CASREF,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01901−EGS−GMH

M.J. et al v. DISTRICT OF COLUMBIA et al Assigned to: Judge Emmet G. Sullivan Referred to: Magistrate Judge G. Michael Harvey Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 08/14/2018 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

M.J. by and through her next friend J.J. TERMINATED: 02/25/2020

represented by Alice Y. Abrokwa NATIONAL CENTER FOR YOUTH LAW 1313 L Street, NW Suite 130 Washington, DC 20005 (202) 868−4788 Email: aabrokwa@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Schiffman SCHULTE ROTH & ZABEL LLP 901 15th Street, NW Suite 800 Washington, DC 20005 (202) 729−7461 Fax: (202) 730−4520 Email: howard.schiffman@srz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Thomas Mitchell SCHULTE ROTH & ZABEL LLP 901 15th Street, NW Suite 800 Washington, DC 20005 (202) 729−7470 Fax: (202) 730−4520 Email: jason.mitchell@srz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lewis L. Bossing , Jr. BAZELON CENTER FOR MENTAL HEALTH LAW 1090 Vermont Avenue NW Washington, DC 20005 202−467−5730 Email: lewisb@bazelon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra J. Bernstein UNIVERSITY LEGAL SERVICES, INC. 220 I Street, NE Suite 130 Washington, DC 20002−4362 (202) 547−0198 Fax: 202−547−2662 Email: sbernstein@uls−dc.org

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis Javier Nugent DISABILITY RIGHTS DC AT UNIVERSITY LEGAL SERVICES 220 I Street, NE Suite 130 Washington, DC 20002 (202) 547−0198 Email: fnugent@uls−dc.org TERMINATED: 09/19/2019
Ira A. Burnim BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW Suite 1212 Washington, DC 20005−5002 (202) 467−5730 x1320 Fax: 202−223−0409 Email: irabster@gmail.com ATTORNEY TO BE NOTICED
Jeremy Bachrach Siegfried SCHULTE ROTH & ZABEL LLP 901 15th Street, NW Suite 800 Washington, DC 20005 (202) 729−7486 Fax: (202) 730−4520 Email: Jeremy.Siegfried@srz.com TERMINATED: 08/26/2019
Jessica Vander Kooi Den Houter UNIVERSITY LEGAL SERVICES, INC. 220 I Street, NE Suite 130 Washington, DC 20002 (202) 547−0198 x142 Email: jdenhouter@uls−dc.org TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Mark J Murphy BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW Washington, DC 20005−5002 202−467−5730 ext.1323 Email: markm@bazelon.org TERMINATED: 07/16/2019
Mary Nell McGarity Clark UNIVERSITY LEGAL SERVICES 220 I Street, NE Suite 130 Washington, DC 20002 (202) 547−0198 Fax: (202) 547−2662 Email: mclark@uls−dc.org ATTORNEY TO BE NOTICED
Seth Michael Galanter NATIONAL CENTER FOR YOUTH

Plaintiff L.R. by and through her next friend D.M.
Plaintiff

LAW 1313 L Street NW Suite 130 Washington, DC 20005 (202) 288−8188 Email: sgalanter@youthlaw.org ATTORNEY TO BE NOTICED
represented by Alice Y. Abrokwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Schiffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Thomas Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis L. Bossing , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Bernstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis Javier Nugent (See above for address) TERMINATED: 09/19/2019
Ira A. Burnim (See above for address) ATTORNEY TO BE NOTICED
Jeremy Bachrach Siegfried (See above for address) TERMINATED: 08/26/2019
Jessica Vander Kooi Den Houter (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Mark J Murphy (See above for address) TERMINATED: 07/16/2019
Mary Nell McGarity Clark (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) ATTORNEY TO BE NOTICED

D.M.
Plaintiff J.J. on behalf of themselves and all others similarly situated

represented by Alice Y. Abrokwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Schiffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Thomas Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis L. Bossing , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Bernstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis Javier Nugent (See above for address) TERMINATED: 09/19/2019
Ira A. Burnim (See above for address) ATTORNEY TO BE NOTICED
Jeremy Bachrach Siegfried (See above for address) TERMINATED: 08/26/2019
Jessica Vander Kooi Den Houter (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Mark J Murphy (See above for address) TERMINATED: 07/16/2019
Mary Nell McGarity Clark (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) ATTORNEY TO BE NOTICED
represented by Alice Y. Abrokwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Schiffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
UNIVERSITY LEGAL SERVICES, INC.

Jason Thomas Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis L. Bossing , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra J. Bernstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis Javier Nugent (See above for address) TERMINATED: 09/19/2019
Ira A. Burnim (See above for address) ATTORNEY TO BE NOTICED
Jeremy Bachrach Siegfried (See above for address) TERMINATED: 08/26/2019
Jessica Vander Kooi Den Houter (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Mark J Murphy (See above for address) TERMINATED: 07/16/2019
Mary Nell McGarity Clark (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) ATTORNEY TO BE NOTICED
represented by Alice Y. Abrokwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Schiffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Thomas Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lewis L. Bossing , Jr. (See above for address) LEAD ATTORNEY

V. Defendant DISTRICT OF COLUMBIA

ATTORNEY TO BE NOTICED
Sandra J. Bernstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis Javier Nugent (See above for address) TERMINATED: 09/19/2019
Ira A. Burnim (See above for address) ATTORNEY TO BE NOTICED
Jeremy Bachrach Siegfried (See above for address) TERMINATED: 08/26/2019
Jessica Vander Kooi Den Houter (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Mark J Murphy (See above for address) TERMINATED: 07/16/2019
Mary Nell McGarity Clark (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) ATTORNEY TO BE NOTICED
represented by Honey C. Morton OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6591 Fax: (202) 741−5908 Email: honey.morton@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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: 12/28/2018

Defendant MURIEL BOWSER Mayor, in her official capacity
Defendant TANYA A. ROYSTER Director, District of Columbia Department of Behavioral Health, in her official capacity

Gregory Martin Cumming U.S. DEPARTMENT OF JUSTICE Public Interest Division/Civil Enforcement Section 150 M Street, N.E. Suite 2.900 Washington, DC 20002 202−598−0414 Email: gregory.cumming@usdoj.gov TERMINATED: 02/24/2020
Mateya Beth Kelley OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA Public Interest Division, Equity Section 441 Fourth St, NW Suite 600 South Washington, DC 20001 (202) 274−7854 Email: Mateya.Kelley@dc.gov ATTORNEY TO BE NOTICED
Micah Ian Bluming OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA Public Interest Division, Equity Section 441 4th Street NW Suite 630 South Washington, DC 20001 (202) 724−7272 Fax: (202) 730−1833 Email: micah.bluming@dc.gov ATTORNEY TO BE NOTICED
represented by Honey C. Morton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda J. Montee (See above for address) TERMINATED: 12/28/2018
Gregory Martin Cumming (See above for address) TERMINATED: 02/24/2020
Mateya Beth Kelley (See above for address) ATTORNEY TO BE NOTICED
Micah Ian Bluming (See above for address) ATTORNEY TO BE NOTICED
represented by Honey C. Morton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
WAYNE TURNAGE Director, District of Columbia Department of Health Care Finance, in his official capacity (via the Office of the Attorney General)

Amanda J. Montee (See above for address) TERMINATED: 12/28/2018
Gregory Martin Cumming (See above for address) TERMINATED: 02/24/2020
Mateya Beth Kelley (See above for address) ATTORNEY TO BE NOTICED
Micah Ian Bluming (See above for address) ATTORNEY TO BE NOTICED
represented by Honey C. Morton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda J. Montee (See above for address) TERMINATED: 12/28/2018
Gregory Martin Cumming (See above for address) TERMINATED: 02/24/2020
Mateya Beth Kelley (See above for address) ATTORNEY TO BE NOTICED
Micah Ian Bluming (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/14/2018 08/14/2018
08/14/2018
08/14/2018
08/14/2018 08/17/2018 08/17/2018

# Docket Text
1 MOTION for Leave to Allow Parents to Proceed Anonymously by D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (jf) (Entered: 08/17/2018)
2 MEMORANDUM & ORDER granting 1 MOTION for Leave to Allow Parents to Proceed Anonymously. Signed by Chief Judge Beryl A. Howell on 08/14/2018. (see order for full details) (jf) (Entered: 08/17/2018)
3 COMPLAINT against MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE ( Filing fee $ 400, receipt number 4616094145) filed by D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Attachments: # 1 Civil Cover Sheet)(jf) (Additional attachment(s) added on 8/17/2018: # 2 Exhibit Sealed Document) (jf). (Entered: 08/17/2018)
4 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by UNIVERSITY LEGAL SERVICES, INC. (jf) (Entered: 08/17/2018)
SUMMONS Not Issued as to All Defendants (jf) (Entered: 08/20/2018)
5 NOTICE of Appearance by Mary Nell McGarity Clark on behalf of All Plaintiffs (Clark, Mary Nell) (Entered: 08/17/2018)
6 NOTICE of Appearance by Jason Thomas Mitchell on behalf of All Plaintiffs (Mitchell, Jason) (Entered: 08/17/2018)

08/17/2018 08/17/2018
08/20/2018
08/20/2018 08/20/2018 08/21/2018 08/21/2018 08/27/2018 08/29/2018
08/29/2018 08/29/2018 08/29/2018 08/29/2018 09/04/2018
09/05/2018
09/05/2018 10/03/2018 10/04/2018

7 NOTICE of Appearance by Howard Schiffman on behalf of All Plaintiffs (Schiffman, Howard) (Entered: 08/17/2018)
8 REQUEST FOR SUMMONS TO ISSUE re 3 Complaint, filed by D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. Related document: 3 Complaint, filed by D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC..(Mitchell, Jason) (Entered: 08/17/2018)
9 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 08/20/18. (Attachment: # 1 Exhibit 1) (mac) (Entered: 08/20/2018)
10 NOTICE of Appearance by Alice Y. Abrokwa on behalf of All Plaintiffs (Abrokwa, Alice) (Entered: 08/20/2018)
11 NOTICE of Appearance by Ira A. Burnim on behalf of All Plaintiffs (Burnim, Ira) (Entered: 08/20/2018)
12 SUMMONS (4) Issued Electronically as to MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE, District of Columbia Attorney General, and the District of Columbia Mayor. (jf) (Entered: 08/21/2018)
13 NOTICE of Appearance by Seth Michael Galanter on behalf of All Plaintiffs (Galanter, Seth) (Entered: 08/21/2018)
14 NOTICE of Appearance by Amanda J. Montee on behalf of All Defendants (Montee, Amanda) (Entered: 08/27/2018)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia Attorney General 8/22/2018. Answer due for ALL D.C. DEFENDANTS by 9/12/2018. (Mitchell, Jason) (Entered: 08/29/2018)
16 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on the Mayor of the District of Columbia. Date of Service Upon the Mayor for the District of Columbia on 8/22/2018. (Mitchell, Jason) (Entered: 08/29/2018)
17 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TANYA A. ROYSTER served on 8/22/2018 (Mitchell, Jason) (Entered: 08/29/2018)
18 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WAYNE TURNAGE served on 8/22/2018 (Mitchell, Jason) (Entered: 08/29/2018)
19 NOTICE of Appearance by Gregory Martin Cumming on behalf of All Defendants (Cumming, Gregory) (Entered: 08/29/2018)
20 MOTION for Extension of Time to File Answer re 3 Complaint, by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 09/04/2018)
MINUTE ORDER granting 20 Defendants' unopposed motion for an extension of time to respond to Plaintiffs' complaint. Defendants shall respond to Plaintiffs' complaint by no later than October 3, 2018. Signed by Judge Emmet G. Sullivan on 9/5/2018. (lcegs2) (Entered: 09/05/2018)
Set/Reset Deadlines: Defendants Response To Plaintiffs' Complaint due by 10/3/2018. (mac) (Entered: 09/05/2018)
21 MOTION to Dismiss by DISTRICT OF COLUMBIA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Montee, Amanda) (Entered: 10/03/2018)
22 MOTION for Extension of Time to File Motion For Class Certification, And For An Order Requiring The Parties To Meet And Confer And Submit A Proposed Scheduling Order by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Text of Proposed Order)(Bossing, Lewis). Added MOTION for Order on 10/4/2018 (jf). (Entered: 10/04/2018)

10/10/2018 10/11/2018 10/11/2018 10/11/2018 10/18/2018 10/22/2018 10/24/2018 10/29/2018
10/30/2018 10/31/2018

23 Consent MOTION for Extension of Time to File Response/Reply as to 21 MOTION to Dismiss by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Text of Proposed Order)(Bossing, Lewis) (Entered: 10/10/2018)
MINUTE ORDER granting 23 plaintiffs' consent motion for extension of time. Plaintiffs shall respond to defendants' motion to dismiss by no later than October 31, 2018, and defendants shall file any reply in support of their motion to dismiss by no later than November 16, 2018. Signed by Judge Emmet G. Sullivan on 10/11/2018. (lcegs2) (Entered: 10/11/2018)
24 NOTICE of Change of Address by Howard Schiffman (Schiffman, Howard) (Entered: 10/11/2018)
Set/Reset Deadlines: Plaintiffs Response To Defendants' Motion To Dismiss due by 10/31/2018. Defendants Reply In Support Of Their Motion To Dismiss due by 11/16/2018. (mac) (Entered: 10/11/2018)
25 Memorandum in opposition to re 22 MOTION for Extension of Time to File Motion For Class Certification, And For An Order Requiring The Parties To Meet And Confer And Submit A Proposed Scheduling Order MOTION for Order Requiring The Parties To Meet And Confer And Submit A Proposed Scheduling Order filed by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE. (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 10/18/2018)
26 NOTICE of Appearance by Jessica Vander Kooi Den Houter on behalf of All Plaintiffs (Den Houter, Jessica) (Entered: 10/22/2018)
27 REPLY to opposition to motion re 22 MOTION for Extension of Time to File Motion For Class Certification, And For An Order Requiring The Parties To Meet And Confer And Submit A Proposed Scheduling Order MOTION for Order Requiring The Parties To Meet And Confer And Submit A Proposed Scheduling Order filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Bossing, Lewis) (Entered: 10/24/2018)
MINUTE ORDER granting 22 Motion for Extension of Time File Motion For Class Certification; and granting in part and denying in part 22 Motion for Order. Defendants have consented to plaintiffs' motion to stay plaintiffs' obligation to file a motion for class certification until a date after fact discovery is scheduled, but have declined to discuss the scope or date of any discovery. Therefore, the parties have not discussed how discovery might be tailored in this case to the class certification decision. In the absence of a more definite explanation of the scope of discovery the plaintiffs seek to take, the Court cannot consider whether they have demonstrated good cause to support that discovery. Accordingly, the Court DENIES plaintiffs request for an Order directing the parties to file a scheduling order that encompasses discovery. The Court GRANTS the plaintiffs' request for an Order for an extension of time to file the motion for class certification and an Order directing the parties to meet and confer. The deadline to file a motion for class certification is hereby STAYED. The parties are directed to meet and confer by no later than November 13, 2018. If the parties agree on the scope of discovery limited to class certification issues, the parties shall file a proposed scheduling order by no later than November 16, 2018. If the parties cannot agree, plaintiffs may file a motion for expedited discovery. If the plaintiffs file a motion for expedited discovery they must provide an explanation of the precise discovery they seek to take, including an explanation of how that discovery would be limited to ensure that it does not become full discovery on the merits of their claims, along with an explanation of how the good cause they seek to show supports the taking of that specific discovery. Signed by Judge Emmet G. Sullivan on 10/29/2018. (lcegs2) (Entered: 10/29/2018)
Set/Reset Deadlines: Parties Meet and Confer by 11/13/2018. Proposed Scheduling Order due by 11/16/2018. (mac) (Entered: 10/30/2018)
28 NOTICE of Appearance by Jeremy Bachrach Siegfried on behalf of D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Siegfried, Jeremy) (Entered: 10/31/2018)

10/31/2018 10/31/2018
11/02/2018 11/16/2018 11/16/2018 12/10/2018 12/20/2018
12/27/2018 12/28/2018 01/04/2019 04/04/2019 06/13/2019 06/13/2019 07/10/2019 07/16/2019 07/16/2019 07/25/2019 07/25/2019 07/25/2019

