the primary yardstick. See Majority Op. 24; see also id. at 20 (“First, does the District have an adequate ‘Olmstead Plan’ in place? If it does, the District has met its responsibilities.”). And using the Olmstead Plan yardstick, the majority seems to

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indicate that mere failure to move plaintiffs off a waitlist at a reasonable pace would be dispositive in showing the ineffectiveness of the District’s current plan. Majority Op. 20. But if the District has no control over the availability and suitability of the housing inventory that the plaintiffs seek, why should a reasonably paced waitlist be a suitable dispositive measurement here, as in Olmstead?
My colleagues are leading the District Court astray. The majority opinion will inevitably cause the court to measure success of the ADA claims based primarily on the number of completed or pending placements of disabled individuals in outside housing. I don’t disagree that speed and success of placements could be relevant factors to the analysis, but we should not establish – as I understand the majority opinion to be doing – a bright-line rule that makes them the exclusive, or even predominant, factors. The District Court essentially would repeat the legal error it made in the opinion below, but from another direction. See Brown, 322 F.R.D. at 95 (entering judgment for the District simply because it could not envision a “single injunction that would result in the class members being transitioned to community-based long-term care”); see also Majority Op. 23 (rejecting the District Court’s analysis because the remedy need only provide “increased opportunit[ies]” for outside treatment).
My colleagues contend that the District Court, in applying their Olmstead Plan standard, need not fixate on speed and success. See Majority Op. 29. For instance, the District Court could find that “the placement of only one individual in a given year” is “a ‘reasonable pace’ of movement from the District’s waiting list.” Id. The assurances of my colleagues fail to mollify me; I find the plurality’s articulation of the Olmstead Plan quite restrictive and difficult to apply liberally in the mine run of cases. I am hard-pressed to imagine a plausible situation

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where a plan producing relatively few successful annual placements – such as one in a class of more than 1,000 – can be called “effectively working.” See Olmstead, 527 U.S. at 605 (plurality opinion); see also Effective, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 724 (2002) (“productive of results”). I suspect that the District, owing to no fault of its own, will be unable to show a waitlist moving faster than a glacial pace. Instead of promoting a test that needlessly renders the government unable to defend itself, I would prefer applying the flexible standard that the Olmstead plurality in fact created: whether “inequit[ies]” will result from immediate relief. See Olmstead, 527 U.S. at 604 (plurality opinion).
More generally, I worry that future courts will ascertain from the majority opinion a general requirement to consider the specific Olmstead Plan analysis in all future failure-toaccommodate claims involving community-based care. But future plaintiffs may seek types of accommodations that do not fit neatly within the Olmstead mold. For instance, one plaintiff class might seek modifications to a government-aid program so that its members would remain in the community care they already receive. The standard Olmstead Plan analysis isn’t a good fit because the pace of successful community placements in the past has little relevance to such a claim seeking to prevent future re-institutionalization. Yet the majority opinion appears to make the verbatim Olmstead Plan the lodestar of all remedial analyses for failure-to-accommodate claims. In some cases, the substantial mismatch between the Olmstead Plan and the facts on the ground will ensure that the District Court’s legal analysis will cause prejudice to the local government. In others, the mismatch will harm the vulnerable population of disabled individuals seeking nondiscriminatory care.
The District Court should have a freer hand in determining what constitutes adequate transition services and crafting an

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injunction that fits within the District’s current programming and resources. Something less drastic than the speedy and guaranteed placement of more than 1,000 individuals into private homes or DCHA-controlled housing must suffice. A plan need not replicate the “Olmstead Plan” to work.
III.
Substantial aspects of the District Court’s legal analysis satisfy the Olmstead plurality’s fact-intensive legal standard. Although I agree with my colleagues that the District Court committed a legal error with the burden of proof, I am concerned that the remand instructions are misleading.
I first commend the District Court for its dauntless (and largely faultless) work during this litigation. More than two years into the case, the plaintiffs had not specified what classwide relief they wanted, and the District Court needed a better grasp on the precise accommodations being sought. Thus, the District Court refused to certify a class until the plaintiffs provided more details. See Thorpe v. District of Columbia, 303 F.R.D. 120, 133-34 (D.D.C. 2014). The litigants filed a third amended complaint, asserting eleven particular deficiencies in the District’s services and proposing detailed injunctive relief addressing those deficiencies. See id. at 135-37 & n.40.
Based on the new pleadings, the District Court correctly understood the “gravamen” of the ADA class claims to be that the District “injur[es] each and every class member by virtue of its failure to implement an effective system of transition assistance.” Id. at 146. In certifying the class, the District Court noted that at least some of the eleven deficiencies could be litigated on a classwide basis and, if proven at trial, would detract from what the court considered to be an adequate

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government plan. See id. at 148-49; Brown, 322 F.R.D. at 90 n.30. According to the District Court, an adequate plan embraces six characteristics:
(1) individual assessments upon admission and periodically thereafter for all residents to determine interest in community-based services; (2) provision of accurate information about available community-based services and eligibility requirements for those services; (3) discharge/transition planning that commences upon admission and includes a comprehensive written discharge/transition plan[]; (4) identification of what communitybased services are needed and assistance in arranging for those services; (5) assistance in applying for and enrolling in available waivers or transition programs; and (6) identification of barriers to transition and assistance in overcoming those barriers to the extent possible (e.g., if housing is a barrier, providing assistance in applying for supported housing).
Brown, 322 F.R.D. at 89 (quoting Thorpe, 303 F.R.D. at 148). The District Court reasonably derived these six characteristics from at least five settlement agreements in analogous ADA failure-to-accommodate cases, see Thorpe, 303 F.R.D. at 148, and the District has never genuinely contested the characteristics.
Having set a useful framework for its legal analysis, the District Court at trial started to determine the “concrete[,] systemic deficienc[ies]” related to the six characteristics. Brown, 322 F.R.D. at 88. My colleagues call it a “fundamental

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error” to seek such deficiencies, see Majority Op. 14, but I cannot agree.
At the outset, I note that no party doubts the importance of finding concrete, systemic deficiencies in this litigation. Appellant Ivy Brown here argues only that the class plaintiffs had sufficiently alleged such deficiencies, not that the deficiencies lack a role in the ADA analysis. See Appellant’s Br. 40-45.
Raising the issue sua sponte, my colleagues point out that “[n]owhere does Olmstead talk about ‘concrete, systemic deficiencies.’” Id. at 10. But the case does not purport to outline how every treatment-based failure-to-accommodate claim should proceed. Olmstead is but one gloss of the ADA’s failure-to-accommodate claim. As I noted above, Olmstead is not a class action, but rather a simple case involving the claims of two individual plaintiffs. The District Court has focused on concrete, systemic deficiencies in an attempt to harmonize the substantive ADA standard and our class-action precedents.
Recall that the plaintiffs proposed concrete deficiencies in their pleadings. Because “reasonable” accommodations can be an elusive term, the District Court asked the plaintiffs to be more specific as to what they wanted. In response, the plaintiffs identified eleven problems, which helped substantially to clarify matters. By saying the government programming had concrete deficiencies and describing them, the plaintiffs necessarily implied that the fixes for those flaws are the accommodations they seek. Of course, these accommodations are not the same as those requested in Olmstead: successful community placements. Thus, the District Court needed to ensure that they were reasonable and necessary. See 28 C.F.R. § 35.130(b)(7)(i). The court properly did that here. The District Court found the deficiencies to relate

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to the six characteristics of an adequate government plan, which it determined by canvassing analogous settlement agreements. Although the characteristics do not guarantee actual Olmstead Phase II placements, they still appear to provide disabled individuals with meaningful opportunities for future success. And if other local governments are consenting to providing such services, they likely are facially reasonable. Finally, because the plaintiffs established the prima facie elements of the Olmstead claim, see Brown, 322 F.R.D. at 87, they demonstrated an entitlement to accommodations fixing those specific deficiencies.
But it was not enough for the District Court to focus on the concrete deficiencies identified by the plaintiffs. To faithfully follow our Rule 23 precedents, the court needed to concentrate on systemic ones. The relevant cases are Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013). Interpreted by the Supreme Court in Wal-Mart, Rule 23(a)(2) requires the class action to raise a common legal or factual question that, when answered at trial, would “resolve an issue that is central to the validity of each one of the [class] claims in one stroke.” 564 U.S. at 350. DL emphasized that Wal-Mart has “changed the [legal] landscape” for class certification and, in cases where a policy or practice is challenged, requires the policy or practice to “bridge[]” all the claims through a “common harm . . . affect[ing] each class member.” 713 F.3d at 126-28.
In this case, the alleged concrete deficiencies might affect various individuals in the class. But consistent with Wal-Mart and DL, the District Court decided that, for the case to warrant a classwide merits proceeding, at least one of those deficiencies must “affect[] all class members” and “provide[] the ‘glue’” combining all the claims, DL, 713 F.3d at 131 (Edwards, J., concurring) (quoting Wal-Mart, 564 U.S. at 352). Before trial,

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the District Court determined at least two common questions relating to the eleven deficiencies (and the six characteristics of an adequate plan): (1) whether the District provides adequate discharge planning and (2) whether it informs the plaintiffs of and provides them with meaningful community-based alternatives to living in nursing facilities. See Thorpe, 303 F.R.D. at 146 n.58. (There might be others, but the District Court had no need to discuss them in pretrial proceedings. See Wal-Mart, 564 U.S. at 359 (noting that courts need find only a “single” common question (citation omitted)).)
The class having been certified, the parties thus needed to litigate the answers to the common questions at trial. See 4 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 11:1 (5th ed. 2019). A negative answer would show that all class members share at least some of the same legal injuries from the District’s institutionalization, and that the injuries result from a concrete, systemic deficiency in the District’s transition services. Such classwide injury, and the correspondingly broad remedy to redress it, would distinguish this case from Olmstead. Whereas the lower court in Georgia could demand only the successful placements of the two individual plaintiffs, the District Court here could require institutional changes to the government’s transition programming. See, e.g., Lewis v. Casey, 518 U.S. 343, 360 n.7 (1996) (rejecting “systemwide relief” where the plaintiffs failed to prove that violations “pervaded the [government’s] system” (citation omitted)); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (“[O]nly if there has been a systemwide impact may there be a systemwide remedy.”).
The District Court’s legal error here was forcing the plaintiff class to establish the concrete, systemic deficiencies by a preponderance of the evidence. That cannot be squared with the elements of the ADA claim as interpreted by

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Olmstead. Because the District Court found the requested classwide accommodations to be facially reasonable in light of the settlement agreements, and because the class at trial established a prima facie entitlement to such accommodations, the burden shifted to the government for proof of inequities. One way to show inequity is to demonstrate that the government’s programming in fact already adequately provides the requested accommodations. If it does, then the plan warrants no systemic changes. Put another way, the District may rebut the need for classwide relief by demonstrating that it lacks the concrete, systemic deficiencies raised by the class pleadings and identified by the District Court. (I note that the parties in In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015), neither briefed nor raised the issue of who had the burden of proof, and so we had no reason to discuss it at the time.)
Now that we have corrected the District Court’s misunderstanding about the burden of proof, we should leave the court alone. It should largely stick to its original plan and determine on remand whether the District has proven, by a preponderance of the evidence, that there is no systemic deficiency related to the six characteristics. That would lead to a proper resolution in this Olmstead Phase II case. The majority opinion instead requires the District Court to engage in a new two-part test largely detached from the characteristics it already articulated. See Majority Op. 24-25 (requiring the District Court to determine first whether the District has an Olmstead Plan, and second whether the plaintiffs’ requested injunctive relief is too “costly”).
My colleagues say my approach would lead to a violation of the Rules Enabling Act (REA), 28 U.S.C. § 2072. See Majority Op. 30. The statute provides that no Federal Rule of Civil Procedure may “abridge, enlarge[,] or modify any

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substantive right.” 28 U.S.C. § 2072(b). Such rights include “who may sue, on what claims, [and] for what relief.” Henderson v. United States, 517 U.S. 654, 671 (1996). In particular, my colleagues submit that it would contravene the REA to look for concrete deficiencies as part of fashioning a classwide remedy. That somehow mutates the nature of the ADA claims, and my colleagues trace the change to Rule 23.
I disagree. My colleagues have identified no substantive right that is abridged, enlarged, or modified. The elements of the prima facie claim remain the same in an individual or class action. So too does the fundamental alteration standard: whether inequities arise from immediate relief. If the District Court looks for systemic deficiencies, it is doing so only because they help to reveal the specific accommodations requested by the plaintiffs here and the potential inequities associated with enjoining the District. The only difference between the class action here and Olmstead would be the scope of the remedy. But even then, the District’s “aggregate” duty to provide reasonable accommodations “does not depend on whether the suit proceeds as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. (Shady Grove), 559 U.S. 393, 408 (2010) (plurality opinion). An injunction in the individual action would provide the accommodation only to the named litigants, while an injunction in the class action would provide the same accommodation to the population at large. The latter remedy would affect more people, result in more significant policy changes, and be considered institutional reform. And in the latter case, some absent class members surely would benefit from freeriding because they would not have sought the relief themselves. Nonetheless, the substantive fix, as applied to each litigant, is the same. Seen in this way, the breadth of the class injunction is only an “incidental” effect on substantive rights, which the REA tolerates. Bus. Guides, Inc. v. Chromatic Commc’ns Enters.,

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Inc., 498 U.S. 533, 553 (1991); see also Shady Grove, 559 U.S. at 408 (plurality opinion).
In the end, my colleagues allow that the District Court could “focus its ultimate injunction on the six ‘key components of an effective system of transition assistance’ that it has gleaned from other Olmstead cases.” Majority Op. 23 n.10 (quoting Thorpe, 303 F.R.D. at 148). But if that is case, we should not then opine on a broader fundamental alteration test that I believe misreads Olmstead and could create problems in future cases. We need not issue potentially misleading guidance if the District Court already knows what to do.
The District Court should instead rely on the fact-intensive fundamental alteration standard devised by the Olmstead plurality: whether immediate changes to current government programming would create inequities. After reviewing what the District Court has said in its numerous pre-trial opinions, I am confident that it can apply the proper standard here. Through the six characteristics it has developed, the District Court can ensure comprehensive and effective transition services without improperly hamstringing government officials. Because I read the majority opinion as requiring the District Court to change course and apply an improper test, I cannot subscribe to it.
IV.
I conclude with some remarks about the elephant in the room: causation.
Since the start of litigation, the District Court has expressed doubts as to whether the plaintiff class could establish a “causal link between the alleged deficiencies in the District’s system of transition assistance and the alleged

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unnecessary segregation.” Brown, 322 F.R.D. at 60 (quoting Thorpe, 303 F.R.D. at 142). After the bench trial, the District Court sought supplemental briefing on the issue of causation and the plaintiff’s burden of proof. Id. at 62. For the plaintiffs, the court had a choice between two burdens of proving causation: (1) the traditional “but for” causation (a showing by the plaintiffs that their disability-based institutionalization “would not have occurred” had the District been providing their requested accommodations) or (2) the less onerous “motivating factor” causation (a showing by the plaintiffs that the District’s failure to provide their accommodations was “a ‘motivating’ or ‘substantial’ factor” in their disability-based isolation). See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343, 346-48 (2013). Contrary to what Appellant suggests, see Appellant’s Br. 27-39, the District Court said it was avoiding the issue, see Brown, 322 F.R.D. at 89 n.29.
Because we are remanding the case, the District Court must return to causation. I make two points on the matter.
First, the District Court expressly framed the issue of causation as whether “beef[ing] up the [transition] services” will in fact lead to success in “getting people out.” Id. at 63 (citation omitted). But the target goal should be a meaningful opportunity for a future community placement, not actual success in providing the placement. Accord Majority Op. 23.
Second, whether a plaintiff has the burden of showing “but for” or “motivating factor” causation in a disabilitydiscrimination failure-to-accommodate claim is a headspinning legal question. For the reasons set forth below, I conclude that the plaintiffs in an Olmstead claim may establish only “motivating factor” causation in their prima facie case, and that the defendant may then prove the absence of “but for” causation to rebut liability.

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In identifying the proper causation inquiry, we must pay close attention to the statutory text and context. See Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1842-43 (2018); Maslenjak v. United States, 137 S. Ct. 1918, 1929-30 (2017); Nassar, 570 U.S. at 343, 350-51; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-76 (2009); Ford v. Mabus, 629 F.3d 198, 204-06 (D.C. Cir. 2010). As noted above, Title II bans government discrimination “by reason of” the individual’s disability. 42 U.S.C. § 12132. And § 504 of the Rehabilitation Act bans discrimination “solely by reason of” disability. 29 U.S.C. § 794(a); see also Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984) (Ginsburg, J.).
Our sister circuits are split as to whether the phrase “by reason of” and the absence of language authorizing a burdenshifting regime imply that the plaintiff has the burden of proving “but for” or “motivating factor” causation. Compare Haberle v. Troxell, 885 F.3d 170, 179 (3d Cir. 2018) (but for), A.H. ex rel. Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593-94 (7th Cir. 2018), and Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016), with K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013) (motivating factor), Pinkerton v. Spellings, 529 F.3d 513, 51718 (5th Cir. 2008) (per curiam), and Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). Despite Appellant’s suggestions to the contrary, see Appellant’s Br. 29, the Second Circuit has declined to decide the issue, see Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir. 2010).
The circuit split reflects the difficulty of the interpretive issue. As we have explained in Ford, the causation issue comprises two distinct legal questions: which “standard of causation” does the statute at issue impose, and whether burden-shifting may occur. 629 F.3d at 204. Given recent

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Supreme Court precedents, I think that the first question is clear. The second is not.
The Supreme Court in Gross noted that the term “by reason of” ordinarily means “but for” causation, and numerous precedents have endorsed the Court’s observation. See 557 U.S. at 176; see also Burrage v. United States, 571 U.S. 204, 213 (2014); Nasser, 570 U.S. at 350; Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 653-54 (2008); Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 267-68 (1992); cf. A. Philip Randolph Inst., 138 S. Ct. at 1842-43 (finding that “by reason of” in statute at issue implied sole causation, which is more stringent than “but for” causation). A straightforward application of Gross indicates that “but for” causation is an element of the Title II claim.
Moreover, the Supreme Court in Burrage exposed the improbability of a federal statute demanding “motivating factor” causation simpliciter. The Supreme Court articulated the “motivating factor” test in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part on other grounds by Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended at scattered sections of 2, 16, 29, 42 U.S.C.), for claims under Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 253 (codified as amended at 42 U.S.C. § 2000e et seq.). Under the Price Waterhouse doctrine, the burden of proving causation shifts from the plaintiff to the defendant once the former proves that her protected status (in that case, gender) “played a motivating part” in the latter’s adverse action, and the defendant “may avoid a finding of liability only be proving by a preponderance of the evidence that it would have” performed the action “even if it had not taken” her status “into account.” Gross, 557 U.S. at 173-74 (quoting Price Waterhouse, 490 U.S. at 258 (plurality opinion)). But as the Court clarified in Burrage,

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Price Waterhouse never held that Title VII required only “motivating factor” causation; the key move in the latter case was to shift the burden of proving “but for” causation to the defendant after the plaintiff made a successful prima facie showing. See 571 U.S. at 213 n.4; see also Gross, 557 U.S. at 173-74. “But for” causation remained the standard for Title VII claims until Congress expressly adopted the “motivating factor” test in the Civil Rights Act of 1991. Burrage, 571 U.S. at 213 n.4 (citing 42 U.S.C. § 2000e-2(m)). The Supreme Court also noted that courts have not yet found motivating factors simpliciter to be sufficient in practice; in cases where such a factor was identified, it either was an “independently effective” cause among other sufficient causes or would satisfy the “but for” test in any event. Id. at 215-16 (citation omitted).
This is not to say that Congress is forbidden from mandating only “motivating factor” causation. See, e.g., In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., No. 175217, 2019 WL 2552955, at *15 (D.C. Cir. June 21, 2019) (per curiam); Ford, 629 F.3d at 206; cf. Burrage, 571 U.S. at 214 (noting the “undoubted reality that courts have not always required strict but-for causality”). But given the plain meaning of Title II’s statutory language and Burrage’s illumination of Price Waterhouse, I am compelled to conclude that Congress wanted “but for” causation here.
But which side must prove the existence (or lack) of “but for” causation? The statutory language and precedents do not plainly lead to an answer.
As Gross made clear, when “the statutory text is ‘silent on the allocation of the burden of persuasion,’” courts must “‘begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.’” 557 U.S. at 177 (quoting Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005)).

