UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

OSCAR SALAZAR, et al., 

Plaintiffs, 

v. Civil Action No. 93-452 (GK) 

DISTRICT OF COLUMBIA, et al., 

Defendants. 

MEMORANDUM OPINION 

I. INTRODUCTION 

The District of Columbia ("the District," "D. C." or 

"Defendants") manages a large Medicaid program, see 42 u.s.c. 

§ 1396 et ~' which provides healthcare benefits for eligible 

children and adults. In 1993, Plaintiffs filed a Complaint alleging 

various statutory and constitutional violations in the course of 

the District's provision of these much-needed benefits for 

children and low income adults. 

In 1996, following a bench trial, the Court found the District 

liable for violations of statutory provisions of the Medicaid 

statute and other federal law: (1) the District did not process 

and decide applications for Medicaid eligibility in a timely 

manner; (2) the District did not provide adequate advance notice 

before suspending or terminating benefits; (3) the District failed 

to provide early and periodic screening, diagnostic and treatment 
( "EPSDT") services for children under 21 years of age when 

requested; and (4) the District did not adequately notify eligible 

families regarding the availability of EPSDT services. See Salazar 

v. District of Columbia, 954 F. Supp. 278, 324-34 (D.D.C. 1996). 

On January 25, 1999, the Parties' negotiated, and the Court 

entered, a Settlement Order memorializing the District's 

I obligations to remedy these violations. See Order Modifying the 

i 

Amended Remedial Order of May 6, 1997 and Vacating the Order of 

March 27, 1997 [Dkt. No. 663) (referred to throughout as the 

"Settlement Order"). Some elements of that Settlement Order remain 

in place today. 

On March 23, 2010, President Obama signed the Patient 

Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 

124 Stat. 119, et~' ("ACA"), ushering in major reforms in many 

different areas of the American health care system, including farreaching changes to the District's Medicaid program. 

The Court predicted that "implementation [of the ACA's 

reforms] w [ould] undoubtedly be both rocky and fairly long in 

coming." Amended Memorandum Opinion and Order of Oct. 17, 2013 

at 6 [Dkt. No. 1886). That prediction has been borne out, but no 

one -- neither the Parties nor the Court -- anticipated the scope 

and difficulty of the problems that have arisen. Although the 

District has devoted huge amounts of staff time and other resources 

to, essentially, rewrite the Medicaid program to comply with the 

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ACA, Plaintiffs have identified severe technical and logistical 

problems in the processing of initial Medicaid applications and in 

the Medicaid benefits renewal process. These problems have 

affected thousands of Medicaid beneficiaries and have deprived 

many District residents of necessary medical care to which they 

are entitled. 

In light of the severe backlogs in the processing of Medicaid 

applications, delays in the Medicaid renewal process, and a number 

of computer glitches caused by ACA-related changes to the 

District's administration of the Medicaid program, Plaintiffs 

filed, on December 22, 2015, a Motion for Preliminary Injunction 

Concerning District of Columbia Medicaid Applications and Renewals 

("Pls.' Mot. for P.I.") [Dkt. No. 2070), seeking preliminary relief 

on behalf of Medicaid applicants and recipients in the District 

who may be prejudiced by these implementation difficulties. 

Plaintiffs' Motion seeks a two-pronged order requiring 

1) that [the District] shall provisionally approve all 

Medicaid applications pending over 45 days until a 

final determination can be made; [and] 

2) that [the District] shall continue the eligibility 

of all Medicaid recipients due [to have their 

Medicaid benefits] renewed or recertified[.] 

See Proposed Order accompanying Pls.' Mot. for P.I. 

No. 2070-1). 

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[Dkt. 
On January 15, 2016, the District filed its Opposition to 

Plaintiffs' Motion for a Preliminary Injunction ("Defs.' Opp'n to 

P.I.") [Dkt. No. 2077], and on January 29, 2016, Plaintiffs filed 

their Reply in Support of their Motion ("Pls.' Reply in Support of 

P.I.") [Dkt. No. 2083]. 

On February 9, 2016, Plaintiffs chose to supplement their 

request for preliminary relief with a Motion for Modification of 

the Settlement Order ("Pls.' Mot. for Mod.") [Dkt. No. 2093], which 

seeks relief on a permanent basis that is nearly identical to the 

relief requested in their Motion for Preliminary Injunction. 

Compare Proposed Order accompanying Pls.' Mot. for P.I. [Dkt. No. 

2070-1] with Proposed Order Accompanying Pls.' Mot. for Mod. [Dkt. 

No. 2093-5]. Plaintiffs' requests for relief are identical except 

that the Proposed Order accompanying their Motion for Modification 

adds one additional duty: "that during the time this Order is in 

effect, [D]efendants shall report monthly on their compliance with 

its terms." Proposed Order Accompanying Pls.' Mot. for Mod. at 2. 

On February 26, 2016, the District filed its Opposition to 

Plaintiffs' Motion for Modification ( "Defs.' Opp' n to Mot. for 

Mod.") [Dkt. No. 2097]. On March 9, 2016, Plaintiffs filed their 

Reply in Support of their Motion for Modification ("Pls.' Reply in 

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Support of Mot. for Mod.") [Dkt. No. 2102]. On March 28, 2016, the 

District filed its Surreply [Dkt. No. 2108] .1 

Before Plaintiffs' second Motion was fully briefed, on 

February 19, 2016, the Court held an on-the-record teleconference 

with the Parties to discuss how best to resolve Plaintiffs' 

Motions. Both Parties agreed with the Court that the two Motions 

are deeply intertwined and best resolved concurrently. 2 

Thus, on February 19, 2016, with the Parties' consent, the 

Court decided to resolve the two Motions simultaneously. 

Plaintiffs and the District rely to a large extent on the same 

factual and legal arguments in support of their positions on the 

Motion for Preliminary Injunction as they do with respect to the 

Motion for Modification of the Settlement Order. See Pls.' Mot. 

for Mod. at 2 (incorporating into Motion for Modification all 

1 On March 14, 2016, the District filed a Motion to Strike New 

Evidence Submitted in Plaintiffs' Reply Brief in Support of Their 

Motion for Modification of the Settlement Order [Dkt. No. 2103]. 

The Court denied that Motion, and instead, permitted the District 

to file a Surreply. See Order [Dkt. No. 2104]. 

2 Federal Rule of Civil Procedure 65(a), which governs preliminary 

injunction motions, supports consolidated consideration of the 

merits and a request for preliminary injunction. See Fed. R. Civ. 

P. 65 (a) (2) ("Before or after beginning the hearing on a motion 

for a preliminary injunction, the court may advance the trial on 

the merits and consolidate it with the hearing."); see also United 

States v. W. Elec. Co., 46 F.3d 1198, 1207 n.7 (D.C. Cir. 1995) 

(" [A] trial court has inherent power to control the sequence in 

which it hears matters on its calendar and to decide whether to 

consolidate the proceedings on motions."). 

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"briefing and evidence submitted in connection with [] Motion for 

a Preliminary Injunction"); Defs.' Opp'n to Mod. for Mod. at 1. 

Additionally, Plaintiffs request precisely the same relief in 

their Motion for Preliminary Injunction and in their Motion for 

Modification (with the one exception of a request for monthly 

reports from the District, which appears only in the latter 

Motion). Because Plaintiffs' two Motions rest on the same factual 

and legal foundations and call for nearly identical relief, it is 

clear that the merits question presented by the Motion for 

Preliminary Injunction is the same as the question presented by 

the Motion for Modification. 

Although the District has made substantial progress since 

Plaintiffs' initial filing on December 22, 2015, in addressing the 

problems caused by changes in its administration of the Medicaid 

program to comply with the ACA, it is clear from the Parties' 

submissions that significant obstacles remain. These obstacles 

stand between Medicaid eligible individuals and the healthcare to 

which they are entitled. For that reason, as well as others, 

Plaintiffs' Motion for Modification of the Settlement Order shall 

be granted with certain modifications to the requested relief, and 

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Plaintiffs' Motion for Preliminary Injunction shall be denied as 

moot. 3 

II. BACKGROUND 

A. Prior Relevant Orders in This Case 

In 1993, when Plaintiffs filed this class action the Plaintiff 

class ultimately certified consisted of "a collection of several 

sub-classes, with each sub-class consisting of Medicaid applicants 

and recipients with a particular set of claims." Memorandum Opinion 

at 2 [Dkt. No. 2046]. At the time of trial, the following subclasses remained: 

All persons who have applied, have attempted to apply, 

or will apply in the future during the pendency of this 

litigation, for medical assistance pursuant to Title 19 

of the Social Security Act ("Medicaid"), and all persons 

who have received, are receiving, or will receive in the 

future during the pendency of this litigation, Medicaid 

in the District of Columbia with respect to the following 

claims: 

Any claims for declaratory, injunctive, or other relief 

premised on an alleged delay in excess of 45 days in the 

processing of Medicaid applications [Sub-class III] 

Any claims for declaratory, injunctive, or other relief 

premised on an alleged lack of advance notice of the 

discontinuance, suspension or obligation to recertify 

Medicaid benefits, after being found eligible [Subclass IV] 

Any claims for declaratory, injunctive, or other relief 

premised on an alleged lack of effective notice of the 

3 The Court notes that both Parties submitted extremely 

well-written briefs, which made its job a trifle easier. 

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availability of early and periodic screening, diagnostic 

and treatment ("EPSDT") services for children under 21 

years of age, and/or an alleged lack of EPSDT services 

for eligible children under 21 years of age [Subclass V] . 4 

Order at 1-2 [Dkt. No. 100] (brackets in original) . , 

After years of litigation and some successful negotiation by 

the Parties, on October 16, 1996, the Court issued a 58-page 

Opinion setting forth extensive findings of fact and conclusions 

of law. See Salazar, 954 F. Supp. 278. "In particular, the Court 

ruled that Defendants had failed to process Medicaid applications 

for non-disabled, non-foster care [non-public assistance] 

applicants within 45 days, had terminated or suspended eligible 

persons' benefits without adequate notice, had failed to provide 

EPSDT services to eligible families, and had failed to notify those 

eligible families about the availability of such services." 

