Jacqualyn THORPE, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 10-2250 (ESH)
United States District Court, District of Columbia.
Signed March 29, 2014
303 F.R.D. 120
ELLEN SEGAL HUVELLE, United States District Judge
ELLEN SEGAL HUVELLE, United States District Judge
In this Olmstead action, plaintiffs, who include nine1 current and former nursing facility residents, claim that the District of Columbia (“District” or “defendant“) provides Medicaid-funded long-term care services to individuals with physical disabilities in a manner that results in the unnecessary segregation of such individuals in nursing facilities in violation of Title II of the Americans with Disabilities Act (“ADA“),
BACKGROUND3
I. LEGAL BACKGROUND: THE INTEGRATION MANDATE
The Supreme Court concluded in Olmstead that the “integration mandate” of the ADA and the Rehabilitation Act requires a public entity such as the District to administer its Medicaid program in a manner that does not result in the “unjustified segregation or isolation” of individuals with disabilities. See Olmstead v. L.C., 527 U.S. 581, 607, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), which recognized for the first time that unjustified segregation was a form of discrimination prohibited by the ADA and the Rehabilitation Act.
Barbara S. Wahl, Alison L. Andersen, Brian D. Schneider, Arent Fox, LLP, Iris Y. Gonzalez, Kelly R. Bagby, AARP Foundation Litigation, Lyndsay Ayanna Niles, Marjorie Lynn Rifkin, Jennifer Rachel Lav, Victoria L. Thomas, University Legal Services, Inc., Washington, DC, for Plaintiffs.
Bradford Collins Patrick, Chad Alan Naso, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
Since Olmstead, numerous “integration mandate” or “Olmstead” cases have been brought.6 Across a wide range of services, programs and activities, these cases have challenged undue segregation of individuals with disabilities (or at risk of segregation) in nursing facilities,7 mental health facilities,8 institutions for individuals with intellectual and developmental disabilities,9 and sheltered workshops/segregated day services.10
II. FACTUAL BACKGROUND
A. Existing Medicaid Coverage of Long-Term Care Services for Individuals with Physical Disabilities
In the District, individuals with physical disabilities who require Medicaid-covered long-term care services12 have three options for accessing those services: (1) in a nursing facility; (2) in the community with services provided by a Medicaid waiver program; or (3) in the community with personal care assistance services covered by the District‘s Medicaid Plan.
Nursing Facility Care: Federal rules provide that all Medicaid programs must cover long-term care services provided by an institution (e.g., a nursing facility),13 although states determine the “level-of-care” criteria an individual must satisfy to qualify for such services. To define level-of-care criteria, states may use “functional” criteria, such as an individual‘s ability to perform certain Activities of Daily Living (“ADLs“); or “clini-
As of January 1, 2013, there were 2,765 available beds in nineteen Medicaid-certified nursing facilities in the District and 2388 of those beds were filled by Medicaid recipients.14 (Def.‘s 12/13/2013 Supp. Filing 2; Turnage Dep. 99-100, Mar. 15, 2013.) Of the Medicaid recipients, 2019 had been in the nursing facility for more than 90 days.15 (Def.‘s 12/13/2013 Supp. Filing 2.) In addition, there were approximately 200 D.C. Medicaid beneficiaries in nursing facilities outside of the District. (See Iscandari Dep.
The existing record does not establish with certainty how many nursing facility residents have “physical disabilities” within the meaning of the ADA and the Rehabilitation Act. Plaintiffs take the position that “most” do based on the fact that in order to enter a nursing home, an individual must meet the requirements for nursing home level of care. Plaintiffs’ assumption is not without flaws, but it is not unreasonable. First, even though the ADA‘s definition of a physical disability and the District‘s nursing home level-of-care standard are not identical, there is substantial overlap.16 Indeed, the only exception suggested by the District is an individual who suffers from a developmental disability, a population that has few, if any, individuals still residing in District nursing facilities. Second, although a nursing facility resident‘s condition may have improved over time such that he/she no longer qualifies for a nursing home level of care, annual record reviews of all nursing facility residents are performed to assess whether a current resident continues to require a nursing facility level of care.17 (Iscandari Dep. 52-53, 181-183.) At trial, of course, any material factual disputes will need to be addressed, but at present it is reasonable to assume that most nursing facility residents are also individuals who satisfy the legal definition of an individual with a physical disability.
The existing record also does not establish with certainty how many current nursing facility residents (other than the named plaintiffs who still reside in nursing homes) would prefer to live in the community. The closest proxy for that information comes from a survey mandated by the Center for Medicare and Medicaid Services (“CMS“) that nursing facilities administer to their residents on a quarterly basis. As part of that survey, known as the “Minimum Data Set” (“MDS“) survey, each resident is asked “Do you want to talk to someone about the possibility of returning to the community?” (Def.‘s Reply Brief in Support of its Mot. to Dismiss the Third Am. Compl. (“MTD Reply“) [ECF No. 107] Ex. C, at 31, June 4, 2013 (2010 MDS Survey) (Q0500B); see also Iscandari Dep. 48-50.) In 2010, approximately 524 nursing facility residents (out of 2,499 surveyed) answered yes to that question. (See Turnage Dep. 97-98; Iscandari Dep. 48-50; see also Turnage Dep. 95 & Ex. 14 (Oct. 22, 2010 DHCF MFP Operational Protocol Amendment) (indicating that 580 residents had expressed desire to move).) The existing record does not include any information about more recent answers to this question. Publicly available data from the MDS survey,18 however, suggests that the number of residents who are interested in returning to the community has remained fairly stable. For example, for the fourth quarter of 2013 (the most recent available data), 27.50% of 2182 residents surveyed (approximately 600 individuals) “expect[ed] to be discharged to the community.” See MDS 3.0 Frequency Report, 4th Quarter 2013, supra n. 18. The only other preference data in the existing record comes from a screening the District did in 2012: at that time it screened 354 nursing facility residents and identified 256 who wanted to return to the community. (Def.‘s Resps. to Pls.’ First Set of Interrogatories 5, Feb. 15, 2013 (“Def.‘s Interrog. Resps.“).)
