UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

OSCAR SALAZAR, et al., 

Plaintiffs, 

v. 

DISTRICT OF COLUMBIA, et al., 

Defendants. 

. •· 

Civil Action No. 93-452 (GK) 

MEMORANDUM OPINION 

In 1993, Plaintiffs filed this Complaint alleging various statutory and Constitutional 

violations by the District of Columbia ("Defendants" or "District") in the course of administering 

its Medicaid Program. 42 U.S.C. § 1396, et seq. The Plaintiffs have again alleged failure of the 

District to meet the dental needs of eligible children under the Medicaid Program and have filed this 

Motion to Enforce the Dental Order ("Mot.") [Dkt. No. 2094]. 

Upon consideration of the Motion, Opposition ("Opp.") [Dkt. No. 2142], Reply ("Rep.") 

[Dkt. No. 2165], Revised Opposition("Rev. Opp.") [Dkt. No. 2173], and SupplementalReply("Sup. 

Rep.") [Dkt. No. 2178], and the entire record herein, and for the reasons set forth below, Plaintiffs' 

Motion to Enforce is denied. 

I. BACKGROUND 

In 1996, after a lengthy bench trial, the Court found the District to be in violation of the 

Medicaid Act. See Salazarv. District of Columbia, 954 F. Sup. 278 (D.D.C. 1996), and issued a 56 

page Opinion setting forth detailed findings of fact and conclusions oflaw. The Government then 

took an appeal of the 1996 Order to the Court of Appeals. However, shortly before oral argument, 

the Parties decided to enter into a Settlement Order ("the 1999 Settlement Order") [Dkt. No. 663]. 
Section 36 of the 1999 Settlement Order mandated that the District "shall provide or arrange for the 

provision of early and periodic, screening, diagnostic and treatment services ("ESPDT") when they 

are requested by or on behalf of children." 1999 Settlement Order ~ 36. A number of its 

requirements exceeded obligations imposed by federal law. 

In 2004, the Plaintiffs again alleged violations of the Medicaid Act and Section 36 of the 

1999 Settlement Order. The Court found the District to still be in violation of Section 36 obligating 

the District to provide EPSDT dental services, and entered the 2004 Dental Order [Dkt. No. 1033], 

which again included standards exceeding those required by federal law in order to ensure provision 

of dental services to the eligible children. 

Between 2006 and 2012, the District filed various Motions, many of which asked the Court 

to vacate or modify the 2004 Dental Order, or to terminate the 1999 Settlement Order. See~ [Dkt 

Nos. 1153, 1618, and 1627]. These Motions were either denied or withdrawn. On April 20, 2012, 

at the request of the Parties, the Court entered an Order referring the case for mediation [Dkt. No. 

1790]. The Parties mediated in good faith from July 2012 to August 2014, but, unfortunately, were 

unable to reach a final agreement. Rev. Opp. at 5. 

From 1999 until the present time, Plaintiffs and the District of Columbia have been working 

diligently, overcoming many obstacles in their way, including the difficult transition to Obamacare, 

to ensure that the children of the District were receiving the services to which they were entitled 

under the various provisions in Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq. and 

accompanying regulations, 42 C.F.R. § 430, et seq. 

-2-
II. STANDARD OF REVIEW 

District Courts have the authority to enforce the terms of their mandates. See The Fund for 

Animals v. Norton, 390 F. Supp. 2d 12, 15 (D.D.C. 2005). A motion to enforce may be granted 

when a "plaintiff demonstrates that a defendant has not complied with a judgment entered against 

it." Heartland Hosp. v. Thompson. 328 F. Supp. 2d 8, 11 (D.D.C. 2004). A motion to enforce 

should be denied if a plaintiff "has received all relief required by that prior judgment." Id. (citing 

Watkins v. Washington, 511 F.2d 404, 406 (D.C. Cir. 1975). 

III. ANALYSIS 

A. Plaintiffs Have Not Violated Paragraph 80 of the Settlement Order 

As an initial matter, Defendants argue that Plaintiffs' Motion to Enforce violates Paragraph 

80 of the Settlement Order which requires that 

Before any party moves the Court to enforce or construe this 

Order ... it shall give the other party 10 days' notice of its intention. 

