UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OSCAR SALAZAR, 

### etal., Plaintiffs,
v. DISTRICT OF COLUMBIA, 

### etal., Defendants. •· 

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

MEMORANDUM OPINION In 1993, Plaintiffs filed this Complaint alleging various statutory and Constitutional violations by the District ofColumbia ("Defendants" or "District") in the course ofadministering its Medicaid Program. 42 U.S.C. § 1396, 

### et seq. The Plaintiffs have again alleged failure ofthe Districtto meetthe dental needs ofeligible childrenunderthe Medicaid Program andhave filed this Motion to Enforce the Dental Order ("Mot.") [Dkt. No. 2094]. Upon consideration ofthe 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 ofthe Medicaid Act. See Salazarv. District ofColumbia, 954 F. Sup. 278 (D.D.C. 1996), and issued a 56 page Opinion setting forth detailed findings offact and conclusions oflaw. The Government then took an appeal ofthe 1996 Order to the Court ofAppeals. However, shortly before oral argument, the Parties decided to enter into a Settlement Order ("the 1999 Settlement Order") [Dkt. No. 663].Section 36 ofthe 1999 Settlement Order mandated thatthe District "shall provide or arrange for the provision ofearly and periodic, screening, diagnostic andtreatment services ("ESPDT") whenthey
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 ofthe Medicaid Act and Section 36 ofthe 1999 Settlement Order. The Court found the Districtto still be inviolation ofSection 36 obligating the District to provide EPSDT dental services, and entered the 2004 Dental Order [Dkt. No. 1033], which again included standards exceedingthose requiredbyfederal lawinorderto ensureprovision ofdental services to the eligible children. Between 2006 and 2012, the District filed various Motions, many ofwhich asked the Court to vacate ormodifythe 2004 Dental Order, orto terminatethe 1999 Settlement Order.**See~** [Dkt Nos. 1153, 1618, and 1627]. These Motions were either denied or withdrawn. On April 20, 2012, at the request ofthe 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 presenttime, Plaintiffs andthe District ofColumbiahavebeenworking diligently, overcomingmanyobstacles intheirway, includingthe difficulttransitionto Obamacare, to ensure that the children ofthe District were receiving the services to which they were entitled under the various provisions in Title XIX ofthe Social Security Act, 42 U.S.C. 

### § 1396, 

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

### et seq.

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### II. STANDARD OF REVIEW District Courts have the authority to enforce the terms oftheir 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 "plaintiffdemonstrates that a defendant has not complied with ajudgment entered against it." Heartland Hosp. v. Thompson. 328 F. Supp. 2d 8, 11 (D.D.C. 2004). A motion to enforce should be denied ifa plaintiff"has received all reliefrequired by that priorjudgment." Id. (citing Watkins v. Washington, 511 F.2d 404, 406 (D.C. Cir. 1975). 

### III. ANALYSIS A. Plaintiffs Have Not Violated Paragraph 80 ofthe Settlement Order As an initial matter, Defendants argue that Plaintiffs' Motion to Enforce violates Paragraph 80 ofthe 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 ofits 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 DistrictadmitsthatPlaintiffs gave it 10 days' noticebeforefiling the Motionto Enforce. However, Defendants arguethatPlaintiffs failed to negotiate in good faith inan effortto 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 ofthe Settlement Order.

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### B. The Major Provisions ofthe 2004 Dental Order 

### Inits Oppositionto Plaintiffs' Motion,the Districtsetforththemajorrequirementscontained in the 2004 Dental Order, which includes both preventive and therapeutic dental services. The following is an overview ofall 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 ofEPSDT dental services. In the CAP, the District must address the current number ofproviders of dental EPSDT services and the District's efforts to maintain a sufficient number ofthose providers who are willing to and able to provide dental services to EPSDT-eligible children. !. 

### The CAP also must address reimbursementrates and streamlining ofadministrative 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 ofproviders to deliverEPSDT dental services. Under the CAP, the District annually must distribute a provider bulletin to licensed dentists and pediatric health care providers describing dental health educationand discussingguidanceregarding oral hygiene for various ages and categories. Id. The District must describe its effortsto coordinateactivities andcommunicationamong 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, includingthe establishmentofahotline to answer basic oral health questions and provide assistance in scheduling appointments andfollowing upto ensurethe 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 actplan ("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 ofEPSDT-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 ofthe 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 ofthe Health Check visit; (iii) At least 85 percent ofthe 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 ofEPSDT-eligible children 3 years old and olderreceive "anydental services" as reported inline 12a ofthe CMS Form 416; (vi) Atleast 80 percent ofEPSDT-eligiblechildren 3years ofage and older receive "preventive dental services" as reported in line 12b ofthe 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 ofchildren receiving dental services." Id. at 6-7.