Home and Community-Based Services Waiver Programs: In addition to the mandatory coverage of long-term care services provided in a nursing facility, a state Medicaid program may opt to cover home and community-based long-term care services via a “Home and Community Based Services (HCBS) Waiver” program. See
In the District, the “Elderly and Persons with Disabilities Waiver” (“EPD Waiver“) covers home and community-based long-term
The District began enrolling individuals in the EPD Waiver in 2008. At the time the District did not keep track of whether EPD Waiver participants were coming directly from the community or from nursing facilities. By August 2011, the available slots (3940) were filled, and on August 17, 2011, the Department of Health Care Finance (“DHCF“) started a waiting list. (See DHCF Transmittal No. 11-24; DHCF Transmittal No. 11-32; Iscandari Dep. 33.) In December 2011, the EPD waiver was reauthorized for the next five years (from January 4, 2012–January 3, 2017). (Iscandari Dep. 24.) For the first year, there were 4050 slots; for the second year, there were 4162 slots; and the number was set to increase to 4278 in 2014, 4387 in 2015 and 4520 in 2016.22 (EPD Waiver Renewal Application, Appendix B; Turnage Dep. 150-51.) Forty slots per year are reserved for nursing facility residents. (Turnage Dep. 150; Iscandari Dep. 34-35.)
By July 2012, there were 681 people on the EPD waiver waiting list. (Turnage Dep. 158-59.) By the beginning of January 2013, there were 1084, including 114 nursing facility residents, seven of whom were named plaintiffs (Carter, Collins, Goines, Magby, McDonald, Rivers, and Thorpe). (Iscandari Decl. ¶¶ 6-7, June 3, 2013.) On January 7, 2013, the District sent letters offering waiver slots to the 1084 individuals then on the waiting list. (Iscandari Decl. ¶ 4.) By June 4, 2013, the District reported that of the 1084 individuals who had been sent offer letters, approximately 246 had enrolled; 472 were in the process of enrolling; and 366 had not responded, including all of the named plaintiffs. (Iscandari Decl. ¶ 5.) Additional names have been added to the waiting list since January 2013, but it is not clear how many. (Compare Iscandari Dep. 105 (estimating that 220 individuals were added to the waiting list between January 7, 2013 and March 20, 2013); Iscandari Decl. ¶ 4 (as of May 21, 2013, there were 1519 individuals on the EPD Waiver waiting list, out of which 1084 had been offered waiver spots) with DHCF, DC Medical Care Advisory Committee Report (“MCAC“),23 Apr. 2013 (reporting 1397 individuals on the EPD Waiver waiting list, 1084 of whom had been notified of an available slot); id., Jan. 2014 (same).)
State Plan Coverage of Personal Care Services: Finally, a state Medicaid program may opt to cover certain “personal care assistance” services. The District‘s Medicaid State Plan includes coverage for “personal care assistance” for up to eight hours per day or 1040 hours per year, although additional care may be authorized. See
B. Transitioning Individuals from Nursing Facilities to Home and Community-Based Long-Term Care Services
1. Money Follows the Person (“MFP“) Program
The MFP Program is a federally-funded grant program with the specific goal of help-
First, as a prerequisite for participation in the MFP program, the District is required to set annual targets or benchmarks for the number of physically disabled nursing facility residents it anticipates transitioning via MFP to the EPD Waiver. In 2007, when the District first applied for and received approval to participate in the MFP program, the District proposed transitioning a total of 645 individuals with physical disabilities out of nursing facilities at a rate of over 100 per year. (See Turnage Dep. 186-88 & Ex. 27 (2007 MFP Rebalancing Demonstration Grant Award for the District of Columbia)); see also Day, 894 F.Supp.2d at 14. In 2010, the District‘s benchmarks were reduced to 30 residents in 2010; 40 residents in 201125; 40 residents in 2012; 40 residents in 2013; and 40 residents in 2014. (2013 Olmstead Plan at 39; Sarigol 2013 Dep. 60-61; Def.‘s 12/13/2013 Supp. Filing 5.) To date, the MFP program has consistently fallen far short of its targets, transitioning 0 residents in 2010, 17 residents in 2011; 16 residents in 2012; and 16 residents in 2013, for a total of 49 MFP program transitions from October 2010 through December 6, 2013. (Def.‘s 12/13/2013 Supp. Filing 1-2 & Ex. 1 (“MMIS Data Chart“); Sarigol 2013 Dep. 58-59, 65-66.) And although the District reiterated in December 2013 that it had a goal of 40 MFP transitions for 2014 (Def.‘s 12/13/2013 Supp. Filing 5), it has now reduced that to goal to 30. (See Notice of the District of Columbia‘s Public Release of Fiscal Year 2014 Agency Olmstead Goals Ex. 1, Mar. 11, 2014 (“2014 Olmstead Goals“) [ECF No. 127].)