During that 10 day period, the parties shall negotiate in good faith in 

an effort to resolve the dispute without seeking a decision from the 

Court before filing it. 

The District admits that Plaintiffs gave it 10 days' notice before filing the Motion to Enforce. 

However, Defendants argue that Plaintiffs failed to negotiate in good faith in an effort to resolve this 

dispute without the involvement of the Court. In light of the twq years of good faith, but 

unsuccessful, mediation which preceded the filing of Plaintiffs' Motion, the Court finds that 

Plaintiffs have not violated Section 80 of the Settlement Order. 

-3-
B. The Major Provisions of the 2004 Dental Order 

In its Opposition to Plaintiffs' Motion, the District set forth the majorrequirements contained 

in the 2004 Dental Order, which includes both preventive and therapeutic dental services. The 

following is an overview of all those requirements: 

The 2004 Dental Order provides that the District must create a 

detailed dental periodicity schedule that sets forth the ages and 

frequency that dental services should be provided to children, and to 

distribute this schedule to all managed care organizations (MCOs), 

dentists, and pediatric health care providers. In addition, the Dental 

Order requires the District to submit a yearly CAP with detailed 

information concerning the provision of EPSDT dental services. In 

the CAP, the District must address the current number of providers 

of dental EPSDT services and the District's efforts to maintain a 

sufficient number of those providers who are willing to and able to 

provide dental services to EPSDT-eligible children. !. The CAP also 

must address reimbursement rates and streamlining of administrative 

proceedings to encourage greater provider participation. Id. The 

District must include detailed information concerning available 

providers, including names, addresses, and telephone numbers. Id. 

Moreover, the District must report steps taken to ensure training, 

skills, and knowledge of providers to deliver EPSDT dental services. 

Under the CAP, the District annually must distribute a provider 

bulletin to licensed dentists and pediatric health care providers 

describing dental health education and discussing guidance regarding 

oral hygiene for various ages and categories. Id. The District must 

describe its efforts to coordinate activities and communication among 

the D.C. Department of Health Care Finance (DHCF), MCOs, 

dentists, pediatric care providers, and the Department of Health's 

(DOH) Oral Health Program. The District also must identify 

methods in the CAP fo assist EPSDT enrollees in making and 

keeping dental appointments, including the establishment of a hotline 

to answer basic oral health questions and provide assistance in 

scheduling appointments and following up to ensure the appointments 

are kept. 

Rev. Opp. at 5-6. 

-4-
The 2004 Dental Order directed the District to develop and submit to the Court a yearly corrective 

act plan ("CAP") for ensuring that all EPSDT-eligible children receive the dental services to which 

they were entitled. 2004 Dental Order at 3. The 2004 Dental Order also mandated that the CAP 

include specific interim goals and a plan for achieving them, no later than September 30, 2007. 

Finally, the 2004 Dental Order required the District to meet the following utilization goals: 

(i) At least 80 percent of EPSDT-eligible children in the 6-12 

months-old age-category receive at least one oral risk health 

assessment by a primary care provider as part of the Health 

Check visit; 

(ii) At least 80 percent ofEPSDT-eligible children in the 12-24 

months-old age-category receive at least one oral risk health 

assessment by a primary care provider as part of the Health 

Check visit; 

(iii) At least 85 percent of the EPSDT-eligible children entering 

school programs for the first time receive an oral health 

screening by a licensed dentist; 

(iv) At least 70 percent of all EPSDT-eligible 8-14 year-olds 

receive protective sealants on their permanent teeth; 

(v) At least 80 percent of EPSDT-eligible children 3 years old 

and older receive "any dental services" as reported in line 12a 

of the CMS Form 416; 

(vi) At least 80 percent ofEPSDT-eligible children 3 years of age 

and older receive "preventive dental services" as reported in 

line 12b of the CMS Form 416. 

Id. The "[2004] Dental Order also required the District to provide yearly reports to the Court and 

[P]laintiffs regarding the number of children receiving dental services." Id. at 6-7. 