29 Memorandum in opposition to re 21 MOTION to Dismiss filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Attachments: # 1 Exhibit A)(Mitchell, Jason) (Entered: 10/31/2018)
30 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Declaration of J.J., # 3 Declaration of Jane Brown, # 4 Text of Proposed Order)(Mitchell, Jason) (Entered: 10/31/2018)
31 NOTICE of Appearance by Mark J Murphy on behalf of All Plaintiffs (Murphy, Mark) (Entered: 11/02/2018)
32 NOTICE of Compliance with October 29, 2018 Order by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. re Order on Motion for Extension of Time to,,,,,,,, Order on Motion for Order,,,,,,, (Bossing, Lewis) (Entered: 11/16/2018)
33 REPLY to opposition to motion re 21 MOTION to Dismiss filed by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE. (Cumming, Gregory) (Entered: 11/16/2018)
34 MOTION to Expedite Discovery by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Text of Proposed Order)(Bossing, Lewis) (Entered: 12/10/2018)
35 Memorandum in opposition to re 34 MOTION to Expedite Discovery filed by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE. (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 12/20/2018)
36 REPLY to opposition to motion re 34 MOTION to Expedite Discovery filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Bossing, Lewis) (Entered: 12/27/2018)
37 NOTICE OF SUBSTITUTION OF COUNSEL by Mateya Beth Kelley on behalf of All Defendants Substituting for attorney Amanda J. Montee (Kelley, Mateya) (Entered: 12/28/2018)
38 NOTICE of Appearance by Sandra J. Bernstein on behalf of All Plaintiffs (Bernstein, Sandra) (Entered: 01/04/2019)
39 NOTICE of Appearance by Francis Javier Nugent on behalf of All Plaintiffs (Nugent, Francis) (Entered: 04/04/2019)
40 REDACTED DOCUMENT− Declaration to 21 MOTION to Dismiss of J.J. by D.M., J.J., L.R., M.J.. (Mitchell, Jason) (Entered: 06/13/2019)
41 REDACTED DOCUMENT− Declaration to 21 MOTION to Dismiss of Jane Brown by D.M., J.J., L.R., M.J.. (Mitchell, Jason) (Entered: 06/13/2019)
42 MOTION to Withdraw by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Murphy, Mark) (Entered: 07/10/2019)
MINUTE ORDER granting 42 motion to withdraw. Mark J. Murphy is no longer an attorney of record in this case. Signed by Judge Emmet G. Sullivan on 7/16/2019. (lcegs2) (Entered: 07/16/2019)
43 NOTICE OF SUPPLEMENTAL AUTHORITY by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Mitchell, Jason) (Entered: 07/16/2019)
44 ORDER denying 21 motion to dismiss. Signed by Judge Emmet G. Sullivan on 7/25/2019. (lcegs2) (Entered: 07/25/2019)
45 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 7/25/2019. (lcegs2) (Entered: 07/25/2019)
MINUTE ORDER finding as moot 34 motion to expedite. In light of 44 the Court's Order denying defendants' motion to dismiss, the Court finds as moot plaintiffs' motion to expedite discovery. Signed by Judge Emmet G. Sullivan on 7/25/2019. (lcegs2) (Entered: 07/25/2019)

07/25/2019 07/26/2019 08/01/2019 08/07/2019
08/07/2019
08/07/2019 08/08/2019 08/08/2019 08/15/2019 08/22/2019 08/26/2019 09/19/2019 10/22/2019 10/24/2019 10/25/2019 11/04/2019
11/04/2019

MINUTE ORDER directing the parties to file a joint status report with a recommendation for further proceedings by no later than August 1, 2019. Signed by Judge Emmet G. Sullivan on 7/25/2019. (lcegs2) (Entered: 07/25/2019)
Set/Reset Deadlines: Joint Status Report due by 8/1/2019. (mac) (Entered: 07/26/2019)
46 Joint STATUS REPORT by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Mitchell, Jason) (Entered: 08/01/2019)
47 Consent MOTION for Extension of Time to File Answer re 3 Complaint, by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Cumming, Gregory) (Entered: 08/07/2019)
MINUTE ORDER. In light of 46 the parties' joint status report, the parties are directed to file a further status report and a proposed joint scheduling order by no later than August 22, 2019. Signed by Judge Emmet G. Sullivan on 8/7/2019. (lcegs2) (Entered: 08/07/2019)
MINUTE ORDER granting 47 defendants' motion for extension of time. Defendants shall file an answer to plaintiffs' complaint by no later than August 15, 2019. Signed by Judge Emmet G. Sullivan on 8/7/2019. (lcegs2) (Entered: 08/07/2019)
Set/Reset Deadlines: Further Status Report due by 8/22/2019. (mac) (Entered: 08/08/2019)
Set/Reset Deadlines: Defendant Answer To Plaintiffs' Complaint due by 8/15/2019. (mac) (Entered: 08/08/2019)
48 ANSWER to 3 Complaint, with Jury Demand by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE.(Cumming, Gregory) (Entered: 08/15/2019)
49 MEET AND CONFER STATEMENT. (Attachments: # 1 Plaintiff's Proposed Scheduling Order, # 2 Defendant's Proposed Scheduling Order)(Mitchell, Jason) (Entered: 08/22/2019)
50 NOTICE OF WITHDRAWAL OF APPEARANCE as to D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. Attorney Jeremy Bachrach Siegfried terminated. (Siegfried, Jeremy) (Entered: 08/26/2019)
51 NOTICE OF WITHDRAWAL OF APPEARANCE as to D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. Attorney Francis Javier Nugent terminated. (Nugent, Francis) (Entered: 09/19/2019)
52 NOTICE of Appearance by Micah Ian Bluming on behalf of All Defendants (Bluming, Micah) (Entered: 10/22/2019)
53 Joint MOTION for Protective Order by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order With Exhibit A)(Mitchell, Jason) (Entered: 10/24/2019)
54 STIPULATED PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal Signed by Judge Emmet G. Sullivan on 10/24/19. (mac) (Entered: 10/25/2019)
MINUTE ORDER. Upon consideration of the 49 parties' proposed scheduling orders, the following schedule shall govern these proceedings: Fact discovery shall be limited to class certification issues and shall close on May 18, 2020. Plaintiffs shall file their motion for class certification by no later than March 9, 2020. Defendants shall file a response by no later than May 18, 2020. Plaintiffs shall file a reply by no later than June 15, 2020. Any rebuttal discovery shall be completed by no later than June 15, 2020. Signed by Judge Emmet G. Sullivan on 11/4/2019. (lcegs2) (Entered: 11/04/2019)
Set/Reset Deadlines: Fact Discovery due by 5/18/2020. Plaintiffs Motion For Class Certification due by 3/9/2020. Defendants Responses due by 5/18/2020. Plaintiffs Reply due by 6/15/2020. Rebuttal Discovery due by 6/15/2020. (mac) (Entered: 11/04/2019)

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02/21/2020 02/24/2020 02/25/2020 02/25/2020

55 MOTION to Compel Discovery by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A−Defendants Objections and Responses to Plaintiffs Second Set of Interrogatories, # 3 Text of Proposed Order)(Mitchell, Jason) (Entered: 01/21/2020)
56 MOTION to Withdraw M.J. as a Named Plaintiff by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Mitchell, Jason) (Entered: 01/30/2020)
57 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Declaration of J.J., # 3 Text of Proposed Order)(Mitchell, Jason) (Entered: 01/30/2020)
58 SEALED Declaration of J.J. re 56 MOTION to Withdraw M.J. as a Named Plaintiff filed by J.J., D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 02/03/2020)
59 Memorandum in opposition to re 55 MOTION to Compel Discovery filed by MURIEL BOWSER, DISTRICT OF COLUMBIA, TANYA A. ROYSTER, WAYNE TURNAGE. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Cumming, Gregory) (Entered: 02/04/2020)
60 REDACTED DOCUMENT− Declaration of J.J. to 56 MOTION to Withdraw M.J. as a Named Plaintiff by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Mitchell, Jason) (Entered: 02/05/2020)
61 REPLY to opposition to motion re 55 MOTION to Compel Discovery filed by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC.. (Mitchell, Jason) (Entered: 02/11/2020)
62 MOTION for Extension of Time to File the Motion for Class Certification and Related Deadlines by D.M., J.J., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Mitchell, Jason) (Entered: 02/20/2020)
MINUTE ORDER granting 62 Plaintiff's Consent Motion to Extend Time to File Their Motion for Class Certification and Related Deadlines. Plaintiffs shall file its Motion for Class Certification by no later than May 4, 2020; Defendants shall file its Opposition to Plaintiffs' Motion for Class Certification by no later than July 13, 2020; Fact discovery on class certification issues shall close on July 13, 2020; Plaintiffs shall file any Reply by no later than August 10, 2020; and Any rebuttal discovery related to class certification shall be completed by August 10, 2020. Signed by Judge Emmet G. Sullivan on 2/21/2020. (lcegs2) (Entered: 02/21/2020)
Set/Reset Deadlines: Plaintiffs Motion For Class Certification due by 5/4/2020. Defendants Opposition To Plaintiffs Motion For Class Certification due by 7/13/2020. Fact Discovery On Class Certification Issues Shall Close by 7/13/2020. Plaintiffs Reply due by 8/10/2020. Rebuttal Discovery Related To Class Certification Shall Be Completed by 8/10/2020. (mac) (Entered: 02/21/2020)
63 NOTICE OF SUBSTITUTION OF COUNSEL by Honey C. Morton on behalf of All Defendants Substituting for attorney Gregory M. Cumming (Morton, Honey) (Entered: 02/24/2020)
VACATED PURSUANT TO MINUTE ORDER FILED 4/6/2020.....MINUTE ORDER. Pursuant to Local Civil Rule 72.3(a)(3), the Court hereby refers 55 Plaintiff's pending MOTION to Compel Discovery to Magistrate Judge Harvey for a report and recommendation. Signed by Judge Emmet G. Sullivan on 2/25/2020. (lcegs2) Modified on 4/7/2020 (znmw). (Entered: 02/25/2020)
MINUTE ORDER granting as uncontested 56 PLAINTIFFS' MOTION TO WITHDRAW M.J. AS A NAMED PLAINTIFF in this case. M.J. is HEREBY WITHDRAWN as a plaintiff in this case. Signed by Judge Emmet G. Sullivan on 2/25/2020. (lcegs2) (Entered: 02/25/2020)

02/25/2020 02/28/2020 04/06/2020
04/06/2020
04/06/2020 04/08/2020 04/24/2020 04/27/2020
05/04/2020 07/01/2020

CASE DIRECTLY REFERRED to Magistrate Judge G. Michael Harvey for report and recommendation. (zsb) (Entered: 02/26/2020)
64 NOTICE of Change of Address by Lewis L. Bossing, Jr (Bossing, Lewis) (Entered: 02/28/2020)
MINUTE ORDER REFERRING 55 Plaintiff's pending MOTION to Compel Discovery. The Court hereby ORDERS that the parties' discovery disputes be referred to Magistrate Judge Harvey for resolution pursuant to Local Civil Rule 72.2. The Minute Order of February 25, 2020 is hereby VACATED. Signed by Judge Emmet G. Sullivan on 4/6/2020. (lcegs2) (Entered: 04/06/2020)
MINUTE ORDER STAYING briefing schedule. In view of the referral of 55 Plaintiff's pending MOTION to Compel Discovery to Magistrate Judge Harvey, the current briefing schedule before Judge Emmet G. Sullivan is hereby STAYED pending receipt of an Order. Signed by Judge Emmet G. Sullivan on 4/6/2020. (lcegs2) (Entered: 04/06/2020)
CASE DIRECTLY REFERRED to Magistrate Judge G. Michael Harvey for motions. (adh, ) (Entered: 04/07/2020)
Minute Order. Proceedings held before Magistrate Judge G. Michael Harvey:. Discovery Hearing set for 4/27/2020 at 12:00 PM before Magistrate Judge G. Michael Harvey. (lckt) (Entered: 04/08/2020)
Set/Reset Hearings: Motion To Compel Hearing set for 4/27/2020 at 12:00 PM in Telephonic/VTC before Magistrate Judge G. Michael Harvey. (zpt) (Entered: 04/24/2020)
Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephonic Motion Hearing held on 4/27/2020 re 55 MOTION to Compel filed by J.J., D.M., L.R., M.J., UNIVERSITY LEGAL SERVICES, INC. Matter under advisement by the Court. Court Reporter: Sara Wick. (zpt) (Entered: 04/28/2020)
65 NOTICE OF WITHDRAWAL OF APPEARANCE as to D.M., J.J., L.R., UNIVERSITY LEGAL SERVICES, INC.. Attorney Jessica Vander Kooi Den Houter terminated. (Den Houter, Jessica) (Entered: 05/04/2020)
66 MEMORANDUM OPINION AND ORDER granting in part and denying in part 55 Motion to Compel. Signed by Magistrate Judge G. Michael Harvey on 7/1/20. (lckt) (Entered: 07/01/2020)

 
 Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

M.J., by and through her next friend J.J., L.R., by and through her next friend D.M., on behalf of themselves and all others similarly situated; and
UNIVERSITY LEGAL SERVICES, INC., 220 I Street NE Suite 130 Washington, D.C. 20002,
Plaintiffs, v.
THE DISTRICT OF COLUMBIA, c/o Karl A. Racine Attorney General 441 4th Street NW Suite 630 South Washington, D.C. 20001;
MURIEL BOWSER, Mayor, in her official capacity,
John A. Wilson Building 1350 Pennsylvania Avenue NW Washington, D.C. 20004;
TANYA A. ROYSTER, Director, District of Columbia Department of Behavioral Health, in her official capacity,
64 New York Avenue NE, 3rd Floor Washington, D.C. 20002; and
WAYNE TURNAGE, Director, District of Columbia Department of Health Care Finance, in his official capacity (via the Office of the Attorney General),
Civil Litigation Division 441 4th StreetNW Washington, D.C. 20001,
Defendants.

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Assigned To : Sullivan, Emmet G. Assign. Date: 8/14/2018

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CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1.

Plaintiffs M.J. and L.R., 1 and the members ofthe Plaintiff class they represent

(collectively, "Plaintiff children"), are Medicaid-eligible children with mental health

disabilities who are needlessly institutionalized, or at serious risk of institutionalization,

because the District of Columbia and its officials (collectively, "Defendants") fail to

provide them medically necessary intensive community-based services ("ICBS"), as

required by federal law.

2. The Plaintiff children suffer dramatically curtailed life opportunities due to Defendants'

continuing, longstanding failure to satisfy federal laws requiring the District of Columbia

to provide medically necessary services that prevent unnecessary institutionalization.

These services are not only essential and effective, but it is well within the District's

capacity to provide the services.

3. Because of Defendants' failure to provide medically necessary intensive community-

based services, the Plaintiff children cycle unnecessarily in and out of institutions-

including psychiatric hospitals, psychiatric and other residential treatment facilities, the

District's detention centers, and group homes-to their detriment. When they return to

their families, homes, and communities, the Plaintiff children receive little or ineffective

follow-up community behavioral health services. It can take weeks or even months to get

an appointment from a community provider, and when services are finally delivered, they

are inadequate. Not surprisingly, the Plaintiff children and their families find themselves

1 Pursuant to Rule 5.2(a) ofthe Federal Rules of Civil Procedure and Rule 5.4(f) ofthe Local Rules of the U.S. District Court for the District of Columbia, the minor individual Plaintiffs are identified by their initials. Plaintiffs have filed a motion and accompanying memorandum requesting leave of the Court for their next friends to proceed anonymously.
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Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 3 of 21
in another crisis, and are institutionalized again or placed at serious risk of institutionalization. 4. The Plaintiff children need intensive community-based services to avoid institutionalization and improve their mental health conditions. As the U.S. Department of Justice has recognized, studies and programs across the country have shown that ICBS "effectively address the needs of children with mental illness while maintaining their connection to their families and communities," thereby "greatly reduc[ing] the rate of institutionalization and related costs while producing positive outcomes for children."2 5. Intensive community-based services, or ICBS, would make a critical difference in the lives of these children. With ICBS, the Plaintiff children could live in their own homes or in another family or foster home, make progress in school, and participate fully in community life. When denied ICBS, they are at high risk of doing poorly in school, becoming involved in the delinquency and criminal systems and, as they transition to adulthood, being unable to obtain a job or live independently. 6. This action is brought not only by the Plaintiff children but also by University Legal Services, Inc., the designated protection and advocacy program for individuals with disabilities in the District of Columbia that does business under the name Disability Rights DC at University Legal Services ("Disability Rights DC"). Disability Rights DC, among other activities, advocates for the rights of individuals with mental health disabilities. The named individual Plaintiffs and members of the Plaintiff class are constituents ofDisability Rights DC. Disability Rights DC is authorized under federal law to file lawsuits in its own right on behalf of its constituents. 42 U.S.C. § 10805(a)(l) 2 U.S. Dep't of Justice, West Virginia Children's Mental Health System Findings Letter, at 9 (Jun. I, 20 15), available at https://www.ada.gov/olmstead/documents/west_va_findings_ltr.pdf.
3

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(Protection and Advocacy for Individuals with Mental Illnesses ("PAlMI") Act); id. § 15043(a)(2)(A)(i) (Protection and Advocacy for Individuals with Developmental Disabilities ("PADD") Act). 7. For years, District families and advocates for the Plaintiff children, including Plaintiff Disability Rights DC, have urged the District to provide needed ICBS to children with mental health disabilities. In response to such advocacy, the District has sometimes provided limited and temporary services to individual youths. However, the District has never created a functioning system for delivering ICBS. Instead of providing legally required ICBS to the children who need them-which would result in better outcomes and less cost than unnecessary institutionalization-the District continues to operate a system designed to provide, at most, a limited array of services on a limited basis with limited effect. The children in the class require and are entitled to much more. 8. Over the course of several months this year Plaintiffs' counsel repeatedly raised concerns with the District regarding its failure to provide ICBS. The District has not acted to remedy the urgent and systemic failures that Plaintiffs' counsel have identified, and that are reflected in the experiences of the named individual Plaintiffs discussed below. The Plaintiff children simply cannot abide the status quo and have no recourse left but to sue. 9. Denying the Plaintiff children medically necessary ICBS violates Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12132 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and the Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), 1396d(r).
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10. Each named individual Plaintiff and Plaintiff class member has been and is being harmed because s/he has not received medically necessary intensive community-based services and is needlessly institutionalized or at serious risk of needless institutionalization. Defendants' reliance on unnecessary institutionalization and their denial of ICBS have caused and will continue to cause the Plaintiff children serious and irreparable harm. PARTIES
A. Plaintiffs 11. PlaintiffM.J. is a 14-year-old girl who resides in the District of Columbia and who has
been hospitalized multiple times due to her mental health disability. She is eligible for Medicaid. She was recently discharged from an institution in Georgia without adequate follow-up services. M.J. brings this action through her next friend, J.J. 12. Plaintiff L.R. is a 17-year-old girl with a mental health disability who is in the custody of the District of Columbia Department of Youth Rehabilitation Services ("DYRS"). She is eligible for Medicaid. She has been hospitalized multiple times and also frequently placed in residential treatment facilities, group homes, and detention facilities due to her mental health disability. L.R. brings this action through her next friend, D.M. 13. Each of the named individual Plaintiffs and all members of the Plaintiff class have a mental health disability by virtue of having a "serious emotional disturbance." 14. Under District law, a child has a "serious emotional disturbance" when (a) the child has a mental health condition and (b) that condition causes the child to have a functional impairment that-on an episodic, recurrent, or continuous basis-either substantially limits the child's functioning in family, school, or community activities; or limits the child from achieving or maintaining one or more developmentally appropriate social,
5