Second, in 2012, the MFP program screened 354 nursing facility residents who had either “asked to be screened or [were] otherwise referred to the Transition Coordinators” and identified 256 who desired to return to the community. (Def.‘s Interrog. Resps. 5.) Out of the 256, 132 were preliminarily determined to be eligible for MFP. (Def.‘s Interrog. Resps. 5; Sarigol Dep. 140, Feb. 25, 2013.) In August 2012, the MFP program purportedly “began assisting all MFP-eligible nursing home residents with an identified home address outside of the nursing facility for whom funding in the [EPD] Waiver program [wa]s available to continue home and community-based long term services in the year following the MFP Demonstration” (Sarigol Decl. ¶ 4, June 4, 2013 (“Sarigol Decl. I“)), but the record does not indicate how many residents fell into this category or how many transitions resulted from this assistance. In March 2013, DHCF held a lottery among the MFP-eligible group (130 individuals) to select 40 residents who did not have an identified housing option to participate in MFP with the assistance of housing subsidies.26 (Sarigol Decl. I ¶¶ 5, 6.)
The pace of the District‘s transitions through the MFP program has been flagged as too slow by CMS. Following an “on-site” visit, CMS sent a letter to the DHCF‘s Medicaid Director in July 2012, noting that there had been a “limited number of transitions” via MFP as of May 2012, and advising the District that “[t]he lack of meeting MFP transition benchmark issue and repeated revision to lower numbers since the start of the 2008 MFP Demonstration program has hampered meeting the intent of [] Olmstead. Without significant improvement in the number of individuals with significant disabilities transitioned, there is a distinct possibility the continuation of the DC MFP program could be in jeopardy.” (Sarigol 2013 Dep. Ex. 25, at 2 (July 6, 2012 CMS letter to DHCF Medicaid Director)27; Teasdell Dep. 184, Feb. 28, 2013 (describing the MFP Program as having “been in a dormant stage for the past thirteen months“).) CMS also “identified several practices that could be improved” in the administration of the MFP Program and “provide[d] recommendations for action.”28 (Sarigol Dep. Ex. 25, at 1.) As a result of the CMS review, the District‘s MFP Program was placed “on an Action Plan for not meeting its transition benchmarks for 2011,” and the District was told that “the expectation is for [the District] to meet its required transition benchmarks for 2012.” (Sarigol Dep. Ex. 25, at 6.) CMS further advised the District that “[i]f this requirement as specified in the terms and conditions of the MFP grant does not occur, the receipt of future supplemental funds for 2013 and possibly the future operations of MFP in DC could be negatively impacted.” (Sarigol Dep. Ex. 25, at 6.) Since the CMS letter, the number of MFP transitions has increased, but it remains far below the transition benchmarks.
2. The District‘s Olmstead Plan
In April 2012, the District released its first official “Olmstead Plan,” which it updated in April 2013. (Def.‘s 12/13/2013 Supp. Filing Ex. 1, at 2 (District of Columbia, Olmstead Community Integration Plan: One Community for All, Apr. 2013 (“2013 Olmstead Plan“)).) Under the Plan, the District‘s overall goal is to “institute a comprehensive, effectively working plan for placing individuals with disabilities in less restrictive settings” in order “to meet the needs and preferences of the individual while allowing him or her to choose where s/he wants to live in the community with the appropriate supports and services.” (Id. at 2.) Moving nursing facility residents back to the community is one component of the plan.29 (2013 Olmstead Plan at 17, 38.)
Two entities in the District are identified as having a role in nursing facility transitions: DHCF and the Aging and Disability Resource Center (“ADRC“), which is part of
The District has not yet issued an updated Olmstead Plan for 2014, but it has publicly released numerical “Olmstead goals” for fiscal year 2014. (See 2014 Olmstead Goals.) As noted, the MFP goal for 2014 is 30 transitions, 10 less than the MFP benchmark. For the first time, DHCF has also set a numerical goal of transitioning 25 nursing facility residents directly to the EPD waiver (2014 Olmstead Goals at 10), although it is not clear whether there are any waiver slots available for the nursing facility residents who are seeking to transition outside of the MFP program. (See Turnage Dep. 150; Iscandari Dep. 34-35.) Also for the first time, ADRC has distinguished between hospital discharges and nursing facility discharges and set a goal of assisting 80 nursing facility residents transition to the community. For ADRC, though, any nursing facility resident who transitions, regardless of Medicaid coverage or length of stay, is counted toward that goal. (2014 Olmstead Goals at 3.)
3. Transition Data
Getting an accurate picture of how many nursing facility residents in the District have transitioned to community-based long-term care services since Olmstead is exceedingly difficult given the variety of sources of data (some of which is conflicting) both within and outside the District, the significant gaps in the available data, and the parties’ disputes over its accuracy and how it is to be interpreted.
According to data submitted by the District,31 since this lawsuit was filed, a total of
The District has further broken down the overall discharge numbers for 2012 and 2013 for Medicaid beneficiaries who had been in the nursing home for over 90 days to identify how many transitions came under the MFP program, how many were attributable to the ADRC, and how many were not attributable to either the MFP program or the ADRC. For 2012, the District calculates that there were a total of 63 discharges, 16 under the MFP program, zero with assistance from the ADRC, and 47 “other” discharges. (Def.‘s 12/13/2013 Supp. Filing 1.) For 2013, the District calculates a total of 57 discharges, 16 under the MFP program, 14 assisted by the ADRC, and 27 other discharges. (Def.‘s 12/13/2013 Supp. Filing 2; Def.‘s 12/20/2013 Supp. Filing 5.)
This data, as has been the situation throughout this litigation, is fraught with problems. At the time of the Court‘s prior decision, the District had very little information about nursing home transitions. See Day, 894 F.Supp. at 28. The record showed that as of October 2011 only three residents had moved via the MFP program but no data existed as to how many residents had moved to the EPD Waiver or the State Plan. Id. Since then, we know from the District that, as of its latest filing in late 2013, it calculates that for the period 2010–2013, there were 221 discharges of Medicaid residents who had been in a nursing home for over 90 days, 49 residents had moved via the MFP program, 14 residents had been assisted by ADRC, and some unknown number of the remaining 160 “other discharges” may have been assisted by the District in their return to community-based long-term care services. But even assuming that the total discharges of persons in nursing homes for over 90 days to community-based services is 221, that figure covers a four-year period and its significance is vigorously disputed by plaintiffs.