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Title II says nothing about burden of proof, which implicates the default rule that the plaintiffs bears the burden of demonstrating “but for” causation. The Gross Court also suggested that the burden-shifting approach in Price Waterhouse is “difficult to apply,” and that the “perceivable benefit” of applying the approach to other statutory contexts may be “eliminated” by the practical problems. Id. at 179.
Still, certain cues suggest that burden-shifting akin to Price Waterhouse may occur here. The parallel Rehabilitation Act provision expressly bans discrimination “solely by reason of” disability. 29 U.S.C. § 794(a). The omission of the word “solely” in Title II is a reasonable signal that Congress wanted to adopt something like Price Waterhouse burden-shifting. See Gross, 557 U.S. at 183 n.4 (Breyer, J., dissenting); see also Price Waterhouse, 490 U.S. at 241 & n.7 (plurality opinion); id. at 258-59, 268-69 (White, J., concurring in the judgment). In addition, one can distinguish this case from Gross, which required the plaintiff to establish “but for” causation for claims under the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. § 621 et seq.). Gross emphasized that the Civil Rights Act of 1991 adopted a modified Price Waterhouse burden-shifting regime for Title VII, amended the ADEA, and declined to create such a regime for the ADEA. See 557 U.S. at 174-75. The Supreme Court interpreted the omission as an intentional decision by Congress to forego the Price Waterhouse framework for the ADEA. See id. at 17475, 177 n.3. But the 1991 statute never touched Title II, and so the reasoning in Gross does not squarely apply.
Moreover, it is permissible to consider agency interpretations of a statutory gap. See Gross, 557 U.S. at 179 n.6 (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 40003 (1983)); see also Olmstead, 527 U.S. at 598 (noting that the

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ADA regulations are entitled at least to “respect” under Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Unfortunately, the relevant Title II regulation on its face provides only some, but not much, help. See 28 C.F.R. § 35.130(b)(7)(i) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). The regulation clearly outlines a burden-shifting framework, but it does not explicitly indicate that the burden of proving causation moves at any point. The text of the regulation does not make clear whether the government’s burden of establishing a fundamental alteration entails the burden of proving the absence of “but for” causation. As for the plaintiff’s prima facie case, the “necessary” prong of the regulation incorporates a demonstration of causation, see Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 749 (7th Cir. 2006) (en banc), but it is not obvious whether “necessary” means that the plaintiff must show “but for” or only “motivating factor” causation in her prima facie case. The prong uses the phrase “on the basis of,” see 28 C.F.R. § 35.130(b)(7)(i), but the legal meaning of that phrase has split our sister circuits in an analogous context, compare Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019) (but for), Gentry v. E. W. Partners Club Mgmt. Co., Inc., 816 F.3d 228, 235-36 (4th Cir. 2016), and Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014), with EEOC v. LHC Grp., Inc., 773 F.3d 688, 702-03 (5th Cir. 2014) (motivating factor), with at least two circuits reserving the issue, see Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 504 (7th Cir. 2017); Oehmke v. Medtronic, Inc., 844 F.3d 748, 757 n.6 (8th Cir. 2016).

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After surveying the relevant cases and authorities, I find that we have an ambiguous agency regulation filling a gap in the Title II provision. So how should we decide the burden of persuasion? Thankfully, I need not stake out any broad positions about all Title II claims in general. With respect to Olmstead claims, we have useful interpretive guidance from the Department of Justice (DOJ), which promulgated the Title II regulations. As the District Court has recognized, see Brown, 322 F.R.D. at 62 n.8, the DOJ believes that plaintiffs making an Olmstead claim “could make out a case . . . even if they could not prove [that] ‘but for’ the disability, they would have received the community-based services they sought,” U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., STATEMENT OF THE DEPARTMENT OF JUSTICE ON ENFORCEMENT OF THE INTEGRATION MANDATE OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND OLMSTEAD V. L.C. 4 (June 22, 2011), https://www.ada.gov/olmstead/q&a_olmstead.pdf. I need not determine whether the DOJ’s interpretation warrants deference under Auer v. Robbins, 519 U.S. 452 (1997). See Kisor v. Wilkie, No. 18-15, 2019 WL 2605554, at *8-10 (U.S. June 26, 2019) (describing multifactor test for Auer deference). Regardless, the interpretation would merit Skidmore respect because the interpretation has not changed over time and the DOJ has amassed a considerable “body of experience and informed judgment” on the issue of disability discrimination in government treatment programs. See Olmstead, 527 U.S. at 598 (citation omitted). See generally OLMSTEAD: COMMUNITY INTEGRATION FOR EVERYONE, https://www.ada.gov/olmstead (last visited June 13, 2019). And despite having an opportunity to do so, the government has not challenged the interpretation in this litigation. See generally Reply to Plaintiffs’ Opposition, Brown v. District of Columbia, No. 1:10-cv-02250-ESH (D.D.C. filed Nov. 4, 2016), ECF No. 226. (The District Court suggested that the DOJ’s interpretation might apply only in the individual case, not in class actions. See Brown, 322 F.R.D. at

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62 n.8. That cannot be correct; the upshot would be that individual and class actions have different proof-of-causation regimes, which would be a clear REA violation.)
To reconcile Title II’s requirement of “but for” causation and the DOJ’s interpretation that plaintiffs need not shoulder the burden of proving it in the Olmstead context, I conclude that Olmstead claims must proceed under the Price Waterhouse framework. The plaintiff in an Olmstead claim must show that the government’s failure to provide the requested accommodations was a motivating factor in her institutionalization. See Thorpe, 303 F.R.D. at 148 (noting that the “lack of transition services” must “contribute[] to the lack of placements of residents into community-based services” (emphasis added)). And at the fundamental alteration stage, the government may establish by a preponderance of the evidence that the institutionalization would have occurred even with all the accommodations. In doing so, the government would sever the “but for” link between the plaintiffs’ disabilities and their isolation.
The class plaintiffs clearly made their prima facie showing of causation here. By establishing that the government thinks it appropriate for them to receive community treatment, and that they desire a community placement, see Brown, 322 F.R.D. at 87, they have made the preliminary showing of their “unjustified institutional isolation,” Olmstead, 527 U.S. at 600, 602-03. As a matter of law, the Supreme Court has explained, such “[d]issimilar treatment” is discrimination by reason of their disability: “In order to receive needed medical services [from the government], [they] must, because of [their] disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [those] disabilities can receive the medical

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services . . . without similar sacrifice.” Id. at 601 (emphasis added).
On remand, the District may attempt to prove that “but for” causation does not exist – in other words, that the plaintiffs would remain in their nursing facilities even if the government were to fix the identified deficiencies. When read alongside the DOJ’s interpretation of the Title II regulation, the fundamental alteration standard must allow for such an attack on causation. This makes eminent sense; it is inequitable to require the government to change its programming if the change is futile.
The District Court expressed concerns that the lack of housing might break the causal link. See Brown, 322 F.R.D. at 63. Perhaps. But that is for to the District to prove and for the District Court to conclude. As the Price Waterhouse framework makes clear, if the government succeeds in rebutting the prima facie showing of causation, the District Court should enter judgment in its favor.
Accordingly, I break from my colleagues’ suggestion that a demonstrated lack of housing “alone” could never “resolve the litigation in the District’s favor.” Majority Op. 26 n.13. For that additional reason, I cannot join the majority opinion. I therefore respectfully concur only in the judgment.

 
 U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10−cv−02250−ESH

TYPE−L

BROWN, et al v. DISTRICT OF COLUMBIA Assigned to: Judge Ellen S. Huvelle Case in other court: USCA, 17−07152 Cause: 42:12188 Americans With Disabilities Act
Plaintiff

Date Filed: 12/23/2010 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

EDWARD DAY TERMINATED: 04/02/2012

represented by Kelly Riseden Bagby AARP FOUNDATION LITIGATION 601 E Street, N.W. District of Columbia, DC 20049 202−434−2103 Email: kbagby@aarp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marjorie Lynn Rifkin UNIVERSITY LEGAL SERVICES, INC. 220 I Street, NE Suite 130 Washington, DC 20002 (202) 527−7032 Fax: (202) 547−2662 Email: mrifkin@uls−dc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara S. Wahl ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 (202) 857−6415 Fax: (202) 857−6395 Email: barbara.wahl@arentfox.com TERMINATED: 09/16/2019

Brian D. Schneider ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 (202) 715−8590 Email: schneider.brian@arentfox.com TERMINATED: 09/16/2019

Bruce B. Vignery AMERICAN ASSOCIATION OF RETIRED PERSONS 601 E Street, NW Suite A4−170 Washington, DC 20049−0001 (202) 434−2137 Fax: (202) 434−6424 Email: bvignery@aarp.org TERMINATED: 07/05/2012

Jennifer Rachel Lav NATIONAL HEALTH LAW PROGRAM 1444 I Street, NW

Plaintiff LARRY MCDONALD

Suite 1105 Washington, DC 20005 (202) 289−7661 ext.319 Fax: (202) 547−2662 Email: lav@healthlaw.org TERMINATED: 04/12/2017
Victoria L. Thomas UNIVERSITY LEGAL SERVICES 220 I Street, NE Suite 130 Washington, DC 20002 (202) 547−0198 X 102 Email: vthomas@uls−dc.org TERMINATED: 10/14/2014
represented by Iris Y. Gonzalez AARP FOUNDATION 601 E Street, NW B4−208 Washington, DC 20049 (202) 434−6289 Fax: (202) 434−6424 Email: igonzalez@aarp.org TERMINATED: 08/29/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marjorie Lynn Rifkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 (202) 434−2060 Fax: (202) 434−6424 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Huang TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009−4422 202−204−8479 Email: mhuang@tpmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen ARENT FOX LLP 1717 K Street, NW Washington, DC 20006 (202) 857−6191

Fax: (202) 857−6395 Email: alison.andersen@arentfox.com TERMINATED: 09/16/2019
Barbara S. Wahl (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Bruce B. Vignery (See above for address) TERMINATED: 07/05/2012
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Kathleen Lillian Millian TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009 (202) 682−2100 Fax: (202) 289−6795 Email: kmillian@tpmlaw.com ATTORNEY TO BE NOTICED
Kristina J. Majewski AARP LEGAL COUNSEL FOR THE ELDERLY 601 F Street, NW Washington, DC 20049 (202) 434−2134 Fax: 202−434−6464 Email: kmajewski@aarp.org TERMINATED: 08/22/2019
Lyndsay Ayanna Niles WASHINGTON LAWYERS' COMMITTEE 700 14th Street NW Suite 400 Washington, DC 20005 (202) 319−1000 ext. 134 Email: lyndsay_niles@washlaw.org TERMINATED: 08/26/2019
Patrick Andre Sheldon TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009 (202) 682−2100 Email: psheldon@tpmlaw.com ATTORNEY TO BE NOTICED
Stacy Jane Canan AARP FOUNDATION 601 E Street, NW Washington, DC 20049 (202) 434−2130 Fax: (202) 434−6424

Plaintiff VIETRESS BACON TERMINATED: 04/02/2012
Plaintiff BONITA JACKSON On behalf of themselves and all others similarly situated TERMINATED: 04/02/2012

Email: scanan@aarp.org TERMINATED: 10/17/2012
Todd A. Gluckman TERRIS, PRAVLIK & MILLIAN, LLP 1816 12th Street, NW Suite 303 Washington, DC 20009−4422 (202) 682−2100 Email: tgluckman@tpmlaw.com ATTORNEY TO BE NOTICED
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marjorie Lynn Rifkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara S. Wahl (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Bruce B. Vignery (See above for address) TERMINATED: 07/05/2012
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marjorie Lynn Rifkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara S. Wahl (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address)

Plaintiff ROY FOREMAN TERMINATED: 01/17/2017
Plaintiff JUDITH MILLER TERMINATED: 09/17/2012

TERMINATED: 09/16/2019
Bruce B. Vignery (See above for address) TERMINATED: 07/05/2012
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Iris Y. Gonzalez (See above for address) TERMINATED: 08/29/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Kristina J. Majewski (See above for address) TERMINATED: 08/22/2019
Lyndsay Ayanna Niles (See above for address) TERMINATED: 08/26/2019
Stacy Jane Canan (See above for address) TERMINATED: 10/17/2012
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Lyndsay Ayanna Niles (See above for address) TERMINATED: 08/26/2019
Stacy Jane Canan

Plaintiff
DONALD DUPREE on behalf of themselves and all other similary situated

(See above for address) TERMINATED: 10/17/2012
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Iris Y. Gonzalez (See above for address) TERMINATED: 08/29/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Kristina J. Majewski (See above for address) TERMINATED: 08/22/2019
Lyndsay Ayanna Niles (See above for address) TERMINATED: 08/26/2019
Patrick Andre Sheldon (See above for address) ATTORNEY TO BE NOTICED
Stacy Jane Canan (See above for address) TERMINATED: 10/17/2012
Todd A. Gluckman (See above for address)

Plaintiff CURTIS WILKERSON TERMINATED: 01/21/2015
Plaintiff JACQUALYN THORPE TERMINATED: 09/11/2015

ATTORNEY TO BE NOTICED
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Iris Y. Gonzalez (See above for address) TERMINATED: 08/29/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Lyndsay Ayanna Niles (See above for address) TERMINATED: 08/26/2019
Stacy Jane Canan (See above for address) TERMINATED: 10/17/2012
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Iris Y. Gonzalez (See above for address) TERMINATED: 08/29/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marjorie Lynn Rifkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Kristina J. Majewski

Plaintiff LAVONDIA CARTER TERMINATED: 09/11/2015 Plaintiff ROBERT COLLINS TERMINATED: 09/11/2015
Plaintiff WINIFRED GOINES TERMINATED: 04/14/2014 Plaintiff TANITA SANDERS on behalf of themselves and all others
Plaintiff DENISE RIVERS
Plaintiff

(See above for address) TERMINATED: 08/22/2019
Lyndsay Ayanna Niles (See above for address) TERMINATED: 08/26/2019
Stacy Jane Canan (See above for address) TERMINATED: 10/17/2012
Victoria L. Thomas (See above for address) TERMINATED: 10/14/2014
represented by Kristina J. Majewski (See above for address) TERMINATED: 08/22/2019
represented by Jennifer Rachel Lav (See above for address) TERMINATED: 04/12/2017
Kristina J. Majewski (See above for address) TERMINATED: 08/22/2019
represented by Martha Geron Gadd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
represented by Martha Geron Gadd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019

JAMES BUMPASS
Plaintiff IVY BROWN

represented by Martha Geron Gadd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
represented by Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marjorie Lynn Rifkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Huang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison L. Andersen (See above for address) TERMINATED: 09/16/2019
Andrew Braxton Strickland AARP FOUNDATION 601 E Street, NW Washington, DC 20049 (202) 434−2217 Email: astrickland@aarp.org TERMINATED: 06/07/2017
Brian D. Schneider (See above for address) TERMINATED: 09/16/2019
Kathleen Lillian Millian (See above for address) ATTORNEY TO BE NOTICED
Kristina J. Majewski (See above for address) TERMINATED: 08/22/2019
Maame Gyamfi AARP FOUNDATION 601 E Street NW Suite B4−270 Washington, DC 20049 202−434−6291

V.
Defendant
DISTRICT OF COLUMBIA a municipal Corporation

Fax: 202−434−6424 Email: mgyamfi@aarp.org ATTORNEY TO BE NOTICED
Patrick Andre Sheldon (See above for address) ATTORNEY TO BE NOTICED
Todd A. Gluckman (See above for address) ATTORNEY TO BE NOTICED
represented by Amanda J. Montee OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−5691 Fax: (202) 741−8934 Email: amanda.montee@dc.gov TERMINATED: 09/11/2019
Bradford Collins Patrick D.C. Department of Consumer and Regulatory Affairs Office of the General Counsel 1100 4th St. SW 5th Floor Washington, DC 20024 (202) 724−6627 Fax: (202) 741−0599 Email: bradford.patrick@dc.gov TERMINATED: 04/21/2016
Chad Wayne Copeland OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6623 Fax: (202) 741−8880 Email: chad.copeland@dc.gov TERMINATED: 03/18/2020
Chad Alan Naso OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA Public Interest Division, Equity Section 441 Fourth Street, NW 600 South Washington, DC 20001 (202) 724−7854 Email: chad.naso@dc.gov TERMINATED: 05/19/2016
Conrad Z. Risher OFFICE OF ATTORNEY GENERAL/DC

Public Interest Division/Civil Enforcement Section 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 442−5868 Fax: (202) 741−0557 Email: conrad.risher@dc.gov ATTORNEY TO BE NOTICED
Melissa Lael Baker OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 202−442−9887 Fax: (202) 730−1499 Email: melissa.baker@dc.gov TERMINATED: 07/20/2012
Pamela A. Disney OUTTEN & GOLDEN, LLP 601 Massachusetts Avenue Suite 200W Washington, DC 20001 (202) 847−4417 Email: pamela.disney@dc.gov ATTORNEY TO BE NOTICED
Sarah Ann Sulkowski OFFICE OF THE ATTORNEY GENERAL, DC 441 Fourth Street, NW 6th Floor North Washington, DC 20001 (202) 724−6627 Fax: (202) 730−1454 Email: sarah.sulkowski@dc.gov TERMINATED: 05/13/2011
Scott Patrick Kennedy OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street NW Suite 630 South Washington, DC 20001 (202) 724−8044 Fax: (202) 741−5955 Email: scott.kennedy@dc.gov TERMINATED: 04/16/2020
Shermineh C. Jones SCHERTLER & ONORATO 901 New York Ave NW Suite 500 West Washington, DC 20001 (202) 628−4199 Fax: (202) 628−4177 Email: sjones@schertlerlaw.com TERMINATED: 11/17/2016
Toni Michelle Jackson

Defendant ADRIAN M. FENTY in his official capacity as Mayor of the District of Columbia TERMINATED: 03/30/2011
Defendant JULIE A. HUDMAN in her official capacity as Director of the District of Columbia Department of Health Care Finance TERMINATED: 03/30/2011
Defendant STEPHEN BARON in his official capacity as Director of the District of Columbia Department of Mental Health TERMINATED: 04/02/2012
Defendant VINCENT C. GRAY in his official capacity as Mayor of the District of Columbia TERMINATED: 04/02/2012

OFFICE OF ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street, NW Suite 630S Washington, DC 20001 (202) 442−9784 Fax: (202) 717−1377 Email: toni.jackson@dc.gov ATTORNEY TO BE NOTICED
represented by Melissa Lael Baker (See above for address) TERMINATED: 07/20/2012
Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED
Sarah Ann Sulkowski (See above for address) TERMINATED: 05/13/2011
represented by Melissa Lael Baker (See above for address) TERMINATED: 07/20/2012
Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED
Sarah Ann Sulkowski (See above for address) TERMINATED: 05/13/2011
represented by Bradford Collins Patrick (See above for address) TERMINATED: 04/21/2016
Melissa Lael Baker (See above for address) TERMINATED: 07/20/2012
Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED
Sarah Ann Sulkowski (See above for address) TERMINATED: 05/13/2011
represented by Bradford Collins Patrick (See above for address) TERMINATED: 04/21/2016
Melissa Lael Baker (See above for address) TERMINATED: 07/20/2012

Defendant
WAYNE M. TURNAGE in his official capacity as Director of the District of Columbia Department of Health Care Finance TERMINATED: 04/02/2012

Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED
represented by Bradford Collins Patrick (See above for address) TERMINATED: 04/21/2016
Melissa Lael Baker (See above for address) TERMINATED: 07/20/2012
Pamela A. Disney (See above for address) ATTORNEY TO BE NOTICED

V. Interested Party UNITED STATES OF AMERICA
Interested Party Mr. DCHA DCHA 1133 N. Capitol St, NE Suite 210 Washington, DC 20002 202−535−1005 DCHA

represented by Christopher Charles Hair U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2541 Fax: (202) 252−2599 Email: christopher.hair@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joy Levin Welan U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Disability Rights Section 1425 New York Avenue, NW Room 4029 Washington, DC 20005 (202) 305−1894 Fax: (202) 305−9775 Email: joy.welan@usdoj.gov ATTORNEY TO BE NOTICED
represented by David Adam Rosen District of Columbia Housing Authority Litigation Dept. 1133 N. Capitol Street, N.E. Ste 210 Washington, DC 20002 202−535−1005 Email: drosen@dchousing.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/23/2010

# Docket Text
1 COMPLAINT against STEPHEN BARON, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, JULIE A. HUDMAN ( Filing fee $ 350, receipt number 4616035159) filed by BONITA JACKSON, LARRY MCDONALD, EDWARD DAY, VIETRESS BACON. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 12/23/2010)

12/23/2010 01/21/2011 01/21/2011 01/24/2011 01/25/2011 01/28/2011 01/31/2011
01/31/2011 01/31/2011 01/31/2011 02/01/2011
02/01/2011 02/04/2011 02/07/2011
02/10/2011 02/15/2011 02/16/2011