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 6 of 21
behavioral, cognitive, communicative, or adaptive skills.3 All such children are "individuals with a disability" and hence protected under the ADA and the Rehabilitation Act. 42 U.S.C. § 12102; 29 U.S.C. § 705(20)(B). 15. Plaintiff University Legal Services is an independent, non-profit corporation organized under the laws of the District of Columbia. It is the designated protection and advocacy program for individuals with disabilities for the District of Columbia that does business under the name Disability Rights DC at University Legal Services. Disability Rights DC is authorized under the PAlMI Act, 42 U.S.C. § 10801 et seq., and the PADD Act, 42 U.S.C. § 15041 et seq., to bring this action on behalf of the named individual Plaintiffs and members of the Plaintiff class, who are its constituents. B. Defendants 16. Defendant District of Columbia is a public entity covered by Title II of the ADA, 42 U.S.C. § 12131 et seq., and, as a participant in the federal Medicaid program, its agencies receive federal financial assistance through that and other federal programs. 17. Defendant Muriel Bowser, as Mayor of the District of Columbia, is the chief executive officer of the District, D.C. Code § 1-204.22, and is responsible for the District's compliance with federal law. ld. § 1-204.22(11). Defendant Bowser supervises the official conduct of all District administrative boards, offices, and agencies, including the Department of Health Care Finance and the Department ofBehavioral Health. Id. § 1-204.22(4). She appoints the directors ofthe Departments ofHealth Care Finance and
3 D.C. Mun. Regs. Tit. 22-A, § 1201.1 (2002); cf Substance Abuse & Mental Health Servs. Admin., Mental and Substance Use Disorders (Sept. 20, 2017) (similar federal definition), available at https://www.samhsa.gov/disorders.
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Behavioral Health. !d. §§ 7-771.04, 7-1141.03(1). Defendant Bowser is sued in her official capacity. 18. Defendant Tanya A. Royster is the Director of the District of Columbia Department of Behavioral Health ("DBH"), the District's mental health authority, responsible for the provision of publicly funded behavioral health services to District residents. D.C. Code §§ 7-1141.04(1), 1141.06(3). Defendant Royster supervises and directs DBH, which plans, develops, coordinates, and monitors the District's behavioral health system for children, id. § 7-1141.06, and is charged with maximizing federal funding to support behavioral health prevention and treatment services. !d. § 7-1141.06(5). Defendant Royster is sued in her official capacity. 19. Defendant Wayne Turnage is the Director of the District of Columbia Department of Health Care Finance ("DHCF"), the District agency responsible for the administration of the District's Medicaid program. D.C. Code§ 7-771.07. Defendant Turnage supervises and directs DHCF's operations, including receiving, managing, and disbursing Medicaid funds for services to eligible District children, including the Plaintiff children. !d. § 7-771.05. Defendant Turnage is responsible for ensuring that the District's Medicaid program operates in compliance with federal law. !d. §§ 7-771.07(1), (3). Defendant Turnage is sued in his official capacity.
JURISDICTION AND VENUE 20. This action is brought under the ADA, the Rehabilitation Act, and the Medicaid Act
(through 42 U.S.C. § 1983) to redress the ongoing deprivati_on of rights guaranteed by federal statutes. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Declaratory and injunctive relief are available pursuant to 28 U.S.C. §§ 2201-02.
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21. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district, and because all Defendants named herein maintain offices in this district and are responsible for enforcing in this district the laws relevant to this litigation. CLASS ACTION ALLEGATIONS
22. Plaintiffs M.J. and L.R. bring this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and the following class: All Medicaideligible District of Columbia children who now or in the future are under the age of 21, have a mental health disability, are not receiving medically necessary intensive community-based services, and are unnecessarily institutionalized or at serious risk of institutionalization. 4
23. The Plaintiff class is so numerous that joinder of all members is impracticable. There are thousands of Medicaid-eligible children in the District with a "serious emotional disturbance."5 In fiscal year 2017, over 300 of these children were admitted to a psychiatric hospital or placed in a psychiatric residential treatment facility. Over 100 of them had multiple admissions. Most ofthese admissions could have been avoided had the children timely received intensive community-based services.
24. There are questions of law and fact common to the claims of all class members, including (a) whether Defendants' failure to provide services to the Plaintiff children in the most
4 For sake of convenience, this Complaint refers to all class members, Medicaid-eligible persons under the age of 21, as "children." 5 District of Columbia Dep 't of Behav. Health, Mental Health and Substance Use Report on Expenditures and Services (MHEASURES), at 3, 21 (Jan. 2017), available at https://dbh.dc.gov/sites/default/files/dc/sites/dmh/publication/attachments/MHEASURES%20Jan uary%202017 _O.pdf.
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integrated setting violates the ADA and the Rehabilitation Act; and (b) whether Defendants' failure to provide medically necessary ICBS to the Plaintiff children violates the EPSDT provisions of the Medicaid Act. 25. The claims of Plaintiffs M.J. and L.R. are typical ofthe claims of the class. As a result of Defendants' policies, practices, procedures, acts, and omissions, both the named individual Plaintiffs and the Plaintiff class members they represent are denied medically necessary ICBS to treat their mental health disabilities and are currently unnecessarily institutionalized or at serious risk of institutionalization. 26. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in disability rights laws, Medicaid, and federal class action litigation. Counsel have the legal knowledge and the resources to fairly and adequately represent the interests of all class members in this action. 27. Defendants' policies, practices, procedures, acts, and omissions harm all class members. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
STATUTORY BACKGROUND A. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act 28. Under Title II of the ADA, "no qualified individual with a disability shall, by reason of
such disability, be excluded from participating in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; 28 C.P.R.§ 35.130. 29. Title II of the ADA prohibits unnecessary institutionalization, and requires public entities to administer services, programs, and activities in the most integrated setting appropriate
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to the needs of qualified individuals with disabilities. Olmsteadv. L.C., 527 U.S. 581 (1999) (interpreting Title II); see also 28 C.P.R.§ 35.130(d) ("most integrated setting" regulation). 30. Public entities also must make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the modifications would fundamentally alter the nature ofthe service, program, or activity. 28 C.P.R.§ 35.130(b)(7). 31. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, imposes identical requirements on programs and activities that receive federal financial assistance. See, e.g., 45 C.P.R. § 84.4(b)(2) ("most integrated setting" regulation). 32. Defendants discriminate against the named individual Plaintiffs and the Plaintiff class on the basis of disability by failing to provide them services in the most integrated setting appropriate to their needs, as required by federal law. If they receive intensive community-based services and other appropriate services, virtually all children with mental health disabilities can live in their own homes, or with a foster or other family, and succeed in school and participate in community life with their non-disabled peers. 33. By failing to provide ICBS to the named individual Plaintiffs and the Plaintiff class, and instead serving them in segregated facilities, or placing them at serious risk of segregation, Defendants are discriminating against them in violation of the ADA and Section 504.
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B. The Federal Medicaid Program 34. Medicaid is a voluntary federal-state program under Title XIX of the Social Security Act,
42 U.S.C. § 1396 et seq. ("Medicaid Act"), designed to provide medically necessary health and mental health care to low-income children and families, among others. 35. Participation by states in the Medicaid program is voluntary, and those that do (including the District of Columbia) receive federal matching funds. To receive federal matching funds, states must adhere to the requirements set forth in Title XIX and its implementing regulation. 42 C.P.R.§ 430.0 et seq. In addition, participants must have a Medicaid state plan that describes their administration of the program and identifies the services they will provide to eligible beneficiaries. 42 U.S.C. § 1396a. 36. The District of Columbia participates in the Medicaid program, and it therefore must comply with the Medicaid Act's requirements, including the EPSDT provisions of the Act. 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), 1396d(r). The EPSDT provisions of the Act require the District to ensure that children receive medically necessary diagnostic and treatment services "to correct or ameliorate" their physical and mental illnesses and conditions. !d.§§ 1396a(a)(43)(C), 1396d(r)(5). The District must identify children who have physical and mental illnesses and conditions, id. § 1396d(r)(l), and provide medically necessary services to the children regardless of whether such services are included in its state plan. !d.§ 1396d(r)(5); 42 C.P.R.§ 441.56(c). 37. Defendants must provide intensive community-based services to all Medicaid-eligible District children who need them. For the named individual Plaintiffs and the children in the Plaintiff class, intensive community-based services are medically necessary to correct or ameliorate the child's mental health disability.
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FACTUAL ALLEGATIONS A. The District's Inadequate Service System 38. Defendants do not provide ICBS to the Plaintiff children, although ICBS are medically
necessary to improve their mental health conditions and prevent their institutionalization. 39. ICBS includes the following components:
• Intensive care coordination ("ICC")-an intensive form of case management in which a provider convenes a "child and family team," including the child, the child's family, service providers, and other individuals identified by the family, to design and supervise a plan that provides and coordinates services for children with mental health disabilities;
• Intensive behavior support services-individualized therapeutic interventions provided on a frequent and consistent basis that are designed to improve behavior and delivered to children and families in any setting where the child is naturally located; and
• Mobile crisis services-a mobile, onsite, in-person response, available at any time or place to a child experiencing a crisis, for the purpose of identifying, assessing, and stabilizing the situation and reducing any immediate risk of harm. These services may be delivered in the child's home, school, or community.6
6 See, e.g., Judgment, Rosie D. v. Patrick, No. 01-30199-MAP, 497 F. Supp.2d 76 (D. Mass. 2007); Cindy Mann & Pamela S. Hyde, Joint CMCS and SAMHSA Informational Bulletin: Coverage ofBehavioral Health Services for Children, Youth, and Young Adults with Significant Mental Health Conditions, Substance Abuse and Mental Health Servs. Admin. (SAMHSA) and Center for Medicaid and CHIP Services (CMCS), at 3-6 (2013), available at https://www.medicaid.gov/federal-policy-guidance/downloads/cib-05-07-2013.pdf; U.S. Dep't of Justice, West Virginia Children's Mental Health System Findings Letter, at 9; California Dep't of Healthcare Servs. & California Dep't of Soc. Servs., Medi-Cal Manual: For Intensive Care Coordination (ICC), Intensive Home-Based Services (IHBS), and Therapeutic Foster Care
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40. To benefit from ICBS, children may also need therapeutic foster care, a short-term, intensive, therapeutic placement. When this service is needed to correct or ameliorate a Medicaid-eligible child's condition, the District must provide it.
41 . There is no service provider in the District that offers ICBS. Some providers offer some of the elements ofiCBS. One provider offers ICC, which Defendants call "high fidelity wraparound." The District has budgeted for 94 children to receive this service in fiscal year 2018.7 As of June 15,2018, only about 42 District children had received this service during fiscal year 2018.
42. Several providers in the District offer what is called "community-based intervention" ("CBI"). Although the District has sometimes referred to CBI as "Intensive Home and Community-Based Services," CBI is not designed or supervised by a child and family team, is time-limited, and does not include sufficiently intensive behavior support services.
43. Several providers offer Assertive Community Treatment ("ACT"), which includes a team approach and some intensive behavior support services. Very few children have received this service, however: in fiscal year 2017, only three children under age 18 received ACT, down from 66 children under 18 in fiscal year 2016.8 The District does not report how many youths ages 18-21 receive ACT.
(TFC) Services for Medi-Cal Beneficiaries 15 (3rd. ed. 2018) available at http://www.dhcs.ca.gov/services/MH/Documents/PPQA%20Pages/Katie%20A/MediCal_Manual_Third_Edition.pdf_,_ 7 See District of Columbia Dep't ofBehav. Health, FY 17 Performance Oversight Response No. 76 (on file). 8 District of Columbia Dep't ofBehav. Health, Mental Health and Substance Use Report on Expenditures and Services (MHEASURES), at 12 (Jan. 2018), https://dbh.dc.gov/sites/default/files/dc/sites/dmh/publication/attachments/MHEASURES%20Jan
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44. Defendants have had ample notice that their behavioral health system fails to provide
medically necessary ICBS to hundreds of children, instead subjecting these children to
harmful and unnecessary institutionalization. Years of reports from researchers,
advocates, and the District itself, as well as testimony before the District Council,
indicate that District children do not get the ICBS they need.
45. In 2012 and 2016, the Children's Law Center reported shortages of effective community-
based services for children.9 A 2015 report by Plaintiff Disability Rights DC described
the same problem. 10
46. The District's own reports have disclosed deficiencies in services as well as reduced
capacity in the District's children's behavioral health services. 11
uary%202018%20%28002%29.pdf; District of Columbia Dep't ofBehav. Health, Mental Health and Substance Use Report on Expenditures and Services (MHEASURES), at 12 (Jan. 2017), available at https://dbh.dc.gov/sites/default/files/dc/sites/dmh/publication/attachments/MHEASURES%20Jan uary%2020 17_O.pdf. 9 Children's Law Center, Improving the Children's Mental Health System in the District of Columbia, at 11, 26, 29, 35 (2012), available at http://www.childrenslawcenter.org/sites/default/files/attachments/resources/Improving%20the% 20Children's%20Mental%20Health%20System%20in%20the%20District%20of0/o20Columbia% 20-%202012%20Report.pdf; Children's Law Center, Evaluating DC's Progress in Meeting Children's Mental Health Needs, at 1 (May 2016), available at https://www.childrenslawcenter.org/sites/default/files/Childrens_Law_Center_MH_Update_201 6.pdf. 10 University Legal Services, The Way Home: Child and Youth Access to Community-Based Services Post-Psychiatric Hospitalization in the District ofColumbia, at 6 (Mar. 1, 2015), available at http://www.uls-dc.org/thewayhome.pdf. 11 See, e.g., District of Columbia Dep't ofBehav. Health, Mental Health and Substance Use Report on Expenditures and Services (MHEASURES), at 3, 9 (Jan. 15, 2018), available at https://dbh.dc.gov/sites/default/files/dc/sites/dmh/publication/attachments/MHEASURES%20Jan uary%202018%20%28002%29.pdf(following provider closures, between FY 2016 and FY 2017 approximately 950 fewer children ages 0-17, and an unspecified number ages 18-21, received mental health services); District of Columbia Dep't ofBehav. Health, FY 15 Performance Oversight Response No. 98 Attachment (on file) (submitting FY15 Child and Youth Community Service Reviews, which reported declines in provider scores for Overall Practice, Team
14

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 15 of 21
47. Before bringing this action, Plaintiffs' counsel raised with the District, and engaged with the District over the course of several months regarding, its failure to provide necessary ICBS and the attendant harm caused by the unavailability of ICBS. Although the District has claimed that it has made significant investments in its children's behavioral health system over the past ten years, the harms experienced by the Plaintiff children and reports from other advocates reveal that systemic inadequacies persist. Though it has knowledge of the harm, the District has not taken corrective action.
48. As a result of the District's failures, the Plaintiff children spend their formative years isolated from their families and communities as they cycle through institutions that cannot provide them the ICBS they need. They could and should have been served in their own homes, or in another family or foster home, with ICBS. Children with comparable needs who receive ICBS in natural settings have "improved school attendance and performance, increased behavioral and emotional strengths, improved clinical and functional outcomes, reduced suicide attempts, and decreased contacts with law enforcement when compared to children who received such care in segregated residential treatment facilities. "12
B. The District's Failures Harm the Individual Plaintiffs 49. PlaintiffM.J. is a 14-year-old girl with a mental health disability. She recently returned
home from a psychiatric residential treatment facility in Georgia. Since her return, she
Functioning, and Team Coordination, among other measures); District of Columbia Dep't of Health Care Fin., District ofColumbia's Managed Care End-of Year Report 15 (Apr. 20 17), available at https://dhcf.dc.gov/sites/default/files/dc/sites/dhcf/publication/attachments/Managed%20Care%2 0End%20of0/o20Year%20Report%20FY20 16.pdf (noting that "care coordination challenges ... remain stubborn"). 12 U.S. Dep't of Justice, West Virginia Children's Mental Health System Findings Letter, at 9.
15

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 16 of 21
has spent nine days at the District's Children's National Medical Center ("CNMC") for inpatient psychiatric care. She has been diagnosed with anxiety, depression, posttraumatic stress disorder ("PTSD"), attention-deficit/hyperactivity disorder ("ADHD"), disruptive mood dysregulation disorder ("DMDD"), oppositional defiant disorder ("ODD"), and conduct disorder. 50. M.J. is a talented writer. She also likes dancing and cooking. She has been engaged with the Girl Scouts since age five. She loves animals and wants to volunteer at an animal shelter. She is interested in becoming a veterinarian and opening a veterinary clinic and animal boarding facility. 51. M.J. has never received ICBS, despite the District's obligation to provide her these services. 52. Before being sent to the Georgia facility in February 2017, M.J. was hospitalized at least nine times between 2014 and 2018: twice at the Psychiatric Institute of Washington ("PIW"), in October 2014 and October 2015; six times at CNMC, in December 2015, August, October, November, and December 2016, and January 2017; and once at Adventist HealthCare in Maryland, in February 2017. 53. M.J. was arrested in 2016 for assaulting her mother. Following her arrest, she spent one night at the Youth Services Center, the District's secure residential facility for youth. 54. M.J. has experienced significant disruptions in her educational career, including numerous in- and out-of-school suspensions. She has changed schools several times since 2015 after receiving multiple suspensions. 55. M.J. has cycled among District community-based service providers, including Community Connections, Youth Villages, Better Morning, and First Home Care (now
16