III. PROCEDURAL BACKGROUND
Plaintiffs commenced this litigation in December 2010, 11 years after the Supreme Court‘s decision in Olmstead. After plaintiffs filed their first amended complaint (1st Am. Compl., Mar. 30, 2011 [ECF No. 17]), defendants filed a motion to dismiss or, in the alternative, for summary judgment. (Def.‘s Mot. to Dismiss Or, in the Alternative, for Summary Judgment, April. 27, 2011 [ECF No. 19].) In addition to its arguments for dismissal, defendants argued that they were entitled to summary judgment because “the District ha[d] instituted several comprehensive and effective programs that facilitate community-based care and transitions from nursing facilities to community-based care.” (Id.) Plaintiffs were allowed discovery in order to respond to the motion for summary judgment. (Minute Order, Apr. 29, 2011.) On February 14, 2012, the Court denied the motion, except that it dismissed all claims against the individual defendants on the ground that official capacity claims against them were redundant of the claims against the District. See Day v. DC, 894 F.Supp.2d 1, 33 (D.D.C.2012). The Court concluded that (1) plaintiffs had alleged a sufficient
A. Second Amended Complaint & First Motion for Class Certification
Thereafter, plaintiffs filed their second amended complaint (2d Am. Compl., Apr. 2, 2012 [ECF No. 46]), and shortly thereafter, their first motion for class certification. (Pls.’ Mot. for Class Certification, May 15, 2012 (“1st CC Mot.“) [ECF No. 54].) Plaintiffs sought to certify a class composed of:
All persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility.
(1st CC Mot. 2.)33 As relief, plaintiffs sought “a permanent injunction requiring Defendant to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs.” (2d Am. Compl., Prayer for Relief.)
The Court held a hearing on plaintiffs’ motion on January 7, 2013. During the hearing, the Court confirmed that plaintiffs were seeking only systemic relief and that they were not seeking any relief from the Department of Mental Health (“DMH“). At the end of the hearing, the Court advised plaintiffs that it would not grant the motion to certify the class as “presently constituted” for several reasons, including (1) the discrepancy between the purported systemic goals of the litigation and the undefined but individualized injunctive relief sought by the second amended complaint; and (2) plaintiffs’ failure to avoid overlap between their claims and the class action settlement in Dixon v. Gray, No. 74-cv-0285 (D.D.C. Feb. 16, 2012), which created an integrated community-based mental health system designed to guarantee the rights of individuals with mental illness to community-based treatment under the least restrictive conditions.34 (Hrg. Tr. 92-94, Jan. 7, 2013 (“1/7/13 Hrg. Tr.“).) To allow plaintiffs an opportunity to address these deficiencies, the Court denied the motion for class certification without prejudice and set a schedule for plaintiffs to file a third amended complaint and a renewed motion for class certification. (Am. Scheduling Order, Jan. 17, 2013 [ECF No. 87].) The District, in the meantime, sought a stay “to allow for the implementation of a new nurs-
B. Third Amended Complaint & Renewed Motion for Class Certification
On March 27, 2013, plaintiffs filed their third amended complaint, which added six new class representatives, revised the proposed class definition in several ways, and amplified plaintiffs’ requests for relief. Of the remaining nine named plaintiffs, see supra n.1, six (Thorpe, McDonald, Collins, Goines, Gray and Rivers) presently reside in nursing facilities and receive Medicaid-covered long-term care services,36 while three (Dupree, Foreman, and Wilkerson) have transitioned to less restrictive settings during the pendency of this lawsuit.37
The revised class definition differs from the prior definition in that it limits the class to individuals who have a physical disability, have been in a nursing facility for over 90 days, and need transition assistance from the District in order to leave the nursing facility and obtain community-based long-term care services. The proposed revised class definition reads:
All persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible38 to live in the community; and (3) would live in the community instead of a nursing facility if the District of Columbia would provide transition assistance to facilitate their access to long-term care services in the community.
(3d Am. Compl. ¶ 153.)
According to this latest iteration, the class “requires a District-wide common system of transition services to connect its members with community-based supports and long-term care services.” (3d Am. Compl. at 2.) It alleges that the District‘s existing system of transition assistance is deficient because the District “fails to“:
- Assure that individuals with physical disabilities receive long-term care services in the most integrated community-based setting appropriate to their needs;
- Develop and implement a comprehensive and effectively working integration
- Ensure capacity in its Medicaid long-term care programs and services under the EPD Waiver Program, the State Plan Personal Care Assistance Program, Money Follows the Person Program, and programs for senior citizens and adults with physical disabilities to enable named Plaintiffs and class members to transition from nursing facilities to the community with these long-term care services and case management assistance;
- Ensure sufficient staffing to inform individuals with physical disabilities in nursing facilities about available long-term care services in the community and assess the community eligibility of individuals with physical disabilities in nursing facilities and provide transition assistance, i.e., assist named Plaintiffs and class members to obtain identification documents, complete housing applications, and arrange long-term care services upon discharge from the nursing facilities;
- Provide adequate and appropriate community-based long-term care services to assist Plaintiffs with their activities of daily living (bathing, dressing, mobility, toileting, eating) and instrumental activities of daily living (e.g., meal preparation, grocery shopping, laundry), and skilled nursing needs;
- Assure that people with physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them prior to, and upon admission of the availability of integrated, community-based options for long-term care services as an alternative to nursing facility placement, offering them a meaningful choice of community placement, or offering any assistance to those who seek to return to live in the community;
- Assure that individuals with physical disabilities residing in nursing facilities are periodically asked about their interest in, assessed for, and where appropriate, transitioned from nursing facilities to community-based long-term care services;
- Ensure that all nursing facilities that receive DC Medicaid funding inform individuals with physical disabilities about community-based alternatives and begin discharge planning upon admission to assist Plaintiffs to transition back to the community from nursing facilities;
- Provide clear and accurate information to Plaintiffs regarding their eligibility for community-based long-term care services, the process for accessing these services, and assisting them to apply for the services;
- Provide information, transitional assistance, and referrals to facilitate Plaintiffs’ access to supportive housing as necessary to enable Plaintiffs to no longer be unnecessarily segregated in nursing facilities; and
- Take adequate steps to preserve Plaintiffs’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
(3d Am. Compl. ¶ 139.)