Summons (4) Issued as to STEPHEN BARON, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, JULIE A. HUDMAN. (rdj) (Entered: 12/23/2010)
2 NOTICE of Appearance by Melissa Lael Baker on behalf of All Defendants (Baker, Melissa) (Entered: 01/21/2011)
3 MOTION for Extension of Time to File Answer by STEPHEN BARON, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, JULIE A. HUDMAN (Baker, Melissa) (Entered: 01/21/2011)
MINUTE ORDER granting 3 Consent Motion for Extension of Time to Answer: it is hereby ORDERED that defendants' Answer is due by 3/26/2011. Signed by Judge Ellen S. Huvelle on January 24, 2011. (AG) (Entered: 01/24/2011)
4 NOTICE of Appearance by Sarah Ann Sulkowski on behalf of All Defendants (Sulkowski, Sarah) (Entered: 01/25/2011)
5 ENTERED IN ERROR.....NOTICE of Appearance by Brian D. Schneider on behalf of All Plaintiffs (Schneider, Brian) Modified on 1/31/2011 (jf, ). (Entered: 01/28/2011)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 5 Notice of Appearance was entered in error and counsel was instructed to refile said pleading. (Counsel should review LCvR(b) OBTAINING AND USING ELECTRONIC FILING PASSWORD; SIGNATURE; CONSENT TO SERVICE BY ELECTRONIC MEANS (1) An attorney must obtain a CM/ECF password from the Clerk in order to file documents with the Court or to receive copies of opinions and orders) (jf, ) (Entered: 01/31/2011)
6 NOTICE of Appearance by Jennifer Rachel Lav on behalf of All Plaintiffs (Lav, Jennifer) (Entered: 01/31/2011)
7 NOTICE of Appearance by Marjorie Lynn Rifkin on behalf of All Plaintiffs (Rifkin, Marjorie) (Entered: 01/31/2011)
8 NOTICE OF RELATED CASE by All Defendants. Case related to Case No. 74−cv−285. (Baker, Melissa) Modified on 2/1/2011 to correct misidentified related case. (jf, ). (Entered: 01/31/2011)
9 ERRATA Notice of Related Case by STEPHEN BARON, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, JULIE A. HUDMAN 8 Notice of Related Case filed by JULIE A. HUDMAN, STEPHEN BARON, ADRIAN M. FENTY, DISTRICT OF COLUMBIA. (Baker, Melissa) (Entered: 02/01/2011)
10 NOTICE of Appearance by Bruce B. Vignery on behalf of VIETRESS BACON, EDWARD DAY, BONITA JACKSON, LARRY MCDONALD (Vignery, Bruce) (Entered: 02/01/2011)
11 NOTICE of Appearance by Barbara S. Wahl on behalf of All Plaintiffs (Wahl, Barbara) (Entered: 02/04/2011)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. STEPHEN BARON served on 1/19/2011; DISTRICT OF COLUMBIA served on 12/28/2010; ADRIAN M. FENTY served on 12/28/2010; JULIE A. HUDMAN served on 12/27/2010. (znmw, ) (Entered: 02/08/2011)
13 RESPONSE re 8 Notice of Related Case Objection to Defendants' Notice filed by VIETRESS BACON, EDWARD DAY, BONITA JACKSON, LARRY MCDONALD. (Lav, Jennifer) (Entered: 02/10/2011)
14 REPLY re 8 Notice of Related Case filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sulkowski, Sarah) (Entered: 02/15/2011)
MINUTE ORDER re 8 Notice of Related Case filed by JULIE A. HUDMAN, STEPHEN BARON, ADRIAN M. FENTY, DISTRICT OF COLUMBIA: Upon consideration of defendants' Notice of Related Case, plaintiffs' response thereto, and defendants' reply, and after consultation with Judge Hogan, the Court concludes that the above−captioned matter is not related to Dixon v. Fenty, Case No. 74−cv−285. Signed by Judge Ellen S. Huvelle on February 16, 2011. (AG) (Entered: 02/16/2011)

03/09/2011 03/09/2011
03/10/2011 03/28/2011 03/30/2011 04/18/2011 04/18/2011
04/27/2011 04/29/2011 04/29/2011
05/05/2011

15 Joint MOTION for Extension of Time to Extend Deadlines by VIETRESS BACON, EDWARD DAY, BONITA JACKSON, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order)(Schneider, Brian) (Entered: 03/09/2011)
MINUTE ORDER granting 15 Joint Motion for Extension of Time: Upon review of the Joint Motion for Extension of Time dated March 9, 2011, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the following deadlines will apply: (1) Plaintiffs will file an Amended Complaint by March 30, 2011; (2) Defendants will file a response to the Amended Complaint by April 20, 2011; and (3) Plaintiffs will file a motion for class certification by April 28, 2011. Signed by Judge Ellen S. Huvelle on March 9, 2011. (AG) (Entered: 03/09/2011)
Set/Reset Deadlines: Plaintiffs will file an Amended Complaint by 3/30/2011, Defendants will file a response to the Amended Complaint by 4/20/2011, and Plaintiffs will file a Motion for class certification by 4/28/2011. (jth) (Entered: 03/10/2011)
16 NOTICE of Appearance by Kelly R. Bagby on behalf of All Plaintiffs (Bagby, Kelly) (Entered: 03/28/2011)
17 FIRST AMENDED COMPLAINT against STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE filed by BONITA JACKSON, LARRY MCDONALD, EDWARD DAY, VIETRESS BACON, ROY FOREMAN.(znmw, ) (Entered: 03/30/2011)
18 Joint MOTION for Extension of Time to and to Set Briefing Schedule by VIETRESS BACON, STEPHEN BARON, EDWARD DAY, DISTRICT OF COLUMBIA, ROY FOREMAN, VINCENT C. GRAY, BONITA JACKSON, LARRY MCDONALD, WAYNE M. TURNAGE (Baker, Melissa) (Entered: 04/18/2011)
MINUTE ORDER granting in part and denying in part 18 Motion for Extension of Time: it is hereby ORDERED that defendants' response to the Amended Complaint is due by April 27, 2011; it is further ORDERED that a Status Conference is set for 4/29/2011 at 11:00 AM in Courtroom 23A before Judge Ellen S. Huvelle; and it is further ORDERED that the remainder of the briefing schedule will be addressed at the Status Conference on 4/29/2011. Signed by Judge Ellen S. Huvelle on April 18, 2011.(AG) (Entered: 04/18/2011)
19 MOTION for Summary Judgment, MOTION to Dismiss by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit, # 5 Declaration, # 6 Affidavit, # 7 Exhibit, # 8 Exhibit)(Baker, Melissa) (Entered: 04/27/2011)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 4/29/2011. Discovery Plan due by 5/13/2011, Discovery completed by 7/1/2011, Response to motion for summary judgment and cross motion due by 8/1/2011, Reply to motion for summary judgment and response to cross motion due by 9/1/2011. (Court Reporter Bryan Wayne) (gdf) (Entered: 04/29/2011)
MINUTE ORDER: As discussed during today's status conference, it is hereby ORDERED that plaintiffs are excused from filing a motion for class certification as provided by the Local Rules; it is further ORDERED that plaintiffs shall not file a motion for class certification until the Court orders them to do so; it is further ORDERED that the parties shall file a discovery plan by May 13, 2011; it is further ORDERED that discovery related to defendants' motion for summary judgment shall be completed by July 1, 2011; it is further ORDERED that plaintiffs shall file their opposition to defendants' motion to dismiss or for summary judgment and any cross−motion for summary judgment by August 1, 2011; and it is further ORDERED that defendants shall file their reply and opposition to any cross−motion by September 1, 2011. Signed by Judge Ellen S. Huvelle on April 29, 2011. (AG) (Entered: 04/29/2011)
20 RESPONSE TO ORDER OF THE COURT re Order,,, Joint Discovery Plan filed by VIETRESS BACON, STEPHEN BARON, EDWARD DAY, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, ROY FOREMAN, VINCENT C. GRAY, JULIE A. HUDMAN, BONITA JACKSON, LARRY MCDONALD, WAYNE M. TURNAGE. (Lav, Jennifer) (Entered: 05/05/2011)

05/06/2011 05/13/2011 06/01/2011
06/01/2011 06/15/2011 06/15/2011 06/16/2011
06/16/2011 06/17/2011 06/20/2011 09/01/2011

MINUTE ORDER re 20 Joint Discovery Plan: it is hereby ORDERED that the Joint Discovery Plan is approved and adopted. Signed by Judge Ellen S. Huvelle on May 6, 2011. (AG) (Entered: 05/06/2011)
21 NOTICE OF WITHDRAWAL OF APPEARANCE as to STEPHEN BARON, DISTRICT OF COLUMBIA, ADRIAN M. FENTY, VINCENT C. GRAY, JULIE A. HUDMAN, WAYNE M. TURNAGE. Attorney Sarah Ann Sulkowski terminated. (Sulkowski, Sarah) (Entered: 05/13/2011)
22 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 4/29/11; Page Numbers: 1 − 34. Date of Issuance:6/1/11. Court Reporter/Transcriber Bryan A. Wayne, Telephone number 202−354−3186, Court Reporter Email Address : bryanawayne@yahoo.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 6/22/2011. Redacted Transcript Deadline set for 7/2/2011. Release of Transcript Restriction set for 8/30/2011.(Wayne, Bryan) (Entered: 06/01/2011)
23 WITHDRAWN PURSUANT TO NOTICE FILED 6/15/2011..... MOTION for Extension of Time to Complete Discovery pursuant to Fed. R. Civ. P. 56 by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Baker, Melissa) Modified on 6/16/2011 (znmw, ). (Entered: 06/01/2011)
24 STATUS REPORT to revise the joint discovery plan by VIETRESS BACON, STEPHEN BARON, EDWARD DAY, DISTRICT OF COLUMBIA, ROY FOREMAN, VINCENT C. GRAY, BONITA JACKSON, LARRY MCDONALD, WAYNE M. TURNAGE (Baker, Melissa) Modified event title on 6/16/2011 (znmw, ). (Entered: 06/15/2011)
25 NOTICE OF WITHDRAWAL OF MOTION by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE re 23 MOTION for Extension of Time to Complete Discovery pursuant to Fed. R. Civ. P. 56 (Baker, Melissa) (Entered: 06/15/2011)
MINUTE ORDER granting 24 Joint Motion for Revised Joint Discovery Plan Related to Plaintiffs' Response to Defendants' Motion for Summary Judgment and the entire record herein, it is hereby ORDERED that the Revised Joint Discovery Plan hereby is, approved and adopted, as follows: Discovery will be completed by August 1, 2011; Plaintiffs' Opposition to Defendants' Motion to Dismiss and any Cross−Motion for Summary Judgment is due by September 1, 2011; Defendants' Reply, if any, is due by 9/22/2011. Signed by Judge Ellen S. Huvelle on June 16, 2011. (AG) (Entered: 06/16/2011)
Set/Reset Deadlines: Discovery due by 8/1/2011. (AG, ) (Entered: 06/16/2011)
26 NOTICE of Appearance by Victoria L. Thomas on behalf of All Plaintiffs (Thomas, Victoria) (Entered: 06/17/2011)
27 NOTICE of Appearance by Bradford Collins Patrick on behalf of STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Patrick, Bradford) (Entered: 06/20/2011)
28 Memorandum in opposition to re 19 MOTION for Summary Judgment MOTION to Dismiss filed by VIETRESS BACON, EDWARD DAY, ROY FOREMAN, BONITA JACKSON, LARRY MCDONALD. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M)(Schneider, Brian) (Entered: 09/01/2011)

09/19/2011 09/20/2011
10/03/2011
10/03/2011 10/03/2011 10/07/2011 10/19/2011 10/19/2011
10/24/2011 10/24/2011 10/24/2011 10/31/2011 11/02/2011 11/16/2011

29 Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment MOTION to Dismiss by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Patrick, Bradford) (Entered: 09/19/2011)
MINUTE ORDER granting 29 Consent Motion for Extension of Time to File Reply re 19 MOTION for Summary Judgment and/or MOTION to Dismiss: Upon consideration of Defendants' consent motion to enlarge the time to file a Reply in further support of their Motion to Dismiss the Complaint or, in the Alternative, for Summary Judgment (Docket No. 19), it is hereby ORDERED that Defendants shall file a Reply on or before October 3, 2011. Signed by Judge Ellen S. Huvelle on September 20, 2011. (AG) (Entered: 09/20/2011)
30 REPLY to opposition to motion re 19 MOTION for Summary Judgment MOTION to Dismiss filed by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Baker, Melissa) (Entered: 10/03/2011)
31 NOTICE Regarding the Statement of Interest Filed by the United States by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Baker, Melissa) (Entered: 10/03/2011)
32 NOTICE of Statement of Interest by UNITED STATES OF AMERICA re 28 Memorandum in Opposition, 19 MOTION for Summary Judgment MOTION to Dismiss (Attachments: # 1 Exhibit AA, # 2 Exhibit BB, # 3 Exhibit CC, # 4 Exhibit DD)(znmw, ) (Entered: 10/03/2011)
33 MOTION to Strike 32 Notice (Other) by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE (Baker, Melissa) (Entered: 10/07/2011)
34 Consent MOTION for Leave to File A Memorandum in Opposition to the Defendants Motion to Strike the United States Statement of Interest (ECF No. 33) by UNITED STATES OF AMERICA (Welan, Joy) (Entered: 10/19/2011)
MINUTE ORDER granting 34 Consent Motion for Leave to File: Upon consideration of the Consent Motion of the United States for Leave to File a Memorandum in Opposition to the Defendants' Motion to Strike the United States' Statement of Interest (ECF No. 33), and the entire record, it is hereby ORDERED that the United States' Consent Motion for Leave to File a Memorandum in Opposition to the Defendants' Motion to Strike the United States' Statement of Interest is hereby GRANTED; and it is FURTHER ORDERED that the United States shall file its opposition on or before October 24, 2011.Signed by Judge Ellen S. Huvelle on October 19, 2011. (AG) (Entered: 10/19/2011)
Set/Reset Deadlines: Response due by 10/24/2011 (gdf) (Entered: 10/24/2011)
35 Memorandum in opposition to re 33 MOTION to Strike 32 Notice (Other) filed by VIETRESS BACON, EDWARD DAY, ROY FOREMAN, BONITA JACKSON, LARRY MCDONALD. (Attachments: # 1 Text of Proposed Order)(Schneider, Brian) (Entered: 10/24/2011)
36 Memorandum in opposition to re 33 MOTION to Strike 32 Notice (Other) Statement of Interest filed by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(Welan, Joy) (Entered: 10/24/2011)
37 MOTION for Leave to File Motion for Class Certification by VIETRESS BACON, EDWARD DAY, ROY FOREMAN, BONITA JACKSON, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order)(Schneider, Brian) (Entered: 10/31/2011)
38 REPLY to opposition to motion re 33 MOTION to Strike 32 Notice (Other) filed by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE. (Baker, Melissa) (Entered: 11/02/2011)
39 Memorandum in opposition to re 37 MOTION for Leave to File Motion for Class Certification filed by STEPHEN BARON, DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE. (Baker, Melissa) (Entered: 11/16/2011)

12/01/2011
12/19/2011 02/14/2012 02/14/2012
02/24/2012 02/28/2012 03/08/2012 03/13/2012
04/02/2012 04/05/2012 04/06/2012 04/10/2012
04/10/2012 04/10/2012 04/11/2012

MINUTE ORDER denying 33 defendants' Motion to Strike 32 the Statement of Interest of the United States of America: upon consideration of defendants' motion, plaintiffs' opposition, and the entire record, it is hereby ORDERED that defendants' motion to strike is DENIED; and it is further ORDERED that defendants may file a response to that Statement of Interest, limited to 15 pages and not duplicative of any filings already made, on or before December 19, 2011. Signed by Judge Ellen S. Huvelle on December 1, 2011. (AG) (Entered: 12/01/2011)
40 RESPONSE re 32 Notice (Other) of Department of Justice's Statement of Interest filed by DISTRICT OF COLUMBIA, VINCENT C. GRAY, WAYNE M. TURNAGE. (Attachments: # 1 Exhibit Supplemental Declaration of L. Sarigol)(Baker, Melissa) (Entered: 12/19/2011)
41 MEMORANDUM AND OPINION re defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Signed by Judge Ellen S. Huvelle on February 14, 2012. (AG) (Entered: 02/14/2012)
42 ORDER granting in part and denying in part 19 defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ; denying 37 plaintiffs' Motion for Leave to File Motion for Class Certification; Telephone Conference Call set for 2/28/2012 at 2:00 PM; Status Conference set for 3/13/2012, at 9:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. Signed by Judge Ellen S. Huvelle on February 14, 2012. (AG) . (Entered: 02/14/2012)
43 NOTICE of Appearance by Chad Alan Naso on behalf of DISTRICT OF COLUMBIA (Naso, Chad) (Entered: 02/24/2012)
44 ANSWER to 17 Amended Complaint by DISTRICT OF COLUMBIA. Related document: 17 Amended Complaint filed by LARRY MCDONALD, BONITA JACKSON, VIETRESS BACON, ROY FOREMAN, EDWARD DAY.(Patrick, Bradford) (Entered: 02/28/2012)
45 MEET AND CONFER STATEMENT. (Thomas, Victoria) (Entered: 03/08/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 3/13/2012. Amended Complaint due by 4/2/2012. Joint Status Report and Discovery Proposal due by 4/5/2012. Status Conference set for 4/10/2012 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Chantal Geneus) (gdf) (Entered: 03/13/2012)
46 SECOND AMENDED COMPLAINT against DISTRICT OF COLUMBIA filed by ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, DONALD DUPREE, CURTIS WILKERSON, JACQUALYN THORPE.(znmw, ) (Entered: 04/03/2012)
47 Joint MOTION for Scheduling Order by DISTRICT OF COLUMBIA, DONALD DUPREE, ROY FOREMAN, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Schneider, Brian) (Entered: 04/05/2012)
48 NOTICE of Filing of Olmstead Community Integration Initiative by DISTRICT OF COLUMBIA (Naso, Chad) (Entered: 04/06/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 4/10/2012. Merits Discovery start by 7/9/2012, Discovery due by 11/30/2012, Motion for class certification due by 5/15/2012, Response to motion due by 8/6/2012, Reply due by 9/6/2012. (Scheduling Order to be presented) (Court Reporter Chantal Geneus) (gdf) Modified on 4/10/2012 (gdf, ). (Entered: 04/10/2012)
49 ORDER granting 47 Motion for Scheduling Order and setting discovery and briefing schedule. Telephone Conference call, to be initiated by counsel, is set for 4/16/2012, at 10:00 AM. See order for additional details. Signed by Judge Ellen S. Huvelle on April 10, 2012. (AG) (Entered: 04/10/2012)
Set/Reset Hearings: Telephone Conference set for 4/16/2012 at 10:00 AM in Chambers before Judge Ellen S. Huvelle. (gdf) (Entered: 04/11/2012)
50 Consent MOTION to Continue Telephone Conference Scheduled for April 16, 2012 by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 04/11/2012)

04/11/2012 04/17/2012 04/19/2012
04/19/2012 04/26/2012 04/26/2012 05/14/2012 05/14/2012 05/15/2012
06/14/2012 07/02/2012 07/02/2012 07/03/2012 07/05/2012 07/05/2012

MINUTE ORDER granting 50 Consent Motion to Continue: it is hereby ORDERED that the telephonce conference presently set for 4/16/2012 is CONTINUED until Thursday, 4/19/2012, at 10:30 AM. Signed by Judge Ellen S. Huvelle on April 11, 2012.(AG) (Entered: 04/11/2012)
51 ANSWER to 46 Amended Complaint by DISTRICT OF COLUMBIA. Related document: 46 Amended Complaint filed by CURTIS WILKERSON, LARRY MCDONALD, DONALD DUPREE, JUDITH MILLER, JACQUALYN THORPE, ROY FOREMAN.(Patrick, Bradford) (Entered: 04/17/2012)
ORDER REFERRING CASE to a Magistrate Judge. Based upon the parties' request that this case be referred for mediation before a United States Magistrate Judge, it is hereby ORDERED this matter is referred to Magistrate Judge Alan Kay for settlement discussions to begin on or after May 14, 2012. On any filing related to settlement discussions, the parties shall place the initials of Judge Ellen Segal Huvelle and the initials of Judge Alan Kay following the case number in the caption. On any other filings in this case, the parties shall only place the initials of Judge Ellen Segal Huvelle after the case number. The parties are to jointly contact the Magistrate Judge in order to schedule the conference. SO ORDERED. Signed by Judge Ellen S. Huvelle on April 19, 2012.(AG) (Entered: 04/19/2012)
52 CASE REFERRED to Magistrate Judge Alan Kay for Settlement purpose. (ls, ) (Entered: 04/19/2012)
53 ORDER setting a Settlement Conference for 5/14/2012, at 10:00 AM in Chambers [room 2333] before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 04/26/12. (DM) (Entered: 04/26/2012)
Set/Reset Hearings: Settlement Conference set for 5/14/2012 10:00 AM in Chambers (room 2333) before Magistrate Judge Alan Kay. (ldc, ) (Entered: 04/26/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 5/14/2012. (DM) (Entered: 05/14/2012)
MINUTE ORDER setting a second Settlement Conference for 6/14/2012, at 10:00 AM in Chambers [room 2333]before Magistrate Judge Alan Kay. Mediation may be held in another location but parties should assemble in chambers at 10:00 AM. Signed by Magistrate Judge Alan Kay on 05/14/12. (DM) (Entered: 05/14/2012)
54 MOTION to Certify Class PLAINTIFFS' by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L)(Schneider, Brian) (Entered: 05/15/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 6/14/2012. (DM) (Entered: 06/26/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 7/2/2012. (DM) (Entered: 07/02/2012)
MINUTE ORDER setting a Settlement Conference for 7/9/2012, at 10:00 AM in Chambers before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 07/02/12. (DM) (Entered: 07/02/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 7/3/2012. (DM) (Entered: 07/11/2012)
55 NOTICE OF WITHDRAWAL OF APPEARANCE as to DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON. Attorney Bruce B. Vignery terminated. (Vignery, Bruce) (Entered: 07/05/2012)
56 Joint MOTION for Protective Order by VIETRESS BACON, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Text of Proposed Order)(Lav, Jennifer) (Entered: 07/05/2012)