Memorandum Opinion of December 28, 1998 at 2 [Dkt. No. 653] 

(summarizing findings detailed in Salazar, 954 F. Supp. 278). 

In order to remedy these violations of the law and to avoid 

further litigation, the Parties crafted and agreed upon the terms 

of a Settlement Order, which the Court entered on January 25, 1999. 

See Settlement Order at 1 [Dkt. No. 663] . Section II of the 

Settlement Order detailed steps the District was to take to redress 

problems related to the timely processing of initial applications 

4 Claims corresponding to Sub-classes I and II were resolved before 

trial. See Memorandum Opinion at 4 n.2 [Dkt. No. 2046]. 

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for Medicaid on behalf of members of Sub-class III. Settlement 

Order ,, 6-16. In general, Section II required the District to 

decide Medicaid applications and notify beneficiaries of its 

decision within 45 days of receiving an application. Id. , 6(a). 

The Settlement Order also provided that if the District 

demonstrated compliance over three consecutive years, Section II 

of the Order would terminate. Id. , 74. 

On February 24, 2009, the District notified the Court that it 

had satisfied the exit criteria for. Section II and represented 

that Plaintiffs were in agreement with that position. See Consent 

Motion to Vacate Sections II and IV of the Settlement Order of 

January 22, 1999 [Dkt. No. 1443] . 5 The District therefore 

requested, with Plaintiffs' consent, that the Court vacate 

Section II. Id. The Court granted the District's Motion to Vacate 

that same day. See Minute Order of Feb. 24, 2009. 

Section III of the Settlement Order concerned the annual 

recertification6 of Medicaid benefits on behalf of Sub-class IV. 

5 Section IV of the Settlement Order concerned the Eligibility 

Verification System by which the District determined the Medicaid 

eligibility of District residents. That Section was also vacated. 

See Minute Order of February 24, 2009. 

6 As Plaintiffs note, "recertification" of Medicaid benefits is 

now generally referred to as "renewal." It is the process by which 

Medicaid beneficiaries are annually subject to review of their 

continued eligibility for Medicaid benefits based on income, 

family status, and other factors. See Pls.' Ex. 23 at 009-010 [Dkt. 

No. 2070-21]. This Memorandum Opinion uses "recertification" and 

"renewal" interchangeably. 

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See Settlement Order ~~ 17-28. At the time the Settlement Order 

was issued, Medicaid required the District to provide annual 

recertification forms to beneficiaries that they were required to 

complete in order to retain their Medicaid benefits. Section III 

required the District to mail recertification forms and various 

notices to advise beneficiaries of their recertification status. 

Id. ~ 17. Section III's requirements were specific, setting forth 

a schedule which the District was required to adhere to and 

language that the District was required to use. Id. 

Passage of the ACA in March of 2010 ushered in a host of 

changes to the Medicaid program, including significant 

modifications to the Medicaid re certification process. The ACA 

requires the District to move to a "passive renewal" model in which 

beneficiaries' eligibility is determined to the extent possible on 

the basis of reliable information available to the District, such 

as data available through the IRS or the Social Security 

Administration. See 42 C.F.R. § 435.916. Section III of the 

Settlement Order does not rest on the ACA's passive renewal model. 

Instead, it assumes that Medicaid beneficiaries would have to 

actively renew their benefits on an annual basis. 

In light of the ACA' s October 1, 2013 effective date for 

.significant changes to the Medicaid renewal process, see Amended 

Memorandum and Order at 2 [Dkt. No. 1886], on September 20, 2013, 

the District filed a Motion to Modify the Settlement Order [Dkt. 

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No. 1870] pursuant to Federal Rule of Civil Procedure 60(b) (5). 

The District asked the Court to relieve it from complying with 

Section III entirely, contending that it could not implement the 

ACA's passive renewal system while still bound by the conflicting 

provisions of Section III. Motion to Modify the Settlement Order 

at 1. Plaintiffs opposed the District's Motion, arguing that 

limited modifications to Section III could address any apparent 

conflicts between the ACA and Section III. Plaintiffs' Brief in 

Opp'n at 1-2 [Dkt. No. 1876]. 

On October 17, 2013, the Court granted the District's Motion. 

See Amended Memorandum Opinion and Order [Dkt. No. 1886]. The Court 

found that "[t]here is simply no comparison between the statutory 

framework that existed at the time this Court made its factual 

findings in 1996 and what implementation of the ACA envisions[.]" 

Moreover, many of the ACA' s renewal provisions "are in direct 

conflict with the renewal process in Section III." Id. at 6. 

Accordingly, the Court "conclude[d], pursuant to Fed. R. Civ. P. 

60 (b) (5), that passage of the ACA has created a 'significant change 

in circumstances' that justifies termination of the provisions of 

Section III of the Consent Order." Id. at 5. Notably, Plaintiffs 

declined to appeal the Court's termination of Section III. 

Thus, following the termination of Section II.I, no provisions 

of the Settlement Order relating to Medicaid application 

processing or benefits renewal remained in effect. The only 

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portions of the Settlement Order affecting programmatic elements 

of the District's Medicaid program that remained in force related 

to the delivery of EPSDT services. See Settlement Order Sections 

V & VI. 

Sections V & VI of the Settlement Order resolve the claims of 

Sub-class V, which were premised on the lack of effective notice 

of the availability of EPSDT services for children under 21 years 

of age and the failure to provide those services. Order at 1-2 

[Dkt. No. 100] . Section V sets forth detailed procedures for 

providing and tracking the provision of EPSDT services through 

entities that participate in the District's Medicaid program. See 

Settlement Order Section V. Section VI sets forth similarly 

detailed procedures for providing notice to eligible Medicaid 

beneficiaries regarding the availability and nature of EPSDT 

services. See id. Section VI. 

In 2014, the District reported to the Centers for Medicare 

and Medicaid Services ("CMS") that there were 98,350 children in 

the District eligible for EPSDT services under Medicaid. Form CMS416, line la [Dkt. No. 2039-1]. As of October 2014, there were a 

total of 247, 850 District residents on Medicaid. Pls. Ex. 61, 

column 1 [Dkt. No. 2102-1] (figure reflects subtraction of certain 

non-Medicaid beneficiaries included in the District's data). Thus, 

children eligible for EPSDT services constitute a large portion of 

the District's Medicaid population. 

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B. ACA Implementation 

Beginning on October 1, 2013, the District began processing 

Medicaid applications pursuant to new eligibility rules 

established by the ACA and its implementing regulations. See 42 

U.S.C. § 1396a(e) (14); 42 C.F.R. §§ 435.603, 457.315(a). In order 

to facilitate implementation of the ACA's new rules, the District 

took steps to build a new, automated Medicaid application and 

eligibility determination system called the DC Access System 

( "DCAS") , which is intended to eventually entirely replace the 

District's legacy system, called the Automated Client Eligibility 

Determination System ( "ACEDS") . Schlosberg Deel. ~~ 14-15 [Dkt. 

No. 2077-1] . 

As required by ACA regulations, the District also implemented 

a "no wrong door" approach to applications under which individuals 

may apply for Medicaid benefits online through DCAS, on paper, by 

telephone, or in person at D. C. Department of Human Services 

("DHS") Economic Security Administration ("ESA") Service Centers 

("Service Centers"). See 42. C.F.R. § 435.907(a). Finally, the 

District took steps to establish a system for processing "passive 

renewals" of Medicaid benefits, as required by the ACA. See 

42 C.F.R. § 435.916. 

These changes did not go smoothly. The Parties disagree as to 

the scope of the problems that developed; however, it is clear 

that thousands of Medicaid beneficiaries were affected by (1) the 

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District's failure to process Medicaid applications within 45 days 

in violation of 42 C.F.R. § 435.912(c) (3) and D.C. Code§ 4-205.26 

(2014); and (2) the District's failure to timely renew Medicaid 

benefits or to provide adequate notice to Medicaid recipients 

before 'terminating their benefits in violation of federal law. 

The roots of these failures are technical in nature, but the 

facts below demonstrate the deeply personal calamity that befell 

many Medicaid applicants and beneficiaries when they and their 

children were unable to get the care to which they were entitled. 

The number and narratives of affected District residents 

demonstrate the gravity of the situation, as the following 

information shows. 

1. Initial Processing 

The District of Columbia is required to make an eligibility 

determination on all Medicaid applications within 45 days of 

submission. 42 C.F.R. § 435.912(c) (3); D.C. Code § 4-205.26. 7 

During 2015 and the beginning of 2016, the District failed to 

comply with this duty. 

Around March or April 2015, the District became aware that as 

many as 12,000 applications were listed as pending in the DCAS 

system for 45 days or more. Pl. Ex. 1 at 3 [Dkt. No. 2070-2]. The 

7 The one exception is for applicants who apply for Medicaid on 

the basis of disability, whose applications must be adjudicated 

within 90 days. 42 C.F.R. § 435.912(c) (3) (i). 

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District had previously been unaware of this backlog until staffmembers ran new queries as part of their backlog reports. Id. 

The District states that the 12,000 application figure 

overstates the number of District residents who had actually been 

denied Medicaid coverage. For instance, of the approximately 

12,000 cases appearing on the report, around 15 percent already 

had active Medicaid coverage. Schlosberg Deel. ~ 69. Another 

quarter of these cases were applications that had been determined 

to be ineligible, but the system simply had not closed them out. 

Id. Even if these figures are accurate, approximately 7,000 

applications - and people -- were affected. 

In August 2015, the District reported that there were still 

5,263 applications 8 that had been pending in DCAS for more than 45 

days. Pl. Ex. 2 at DHCF 32 [Dkt. No. 2070-3]. District staff 

"work[ed] overtime to resolve these cases as soon as possible," 

but as of November 23, 2015, there were still 5, 215 Medicaid 

applications in_DCAS pending over 45 days. Pl. Ex. 21 Response 

5 (c) &(d) [Dkt. No. 2070-19]. By December 2015, the District had 

reduced the number of pending applications to 4,497. See Pl. Ex. 