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 17 of 21
called Foundations for Home and Community). At Youth Villages, First Home Care, and Better Morning, she received short-term CBI. 56. M.J. and her mother are interested in receiving ICBS, but neither Defendants nor its providers have helped M.J. 's family develop a plan for M.J. to receive the ICBS she needs to avoid institutionalization. 57. PlaintiffL.R. is a 17-year-old girl with a mental health disability. She is currently institutionalized at a residential facility operated by DYRS. She has been diagnosed with bipolar disorder, PTSD, ADHD, and conduct disorder. 58. L.R. is outgoing and makes friends easily. She enjoys drawing, coloring, listening to music, and dancing. She is interested in pursuing a career in cosmetology because she enjoys working with hair and designing hairstyles. She is also considering a career in medicine, specifically as an obstetrician-gynecologist or a midwife. 59. L.R. has never received ICBS, despite the District's obligation to provide these services. 60. L.R. has been hospitalized several times for mental health treatment, starting in March 2011 with a hospitalization at PIW. Since then, she has been hospitalized at least once at CNMC, in July 2014, and three times at PIW, in September 2014, January 2015, and March-April2017. 61. L.R. has spent much of her adolescence institutionalized at juvenile facilities, psychiatric residential treatment facilities, and other residential treatment centers. L.R. has been arrested numerous times for fighting and has been committed to DYRS custody since April2015. The District has ordered her to spend time at both the Youth Services Center and New Beginnings. She has also spent time at the Fairfax Juvenile Detention Center. In addition, she has been placed by DYRS for months in a psychiatric residential
17

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 18 of 21
treatment facility, other residential treatment facilities, and group homes, all outside the District, including facilities in Florida, Virginia, and Maryland. 62. L.R.'s periods of institutionalization have disrupted her education. During middle school, she was involuntarily transferred to a different school because of her behavior. Subsequently, L.R. has had to transfer to different educational programs each time she has transferred from home to hospitals, residential facilities, and District detention centers, and then back home again. 63. During those periods when she has lived at home, L.R. has generally received services from a District provider. These services have included CBI as well as medication management. However, L.R. never received ICBS. 64. L.R. and her father are interested in her receiving ICBS, but the District has not worked with them to arrange for her to receive these services while she has lived at home. 65. The Plaintiff children have no adequate remedy at law.
CAUSES OF ACTION Count 1- Americans with Disabilities Act, 42 U.S.C. §12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 66. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though
fully set forth herein. 67. The named individual Plaintiffs and the class members they seek to represent are
qualified individuals with disabilities under the ADA and are "otherwise qualified individuals with a disability" under the Rehabilitation Act. The named individual Plaintiffs and members of the Plaintiff class are constituents of Disability Rights DC.
18

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 19 of 21
68. Defendant District of Columbia is a public entity subject to the requirements of Title II of the ADA. The District and its agencies also receive federal financial assistance and are thus subject to the requirements of the Rehabilitation Act. Defendants Bowser, Royster, and Turnage are District officials responsible for administering and/or supervising District programs and activities related to behavioral health services and/or the Medicaid program.
69. Defendants have discriminated against Plaintiff children in violation of the ADA and the Rehabilitation Act by failing to administer services, programs, and activities in the most integrated setting appropriate and by needlessly placing them in institutional settings to receive behavioral health services, or by putting them at serious risk of placement in such settings.
70. The relief sought by Plaintiffs would not require a fundamental alteration to the District's programs, services, or activities. Defendants are already required by federal law to provide intensive community-based services to the plaintiff children, and compliance with the ADA and the Rehabilitation Act would not impose any unreasonable costs on Defendants' service system.
Count II- Medicaid Act, 42 U.S.C. § 1396d et seq. and 42 U.S.C. § 1983. 71. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though
fully set forth herein. 72. Defendants, while acting under the color of law, have violated the Medicaid Act,
including the Act's EPSDT mandate, by failing to provide Plaintiff children with intensive community-based services ICBS when such services are medically necessary to treat or ameliorate their mental conditions. 42 U.S.C. §§ 1396a(a)(43), 1396d(r).
19

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 20 of 21
73. Defendants, including the Mayor of the District of Columbia and the Directors of the Departments of Behavioral Health and Health Care Finance, have final policymaking authority over the District's behavioral health and Medicaid systems. See D.C. Code §§ 1-307.02; 7-771.05; 7-1141.02; 7-1141.04; 7-1141.06; 7-1141.07. Defendants, while acting under the color of law, have: (a) taken actions that have caused medically necessary ICBS to be unavailable to the Plaintiff children; and (b) knowingly and consistently failed to provide medically necessary ICBS to the Plaintiff children, setting a custom for failing to provide behavioral health services that meet their needs. Defendants' failures constitute deliberate indifference to the Plaintiff children's rights under the Medicaid Act (as enforced through 42 U.S.C. § 1983). REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
A. Certify this case as a class action pursuant to Federal Rule of Civil Procedure 23; B. Declare that Defendants' failures to comply with the mandates of the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, and the Medicaid Act are unlawful; C. Enter a permanent injunction enjoining Defendants from subjecting the named individual Plaintiffs and members of the Plaintiff class to policies and practices that violate their rights under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Medicaid Act;
20

Case 1:18-cv-01901-EGS Document 3 Filed 08/14/18 Page 21 of 21
D. Award Plaintiffs their reasonable costs and attorney's fees incurred in the prosecution of this action; and
E. Award such other equitable and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED this 14th day of August, 2018.
Ira A. Burnim (D.C. BarN . 0 154)
Mark Murphy (D.C. Bar No. 1048467) Lewis L. Bossing (D.C. Bar No. 984609) JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW 110115th StreetNW, Suite 1212 Washington, D.C. 20005 Tel. (202) 467-5730 Sandra J. Bernstein (D.C. Bar No. 455355) Mary Nell Clark (D.C. Bar No. 419732) DISABILITY RIGHTS DC AT UNIVERSITY LEGAL SERVICES 220 I Street NE, Suite 130 Washington, D.C. 20002 Tel. (202) 547-0198 Seth M. Galanter (D.C. Bar No. 479919) Alice Y. Abrokwa (D.C. Bar No. 1023510) NATIONAL CENTER FOR YOUTH LAW 1313 L StreetNW, Suite 130 Washington, D.C. 20005 Tel. (202) -868-4786 Howard Schiffman (D.C. Bar No. 358814) Jason T. Mitchell (D.C. Bar No. 1005757) SCHULTE ROTH & ZABEL LLP 1152 Fifteenth Street NW Washington, D.C. 20005 Tel. (202) 729-7470
21

Case 1:18-cv-01901-EGS Document 3-1 Filed 08/14/18 Page 1 of 3

I. (a) PLAINTIFFS
M.J., by and through her next friend J.J. L.R. by and through her next friend D.M . University Legal Services, Inc.

CIVIL COVER SHEET
DEFENDANTS The District of Columbia Muriel Bowser, Mayor, in her official capacity (Please see attached rider for additional defendants)

See rider (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
Judge David L. Bazelon Center for Mental Health Law (110115th St. NW, Suite 1212, Washington, D.C. 20005, 202-467 -5730) (Please see attached rider for additional attorneys)

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT See rider
Case: 1:18-cv-01901 ( L Deck) Assigned To : Sullivan, Emmet G. Assign. Date : 8/14/2018 Description: Civil Rights-Non Employ.

II. BASIS OF JURISDICTION

(PLACE AN x IN ONE BOX ONLY)

0 I U.S. Government (!) 3 Federal Question

Plaintiff

(U.S. Government Not a Party)

0 2 U.S. Government
Defendant

Q 4 Diversity
(Indicate Citizenship of Parties in item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN X IN ONE BOX FOR

PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

Citizen of this State

]i([ ~ PTF DFT JT"fv'l Incorporated or Principal Place

PTF
0 4

of Business in This State

02 02 Os Citizen of Another State

Incorporated and Principal Place

Citizen or Subject of a Foreign Country

03

of Business in Another State
03 Foreign Nation

06

-
-
Dl r o~

IV. CASE ASSIGNMENT AND NATURE OF SUIT (Place an X in one CJIICI!;Ory, A-N, that best repn:senl!i your Cause of Action and one in a cnncspondiue Nat ure of l) uil)

0 A. Antitrust D 410 Antitrust

0 B. Personal Injury/
Malpractice
D 310 Airplane
D 315 Airplane Product Liability D 320 Assault, Libel & Slander D 330 Federal Employers Liability
0 340Marine
D 345 Marine Product Liability D 350 Motor Vehicle
D 355 Motor Vehicle Product Liability
D 360 Other Personal Injury D 362 Medical Malpractice D 365 Product Liability D 367 Health Care/Pharmaceutical
Personal Injury Product Liability
D 368 Asbestos Product Liability

0 C. Administrative Agency
Review
D 151 Medicare Act
gSocial Securitv 861 HIA (1395ft)
D 862 Black Lung (923) D 863 DIWC/DIWW (405(g)) D 864 SSID Title XVI D 865 RSI (405(g))
DOther Statutes 891 Agricultural Acts
D 893 Environmental Matters D 890 Other Statutory Actions (If
Administrative Agency is Involved)

0 D. Temporary Restraining
Order/Preliminary Injunction
Any nature of suit from any catego n may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

0 E. General Civil (Other)
Real Propertv 0210 Land Condemnation
D 220 Foreclosure D 230 Rent, Lease & Ejectment D 240 Torts to Land D 245 Tort Product Liability D 290 All Other Real Property
Personal Property
D 370 Other Fraud
0 371 Truth in Lending
D 380 Other Personal Property
Damage
D 385 Property Damage
Product Liability

OR

0

Bankruptcy
D 422 Appeal27 USC 158
D 423 Withdrawal28 USC 157

Prisoner Petitions
0 535 Death Penalty D 540 Mandamus & Other D 550 Civil Rights D 555 Prison Conditions D 560 Civil Detainee- Conditions
ofConlinement

E:ferty Rights 820 Copyrights
0830Patent
D 835 Patent- Abbreviated New
Drug Application
D 840 Trademark

F. ProSe General Civil
Fcdcntl Tux Suits
D 870 Taxes (US plaintiff or
defendant)
D 871 IRS-Third Party 26 USC
7609
Forfeiture/Penalty
D 625 Drug Related Seizure of
Property 21 USC 881 06900ther
Other Statutes
D 375 False Claims Act D 376 Qui Tam (31 USC
3729(a))
D 400 State Reapportionment D 430 Banks & Banking D 450 Commerce/ICC
Rates/etc.
D 460 Deportation

D 462 Naturalization

Application
D 465 Other Immigration

Actions
D 470 Racketeer Influenced

& Corrupt Organization
D 480 Consumer Credit D 490 Cable/Satellite TV D 850 Securities/Commodities/

Exchange
0 896 Arbitration 0 899 Administrative Prncednrl'

Act/Review or Appeal of

Agency Decision
D 950 Constitutionality of Stat(•

Statutes
D 890 Other Statutory Actions

I

(if not administrative agem·.'

review or Privacy Act)

-0-

Case 1:18-cv-01901-EGS Document 3-1 Filed 08/14/18 Page 2 of 3

0 G. Habeas Corpus/
2255
D 530 Habeas Corpus- General D 510 MotionNacate Sentence D 463 Habeas Corpus- Alien
Detainee
0 K. Labor!ERISA
(non-employment)
D 710 Fair Labor Standards Act D 720 Labor/Mgmt. Relations D 740 Labor Railway Act D 751 Family and Medical
Leave Act
D 790 Other Labor Litigation D 791 Em pl. Ret. Inc. Security Act

0 H. Employment
Discrimination
D 442 Civil Rights- Employment
(criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation)
*(If pro se, select this deck)*
0 L. Other Civil Rights
(non-employment)
D 441 Voting (if not Voting Rights
Act)
D 443 Housing/Accommodations D 440 Other Civil Rights D 445 Americans w!Disabilities-
Employment IXJ 446 Americans w!Disabilities-
Other
D 448 Education

0 I. FOIA/Privacy Act

0 J. Student Loan

D 895 Freedom oflnformation Act D 890 Other Statutory Actions
(if Privacy Act)

D 152 Recovery of DefHull<'d
Student Lonn (excluding vctemns)

*(If prose, select this deck)*
0 M. Contract
D 110 Insurance D 120Marine D 130 Miller Act D 140 Negotiable Instrument D 150 Recovery of Overpayment
& Enforcement of Judgment
D 153 Recovery of Overpayment
of Veteran's Benefits
D 160 Stockholder's Suits D 190 Other Contracts D 195 Contract Product Liability D 196 Franchise

0 N. Three-Judge
Court

I

D 441 Civil Rights- Volin~
(if Voting Rights \l'l)

V. ORIGIN
e 1 Original Proceeding

0 2Removed 0
from State
Court

3Remanded from Appellate Court

0 4 Reinstated
or Reopened

0 5 Transferred 0 from another district (specify)

6 Multi-district Litigation

0 7 Appeal to
District Judge from Mag.
Judge

0 8 Multi-dislricl
LitigationDirect File

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAliSE.)

See attached rider

I

VII. REQUESTED IN COMPLAINT

YeS CHECK IF THIS IS A CLASS DEMAND$ N/A

ACTION UNDER F.R.C.P. 23

JURY DEMAND:

Check YES only if demanded in compla1111

YES D

NO [KJ

VIII. RELATED CASE(S)

IF ANY /

I

DATE: -Y/;L/ 111

I

(See instruction)

YES L ]

NO (K]

I ~~ SIGNATURE OF ATTORNEY OF RECORD ... h-'
- INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS 44 Authority for Civil Cover Sheet

If yes, please complete related case fo1 111

- r ~'"""

' -......

_/

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use oftlw Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use ll 00 l to indicate plaintiff if resident

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United Stales

III.

CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed Q!1)y if diversity of citizenship was selected as the Basis of Jurisdiction

under Section II.

IV .

CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best

represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding

nature of suit found under the category of the case.

VI.

CAUSE OF ACTION: Cite the US. Civil Statute under which you are filing and write a brief statement ofthe primary cause.

VIII.

RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obta1ned rrom the Clerk's Office.

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the torm

Case 1:18-cv-01901-EGS Document 3-1 Filed 08/14/18 Page 3 of 3
Rider to Civil Cover Sheet for the Action M.J., bv a11d through he1· 11ext friend J.J., et at. v. Tile District o[Calumbia, eta/. Section I Plaintiffs' County o(Residence District of Columbia
Additional Defendants Tanya A. Royster, Director, District of Columbia Department of Behavioral Health, in her official capacity Wayne Turnage, Director, District of Columbia Department of Health Care Finance, in his official capacity
Defendants' County o(Residence District of Columbia
Attorneys for Plaintiffs Disability Rights DC at University Legal Services (220 I St. NE, Suite 130, Washington, D.C. 20002, 202-547-0198) National Center for Youth Law (1313 L St. NW, Suite 130, Washington, D.C. 20005,202-8684786) Schulte Roth & Zabel LLP (1152 Fifteenth St. NW, Suite 850, Washington D.C. 20005)
Section VI Cause o(Action Defendants have violated 42 U.S.C. §12131 et seq. and 29 U.S.C. § 794 by failing to provide medically necessary mental health services in the most integrated setting appropriate to Plaintiffs, who are otherwise qualified individuals with disabilities, under the Americans with Disabilities Act and the Rehabilitation Act. Defendants have also violated 42 U.S.C. § 1396d et seq. and 42 U.S.C. § 1983 by knowingly failing to provide intensive community-based services to Plaintiffs that are medically necessary to treat or ameliorate their mental health conditions.

 
 FILED Case 1:18-cv-01901-EGS Document 2 Filed 08/14/18 Page 1 of 6
AUG 1 5 2018
Clerk, U.S. District &Bankruptcy Courts for the District of Columbia
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

M.J., eta!., Plaintiffs,
v.
THE DISTRICT OF COLUMBIA, eta!., Defendants.

Case: 1:18-cv-01901 ( L Deck) Assigned To : Sullivan, Emmet G. Assign. Date: 8/14/2018 Description: Civil Rights-Non Employ.
Chief Judge Beryl A. Howell

MEMORANDUM AND ORDER The individual plaintiffs in this action, "Medicaid-eligible children with mental health disabilities who are needlessly institutionalized, or at serious risk of institutionalization," Compl. ~ 1, have moved to proceed using pseudonyms, Pls.' Mem. Supp. Mot. Leave to Proceed Anonymously ("Pls.' Mem.") at 2, in their instant challenge to the District of Columbia's alleged failure to provide medically necessary intensive community-based services, see Compl. ~ 1. For the reasons set forth below, the Court will grant the plaintiffs' motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned. 1 I. BACKGROUND The plaintiffs are "Medicaid-eligible children" who "need intensive community-based services to avoid institutionalization and improve their mental health conditions." Compl. ~~ 1, 4. The plaintiffs seek injunctive relief and contend that the District of Columbia and its officials have "fail[ed] to provide medically necessary intensive community-based services," causing "the Plaintiff children [to] cycle unnecessarily in and out of institutions-including

Under Local Civil Rule 40.7(g), "the Chief Judge shall ... hear and determine ... motions to file a pseudonymous complaint." LCvR 40.7(g).