-5-
>'· 

C. The Changes Sought by Plaintiffs 

In order to achieve the goals set forth in the 2004 Dental Plan, the Plaintiffs now urge that 

the Defendants adopt a five-year CAP with a September 30, 2020 deadline to reach full compliance 

with the six performance goals laid out in the 2004 Dental Order. Plaintiffs also request the District 

to take on additional obligations, such as the submission of a five-year CAP "that sets forth specific 

requirements ... concrete steps and measurable, interim deadlines and numerical goals, designed 

to reach full compliance with each of the ... performance goals by September 30, 2020." See Defs.' 

Rev. Opp. to Plaintiffs' Motion to Enforce the Dental Order of October 18, 2004, at 2-3. 

Plaintiffs do recognize that some of Defendants' efforts, as described in the current five-year 

state oral health action plan "are a step in the right direction," but do not go far enough to reach the 

six performance goals in paragraph 2( e) of the 2004 Dental Order within a reasonable time frame. 

D. The District's Response 

The Government admits that the 2004 Dental Order's target utilization goals have proven to 

be unattainable by the District -- but points out that they have been unachievable by every other 

jurisdiction in the United States as well. However, "the District exceeds federal requirements in the 

provision of mandatory and most optional dental services for Medicaid-eligible children, and the 

District's dental service utilization rates have ranked above the national average for over five years." 

Rev. Opp. at 2. 

1. Current Progress 

a. Utilization Goals (i) and (ii) 

The Dental Order requires that at least 80 percent of all EPSDT-eligible children 6 to 24 

months "receive at least one oral risk health assessment by a primary care provider as part of the 

-6-
Health Check visit." Dental Order iii! 2( e )(i), (ii). On the Oral Health Assessments furnished during 

well-child visits by primary care providers, the District's well child visit utilization for the 6 to 12 

month and 12 to 24 month age groups is 88 percent and 78 percent, respectively. Sonosky Deel. if 

102. 

b. Utilization Goal (iii) 

The Dental Order requires that at least "85 percent of all EPSDT-eligible children entering 

school programs for the first time receive an oral health screening by a licensed dentist." Plaintiffs 

allege that less than 60% of Medicaid-eligible children received such screenings in FY 2014, relying 

upon data for preventive dental service for children ages 3 to 18 and 6 to 18 to measure the District's 

compliance. Mot. at 19. To date, the District has not reported data on this utilization goal, but it does 

not dispute that it has not met this goal. Rep. at 20. However, as reflected in the 2015 CAP, the 

District has identified action items to encourage the submission of oral health assessment forms so 

that it may create a more accurate report on the district's compliance with this goal. Rev. Opp. at 23-

25. 

c. Utilization Goal (iv) 

As to the requirement to provide protective sealants, the 2004 Dental Order required that at 

least 70 percent of all EPSDT-eligible children 8-14 years old receive protective sealants on their 

permanent teeth. As of FY 2015, the United States Centers for Medicare and Medicaid Services 

("CMS") again concluded that no state has been able to achieve this 70 percent utilization rate. The 

issue of providing dental services and especially the sealants to Medicaid-eligible children, especially 

the younger ones, is significant because the sealants are so effective in lowering rates of cavities. 

-7-
In FY 2014, the District reported that 20.50 percent of its children ages 6-14 did receive 

protective sealants compared to a national average of 14.88 percent in FY 2015. Sonosky Deel.~ 28. 

In FY 2015, the District reported that 22.67 percent of the EPSDT-eligible children received at least 

one protective sealant, as compared to a national average of 14. 7 percent. Id. See Defs.' Rev. Opp. 

at 16. Moreover, the District was able to obtain approval from CMS for reimbursement for fluoride 

varnish so that primary care providers may now bill for treatment up to four times per year for 

children up to age 3. 

The District has advanced its school-based initiatives through which students receive dental 

assessments and services, including sealants. So no sky Deel.~ 65. In the first half of the 2015-2016 

school year, 1,516 students received preventive dental care and 622 students received sealants 

through this program at 33 DCPS schools, 26 public charter schools, and three Early Childhood 

Centers. 