8 A household with several members will sometimes submit a single 

application, Pl. Ex. 21 Response 5(b) [Dkt. No. 2070-19]; thus, 

the number of individuals affected by the backlog may be larger 

than the application backlog figures. · 

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1 at 3 [Dkt. No. 2070-2] (figure combines pending and 

stuck/malformed applications) . 

The backlog of applications can be divided into two main 

groups, based on the source of the problem.9 The first group of 

backlogged applications, the "stuck/malformed" group, consisted of 

approximately 1,970 cases as of December 2015. "A malformed case 

is a case that did not generate all the information to create a 

fully formed case when it was entered into the system [case worker 

portal] because of a technical system issue." See Pl. Ex. 23 at 6 

[Dkt. No. 2070-21]. As the District of Columbia Department of Human 

Services explains, "[w]hat this means . [is that] [t]here are 

individuals who are not get ting Medicaid that should be. " Pl. Ex. 2 

at DHCF 34. 

The second group of backlogged applications, the "case 

processing backlog," consisted of 2,527 individuals as of December 

2015. Pl. Ex. 1 at 3. The case processing backlog is a catch-all 

category, which consists of applications that have not been 

processed due to the District's inability to verify income, 

residency, or some other type of required verification or due to 

other "[computer] system performance issues." Id. 

9 In addition to the serious backlog of applications in the DCAS 

system, as of August 2015, "there [wa] s a paper application 

backlog" as well. Pl. Ex. 2 at DHCF 35 [Dkt. No. 2070-3]. However, 

the Parties have not indicated the size of the paper application 

·backlog. 

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As of August 2015, over 1,500 applicants in the case 

processing backlog had not been notified that their applications 

could not be processed because of the District's inability to 

verify some piece of information. Pl. Ex. 2 at DHCF 32. Plaintiffs 

point out that since the backlog was discovered in March or April 

of 2015, it is possible that, as of late December, 2015, many of 

the backlogged applications had been pending for nine months or 

longer. 

In addition to the serious application backlogs, Plaintiffs 

also describe significant hurdles facing Medicaid applicants as 

they attempt to file their initial applications. Plaintiffs cite 

evidence that documents scanned into the District's document 

management system cannot always be found and must often be 

resubmitted. See Pls. Ex. 42 at 20 [Dkt. No. 2070-40]. The 

testimony of Medicaid advocates who assist Medicaid beneficiaries 

on a daily basis demonstrates that lost or misplaced paperwork is 

a substantial problem. See, ~, Loubier Deel., Pl. Ex. 27 ~ 9 

[Dkt. No. 2070-25]; Bread for the City Deel., Pl. Ex. 24 ~ 11 [Dkt. 

No. 2070-22]; Legal Aid Deel., Pl. Ex. 26 ~~ 5, 17 [Dkt. No. 

2070-24] . 

A review of DHS Service Centers conducted by Medicaid 

advocates in February 2015 observed widespread problems with 

document processing. See Legal Aid Deel., Pl. Ex. 26 ~~ 2(b)-(c), 

7-15, 18. As part of this review, Medicaid advocacy organizations, 

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including Plaintiffs' counsel, made 12 visits to three DHS service 

centers in February 2015 and spoke with approximately 309 people 

in line. Id. ~ 7. In March 2015, the DC Fiscai Policy Institute 

and the Legal Aid Society of the District of Columbia provided 

testimony to the District of Columbia City Council's Committee on 

Health and Human Services that analyzed the data from these visits. 

They testified that consumers were often required to "make return 

trips to Service Centers to correct improper benefits terminations 

and denials caused by ESA failing to process their paperwork." Pl. 

Ex. 8 at 2 [Dkt. No. 2070-9]. 

Subsequent visits by these same organizations to the service 

centers in June 2015 again found numerous individuals standing in 

line to resubmit documentation they had already provided, many now 

facing denial or termination of benefits due to Defendants' failure 

to process the paperwork in the first instance. See Legal Aid 

Deel., Pl. Ex. 26 ~~ 13 (a), (c), (d), (e), (g), (h); 15 (a), (c). 

After Plaintiffs filed their Motion for Preliminary 

Injunction on December 22, 2015, the District continued its efforts 

to reduce the two backlog groups. It made impressive progress. "As 

of February 24, 2016, zero individuals were in the case processing 

backlog (down from 1,247 individuals on January 11, 2016), and as 

of February 23, 2016, . 67 initial applications were affected 

by the [stuck/malformed] issue (down from 1,408 on January 11, 

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2016) ." Defs.' Opp'n to Mot. for Mod. at 3 (citing Second 

Schlosberg Deel. ~~ 4-5 [Dkt. No. 2097-1]). 

The District has attempted to make whole applicants who were 

eventually determined to be Medicaid eligible: "Where a 

beneficiary was determined eligible but had not received a 

determination, the individual was notified and approved 

retroactively to the date of the initial application along with 

instructions on how to request reimbursement for any eligible outof-pocket expenses." Defs.' Opp'n to P.I. at 14 (citing Schlosberg 

Deel. ~ 70) ~ 

The District also represents that many of the "root causes of 

problems have been identified and will be resolved in an upcoming 

update to DCAS," and that "in the meantime caseworkers have been 

provided additional training and guidance to navigate any new or 

remaining [stuck/malformed] cases while managers continue to 

receive reports to track pending cases." Defs.' Opp'n to Mot. for 

Mod. at 3 (citing Second Scholsberg Deel. ~ 6). "In addition, the 

District has also implemented automated batch processes through 

which initial applications [that do not require the verification 

of additional information] . . . are automatically activated with 

Medicaid coverage." Id. (citing Second Scholsberg Deel. ~ 7). 

Finally, to provide a sense of scale, the District notes that 

"[s]ince October 2013, over 33,000 new electronic applications for 

Medicaid were process~d in DCAS on the same day they were 

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submitted." Gov't's Opp'n to Mot. for P.I. at 7 (citing Schlosberg 

Deel. ~ 99). 

While the District's progre.ss in reducing the Medicaid 

application backlogs is laudable, Plaintiffs argue that the 

District has not "put in place a durable remedy to ensure that 

Medicaid applications will be decided within 45 days." Pls.' Reply 

in Support of Mot. for Mod. at 13. They note that "four of the 

root causes for the stuck/malformed defect in the District of 

Columbia computer system remain unresolved and that several new 

applications are still affected by those defects every day." Id. 

(citing Second Schlosberg Deel. ~ 6; Defs.' Opp'n to Mot. for Mod. 

at 3) . 

Moreover, Plaintiffs contend that the issues of long Service 

Center wait times, paperwork loss, and processing delays have not 

been remedied. They set forth a particularly enlightening example 

to sharpen their point: 

On November 24, 2015, Ms. [Nurian] Flores Rivas 

submitted an application for Medicaid benefits for her 

two minor children and [received] a receipt for the 

visit. [] Pl. Ex. 62 ~ 8 [Dkt. No. 2102-2] .... Over 

three months later, she ha[d] received no written 

decision. Even with the assistance of a Legal Aid lawyer, 

Ms. Flores Rivas has received conflicting information 

about the status of her application. [DCAS] Customer 

Service found a record of application only for her son 

and not for her daughter and also found an approval for 

her son. The ESA Customer Service [representative], whom 

she was told to contact next, saw no record of any 

application for either her daughter or her son and no 

record of any approval for her son. Id. ~ 8(e). [As of 

March 9, 2016, after the date the District represented 

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that it had eliminated the application backlogs], Ms. 

Flores Rivas ha[d] not received a notice of DHS's 

determination concerning her children's application[,] 

and they [could not] access Medicaid benefits. Id. ~ 

8 ( g) . 

Pls.' Reply in Support of Mot. for Mod. at 15. 

The District responds to this particular example by 

contending that individualized mistakes, rather than systemic 

problems led the Flores Rivas children's loss of coverage. See 

Defs.' Surreply at 6. It notes that "ESA records indicate that a 

caseworker erroneously labeled the application [submitted by Ms. 

Flores Rivas on November 24, 2015] as a recertific~tion instead of 

an application. Ms. Flores Riva's son was approved for 

Medicaid but the daughter was not approved because her application 

was mislabeled." Id. 

The District's attempt to separate the mistakes of individual 

District employees from the systemic issue plaguing the Medicaid 

system is unconvincing. The two are interrelated. Just as the 

complexity of the system increases the opportunity for individual 

errors, individual errors combine to form systemic problems. 

Accordingly, it is clear that despite its substantial 

progress, the District has still not been able to entirely 

remediate the problems that Plaintiffs document. 

2. Benefit Renewals 

In the 1996 merits Opinion, the Court held that "[t] he 

District of Columbia is required, under federal law, to give 

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Medicaid recipients timely and adequate notice of proposed action 

to terminate, discontinue, or suspend their eligibility and to 

provide an opportunity for a hearing if it takes such action." 

Salazar, 954 F. Supp. at 326 (internal brackets and quotation marks 

omitted). 

Under the ACA' s implementing regulations, the District is 

required to "passively" renew10 the Medicaid benefits of Medicaid 

beneficiaries "if able to do so based on reliable information 

contained in the individual's account" or if such information is 

otherwise available to the agency through federal and local 

databases and other sources. See 42 C.F.R. § 435.916(a) (2). If 

sufficient information is available to the agency to permit an 

eligibility determination, the Medicaid recipient cannot be 

required to take any action. Id. If sufficient information is not 

available to passively renew an individual, the agency must mail 

a form that contains the information already available to the 

agency and ask the Medicaid recipient to complete the missing 

portions and return the form by telephone, e-mail, online, or in 

person. 42 C.F.R. § 435.916 (a) (3). The latter process is referred 

to as "manual" renewal. 

1 0 The "passive renewal" occurs when a Medicaid recipient's 

benefits are renewed without the recipient having to provide any 

additional information to the District. 

-22-
•. 

Ordinarily, if the information available to the District is 

insufficient to establish ongoing Medicaid eligibility, the 

beneficiary is sent a form 60 days prior to the renewal date. 

Scholsberg Deel. ~ 33. The form instructs the beneficiary to return 

the form after adding the needed information. Id. If the 

beneficiary does not return the form, the beneficiary is provided 

30 days' notice that benefits will terminate if the form is not 

returned before the renewal date. Id.; see also MAGI 30-day Notice, 

Def s. Ex. D [Dkt. No. 2 077-4] . Recipients of this notice. are 

advised of their appellate rights. Schlosberg Deel. at ~ 33; Defs. 