Case 1:18-cv-01901-EGS Document 2 Filed 08/14/18 Page 2 of 6
psychiatric hospitals, psychiatric and other residential treatment facilities, the District's detention centers, and group homes-to their detriment." !d. ~ 3. The plaintiffs contend that, without these services, "they are at high risk of doing poorly in school, becoming involved in the delinquency and criminal systems and, as they transition to adulthood, being unable to obtain a job or live independently." !d.~ 5.
II. LEGALSTANDARD
Generally, a complaint must state the names ofthe parties. FED. R. CIV. P. 10(a) ("The title ofthe complaint must name all the parties."); LCvR 5.l(c)(l) ("The first filing by or on behalf of a party shall have in the caption the name and full residence address of the party," and "[f]ailure to provide the address information within 30 days of filing may result in the dismissal of the case against the defendant."); LCvR 11.1 (same requirement as LCvR 5.1(c)(1)). The public's interest "in knowing the names of[] litigants" is critical because ."disclosing the parties' identities furthers openness of judicial proceedings." Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014); see also Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589, 597 (1978) ("[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."). Nevertheless, courts have, in special circumstances, permitted a party "to proceed anonymously" when a court determines "the impact of the plaintiffs anonymity" outweighs "the public interest in open proceedings and on fairness to the defendant." Nat 'I Ass 'n of Waterfront Emp 'rs v. Chao ("Chao"), 587 F. Supp. 2d 90, 99 (D.D.C. 2008) (RMC).
In the past, when balancing these two general factors, two different but analogous tests have been applied in this circuit. The first test consists of the six factors set forth in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):
2

Case 1:18-cv-01901-EGS Document 2 Filed 08/14/18 Page 3 of 6
(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity ofthat party; (4) the strength ofthe property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced. Doe v. CFPB ("Doe f'), No. 15-1177 (RDM), 2015 WL 6317031, at *2 (D.D.C. Oct. 16, 20 15). In other cases, a "five-part test to balance the concerns of plaintiffs seeking anonymity with those of defendants and the public interest" has been applied. Eley v. District of Columbia, No. 16-806 (GMH), 2016 WL 6267951, at *1 (D.D.C. Oct. 25, 2016). These factors, drawn from Chao, include the following: (1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. Doe v. Teti, Misc. No. 15-01380 (RWR), 2015 WL 6689862, at *2 (D.D.C. Oct. 19, 2015); see also Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015) (TSC); Doe v. US. Dep'tofState, Civil No. 15-01971 (RWR), 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015); Doe v. Cabrera, 307 F.R.D. 1, 5 (D.D.C. 2014) (RBW) . The Chao and Hubbard factors weigh the same two general concerns. Doe Co. No. 1 v. CFPB ("Doe If'), 195 F. Supp. 3d 9, 15-16 (D.D.C. 2016) (RDM). Specifically, these concerns are: (1) the "[s]trength ofthe [g]eneralized [p]roperty and [p]rivacy [i]nterests" involved and "the possibility of prejudice" to those opposing disclosure, Hubbard, 650 F.2d at 320-21; and (2) whether the "justification" for nondisclosure "is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of
3

Case 1:18-cv-01901-EGS Document 2 Filed 08/14/18 Page 4 of 6
a sensitive and highly personal nature," Teti, 2015 WL 6689862, at *2. Thus, in Doe II, the Court determined that
the question before the Court is not best answered with a rigid, multi-part test but with an assessment ofwhether the non-speculative privacy interest that the movants have identified outweigh the public's substantial interest in knowing the identities of the parties in litigation, along with any legitimate interest that the non-moving parties' interest may have in revealing the identity of the movants. Doe II, 195 F. Supp. 3d at 17. This balancing inquiry accords with the D.C. Circuit's test for whether a district court should exercise its discretion to permit an exception from Federal Rule of Civil Procedure 10(a). The Circuit has acknowledged the district court's discretion "to grant the 'rare dispensation' of anonymity" to litigating parties under certain limited circumstances, provided the court has "inquire[d] into the circumstances of particular cases to determine whether the dispensation is warranted." United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). In exercising this discretion, the D.C. Circuit has required the court to "take into account the risk of unfairness to the opposing party, as well the customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. (internal citations and quotation marks omitted). Thus, whichever test applies, the same general balancing inquiry is at issue: "whether the non-speculative privacy interest that the movants have identified outweigh the public's substantial interest in knowing the identities of the parties in litigation, along with any legitimate interest that the non-moving parties' interest may have in revealing the identity of the movants." Doe II, 195 F. Supp. 3d at 17; see also Chao, 587 F. Supp. 2d at 99 (assessing whether "the impact of the plaintiff's anonymity" outweighs "the public interest in open proceedings and on fairness to the defendant").
4

Case 1:18-cv-01901-EGS Document 2 Filed 08/14/18 Page 5 of 6
III. DISCUSSION At this early stage of the litigation, this Court is persuaded that the individual plaintiffs
have met their burden of showing that their privacy interests outweigh the public's presumptive and substantial interest in knowing the details ofjudicial litigation. The public's interest in the litigants' identity is de minimis compared to the significant privacy interests of the individual plaintiffs, minor children with mental health disabilities.
In this case, the plaintiffs have "a strong interest in protecting their identities and the highly sensitive details about their mental health disabilities that will necessarily be revealed during this litigation." Pis.' Mem. at 4. The two individual plaintiffs in this case are teenagers with "serious emotional disturbance[s]" who have been "hospitalized multiple times due to [their] mental health disabilities." Compl. ~~ 11-13. The relevant records in this case "could include medical records; testimony from therapists, counselors, and other providers; [and] evidence of [the plaintiffs'] experiences being institutionalized in psychiatric residential treatment facilities [and] juvenile justice facilities," among other sensitive information. Pis.' Mem. at 4. The plaintiffs are also minors and are "more vulnerable to the risk of harm." Id. (citing Yaman v. U.S. Dep'tofState, 786 F. Supp. 2d 148, 153 (D.D.C. 2011)). Given the "highly sensitive" nature of the minor plaintiffs' "minor health disabilities and their experiences of institutionalization," the individual plaintiffs have established a significant privacy interest. Id. at 2.
As to the non-moving parties' interests, allowing the plaintiffs to proceed under pseudonyms will have no impact on any private rights as the only defendants are government agencies and officers. The plaintiffs' identities will also be made known to the defendants during the course of litigation. Id. at 5. Allowing the plaintiffs to proceed pseudonymously
5

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thus will not compromise the defendants' ability to defend this action and poses little "risk of unfairness to the opposing party." Chao, 587 F. Supp. at 99. Finally, any public interest in disclosing the identities of the plaintiffs and their children is outweighed by the sensitive nature ofthe plaintiffs' medical records and the plaintiffs' substantial privacy interests.
In sum, weighed against the minimal apparent interest in disclosure, the plaintiffs' significant interest in maintaining their anonymity at this early stage in the litigation is more than sufficient to overcome any general presumption in favor of open proceedings. See Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005) ("Ifthere is no public interest in the disclosure of certain information, 'something, even a modest privacy interest, outweighs nothing every time."' (quoting Nat 'I Ass 'n ofRetired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989))). IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiffs' Motion for Leave to Proceed Anonymously is GRANTED, subject to any further consideration by the United States District Judge to whom this case is randomly assigned, and the case may proceed using the pseudonyms "M.J."; "J.J.," for M.J.'s next friend; "L.R."; and "D.M.," for L.R.'s next friend; and it is further ORDERED that the list of the full names of the plaintiffs and their next friends shall remain under seal until further order ofthe Court. SO ORDERED. Date: August 14, 2018
BERYL A. HOWELL Chief Judge
6

 
 401 F.Supp.3d 1 (2019)
M.J., et al., Plaintiffs, v.
The DISTRICT OF COLUMBIA, et al., Defendants.
Civ. No. 1:18-cv-1901 (EGS).
United States District Court, District of Columbia.
Signed July 25, 2019.
4*4 Alice Y. Abrokwa, Seth Michael Galanter, National Center for Youth Law, Howard Schiffman, Jason Thomas Mitchell, Jeremy Bachrach Siegfried, Schulte Roth & Zabel LLP, Lewis L. Bossing, Jr., Ira A. Burnim, Mark J. Murphy, Bazelon Center for Mental Health Law, Sandra J. Bernstein, Jessica Vander Kooi Den Houter, Mary Nell McGarity Clark, Francis Javier Nugent, Disability Rights DC at University Legal Services, Washington, DC, for Plaintiffs.
Gregory Martin Cumming, Amanda J. Montee, Mateya Beth Kelley, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
Emmet G. Sullivan, United States District Judge.
Plaintiffs, M.J. and L.R.,[1] two children who suffer from mental illnesses, and University Legal Services, Inc., the designated protection and advocacy program for such individuals in the District of Columbia, bring this action on behalf of themselves and a putative class of mentally-ill children who allegedly have been unnecessarily institutionalized 5*5 or face unnecessary institutionalization. In their complaint, plaintiffs allege that the District of Columbia ("District of Columbia" or "District") and its officials (collectively "Defendants") have failed to provide intensive community-based services, in favor of admitting children to residential facilities even though the children are eligible for communitybased treatment. Plaintiffs seek declaratory and injunctive relief based on alleged violations of federal law including the Medicaid Act 42 U.S.C. § 1396d et seq. and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq.
Pending before the Court is defendants' motion to dismiss the complaint. Defendants argue that plaintiffs do not have standing to bring this action, and, in the alternative, that plaintiffs have failed to state a cognizable claim. Upon consideration of the parties' memoranda, the applicable law, and for the following reasons, defendants' motion to dismiss is DENIED.
I. Background
Plaintiffs M.J. and L.R. are Medicaid-eligible children with mental health disabilities. Compl., ECF No. 3 ¶ 1. Both plaintiffs as well as all members of the plaintiffs' putative class have a mental health disability by virtue of having a serious emotional disturbance. Id. ¶ 13. Under District of Columbia law, a child has a serious emotional disturbance when a child has a mental health condition and that condition causes a functional impairment. Id. ¶ 14 (citing D.C. Mun. Regs. Tit. 22-A, § 1201.1). The functional impairment also needs to, on an episodic, recurrent or continuous basis, substantially limit

the child's functioning in family, school, or community services; or limit the child from achieving or maintaining one or more developmentally appropriate social, behavioral, cognitive, communicative, or adaptive skills. Id. Because the children are "individuals with a disability" they are also protected by the ADA and the Rehabilitation Act. Id. (citing 42 U.S.C. § 12102; 29 U.S.C. § 705(20)(B)).
Plaintiff University Legal Services is an independent, non-profit corporation organized under the laws of the District of Columbia that does business under the name Disability Rights D.C. at University Legal Services ("Disability Rights D.C."). Compl., ECF No. 3 ¶ 15. Disability Rights D.C. is the designated protection and advocacy program for individuals with disabilities for the District of Columbia. Id. The organization is authorized under the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq., and the Protection and Advocacy for Individuals with Developmental Disabilities Act, 42 U.S.C. § 15041 et seq., to bring this action on behalf of the named individual plaintiffs and members of the putative class, who are its constituents. Id.
Defendant District of Columbia is a public entity covered by Title II of the ADA, and, as a participant in the federal Medicaid program, its agencies receive federal financial assistance through that and other federal programs. Id. ¶ 16. Defendant Muriel Bowser is the Mayor of the District of Columbia and supervises the official conduct of the Departments of Health Care Finance ("DHCF") and Behavioral Health ("DBH"). Id. ¶ 17. Defendants Wayne Turnage and Tanya Roster are the Directors of DHCF and DBH respectively. Id. ¶¶ 18-19. All four defendants play a role in ensuring the District is in compliance with federal law. Id. ¶¶ 16-19.
Under the Medicaid Act, a state must provide "early and periodic screening, diagnostic, and treatment ["EPSDT"] services (as defined in subsection (r)) for individuals who are eligible under the plan and are under the age of 21." 42 U.S.C. § 1396d(a)(4)(A). Those services are defined 6*6 as screening services (including physical exams, immunizations, health and developmental health history review, and laboratory tests), vision services, dental services, hearing services, and "[s]uch other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5). Section 1396d(a) describes a list of services which, if medically necessary, must be provided to EPSDT beneficiaries.
Plaintiffs allege that defendants have never created a functioning system for providing intensive community-based services ("ICBS") to District of Columbia children who are entitled to receive it. See Compl., ECF No. 3 ¶ 38. ICBS is comprised of four components: (1) Intensive Care Coordination, (2) Intensive Behavior Support Services, (3) Mobile Crisis Services; and (4) Therapeutic Foster Care.[2] See Id. ¶ 39. Plaintiffs allege that these components are unique and are collectively necessary to meet the health care needs of eligible children. See id. ¶¶ 38-41.
The first component, intensive care coordination, is "an intensive form of case management in which a provider convenes a `child and family team,' including the child, the child's family, service providers, and other individuals identified by the family, to design and supervise a plan that provides and coordinates services for children with mental health disabilities." Id. ¶ 39. The second component, intensive behavior support services, consists of "individualized therapeutic interventions provided on a frequent and consistent basis that are designed to improve behavior and delivered to children and families in any setting where the child is naturally located." Id. The third component, mobile crisis services, involves a "mobile, onsite, in-person response, available at any time or place to a child experiencing a crisis, for the purpose of identifying, assessing, and stabilizing the situation and reducing any immediate risk of harm." Id. Mobile crisis services may be "delivered in the child's home, school, or community." Id.

Plaintiffs' complaint alleges that the District of Columbia has failed to offer the plaintiff children all of the required components of ICBS, which are collectively necessary to meet their mental health needs. Compl., ECF No. 3 ¶¶ 38-48. As a result, plaintiffs allege that the children are deprived of the ICBS that they need to improve their conditions and avoid unnecessary institutionalization or the serious risk of institutionalization. Id. ¶¶ 49-65. Plaintiffs therefore bring this action for violations of the ADA, Section 504 of the Rehabilitation Act, and violations of the Medicaid Act enforced through 42 U.S.C. § 1983. Id. ¶¶ 66-73.
Defendants have moved to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. See generally Defs.' Mot., ECF No. 21. Plaintiffs have filed their opposition to the motion to dismiss. Pls.' Opp'n, ECF No. 29. And defendants have filed a reply thereto. Defs.' Reply, ECF No. 33. This motion is ripe for adjudication.
II. Standard of Review
A. Rule 12(b)(1): Subject Matter Jurisdiction
"A federal district court may only hear a claim over which [it] has subject 7*7 matter jurisdiction; therefore, a Rule 12(b)(1) motion for dismissal is a threshold challenge to a court's jurisdiction." Gregorio v. Hoover, 238 F. Supp. 3d 37 (D.D.C. 2017)(citation and internal quotation marks omitted). To survive a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing that the court has jurisdiction by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, "the court must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6)." Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011)(citations omitted). In so doing, the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff, but the court need not "accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), the court "may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Faced with motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6), a court should first consider the Rule 12(b)(1) motion because "[o]nce a court determines that it lacks subject matter jurisdiction, it can proceed no further." Ctr. for Biological Diversity v. Jackson, 815 F. Supp. 2d 85, 90 (D.D.C. 2011) (citations and internal quotation marks omitted).
B. Rule 12(b)(6): Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)(internal quotation marks omitted).