The above request for relief still seeks broad and far-ranging institutional reform of the care and treatment of several thousand DC Medicaid recipients who have physical disabilities and currently reside in nursing homes. Specifically, the relief goes far beyond transitional services by seeking “a permanent injunction requiring Defendant to promptly take the following steps that are necessary to serve Plaintiffs in the most integrated settings appropriate to their needs,” with the steps defined as “develop[ing] and implementing a working system of transition assistance for Plaintiffs,” “ensur[ing] suffi-
On April 11, 2013, the District filed a motion to dismiss the third amended complaint. On May 6, 2013, plaintiffs filed their renewed motion for class certification based on the third amended complaint. The United States is not a party to this litigation but it filed a Statement of Interest in support of the plaintiffs’ renewed motion for class certification. (Statement of Interest of the United States of America, June 26, 2013 [ECF No. 109].) On December 13, 2013, the Court held a hearing on both motions.
ANALYSIS
The pending motions present many challenging issues, several of which raise serious questions as to whether plaintiffs can prevail on the merits and whether they are entitled to the far-ranging systemic relief they seek. For example, many nursing facility residents, including named plaintiffs, lack readily affordable housing in the community, and it is agreed that the Court cannot order the District to provide housing. Plaintiffs may therefore be unable to establish causation—a causal link between any proven deficiencies in the District‘s system of transition assistance and the injury associated with being “stuck” in a nursing facility. Similarly, there is a substantial question as to whether plaintiffs’ request for injunctive relief exceeds the scope of their claims (in particular their request for “sufficient capacity of community-based long-term care services” and the transition of a specified number of individuals
Nonetheless, despite these serious problems, the Court concludes that plaintiffs here have carried their burden under
In short, the District has yet to demonstrate that its Olmstead Plan is an “effectively working plan for placing qualified persons with ... disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State‘s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 605-06, 119 S.Ct. 2176. On this basis, to the extent that Wal-Mart requires the Court to take a hard look at the merits in deciding whether the
I. THE DISTRICT‘S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT
A. Implied Requirement of Definiteness
The District first argues that the Third Amended Complaint should be dismissed because the proposed class definition has “several, fatal defects” that render it “not suffi-
The requirement of “definiteness” has been imposed by courts as an “implied requirement” for class certification, in addition to the express requirements in
The District urges the Court to reject the proposed class definition for lack of definiteness because (1) the identity of class members is not “readily ascertainable” with reference to “objective criteria” now that the proposed class includes only individuals who need transition assistance from the Dis-
trict47; and (2) the definition is overbroad because it does not exclude individuals who lack identified housing in the community or individuals who are under DMH‘s umbrella.1. Ascertainability
The District contends that the identity of class members is not “readily ascertainable” with reference to “objective criteria” because the term “transition assistance” is too “vague,”48 and even if the term had a clear definition, it would be impossible to know who needs transition assistance from the District without extensive “individualized” inquiry. (MTD 7; MTD Reply 2.) Neither criticism is persuasive.
Although the term “transition assistance” could mean a number of things, plaintiffs have set forth in their complaint (see 3d Am. Compl. ¶ 139 & Prayer for Relief), and in response to the District‘s motion, a fairly specific description of what they intend it to mean:
Defendant must establish and implement a policy of transition assistance that identifies the services each class member currently receives and needs, identifies the corresponding services available in the community, and then takes steps to bridge the divide. The Court is asked only to order the implementation of the system itself; the system will then carry out the work needed to desegregate the class members. This might include, for example: the distribution of, and assistance with completing applications for identification documents, housing, transportation, and personal care assistance services, and the arrangement of these services prior to nursing facility discharge to ensure implementation upon class members’ transition to the community. Defendant‘s policy and practice must make assistance available to class members to enable them to complete the steps toward moving back to the community with the Medicaid long-term personal care assistance services that exist in the community and are needed by all class members to help them with their activities of daily living.
(Pls.’ Opp‘n to Def.‘s Mot. to Dismiss the Third Am. Compl. at 10, May 6, 2013 (“MTD Opp.“) [ECF No. 102]).
Moreover, while it may be correct that it is impossible to identify specifically who needs transition assistance from the District without individualized determinations (see MTD 6-7),49 this is not a “fatal” defect. First, as this is a
2. Overbreadth
The District also argues that the proposed class definition is “fatally overbroad in two important respects“—it fails “to exclude Dixon class members and/or individuals who would receive assistance from DMH,” and individuals “who lack a housing option in the community.” (MTD 9-11.) According to the District, “[c]ourts will not certify a class where the definition includes a substantial number of individuals who have no claim to relief.” (MTD 9 (citing Vigus v. S. Ill. Riverboat/Casino Cruises, Inc., 274 F.R.D. 229, 235 (S.D.Ill.2011) (“Where a class is overbroad and could include a substantial number of people who have no claim under the theory advanced by the named plaintiff, the class is not sufficiently definite.“)).)