Ex. D. However, when an individual fails to provide the needed 

information on time, the District extends a 90-day grace period, 

meaning that benefits will terminate at the end of the 

certification period as required by law, but if a beneficiary 

returns the completed form late, benefits can be restored 

retroactive to the date of termination if the beneficiary's 

information establishes that he or she remains eligible. 

Schlosberg Deel. at ~ 33. 

Another serious problem occurs because during the ongoing 

transition from the District's legacy ACEDS system to the new DCAS 

system, renewals cannot be done through DCAS directly. Instead, 

-23-
data must be transferred from DCAS to ACEDS. These large-scale 

data transfers did not perform as the District hoped. 11 

In April 2015, the District began receiving reports from the 

managed care organizations ("MCOs") that their enrollment numbers 

were declining by the thousands, even when beneficiaries received 

a passive renewal approval letter or timely returned the renewal 

form. See Pls. Ex. 12 at DHCF 12 [Dkt. No. 2070-11]. The District 

investigated the problem over the next several months and, by June, 

it had identified 1,149 cases in which the information in DCAS was 

not automatically transferring to ACEDS, meaning that Medicaid 

recipients were listed as receiving benefits in DCAS and yet were 

not actually receiving benefits in ACEDS. See Pl. Ex. 13 at 6 [Dkt. 

No. 2070-12]. 

However, the people who were affected had to wait six months 

for any benefits. The District contends that the MCOs' specific 

concerns about declining enrollment were unfounded -- in fact, MCO 

enrollment has increased by approximately 9% since the District 

started using DCAS. Schlosberg Deel. ~ 98. However, the 

11 Technological and organizational failures in the District's 

administration of the Medicaid program have affected different 

populations in disparate ways. For example, Medicaid beneficiaries 

who are eligible on the basis of disability face different 

obstacles than beneficiaries eligible on the basis of income. See 

Pls.' Mot. for P.I. at 5-9; Defs.' Opp'n to Mot. for P.I. at 8-9. 

However, these distinctions are not material to the outcome of 

Plaintiffs' Motion or the relief Plaintiffs seek. 

-24-
investigation that the MCOs' inquiry launched gave the District 

the opportunity to find serious problems in the renewal system 

that had developed and were unknown to the District. 

In early October 2015, the District discovered that due to 

the same stuck/malformed technological defect affecting initial 

applications in DCAS, many renewal "cases were not populated 

correctly in the [DCAS] system and thus lost coverage." See Pls. 

Ex. 21 Response No. 2(d). As of October 26, 2015, the District had 

identified 86 renewal cases that had lost coverage at the time of 

renewal due to this defect and had only restored coverage to a 

subset of these cases. See id. Response 2(c) (indicating 

restoration of coverage to only 68 individuals) . Data provided at 

a D. C. Medical Care Advisory Committee meeting on December 10, 

2015, indicates that this defect affected 361 renewal cases (and 

likely more individuals, as a case may include multiple members of 

a household). Pl. Ex. 1 at 3. By December 10, 2015, 131 cases 

remained to be reviewed to determine, in the first instance, 

whether coverage had been lost. Pl. Ex. 1 at 3. 

Of course, the long lines and wait times at ESA Service 

Centers add difficulty to an already trying process. See, ~, 

Pl. Ex. 25 ~ 8 [Dkt. No. 2070-23] ("We [Whitman Walker Health] 

hear from consumers that they must line up as early as 4 am for an 

opening time of 7: 45 am or 8 am in order to be seen . 

-25-
Consumers reported to me . . that they wait for many (often more 

than 4) hours to meet with a case worker to get help."). 

Further technological errors have plagued what is supposed to 

be an automatic renewal process. In May 2014, the District 

discovered that DCAS had erroneously denied an unknown number of 

individuals who had been granted asylum in the United States (who 

are Medicaid eligible) the coverage to which they were entitled. 

See Pl. Ex. 15 at 2, 5. However, the District points out that 

technical problems that led to the error regarding asylum status 

were fixed by November 2014. Schlosberg Deel. ~ 31. 

Additionally, DCAS system defects led to the failure to 

automatically account for certain life changes that can af feet 

Medicaid coverage, such as the birth of a baby. The District has 

recognized DCAS's "inability to accurately redetermine eligibility 

once a life event has been reported due to system defects." E-mail 

Communications between CMS and DHCF, January 2015, Pl. Ex. 16 at 

DHCF 1850 [Dkt. No. 2070-15]; see also id. at DHCF 1955 ("We are 

having major challenges with processing change [sic] in 

circumstances for all reported changes.") . The District must 

"manually add[] newborns and additional household members to the 

case by using [its] old legacy system" to avoid a loss of coverage. 

Id. at DHCF 1850. As of August 2015, the District reported "a 

significant backlog in life event processing." E-mail 

Communications Between DHS and DHCF, August to September 2015, Pl. 

-26-
Ex. 17 at DHCF 51 [Dkt. No. 2070-16]. The District maintains that 

because it has been manually processing life event changes "[n]o 

individual has lost coverage due to such issues." Defs.' Opp'n to 

Mot. for P.I. at 26 (citing Schlosberg Deel. ~ 94). 

In addition to these technical errors, the District's failure 

to process renewal paperwork in a timely manner has led to 

confusion and the loss of coverage by Medicaid beneficiaries. Email 

exchanges between the District and the Centers for Medicare and 

Medicaid Services ("CMS") in January 2015, indicate that the 

District was regularly taking 90 days to process renewals, which 

CMS considered too long. Pl. Ex. 16 at DHCF 1847-1849; id. at 1849 

("The agency should be working to process the returned form as 

expeditiously as possible and . . the whole process ordinarily 

should not take 90 days . ... "); see also Pl. Ex. 17 at DHCF 47-

48 (referring to a "backlog renewal"). Individual examples 

provided by several of the District of Columbia's most reliable 

and experienced legal aid and public heal th organizations help 

convey the severity of the problem: 

One client [of the D.C. Legal Aid Society], a mother of 

seven with severe disabilities, submitted her Medicaid 

renewal form in January 2015. She got a notice in late 

February stating that the form had not been received. 

She then got a notice in early March stating that the 

form had been received. She went to a [S]ervice [C]enter 

in April to renew her SNAP benefits and was told that 

there was nothing more that she needed to do to renew 

her Medicaid. Then she received another notice in April 

telling her that she needed to verify District residency 

for herself and one of her children. The client had not 

-27-
recently moved, and all of her children live with her. 

After Legal Aid got involved, the client's benefits were 

restored in May 2015. The client and her son -- who both 

have serious health conditions -- were unable to receive 

needed treatment during the weeks that they went without 

coverage. 

Legal Aid Deel., Pl. Ex. 26 ~ 6 (e) [Dkt. No. 2070-24]. 

[Bread for the City] Patient I, a Spanish speaker who 

managed to submit a timely renewal form, despite it being 

sent in English, received verbal confirmation of 

receipt, but was terminated in October 31, 2015, and [as 

of December 22, 2015] remain[ed] without coverage[.] 

Pls.' Mot. for P.I. at 23 (citing Pl. Ex. 24 ~ 19). 

[Bread for the City] Patient J, who is incontinent, 

completed and timely submitted her renewal form, but 

nevertheless experienced a temporary loss in coverage 

resulting in her going without needed incontinence 

supplies, limiting her ability to fully function[.] 

Pls.' Mot. for P.I. at 23 (citing Pl. Ex. 24 ~ 20). 

[Bread for the City] Patient K, who suffers from prostate 

cancer, submitted his renewal form and proofs twice, but 

was left to cope with a demeaning situation because he 

could not afford to pay for incontinence supplies outof-pocket during the lapse in coverage[.] 

Pls.' Mot. for P.I. at 23 (citing Pl. Ex. 24 ~ 21) (internal 

quotation marks omitted) .12 

Lest the reader be getting exhausted reading all these numbers 

and examples, s/he must constantly keep in mind that these are 

12 See also Whitman-Walker Deel., Pl. Ex. 25 ~ 9 (a) (A WhitmanWalker patient was informed by ESA staff that his form had been 

received, yet his coverage was still terminated.); id. ~ 9(b) (A 

Whitman-Walker patient was unable to access life-saving 

medications after coverage was terminated following completion of 

form at service center.). 

-28-
real people -- poor and sick people and their children -- who are 

being denied the health care and the dignity of receiving health 

care to which they are entitled by law. 

Plaintiffs' counsel represents that s/he also encounters 

these types of improper terminations with some frequency among the 

individuals that are represented. For example, the District failed 

to renew the Medicaid coverage of Terri Jackson and her family, 

despite the fact that they timely submitted a renewal form first 

online and then at a service center. Accordingly, Ms. Jackson and 

her family lost their Medicaid coverage. 

Among other problems, this resulted in Ms. Jackson's Medicare 

Part B premiums being withheld from her Social Security check for 

six months. Jackson Deel., Pl. Ex. 32, ~~ 1-3, 8-12 [Dkt. No. 2070-

30]. Ms. Jackson's husband and son, who suffer from chronic health 

conditions, also lost coverage, forcing Ms. Jackson to purchase 

medications out-of-pocket for them and causing the family a great 

deal of stress. Id. ~~ 6, 12; see also Declaration of Vera Edmonds 

("Edmonds Deel."), Pl. Ex. 48 [Dkt. No. 2070-46] (Ms. Edmonds, who 

timely mailed renewal forms for her family, found out her coverage 

had lapsed when she went to the doctor following a car accident; 

as a result, she has been unable to attend rehabilitation therapy 

or pay for needed medication) . 

For its part, the District states that it has reviewed each 

of the foregoing individual cases, that all of them were resolved 

-29-
in the first half of 2015. Defs.' Opp'n to Mot. for P.I. at 29. 

The District also states that it reported the resolution of each 

case to the relevant legal services providers in June of 2015. Id. 

Moreover, the District claims that most of these cases were the 

result of systemic problems that had already been fixed by the 

time the legal service providers became involved. Schlosberg Deel. 