Despite this liberal pleading standard, to survive a motion to dismiss, a complaint "must 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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible when the facts pled in the complaint allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The standard does not amount to a "probability requirement," but it does require more than a "sheer possibility that a defendant has acted unlawfully." Id.
"[W]hen ruling on a defendant's motion to dismiss [pursuant to Rule 12(b)(6)], a judge must accept as true all of the factual allegations contained in the complaint." Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (internal quotation marks omitted). In addition, the court must give the plaintiff the "benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III. Analysis
Defendants argue that the claims in this case should be dismissed under Federal Rule 12(b)(1) because plaintiffs M.J., L.R., 8*8 and Disability Rights D.C. lack standing, and alternatively that the case should be dismissed under Federal Rule 12(b)(6) because plaintiffs have failed to state a claim. The Court discusses each argument in turn.
A. Motion to Dismiss for Lack of Jurisdiction
To establish subject matter jurisdiction a court must find that at least one plaintiff has standing to bring this case under Article III of the United States Constitution. Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). To have standing, a plaintiff must have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To establish injury in fact, a plaintiff must show that he or she suffered `an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent, not conjectural or hypothetical.'" Id. (citation omitted). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)(citations omitted). Because the elements of standing are not "mere pleading requirements but rather an indispensable part of the plaintiff's case," they each "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.
1. M.J. has Standing
Defendants argue that M.J. lacks an injury in fact because she has previously declined the type of services she now seeks in this suit. Defs.' Mot., ECF No. 21 at 19-20.[3] Defendants also argue that M.J.'s claims are moot because any legally cognizable interest in the outcome of the litigation was extinguished once M.J. refused services. Id. In support of this argument, defendants provide a declaration from Patrina Anderson, Director of the Linkage and Assessment Division at the District of Columbia Department of Behavioral Health. See Decl. of Patricia Anderson ("Anderson Decl."), ECF No. 21-4. Ms. Anderson states that M.J. is currently receiving Level II community-based interventions ("CBI"), and that M.J.'s mother declined High Fidelity Wrap Around services[4] after a referral was made to DBH by the Children's National Hospital Center. Id. ¶¶ 3-4. She also states that

M.J.'s mother inquired about the wrap around services at a later date but then told M.J.'s CBI worker that she did not want the services. Id. ¶¶ 6-9.
Plaintiffs deny that the wrap around and CBI services qualify as ICBS because they are short term and not equivalent to the "intensive behavior support services" that are a core component of ICBS. Pls.' Opp'n, ECF No. 29 at 18. Moreover, even if these wrap around services qualified, plaintiffs dispute that M.J.'s mother has refused these services. Id. M.J. provides a declaration from her mother, J.J., in which she explains that she has sought to obtain the services offered by the City and that her initial refusal was based on a misunderstanding of the nature of the High Fidelity Wrap Around services that were offered to 9*9 her. See Redacted Decl. of J.J. ("J.J. Decl."), ECF No. 40 ¶ 5. M.J.'s mother stated that, after receiving a more fulsome explanation of the services, she requested that M.J. receive those services. Id. ¶ 7. Her declaration also details several efforts that she has made to obtain High Fidelity Wrap Around services for M.J. Id. ¶¶ 8-14. J.J. maintains that she is still interested in receiving these services for her daughter. Id. ¶ 15.
The Court is persuaded that M.J. has demonstrated that she has alleged facts sufficient to show that she has suffered an injury in fact. As an initial matter, because M.J. has alleged that High Fidelity Wrap Around services and CBI are short-term backstops which fall outside the category of ICBS, defendants' argument that M.J.'s refusal of these services precludes an injury in fact in this case is unpersuasive. M.J. has alleged that these types of short-term programs are not as intensive as ICBS requires and therefore have led to repeated disruptions to her education and periods of institutionalizations in hospitals. See Compl., ECF No. 3 ¶¶ 51, 54-56. In light of those allegations, it is irrelevant if M.J. refused those services because they arguably are not categorized as ICBS.
Moreover, even if the services did constitute ICBS, the issue of whether M.J. has requested High Fidelity Wrap around services is a factual dispute. In deciding a motion to dismiss, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro, 104 F. Supp. 2d at 22. M.J.'s mother's declaration explains that initially she did not receive an accurate explanation of what the wrap around services entailed and therefore believed that they were duplicative of the services M.J. was already receiving. J.J. Decl., ECF No. 40 ¶ 5. However, once she was informed that the services were not duplicative, she declared that she has repeatedly tried to obtain those services for M.J. Id. ¶¶ 8-14. Drawing all reasonable inferences in favor of M.J., as the Court must do at this stage of the litigation, the Court accepts the allegation that M.J.'s mother has not refused services.[5] See Rann, 154 F. Supp. 2d at 64 ("In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor.")
The Court finds that M.J.'s allegations—that defendants' ongoing failure to provide requested ICBS has subsequently led to unnecessary institutionalizations—is sufficient to meet the injury in fact requirement. Defendants do not dispute the other two requirements for standing, redressability and causation, and it appears to the Court that these components have been adequately alleged. Accordingly, M.J. has standing to pursue her claims.
2. L.R. has Standing
Defendants next argue that plaintiff L.R. lacks standing to pursue her claims because she was in the custody of the Department of Youth Rehabilitation Services ("DYRS") and therefore not eligible to receive services from Medicaid. Defs.' Mot. ECF No. 21 at 20-21. In other words, L.R. cannot suffer an injury because the defendant cannot provide her services to which she claims she is entitled. Id. In support of this argument, defendants provide a DHCF transmittal for "incarcerated

individuals" which outlines the policy for 10*10 claims by individuals in certain DYRS facilities. Id. (citing DHCF Transmittal, ECF No. 21-5 at 1). Similarly, defendants argue that because L.R. is under DYRS custody by court order, any lack of ICBS is not attributable to the defendants, but rather to legal process. Id.
The parties' disagreement stems from dueling interpretations of the DHCF transmittal. The transmittal "clarifies existing Federal law and policy pertaining to the availability of Medicaid Federal Financial Participation ("FFP") for medical services provided to children ... who are confined to the Youth Services Center (YSC) and New Beginnings Youth Development Center." DHCF Transmittal, ECF No. 21-5 at 1. The transmittal explains that for children in those two institutions "Medicaid cannot pay and providers should not submit claims for outpatient health care services provided to these children." Id. at 2. This is because "Federal Medicaid law and regulations prohibit payment for medical services provided to a child or youth when they are `inmates of a public institution.'" Id. at 1 (citing 42 C.F.R. § 435.1009).
The Court is persuaded that L.R. has demonstrated that she has alleged facts sufficient to show that she has suffered an injury in fact. By its own terms, the transmittal only applies to two facilities—the Youth Services Center and the New Beginnings Development Center. Id. at 1. L.R. was not in either facility when this suit was filed and therefore even if there was a prohibition on Medicaid eligibility, that prohibition would not cover L.R. See Pls.' Opp'n, ECF 29 at 22; see also Redacted Declaration of Jane Brown ("Brown Declaration"), ECF No. 41 at 8-9. Additionally, L.R. was released from DYRS custody in late October, and therefore there is presently no question as to her eligibility for Medicaid. See id. at 7. Therefore, since she is not receiving services that she has requested and that she alleges defendants are obligated to provide, she has an injury in fact. Defendants do not dispute the other two requirements for standing, redressability and causation, and it appears to the Court that these components have been adequately alleged. Accordingly, L.R. has standing to pursue her claims.[6]
B. Motion to Dismiss for Failure to State a Claim
Defendants argue that the plaintiffs have failed to state a claim for violations of the ADA, the Rehabilitation Act, and failed to state a claim for a violation of 42 U.S.C. § 1983.
1. ADA and Rehabilitation Act Claims
The ADA and Section 504 of the Rehabilitation Act 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." Brown v. District of Columbia, 322 F.R.D. 51, 53 (D.D.C. 2017)(overruled on other grounds by Brown v. District of Columbia, 928 F.3d 1070 (D.C. Cir. 2019)). Specifically, the ADA mandates 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 11*11 U.S.C. § 12132. This requirement is commonly referred to as the "integration mandate" since it requires the government to ensure those who suffer from a disability are not unnecessarily excluded from society. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 583, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999)(stating "[i]nstitutional 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.")

In Olmstead, the Supreme Court elaborated on the integration mandate. The Court considered the claims of two women who were institutionalized in a residential mental health facility even though treatment providers at the facility concluded that the women could be appropriately treated in the community. Id. at 593, 119 S.Ct. 2176. The Olmstead plaintiffs claimed that in light of the recommendation that they could be treated in the community, their continued institutional placements violated Title II of the ADA. Id. at 594, 119 S.Ct. 2176. The Court held that "[u]njustified isolation ... is properly regarded as discrimination based on disability." Id. at 597, 119 S.Ct. 2176. Although the Court explained that it did not "hold 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,'" it made clear that "States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide." Id. at 603 n.14, 119 S.Ct. 2176. The Court held that governmental entities are required to provide community-based services to individuals with disabilities when: (1) such services are appropriate; (2) the individuals do not oppose community-based services; and (3) the individuals' placement in a community-based setting can be reasonably accommodated, considering the resources available to the entity and the needs of others who are receiving those services. Id. at 607, 119 S.Ct. 2176.
Defendants advance two arguments for why plaintiffs have failed to state a claim for an alleged violation of the ADA's integration mandate. Defendants' first argument is that plaintiffs generally failed to allege an Olmstead violation because they have not challenged the location of the services, but rather the nature of the services that the District provides. Defs.' Mot. ECF No. 21 at 24-25. In other words, defendants argue, plaintiffs are challenging a standard of care but not whether the care they are receiving is in the most integrated setting. Id. Defendants' second argument is that M.J. and L.R. cannot meet all of the three requirements articulated in Olmstead. Id. at 26
Defendants' first argument fails because it is based on a fundamental misunderstanding of plaintiffs' claims. Plaintiffs have alleged that because defendants have failed to provide required services in their homes, or in the community, they are unnecessarily institutionalized. Compl., ECF No. 3 ¶ 48. And because defendants have failed to provide those services, plaintiffs argue, plaintiffs are unnecessarily segregated into residential institutions. Id. Plaintiffs' allegations are sufficient to state claims under Olmstead. See 527 U.S. at 599, 119 S.Ct. 2176. Olmstead itself made clear that "unjustified institutional isolation of persons with disabilities is a form of discrimination." Id. at 600, 119 S.Ct. 2176. The Court explained that the recognition of this principle reflects the understanding that "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" and that 12*12 "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 601-02, 119 S.Ct. 2176.
Plaintiffs have alleged these exact harms and others. They allege that they suffer "curtailed life opportunities due to [d]efendants' continuing, longstanding failure to satisfy federal laws requiring the District of Columbia to provide medically necessary services that prevent unnecessary institutionalization." Compl., ECF No. 3 ¶ 2. Olmstead stands for the proposition that it is a violation of the ADA, the Rehabilitation Act, and their implementing regulations to required disabled individuals to obtain treatment in residential institutions when such individuals have the ability and desire to receive treatment in more integrated community settings. This is exactly what the plaintiffs allege—that the failure of the State to provide required services forces them to reside in institutions even though they are able and willing to engage in community-based treatment. 527 U.S. at 599, 119 S.Ct. 2176. At this stage of the litigation, allegations that defendants failed to provide mandated services, which has the effect of segregating plaintiffs, are sufficient to state a claim of discrimination under Olmstead.

Defendants' second argument is that the plaintiffs cannot meet all the requirements set forth in Olmstead. Again, to make out a claim under Olmstead, a plaintiff must allege that (1) the services requested are appropriate; (2) the individuals do not oppose community-based services; and (3) the individuals' placement in a community-based setting can be reasonably accommodated. Olmstead, 527 U.S. at 607, 119 S.Ct. 2176. Defendants argue that neither plaintiff can meet all of these requirements.
Defendants argue that M.J. fails at the first prong because she has failed to allege that during the times she was institutionalized, community-based treatment would have been an appropriate alternative. Defs.' Mot. ECF No. 21 at 25-26. However, it is not clear whether Olmstead requires that a plaintiff allege a specific determination by a medical professional that the plaintiff is suitable for community-based treatment. In Olmstead, the Court stated that "the State generally may rely on the reasonable assessments of its professionals in determining whether an individual `meets the essential eligibility requirements' for habilitation in a community-based program." Olmstead, 527 U.S. at 602, 119 S.Ct. 2176 (citing 28 C.F.R. § 35.130(d))(emphasis added). The Court did not state that a determination by a State's own professionals is the only way that a plaintiff may establish that the first prong is satisfied. Accordingly, courts have held that a plaintiff need not allege that a treatment provider has explicitly recommended that community-based treatment is appropriate. See Steimel v. Wernert, 823 F.3d 902, 915-16 (7th Cir. 2016)(whether community based treatment was appropriate could be demonstrated by allegations that the state had previously allowed plaintiffs more community interaction); 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.").
This is especially the case when a plaintiff alleges that the state failed to provide 13*13 required community-based treatment programs. This is because a plaintiff would not have an occasion to be assessed for programs that should, but do not, exist. At this stage of the litigation, plaintiffs have alleged that they are able to live in their homes and communities, if the District provided the required treatment; these allegations are enough to meet the pleading standards. At a later stage, plaintiffs will be required to provide evidence to back up their claims that community-based treatment was appropriate, but that requirement will not be imposed on them at this stage of the proceedings. See Boyd v. Steckel, 753 F. Supp. 2d 1163 (M.D. Ala. 2010)(stating dispute regarding whether plaintiff was eligible for community based-services should be resolved "at summary judgment or trial")
As for L.R., defendants argue she cannot meet the third prong of the Olmstead test, whether an individuals' placement in a community-based setting can be reasonably accommodated, because she is in custody pursuant to court order. However, plaintiffs have alleged that compliance with federal law that requires defendants to provide ICBS services would not require a fundamental alteration to defendants' service system, which is all that is required at this stage. See Compl., ECF No. 3 ¶ 70; see, e.g., Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio 2002)("[W]hether requested relief would entail a fundamental alteration is a question that cannot be answered in the context of a motion to dismiss...."); Doe v. Sylvester, No. CIV. A. 99-891, 2001 WL 1064810, *6 (D. Del. Sep. 11, 2001)(stating "[u]ltimate factual determinations" regarding reasonableness of requested modification are "not for the court to decide in the context of a motion to dismiss"). Therefore, the Court finds that plaintiffs have stated a claim under the ADA and the Rehabilitation Act.
2. Section 1983 Medicaid Act Claims

Defendants next argue that plaintiffs fail to state a claim under Section 1983 for violations of the Medicaid Act.[7] In precedent of long-standing, the Supreme Court has held that Section 1983 is an available remedy for violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 7-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). To determine municipal liability under Section 1983, a court must conduct a two-step inquiry. Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). First, a court must determine whether the plaintiff establishes a predicate constitutional or statutory violation. Id. If so, a court then determines whether the complaint alleges that a custom or policy of the municipality caused the violation. Id.; see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
i. Plaintiffs Have Sufficiently Alleged a Statutory Violation
The Medicaid Act mandates that a state provide "early and periodic screening, diagnostic, and treatment services (as defined in subsection (r)) for individuals who are eligible under the plan and are under the age of 21." See also 42 U.S.C. § 1396a(a)(43)(C). Those services are defined as screening services (including a physical exam, immunizations, health and developmental health history review, and laboratory tests), vision services, dental 14*14 services, hearing services, and "[s]uch other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illness and conditions discovered by screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5); see also 42 C.F.R. § 440.40(b). EPSDT requires the State to screen eligible children "to determine the existence of certain physical or mental illnesses or conditions," 42 U.S.C. § 1396d(r)(1)(A)(ii); and the Act requires the State "to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5). Section 1396d(a) describes a list of services which, if medically necessary, must be provided to EPSDT beneficiaries.
Plaintiffs allege that the failure to provide ICBS services violates the EPSDT mandate. Compl., ECF No. 3 ¶ 72. They argue that the District failed to make available the three critical components of ICBS: (1) intensive care coordination; (2) intensive behavioral support services; and (3) mobile crisis services. Pls.' Opp'n, ECF No. 29 at 33. Defendants argue that plaintiffs have failed to allege a statutory violation. Although defendants agree that the District is required to provide certain services, they argue that plaintiffs have only challenged how the services are administered and not that the services have not been received. Defs.' Mot., ECF No. 21 at 28-29.
Plaintiffs' allegations are sufficient to survive a motion to dismiss. The defendants' argument that plaintiffs take issue with the delivery method of the services, not whether the services are offered, is belied by plaintiffs' complaint. Plaintiffs allege that ICBS is "medically necessary to improve [plaintiffs'] mental health conditions." Compl., ECF No. 3 ¶ 38. Plaintiffs allege that "there is no service provider in the District that offers ICBS." Id. ¶ 41. Plaintiffs go on to identify the three components of ICBS that they allege defendants have failed to provide: intensive care coordination, intensive behavior support services, and mobile crisis services. Id. ¶ 39. Plaintiffs acknowledge that although the District provides "community-based intervention," this intervention does not include sufficiently intensive behavior support services. Id. ¶ 43. In light of these allegations, defendants' claim that plaintiffs are merely alleging the delivery methods of the interventions—not whether the interventions exist at all—is factually inaccurate.
Defendants next argue that ICBS is not required by the Medicaid Act because ICBS is not a required Medicaid service. Defs.' Reply, ECF No. 33 at 12. Defendants argue that plaintiffs are instead required to specify exactly what treatments "they believe the District is not providing" to have a

cognizable claim under the Medicaid Act. Id. However, as other courts have noted, because the only limit placed on the provision of EPSDT services is the requirement that they be "medically necessary," the scope of the EPSDT program is wide-ranging. Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472, 480 (8th Cir. 2002)(holding that Medicaid-eligible children have "a federal right to early intervention day treatment when a physician recommends such treatment"). Courts construing EPSDT requirements have ruled that so long as a competent medical provider finds specific care to be "medically necessary" to improve or ameliorate a child's condition, the Medicaid statute requires a participating state to cover it. See, e.g., Collins v. Hamilton, 349 F.3d 371, 375-76 (7th Cir. 2003)(holding that if a competent medical 15*15 service provider determines a specific type of care or service is medically necessary, a state may not substitute a different service that it deems comparable).
Plaintiffs have identified three areas of treatment they allege are required and that the defendants have failed to provide. Compl., ECF No. 3 ¶ 38. They have alleged that ICBS is medically necessary to improve their treatment and to ensure they are not unnecessarily institutionalized. Id. Plaintiffs also explain why the services provided fall short of that goal. Id. ¶¶ 41-43. Defendants' argument that plaintiffs fail to allege that instances of services have been declined or not been provided, but rather debate the effectiveness of the services misses the point. The plaintiffs do not address the effectiveness of the services provided, but rather allege that the District fails to provide appropriate treatment opportunities in the three areas that comprise ICBS services. Id. 38-43. These allegations, if true, would form the basis for a statutory violation of the EPSDT mandate because such services have been alleged to be medically necessary to ameliorate plaintiffs' mental health condition. See 42 U.S.C. § 1396d(r)(5). Accordingly, the plaintiffs have sufficiently alleged a statutory violation.
ii. Plaintiffs' Have Sufficiently Alleged a Custom or Policy
To properly plead a municipal liability claim, a plaintiff must also "allege[] that a custom or policy of the municipality caused the violation." Baker, 326 F.3d at 1306 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). There are four ways in which a plaintiff can allege a custom or policy under Section 1983: (1) "the explicit setting of a policy by the government that violates the Constitution"; (2) "the action of a policy maker within the government"; (3) "the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become custom"; or (4) "the failure of the government to respond to a need (for example, training of employees) in such a manner as to show deliberate indifference to the risk that not addressing the need will result in constitutional violations." Ryan v. District of Columbia, 306 F. Supp. 3d 334, 341 (D.D.C. 2018)(citation omitted).
Plaintiffs have alleged several theories supporting the claim that defendants have engaged in a custom or policy or violating the EPSDT requirements, including that defendants knowingly and consistently failed to provide services under the Medicaid Act and that defendants were deliberately indifferent to plaintiffs' rights under the Medicaid Act. See Pls.' Opp'n ECF No. 29 at 35; see also Compl., ECF No. 3 ¶ 73.
Applying the Baker analysis, the Court concludes that plaintiffs' allegations state a claim that the District knowingly and consistently failed to provide services under the Medicaid Act. The complaint alleges consistent failure to provide ICBS, and it identifies numerous occasions on which defendants were notified of deficiencies in their service system for the plaintiff children through the efforts of families and advocacy groups, defendants' own data, and defendants' discussions with plaintiffs' counsel. See Compl., ECF No. 3, ¶¶ 7-8, 44-48.