07/05/2012 07/06/2012 07/06/2012 07/09/2012 07/11/2012 07/12/2012 07/14/2012
07/17/2012 07/20/2012 08/20/2012
08/24/2012 09/17/2012 09/18/2012
09/18/2012 09/18/2012

Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 7/5/2012. (DM) (Entered: 07/11/2012)
57 NOTICE of Appearance by Stacy Jane Canan on behalf of All Plaintiffs (Canan, Stacy) (Entered: 07/06/2012)
58 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Ellen S. Huvelle on 7/5/12. (Attachment:#(1) Exhibit A) (gdf) (Entered: 07/06/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 7/9/2012. (DM) (Entered: 07/11/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 7/11/2012. (DM) (Entered: 07/12/2012)
59 Consent MOTION for Extension of Time to the Court's April 10, 2012 Scheduling Order by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 07/12/2012)
MINUTE ORDER granting 59 Consent Motion for Extension of Time: Upon consideration of the District's motion to extend this Court's April 10, 2012 Scheduling Order, it is hereby ORDERED that the District's motion is GRANTED; and it is further ORDERED that: (1) Discovery on the merits of this action shall commence on July 23, 2012; (2) All discovery shall be completed by December 14, 2012; (3) The District shall file its opposition to Plaintiffs' Motion for Class Certification on or before August 20, 2012; (4) Plaintiffs shall file any Reply to the District's Opposition to Plaintiffs' Motion for Class Certification on or before September 19, 2012; (5) Expert reports shall be exchanged by October 18, 2012; and (6) Rebuttal experts, if any, shallbe exchanged by November 15, 2012. Signed by Judge Ellen S. Huvelle on July 14, 2012. (AG) (Entered: 07/14/2012)
Set/Reset Deadlines: Discovery due by 12/14/2012; Responses due by 8/20/2012; Reply due by 9/19/2012; Expert reports shall be exchanged by October 18, 2012; and Rebuttal experts, if any, shallbe exchanged by November 15, 2012. (gdf) (Entered: 07/17/2012)
60 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Melissa Lael Baker terminated. (Baker, Melissa) (Entered: 07/20/2012)
61 Memorandum in opposition to re 54 MOTION to Certify Class PLAINTIFFS' filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A − Declaration of Ann Page, # 2 Exhibit B − EPD Waiver Application, # 3 Exhibit C − Declaration of Robin Exton, # 4 Exhibit D − Declaration of Leyla Sarigol, # 5 Exhibit E − Declaration of Dr. Chantelle Teasdell, # 6 Exhibit F − Declaration of Hammere Gebreyes)(Patrick, Bradford) (Entered: 08/20/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 8/24/2012. (DM) (Entered: 09/05/2012)
62 SUGGESTION OF DEATH Upon the Record as to Plaintiff Judith Miller by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 09/17/2012)
63 Consent MOTION for Extension of Time to File Response/Reply to Opposition to Class Certification by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Thomas, Victoria) (Entered: 09/18/2012)
64 MOTION to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Exhibit A − Dupree Interrogatory Responses, # 3 Exhibit B − Declaration of Jana Berhow, # 4 Text of Proposed Order)(Naso, Chad) (Entered: 09/18/2012)
65 MOTION to Amend/Correct 51 Answer to Amended Complaint by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A − Proposed Amended Answer, # 2 Exhibit B − Dixon Order Granting Preliminary Approval of Settlement, # 3 Exhibit C − Dixon Plaintiffs' Surreply in Opposition to the District's Motion to Vacate, # 4 Exhibit D − Dixon Amicus Brief in Opposition to the District's Motion to Vacate, # 5 Exhibit E −

09/18/2012
09/18/2012 09/18/2012 09/19/2012 09/20/2012 09/20/2012 09/20/2012 09/21/2012 09/21/2012
09/28/2012 09/28/2012 09/28/2012 10/02/2012

Dixon 1993 Order, # 6 Exhibit F − Dixon 1980 Consent Order, # 7 Exhibit G − Dixon 2012 Consent Order)(Patrick, Bradford) (Entered: 09/18/2012)
MINUTE ORDER granting 63 Consent Motion for Extension of Time to File Reply re 54 MOTION to Certify Class: Upon consideration of the Plaintiffs' Motion to Extend Deadline to File Reply to Opposition to Class Certification, it is hereby ORDERED that Plaintiffs' motion is GRANTED; and it is furtherORDERED that Plaintiffs will file their Reply on or before September 24, 2012. Signed by Judge Ellen S. Huvelle on September 18, 2012. (AG) (Entered: 09/18/2012)
66 ERRATA by DISTRICT OF COLUMBIA 65 MOTION to Amend/Correct 51 Answer to Amended Complaint filed by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 09/18/2012)
Set/Reset Deadlines: Reply due by 9/24/2012. (gdf) (Entered: 09/18/2012)
67 ENTERED IN ERROR.....SUPPLEMENTAL MEMORANDUM to re 54 MOTION to Certify Class PLAINTIFFS' filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A − Document Requests, # 2 Exhibit B − Dixon Order Granting Preliminary Approval of Settlement, # 3 Exhibit C − Dixon 2012 Consent Order)(Patrick, Bradford) Modified on 9/20/2012 (jf, ). (Entered: 09/19/2012)
NOTICE OF ERROR re 67 Supplemental Memorandum; emailed to bradford.patrick@dc.gov, cc'd 12 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect event used, 2. Please refile document, 3. using the Opposition to Motion event (zjf, ) (Entered: 09/20/2012)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 67 Supplemental Memorandum, was entered in error and counsel was instructed to refile said pleading using the correct docket event "Memorandum in Opposition" (jf, ) (Entered: 09/20/2012)
68 Memorandum in opposition to re 54 MOTION to Certify Class PLAINTIFFS' (Supplemental Memorandum) filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A − Document Requests, # 2 Exhibit B − Dixon Order Granting Preliminary Approval of Settlement, # 3 Exhibit C − Dixon 2012 Consent Order)(Patrick, Bradford) (Entered: 09/20/2012)
69 Consent MOTION for Extension of Time to File Response/Reply to Opposition to Class Certification by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Thomas, Victoria) (Entered: 09/21/2012)
MINUTE ORDER granting 69 Consent Motion for Extension of Time to File Reply re 54 MOTION to Certify Class: Upon consideration of the Plaintiffs' Second Motion to Extend Deadline to File Reply to Opposition to Class Certification, it is hereby ORDERED that Plaintiffs' motion is GRANTED; and it is further ORDERED that Plaintiffs will file their Reply on or before October 1, 2012. Signed by Judge Ellen S. Huvelle on September 21, 2012. (AG) (Entered: 09/21/2012)
70 REPLY to opposition to motion re 54 MOTION to Certify Class PLAINTIFFS' filed by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schneider, Brian) (Entered: 09/28/2012)
71 Memorandum in opposition to re 65 MOTION to Amend/Correct 51 Answer to Amended Complaint filed by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON. (Attachments: # 1 Exhibit)(Schneider, Brian) (Entered: 09/28/2012)
72 Memorandum in opposition to re 64 MOTION to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree filed by DONALD DUPREE. (Attachments: # 1 Exhibit)(Schneider, Brian) (Entered: 09/28/2012)
73 NOTICE of Appearance by Lyndsay Ayanna Niles on behalf of All Plaintiffs (Niles, Lyndsay) (Entered: 10/02/2012)

10/04/2012 10/05/2012
10/05/2012 10/09/2012 10/12/2012 10/17/2012 10/18/2012 10/19/2012 10/19/2012 10/19/2012 10/22/2012
10/25/2012 10/26/2012 11/14/2012 11/15/2012 11/27/2012

74 Consent MOTION for Extension of Time to File Response/Reply to Opposition to re 64 Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree by DISTRICT OF COLUMBIA (Naso, Chad) (Entered: 10/04/2012)
MINUTE ORDER granting 74 Motion for Extension of Time to File Reply re 64 MOTION to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree: UPON CONSIDERATION of Defendant's Consent Motion to Enlarge Its Time to File a Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss the Claims of Plaintiff Dupree as Moot, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that Defendant shall file its Reply by October 12, 2012. Signed by Judge Ellen S. Huvelle on October 5, 2012. (AG) (Entered: 10/05/2012)
Set/Reset Deadlines: Reply due by 10/12/2012. (gdf) (Entered: 10/09/2012)
75 REPLY to opposition to motion re 65 MOTION to Amend/Correct 51 Answer to Amended Complaint filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit H − Settlement Agreement)(Patrick, Bradford) (Entered: 10/09/2012)
76 REPLY to opposition to motion re 64 MOTION to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree filed by DISTRICT OF COLUMBIA. (Naso, Chad) (Entered: 10/12/2012)
77 NOTICE OF WITHDRAWAL OF APPEARANCE as to DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON. Attorney Stacy Jane Canan terminated. (Canan, Stacy) (Entered: 10/17/2012)
78 WITHDRAWN PURSUANT TO DOCUMENT 79 .....Consent MOTION for Extension of Time to Complete Discovery by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Naso, Chad) Modified on 10/19/2012 (jf, ). (Entered: 10/18/2012)
79 NOTICE OF WITHDRAWAL OF re 78 MOTION for Extension of Time to Complete Discovery by DISTRICT OF COLUMBIA (Naso, Chad) (Entered: 10/19/2012)
80 Consent MOTION for Extension of Time to Complete Discovery by DISTRICT OF COLUMBIA (Naso, Chad) (Entered: 10/19/2012)
MINUTE ORDER setting a Settlement Conference for 10/26/2012, at 09:45 AM in Chambers [room 2333] before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 10/19/12. (DM) (Entered: 10/19/2012)
MINUTE ORDER granting 80 Consent Motion for Extension of Time to Complete Discovery: Upon consideration of the District's motion to extend and modify the discovery schedule in this matter, it is hereby ORDERED that the District's motion is GRANTED; and it is further ORDERED that: 1. The parties shall complete all document productions by January 31, 2013; 2. All fact discovery shall be completed by February 21, 2013; 3. The parties shall designate affirmative experts by February 15, 2013; 4. The parties shall exchange affirmative expert reports by February 28, 2013; 5. The parties shall designate and exchange rebuttal expert reports, if any, by March 15, 2013; 6. All expert discovery shall be completed by April 1, 2013. Signed by Judge Ellen S. Huvelle on October 22, 2012. (AG) (Entered: 10/22/2012)
Set/Reset Deadlines: Fact Discovery closes by 2/21/2013. Parties designate affirmative experts due by 2/15/2013. (gdf) (Entered: 10/25/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 10/26/2012. (DM) (Entered: 10/26/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 11/14/2012. (DM) (Entered: 12/11/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 11/15/2012. (DM) (Entered: 12/11/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 11/27/2012. (DM) (Entered: 12/11/2012)

12/10/2012 12/11/2012 12/13/2012 12/27/2012 12/31/2012 01/04/2013 01/07/2013 01/07/2013
01/07/2013 01/07/2013 01/08/2013 01/09/2013
01/15/2013 01/17/2013 01/17/2013

Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 12/10/2012. (DM) (Entered: 12/11/2012)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 12/11/2012. (DM) (Entered: 01/02/2013)
81 MOTION to Dismiss for Lack of Jurisdiction the claims of Curtis Wilkerson by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A)(Patrick, Bradford) (Entered: 12/13/2012)
82 Memorandum in opposition to re 81 MOTION to Dismiss for Lack of Jurisdiction the claims of Curtis Wilkerson filed by CURTIS WILKERSON. (Attachments: # 1 Exhibit Wilkerson Decl., # 2 Exhibit Wilkerson Interrogatories, # 3 Text of Proposed Order)(Schneider, Brian) (Entered: 12/27/2012)
MINUTE ORDER: Pursuant to the telephone conference call with counsel on December 20, 2012, it is hereby ORDERED that a hearing is scheduled for January 7, 2013, at 2:30 p.m. in Courtroom 23A. Signed by Judge Ellen S. Huvelle on December 31, 2012. (AG) (Entered: 12/31/2012)
83 REPLY to opposition to motion re 81 MOTION to Dismiss for Lack of Jurisdiction the claims of Curtis Wilkerson filed by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 01/04/2013)
MINUTE ORDER granting 65 defendant's Motion to Amend/Correct Answer: for the reasons stated today in open court, it is hereby ORDERED that defendant's motion to amend its answer to the Second Amended Complaint is GRANTED. Signed by Judge Ellen S. Huvelle on January 7, 2013. (AG) (Entered: 01/07/2013)
MINUTE ORDER: as stated today in open court, it is hereby ORDERED that a Status Conference is scheduled for Thursday, January 17, 2013, at 2:15 p.m.; and it is further ORDERED that by 5:00 p.m. on Tuesday, January 15, 2013, the parties shall confer and file a joint proposal for additional discovery, amending pleadings and filing an amended motion for class certification. Signed by Judge Ellen S. Huvelle on January 7, 2013. (AG) (Entered: 01/07/2013)
84 Amended ANSWER to 1 Complaint, by DISTRICT OF COLUMBIA.(td, ) (Entered: 01/08/2013)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 1/7/2013. Order to be presented. Status Conference set for 1/17/2013 at 2:15 PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Vicki Eastvold) (gdf) (Entered: 01/08/2013)
NOTICE TO COUNSEL: the Clerk of Court has been directed to change the case caption in the above−captioned matter to reflect that plaintiff Thorpe is the lead plaintiff according to the Second Amended Complaint. Signed by Judge Ellen S. Huvelle on January 8, 2013. (AG) (Entered: 01/08/2013)
85 MEMORANDUM OPINION AND ORDER denying 64 defendant's Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree and denying 81 defendant's Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Curtis Wilkerson. Signed by Judge Ellen S. Huvelle on January 9, 2013. (AG) (Entered: 01/09/2013)
86 Revised Case Management Order by DISTRICT OF COLUMBIA, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON (Schneider, Brian) Modified on 1/16/2013 to correct docket event/text (jf, ). (Entered: 01/15/2013)
MINUTE ORDER denying without prejudice 54 plaintiffs' Motion to Certify Class: for the reasons stated today in open court, it is hereby ORDERED that plaintiffs' motion to certify a class is DENIED WITHOUT PREJUDICE. Signed by Judge Ellen S. Huvelle on January 17, 2013. (AG) (Entered: 01/17/2013)
MINUTE ORDER: it is hereby ORDERED that this matter is referred to Magistrate Judge Kay for all discovery disputes. On any filing related to discovery disputes, the parties shall place the initials of Judge Ellen Segal Huvelle and the initials of Judge Kay following the case number in the caption. On any other filings in this case, the

01/17/2013 01/17/2013 01/17/2013 01/18/2013 02/14/2013 02/14/2013
02/21/2013
03/05/2013 03/08/2013 03/08/2013 03/11/2013 03/12/2013

parties shall only place the initials of Judge Ellen Segal Huvelle after the case number. Signed by Judge Ellen S. Huvelle on January 17, 2013. (AG) (Entered: 01/17/2013)
87 AMENDED SCHEDULING ORDER. Signed by Judge Ellen S. Huvelle on January 17, 2013. (AG) (Entered: 01/17/2013)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 1/17/2013 re 54 MOTION to Certify Class PLAINTIFFS' filed by CURTIS WILKERSON, LARRY MCDONALD, DONALD DUPREE, JUDITH MILLER, JACQUALYN THORPE, ROY FOREMAN. (Court Reporter Lisa Griffith) (gdf, ) (Entered: 01/28/2013)
88 CASE DIRECTLY REFERRED to Magistrate Judge Alan Kay for all discovery disputes. (kb) (Entered: 01/31/2013)
MINUTE ORDER re 87 Amended Scheduling Order: it is hereby ORDERED that the Amended Scheduling Order filed on January 7, 2013, is AMENDED to clarify that the parties shall have until April 1, 2013, to complete all discovery, including depositions. Signed by Judge Ellen S. Huvelle on January 18, 2013. (AG) (Entered: 01/18/2013)
89 Consent MOTION for Extension of Time to Supplement the District's Response to Plaintiffs' Interrogatory No. 11 by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 02/14/2013)
MINUTE ORDER granting 89 Consent Motion for Extension of Time: Upon consideration of the District's Motion to Enlarge its Time to Supplement Its Response to Interrogatory Number 11, the Plaintiffs' consent thereto, and in consideration of the entire record herein, it is hereby ORDERED that the District's Motion be GRANTED; and it is further ORDERED that the District shall supplement its response to Interrogatory Number 11 no later than February 22, 2013. Signed by Judge Ellen S. Huvelle on February 14, 2013. (AG) (Entered: 02/14/2013)
90 TRANSCRIPT OF MOTION HEARING before Judge Ellen S. Huvelle held on 1/7/2013; Page Numbers: 1−108. Date of Issuance:2/21/2013. Court Reporter Vicki Eastvold, Telephone number 202−354−3242, Court Reporter Email Address : vicki_eastvold@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 3/14/2013. Redacted Transcript Deadline set for 3/24/2013. Release of Transcript Restriction set for 5/22/2013.(Eastvold, Vicki) (Entered: 02/21/2013)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 3/5/2013. (DM) (Entered: 03/12/2013)
91 MEMORANDUM by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON. (Lav, Jennifer) (Entered: 03/08/2013)
92 MOTION to Amend/Correct Complaint by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Schneider, Brian) (Entered: 03/08/2013)
93 MEMORANDUM re 91 Memorandum filed by CURTIS WILKERSON, LARRY MCDONALD, DONALD DUPREE, JACQUALYN THORPE, ROY FOREMAN by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 03/11/2013)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 3/12/2013. (DM) (Entered: 03/12/2013)

03/14/2013 03/22/2013 03/25/2013 03/27/2013 03/27/2013 03/27/2013 04/11/2013 04/23/2013 04/23/2013
04/24/2013 05/02/2013 05/06/2013
05/06/2013
05/21/2013

94 MEMORANDUM ORDER regarding the issue of production of a list of documents prior to depositions. Signed by Magistrate Judge Alan Kay on 03/14/13. (DM) (Entered: 03/14/2013)
95 Memorandum in opposition to re 92 MOTION to Amend/Correct Complaint filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit A − 1/7/13 Hearing Excerpts)(Patrick, Bradford) (Entered: 03/22/2013)
96 REPLY to opposition to motion re 92 MOTION to Amend/Correct Complaint filed by PLAINTIFFS filed by JACQUALYN THORPE. (Rifkin, Marjorie) (Entered: 03/25/2013)
97 ORDER granting 92 plaintiffs' Motion to Amend Complaint. Third Amended Complaint shall be docketed by the Clerk as filed today. Discovery and briefing schedule for motion for class certification altered. See order for details. Signed by Judge Ellen S. Huvelle on March 27, 2013. (AG) (Entered: 03/27/2013)
Set/Reset Deadlines: Motions due by 5/6/2013. Responses due by 5/28/2013 Replies due by 6/7/2013. (gdf) (Entered: 03/27/2013)
98 THIRD AMENDED COMPLAINT against DISTRICT OF COLUMBIA filed by ROY FOREMAN, JACQUALYN THORPE, CURTIS WILKERSON, LARRY MCDONALD, DONALD DUPREE.(jf, ) (Entered: 03/27/2013)
99 MOTION to Dismiss by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit A − Jan. 7, 2013 Hearing Transcript, # 2 Exhibit B − 30(b)(6) Deposition Notice)(Patrick, Bradford) (Entered: 04/11/2013)
100 Consent MOTION for Extension of Time to File Opposition to Defendant's Motion to Dismiss Third Amended Complaint by JACQUALYN THORPE (Attachments: # 1 Text of Proposed Order)(Schneider, Brian) (Entered: 04/23/2013)
MINUTE ORDER granting 100 Consent Motion for Extension of Time: Upon review of the Plaintiffs' Consent Motion for Extension of Time dated April 23, 2013, it is hereby ORDERED that the Plaintiffs' motion is GRANTED; and it is further ORDERED that Plaintiffs may file their opposition to Defendant's Motion to Dismiss the Third Amended Complaint (Docket No. 99) by May 6, 2013, and Defendant's reply, if any, will be due by May 28, 2013. Signed by Judge Ellen S. Huvelle on April 23, 2013. (AG) (Entered: 04/23/2013)
Set/Reset Deadlines: Response due by 5/6/2013. Reply due by 5/28/2013. (gdf) (Entered: 04/24/2013)
101 NOTICE of Appearance by Alison L. Andersen on behalf of All Plaintiffs (Andersen, Alison) (Entered: 05/02/2013)
102 Memorandum in opposition to re 99 MOTION to Dismiss the Thrid Amended Complaint filed by VIETRESS BACON, EDWARD DAY, DONALD DUPREE, ROY FOREMAN, BONITA JACKSON, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Schneider, Brian) (Entered: 05/06/2013)
103 MOTION to Certify Class − Renewed by VIETRESS BACON, EDWARD DAY, DONALD DUPREE, ROY FOREMAN, BONITA JACKSON, LARRY MCDONALD, JUDITH MILLER, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Errata D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM)(Schneider, Brian) (Entered: 05/06/2013)
104 Consent MOTION for Extension of the Scheduling Order by DISTRICT OF COLUMBIA (Naso, Chad) Modified on 5/21/2013 to correct docket event (jf, ).