~~ 90-91. The others were the result of routine processing errors 

that are not indicative of systemic issues within DCAS. Id. 

While the District is clearly doing its best to rectify errors 

and to provide retroactive status to those who lost coverage, the 

end result is that a significant number of very sick people, or 

elderly people, or parents of children, are suffering from the 

time their benefits lapse erroneously until the District can fix 

the error and make benefits retroactive. In the interim, those 

people may not be able to buy their cancer medicine, receive 

necessary mammograms, or continue necessary physical therapy. 

Plaintiffs next point out that the District often terminates 

the Medicaid coverage of beneficiaries who, despite becoming 

ineligible on one basis, remain eligible on another. Legal Counsel 

for the Elderly reports recurring issues with the District 

terminating Medicaid coverage based on recipients' slight change 

in income, even when these same recipients are eligible for 

Medicaid under another coverage category. See Pl. Ex. 30 ~~ 5-8 

[Dkt. No. 2070-28]. When these individuals experience a loss of 

-30-
coverage, they are unable to access needed medical care, such as 

personal care aide services, and are at an increased risk of 

institutionalization. Id. ~ 6. 

For example, when Fonda Carroll's husband died and she became 

eligible for a widow's benefit, she lost her Medicaid coverage, 

which she had obtained due to a disability, because she was 

considered over-income. Carroll Deel., Pl. Ex. 31 ~~ 1-6, 9 [Dkt. 

No. 2070-29]. Although Ms. Carroll was eligible for Medicaid under 

a different category (as a childless adult under 65) despite her 

income increase, she was not screened for eligibility under that 

category prior to termination. Instead, her coverage was 

terminated and she was informed that she should re-apply through 

DCAS. Id. ~~ 10-11. As of December 22, 2015, she had a pending 

Medicaid application, but while waiting for a determination, she 

could not obtain needed doctor's appointments or her Chronic 

obstructive pulmonary disease medication because she cannot afford 

the hundreds of dollars to pay for even a single inhaler. Id., 

~~ 12-13. 

The District responds to this particular example, noting that 

it had insufficient information to establish that this individual 

was eligible for a different coverage category. Schlosberg Deel. 

~ 97. On April 8, 2015, Ms. Carroll received a 30-day notice to 

terminate her Medicaid benefits because she was over income. Id. 

In addition, Ms. Carroll received general correspondence from the 

-31-
District specifically advising her to file an application through 

DCAS so that she could be considered for eligibility under other 

Medicaid coverage groups and informing her that she could apply in 

person, on line and over the telephone. Schlosberg Deel. at ~ 97. 

According to the District's records in ACEDS, Ms. Carroll received 

a total of three such communications. Id. Eventually, she did file 

the correct application, and her Medicaid coverage in the childless 

adults category began on December 1, 2015. Id. 

Additionally, the District claims that it does consider 

whether individuals who lose their Medicaid eligibility on one 

basis might still be eligible on another. The problem, it contends, 

is that the District often lacks sufficient information to 

automatically grant benefits on new grounds. Schlosberg Deel. 

~ 95. In such cases, the District requests that the beneficiary 

submit any missing information needed to establish eligibility. 

Id. If the information is received prior to the beneficiary's 

renewal date, and the information establishes eligibility in a 

different coverage group, the beneficiary will not experience a 

lapse in coverage. If not, the beneficiary will lose coverage 

(although benefits may be restored retroactively to the date 

coverage was lost during the 90-day grace period) . Id. 

As noted above, " [t] he District of Columbia is required, under 

federal law, to give [Medicaid] recipients timely and adequate 

notice of proposed action to terminate, discontinue, or suspend 

-32-
their eligibility and to provide an opportunity for a hearing if 

it takes such action." Salazar, 954 F. Supp. at 326 (internal 

quotation marks and citation omitted). However, Plaintiffs respond 

that the District has failed to send renewal forms notifying 

recipients of the need to renew.13 

Bread for the City's medical director, Dr. Randi Abramson, 

explains that "DHS frequently terminates Medicaid coverage without 

providing recipients with any notice that they are required to 

renew their coverage" and recounts the stories of several 

individuals who had their Medicaid coverage terminated without 

receiving any advance notice of the need to renew. Pl. Ex. 24, 

~~ 13-14 [Dkt. No. 2070-22] i id. ~ 15 (Patient F, who never 

received a renewal form and found out her coverage had been 

terminated at doctor's office, was unable to receive needed 

13 Plaintiffs also contend that the District fails to send 

appropriate notices upon a lapse in coverage, but the District 

notes that it does in fact send notice of its intent to terminate 

30 days prior to the scheduled termination date. Pls.' Mot. for 

P.I. at 30; Defs.' Opp'n to P.I. at 29. ACA implementing 

regulations require that the District provide "timely and adequate 

notice of proposed action to terminate, discontinue, or suspend 

their eligibility" at least 10 days before the proposed 

termination. 42 C.F.R. § 435.919(a). Thus, the 30-day notice 

complies with these regulations. 

Plaintiffs point out that if a beneficiary returns a renewal 

form but loses coverage because of the District's failure to timely 

process the form, then the beneficiary has not received adequate 

notice of termination. The real problem faced by the hypothetical 

Medicaid beneficiary Plaintiffs describe is the unlawful 

termination of Medicaid coverage, not the concomitant lack of 

notice. 

-33-
•. 

mammogram) i. id. ~ 16 (Patient G, who never received a renewal form, 

had coverage terminated and could not obtain needed orthopedic 

care); id. ~ 17 (Patient H, who never received a renewal for~ for 

herself and her son, found out their coverage was terminated when 

she attempted to obtain medication) . 

In October 2015, the District discovered a computer error 

that garbled the mailing addresses of Medicaid recipients from May 

to October 2015, preventing many recipients from receiving the 

renewal form. Pl. Ex. 1 at 3. The renewal forms that the District 

is supposed to send to each Medicaid beneficiary in advance of 

termination have unique codes that must be provided during the 

renewal process. Thus, if a Medicaid recipient cannot access the 

renewal code because they never received the renewal form on which 

it appeared, they must go to great lengths to obtain a replacement 

form or face an indefinite period without coverage. See Pl. Ex. 24 

~ 15 (Patient F was only able to activate coverage after visiting 

a service center twice to obtain her existing renewal form) ; id. 

~ 16 (Patient G is still unable to renew because he cannot obtain 

his renewal code); id. ~ 17 (Patient H remains without coverage 

because she is unable to reach DCAS to obtain the necessary renewal 

form and code) . 

As with the initial application backlogs discussed above, the 

District has made substantial progress with respect to the issue 

of passive renewals. In February 2016, the District processed 

-34-
benefits renewals for approximately 7, 000 Medicaid recipients 

whose eligibility is determined by their income. Of those, the 

District was able to passively renew 59% of the beneficiaries. 

Second Schlosberg Deel. ~ 12. Moreover, as of February 26, 2016, 

the District had reduced the number of renewals affected by the 

stuck/malformed issue to zero and was "not aware of any issue 

causing a backlog of renewals, nor [wa] s it aware of any issue 

that is impeding the processing or mailing of notices." Def s. ' 

Opp'n to Mot. for Mod. at 3-4 (citing Second Schlosberg Deel. ~~ 

13, 16). 

The District also notes that the response rate for 

beneficiaries who received renewal notices in 2015 was 86.3%, which 

compares favorably to a historical rate of 60%. Schlosberg Deel. 

~ 100. Finally, the District notes that 

[s]ince August 2015, in addition to tracking notices, 

[it] has implemented an enhanced quality oversight 

protocol. On a daily basis, [the District] receives a 

sample from the daily batch of notices from [DCAS] prior 

to mailing. Each sample is reviewed for accuracy, 

correct notice logic, and adherence to policy 

guidelines. If there are issues, the notice in question 

is put on hold until the technical issues are resolved. 

If there are no issues, the batch of notices is released 

and the notices are sent to the recipients. 

Second Schlosberg Deel. ~ 17. 

However, Plaintiffs point out that even the District's recent 

numbers reflect that some Medicaid beneficiaries are still losing 

coverage at the renewal stage. Plaintiffs also point out that the 

-35-
District cannot currently accept renewals submitted on-line, which 

will lead to additional loss of Medicaid coverage. Second 

Schlosberg Deel. ~ 12. Some Medicaid recipients have had difficulty 

renewing their benefits over the telephone. See Whitman-Walker 

Deel. Pl. Ex. 25 ~ 10 [Dkt. No. 2070-23] ("ESA Customer Service 

Line Staff indicate that they are not authorized to complete the 

renewal process over the phone but customers must walk into a 

service center"); Declaration of Albert Tillman, March 4, 2016, 

Pl. Ex. 66 ~ 6; L. Jackson Deel., Pl. Ex. 71 ~~ 5-.7. Thus, the 

long lines at service centers and paperwork processing issues 

already discussed are likely to lead to future losses in coverage. 

Plaintiffs again provide a wealth of individual narratives to 

demonstrate ongoing barriers that Medicaid beneficiaries face in 

renewing their coverage. Several of these narratives are 

consistent with the District's story of progress -- that is, issues 

affecting the individuals described were, in fact, resolved by the 

date of the District's Opposition, February 26, 2016. 

For example, the Declaration of Jocelyn Blier describes the 

situation of one Medicaid beneficiary who sent her Medicaid 

recertification form to the District in December of 2015. Pls.' 

Ex. 64. In early February, she received a notice that the District 

had not received her recertification form. Id. According to 

Plaintiffs' counsel, when asked about this, the District stated 

that the processing backlog had prevented timely processing of the 

-36-
.1 

beneficiary's form; however, by the end of February, the District 

had succeeded in processing the form and the beneficiary never 

experienced a loss of coverage. Id. 

With respect to this particular case, the District states 

that it never received a recertification form in December 2015, 

and denies that this individual was affected by any renewal 

backlog. Defs.' Surreply at 9-10. The District states that when it 

did not receive a renewal form in December 2015, it sent the 

appropriate 30-day notice on January 29, 2015. Id. The District 

agrees with Plaintiffs that this individual never experienced a 

loss of coverage. Id. 