Furthermore, plaintiffs have sufficiently alleged that the District demonstrated "deliberate indifference" to their rights under the Medicaid Act. In support of this allegation, plaintiffs cite to numerous public reports throughout the complaint demonstrating that defendants were aware of the need for comprehensive community-based care, and the inadequacy of the services the District currently offers. See id. ¶¶ 23, 39, 41, 43, 45-56. These reports support the 16*16 allegations that defendants either were aware of or should have been aware of the lack of the necessary mental health services in the District. See, e.g., Jones v. Ritter, 587 F. Supp. 2d 152, 157-58 (D.D.C. 2008)(denying motion to dismiss Section 1983 claim where plaintiff alleged the District was deliberately indifferent in failing to train police officers when it was on notice of its training deficiencies and failed to act); see also Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136, 139 (D.D.C. 2003)(stating deliberate indifference is "determined objectively, by analyzing whether the municipality knew or should have known of the risk of ... violations, and yet failed to respond as necessary.") (citations omitted) Accordingly, plaintiffs have sufficiently alleged a Section 1983 claim that survives defendants' motion to dismiss.
C. Motion to Dismiss Individual Defendants
The individual defendants, the Mayor of the District, the Director of DBH, and the Director of DHCF, argue that the claims against them should be dismissed because they are sued in their official capacities and it is the District that is the real party in interest. Defs.' Mot., ECF No. 21 at 31-32. Defendants are correct, and plaintiffs do not disagree, that plaintiffs' claims against the individual defendants are duplicative of the claims against the District. See 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 of Columbia"); see also Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018 (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").
However, plaintiffs argue that the individual defendants will be responsible for the effective implementation of any prospective declaratory or injunctive relief. Pls.' Opp'n, ECF No. 29 at 41. Precedent in this district recognizes that although retaining a defendant in his or her official capacity may be "redundant, there is no requirement that, because of the equivalence, the public official defendant must be dismissed." See e.g., Owens v. District of Columbia, 631 F. Supp. 2d 48 (D.D.C. 2009). On balance, the Court is persuaded that because of the lack of prejudice, there is no reason to dismiss the redundant claims against the District's officials. Accordingly, the Court DENIES the motion to dismiss the individual defendants at this time.
IV. Conclusion
For the foregoing reasons, defendants' motion to dismiss is DENIED. An appropriate order accompanies this Memorandum Opinion.
SO ORDERED.
[1] Pursuant to Federal Rules of Civil Procedure and Local Rule 5.4(f)(2), the minor individual plaintiffs are identified by their initials.
[2] Therapeutic foster care is not at issue in this case; the plaintiffs have not made any allegations regarding this provision. See generally, Pls.' Compl., ECF No. 3.

[3] When citing to electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the page number of the filed document.
[4] High Fidelity Wrap Around services is an intensive form of case management. Compl., ECF No. 3 ¶¶ 39-41.
[5] Similarly, because the plaintiffs have sufficiently alleged that M.J. has requested, but has not received, these services the government's mootness argument also fails.
[6] Because the Court has found at least one of the plaintiffs has standing in this case the Court has subject matter jurisdiction over the action and need not address defendants' arguments related to Disability Rights D.C.'s standing. See Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014)("To establish jurisdiction, the court need only find one plaintiff who has standing.").
[7] Although plaintiffs' complaint refers to violations of the federal "Medicaid Act," the Medicaid statutory provisions are found in Title XIX of the Social Security Act, codified at 42 U.S.C. § 1396 et seq. Violations of Title XIX of the Social Security Act are properly enforced through 42 U.S.C. § 1983 which provides a cause of action for violations of federal law. See Salazar v. District of Columbia, 954 F. Supp. 278 (D.D.C. 1996).

 
 Case 1:18-cv-01901-EGS-GMH Document 66 Filed 07/01/20 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

M.J., et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

Civil Action No. 1:18-cv-01901 (EGS/GMH)

MEMORANDUM OPINION AND ORDER Plaintiffs, L.R., D.M., and J.J.,1 three children who suffer from mental illnesses, and University Legal Services, Inc., the designated protection and advocacy organization for such individuals in the District of Columbia, have brought a putative class-action lawsuit against Defendants, the District of Columbia and its officials, on behalf of mentally disabled, Medicaid-eligible children who are institutionalized or at risk of institutionalization. According to Plaintiffs, Defendants are not adequately providing certain services to such children as required by federal law. Presently before the Court is Plaintiffs’ motion to compel discovery, in which they seek from Defendants the contact information of (1) 198 children who are potential members of the putative class, (2) those children’s guardians, and (3) those children’s mental health professionals or facilities that have treated them since their birth. Plaintiffs claim that this information is relevant to their efforts to gather evidence for class certification. Defendants object to disclosing this information, asserting that it is not relevant prior to class certification, that Plaintiffs have not demonstrated an adequate need for it, that releasing it would constitute an unwarranted invasion of the

1 Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure and Local Civil Rule 5.4, the minor individual Plaintiffs in this action are identified by their initials. Fed. R. Civ. P. 5.2(a)(3); LCvR 5.4(f)(2). After the Complaint was filed in this action, M.J. withdrew from the case. Minute Order dated Feb. 21, 2020.

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children’s privacy, and—with respect to Plaintiffs’ request for the contact information of the children’s treating mental health professionals or facilities—that it would be unduly burdensome to provide.2
Because Plaintiffs have shown that the contact information of the children and of their guardians is discoverable, their motion to compel is granted in part. However, Plaintiffs’ motion is denied with respect to the disclosure of the contact information of the children’s treating mental health professionals or facilities, as its production would be unduly burdensome and unnecessary at this time.
I. BACKGROUND In August 2018, Plaintiffs filed a putative class-action lawsuit on behalf of Medicaid-eligible children in the District of Columbia who have been diagnosed with a mental health disability and who, according to Plaintiffs, have been unnecessarily institutionalized or are at risk of institutionalization due to Defendants’ alleged failure to provide adequate mental health services in violation of the Medicaid Act, the Americans with Disabilities Act, and the Rehabilitation Act. ECF No. 55-1 at 3 (citing ECF No. 3, ¶¶ 1–9). Plaintiffs have not yet moved for class certification, pending the completion of discovery of information relevant to filing such a motion. See ECF No. 55-1 at 3.
2 Judge Emmet G. Sullivan referred this matter to the undersigned for resolution pursuant to Local Civil Rule 72.2. Minute Order dated Apr. 6, 2020. Under that Rule, “a magistrate judge may hear and determine any pretrial motion or matter other than those specified in [Local Civil Rule] 72.3, and may conduct proceedings and enter orders pursuant to [Local Civil Rule] 16.4.” LCvR 72.2(a). The relevant docket entries considered by the undersigned for purposes of resolving Plaintiffs’ motion are (1) the Complaint (ECF No. 3), (2) the Protective Order (ECF No. 54), (3) Plaintiffs’ motion to compel discovery (ECF No. 55) and its attachments, (4) Defendants’ opposition to Plaintiffs’ motion to compel discovery (ECF No. 59) and its attachments, and (5) Plaintiffs’ reply in further support of their motion to compel discovery (ECF No. 61). The page numbers cited herein are those assigned by the Court’s CM/ECF system.
2

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Plaintiffs served initial discovery requests on Defendants on September 6, 2019. Id. Plaintiffs requested that Defendants identify, on an anonymized basis using unique identification numbers,3 Medicaid-eligible children with a diagnosed mental health disability who, from August 14, 2016, through September 6, 2019, have been institutionalized or have received mental health services indicating that they are at risk of institutionalization. Id.; ECF No. 59-2 at 3–7. In November 2019, Defendants responded to Plaintiffs by identifying a population of approximately 1,900 such children, with each child represented not by name but by a unique identification number. ECF No. 55-1 at 3.
Meanwhile, the parties negotiated a Protective Order addressing the production of confidential information in discovery, which the Court entered in October 2019. Id. at 4. Under the terms of that Order, the following categories of information produced by a party in this matter may be designated as confidential:
1. personal information, including but not limited to, an individual’s home address, telephone number, date of birth, social security number, all personal information that pertains to the financial affairs and health (physical or mental) of the plaintiffs including any state or federal identification number, or any other personal information unique to such individual;
2. information protected by or specifically prohibited from release by statute or regulation, including protected health information and mental health information under [the Health Insurance Portability and Accountability Act (“HIPAA”)] and/or [the District of Columbia Mental Health Information Act (“DCMHIA”)];
3. non-public records relating to the District of Columbia’s internal operations; and,
4. other information that a producing party reasonably and in good faith determines should be subject to the terms of this Protective Order.
3 During a hearing before the Court on Plaintiffs’ motion, Plaintiffs clarified that, for purposes of this case, a unique identification number is an individualized string of random numbers or characters associated with a specific child. Draft Transcript (“Draft Tr.”) at 17–18 (on file with the Chambers of the undersigned).
3

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ECF No. 54 at 1–2. Importantly, the Order requires, among other things, that information designated as confidential be used only for purposes of this action and that any such information obtained through discovery must be returned to the producing party or destroyed following the conclusion of this litigation. See id. at 2, 4, 10.
In December 2019, Plaintiffs served on Defendants the three interrogatories presently at issue. ECF No. 55-1 at 5. Those interrogatories seek information concerning 198 of the approximately 1,900 children anonymously identified by Defendants in response to Plaintiffs’ initial discovery requests; according to Plaintiffs, this number of children (198) is necessary to obtain a statistically significant sample of responses. Draft Tr. at 6. Specifically, the interrogatories request the following information about those children:
INTERROGATORY NO.1: Identify by full name, mailing address, email address, telephone number, and date of birth, each Uniquely Identified Child.4 INTERROGATORY NO.2: Identify by full name, mailing address, email address, telephone number, all Legal Custodians for each Uniquely Identified Child. INTERROGATORY NO.3: Identify by full name, mailing address, email address, telephone number, all Mental Health Professionals or Mental Health Facilities that provided Mental Health Services for each Uniquely Identified Child from the Uniquely Identified Child’s birth to the present. ECF No. 55-1 at 5 (footnote in original). Plaintiffs plan to use the information requested in Interrogatories 1 and 2 to contact those children and their parents or guardians to obtain their authorization to review the children’s personal histories, request mental health records, and conduct interviews of them as part of Plaintiffs’ efforts to establish the requirements for certifying a class under Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, Plaintiffs seek information
4 “The ‘Uniquely Identified Children’ are identified on a schedule to the [i]nterrogatories using the same unique identifying numbers provided by Defendants in response to Plaintiffs’ earlier discovery requests.” ECF No. 55-1 at 5 n.1.
4

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concerning the sample of 198 potential class members to demonstrate that (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.” ECF No. 55-1 at 9 (quoting Fed. R. Civ. P. 23(a)(1)–(4)). After receiving the children’s and their parents’ or guardians’ authorization, Plaintiffs intend to direct requests for medical records to the treating mental health professionals or facilities of the children who wish to assist Plaintiffs in their efforts.5 ECF No. 55-1 at 5–6.
In January 2020, Defendants lodged objections to the interrogatories. ECF No. 59-4. With respect to the information requested by all three interrogatories, Defendants contended that (1) it was protected from disclosure without prior consent under D.C. and federal law, and (2) it was not relevant or proportional to the needs of the case or to issues related to class certification. Id. at 3– 5. With respect only to the information requested in Interrogatory 3—i.e., the contact information of the mental health professionals or facilities that have treated the 198 putative members since their birth—Defendants asserted that producing it would be unduly burdensome because doing so would require Defendants to collect numerous records spanning multiple decades. Id. at 5. Defendants also noted with respect to Interrogatory 3 that it improperly requests information outside the stated time period of Plaintiffs’ initial discovery requests, which begins on August 14, 2016. Id.; see ECF No. 59-2 at 3–7.
Before Plaintiffs filed the motion to compel, the parties met and conferred regarding Defendants’ objections to the interrogatories. ECF No. 55-1 at 7. Those conversations resolved one
5 Plaintiffs note that they will ask consenting putative members for the names of all of their treating mental health professionals or facilities, but that, because it is unlikely that those putative members will possess all of that information, they are requesting that information in Interrogatory 3. Draft Tr. at 20.
5

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objection, as Defendants agreed that HIPAA did not bar disclosure of medical information where, as here, there is a protective order limiting the permitted uses of confidential information solely to litigation and providing that such information must be returned to the producing party or destroyed once the action has concluded. Id. Defendants maintained their relevance and proportionality objections to the interrogatories, as well as their undue burden objection to Interrogatory 3. Id. at 8.
Shortly thereafter, Plaintiffs filed the instant motion to compel discovery, seeking production of the information requested in the interrogatories. ECF No. 55. In support of the motion, Plaintiffs argue that the information is relevant for gathering evidence to establish the four requirements for certifying a class under Rule 23(a)—i.e., numerosity, commonality, typicality, and adequacy of representation. ECF No. 55-1 at 9 (citing Fed. R. Civ. P. 23(a)(1)–(4). Plaintiffs also contend that the D.C. statutes Defendants have invoked prohibiting the disclosure of mental health information—even pursuant to a protective order sufficient under HIPAA—are inapplicable in a federal-question lawsuit brought in federal court, and that Defendants have failed to demonstrate that the production of the information requested in Interrogatory 3 would be unduly burdensome. See ECF No. 55-1 at 10–14.
In response, Defendants raise four primary arguments. Three of those arguments concern only Interrogatories 1 and 2: (1) the putative members’ contact information is not discoverable at this stage because no class has been certified; (2) Plaintiffs have failed to show a sufficient need for obtaining that information; and (3) disclosing that information would constitute an unwarranted invasion of the putative members’ privacy. ECF No. 59 at 6–12. Defendants’ remaining argument—that producing the contact information of the putative members’ treating mental health
6

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professionals or facilities would be unduly burdensome—concerns only Interrogatory 3. Id. at 12– 13.
Plaintiffs’ motion is fully briefed and ripe for adjudication. II. LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This right is subject to Rule 26(b)(2)(C), which limits discovery that is, among other things, burdensome or outside the scope of Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C). When the parties are unable to resolve a discovery dispute, “a party may move for an order compelling disclosure of discovery.” Fed. R. Civ. P. 37(a). “The party that brings the motion to compel bears the initial burden of ‘proving that the opposing party’s answers were incomplete’ and ‘explaining how the requested information is relevant.’” Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 5–6 (D.D.C. 2017) (first quoting Equal Rights Ctr. v. Post Prop., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007), then quoting Jewish War Veterans of the U.S., Inc. v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C. 2007)). “Once that showing has been made, ‘the burden shifts to the non-moving party to explain why discovery should not be permitted.’” English v. Wash. Metro. Area Transit Auth., 323 F.R.D. 1, 8 (D.D.C. 2017) (some quotation marks omitted) (quoting Jewish War Veterans, 506 F. Supp. 2d at 42). “Trial courts have considerable discretion when handling discovery matters, and ‘a district court’s decision to permit or deny discovery is reviewable only for an abuse of discretion.’” United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 9 (D.D.C. 2016) (quoting Food Lion, Inc. v. United Food and Commercial Workers Int’l Union, AFL-CIO-CLC, 103 F.3d 1007, 1012 (D.C. Cir. 1997)).
7

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III. DISCUSSION For the reasons discussed below, the Court finds that Plaintiffs have shown that the information requested in Interrogatories 1 and 2 is discoverable. The Court will therefore grant Plaintiffs’ motion with respect to those interrogatories. However, to ensure that putative class members’ privacy interests are respected, the Court will impose two conditions on the production of information pursuant to those interrogatories. Furthermore, because Defendants have demonstrated that the production of the information requested in Interrogatory 3 would be unduly burdensome and unnecessary, Plaintiffs’ motion will be denied with respect to that interrogatory. As noted previously, Defendants raise three arguments that concern only Interrogatories 1 and 2 and one argument that pertains only to Interrogatory 3.6 Accordingly, the undersigned will first consider Interrogatories 1 and 2 together and then examine Interrogatory 3. A. Interrogatories 1 and 2 To begin, Plaintiffs have met their “initial burden of . . . ‘explaining how the requested information [in Interrogatories 1 and 2] is relevant.’” Oxbow, 322 F.R.D. at 6 (quoting Jewish War Veterans, 506 F. Supp. 2d 42). As Plaintiffs fairly assert without contradiction from Defendants, Interrogatories 1 and 2 are targeted toward gathering information relevant to the numerosity, commonality, typicality, and adequate representation prongs of Rule 23(a). ECF No. 55-1 at 9; see generally ECF No. 59. Specifically, medical information concerning cooperating putative class members will shed light on whether and to what extent the medical services that the named
6 In their initial objections to the interrogatories, Defendants, using boilerplate wording, raised the same general relevance and privacy objections to Interrogatory 3 as they did for Interrogatories 1 and 2. See ECF No. 59-4 at 4–5. However, in their opposition to Plaintiffs’ motion, they raise no such arguments for this interrogatory, focusing instead on undue burden. ECF No. 59 at 13–14. Thus, the Court will consider only Defendants’ undue burden argument with respect to Interrogatory 3. See Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 95 (D.D.C. 2019) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.” (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005))).
8