The District‘s analysis is flawed. First, the court in Vigus was applying a stringent version of the definiteness requirement, which is not required for a
a. Failure to Exclude All DMH Consumers
As the District rightly points out, the proposed class definition “continues to incorporate individuals with serious and persistent mental illnesses” if those individuals also have physical disabilities. (MTD 9; MTD Reply 10.) The District argues that these individuals should be excluded because DMH “would assist [their] moving into less restrictive settings.” (MTD 9; MTD Reply 10.) Plaintiffs maintain that by limiting the class to individuals with physical disabilities, they have excluded residents who are exclusively the DMH‘s responsibility, but that residents who have both physical and mental disabilities are properly part of the class because DHCF and DCOA are the agencies through which they access community-based long-term care services. (MTD Opp. 12.)50
At this point, plaintiffs’ revised class definition satisfies the Court‘s primary concern, for it excludes any request for systemic changes to DMH, which is the subject of the Dixon settlement. The District reads the discussion during the January 7, 2013 hearing as requiring the exclusion of all DMH consumers and requiring plaintiffs to conduct discovery to identify those individuals. (See MTD 11 n.5.) But the Court agrees with plaintiffs that there is no need for the class to be narrowed to that extent as long as the DMH consumers in the class are also physically disabled and eligible for long-term care services and transition assistance administered by DHCF or DCOA. The Court finds ample evidence in the record to support plaintiffs’ contention that these individuals are no different than any other Medicaid-covered physically disabled resident in terms of their eligibility for the long-term care services administered by DHCF and for nursing facility transition assistance provided by DHCF and DCOA. Contrary to the District‘s view, it is not necessary for plaintiffs to establish “that DMH has no role in assisting individuals with physical disabilities to leave nursing facilities.” (MTD Reply 9-11.) DMH clearly has a role, but just because a resident is a DMH consumer and eligible for transition assistance from the DMH does not preclude him or her from being eligible for and benefiting from transition assistance from DHCF or DCOA. (See, e.g., Teasdell 30(b)(6) Dep. 98-99, Feb. 28, 2013; Sarigol 2011 Dep. 19-21.) Absent evidence that the
b. Failure to Exclude Residents Who Lack Housing
The District also argues that the revised class definition is overbroad because it fails to exclude nursing facility residents who lack “an identified housing option” in the community. (MTD 11.) According to the District, such individuals must be excluded because they cannot be in need of “transition assistance.” (MTD Reply 9 (“To demand that the District provide transition assistance to individuals without a place to go is baffling“).) Plaintiffs counter that even though they have “never requested the Court to order [the District] to create, or even fund, housing,” part of an effective system of transition assistance would include assistance to “access available housing resources in the community.” (MTD Opp. 13, 18.)
There is no question that many of the proposed class members lack an “identified housing option.” (See Def.‘s Interrog. Resps. 7 & n.1; see also CC Opp. 21-22 (list of citations to record re housing problem).) What this will mean for plaintiffs’ case on liability cannot be determined at this stage, for if the only barrier to movement for most residents is the lack of a place to go (and not the lack of transition services), plaintiffs may not be able to prove a causal link between the alleged deficiencies in the District‘s system of transition assistance and the alleged unnecessary segregation.
At this stage, however, the Court is not in a position to resolve the merits, but only whether the proposed class definition is overbroad. On that limited issue, the Court agrees with plaintiffs that there is no overbreadth problem. Just because a resident lacks readily-identifiable housing in the com
B. Standing Arguments
The District‘s motion to dismiss also challenges plaintiffs’ standing on two grounds, neither of which has merit. First, it argues that if the proposed class definition is deficient, the named plaintiffs “lack standing to pursue the system-wide injunctive relief set forth therein.” (Mot. to Dismiss at 12.) As the Court has rejected the District‘s challenges to the proposed class definition, this argument is moot.
The District also argues that named plaintiffs lack standing even if the class definition is not rejected because “the broad systemic relief requested... still far exceeds the specific injuries alleged by the named Plaintiffs.” (MTD 16 (complaint “seeks relief to address purported inadequacies of the District‘s long-term care system that are not even alleged to have injured the named Plaintiffs“).) To support this argument the District relies Lewis v. Casey, wherein the Supreme Court observed:
That a suit may be a class action... adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.
518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal quotations omitted).
In Lewis, a class action challenging various prison rules, the Court vacated the systemic aspects of the district court‘s injunction on the ground that the district court had “found actual injury on the part of only one named plaintiff.” Id. at 358. Under those circumstances, the Court explained, “[t]he remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U.S. at 357.
The District ignores, however, that Lewis was in a different posture from the present case. In Lewis, the Supreme Court was reviewing an injunction that had been entered after a trial on the merits. In reaching its decision, the Court emphasized that the procedural posture of a case was critical when considering whether the elements of standing were satisfied. “At the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. at 358 (internal quotations omitted). “[A]t the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.” Id. (internal quotations omitted).
Here, the District is asking the Court to reject plaintiffs’ requested relief for lack of standing at the motion to dismiss stage. Although the Court agrees with the District that there is a serious question as to whether at least a part of the “broad systemic relief requested... exceeds the specific injuries alleged by the named plaintiffs” (MTD 16), that is not the case for all of the relief. Moreover, plaintiffs’ potential inability to
While the Court will undoubtedly have to return to Lewis‘s admonition that not only must the remedy be limited to a proven inadequacy, but the “inadequacy [must be] widespread enough to justify systemwide relief,” Lewis, 518 U.S. at 359, that inquiry will have to wait until another day.53
II. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
A. LEGAL STANDARD
A principal purpose of class certification is to save the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical manner. See General Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class.