05/22/2013
05/22/2013 05/28/2013 06/04/2013
06/04/2013 06/26/2013
06/26/2013 07/17/2013 07/18/2013
07/18/2013 09/23/2013 10/11/2013 10/31/2013

(Entered: 05/21/2013)
MINUTE ORDER granting 104 Consent Motion for Extension of Time: Upon consideration of the District's motion to extend and modify the discovery schedule in this matter, it is hereby ORDERED that the District's motion is GRANTED; and it is further ORDERED that (1) the District shall file its opposition to Plaintiffs' Motion for Class Certification and its reply in support of its Motion to Dismiss the Third Amended Complaint no later than June 4, 2013; (2) Plaintiffs shall file their reply in support of their Motion for Class Certification no later than June 26, 2013. Signed by Judge Ellen S. Huvelle on May 22, 2013. (AG) (Entered: 05/22/2013)
Set/Reset Deadlines: Response to Plaintiffs' Motion for Class Certification and Reply in Support of Motion to Dismiss Third Amended Complaint due by 6/4/2013. Plaintiffs' Reply in Support of Motion for Class Certification due by 6/26/2013. (zmm, ) (Entered: 05/22/2013)
105 NOTICE of Death of Plaintiff Lavondia Carter by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON (Thomas, Victoria) (Entered: 05/28/2013)
106 Memorandum in opposition to re 103 MOTION to Certify Class − Renewed filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Naso, Chad) (Entered: 06/04/2013)
107 REPLY to opposition to motion re 99 MOTION to Dismiss filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit C − MDS Survey Tool, # 2 Exhibit D − 2.5.13 Letter)(Patrick, Bradford) (Entered: 06/04/2013)
108 REPLY to opposition to motion re 103 MOTION to Certify Class − Renewed filed by JACQUALYN THORPE. (Attachments: # 1 Exhibit Exhibit NN, # 2 Exhibit Exhibit OO, # 3 Exhibit Exhibit PP, # 4 Exhibit Exhibit QQ, # 5 Exhibit Exhibit RR, # 6 Exhibit Exhibit SS, # 7 Exhibit Exhibit TT, # 8 Exhibit Exhibit UU, # 9 Exhibit Exhibit VV, # 10 Exhibit Exhibit WW, # 11 Exhibit Exhibit XX, # 12 Exhibit Exhibit YY, # 13 Exhibit Exhibit ZZ, # 14 Exhibit Exhibit AAA)(Schneider, Brian) (Entered: 06/26/2013)
109 NOTICE of Statement of Interest by UNITED STATES OF AMERICA re 103 MOTION to Certify Class − Renewed (Lee, Nicholas) (Entered: 06/26/2013)
110 MOTION for Leave to File Response to the Statement of Interest filed by the United States Department of Justice by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Proposed Response to DOJ's Statement of Interest)(Patrick, Bradford) (Entered: 07/17/2013)
MINUTE ORDER granting 110 Motion for Leave to File: Upon consideration of Defendant's Motion for Leave to File a Response to the Statement of Interest Filed by the United States Department of Justice, plaintiffs' representation that no opposition will be filed, and in consideration of the entire record herein, it is hereby ORDERED that Defendant's Motion is GRANTED; it is further ORDERED that Defendant's Response to the Statement of Interest Filed by the United States Department of Justice, which is attached to Defendants Motion, is accepted for filing. Signed by Judge Ellen S. Huvelle on July 18, 2013. (AG) (Entered: 07/18/2013)
111 RESPONSE to the Statement of Interest filed by UNITED STATES OF AMERICA. (rdj) (Entered: 07/18/2013)
112 NOTICE OF SUPPLEMENTAL AUTHORITY by JACQUALYN THORPE (Attachments: # 1 Exhibit A)(Schneider, Brian) (Entered: 09/23/2013)
113 RESPONSE re 112 NOTICE OF SUPPLEMENTAL AUTHORITY filed by DISTRICT OF COLUMBIA. (Naso, Chad) (Entered: 10/11/2013)
114 MOTION for Scheduling Conference by JACQUALYN THORPE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit A, Declaration of Roy L.

11/05/2013 11/08/2013 11/22/2013
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Foreman)(Rifkin, Marjorie) Modified on 10/31/2013 (jf, ). (Entered: 10/31/2013)
115 NOTICE of Appearance by Iris Y. Gonzalez on behalf of JACQUALYN THORPE (Gonzalez, Iris) (Entered: 11/05/2013)
116 RESPONSE re 114 MOTION for Scheduling Conference filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit Declaration of Leyla Sarigol)(Patrick, Bradford) (Entered: 11/08/2013)
117 ORDER granting 114 plaintiff's motion for scheduling conference and setting hearing on plaintiffs' motion for class certification on December 11, 2013, at 10 a.m. in Courtroom 23A. Parties shall have until December 6, 2013, to file supplemental memorandum re class certification decision in DL v. DC, No. 05−1437−RCL (D.D.C. Nov. 8, 2013) and defendant shall have until December 6, 2013, to file updated data for 2013. See order for details. Signed by Judge Ellen S. Huvelle on November 22, 2013. (AG) (Entered: 11/22/2013)
118 NOTICE of Data In Response to the Court's Order of November 22, 2013 by DISTRICT OF COLUMBIA re 117 Order on Motion for Miscellaneous Relief,, (Attachments: # 1 Exhibit, # 2 Exhibit)(Naso, Chad) (Entered: 12/06/2013)
119 SUPPLEMENTAL MEMORANDUM to re 117 Order on Motion for Miscellaneous Relief,, relating to the applicability of the recent decision in D.L. v. District of Columbia filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1 − Notice of Appeal in D.L. v. District of Columbia)(Patrick, Bradford) (Entered: 12/06/2013)
120 SUPPLEMENTAL MEMORANDUM to Address relevancy of DL v. Dist. of Columbia class recertification filed by JACQUALYN THORPE. (Schneider, Brian) (Entered: 12/06/2013)
121 NOTICE of Voluntary Dismissal re Carl Magby (Thomas, Victoria) (Entered: 12/09/2013)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 12/11/2013 re 99 MOTION to Dismiss filed by DISTRICT OF COLUMBIA, 103 MOTION to Certify Class − Renewed filed by CURTIS WILKERSON, DONALD DUPREE, BONITA JACKSON, JACQUALYN THORPE, VIETRESS BACON, ROY FOREMAN, LARRY MCDONALD, JUDITH MILLER, EDWARD DAY. Motions heard and taken under advisement. (Court Reporter Chantal Geneus) (zmm, ) (Entered: 12/11/2013)
122 NOTICE in Response to Court's Oral Order During the December 11, 2013 Hearing by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit FY 2013 Olmstead Community Integration Plan)(Naso, Chad) (Entered: 12/13/2013)
123 SUPPLEMENTAL MEMORANDUM to re 122 Notice (Other) Responding to Defendant's Supplemental Nursing Facility Data filed by JACQUALYN THORPE. (Schneider, Brian) (Entered: 12/18/2013)
124 Consent MOTION for Leave to File Reply by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Proposed Reply)(Patrick, Bradford) (Entered: 12/20/2013)
MINUTE ORDER granting 124 Consent Motion for Leave to File Reply. Signed by Judge Ellen S. Huvelle on December 20, 2013. (AG) (Entered: 12/20/2013)
125 REPLY re 123 Response to Supplemental Memorandum of Nursing Facility Data filed by DISTRICT OF COLUMBIA. (jf, ) (Entered: 12/23/2013)
126 NOTICE OF SUPPLEMENTAL AUTHORITY by JACQUALYN THORPE (Attachments: # 1 Exhibit DL ORDER)(Rifkin, Marjorie) (Entered: 01/30/2014)
127 NOTICE Of The District Of Columbia's Public Release Of Fiscal Year 2014 Agency Olmstead Goals by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit 1 − FY 2014 Olmstead Goals)(Patrick, Bradford) (Entered: 03/11/2014)
128 MEMORANDUM OPINION. Signed by Judge Ellen S. Huvelle on March 29, 2014. (AG) (Entered: 03/29/2014)

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129 ORDER denying 99 defendant's Motion to Dismiss; granting 103 plaintiffs' Motion to Certify Class; and setting status conference for April 23, 2014, at 9:30 a.m. Signed by Judge Ellen S. Huvelle on March 29, 2014. (AG) (Entered: 03/29/2014)
Set/Reset Deadlines/Hearings: Joint Status Report due by 4/16/2014. Status Conference set for 4/23/2014 at 9:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (cdw) (Entered: 03/31/2014)
Set/Reset Deadlines: Joint Status Report due by 4/16/2014. (zmm, ) (Entered: 04/01/2014)
Set/Reset Hearings: Status Conference set for 4/23/2014 09:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zmm, ) (Entered: 04/01/2014)
130 NOTICE of Voluntary Dismissal re Winifred Goines (Rifkin, Marjorie) (Entered: 04/14/2014)
131 ANSWER to 98 Amended Complaint by DISTRICT OF COLUMBIA. Related document: 98 Amended Complaint filed by CURTIS WILKERSON, LARRY MCDONALD, DONALD DUPREE, JACQUALYN THORPE, ROY FOREMAN.(Patrick, Bradford) (Entered: 04/14/2014)
132 NOTICE THAT THE DISTRICT OF COLUMBIA HAS SOUGHT PERMISSION TO APPEAL THIS COURT'S MARCH 29, 2014 ORDER by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Rule 23(f) Petition)(Patrick, Bradford) (Entered: 04/15/2014)
133 STATUS REPORT JOINT by District of Columbia and by JACQUALYN THORPE. (Attachments: # 1 Exhibit Joint Proposed Litigation Schedule)(Rifkin, Marjorie) (Entered: 04/15/2014)
134 MOTION to Stay Pursuant to Fed. R. Civ. P. 23(f) by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 04/17/2014)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 4/23/2014. Defendant's 134 Motion to Stay Proceedings granted in part and denied in part. Next Status Conference set for 7/17/2014 @ 2:30 p.m. in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter William Zaremba) (zmm, ) (Entered: 04/24/2014)
135 ORDER granting in part and denying in part 134 Motion to Stay, staying expert discovery, and setting fact discovery deadlines. Next status conference is set for July 17, 2014, at 2:30 p.m. in Courtroom 23A. Signed by Judge Ellen S. Huvelle on April 24, 2014. (AG) (Entered: 04/24/2014)
Set/Reset Deadlines: Fact Discovery to be completed by 12/31/2014. Joint Status Report due by 7/10/2014. (zmm, ) (Entered: 04/24/2014)
136 NOTICE of Plaintiffs' 132 Response Opposing Defendant's 23(f) Petition for Interlocutory Review by JACQUALYN THORPE (Attachments: # 1 Exhibit Response Opposing Defendant's 23(f) Petition)(Gonzalez, Iris) . (Entered: 04/28/2014)
137 ORDER as to the USCA; ORDERED, on the court's own motion, that the petition be referred to a merits panel. USCA No. 14−8001. (md, ) (Entered: 06/25/2014)
138 MOTION to Stay (Renewed) by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit 1 − State Long−Term Services and Supports Scorecard)(Patrick, Bradford) (Entered: 06/26/2014)
139 NOTICE Concerning Screening Tool by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit 1 − Screening Tool)(Patrick, Bradford) (Entered: 06/26/2014)
140 STATUS REPORT (JOINT) by JACQUALYN THORPE. (Schneider, Brian) (Entered: 07/10/2014)
141 RESPONSE re 139 Notice (Other) Concerning Screening Tool filed by JACQUALYN THORPE. (Schneider, Brian) (Entered: 07/10/2014)
142 Memorandum in opposition to re 138 MOTION to Stay (Renewed) filed by JACQUALYN THORPE. (Rifkin, Marjorie) (Entered: 07/14/2014)

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MINUTE ORDER: It is hereby ORDERED that the Status Conference presently set for July 17, 2014 is CANCELED. Signed by Judge Ellen S. Huvelle on July 15, 2014. (AG) (Entered: 07/15/2014)
143 REPLY to opposition to motion re 138 MOTION to Stay (Renewed) filed by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 07/16/2014)
144 REPLY re 141 Response to Document filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit 1 − May 30, 2014 Email)(Patrick, Bradford) (Entered: 07/16/2014)
145 MEMORANDUM OPINON AND ORDER denying 138 defendant's Motion to Stay Discovery and referring any discovery disputes that arise to Magistrate Judge Alan Kay for resolution. Signed by Judge Ellen S. Huvelle on August 8, 2014. (AG) (Entered: 08/08/2014)
146 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on April 23, 2014; Page Numbers: 1−47. Date of Issuance: August 4, 2014. Court Reporter/Transcriber: William Zaremba; Telephone number: (202)354−3249; Email Address: William_Zaremba@dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the Court and the Court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 9/5/2014. Redacted Transcript Deadline set for 9/15/2014. Release of Transcript Restriction set for 11/13/2014.(Zaremba, William) (Entered: 08/15/2014)
147 NOTICE Concerning Supplemental Discovery by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 09/10/2014)
148 NOTICE OF WITHDRAWAL OF APPEARANCE as to ROBERT COLLINS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON. Attorney Victoria L. Thomas terminated. (Thomas, Victoria) (Entered: 10/14/2014)
149 NOTICE of Change of Address by Brian D. Schneider (Schneider, Brian) (Entered: 10/24/2014)
150 Consent MOTION for Extension of Time to Complete Discovery by JACQUALYN THORPE (Attachments: # 1 Text of Proposed Order)(Schneider, Brian) (Entered: 11/21/2014)
MINUTE ORDER granting 150 Consent Motion for Extension of Time to Complete Discovery: Having considered the Consent Motion to Modify Discovery Schedule, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Court's April 24, 2014 Order regarding the discovery schedule is modified as follows: (1) fact discovery will conclude on April 30, 2015; and (2) the parties will supplement responses to discovery requests pursuant to Fed. R. Civ. P. 26 (e) no later than February 16, 2015. All other parts of the Court's April 24, 2014 Order will remain in effect. Signed by Judge Ellen S. Huvelle on November 21, 2014. (AG) (Entered: 11/21/2014)
Set/Reset Deadlines: Fact Discovery to conclude by 4/30/2015. Parties to supplement responses to discovery requests by 2/16/2015. (zmm, ) (Entered: 11/24/2014)
151 NOTICE OF DEATH OF PLAINTIFF CURTIS WILKERSON by JACQUALYN THORPE (Rifkin, Marjorie) (Entered: 01/21/2015)
152 NOTICE of Appearance by Chad Wayne Copeland on behalf of DISTRICT OF COLUMBIA (Copeland, Chad) (Entered: 01/28/2015)
153 Consent MOTION to Modify DISCOVERY SCHEDULE by ROBERT COLLINS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN

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THORPE (Attachments: # 1 Text of Proposed Order)(Lav, Jennifer) (Entered: 02/10/2015)
MINUTE ORDER granting 153 Consent Motion to Modify: Having considered the Consent Motion to Modify Discovery Schedule dated February 10, 2015, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Court's April 24, 2014 Order, as modified by the Courts Minute Order of November 21, 2014, regarding the discovery schedule is modified as follows:The parties will supplement responses to discovery requests pursuant to Fed. R. Civ. P. 26(e) no later than March 2, 2015. All other parts of the Court's April 24, 2014 Order, as modified by the Court's Minute Order of November 21, 2014, will remain in effect. Signed by Judge Ellen S. Huvelle on February 11, 2015. (AG) (Entered: 02/11/2015)
Set/Reset Deadlines: Parties to supplement responses to discovery requests pursuant to FRCP 26(e) by 3/2/2015. (zmm, ) (Entered: 02/11/2015)
154 NOTICE of Death of Plaintiff Joseph Gray by JACQUALYN THORPE (Rifkin, Marjorie) (Entered: 03/02/2015)
155 Joint MOTION for Extension of Time to Complete Discovery by JACQUALYN THORPE (Gonzalez, Iris) (Entered: 04/08/2015)
MINUTE ORDER granting 155 Consent Motion for Extension of Time to Complete Discovery. Fact discovery deadline of April 30, 2015, is VACATED. All other scheduling decisions will be deferred until after the Court of Appeals rules on the pending petition to appeal this Court's ruling granting class certification. Signed by Judge Ellen S. Huvelle on April 29, 2015. (AG) (Entered: 04/29/2015)
MINUTE ORDER: It is hereby ORDERED that a Status Conference in the above−captioned case is set for Wednesday, July 15, 2015, at 2:00 p.m. in Courtroom 23A; and it is further ORDERED that the parties shall confer and file a joint proposed schedule for further proceedings by July 13, 2015. Signed by Judge Ellen S. Huvelle on June 29, 2015. (AG) (Entered: 06/29/2015)
Set/Reset Deadlines/Hearings: Parties to file joint proposed schedule for further proceedings by 7/13/2015. Status Conference set for 7/15/2015 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zmm) (Entered: 06/30/2015)
156 ORDER of USCA (certified copy) in re: District of Columbia, a Municipal Corporation. ORDERED that the petition be denied for the reasons stated in the opinion issued herein this date.USCA Case Number 14−8001. (rd) (Entered: 07/01/2015)
157 Joint MOTION to Modify Schedules for Further Proceedings by JACQUALYN THORPE (Attachments: # 1 Exhibit DRAFT Notice of 30b6 Deposition, # 2 Text of Proposed Order Plaintiffs Proposed Order., # 3 Text of Proposed Order Defendants Proposed Order)(Schneider, Brian) (Entered: 07/13/2015)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 7/15/2015. Scheduling order to follow. (Court Reporter: Lisa Griffith) (cdw) (Entered: 07/15/2015)
158 SCHEDULING ORDER. Fact discovery to be completed by November 1, 2015. Expert discovery to be completed by March 1, 2016. Status conference set for April 5, 2016, at 2:30 p.m. See order for details. Signed by Judge Ellen S. Huvelle on July 15, 2015. (AG) (Entered: 07/15/2015)
Set/Reset Deadlines/Hearings: Motion to amend the complaint due by 9/1/2015. Fact discovery closes 11/1/2015. Plaintiffs' Rule 26(a)(2)(B) reports due by 11/15/2015. Defendant's Rule 26(a)(2)(B) reports due by 12/15/2015. Plaintiff's rebuttal reports due by 1/22/2016. Document re Summary Judgment motions submisson due by 3/28/2016. Status Conference set for 4/5/2016 at 2:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (cdw) Modified on 7/17/2015 (zcdw). (Entered: 07/16/2015)
159 NOTICE of Appearance by Kristina J. Majewski on behalf of All Plaintiffs (Majewski, Kristina) (Entered: 08/10/2015)

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160 Consent MOTION to Amend/Correct 98 Amended Complaint and Memorandum in Support thereof by DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, JACQUALYN THORPE, CURTIS WILKERSON (Attachments: # 1 Exhibit A − Fourth Amended Complaint, # 2 Exhibit 1 − WSComparison_Thorpe − Third Amended Complaint to Fourth Amended Compaint, # 3 Text of Proposed Order)(Schneider, Brian) (Entered: 09/01/2015)
161 NOTICE by DISTRICT OF COLUMBIA re 160 Consent MOTION to Amend/Correct 98 Amended Complaint and Memorandum in Support thereof (Patrick, Bradford) (Entered: 09/01/2015)
MINUTE ORDER granting 160 plaintiffs' Motion to Amend Complaint: Upon consideration of plaintiffs' Motion to Amend Complaint, defendant's partial lack of consent, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that Plaintiffs' Fourth Amended Class Action Complaint for Declaratory and Injunctive Relief will be placed on the docket and amend all prior−filed Complaints in this action. Signed by Judge Ellen S. Huvelle on September 10, 2015. (AG) (Entered: 09/10/2015)
162 FOURTH AMENDED COMPLAINT against DISTRICT OF COLUMBIA filed by ROY FOREMAN, LARRY MCDONALD, DONALD DUPREE, TANITA SANDERS, DENISE RIVERS, JAMES BUMPASS, IVY BROWN.(jf) (Entered: 09/11/2015)
163 NOTICE Regarding 30(b)(6) and Other Depositions by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Schneider, Brian) (Entered: 09/15/2015)
NOTICE OF ERROR re 163 Notice (Other); emailed to schneider.brian@arentfox.com, cc'd 18 associated attorneys −− The PDF file you docketed contained errors: 1. Do not file Discovery (LcvR 5.2), 2. Incorrect document/case, 3. See LCvR 5.1 (jf, ) (Entered: 09/15/2015)
164 STATUS REPORT and Request for Status Conference by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Schneider, Brian) (Entered: 09/15/2015)
165 RESPONSE re 164 Status Report, filed by DISTRICT OF COLUMBIA. (Patrick, Bradford) (Entered: 09/16/2015)
MINUTE ORDER: It is hereby ORDERED that a Status Conference to address the discovery issues raised in 164 plaintiffs' Status Report and 165 defendant's response thereto is set for September 29, 2015, at 11:00 a.m. in Courtroom 23A. Signed by Judge Ellen S. Huvelle on September 16, 2015. (AG) (Entered: 09/16/2015)
Set/Reset Hearings: Status Conference set for 9/29/2015 11:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zmm) (Entered: 09/17/2015)
166 ANSWER to 162 Amended Complaint by DISTRICT OF COLUMBIA. Related document: 162 Amended Complaint filed by LARRY MCDONALD, DENISE RIVERS, JAMES BUMPASS, DONALD DUPREE, IVY BROWN, ROY FOREMAN, TANITA SANDERS.(Patrick, Bradford) (Entered: 09/24/2015)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 9/29/2015. Further Status Conference set for 4/22/2016 @ 2:00 p.m. in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Linda Kinkade) (zmm) (Entered: 09/29/2015)
167 AMENDED SCHEDULING ORDER. See order for details. Status conference presently set for April 22, 2015, is moved to April 20, 2015, at 2:00 p.m. Signed by Judge Ellen S. Huvelle on September 30, 2015. (AG) (Entered: 09/30/2015)
Set/Reset Deadlines/Hearings: Defendant's supplemental response to plaintiff's interrogatory due by 10/20/2015. Fact Discovery to be completed by 12/4/2015. Plaintiff's expert reports pursuant to Rule 26(a)(2)(B) due by 12/20/2016. Defendant's expert reports pursuant to Rule 26(a)(2)(B) due by 1/20/2016. Status Conference set