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Plaintiffs in this action have received are similar to the medical services that other similarly-situated children have received. See Draft Tr. at 6–7 (noting that the information sought by Plaintiffs is necessary for determining the number of putative members and for ascertaining whether “the harms that . . . [the named Plaintiffs have] suffered and the remedies [they request] are common to the class as a whole,” whether the named Plaintiffs’ “experiences are typical of other members of the class,” and whether they are “adequate representative[s] of the class” ); cf. G.D. v. Riley, No. 2:05-CV-980, 2007 WL 2206559, at *1, 3–4 (S.D. Ohio July 30, 2007) (in a putative classaction lawsuit where the plaintiffs alleged the defendant had failed to provide appropriate medical services to Medicaid-eligible children, granting the plaintiffs’ pre-certification motion to compel disclosure of putative members’ medical information for purposes of gathering evidence to satisfy Rule 23(a), and noting that such information was “relevant to the [plaintiffs’] motion to certify”).
Defendants respond to Plaintiffs’ showing not by arguing that the information Plaintiffs seek is irrelevant to class certification, but by arguing that pre-certification discovery of putative class members’ contact information is generally prohibited other than when class representatives seek to provide notification of opt-in or opt-out rights to those putative members. ECF No. 59 at 7. Defendants’ sole support for this statement is their assertion that “[a]t least one court has cast doubt on the propriety of obtaining . . . [putative members’ contact] information in class discovery” for purposes other than providing notification of opt-in or opt-out rights. Id. (citing Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 628 n.2 (7th Cir. 2014)). However, Defendants’ reliance on Sterk is misplaced. There, the Seventh Circuit affirmed the district court’s denial of the plaintiffs’ pre-certification request for putative members’ contact information because the district court had determined that such information was irrelevant to resolving a pending summary judgment motion that was unrelated to class certification. See Sterk, 770 F.3d at 628 n.2 (noting
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that the district court denied the plaintiffs’ request for putative members’ contact information because summary judgment hinged on an unrelated legal question, and “[a]ll material information pertaining to that question had been sought and received by [the] plaintiffs prior to summary judgment”). It did not, as Defendants claim, cast doubt on the propriety of obtaining putative members’ contact information in class discovery for purposes other than providing notification of opt-in or opt-out rights.
Indeed, “[t]he Supreme Court has recognized the importance of allowing class counsel to communicate with potential class members for the purpose of gathering information . . . prior to class certification.” Minns v. Advanced Clinical Emp’t Staffing LLC, No. C 13–03249 SI, 2014 WL 4352343, at *2 (N.D. Cal. May 9, 2014) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 102–03 (1981) (holding that a district court’s order prohibiting plaintiffs’ counsel from communicating with putative members to gather evidence for class certification was an abuse of discretion because “[t]he record reveal[ed] no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order”)); see Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (“[D]iscovery often has been used to illuminate issues upon which a district court must pass in deciding whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation.”). As such, pre-certification discovery of putative members’ contact information “is likely warranted where it will help resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether there are grounds for a class.” Ahmed v. HSBC Bank USA, Nat’l Ass’n, No. ED CV 15–2057–FMO (SPx), 2017 WL 4325587, at * 2 (C.D. Cal. Sept. 25, 2017) (citing Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975)). That is the case here with respect to the information requested in Interrogatories 1 and 2. ECF No. 55-1 at 9; cf. Minns, 2014 WL
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4352343, at *2 (granting pre-certification discovery of putative members’ contact information because that information was “likely to lead to evidence relevant to commonality and typicality”); Wellens v. Daiichi Sankyo Inc., No. C–13–00581–WHO (DMR), 2014 WL 969692, at *2, 3 (N.D. Cal. Mar. 5, 2014) (same where the plaintiffs “intend[ed] to contact [ ] putative class members for investigatory purposes to gather evidence in support of class certification”); Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011) (same where “[t]he contact information and subsequent contact with potential class members [was] necessary to determine whether [the plaintiff’s] claims [were] typical of the class, and ultimately whether the action [could] be maintained as a class action”).
Having found the information requested in Interrogatories 1 and 2 relevant and that its discovery is not generally prohibited, the Court must then consider whether the information is proportional to the needs of the case. Defendants raise two arguments concerning proportionality: (1) Plaintiffs have not demonstrated a sufficient need for the information, and (2) disclosing the information would constitute an unwarranted intrusion into the putative class members’ privacy. Neither argument is availing.7
Defendants first contend that Plaintiffs have failed to show a need for the information requested in Interrogatories 1 and 2 because they already have access to sufficient information to seek class certification. ECF No. 59 at 7–8. However, Defendants provide no support for this contention beyond the vague assertion that Plaintiffs may gather evidence for class certification
7 In considering whether information is proportional to the needs of a case, courts ordinarily weigh the following six factors: “(1) the importance of the issues at stake in [the] action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.” Oxbow, 322 F.R.D. at 6 (quoting Williams v. BASF Catalysts, LLC, No. 11-1754, 2017 WL 3317295, at *4 (D.N.J. Aug. 3, 2017)). Here, however, neither party seeks application of Oxbow, and Defendants’ two arguments concerning the proportionality of the information requested in Interrogatories 1 and 2 are narrower than the factors considered in Oxbow. See generally ECF Nos. 55-1, 59. In any event, because both of Defendants’ proportionality arguments are unavailing, as discussed below, the Court need not apply Oxbow in full.
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using the “[anonymized] information provided by the District in class discovery thus far, and based on other information, such as state reports, that are readily available.” ECF No. 59 at 7 (footnote omitted). Defendants nowhere explain how Plaintiffs could gather evidence using the anonymized information that Defendants have provided, nor have they elaborated on which state reports are “readily available” to Plaintiffs and what those reports contain. See id. More, in weighing the parties’ relative access to relevant information, “courts look for ‘information asymmetry’—a circumstance in which one party has very little discoverable information while the other party has vast amounts of discoverable information. In such a case, ‘the burden of responding to discovery lies heavier on the party who has more information, and properly so.’” Oxbow, 322 F.R.D. at 8 (citation omitted) (quoting Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment). During the hearing before the Court on Plaintiffs’ motion, Plaintiffs asserted that, based on the material currently available to them, they have information concerning perhaps a dozen putative members out of a total (by Plaintiffs’ estimation) of around 2,000 potential class members, while Defendants possess all potential members’ contact information. Draft Tr. at 10, 30. Defendants did not dispute or cast doubt on those assertions at the hearing. See generally id. Thus, “information asymmetry” weighs in Plaintiffs’ favor. Cf. Oxbow, 322 F.R.D. at 8 (granting the defendants’ motion to compel in part because another party possessed all relevant information). Additionally, the fact that Plaintiffs acted appropriately by collecting information about some putative members prior to filing a motion for class certification should not weigh against them now in assessing their need for obtaining information about additional potential members; “otherwise, the [C]ourt would effectively penalize [Plaintiffs’] counsel for having engaged in efforts to locate putative class members.” Wellens, 2014 WL 969692, at *2.
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More persuasive, although ultimately unavailing, is Defendants’ contention that allowing disclosure of the information in Interrogatories 1 and 2 would result in an invasion of the putative members’ privacy. ECF No. 59 at 8–10. Indeed, while Rule 26 “contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984). As Defendants correctly observe, D.C. law robustly protects the confidentiality of third-party mental health information because it does not permit the disclosure of such information in a civil matter, even when the parties have entered into a protective order sufficient under HIPAA. See D.C. Code § 7-1204.03(a) (prohibiting the disclosure of mental health information in a civil proceeding except when a party “initiates his mental or emotional condition or any aspect thereof as an element of the claim or defense”). Defendants, however, appear to concede that D.C. law does not govern in this federal case asserting federal claims. ECF No. 59 at 8. Such a concession would be welltaken; “state laws relating to the privacy of mental health information that are ‘more stringent’ than [ ] HIPAA regulations . . . are unenforceable with regard to federal claims in federal court.” Kalinoski v. Evans, 377 F. Supp. 2d 136, 140 (D.D.C. 2005) (quoting Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir. 2004)). Nevertheless, D.C. law’s strong privacy protections are instructive because, “in determining which interests to weigh in the Rule 26 balance, courts look to statutory confidentiality provisions, even if they do not create enforceable privileges.” In re Sealed Case, 381 F.3d at 1215–16. Thus, “[a]ny protection provided by [a] statute”— even if that statute does not govern in a particular case—is “relevant to the balancing of interests required under Rule 26.” Diamond Ventures, LLC v. Barreto, 452 F.3d 892, 897 n.7 (D.C. Cir. 2006); cf. In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n, 439 F.3d 740, 754 (D.C. Cir. 2006) (in a federal-question case, noting that whether certain documents
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“would have been treated as privileged under various State laws” constituted “an important consideration” in Rule 26 balancing); In re Sealed Case, 381 F.3d at 1216–17 (in a federal-question case, holding that the district court abused its discretion in ordering disclosure of mental health records where it did not take into account, among other things, D.C. law protecting the privacy of such information). As such, the Court must weigh putative members’ privacy interests, taking D.C. law into account—even if that law does not strictly apply to this case—against Plaintiffs’ need for the requested information.
Here, the Court is mindful of the extremely sensitive nature of the information Plaintiffs seek and of the privacy interests at stake. Although Plaintiffs are requesting only the contact information of certain children and their guardians, it is undisputed that, in obtaining this information, Plaintiffs will be made aware of highly sensitive mental health information pertaining to those children, such as the fact that they have been institutionalized, placed in foster care, or are at risk of institutionalization due to a diagnosed mental disability. Draft Tr. at 25. And D.C. law undoubtedly evinces a strong policy of protecting third parties’ privacy interests in their mental health information, as demonstrated by its prohibition on the disclosure of third-party mental health information even where there is a protective order in place. D.C. Code § 7-1204.03(a).
However, as discussed above, Plaintiffs have shown a strong need for the information requested, as it is necessary for them to gather evidence to satisfy Rule 23(a). More, the presence of a protective order—a tool commonly used “to protect the privacy interests of putative class members,” Wellens, 2014 WL 969692, at *3 (collecting cases)—alleviates that privacy concern because, in compliance with HIPAA, the order stipulates that any material labelled as confidential by the disclosing party cannot be used for purposes other than litigating this case and must be
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destroyed or returned to the disclosing party at the conclusion of this action.8 ECF No. 54 at 4, 10; 45 C.F.R. § 164.512(e)(1)(ii), (e)(1)(v); cf. G.D., 2007 WL 2206559, at *3–4 (granting discovery of putative members’ medical information under the condition that the parties enter into a protective order prohibiting the improper use of that information). In addition, University Legal Services, Inc., one of the named Plaintiffs in this matter, is no ordinary litigant, but rather has “for decades, . . . served as the District’s designated Protection and Advocacy Organization . . . empowered under federal statutes to ensure [that] the rights of individuals with mental illnesses are protected.” ECF No. 61 at 9. It is therefore unlikely that Plaintiffs would misuse putative members’ contact or mental health information.
Furthermore, in recognition of the fact that “the information sought by [P]laintiffs is worthy of extraordinary protection,” G.D., 2007 WL 2206559, at *4, the Court will impose two conditions on all information produced pursuant to Interrogatories 1 and 2. See Downey v. Am. Nat’l Prop. and Cas. Co., No. 11-587 MCA/ACT, 2013 WL 12166323, at *4 (D.N.M. Mar. 8, 2013) (“The recognized need for pre-certification discovery is subject to limitations which may be imposed by the court, and any such limitations are within the sound discretion of the court.”). First, all information must be decoupled from the putative members’ unique identification numbers.9 This condition will ensure that Plaintiffs will not be able to identify which medical services each child received, thereby further alleviating privacy concerns. See In re Nat’l Hockey League Players’ Concussion Injury Litig., 120 F. Supp. 3d 942, 955 (D. Minn. 2015) (“[T]he privacy interests of a
8 Under HIPAA regulations, a covered entity may, in response to a discovery request in a civil proceeding, disclose medical records without a patient’s written authorization or court order, as long as “reasonable efforts have been made” by the requesting party “to secure a qualified protective order” that “[p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation” and that “[r]equires the return to the covered entity or destruction of the protected health information . . . at the end of the litigation.” 45 C.F.R. § 164.512(e)(1)(ii), (e)(1)(v). The parties do not dispute that Defendant District of Columbia is an entity covered by HIPAA. See generally ECF Nos. 55-1, 59. 9 Notably, Plaintiffs have represented that they would not object to such a condition. ECF No. 61 at 9.
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patient in his or her medical records [are] tied to identity information contained in the records. Once the identifying information is removed from the record, the patient’s privacy interest is essentially eliminated.” (alteration in original) (quoting United States ex rel. Roberts v. QHG of Ind., Inc., No. 1:97–CV–174, 1998 WL 1756728, at *8 (N.D. Ind. Oct. 8, 1998))). If the putative members choose to disclose their medical history to Plaintiffs, they may do so. Second, any birthdates disclosed to Plaintiffs must omit the precise day of each putative member’s birth and include only the birth month and year, because only the latter information is relevant for when putative members will age (or have aged) out of the putative class.10 With these restrictions, the putative members’ privacy interests will be adequately protected. Cf. Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL 309485, at *6–7 (E.D. Cal. Jan. 30, 2007) (granting disclosure of third-party medical information outside of the class-action context and noting that “a protective order and proper redaction will safeguard third parties’ privacy issues”).
Accordingly, Plaintiffs’ motion is granted with respect to the information requested in Interrogatories 1 and 2, subject to the conditions set forth above.
B. Interrogatory 3 While Defendants’ arguments regarding Interrogatories 1 and 2 are unavailing, their assertion that producing the information requested in Interrogatory 3 would impose an undue burden is correct. Again, that interrogatory seeks the contact information of the putative members’ treating mental health professionals or facilities dating back to the putative members’ birth. Responding to that request would require Defendants to comb through numerous records dating back to the births of 198 individuals. ECF No. 59 at 12–13. Specifically, Defendants would be required first
10 Plaintiffs have stated that the age of each of the 198 children is all they need in order to ascertain when each child will age (or has aged) out of the putative class; they do not need to know the exact date each child was born. Draft Tr. at 14–15.
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to locate all the billing records in their possession regarding each putative member’s medical procedures. Draft Tr. at 32. From those billing records, Defendants would then have to extract the contact information of the mental health professionals or facilities associated with each procedure. Id. at 33. Multiply that task by the 198 individuals covered by Interrogatory 3 and by every year of each individual’s life since birth, and the burden of the undertaking is self-evident.
In addition to being burdensome to produce, the information would presently be of no benefit to Plaintiffs prior to obtaining the putative members’ and their parents’ or guardians’ consent to access their medical records. Until such consent is provided, the treating mental health professionals or facilities would be unable to disclose to Plaintiffs any medical information pertaining to the putative members. Id. Put differently, the information requested in Interrogatory 3 is of no value to Plaintiffs before they obtain the information requested in Interrogatories 1 and 2 and secure the consent of the putative members and their parents or guardians to access their medical records. And if any putative member or her parent or guardian declines consent, all contact information produced pursuant to Interrogatory 3 would have been for naught, as Plaintiffs would remain unable to access any non-consenting individual’s medical records from their treating mental health professionals or facilities—or, indeed, from any other source. Id.
Thus, granting Plaintiffs’ motion with respect to Interrogatories 1 and 2 so that Plaintiffs can secure the consent of putative members and their parents or guardians, and denying that motion with respect to Interrogatory 3, is both more efficient and more respectful of putative members’ privacy. See Molock v. Whole Foods Mkt. Grp., Inc., 952 F.3d 293, 299–300 (D.C. Cir. 2020) (“‘[D]istrict courts have broad discretion in structuring discovery’ to limit unnecessary or overly burdensome requests . . . .” (quoting Hussain v. Nicholson, 435 F.3d 359, 363 (D.C. Cir. 2006))). Plaintiffs should first contact the putative members using the information provided pursuant to
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Interrogatories 1 and 2 and seek the information requested in Interrogatory 3 from the putative members who choose to assist Plaintiffs. If Plaintiffs are unable to obtain that information from any consenting putative member, they may seek it from Defendants through a new discovery request.11
Accordingly, Plaintiffs’ motion to compel with respect to Interrogatory 3 is denied. IV. CONCLUSION
For the reasons stated above, it is hereby ORDERED that Plaintiffs’ motion to compel discovery (ECF No. 55) is GRANTED IN PART and DENIED IN PART. Specifically, the motion is granted with respect to the information requested in Interrogatories 1 and 2, subject to the requirements that (1) any contact information produced pursuant to those interrogatories shall be decoupled from unique identification numbers, and (2) any birthdates produced pursuant to those interrogatories shall include only the birth month and year. With respect to the information requested in Interrogatory 3, Plaintiffs’ motion is denied. SO ORDERED.

Date: July 1, 2020

2020.07.01
__________________1__1_:4_1__:3_4__-_0_4_'_0_0_'__
G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

11 Defendants have represented that, if Plaintiffs first secured the consent of putative members and their parents or guardians to access their medical records, and if Interrogatory 3 were worded such that Plaintiffs were requesting information associated with consenting putative members, there would be “no privacy concern” with respect to disclosing such information, and the burden of producing that information would be “significantly reduced.” Draft Tr. at 25. In light of these representations, the Court expects that the parties will cooperate in requesting and producing any contact information of treating mental health professionals or facilities that consenting putative members do not possess.
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