If these prerequisites are satisfied,
”
B. RULE 23 REQUIREMENTS
1. Numerosity (Rule 23(a)(1) )
The first requirement for a class action is that “the class is so numerous that joinder of all members is impracticable.”
Despite weaknesses in plaintiffs’ arguments,54 the Court is satisfied that the numerosity requirement has been met based on the following: (1) the total population of Medicaid-recipients in nursing facilities in the District who have been there for over 90 days exceeds 2000, and that number has not significantly changed in the past few years; (2) each quarter, there are usually more than 500 current nursing facility residents who have either expressed interest in speaking to someone about receiving services in the community or want to return to the community (See MDS 3.0 Frequency Reports 2011-2013); (3) when the District‘s MFP program
2. Commonality (Rule 23(a)(2) )
The “commonality” requirement of
In Wal-Mart, the Court concluded that the gap was impossible to overcome because plaintiffs sought to certify a class of one and a half million women, all current or former employees of Wal-Mart, who alleged that “the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women.” 131 S.Ct. at 2544. The pay and promotion decisions, however, were made by thousands of geographically-dispersed managers and “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552 (emphasis in original).
Thereafter, in DL, a case brought under the Individuals with Disabilities Education Act (“IDEA“),
On remand, the district court certified four subclasses based on each step of the Child Find process. DL, 302 F.R.D. at 12-13, 2013 WL 6913117, at *7 (“Each proposed subclass poses the question whether the District‘s policies were adequate to fulfill a specific statutory obligation under the IDEA.“). Following the district court‘s certification decision, defendants sought an interlocutory appeal under
Plaintiffs contend that this case raises a number of “common” questions that satisfy both Wal-Mart and DL. (CC Mot. 21; see also 3d Am. Compl. ¶ 156.) The Court agrees. The gravamen of plaintiffs’ case is their contention that the District is violating the integration mandate and injuring each and every class member by virtue of its failure to implement an effective system of transition assistance.57 (See CC Mot. 23 (“this case hinges on [the District‘s] failure to create and implement effective transition policies and practices to connect individuals who are eligible for and desirous of community-based long-term care services“).) Thus, plaintiffs’ claims raise the following common questions: (1) are there deficiencies in the District‘s existing system of transition assistance? (2) if so, what are those deficiencies?58 and (3) are the proven deficiencies causing unnecessary segregation? True or false, resolution of these common contentions will gen
Although there are no post Wal-Mart Olmstead cases in this Circuit, courts elsewhere have distinguished Wal-Mart and found commonality. See, e.g., Kenneth R., 293 F.R.D. at 267 (“common questions susceptible to common answers” included “whether there is a systemic deficiency in the availability of community-based services, and whether that deficiency follows from the State‘s policies and practices“); Lane v. Kitzhaber, 283 F.R.D. 587, 597 (D.Ore.2012) (“despite the individual dissimilarities among class members, commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members” (internal quotations omitted)). Recognizing that “it may be a matter of degree, and perhaps discretion, as to where the line should be drawn,” this Court agrees with the holdings in Kenneth R. and Lane and concludes that plaintiffs in this case have identified at least one common question “at a low enough level of generality (or high enough level of specificity) to pass muster under Wal-Mart” and to satisfy the requirement of commonality. Kenneth R., 293 F.R.D. at 268.60
3. Typicality (Rule 23(a)(3) )
The third prerequisite for class certification is that “the claims or defenses of the representative parties are typical of the claims and defenses of the class.”
Plaintiffs contend that the named plaintiffs claims are “typical” of the class as a whole because they have all “experienced the same unnecessary institutionalization and sustained the same injury resulting from the same failure of the [the District] to develop and implement an effective system of transition assistance.” (CC Mot. 32.) The District challenges plaintiffs’ claim of typicality on three grounds: (1) that plaintiffs have not identified a “specific discriminatory practice” that has injured the named plaintiffs and the putative class in the same manner; (2) that several of the named plaintiffs do not meet the proposed class definition; and (3) that the District has unique defenses applicable to
a. Same Manner of Injury
According to the District, the lack of “effective... transition assistance” is too “amorphous” a concept to constitute a specific discriminatory practice that has injured class members in the same manner because the transition assistance required “necessarily will vary based upon the particular needs and circumstances of individual class members.”61 (CC Opp. 25.) While this question is not free from doubt, the Court is persuaded that the concept of a system of transition assistance is sufficiently definite to constitute a practice that could violate Olmstead‘s integration mandate, if the lack of transition services contributes to the lack of placements of residents into community-based services.
In the area of Olmstead litigation, “transition assistance” has been defined in a concrete manner. Even if the particulars change depending on the nature of the claim and the facts of an individual case, the key components of an effective system of transition assistance for individuals in nursing facilities or other institutional settings are: (1) individual assessments upon admission and periodically thereafter for all residents to determine interest in community-based services; (2) provision of accurate information about available community-based services and eligibility requirements for those services; (3) discharge/transition planning that commences upon admission and includes a comprehensive written discharge/transition plans; (4) identification of what community-based services are needed and assistance in arranging for those services; (5) assistance in applying for and enrolling in available waivers or transition programs; and (6) identification of barriers to transition and assistance in overcoming those barriers to the extent possible (e.g., if housing is a barrier,
b. Meeting the Class Definition
The District next argues that two of the remaining named plaintiffs (McDonald and Foreman) are not “typical” of the putative class because each fails to meet the proposed class definition. (CC Opp. 26 (citing Virtue v. Int‘l Brotherhood of Teamsters Retirement & Family Protection Plan, 292 F.R.D. 8, 13 (D.D.C.2013) (“Inherent in
First, the District contends that McDonald does not satisfy the class definition because he does not have a “physical disability.” (CC Opp. 26 (“McDonald repeatedly conceded during his deposition that he does not have any physical disabilities or require[] assistance with any activities of daily living“) (citing McDonald Dep. 39-42, 74-76, Mar. 8, 2013).) However, McDonald‘s testimony is not that clear. Although he initially answered no to the question whether he “consider[s] [him]self to have any physical disabilities, he also appeared to be confused by the question, stating that he “didn‘t have to go to school to learn that stuff.” (McDonald Dep. 39-40.) In addition, his declaration states that he has a seizure disorder and mild dementia and needs help with his medications. (McDonald Decl. ¶¶ 9, 12; see also McDonald Dep. 113 (“I don‘t know when I need any of that medication.“)). As for Foreman, the District asserts that he does not satisfy the class definition “due to the complexity of his medical needs,” which “cannot be met by the community-based [long-term care] services covered by the EPD Waiver and/or the Medicaid State Plan.” (CC Opp.