Other narratives, however, demonstrate the presence of 

renewal issues beyond February 26, 2016, the date at which the 

District believed that it had rectified the lion's share of 

systemic renewal problems. 

Larry Campbell, who suffers from liver disease, high blood 

pressure, and diabetes, received notice from the District that he 

needed to submit additional information by February 14, 2016 or 

risk termination of his Medicaid benefits on February 28, 2016. 

Declaration of Larry Campbell, March 7, 2016, Pl. Ex. 70 ~~ 3-6. 

Mr. Campbell submitted a renewal form before the due date. Id. Yet 

on March 2, 2016, he received a notice informing him that his 

Medicaid coverage will be terminated in April 2016, leaving him 

-37-
without access to needed medical care. Id. However, the notice 

provided no reason for the termination. Id. 

The District claims that although Mr. Campbell submitted the 

proper renewal form, he failed to also submit a "required Medical 

Examination Report at that time. /1 Defs.' ·Surreply at 11. After 

being informed that his benefits would be terminated on April 1, 

2016, "Mr. Campbell then submitted the completed form, and his 

coverage has been extended through September 2O16 . /1 Id. The 

District does not address Plaintiffs' assertion that the notice of 

termination failed to provide a reason for the termination. 

In late January, Leslie Jackson received multiple notices 

warning that her Medicaid benefits as well as the benefits of her 

minor son, who suffers from a severe form of epilepsy, would be 

terminated. L. Jackson Deel., Pl. Ex. 71 ,, 3-9, 15. The multiple 

forms contained inconsistent information concerning the date the 

renewal form was due. Id. On February 5, 2016, Ms. Jackson renewed 

her son's coverage over the phone, and on February 8, 2016, she 

confirmed that coverage had been renewed. Id. ,, 5-6. Yet on 

February 9, 2016, Ms. Jackson received a termination notice from 

the District stating that her son's coverage would end at the end 

of the month for failure to submit information required for 

renewal. Id. , 7. 

Ms. Jackson had a number of additional interactions with 

District personnel that left her unsure of whether she and her son 

-38-
would continue to obtain their Medicaid benefits. Id. ~ 8-14. As 

late as March 8, 2016, the District continued to provide inaccurate 

information that appears to be the product of either computer 

errors, processing backlogs, or both. On that date, Ms. Jackson 

received yet another termination notice from the District stating 

that her son's Medicaid coverage would be terminated on March 21, 

2016 for failure to return a form with information necessary for 

renewal. Id. ~ 15. 

With respect to Ms. Jackson's own benefits, the District 

states that she is, in fact, no longer Medicaid eligible. Defs.' 

Surreply at 8. "When the District attempted to re-determine Ms. 

Jackson's eligibility in February 2016, available records 

suggested that she remained over income and that her coverage might 

terminate unless she was eligible under another coverage 

category." Id. The District sent her notice of its findings and 

asked her to complete a questionnaire to determine her eligibility 

under non-income-based categories. Id. Based on her responses, Ms. 

Jackson was found to be ineligible for Medicaid but was eligible 

for a cost-sharing program called Qualified Medicare Beneficiary. 

Id. Thus, the District concludes, "the system has functioned for 

[Ms. Jackson] as it should." Id. 

The situation of Ms. Jackson's son, on the other hand, 

resulted from the District's mistakes. The multiple notices that 

Ms. Jackson received about her son's Medicaid benefits "were the 

-39-
result of an error by a caseworker who [mistakenly] . opened 

a new case for the son" rather than adding him to Ms. Jackson's 

case, "resulting in two cases for the same individual." Id. at 7. 

On February 9, 2016, the son's renewal of benefits was recorded in 

only one of the two duplicate cases, and a termination notice was 

automatically generated for the case that was not renewed. Id. at 

7-8. 

The District construes what happened to Ms. Jackson's son as 

another individualized error that does not signal system problems. 

However, as noted at the conclusion of the previous section, it is 

impossible to separate individual mistakes from the systemic 

problems facing the District's Medicaid beneficiaries. The bottom 

line is that whether it is an "individualized error" or a "system 

problem," it is the beneficiary who is suffering 

On the basis of the facts stated above, it is clear that a 

significant number of Medicaid beneficiaries have been harmed by 

the District's failure to efficiently send and process benefits 

renewal forms. 

C. Relief Requested 

In light of the forgoing facts, Plaintiffs request that the 

Court modify the Settlement Order so that 

• [the District] shall provisionally approve all 

Medicaid applications pending over 45 days until a 

final determination can be made; . 

-40-
• [the District] shall continue the eligibility of all 

Medicaid recipients due to be renewed or recertified; 

• these remedies shall remain in place until [the 

District] demonstrate[s] to the Court, based on 

substantial evidence, that [its] technology and 

business processing systems for making timely 

eligibility determinations on applications[] and 

providing adequate notice to Medicaid recipients and 

applicants of the decisions on renewals and 

applications are functioning as required to ensure 

and protect the rights of Medicaid recipients and 

applicants under the Due Process Clause of the Fifth 

Amendment of the United States Constitution, Title 

XIX of the Social Security Act, 42 u.s.c. 1395, et 

~' and accompanying regulations, 42 C.F.R. 430, et 

seq., and the Patient Protection and Affordable Care 

Act of 2010, Pub. L. No. 111-148, 124 Stat. 119, et 

~ ( "ACA") , and its implementing regulations; . . . 

• [the District] may move to terminate [these remedies] 

anytime [it] can make the demonstration [] described 

[above] ; and . . 

• during the time [these remedies are] in effect, [the 

District] shall report monthly on [its] compliance 

with [their] terms. 

Proposed Order Accompanying Pls.' Mot. for Mod. at 1-2. 

III. STANDARD OF REVIEW 

Plaintiffs' Motion for Modification of Settlement Order is 

governed by Federal Rule of Civil Procedure 60(b). As Plaintiffs 

point out several times in tp.eir briefs, Paragraph 71 of the 

Settlement Order provides that "either party shall have the right 

to move the Court for a modification of this Order at any time for 

any reason." Settlement Order ~ 71. The Settlement Order's very 

next paragraph clarifies that " [i] n determining motions for a 

-41-
modification of this Order under paragraphs 70 and 71 above, the 

general body of federal law governing motions to modify orders in 

contested matters pursuant to Rule 60(b) of the Federal Rules of 

Civil Procedure shall apply." Settlement Order , 72. 

Plaintiffs rest their Motion for Modification upon Rule 

60 (b) 's fifth subsection, which provides in relevant part that 

"the court may relieve a party or its legal representative from a 

final judgment, order, or proceeding [when] applying it 

prospectively is no longer equitable [.]" Fed. R. Civ. P. 60 (b) (5). 

The District claims that Rule 60 (b) (5) is inapplicable to 

Plaintiffs' Motion because Plaintiffs seek to modify provisions of 

the Settlement Order that are not prospectively applicable. See 

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. 

Cir. 1988). ("an order or judgment may be modified under . 

Rule 60(b) (5) only to the extent that it has 'prospective 

application. '") . 

In the District's view, Plaintiffs' Motion for Modification 

seeks to reinvigorate Sections II & III of the Settlement Order, 

which were terminated by this Court's Orders of February 24, 2009 

and October 18, 2013. Thus, the Government contends, Plaintiffs' 

Motion seeks relief from those termination Orders, which have no 

prospective application. "[A]n order or judgment has prospective 

application within the meaning of Rule 60 (b) (5) [only if] it is 

executory or involves the supervision of changing conduct or 

-42-
conditions." Id. at 1139 (internal quotation marks omitted) 

(emphasis added). The Government argues that the Court's Orders 

terminating Sections II & III of the Settlement Order are neither 

executory nor involve the supervision of changing conduct or 

conditions. In fact, termination of Section II & III meant the end 

of the Court's supervision of conduct related to those Sections. 

Contrary to the District's assertions, however, Plaintiffs 

disclaim that they are seeking to revive Sections II & III of the 

Settlement Order, and "[i] nstead, [] seek modification of the 

Settlement Order, granting additional injunctive relief, based on 

the new factual circumstances." Pls.' Reply in Support of Mod. for 

Mod. at 3. They note that the Settlement Order has prospective 

application, and thus may be modified under Rule 60(b) (5), because 

sections of the Settlement Order relating to early and periodic 

screening, and diagnostic and treatment services ( "EPSDT") very 

clearly require the supervision of changing conduct or conditions. 

Id. (citing Settlement Order ~~ 36, 41, 47, 79); see also Pls.' 

Mot. for Mod. at 17, 18. The modifications Plaintiffs propose are 

within the sphere of the Settlement Order's prospectively 

applicable EPSDT provisions because "it is common sense that a 

child cannot obtain any EPSDT service when he or she lacks Medicaid 

eligibility." Pls.' Reply in Support of Mod. for Mod. at 9-10. 

Courts applying Rule 60(b) "must strike a 'delicate balance 

between the sanctity of final judgments and the incessant 

-43-
command of a court's conscience that justice be done in light of 

all the facts.'" Twelve John Does, 841 F.2d at 1138 (quoting Good 

Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 

1980)). 

As our Court of Appeals has stated, "[t]he power of a court 

of equity to modify a decree of injunctive relief . . is longestablished, broad, and flexible." United States v. W. Elec. Co., 

46 F.3d 1198, 1202 (D.C. Cir. 1995) (internal citations and 

quotation marks omitted) (quoting New York State Ass'n for Retarded 

Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983), cert. 

denied, 4 64 U.S. 915 ( 1983) (Friendly, J.) ) . "At the request of 

the party who sought the equitable relief, a court may tighten the 

decree in order to accomplish its intended result." Id. (citing 

United States v. United Shoe Machinery Corp., 391 U.S. 244, 252 

(1968)). Thus, Rule 60 (b) (5) is merely "a codification of the 

universally recognized principle that a court has continuing power 

to modify or vacate a final decree[.]" Id. (quoting 11 Charles A. 

Wright, et al., Federal Practice & Procedure§ 2961 (1994)). 