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for 4/20/2016 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zmm) Modified on 10/2/2015 (zmm). (Entered: 10/01/2015)
Set/Reset Deadlines: Defendant's supplemental response to plaintiff's interrogatory due by 10/20/2015. (zmm) (Entered: 10/02/2015)
168 NOTICE of Death of Plaintiff Tanita Sanders by IVY BROWN (Majewski, Kristina) (Entered: 10/05/2015)
169 Consent MOTION for Extension of Time to Serve Expert Reports by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 01/14/2016)
MINUTE ORDER granting 169 Consent Motion for Extension of Time: Upon consideration of Defendant's Consent Motion for an Extension of Time and the entire record, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that Defendant shall designate its experts and serve any expert reports in accordance with Fed. R. Civ. P. 26(a)(2)(B) no later than February 4, 2016. Plaintiffs shall designate any rebuttal experts and file any rebuttal reports by February 29, 2016. Expert depositions shall be completed by April 15, 2016. All other provisions of this Court's September 15, 2015 Scheduling Order remain in effect. Signed by Judge Ellen S. Huvelle on January 14, 2015. (AG) (Entered: 01/14/2016)
Set/Reset Deadlines: Defendant's Rule 26(a)(2)(B) expert disclosures due 2/4/2016. Plaintiff's rebuttal expert designation and rebuttal reports due 2/29/2016. (zmm) (Entered: 01/15/2016)
170 NOTICE Regarding Summary Judgment by DISTRICT OF COLUMBIA (Patrick, Bradford) (Entered: 04/14/2016)
171 NOTICE of Proposal for a Motion for Summary Judgment by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS (Andersen, Alison) (Entered: 04/15/2016)
MINUTE ORDER: It is hereby ORDERED that Defendant shall file a response to re 171 Plaintiffs' Notice of Proposal re Motion for Summary Judgment by no later than Tuesday, April 19, 2016 at 12:00 p.m. Defendant's response should (1) indicate whether there is a dispute on the issues identified by Plaintiffs as the possible issues to address in a motion for summary judgment; and (2) if there is a dispute, whether defendant agrees that summary judgment briefing is the best option for resolving those disputes. Signed by Judge Ellen S. Huvelle on April 16, 2016. (AG) (Entered: 04/16/2016)
172 NOTICE of Appearance by Amanda Montee on behalf of DISTRICT OF COLUMBIA (Montee, Amanda) (Entered: 04/18/2016)
Set/Reset Deadlines: Responses due by 4/19/2016 (gdf) (Entered: 04/18/2016)
173 RESPONSE re 171 Notice (Other) pursuant to the Court's April 16, 2016 Minute Order filed by DISTRICT OF COLUMBIA. (Naso, Chad) (Entered: 04/19/2016)
174 MOTION Exclude Expert, Suzanne Crisp by IVY BROWN (Attachments: # 1 Affidavit Dowd Declaration − 2016_04_19, # 2 Exhibit 1 − Crisp Report − 2016_02_03, # 3 Exhibit 2 − Crisp Deposition − 2016_04_01, # 4 Exhibit 3 − Newland Deposition − 2015_11_19 − Excerpts, # 5 Exhibit 4 − Sarigol Deposition − 2015_11_12 − Excerpts)(Schneider, Brian) (Entered: 04/19/2016)
NOTICE TO COUNSEL: the Clerk of Court has been directed to change the case caption in the above−captioned matter to reflect that plaintiff Ivy Brown is the lead plaintiff according to the fourth Amended Complaint. Signed by Judge Ellen S. Huvelle on April 19, 2016. (AG) (Entered: 04/19/2016)
175 PRETRIAL SCHEDULING ORDER. See order for details. Signed by Judge Ellen S. Huvelle on April 20, 2016. (AG) (Entered: 04/20/2016)
Set/Reset Deadlines/Hearings: Pretrial Statement due by 6/20/2016. Final Pretrial Conference set for 7/5/2016 at 02:00 PM before Judge Ellen S. Huvelle. (AG) (Entered: 04/20/2016)

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Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 4/20/2016. Joint Pretrial Statements due 6/20/16. Bench Trial set for 8/23/2016 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter Lisa Griffith) (gdf) (Entered: 04/20/2016)
176 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Bradford Collins Patrick terminated. (Patrick, Bradford) (Entered: 04/21/2016)
177 Consent MOTION to Modify the Pretrial Scheduling Order, Consent MOTION to Clarifythe Pretrial Scheduling Order by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Naso, Chad) (Entered: 05/09/2016)
178 ORDER granting 177 defendant's Consent Motion to Modify and Clarify the Pretrial Scheduling Order. Pretrial Statement due by 8/8/2016. Pretrial Conference CONTINUED to 8/23/2016 at 02:30 PM. Bench Trial set for 8/23, 8/24, and 8/26 CONTINUED to 10/4, 10/5, and 10/7. See order for details. Signed by Judge Ellen S. Huvelle on May 9, 2016. (AG) (Entered: 05/09/2016)
179 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Chad Alan Naso terminated. (Naso, Chad) (Entered: 05/19/2016)
180 NOTICE of Appearance by Maame Gyamfi on behalf of IVY BROWN (Gyamfi, Maame) (Entered: 05/25/2016)
181 Consent MOTION for Extension of Time to Supplement Discovery by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Montee, Amanda) (Entered: 05/30/2016)
MINUTE ORDER granting 181 Consent Motion for Extension of Time: Upon consideration of Defendant's Consent Motion for an Extension of Time for the District of Columbia to Supplement Discovery, and for good cause shown, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that the Pretrial Scheduling Order [ECF No. 178] is amended as follows: The District shall produce responsive emails generated from October 2015 to April 22, 2016, on or by June 21, 2016. All other supplemental discovery shall be produced by June 1, 2016. SO ORDERED. Signed by Judge Ellen S. Huvelle on May 31, 2016. (AG) (Entered: 05/31/2016)
Set/Reset Deadlines: Supplemental discovery produce by 6/1/2016. (gdf) (Entered: 05/31/2016)
182 ENTERED IN ERROR. . . . .Consent MOTION for Leave to File Motion for Summary Judgment by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Motion for Summary Judgment, # 4 Exhibit Memorandum in Support of Motion for Summary Judgment, # 5 Exhibit Attachment to Memorandum in Support of Motion for Summary Judgment, # 6 Exhibit Statement of Material Facts for Summary Judgment, # 7 Exhibit Proposed Order Granting Summary Judgment)(Montee, Amanda) Modified on 6/28/2016 (td). (Entered: 06/28/2016)
NOTICE OF CORRECTED DOCKET ENTRY: re 182 Consent MOTION for Leave to File Motion for Summary Judgment was entered in error and counsel was instructed to refile said pleading in the correct case number. (ztd) (Entered: 06/28/2016)
183 NOTICE of Appearance by Conrad Risher on behalf of DISTRICT OF COLUMBIA (Risher, Conrad) (Entered: 06/29/2016)
184 NOTICE of Appearance by Andrew Braxton Strickland on behalf of IVY BROWN (Strickland, Andrew) (Entered: 07/19/2016)
185 MOTION in Limine to Exclude Evidence Related to the Districts Department of Behavioral Health by IVY BROWN (Attachments: # 1 Exhibit A − Excerpts of 1−7−13 Hearing Tr., # 2 Exhibit B − Excerpt of Def's Interrogatory Responses 2−15−13, # 3 Exhibit C − Excerpts of 4−23−14 Hearing Tr., # 4 Exhibit D − Excerpts of 9−29−15 Hearing Tr.)(Schneider, Brian) (Entered: 08/03/2016)

08/03/2016 08/03/2016 08/03/2016 08/05/2016 08/08/2016
08/08/2016 08/09/2016 08/09/2016 08/22/2016 08/22/2016
08/23/2016 08/23/2016
08/23/2016 08/25/2016 08/30/2016 09/01/2016

186 Memorandum in opposition to re 174 MOTION Exclude Expert, Suzanne Crisp filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 08/03/2016)
187 TRIAL BRIEF by DISTRICT OF COLUMBIA. (Montee, Amanda) (Entered: 08/03/2016)
188 TRIAL BRIEF by IVY BROWN. (Attachments: # 1 Exhibit DOJ Olmstead Statement)(Schneider, Brian) (Entered: 08/03/2016)
189 Memorandum in opposition to re 185 MOTION in Limine to Exclude Evidence Related to the Districts Department of Behavioral Health filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 08/05/2016)
190 PRETRIAL STATEMENT by IVY BROWN. (Attachments: # 1 Appendix A − Joint Stipulations, # 2 Appendix B − Plaintiff's Witness Schedule, # 3 Appendix C − Defendant's Witness Schedule, # 4 Appendix D − Plaintiff's Exhibit List, # 5 Appendix E − Defendants Exhibit List, # 6 Appendix F − Deposition Designations, # 7 Appendix G − Plaintiff's Demonstrative Exhibit List)(Schneider, Brian) (Entered: 08/08/2016)
191 ENTERED IN ERROR.....TRIAL BRIEF in Opposition to Defendant's Trial Brief by IVY BROWN. (Attachments: # 1 Exhibit A − Report of Roger Auerbach)(Schneider, Brian) Modified on 8/9/2016 (jf). (Entered: 08/08/2016)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 191 Trial Brief was entered in error and counsel was instructed to refile said pleading using the correct event. Response to non−motion is the correct event to be selected. (jf) (Entered: 08/09/2016)
192 REPLY re 187 Trial Brief of Defendant filed by IVY BROWN. (Attachments: # 1 Exhibit A − Report of Roger Auerbach)(Schneider, Brian) (Entered: 08/09/2016)
193 NOTICE of Appearance by Shermineh C. Jones on behalf of DISTRICT OF COLUMBIA (Jones, Shermineh) (Entered: 08/22/2016)
194 NOTICE of Filing Amended Exhibit Lists − Joint by IVY BROWN re 190 Pretrial Statement, (Attachments: # 1 Appendix D − Plaintiffs' Amended Exhibit List − 2016_08_22, # 2 Appendix E − Defendant's Amended Exhibit List − 2016_08_22, # 3 Appendix G −Plaintiffs' Amended List of Demonstratives)(Schneider, Brian) (Entered: 08/22/2016)
195 MOTION for Order for Reasonable Accommodation by IVY BROWN (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration Exhibit A, # 4 Declaration Exhibit B)(Majewski, Kristina) (Entered: 08/23/2016)
196 PRETRIAL ORDER denying 174 plaintiffs' motion in limine re Suzanne Crisp; denying 185 plaintiffs' motion in limine re the Department of Behavioral Health; granting in part and denying in part 195 plaintiffs' motion for order re demonstrative video; setting forth additional pretrial rulings; and setting additional Bench Trial dates for 11/8/2016 and 11/9/2016, at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. See order for details. Signed by Judge Ellen S. Huvelle on August 23, 2016. (AG) (Entered: 08/23/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Final Pretrial Conference held on 8/23/2016. Bench Trial remain set for 9/13/16 at 10:00 AM, before Judge Ellen Segal Huvelle (Court Reporter Lisa Griffith) (zgdf) (Entered: 08/31/2016)
Set/Reset Hearings: Bench Trial set for 9/13/2016 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. Bench Trial set for 9/14/2016, 9/16/2016, 10/4/2016, 10/5/2016, 10/7/2016, 11/8/2016 and 11/9/2016 at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 08/25/2016)
197 NOTICE of Filing of Plaintiffs' Amended Exhibit List by IVY BROWN re 190 Pretrial Statement, (Attachments: # 1 Appendix Amended Ex. D to Pretrial Statement (Plaintiffs' Exhibit List))(Schneider, Brian) (Entered: 08/30/2016)
198 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 8−23−16; Page Numbers: 1−57. Date of Issuance:9−1−16. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a

09/01/2016 09/06/2016 09/06/2016 09/06/2016 09/07/2016 09/07/2016 09/07/2016 09/08/2016 09/08/2016
09/09/2016 09/10/2016 09/12/2016
09/12/2016 09/13/2016

href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/22/2016. Redacted Transcript Deadline set for 10/2/2016. Release of Transcript Restriction set for 11/30/2016.(Griffith, Lisa) (Entered: 09/01/2016)
199 MOTION to Quash Subpoenas of District of Columbia Employees by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Risher, Conrad) (Entered: 09/01/2016)
200 Memorandum in opposition to re 199 MOTION to Quash Subpoenas of District of Columbia Employees filed by IVY BROWN. (Attachments: # 1 Affidavit Declaration in Support of Opposition)(Schneider, Brian) (Entered: 09/06/2016)
201 ORDER directing plaintiffs, if necessary, to file final live witness list, and, if necessary, setting hearing on motion to quash. See attachment for details. Signed by Judge Ellen S. Huvelle on September 6, 2016. (lcesh1) (Entered: 09/06/2016)
202 NOTICE of Filing of Defendant's Objections to Plaintiffs' Amended Exhibit List by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit)(Montee, Amanda) (Entered: 09/06/2016)
203 NOTICE Regarding Plaintiffs' Witness List by IVY BROWN re 201 Order on Motion to Quash (Schneider, Brian) (Entered: 09/07/2016)
204 REPLY to Plaintiffs' Notice Regarding Plaintiffs' Witness List (203) filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 09/07/2016)
205 ORDER confirming September 8, 2016, hearing and requiring plaintiffs to bring to the hearing exhibits to which there are existing objections. See order for details. Signed by Judge Ellen S. Huvelle on September 7, 2016. (lcesh1) (Entered: 09/07/2016)
Minute Order: Motion Hearing held before Judge Ellen S. Huvelle on 9/8/2016, granting 199 Motion to Quash Subpoena. (Court Reporter Patricia Kaneshiro−Miller) (nbn) (Entered: 09/08/2016)
206 ORDER granting 199 defendant's motion to quash subpoenas, ruling on 202 defendant's objections to plaintiffs' amended exhibit list, setting plaintiffs' witness schedule for trial, and setting other deadlines. See Order for details. Signed by Judge Ellen S. Huvelle on September 8, 2016. (lcesh1) (Entered: 09/08/2016)
207 NOTICE of examination plans by DISTRICT OF COLUMBIA (Risher, Conrad) (Entered: 09/09/2016)
208 NOTICE Regarding Anticipated Witness Schedule by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS (Andersen, Alison) (Entered: 09/10/2016)
209 NOTICE of Filing Plaintiffs' Exhibit List by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS (Attachments: # 1 Revised Exhibit List)(Andersen, Alison) (Entered: 09/12/2016)
210 NOTICE by DISTRICT OF COLUMBIA re 196 Order on Motion for Miscellaneous Relief, Order on Motion in Limine, Order on Motion for Order, Set/Reset Deadlines/Hearings,,,,,,,, (Jones, Shermineh) (Entered: 09/12/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial begun and held on 9/13/2016. Plaintiff's Witnesses: Larry McDonald, Orit Simhoni, Tijuana Tucker and Randy Smith. Bench Trial continued to 9/14/2016 at 10:15 AM in

09/14/2016
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Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Lisa Griffith,AM; Jeff Hook,PM) (zgdf) (Entered: 09/13/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 9/14/2016. Plaintiff's Witnesses: Ivy Brown, Randy Smith and Leyla Sarigol. Bench Trial continued to 9/16/2016 at 10:15 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Lisa Griffith,AM; Jeff Hook,PM) (gdf) (Entered: 09/14/2016)
211 SCHEDULING ORDER: Setting deadlines for filing of defendant's exhibit list, defendant's witness list, and plaintiffs' objections to defendant's exhibits. Setting additional trial dates for November 15, 16, and 18, 2016, at 10:00 AM in Courtroom 23A. See Order for details. Signed by Judge Ellen S. Huvelle on September 16, 2016. (lcesh1) (Entered: 09/16/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 9/16/2016. Plaintiff's Witnesses: Leyla Sarigol and Claudia Schlosberg. Bench Trial continued to 10/4/2016 at 10:15 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Lisa Griffith,AM; Jeff Hook,PM) (gdf) (Entered: 09/19/2016)
212 AFFIDAVIT of Plaintiffs' Expert Witness Roger Auerbach by IVY BROWN. (Schneider, Brian) (Entered: 09/20/2016)
213 Joint MOTION Seal Exhibit Lists re 190 Pretrial Statement, 194 Notice (Other), by IVY BROWN (Attachments: # 1 Text of Proposed Order)(Andersen, Alison) (Entered: 09/22/2016)
214 NOTICE of Witness Schedule by DISTRICT OF COLUMBIA (Montee, Amanda) (Entered: 09/22/2016)
215 ORDER granting 213 Joint Motion to Seal Filings. See Order for details. Signed by Judge Ellen S. Huvelle on September 22, 2016. (lcesh1) (Entered: 09/22/2016)
216 NOTICE of Filing of Defendant's Exhibit List by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit List)(Montee, Amanda) (Entered: 09/22/2016)
217 NOTICE of Filing of Amended Witness List by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit)(Montee, Amanda) (Entered: 09/28/2016)
218 NOTICE of Plaintiffs' Objections to Defendant's Exhibits and Witness Schedule by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS (Attachments: # 1 Plaintiffs' Objections to Defendant's Exhibits)(Schneider, Brian) (Entered: 09/30/2016)
219 NOTICE of Plaintiffs' Amended Objections to Defendant's Exhibits and Witness Schedule by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, ROY FOREMAN, LARRY MCDONALD, DENISE RIVERS (Attachments: # 1 Plaintiffs' Amended Objections to Defendant's Exhibits)(Schneider, Brian) (Entered: 09/30/2016)
220 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on Septeber 8, 2016; Page Numbers: 1−50. Date of Issuance:October 4, 2016. Court Reporter/Transcriber Pat Kaneshiro−Miller, Telephone number 202−354−3243, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court report er referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

10/04/2016 10/04/2016 10/05/2016
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Redaction Request due 10/25/2016. Redacted Transcript Deadline set for 11/4/2016. Release of Transcript Restriction set for 1/2/2017.(pk) (Entered: 10/04/2016)
221 ORDER on 219 plaintiffs' objections to defendant's exhibits and witness schedule and setting time and subject−matter limitations for defense witnesses. See order for details. Signed by Judge Ellen S. Huvelle on October 4, 2016. (lcesh1) (Entered: 10/04/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 10/4/2016. Plaintiff Witnesses: Brenda Fisher and Jennifer Crawley. Bench Trial set for 10/5/2016 at 10:15 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Lisa Griffith, AM; Barbara DeVico, PM.) (gdf) (Entered: 10/04/2016)
222 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10−4−16; Page Numbers: 1−99. Date of Issuance:10−5−16. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 10/26/2016. Redacted Transcript Deadline set for 11/5/2016. Release of Transcript Restriction set for 1/3/2017.(DeVico, Barbara) (Entered: 10/05/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 10/5/2016. Plaintiff Witnesses: Gerald Kasunic and Roger Auerbach. Bench Trial continued to 10/7/16 at 10:30 AM in Courtroom 23A, before Judge Ellen Segal Huvelle. (Court Reporters: Lisa Griffith,AM; Jeff Hook,PM) (gdf) (Entered: 10/11/2016)
223 MOTION for Judgment as a Matter of Law by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Montee, Amanda) (Entered: 10/06/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 10/7/2016. Defense Witness: Laura Newland. Bench Trial set for 11/8/2016 at 10:15 AM in Courtroom 23A before Judge Ellen S. Huvelle. Defendant shall, by October 14, 2016, identify the sources underlying the data to its demonstrative exhibits (119 and 120). Plaintiff's response due by 10/28/2016. Reply due by 11/4/2016. (Court Reporters: Lisa Griffith,AM; Jeff Hook,PM.) (gdf) (Entered: 10/11/2016)
224 MOTION for Leave to File Excess Pages by IVY BROWN (Rifkin, Marjorie) (Entered: 10/28/2016)
225 Memorandum in opposition to re 223 MOTION for Judgment as a Matter of Law filed by IVY BROWN. (Attachments: # 1 Exhibit EPD Waiver Renewal 2016)(Rifkin, Marjorie) (Entered: 10/28/2016)
MINUTE ORDER: It is hereby ORDERED that 224 plaintiffs' Motion for Leave to File Excess Pages is GRANTED. Signed by Judge Ellen S. Huvelle on October 31, 2016. (AG) (Entered: 10/31/2016)
226 REPLY to opposition to motion re 223 MOTION for Judgment as a Matter of Law filed by DISTRICT OF COLUMBIA. (Montee, Amanda) (Entered: 11/04/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 11/8/2016. Defense Witnesses: Laura Newland, Dr. Sharon Lewis and Hammere Gebreyes. Bench Trial continued to 11/9/2016 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Barbara DeVico,AM; Jeff Hook,PM) (gdf) (Entered: 11/09/2016)