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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 withthe sixperformance goals laid out inthe 2004 Dental Order. Plaintiffs also requestthe District to take on additional obligations, such as the submission ofa five-year CAP "that sets forth specific requirements
... concrete steps and measurable, interim deadlines and numerical goals, designed to reachfull compliance with each ofthe
...performance goals by September 30,2020." See Defs.' Rev. Opp. to Plaintiffs' Motion to Enforce the Dental Order ofOctober 18, 2004, at 2-3. Plaintiffs do recognize that some ofDefendants' efforts, as described inthe currentfive-year state oral health action plan "are a step inthe right direction," but do not go far enough to reach the six performance goals in paragraph 2(e) ofthe 2004 Dental Order within a reasonable time frame. D. The District's Response The Government admits thatthe 2004 Dental Order'starget utilization goals haveprovento be unattainable by the District

-- but points out that they have been unachievable by every other jurisdictioninthe United States as well. However, "the Districtexceeds federal requirements inthe provision ofmandatory and most optional dental services for Medicaid-eligible children, and the District's dental serviceutilizationrates haveranked above the national average for overfive years." Rev. Opp. at 2.

### 1. Current Progress


### a. Utilization Goals (i) and (ii) The Dental Order requires that at least 80 percent ofall EPSDT-eligible children 6 to 24 months "receive at least one oral risk health assessment by a primary care provider as part ofthe -6-HealthCheck visit." Dental Order 

## iii! 2(e)(i), (ii). Onthe 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 ofall 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% ofMedicaid-eligible childrenreceived such screenings inFY2014, relying upon datafor preventive dental service for children ages 3to 18 and 6to 18 to measuretheDistrict's compliance. Mot. at 19. To date, the Districthas notreported data onthis utilization goal, butitdoes not dispute that it has not met this goal. Rep. at 20. However, as reflected in the 2015 CAP, the Districthas identified action items to encourage the submission oforal health assessment forms so that it may create a more accurate report onthe district's compliance withthis 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 ofall EPSDT-eligible children 8-14 years old receive protective sealants on their permanent teeth. As ofFY 2015, the United States Centers for Medicare and Medicaid Services ("CMS") again concluded that no state has been able to achieve this 70 percentutilizationrate. The issue of providingdental services andespeciallythe sealantsto Medicaid-eligiblechildren,especially the younger ones, is significant because the sealants are so effective in lowering rates ofcavities.

-7-In FY 2014, the District reported that 20.50 percent ofits children ages 6-14 did receive protective sealants comparedto anational average of14.88 percent inFY 2015. Sonosky**Deel.~** 28. In FY 2015, the Districtreportedthat 22.67percentofthe EPSDT-eligible childrenreceived 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. Sonosky**Deel.~** 65. Inthe first halfofthe 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 thatthese numbers are limited because oflowlevels ofparental consent to receiving school-based screening. Rev. Opp. at 14. Plaintiffspropose thatthe Districtimplement
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 ofcompliance. It argues that it has a State Oral Health Action Plan (SOHAP), 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 ofprotective 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 nojurisdiction in the country has been able to reach the desired rate of 80 percent ofESPDT eligible children 3 years of age and older receiving any dental services as reported in line 12(a) ofthe 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 of52.66 percent. Id. if 28. In FY 2015, the District reported a rate of61.38 percent, compared to the national average of 52.72 percent. Id. if 28.
e. Utilization Goal (vi) While nojurisdiction in the country has been able to reach the desired rate of80 percent of ESPDT eligible children aged 3-20 receiving preventive dental services, in FY 2014, the District reported that 56.32 percent ofeligible children had received preventive dental services, compared to the national average of48.4 percent. Id. if 28. Thatyear, the Districtranked fourth inthe country in the percentage ofchildren 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 of57.38 percent, compared to the national average of48.24 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 1to 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 Districthas set forth, at great length, the particulars ofits SOHAP, which
was developed in consultation with CMS and other national experts, the numerous local partners withchildren's oral health stakeholders, andthe District's school-basedinitiatives. The description oftheseprograms indicate clearlyhowseriouslythe Districthas attemptedto do everythingpossible to implement and improve the dental services to Medicaid-eligible children by following the requirements ofthe 2004 Settlement Order. Plaintiffs' request for a five-year CAP with interim performance goals not only exceeds the Dental Order's scope, which onlyrequires annual CAPs, butwould inessence replacethe 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 ofboth parties, convince the Court that the District has presented a very credible explanation ofhow 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 ofOctober 18, 2004 shall be denied.

February 22, 2017

Copies via ECF to all counsel ofrecord

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