"A consent decree[,]" such as the Settlement Order at issue 

here, "no doubt embodies an agreement of the parties and thus in 

some respects is contractual in nature." Rufo v. Inmates of Suffolk 

Cty. Jail, 502 U.S. 367, 378 (1992). However, the Supreme Court 

has made clear that agreements embodied in a consent decree remain 

"subject to the rules generally applicable to other judgments and 

-44-
decrees." Id. "A consent decree, in other words, is subject to 

modification to the same extent as if it had been entered as a 

final judgment after a full trial." W. Elec. Co., 46 F.3d at 1205. 

In Rufo·, the Supreme Court set forth the test for determining 

whether modification of a consent decree is warranted under Rule 

60(b) (5). 502 U.S. at 383. Emphasizing the flexibility provided by 

Rule 60(b) (5), the Court held that "a party seeking modification 

of a consent decree bears the burden of establishing that a 

significant change in circumstances warrants revision of the 

decree." Id. at 383. 

"Ordinarily, . modification should not be granted where 

a party relies upon events that actually were anticipated at the 

time it entered into a decree." Id. at 385. However, "Rule 60(b) (5) 

does not foreclose modifications based on developments that, in 

hindsight, were things that 'could' happen. . The focus of 

Rule 60(b) (5) is not on what was possible, but on what the parties 

and the court reasonably anticipated." w. Elec. Co., 46 F.3d at 

1205. 

"Once a moving party has met its burden of establishing either 

a change in fact or law warranting modification of a consent 

decree, the District Court should determine whether the proposed 

-45-
modification is suitably tailored to the changed circumstance." 

Rufo, 502 U.S. at 391. 14 

IV. ANALYSIS 

A. Significant Change in Circumstances 

Based on the extensive evidence submitted by Plaintiffs, it 

is clear that circumstances have changed significantly since entry 

of the Settlement Order. Given the numerous case histories 

presented by Plaintiffs, there is no question that many of the 

class members are being irreparably harmed by their inability to 

obtain Medicaid benefits, even though the District is acting with 

the best of intentions to comply with the ACA. 

The narratives set forth above clearly demonstrate that 

numerous Medicaid-eligible residents of the District were denied 

benefits to which they were entitled due the District's failure to 

timely process initial applications, failure to deliver adequate 

and timely renewal notices, and failure to efficiently process 

14 In the alternative, Plaintiffs put forth Rule 60 (b) (6) as grounds 

for their Motion. Rule 60(b) (6) is a catch-all provision, which 

permits relief "from a final judgment, order, or proceeding for 

... any other reason that justifies~relief." Subsection (6) is 

only applicable when .none of the five other grounds for relief 

under Rule 60(b) are available. Salazar v. District of Columbia, 

633 F.3d 1110, 1116 (D.C. Cir. 2011). The Supreme Court has held 

that relief under 60 (b) (6) may be granted only under "extraordinary 

circumstances," Ackermann v. United States, 340 U.S. 193, 199, 202 

(1950), and our Court of Appeals has noted "that a more compelling 

showing of inequity or hardship is necessary to warrant relief 

under subsection ( 6) than under subsection ( 5) [,]" Twelve John 

Does, 841 F.2d at 1140. 

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renewal requests. These changed circumstances, which violate the 

Constitution and the ACA, affect members of the Plaintiff class. 

See Salazar v. D.C., 954 F. Supp. 278, 326 (D.D.C. 1996); 42 C.F.R. 

435.912(c)(3); Order at 1-2 [Dkt. No. 100]. Accordingly, 

modification of the Settlement Order to address these violations 

is warranted. 

The District's significant progress in reducing the 

processing time for the backlogs and stuck/malformed errors in the 

month of February 2016 does not change the conclusion that changed 

circumstances warrant relief. Before Plaintiffs filed their Motion 

for Preliminary Injunction, the District had made only moderate 

progress in reducing the application backlogs between April of 

2015, when they were first discovered, Schlosberg Deel. ~ 66 [Dkt. 

No. 2077-1], and December 2015. At the end of this nine-month 

period, there were still close to 5,000 Medicaid applications in 

the backlog. Pl. Ex. 1 at 6 [Dkt. No. 2070-2]. 

Since the filing of Plaintiffs' initial Motion on December 

22, 2015, the District has been able to resolve all of the 

thousands of remaining cases in just over one month's time. While 

the District's progress is commendable, the timing of it suggests 

that Court oversight has been a boon rather than a hindrance. 

Moreover, the Court has no assurance that the significant problems 

(and violations of the law) that arose will not arise again. 

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In order for relief to be proper under Rule 60 (b) ( 5) , the 

cited change in circumstances cannot have been anticipated or 

foreseen by the parties. See Agostini v. Felton, 521 U.S. 203, 

215-216 (1997). The District contends that the troubled 

implementation of the ACA' s reforms were foreseen by both the 

Parties and the Court. See, ~, Amended Memorandum Opinion and 

Order of Oct. 17, 2013 at 6 [Dkt. No. 1886] (predicting that 

"implementation [of the ACA's reforms] w[ould] undoubtedly be both 

rocky and fairly long in coming"). 

However, despite the District's contentions, no one could 

have predicted the magnitude of the problems that attended the 

ACA's implementation. Indeed, the Memorandum Opinion cited 

immediately above related only to portions of the Settlement Order 

dealing with Medicaid benefits renewal procedures, but as is now 

clear, the problems facing Medicaid-eligible residents go far 

beyond renewal procedures and affect initial applications, as well 

as the basic administration of the program. 

More importantly, the relevant inquiry with respect to the 

foreseeability of changed circumstances is not whether the Parties 

or the Court anticipated the changes at any point, but instead, 

whether the circumstances "actually were anticipated at the time 

[the Parties] entered into a decree." Rufo, 502 U.S. at 385. 

Needless to say, no one did or could have anticipated, in 1999 

-48-
when the Settlement Order was entered, the passage of the ACA, no 

less its complexity and its reforms to our health care system. 

The District claims that the relief Plaintiffs request would 

essentially reinstate Sections II and III of the Settlement Order. 

This, the District contends, would deprive it of the sunset 

provisions that it had negotiated in Section II and substitute for 

a foregone appeal with respect to Section III. See EEOC v. 

Local 40, 76 F.3d 76, 81 (2d Cir. 1996) ("If we were to enforce 

this consent decree against Local 40 twelve years after its 

expiration, we would be depriving the union of the benefit of its 

bargain."); cf. Twelve John Does, ·841 F.2d at 1141 ("Indeed, it is 

a commonplace that Rule 60(b) (6) may not be used as a substitute 

for an appeal not taken.") . Additionally, the District contends 

that the Court lacks jurisdiction to restore terminated portions 

of a consent decree. 

Plaintiffs have expressly disclaimed that they seek to 

reinstate Sections II and III of the Settlement Order. As they put 

it, "Plaintiffs do not seek to relitigate terminated provisions of 

the settlement order." Pls.' Reply in Support of Mod. for Mod. at 

2 (capitalized in original). "Instead, [P]laintiffs seek 

modification of the Settlement Order, granting additional 

injunctive relief, based on the new factual circumstances." Id. at 

3 (emphasis added). Accordingly, the District's concerns regarding 

-49-
reinstatement of terminated provisions of the Settlement Order are 

misplaced .1s 

The District also notes that courts overseeing institutional 

reform consent decrees must interpret Rule 60(b) in a manner that 

ensures that "'responsibility for discharging the State's 

obligations is returned promptly to the State and its officials' 

when the circumstances warrant. 11 Horne v. Flores, 557 U.S. 433, 

450 (2009) (quoting Frew v. Hawkins, 540 U.S. 431, 442 (2004)). 

The District objects that the modifications Plaintiffs propose 

would further hamstring its efforts to run its Medicaid program 

and would delay the prompt return of authority to District 

officials. 

However, Plaintiffs' proposed relief itself makes provision 

for allowing the District to be free of the proposed remedy as 

15 Before disclaiming, in their Reply, any reliance on Sections II 

and III, Plaintiffs asserted in their Motion for Modification that 

a footnote in the 2013 Order terminating Section III indicates the 

Court's intention to retain broad jurisdiction over the District's 

processing of Medicaid applications and renewals. See Salazar v. 

D.C., 991 F. Supp. 2d 34, 38 (D.D.C. 2013) ("members of the 

plaintiff class can also contact Plaintiffs' counsel, as they have 

been doing over the years, to obtain legal assistance"). Plaintiffs 

read too much into this footnote. As the District points out, the 

footnote mentions no further oversight role for the Court in these 

areas. The footnote only serve to reaffirm the right of Plaintiffs' 

counsel to represent residents of the District who are inquiring 

about their Medicaid eligibility, as counsel has done admirably 

for many years. Thus, the jurisdictional foundation of Plaintiffs' 

Motion must rest upon the grounds confirmed in their Reply: the 

Settlement Order's prospectively applicable EPSDT provisions. 

-50-
soon as it "demonstrate [s] to the Court, based on substantial 

evidence, that [the District's]" systems and processes will comply 

with applicable law. 16 Proposed Order Accompanying Pls.' Mot. for 

Mod. at 1-2. The proposed relief further provides that "[the 

District] may move to terminate [these remedies] anytime [it] can 

make the demonstration [] described [above.] " Id. Accordingly, 

Plaintiffs' proposed relief is consistent with the goal of 

restoring responsibility over local management functions as 

quickly as possible. 

Finally, the District contends that modification of the 

Settlement Order is unwarranted because the changed circumstances 

are unrelated to the remaining portions of the Settlement Order, 

which relate to the delivery of EPSDT services to children: 

16 The full provision reads as follows: 

[T]hese remedies shall remain in place until defendants 

demonstrate to the Court, based on substantial evidence, 

that defendants' technology and business processing 

systems for making timely eligibility determinations on 

applications, and providing adequate notice to Medicaid 

recipients and applicants of the decisions on renewals 

and applications are functioning as required to ensure 

and protect the rights of Medicaid recipients and 

applicants under the Due Process Clause of the Fifth 

Amendment of the United States Constit~tion, Title XIX 

of the Social Security Act, 42 u.s.c. 1395, et~, and 

accompanying regulations, 42 C.F.R. 430, et ~, and 

the Patient Protection and Affordable Care Act of 2010, 

Pub. L. No. 111-148, 124 Stat. 119, et~ ("ACA"), and 

its implementing regulations; .. 