c. Unique Defenses
The District‘s final challenge to typicality is to assert that it has three “unique defenses” to the claims of several named plaintiffs. First, it claims that it has a unique defense to the claims of all the named plaintiffs who were offered the chance in January 2013 to participate in the EPD Waiver, but who failed to contact the District by June 2013 to begin the enrollment process. Second, as to Gray, it claims that he never sought a place on the EPD Waiver waitlist or attempted to access any community-based services. And, as to Dupree, it claims that he was discharged from the nursing facility with the help of DMH, not DHCF or ADRC. The critical question for the Court is not whether these defenses are legally viable, but rather, assuming they are supportable,62 whether
4. Adequacy of Representation (Rule 23(a)(4) )
The fourth
The District first argues that plaintiffs’ decision not to pursue monetary damages raises a potential conflict of interest with the putative class. On the contrary, it is well-established that damage claims are not barred by membership in a class seeking solely equitable relief. See Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C.Cir.1983). That said, a plaintiff in a later suit might be barred by collateral estoppel or issue preclusion from contesting an issue of fact or law that is decided in the defendant‘s favor. See Cooper. v. Fed. Reserve Bank, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (“A judgment in favor of either side [in a class action] is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment.“) Here, though, there is no real conflict of interest, since the scope of the current litigation is limited to a systemic challenge, and the District has not identified any issues that if decided in its favor would preclude an individual Olmstead action for damages.
The District also argues that the individual circumstances of several plaintiffs (Collins, Gray, and Rivers) render them inadequate to represent the class, focusing on statements that suggest that they have limited legal knowledge about the facts or legal theories of the case or a limited understanding about
Accordingly, the Court concludes that plaintiffs have satisfied the adequacy of representation requirement.
5. Rule 23(b)(2)
The final issue is whether plaintiffs satisfy
The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. In other words,
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.
131 S.Ct. at 2557 (internal quotations and citations omitted). As numerous other courts have recognized, both before and after the Supreme Court‘s decision in Wal-Mart, plaintiffs’ claim is precisely the type of claim that satisfies
First, the District‘s alleged failure to implement an effective system of transition assistance is obviously an action or inaction that “can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. at 2557. Next, the Court has already determined that plaintiffs’ claim raises common questions that will generate common answers, and that these common answers will determine what, if any, injunctive relief plaintiffs are entitled to, satisfying the requirement that a single injunction “would provide relief to each member of the class.” See id.; see, e.g., Lane, 283 F.R.D. at 602 (
CONCLUSION
As a district court in New Hampshire recently noted in a similar case:
Reasonable minds may of course differ as to whether the traditional approach taken in ADA integration cases (or related disability cases) of certifying broad classes of persons with different specific disabilities, needs, and preferences (an approach taken both before and after Wal-Mart), is in tension with Wal-Mart‘s recent procedural commands.
Kenneth R., 293 F.R.D. at 271. But this Court agrees with that court‘s conclusion that plaintiffs in an Olmstead case can “meet Wal-Mart‘s demands” where they have defined the class more narrowly than is usually done in ADA integration cases; their class claims are limited to parallel claims under the ADA and RA; they challenge alleged deficiencies related to a discrete set or class of services; and they seek a single declaration or injunction aimed at correcting a systemic discriminatory imbalance (not mini-injunctions for each class member....) Id.
Plaintiffs have met this standard, and therefore, their motion for class certification, with minor modifications to the proposed class definition, will be granted and the District‘s motion to dismiss the third amended complaint will be denied. A separate Order accompanies this Memorandum Opinion.
Jose ALVAREZ, et al., Plaintiffs, on behalf of themselves and all similarly situated individuals v. KEYSTONE PLUS CONSTRUCTION CORPORATION, et al. Defendants.
Civil Action No. 13-cv-602 (KBJ)
United States District Court, District of Columbia.
Signed April 11, 2014
Notes
The Secretary may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility ... the cost of which could be reimbursed under the State plan.
(Compl. ¶ 90; 1st Am. Compl. ¶ 96.)All those persons who (1) have a disability; (2) receive services in nursing facilities located in the District of Columbia or funded by Defendants at any time during the pendency of this litigation; (3) could live in the community with appropriate supports and services from Defendants; and (4) prefer to live in the community rather than in nursing facilities.
- Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.
- Ensure sufficient capacity of community-based long-term care services for Plaintiffs under the EPD, MFP, and PCA programs, and other long-term care service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs;
- Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other longterm care programs, with the following minimum numbers of transitions in each of the next four years:
- 80 class members in Year 1;
- 120 class members in Year 2;
- 200 class members in Year 3; and
- 200 class members in Year 4.
- Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District‘s ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals assisted by Defendant to transition to the community with long-term care services through each of the MFP, EPD, and PCA, and other long-term care programs; and the aggregate dollars Defendant saves (or fails to save) by serving individuals in the community rather than in nursing facilities.