The District admits that these numbers are limited because oflow levels of parental consent 

to receiving school-based screening. Rev. Opp. at 14. Plaintiffs propose that the District implement 

an opt-out system, requiring parental involvement only when a parent does not want their child to 

receive treatment. However, the District responds that parental consent is required for screening, 

and Plaintiffs have not disputed that. 

While it is clear that all of the states, including the District, are having a great deal of 

difficulty complying with this particular utilization goal, the District denies that it has ignored its 

relatively low rates of compliance. It argues that it has a State Oral Health Action Plan (SO HAP), 

which provides specific measures and strategies devoted to sealants including information on 

enrollment, outreach and education, provider education, and DOH's oral health program to reduce 

-8-
barriers to produce use of protective sealants. The District's goal is to reach a 2 percent increase 

each year measured from FY 2013 to FY 2018. 

d. Utilization Goal (v) 

Again, even though no jurisdiction in the country has been able to reach the desired rate of 

80 percent of ESPDT eligible children 3 years of age and older receiving any dental services as 

reported in line 12(a) of the CMS form 416, in FY 2014, the District reported that 60.51 percent of 

its eligible children received such services, compared to the national average of 52.66 percent. Id. 

if 28. In FY 2015, the District reported a rate of 61.38 percent, compared to the national average of 

52. 72 percent. Id. if 28. 

e. Utilization Goal (vi) 

While no jurisdiction in the country has been able to reach the desired rate of 80 percent of 

ESPDT eligible children aged 3-20 receiving preventive dental services, in FY 2014, the District 

reported that 56.32 percent of eligible children had received preventive dental services, compared 

to the national average of 48.4 percent. Id. if 28. That year, the District ranked fourth in the country 

in the percentage of children ages 1 to 20 who received a preventive dent~l service, behind only 

Vermont, Connecticut, and Washington. Id. if30. In FY 2015, the District reported a rate of 57 .38 

percent, compared to the national average of 48.24 percent. Id. if 28. 

2. Future Plans 

The District has also already instituted a plan for improvement. In 2010, CMS created 

national and state goals for preventive dental services by 2015 through a national Oral Health 

Initiative ("OHI"). Rev. Opp. at 9. The OHI goals include "(1) an increase from 50% to 60% for 

children ages 1 to 20 enrolled in Medicaid and CHIP (for at least 90 days) who receive a preventive 

-9-
dental service; and (2) an increase from 17% to 27% for children ages 6 to 9 enrolled in Medicaid 

and CHIP (for at least 90 days) who receive a sealant on a permanent molar tooth." Rev. Opp. at 9-

10. 

In its response, the District has set forth, at great length, the particulars of its SO HAP, which 

was developed in consultation with CMS and other national experts, the numerous local partners 

with children's oral health stakeholders, and the District's school-based initiatives. The description 

of these programs indicate clearly how seriously the District has attempted to do everything possible 

to implement and improve the dental services to Medicaid-eligible children by following the 

requirements of the 2004 Settlement Order. 

Plaintiffs' request for a five-year CAP with interim performance goals not only exceeds the 

Dental Order's scope, which only requires annual CAPs, but would in essence replace the District's 

carefully developed SOHAP, which appears to be working quite well. 

IV. CONCLUSION 

The Court concludes that the District is making genuine and reasonable improvement in 

its sealant programs. As noted, it has consistently ranked above the national average and, 

perhaps even more importantly, it has developed effective and creative implementation measures 

such as those mentioned earlier to increase its utilization goals. 

The facts set forth in this Opinion, as well as the additional information contained in the 

briefs of both parties, convince the Court that the District has presented a very credible 

explanation of how diligently and effectively it has been working in the last few years to meet 

those goals. Unfortunately, it appears that the September 30, 2020, deadline that Plaintiffs seek 

is simply not achievable at this time. 

-10-
For all these reasons, the Court concludes that Plaintiffs' Motion to Enforce the Dental 

Order of October 18, 2004 shall be denied. 

February 22, 2017 

Copies via ECF to all counsel of record 

-11-