Proposed Order Accompanying Pls.' Mot. for Mod. at 1-2. 

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•. 

[W]hether an initial application for Medicaid benefits 

is processed within 45· days has no bearing on the 

District's ability to achieve an adequate participant 

ratio for well-child visits, to advise children or their 

caretakers regarding the need for and importance of 

EPSDT services, to train providers of EPSDT services, or 

its ability to offer transportation and scheduling 

assistance as required by Sections V and VI of the 

Settlement Order. Nor can plaintiffs advance any 

reasonable argument that the District's compliance with 

its EPSDT obligations is frustrated by an alleged lack 

of advance notice before terminating Medicaid benefits 

in the context of renewal. 

Defs.' Opp'n to Mot. for Mod. at 8. 

Plaintiffs, however, provide a simple and convincing response 

to this argument: ~[I]t is common sense that a child cannot obtain 

any EPSDT service when he or she lacks Medicaid eligibility." Pls.' 

Reply in Support of Mod. for Mod. at 9-10. Moreover, children make 

up a substantial proportion of the District's Medicaid population. 

In 2014, there were 98,350 children eligible for Medicaid, Form 

CMS-416, line la [Dkt. No. 2039-1], and as of October 2014, there 

were a total of 247,850 people on DC Medicaid, Pl. Ex. 61, column 

1 [Dkt. No. 2102-1]. Thus, issues affecting initial applications 

and renewals are clearly related to portions of the Settlement 

Order concerning EPSDT services. 

For all of these reasons, significant changes in facts and 

law warrant modification of the Settlement Order. 

B. Suitably Tailored Relief 

Once a court has determined that .a change in circumstances 

warrants revisions to a consent decree, it must consider whether 

-52-
the relief requested is suitably tailored to those changes. Rufo, 

502 U.S. at 391. "A change in circumstances is not a free pass to 

rewrite a consent decree; rather 'the focus should be on whether 

the proposed modification is tailored to resolve the problems 

created by the change in circumstances.'" Keepseagle v. Vilsack, 

118 F. Supp. 3d 98, 127 (D.D.C. 2015) (quoting Rufo, 502 U.S. at 

3 91) . 

The District contends that the relief Plaintiffs seek is not 

suitably tailored because it would provide assistance to 

individuals beyond the population that receives EPSDT benefits. 

Defs.' Opp'n to Mot. for Mod. at 8 n.3. The District's argument 

construes the Court's power to amend consent orders too narrowly. 

The Supreme Court has stated that "[o] nee a court has 

determined that changed circumstances warrant a modification in a 

consent decr~e, the focus should be on whether the proposed 

modification is tailored to resolve the problems created by the 

change in circumstances." Rufo, 502 U.S. at 391. The "problems 

created by the change in circumstances" that brought about 

Plaintiffs' Motion are not limited to the delivery of EPSDT 

services. True, Plaintiffs rely exclusively on the EPSDT 

provisions of the Settlement Order to demonstrate that the Order 

itself has prospective application, but the "problems created" by 

the District's implementation of the ACA's provisions include the 

denial of coverage to eligible adults as well as children. It is 

-53-
in the public interest to ensure that those children and adults do 

not lose the vital services provided by Medicaid coverage under 

the ACA. 

Put differently, Plaintiffs have shown that changed 

circumstances have led the District to violate its obligations to 

adjudicate Medicaid applications within 45 days and to renew 

Medicaid benefits in accordance with the ACA's implementing 

regulations and due process. The general thrust of the remedies 

that Plaintiffs propose are suitably tailored to resolve those 

problems. That is what Rufo requires. That is all Plaintiffs ask 

for. 

The District also contends that because it has made 

significant progress in resolving the problems that led Plaintiffs 

to file their Motions (by eliminating all known backlogs and 

reducing the number of stuck/malformed applications to 67), the 

relief requested is unnecessary. 

However, the first prong of relief Plaintiffs request does 

nothing more than address the systemic problems that arose during 

the District's implementation of the ACA and may well arise again. 

The first prong would simply require provisional approval of 

Medicaid applications pending longer than 45 days until a final 

determination can be made. If the District complies with the law 

by reaching f irial determinations within 45 days (as it claims to 

have done in the month for February 2016), this relief will impose 

-54-
no additional burden at all. It is, accordingly, suitably tailored 

to respond to the District's failure to timely process Medicaid 

applications. 

By contrast, the second prong of relief requested by 

Plaintiffs, which would indefinitely continue the benefits of all 

Medicaid recipients due to be renewed or recertified, does indeed 

sweep too broadly. See Proposed Order Accompanying Pls.' Mot. for 

Mod. at 1-2 ("[the District] shall continue the eligibility of all 

Medicaid recipients due to be renewed or recertified"). 

The narratives detail that many Medicaid beneficiaries lost 

access to benefits to which they were entitled because of the 

District's failure to send appropriate renewal forms or to 

efficiently process renewals. However, the District notes that 

Plaintiffs' request to continue the benefits of all Medicaid 

recipients due to be renewed or recertified contains no end date 

or provision for terminating the benefits of M~dicaid recipients 

whose ongoing eligibility cannot be verified or who are simply no 

longer eligible for Medicaid. Thus, the requested relief "would 

virtually eliminate the District's ability to terminate coverage 

for individuals who are not eligible or entitled to Medicaid 

benefits at heavy costs to the District's taxpayers." Defs.' Opp'n 

to Mot. for Mod. at 16. 

Although the situation faced by many beneficiaries due to 

renew their benefits is indeed dire, that does not justify 

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obligating the District to indefinitely continue the Medicaid 

benefits of individuals who may no longer be eligible to receive 

them. Simply put, if the Court were to impose the second prong of 

Plaintiffs' requested remedy, the District would be required to 

continue providing benefits to individuals required to recertify 

even if it knew that such individuals no longer qualified for 

Medicaid. Such a result cannot be justified, and thus, it is clear 

that the second prong of Plaintiffs' requested relief is not 

suitably tailored to resolve the problems discussed above. 

However, despite the unsuitability of the second prong as 

requested, a slight modification will provide the necessary 

tailoring. The second prong of relief shall read as follows: 

[The District] shall continue the eligibility of all 

Medicaid recipients due to be renewed or recertified for 

90 days after each recipient's renewal or 

recertification deadline unless [the District] ha[s] 

affirmatively determined that the recipient is no longer 

eligible for Medicaid[.] 

Order Accompanying This Memorandum Opinion at 2. 

As modified by the Court, this relief will adequately remedy 

the problem of Medicaid recipients losing benefits due to the 

District's failure to effectively provide and efficiently process 

renewal forms. Medicaid recipients will maintain the full value of 

their benefits during the 90-day grace period, rather than lose 

their access to health care for reasons beyond their control. At 

the same time, the District -- and by extension, the District's 

-56-
taxpayers -- will not be saddled with the burden of indefinitely 

furnishing benefits to individuals who may no longer be Medicaid 

eligible. 

The final provisions of Plaintiffs' request enhance the 

suitability of the foregoing remedies. The proposed relief 

provides that the substantive remedies shall remain in place until 

the District demonstrates by substantial evidence that its 

processes will ensure the rights of Medicaid eligible residents of 

the District. Proposed Order Accompanying Pls.' Mot. for Mod. at 

1-2. The Proposed Order also provides that the District may move 

to terminate the imposed relief any time it can make the required 

demonstration of non-eligibility. Id. All of these provisions 

combine to ensure that the relief imposed will last no longer than 

is necessary to cure the "problems created by the change in 

circumstances." Rufo, 502 U.S. at 391. 17 

The District contends that Plaintiffs' requested relief is 

likely to lead to waste and abuse of Medicaid resources. The Court 

recognizes that there may be some instances of fraud and abuse of 

the system. However, there is no way to know the scope of such 

incidents. Moreover, the modification of the second prong of relief 

17 Plaintiffs request that the Court order the District 

monthly reports regarding its compliance with the 

imposed. Such reports would be unnecessarily burdensome 

not be required. 

-57-

to submit 

remedies 

and shall 
discussed above will significantly reduce any likelihood of fraud 

or abuse by limiting the period that the District must provide 

benefits to individuals whose ongoing eligibility is unknown. 

Finally, the equities -- balancing the District's concerns about 

wasted resources against the needs of children and low-income 

adults for medical care to which they are entitled -- clearly favor 

granting the relief which will be ordered. 

For all of these reasons, the Court concludes that Plaintiffs' 

proposed amendments to the Settlement Order -- incorporating the 

Court's alterations are "suitably tailored." 1 8 

18 In its Opposition to Plaintiffs' Motion for Preliminary 

Injunction, the District argues that the Preliminary Injunction 

should not be granted because the United States is a necessary 

party to the present controversy because the relief requested would 

necessarily bind the United States as well as the District. See 

Fed. R. Civ. P. 65(d) (2) (injunction issued by federal court may 

bind only the parties, their agents, servants, employees and 

attorneys, and other persons who are in active concert or 

participation with any of the aforementioned) ; see also Fed. R. 

Civ. P. 19. This, the District argues, is because federal funds 

may be available to the District under 42 C.F.R. 250(b) (2) or 42 

C.F.R. 435.1002(c) to offset the costs of compliance with the 

injunction. 

The District makes no reference to this particular argument in 

its briefs on the Motion for Modification, which leaves unclear 

whether it meant to preserve the argument. In any case, Plaintiffs 

have a satisfactory answer: " [P] laintif f s seek relief only from 

[The District], not from CMS or any other party." Pls.' Reply in 

Support of P.I. at 6. The fact that the District may eventually be 

reimbursed for its costs of complying with this Court's Order does 

not automatically make the federal reimbursing agency, CMS, a 

necessary party to this proceeding. The District offers no 

authority to the contrary. 

-58-
V. CONCLUSION 

For the forgoing reasons, Plaintiffs' Motion for Modification 

of the Settlement Order shall be granted. An Order shall accompany 

this Memorandum Opinion. 

April 4, 2015 Glay~ler 

United States District Judge 

Copies to: attorneys on record via ECF 

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