11/09/2016
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Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and held on 11/9/2016. Defense Witnesses: Ron McCoy and Claudia Schlosberg. Bench Trial continued to 11/15/2016 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporters: Jeff Hook,AM; Barbara DeVico,PM) (gdf) (Entered: 11/09/2016)
Set/Reset Hearings: Bench Trial reset for 11/15/2016 at 01:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (hs) (Entered: 11/14/2016)
227 SCHEDULING ORDER. Simultaneous submission of Findings of Fact and Conclusions of Law, not to exceed 40 pages per side, due January 30, 2017. Simultaneous replies, not to exceed 20 pages per side, due March 10, 2017. Two (2) courtesy copies and USB containing electronic briefs and PDF files of evidence and case law cited. See Order for details. Signed by Judge Ellen S. Huvelle on November 15, 2016. (lcesh1) (Entered: 11/15/2016)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Bench Trial resumed and concluded on 11/15/2016. Defense Witness: Nathan Bovelle. (Court Reporter: Barbara DeVico) (gdf) (Entered: 11/16/2016)
228 Trial Exhibit List of the Plaintiff, Defendant and Court. (gdf) (Entered: 11/16/2016)
Set/Reset Deadlines: Finding of Facts and Conclusions of Law due by 1/30/2017. Replies due by 3/10/2017. (gdf) (Entered: 11/17/2016)
229 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA. Attorney Shermineh C. Jones terminated. (Jones, Shermineh) (Entered: 11/17/2016)
230 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 11−15−16; Page Numbers: 1−94. Date of Issuance:11−18−16. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2017 01/30/2017
01/30/2017 01/31/2017
01/31/2017

Redaction Request due 12/9/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/16/2017.(DeVico, Barbara) (Entered: 11/18/2016)
231 NOTICE of Death by ROY FOREMAN (Rifkin, Marjorie) (Entered: 01/17/2017)
232 Proposed Findings of Fact by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. (Schneider, Brian) (Entered: 01/30/2017)
233 Proposed Findings of Fact by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 01/30/2017)
234 MOTION to Strike 233 Proposed Findings of Fact by IVY BROWN (Attachments: # 1 Memorandum in Support Memo, # 2 Text of Proposed Order Proposed Order)(Bagby, Kelly) (Entered: 01/31/2017)
235 MOTION for Leave to File Excess Pages nunc pro tunc by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Risher, Conrad) (Entered: 01/31/2017)

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236 Memorandum in opposition to re 235 MOTION for Leave to File Excess Pages nunc pro tunc filed by IVY BROWN. (Bagby, Kelly) (Entered: 01/31/2017)
237 Memorandum in opposition to re 234 MOTION to Strike 233 Proposed Findings of Fact filed by DISTRICT OF COLUMBIA. (See Docket Entry 235 to view document). (znmw) (Entered: 02/01/2017)
238 ORDER DENYING 234 plaintiffs' Motion to Strike and GRANTING 235 defendant's Motion for Leave to File Excess Pages. The parties shall comply with the 227 November 15, 2016 Scheduling Order and all Local Rules when submitting their simultaneous replies. See Order for details. Signed by Judge Ellen S. Huvelle on February 1, 2017. (lcesh1) (Entered: 02/01/2017)
239 RESPONSE re 233 Proposed Findings of Fact filed by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. (Andersen, Alison) (Entered: 03/10/2017)
240 RESPONSE re 232 Proposed Findings of Fact filed by DISTRICT OF COLUMBIA. (Montee, Amanda) (Entered: 03/10/2017)
241 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit AARP PPI Promising Practices paper)(Risher, Conrad) (Entered: 03/28/2017)
242 RESPONSE re 241 NOTICE OF SUPPLEMENTAL AUTHORITY filed by IVY BROWN. (Rifkin, Marjorie) (Entered: 03/28/2017)
243 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN. Attorney Jennifer Rachel Lav terminated. (Lav, Jennifer) (Entered: 04/12/2017)
244 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN. Attorney Andrew Braxton Strickland terminated. (Strickland, Andrew) (Entered: 06/07/2017)
245 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement, # 4 Supplement)(Montee, Amanda) (Entered: 06/20/2017)
246 REPLY to Notice of Supplemental Authority filed by IVY BROWN. (Attachments: # 1 Exhibit Number 1)(Bagby, Kelly) (Entered: 06/20/2017)
247 NOTICE OF SUPPLEMENTAL AUTHORITY by IVY BROWN (Attachments: # 1 Exhibit DL Decision, # 2 Exhibit DL Order)(Rifkin, Marjorie) (Entered: 06/23/2017)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for oral argument on the parties' proposed findings of fact and conclusions of law at 2:30 p.m. on Thursday, July 20, 2017, in Courtroom 23A. The Court will provide the parties with specific questions and/or areas of interest prior to the hearing. SO ORDERED. Signed by Judge Ellen S. Huvelle on July 7, 2017. (lcesh1) (Entered: 07/07/2017)
Set/Reset Hearings: Oral Argument set for 7/20/2017 at 02:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (hs) (Entered: 07/07/2017)
248 NOTICE TO COUNSEL with topics of inquiry for July 20, 2017 Hearing. See Notice for details. Signed by Judge Ellen S. Huvelle on July 12, 2017. (lcesh1) Modified on 7/12/2017 to correct date of hearing(AG). (Entered: 07/12/2017)
249 NOTICE OF SUPPLEMENTAL AUTHORITY by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit Opinion)(Risher, Conrad) (Entered: 07/18/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Oral arguments held and heard on 7/20/2017 re 223 MOTION for Judgment as a Matter of Law. (Court Reporter Lisa Griffith) (jl) (Entered: 07/21/2017)
250 ORDER directing the District to file case citations and the "inactive list" (as of November 8, 2016) by 5:00 p.m. on July 24, 2017. See Order for details. Signed by Judge Ellen S. Huvelle on July 21, 2017. (lcesh1) (Entered: 07/21/2017)
Set/Reset Deadlines: Case citations and the "inactive list" due by 7/24/2017, by 5:00 pm. (gdf) (Entered: 07/21/2017)

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251 NOTICE by DISTRICT OF COLUMBIA (Montee, Amanda) (Entered: 07/24/2017)
252 RESPONSE TO ORDER OF THE COURT by DISTRICT OF COLUMBIA re 250 Order (Attachments: # 1 Declaration)(Risher, Conrad) Modified event title on 7/25/2017 (znmw). (Entered: 07/24/2017)
253 RESPONSE to Defendant's Supplemental Submissions to the Court filed by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS. (Andersen, Alison) (Entered: 07/28/2017)
254 RESPONSE re 253 Response to Document Submitted to the Court filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 08/01/2017)
255 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 7−20−17; Page Numbers: 1−108. Date of Issuance:8−21−17. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/11/2017. Redacted Transcript Deadline set for 9/21/2017. Release of Transcript Restriction set for 11/19/2017.(Griffith, Lisa) (Entered: 08/21/2017)
256 ORDER dismissing Counts I and II of Plaintiffs' Fourth Amended Complaint; denying as moot 223 defendant's Motion for Judgment as a Matter of Law; and directing the Clerk to enter final judgment for defendant. An accompanying Memorandum Opinion will be filed (ECF No. 257 ). Signed by Judge Ellen S. Huvelle on September 13, 2017. (AG) (Entered: 09/13/2017)
257 MEMORANDUM OPINION accompanying 256 Order. Signed by Judge Ellen S. Huvelle on September 13, 2017. (AG) (Entered: 09/13/2017)
258 CLERK'S JUDGMENT in favor of Defendant District of Columbia against Plaintiffs Ivy Brown, et al. Entered by the Deputy Clerk on 9/18/17. (gdf) (Entered: 09/18/2017)
259 BILL OF COSTS by DISTRICT OF COLUMBIA. (Montee, Amanda) (Entered: 10/06/2017)
260 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 258 Clerk's Judgment by IVY BROWN. Filing fee $ 505, receipt number 0090−5164237. Fee Status: Fee Paid. Parties have been notified. (Bagby, Kelly) (Entered: 10/18/2017)
261 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 260 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 10/19/2017)
262 RESPONSE re 259 Bill of Costs filed by IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Schneider, Brian) (Entered: 10/20/2017)
263 REPLY re 262 Response to Document 259 filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 10/25/2017)
USCA Case Number 17−7152 for 260 Notice of Appeal to DC Circuit Court filed by IVY BROWN. (zrdj) (Entered: 10/31/2017)
264 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 4−20−16; Page Numbers: 1−23. Date of Issuance:12−1−17. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. Af ter 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/11/2018 01/11/2018 01/11/2018

Redaction Request due 12/22/2017. Redacted Transcript Deadline set for 1/1/2018. Release of Transcript Restriction set for 3/1/2018.(Griffith, Lisa) Modified date of hearing on 12/4/2017 (znmw). (Entered: 12/01/2017)
265 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9−13−16 A.M.; Page Numbers: 1−160. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
266 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9−14−16 a.m.; Page Numbers: 1−80. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
267 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9−16−16 a.m.; Page Numbers: 1−118. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript

01/11/2018 01/11/2018 01/11/2018 01/16/2018

Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
268 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10−4−16 a.m.; Page Numbers: 1−173. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
269 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10−5−16 a.m.; Page Numbers: 1−158. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
270 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10−7−16 a.m.; Page Numbers: 1−95. Date of Issuance:1−11−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/1/2018. Redacted Transcript Deadline set for 2/11/2018. Release of Transcript Restriction set for 4/11/2018.(Griffith, Lisa) (Entered: 01/11/2018)
271 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 11−8−16; Page Numbers: 1−102. Date of Issuance:1−16−18. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90

01/16/2018 01/16/2018 01/17/2018

days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/6/2018. Redacted Transcript Deadline set for 2/16/2018. Release of Transcript Restriction set for 4/16/2018.(DeVico, Barbara) (Entered: 01/16/2018)
272 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 11−9−16; Page Numbers: 1−102. Date of Issuance:1−16−18. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/6/2018. Redacted Transcript Deadline set for 2/16/2018. Release of Transcript Restriction set for 4/16/2018.(DeVico, Barbara) (Entered: 01/16/2018)
273 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10−4−16; Page Numbers: 1−99. Date of Issuance:1−16−18. Court Reporter/Transcriber Barbara DeVico, Telephone number 202−354−3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/6/2018. Redacted Transcript Deadline set for 2/16/2018. Release of Transcript Restriction set for 4/16/2018.(DeVico, Barbara) (Main Document 273 replaced on 1/17/2018) (znmw). (Entered: 01/16/2018)
274 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on September 13, 2016; Page Numbers: 1 − 111. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referen ced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
275 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on September 14, 2016; Page Numbers: 1 − 96. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter reference d above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
276 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on September 16, 2016; Page Numbers: 1 − 112. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referen ced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
277 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on October 5, 2016; Page Numbers: 1 − 69. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
278 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on October 7, 2016; Page Numbers: 1 − 113. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
279 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on November 8, 2016; Page Numbers: 1 − 109. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter reference d above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/17/2018

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
280 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on November 9, 2016; Page Numbers: 1 − 114. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter reference d above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

08/13/2019 08/14/2019
08/16/2019

Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
281 MANDATE of USCA as to 260 Notice of Appeal to DC Circuit Court filed by IVY BROWN ; USCA Case Number 17−7152. (Attachments: # 1 USCA Judgment)(zrdj) (Entered: 08/14/2019)
MINUTE ORDER: Since the mandate from the Court of Appeals has been issued (ECF No. 281 ), it is hereby ORDERED that a status conference is set for Monday, September 16, 2019, at 2:00 p.m. in Courtroom 23A. It is further ORDERED that the parties shall file a joint status report by Wednesday, September 11, 2019. The report should include a proposed schedule for future proceedings, including what issues will be in dispute and what additional discovery will be needed to address these issues, and a proposal for future settlement discussions. Signed by Judge Ellen S. Huvelle on August 14, 2019. (AG) (Entered: 08/14/2019)
Set/Reset Deadlines: Status Report due by 9/11/2019; Set/Reset Hearings:Status Conference set for 9/16/2019 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (tj) (Entered: 08/16/2019)

08/22/2019 08/26/2019 08/29/2019 09/11/2019 09/11/2019 09/13/2019
09/13/2019 09/16/2019 09/16/2019 09/16/2019 09/16/2019
09/17/2019 09/17/2019 09/19/2019 10/10/2019

282 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN. Attorney Kristina J. Majewski terminated. (Majewski, Kristina) (Entered: 08/22/2019)
283 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN. Attorney Lyndsay Ayanna Niles terminated. (Niles, Lyndsay) (Entered: 08/26/2019)
284 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. Attorney Iris Y. Gonzalez terminated. (Bagby, Kelly) (Entered: 08/29/2019)
285 NOTICE OF SUBSTITUTION OF COUNSEL by Scott Patrick Kennedy on behalf of DISTRICT OF COLUMBIA Substituting for attorney Amanda J. Montee (Kennedy, Scott) (Entered: 09/11/2019)
286 Joint STATUS REPORT by IVY BROWN, DONALD DUPREE, LARRY MCDONALD. (Attachments: # 1 Exhibit Attachment 1, Excerpt, DC Register, 2/15/2019)(Bagby, Kelly) (Entered: 09/11/2019)
287 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Martha Geron Gadd, :Firm− AARP Foundation, :Address− 601 E St., NW, Washington, DC 20049. Phone No. − 202−434−2060. Fax No. − 202−434−6424 Filing fee $ 100, receipt number 0090−6375394. Fee Status: Fee Paid. by IVY BROWN (Attachments: # 1 Declaration Declaration in Support, # 2 Text of Proposed Order Proposed Order)(Bagby, Kelly) (Entered: 09/13/2019)
MINUTE ORDER granting 287 Motion for Leave to Appear Pro Hac Vice: Pursuant to LCvR 83.2(d), it is hereby ORDERED that plaintiffs' motion for leave for Martha Geron Gadd to appear pro hac vice in the above−entitled action is GRANTED. Signed by Judge Ellen S. Huvelle on September 12, 2019. (AG) (Entered: 09/13/2019)
288 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. Attorney Barbara S. Wahl terminated. (Wahl, Barbara) (Entered: 09/16/2019)
289 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. Attorney Brian D. Schneider terminated. (Schneider, Brian) (Entered: 09/16/2019)
290 NOTICE OF WITHDRAWAL OF APPEARANCE as to IVY BROWN, JAMES BUMPASS, DONALD DUPREE, LARRY MCDONALD, DENISE RIVERS, TANITA SANDERS. Attorney Alison L. Andersen terminated. (Andersen, Alison) (Entered: 09/16/2019)
Minute Entry for Status Conference held on 9/16/2019 before Judge Ellen S. Huvelle. Status Conference set for 1/21/2020 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. Bench Trial set for 5/14/2020 at 9:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. Order setting deadlines and scheduling next hearings to be issued from chambers. Court Reporter Lisa Griffith. (zjch) (Entered: 09/17/2019)
291 SCHEDULING ORDER. Status Conference set for January 21, 2020, at 2:00 p.m. in Courtroom 23A. All discovery completed by April 16, 2020. Bench trial set to begin on May 14, 2020. See order for additional details and deadlines. Signed by Judge Ellen S. Huvelle on September 17, 2019. (AG) (Entered: 09/17/2019)
Set/Reset Deadlines/Hearings: Discovery due by 12/2/2019. Plaintiff Rule 26(a)(2) due by 2/16/2019. Defendant Rule 26(a)(2) due by 3/16/2019. Status Conference set for 1/21/2020 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 09/17/2019)
Set/Reset Deadlines: Discovery due by 4/16/2019. (zgdf) (Entered: 09/19/2019)
292 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9−16−19; Page Numbers: 1−43. Date of Issuance:10−10−19. Court Reporter Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the Transcript Order Form. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter

referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

10/15/2019 10/15/2019 10/15/2019 10/16/2019 10/16/2019 10/17/2019
10/17/2019 11/25/2019 11/25/2019
11/25/2019 12/31/2019 01/07/2020

Redaction Request due 10/31/2019. Redacted Transcript Deadline set for 11/10/2019. Release of Transcript Restriction set for 1/8/2020.(Griffith, Lisa) (Entered: 10/10/2019)
293 NOTICE of Appearance by Kathleen Lillian Millian on behalf of IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Millian, Kathleen) (Entered: 10/15/2019)
294 NOTICE of Appearance by Todd A. Gluckman on behalf of IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Gluckman, Todd) (Entered: 10/15/2019)
295 NOTICE of Appearance by Patrick Andre Sheldon on behalf of IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Sheldon, Patrick) (Entered: 10/15/2019)
296 NOTICE of Appearance by Michael L. Huang on behalf of IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Huang, Michael) (Entered: 10/16/2019)
297 Unopposed MOTION to Clarify re 291 Order, by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order)(Sheldon, Patrick) (Entered: 10/16/2019)
MINUTE ORDER granting 297 Unopposed Motion to Clarify: Upon consideration of Plaintiffs' Unopposed Motion for Clarification of the Scheduling Order of September 17, 2019, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that all requests for admission shall be propounded by January 31, 2020, with responses completed by March 2, 2020. Each side is limited to no more than 25 requests for admission, including subparts; and it is further ORDERED that the Class Decertification deadline set forth in the Scheduling Order of September 17, 2019 is amended to state that motions to decertify the class shall not be filed until after the trial. All other deadlines in the Scheduling Order of September 17, 2019, remain as previously scheduled. Signed by Judge Ellen S. Huvelle on October 17, 2019. (AG) (Entered: 10/17/2019)
Set/Reset Deadlines/Hearings: Request for Admissions due by 1/31/2020. Responses due by 3/2/2020. (zjch) (Entered: 10/17/2019)
298 Joint MOTION for Extension of Time to Respond to Document Requests and Interrogatories by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order)(Bagby, Kelly) (Entered: 11/25/2019)
MINUTE ORDER granting 298 Joint Motion for Extension of Time: Upon consideration of the Joint Motion for Extension of Deadline for Responses to Document Requests and Interrogatories, it is hereby ORDERED that the parties' Motion is GRANTED; and it is further ORDERED that the responses to document requests and interrogatories that were propounded on October 16, 2019 shall be completed by December 9, 2019. Signed by Judge Ellen S. Huvelle on November 25, 2019. (AG) (Entered: 11/25/2019)
Set/Reset Deadlines: Document requests and interrogatories Responses due by 12/9/2019 (zjch) (Entered: 11/26/2019)
299 NOTICE REGARDING INJUNCTIVE RELIEF by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Bagby, Kelly) (Entered: 12/31/2019)
300 NOTICE REGARDING FUNDAMENTAL ALTERATION DEFENSE by DISTRICT OF COLUMBIA (Kennedy, Scott) (Entered: 01/07/2020)

01/13/2020 01/13/2020 01/13/2020 01/17/2020
01/17/2020
01/17/2020 01/17/2020 01/17/2020 01/20/2020 01/21/2020 01/21/2020

301 ORDER setting schedule for briefing on discovery disputes. See order for details. Signed by Judge Ellen S. Huvelle on January 13, 2020. (AG) (Entered: 01/13/2020)
Set/Reset Deadlines/Hearings: Plaintiffs' memorandum by Friday, January 17, 2020, at 5:00 p.m. Defendant's memorandum by Monday, January 20, 2020, at 5:00 p.m. Personal Identifying Information by Friday 1/20/2020, at 5:00 p.m. Status Conference set for 1/21/2020 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 01/14/2020)
Minute Entry for Telephone Conference proceedings held on 1/13/2020 before Judge Ellen S. Huvelle in Chambers. (Court Reporter William Zaremba) (zgdf) (Entered: 01/15/2020)
302 MOTION to Compel the Centers for Medicare and Medicaid Services to Produce Information in Response to Plaintiffs' Subpoena by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Exhibit 1 (Subpoena to CMS, November 18, 2019), # 2 Exhibit 2 (Affidavit of Service of Subpoena, November 21, 2019), # 3 Exhibit 3 (CMSs Objections to the Subpoena, November 29, 2019), # 4 Exhibit 4 (Affidavit of Kelly Bagby, January 17, 2020), # 5 Exhibit 5 (Email to CMS Narrowing Request, December 16, 2019), # 6 Exhibit 6 (Excerpt of Plaintiffs Second Request for Production of Documents, October 16, 2019), # 7 Exhibit 7 (Excerpt of the Districts Responses and Objections to Plaintiffs Second Request for Production of Documents, December 9, 2019), # 8 Exhibit 8 (Protective Order, ECF 58, July 7, 2012), # 9 Exhibit 9 (Exhibit A to the Protective Order, ECF 58−1, July 7, 2012), # 10 Text of Proposed Order)(Bagby, Kelly) (Entered: 01/17/2020)
303 MEMORANDUM re 301 Order by IVY BROWN, DONALD DUPREE, LARRY MCDONALD. (Attachments: # 1 Exhibit 1 (Second Request for Production of Documents to District of Columbia), # 2 Exhibit 2 (Emails between Plaintiffs and District, October 22−November 6, 2019), # 3 Exhibit 3 (Email from T. Gluckman to S. Kennedy, November 11, 2019), # 4 Exhibit 4 (Email from S. Kennedy to T. Gluckman, November 15, 2019), # 5 Exhibit 5 (Emails between Plaintiffs and District, December 11−12, 2019), # 6 Exhibit 6 (Letter from Plaintiffs to District, December 20, 2019), # 7 Exhibit 7 (Emails between Plaintiffs and District, December 31, 2019−January 2, 2020), # 8 Exhibit 8 (District's Letter to Plaintiffs, January 6, 2020), # 9 Exhibit 9 (Email from P. Sheldon to S. Kennedy, January 9, 2020), # 10 Exhibit 10 (Emails between Plaintiffs and District, January 13−14, 2020), # 11 Exhibit 11 (Email from P. Sheldon to S. Kennedy, January 14, 2020), # 12 Exhibit 12 (District Letter to Court, January 13, 2020), # 13 Exhibit 13 (Protective Order), # 14 Exhibit 14 (Email from S. Kennedy to P. Sheldon, January 17, 2020), # 15 Exhibit 15 (Email from T. Gluckman to S. Kennedy, January 17, 2020))(Bagby, Kelly) (Entered: 01/17/2020)
304 MEMORANDUM by DISTRICT OF COLUMBIA. (Kennedy, Scott) (Entered: 01/17/2020)
MINUTE ORDER: It is hereby ORDERED that the Status Conference/Preliminary Approval Hearing presently set for Wednesday, January 22, 2020, is CONTINUED until Monday, January 27, 2020, at 2:00 p.m. Signed by Judge Ellen S. Huvelle on January 17, 2020. (AG) (Entered: 01/17/2020)
MINUTE ORDER: It is hereby ORDERED that the Minute Order filed today continuing a status conference is VACATED and should be marked ENTERED IN ERROR by the Clerk. Signed by Judge Ellen S. Huvelle on January 17, 2020. (AG) (Entered: 01/17/2020)
305 MEMORANDUM re 301 Order by DISTRICT OF COLUMBIA. (Kennedy, Scott) (Entered: 01/20/2020)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 1/21/2020. Scheduling order forthcoming. Status Conference set for 3/30/2020 at 2:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court Reporter: Bryan Wayne) (zgdf) (Entered: 01/21/2020)
306 ORDER resolving discovery disputes, amending discovery schedule, and setting Status Conference for March 30, 2020, at 2:00 p.m. in Courtroom 23A. See Order for details. Signed by Judge Ellen S. Huvelle on January 21, 2020. (AG) (Entered: 01/21/2020)

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01/30/2020 01/30/2020

Set/Reset Deadlines: Plaintiff Rule 26(a)(2) due by 4/24/2020. Defendant Rule 26(a)(2) due by 2/25/2020. (zgdf) (Entered: 01/23/2020)
307 CERTIFICATE OF SERVICE by IVY BROWN, DONALD DUPREE, LARRY MCDONALD re 302 MOTION to Compel the Centers for Medicare and Medicaid Services to Produce Information in Response to Plaintiffs' Subpoena . (Gluckman, Todd) (Entered: 01/22/2020)
308 TRANSCRIPT OF 1/21/20 STATUS HEARING before Judge Ellen S. Huvelle held on January 21, 2020; Page Numbers: 1−51. Date of Issuance: 1/25/20. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting Transcript Order Form at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 2/15/2020. Redacted Transcript Deadline set for 2/25/2020. Release of Transcript Restriction set for 4/24/2020.(Wayne, Bryan) (Entered: 01/25/2020)
309 Consent MOTION for Scheduling Order for Requests for Admission by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order)(Bagby, Kelly) (Entered: 01/30/2020)
310 TRANSCRIPT OF TELEPHONE STATUS CONFERENCE PROCEEDINGS before Judge Ellen S. Huvelle held on January 13, 2020; Page Numbers: 1−39. Date of Issuance: January 30, 2020. Court Reporter/Transcriber: William Zaremba; Telephone number: (202) 354−3249. Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

01/30/2020
01/30/2020 02/03/2020 02/03/2020

Redaction Request due 2/20/2020. Redacted Transcript Deadline set for 3/1/2020. Release of Transcript Restriction set for 4/29/2020.(wz) (Entered: 01/30/2020)
MINUTE ORDER granting 309 Consent Motion for Scheduling Order: Upon consideration of the Consent Motion to Extend Deadlines Relating to Requests for Admission to Comport with this Court's Recent Scheduling Order (ECF 306), it is hereby ORDERED that the Consent Motion is GRANTED; and it is further ORDERED that all requests for admission shall be propounded by March 11, 2020, with responses completed by April 10, 2020. Each side is limited to no more than 25 requests for admission, including subparts. Signed by Judge Ellen S. Huvelle on January 30, 2019. (AG) (Entered: 01/30/2020)
Set/Reset Deadlines: Responses due by 4/10/2020. (zgdf) (Entered: 02/03/2020)
311 NOTICE of Appearance by Christopher Charles Hair on behalf of UNITED STATES OF AMERICA (Hair, Christopher) (Entered: 02/03/2020)
312 RESPONSE re 302 MOTION to Compel the Centers for Medicare and Medicaid Services to Produce Information in Response to Plaintiffs' Subpoena filed by UNITED STATES OF AMERICA. (Attachments: # 1 Affidavit of Thomas Kress (CMS))(Hair, Christopher) (Entered: 02/03/2020)

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03/06/2020
03/06/2020 03/06/2020 03/09/2020 03/13/2020 03/16/2020

313 ORDER granting 302 plaintiffs' Motion to Compel Centers for Medicare and Medicaid Services to produce information in response to plaintiffs' subpoena. See order for details. Signed by Judge Ellen S. Huvelle on February 4, 2020. (AG) (Entered: 02/04/2020)
314 ORDER resolving discovery disputes and amending discovery and trial schedule. See order for details. Signed by Judge Ellen S. Huvelle on February 28, 2020. (AG) (Entered: 02/28/2020)
Set/Reset Deadlines/Hearings: Admissions due by 4/8/2020. Discovery due by 4/8/2020. Plaintiff Rule 26(a)(2) due by 5/15/2020. Defendant Rule 26(a)(2) due by 4/15/2020. Bench Trial set for 6/8/2020 at 09:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 03/02/2020)
315 MOTION to Quash by DCHA (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Rosen, David) (Entered: 03/02/2020)
316 MOTION for Extension of Time to Comply with Court Order [ECF No. 313] by UNITED STATES OF AMERICA (Attachments: # 1 Affidavit of Thomas Kress (supplemental))(Hair, Christopher) (Entered: 03/05/2020)
317 RESPONSE re 316 MOTION for Extension of Time to Comply with Court Order [ECF No. 313] filed by IVY BROWN, DONALD DUPREE, LARRY MCDONALD. (Attachments: # 1 Text of Proposed Order)(Gluckman, Todd) (Entered: 03/06/2020)
318 Memorandum in opposition to re 315 MOTION to Quash filed by IVY BROWN, DONALD DUPREE, LARRY MCDONALD. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (DCHAs Objections to Plaintiffs Subpoena), # 3 Exhibit 2 (Affidavit of Patrick A. Sheldon), # 4 Exhibit 3 (February 6, 2020, subpoena), # 5 Exhibit 4 (Affidavit of Service for February 6, 2020, subpoena), # 6 Exhibit 5 (February 13, 2020, email to District), # 7 Exhibit 6 (February 14, 2020, subpoena), # 8 Exhibit 7 (Affidavit of Service of February 14, 2020, subpoena)), # 9 Exhibit 8 (February 14, 2020, email to District), # 10 Exhibit 9 (Defendants Supplemental Responses and Objections ), # 11 Exhibit 10 (January 21, 2020 Status Conference Transcript (excerpt)))(Bagby, Kelly) (Entered: 03/06/2020)
319 Cross MOTION to Enforce Subpoena to DCHA by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 (DCHAs Objections to Plaintiffs Subpoena), # 3 Exhibit 2 (Affidavit of Patrick A. Sheldon), # 4 Exhibit 3 (February 6, 2020, subpoena), # 5 Exhibit 4 (Affidavit of Service for February 6, 2020, subpoena), # 6 Exhibit 5 (February 13, 2020, email to District), # 7 Exhibit 6 (February 14, 2020, subpoena), # 8 Exhibit 7 (Affidavit of Service of February 14, 2020, subpoena), # 9 Exhibit 8 (February 14, 2020, email to District), # 10 Exhibit 9 (Defendants Supplemental Responses and Objections to Plaintiffs Second Set of Interrogatories), # 11 Exhibit 10 (January 21, 2020 Status Conference Transcript (excerpt)))(Bagby, Kelly) (Entered: 03/06/2020)
MINUTE ORDER granting in part 316 Motion for Extension of Time: Upon consideration of the motion and plaintiffs' response, it is hereby ORDERED that the Motion for Extension of Time is GRANTED IN PART. CMS shall produce to plaintiffs the requested Section Q data by March 16, 2020. Signed by Judge Ellen S. Huvelle on March 6, 2020. (lcav) (Entered: 03/06/2020)
Set/Reset Deadlines: Response to Cross Motions due by 3/13/2020. Replies due by 3/13/2020. (zgdf) (Entered: 03/09/2020)
MINUTE ORDER: It is hereby ORDERED that DCHA shall file its response to the plaintiffs' cross−motion to enforce and reply in support of its motion to quash by March 13, 2020. Signed by Judge Ellen S. Huvelle on March 9, 2020. (AG) (Entered: 03/09/2020)
320 RESPONSE re 319 Cross MOTION to Enforce Subpoena to DCHA filed by DCHA. (Attachments: # 1 Affidavit)(Rosen, David) (Entered: 03/13/2020)
321 MEMORANDUM OPINION AND ORDER denying 315 Motion to Quash; granting 319 Motion to Enforce. See order for details. Signed by Judge Ellen S. Huvelle on March 16, 2020. (AG) Modified on 3/17/2020, to make a correction. (zgdf). (Entered:

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03/16/2020)
MINUTE ORDER: This District Court's March 16, 2020 Standing Order 20−9, In re: Court Operations in Exigent Circumstances Created by the COVID−19 Pandemic, postpones all in−court matters scheduled from now until April 17, 2020, subject to any subsequent order by the presiding judge. In this case, the Court intends to proceed with the status conference presently set for March 30, 2020, but will determine at a later date whether the conference will be in person or by telephone or video conference. Signed by Judge Ellen S. Huvelle on March 17, 2020. (AG) (Entered: 03/17/2020)
322 NOTICE OF SUBSTITUTION OF COUNSEL by Toni Michelle Jackson on behalf of DISTRICT OF COLUMBIA Substituting for attorney Chad Copeland (Jackson, Toni) (Entered: 03/18/2020)
323 MOTION to Modify the Schedule to Account for the Coronavirus Emergency by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Exhibit 1 (Affidavit of Kelly Bagby, dated March 23, 2020), # 2 Exhibit 2 (Plaintiffs Letter to the Court, dated February 27, 2020), # 3 Exhibit 3 (Coronavirus COVID−19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University), # 4 Exhibit 4 (Situation Summary, CDC), # 5 Exhibit 5 (Coronavirus Disease 2019 (COVID 19): Are You at Higher Risk for Severe Illness?, CDC), # 6 Exhibit 6 (Families Concerned About Loved Ones in Nursing Homes, Assisted Living, AARP, March 19, 2020), # 7 Exhibit 7 (Its Time to Get Serious About Social Distancing. Heres How, NPR, March 17, 2020), # 8 Exhibit 8 (The Presidents Coronavirus Guidelines for America, 15 Days to Slow the Spread, White House and CDC), # 9 Exhibit 9 (Coronavirus can persist in air for hours and on surfaces for days: study, Reuters, March 17, 2020), # 10 Exhibit 10 (D.D.C. Standing Order 20−9, dated March 16, 2020), # 11 Exhibit 11 (Remarks by President Trump in Address to the Nation, dated March 11, 2020), # 12 Exhibit 12 (Preparing for COVID−19: Long−term Care Facilities, Nursing Homes, CDC), # 13 Exhibit 13 (Infected staff member at Southeast D.C. hospital identified as emergency room doctor, Washington Post, March 16, 2020), # 14 Exhibit 14 (CMS Announces New Measures to Protect Nursing Home Residents from COVID−19, CMS, March 13, 2020), # 15 Exhibit 15 (AHCA President Mark Parkinson For the Elderly, COVID−19 is an Almost Perfect Killing Machine, Home Health Care News, March 11, 2020), # 16 Exhibit 16 (Coronavirus cases surge at nursing homes as workers battle almost perfect killing machine, March 21, 2020, Washington Post), # 17 Exhibit 17 (Coronavirus: The Latest Court Closures and Restrictions), # 18 Exhibit 18 (DC Superior Court Shuts Down Except for Absolutely Essential Proceedings After Marshall Tests Positive for COVID−19, Mar. 18, 2020), # 19 Exhibit 19 (D.D.C. Standing Order No. 20−8, dated March 13, 2020), # 20 Text of Proposed Order)(Bagby, Kelly) (Entered: 03/23/2020)
324 Joint STATUS REPORT by DISTRICT OF COLUMBIA. (Kennedy, Scott) (Entered: 03/23/2020)
MINUTE ORDER re 323 plaintiffs' MOTION to Modify the Schedule to Account for the Coronavirus Emergency: It is hereby ORDERED that defendant shall file a brief response to plaintiffs' motion to modify the schedule by 12:00 noon on Friday, March 27, 2020; it is further ORDERED that defendant's response should address plaintiffs' objection to the three witnesses recently identified by defendant. Signed by Judge Ellen S. Huvelle on March 24, 2020. (AG) (Entered: 03/24/2020)
Set/Reset Deadlines: Response to the Motion to modify schedule by 3/27/2020. (zgdf) (Entered: 03/25/2020)
Set/Reset Hearings: Video/Telephone Conference set for 3/30/2020 at 2:00 PM before Judge Ellen S. Huvelle. (zgdf) (Entered: 03/26/2020)
325 RESPONSE re 323 MOTION to Modify the Schedule to Account for the Coronavirus Emergency filed by DISTRICT OF COLUMBIA. (Risher, Conrad) (Entered: 03/27/2020)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held on 3/30/2020. (Court Reporter Lisa Griffith) (zgdf) (Entered: 03/30/2020)

03/31/2020 04/09/2020 04/09/2020
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04/17/2020 04/21/2020 04/22/2020

326 ORDER granting 323 plaintiffs' Motion to Modify the schedule in light of the coronavirus emergency, vacating existing deadlines, including the trial date of June 8, 2020, and setting new deadlines. See order for details. Signed by Judge Ellen S. Huvelle on March 31, 2020. (AG) (Entered: 03/31/2020)
327 Consent MOTION for Extension of Time to Supplement Discovery Responses by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order)(Kennedy, Scott) (Entered: 04/09/2020)
MINUTE ORDER granting 327 Consent Motion for Extension of Time: Upon consideration of defendant's Consent Motion for Extension of Time to Supplement Discovery Responses, plaintiffs' consent, and the entire record, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that the District of Columbia shall provide plaintiffs with any missing ADRC case files and any missing information with respect to its response to Interrogatory 18 and file a notice on ECF indicating that it has done so by April 17, 2020. Signed by Judge Ellen S. Huvelle on April 9, 2020. (AG) (Entered: 04/09/2020)
Set/Reset Deadlines: Notice by 4/17/2020. (zgdf) (Entered: 04/10/2020)
328 Unopposed MOTION to Compel Five Nursing Facilities to Produce Documents in Response to Plaintiffs' Subpoenas by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Exhibit 1 (Subpoena to Deanwood Rehabilitation and Wellness Center), # 2 Exhibit 2 (Subpoena to Unique Rehabilitation and Health Center), # 3 Exhibit 3 (Subpoena to Inspire Rehabilitation and Health Center), # 4 Exhibit 4 (Subpoena to Serenity Rehabilitation and Health Center), # 5 Exhibit 5 (Subpoena to Jeanne Jugan Residence), # 6 Exhibit 6 (Excerpt of Transcript of March 30, 2020, Status Conference), # 7 Text of Proposed Order, # 8 Certificate of Service)(Bagby, Kelly) (Entered: 04/10/2020)
329 ORDER granting 328 plaintiffs' unopposed Motion to Compel. Signed by Judge Ellen S. Huvelle on April 10, 2020. (AG) (Entered: 04/10/2020)
330 NOTICE OF SUBSTITUTION OF COUNSEL by Pamela A. Disney on behalf of All Defendants Substituting for attorney Scott Kennedy (Disney, Pamela) (Entered: 04/16/2020)
331 Unopposed MOTION for Extension of Time to for Jeanne Jugan Residence and Deanwood Rehabilitation and Wellness Center to Comply with Plaintiffs Subpoenas and this Courts Order (ECF 329) by IVY BROWN, DONALD DUPREE, LARRY MCDONALD (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Bagby, Kelly) (Entered: 04/16/2020)
MINUTE ORDER granting 331 plaintiffs' unopposed Motion for Extension of Time: Upon consideration of Plaintiffs' Unopposed Motion for an Extension of Time for Jeanne Jugan Residence and Deanwood Rehabilitation and Wellness Center to Comply with Plaintiffs' Subpoenas and this Court's Order (ECF 329), dated April 16, 2020, it is hereby ORDERED that Plaintiffs' motion is GRANTED; it is further ORDERED that Jeanne Jugan Residence shall produce the requested documents by May 20, 2020, unless the Residence and Plaintiffs agree that a later date for production is necessary; and it is further ORDERED that Deanwood Rehabilitation and Wellness Center shall produce the requested documents by April 27, 2020, unless the Residence and Plaintiffs agree that a later date for production is necessary. SO ORDERED. Signed by Judge Ellen S. Huvelle on April 17, 2020. (AG) (Entered: 04/17/2020)
332 NOTICE of Production by DISTRICT OF COLUMBIA re 326 Order on Motion to Modify, (Risher, Conrad) (Entered: 04/17/2020)
333 Consent MOTION for Extension of Time to Serve Expert Report and for the Parties to File Legal Memoranda by DISTRICT OF COLUMBIA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Risher, Conrad) (Entered: 04/21/2020)
MINUTE ORDER granting 333 Consent Motion for Extension of Time: Upon consideration of defendant's consent motion for extensions of time, it is hereby ORDERED that the Motion is GRANTED; it is further ORDERED that defendant's expert report is due June 15, 2020; and it is further ORDERED that the Parties' legal memoranda are due May 4, 2020. Signed by Judge Ellen S. Huvelle on April 22, 2020.

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(AG) (Entered: 04/22/2020)
Set/Reset Deadlines: Defendant's Expert Report due by 6/15/2020. Parties' legal memoranda due by 5/4/2020. (zgdf) (Entered: 04/22/2020)
334 MEMORANDUM by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit)(Disney, Pamela) (Entered: 05/04/2020)
335 MEMORANDUM by IVY BROWN, DONALD DUPREE, LARRY MCDONALD. (Attachments: # 1 Exhibit 1 (New York Second Amended Order), # 2 Exhibit 2 (New York Supplement), # 3 Exhibit 3 (Colbert Consent Decree), # 4 Exhibit 4 (Colbert Amendment), # 5 Exhibit 5 (Amanda D. Settlement Agreement), # 6 Exhibit 6 (Laguna Honda Settlement Agreement))(Bagby, Kelly) (Entered: 05/04/2020)
MINUTE ORDER: It is hereby ORDERED that the parties shall file a joint status report by June 26, 2020, which should include a proposed schedule for depositions and any other outstanding discovery. Signed by Judge Ellen S. Huvelle on June 5, 2020. (AG) (Entered: 06/05/2020)
Set/Reset Deadlines: Status Report due by 6/26/2020 (zgdf) (Entered: 06/05/2020)