Edward DAY, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No. 10-2250 (ESH).
United States District Court, District of Columbia.
Feb. 14, 2012.
Bradford Collins Patrick, Melissa Lael Baker, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Plaintiffs, five individuals who have sued on their behalf and on behalf of a proposed class of similarly-situated individuals, commenced this action for declaratory and injunctive relief against the District of Columbia, its Mayor, and several city officials (collectively “defendants“),1 alleging that individuals with disabilities who are covered by Medicaid are being unnecessarily institutionalized in nursing facilities and isolated from their communities in violation of Title II of the Americans with Disabilities Act (“ADA“),
BACKGROUND
I. INTEGRATION MANDATE
A. Statutory and Regulatory Background
Title II of the ADA provides that “no qualified individual with a disability3 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,4 or be subjected to discrimination
Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
In addition to directing that programs, services and activities be administered in the “most integrated setting appropriate,” the implementing regulations for both the ADA and the Rehabilitation Act prohibit either “directly or through contractual or other arrangements,” the
utiliz[ation of] criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity‘s program with respect to individuals with disabilities.
Under the ADA, a public entity must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation
would impose an undue hardship on the operation of its program. 28 C.F.R. § 41.53 .7
B. Olmstead v. L.C. ex rel. Zimring
In Olmstead v. L.C. ex rel. Zimr-ing, 527 U.S. 581 (1999), the Supreme Court considered whether the “proscription of discrimination” in Title II of the ADA “may require placement of persons with mental disabilities in community settings rather than in institutions.”8 Id. at 587. The Court‘s answer was “a qualified yes.” Id. The Court first held that “[u]njustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597.9 However, the Court also recognized that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings,” there is no “federal requirement that community-based treatment be imposed on patients who do not desire it,”10 and States “need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and [have an] obligation to administer services with an even hand.” Id. at 601-02. In light of these considerations, the Court held11 that community placement for individuals with mental disabilities
is in order when the State‘s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Id. at 607.12 Although the plaintiffs in Olmstead had exclusively mental disabilities (mental retardation and mental illness), its holding also applies to individuals with physical disabilities. See
In Olmstead, there was no dispute that the two plaintiffs were individuals “‘qualified’ for noninstitutional care” who did not “oppose[] such treatment.” Id. at 602-03. As for whether community placement for those plaintiffs was a “reasonable accommodation,” the Court majority expressed no opinion, simply remanding “for further proceedings.” Id. at 607. A plurality, however, went on to address in greater detail what might be the scope of “[t]he State‘s responsibility, once it provides community-based treatment to qualified persons with disabilities,” noting that it was “not boundless.” Id. at 603. The plurality started its analysis with the “reasonable-modifications regulation,” pointing out that it “speaks of ‘reasonable modifications’ to avoid discrimination, and allows States to resist modifications that entail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs.” Id. at 603 (quoting
The Court of Appeals’ construction of the reasonable-modifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State‘s entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail.
Id. at 603.13 Thus, the plurality opined:
Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.
Id. at 604. Finally, the plurality set forth one way that it believed a State could meet its burden of establishing a fundamental alteration defense:
If, for example, the State were to demonstrate that it had a comprehensive,
effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State‘s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.
Id. at 605-606 (emphasis added).14
C. Compliance with Olmstead‘s Integration Mandate
Since Olmstead, public entities and courts (although none in this Circuit) have grappled with what is required to demonstrate the existence of an Olmstead Integration Plan and/or what is required to satisfy the Integration Mandate. See Terence Ng, Alice Wong, and Charlene Harrington, Home and Community Based Services: Introduction to Olmstead Lawsuits and Olmstead Plans, Table 2 (2011), available at http://www.pascenter.org/olmstead/downloads/OlmstCasesTable_2011.pdf. A number of States (26 as of August 2011) have expressly adopted so-called Olmstead Plans. See id. at Table 1, available at http://www.pascenter.org/olmstead/downloads/Olmstead_Plan_2011.pdf. And the Department of Justice (DOJ) has issued a Statement setting forth its view “[t]o assist individuals in understanding their rights under title II of the ADA and its integration mandate, and to assist state and local governments in complying with the ADA and its integration mandate, and to assist state and local governments in complying with the ADA.” U.S. Department of Justice, Statement of Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (2011) (“DOJ Statement“) (attached as Pls.’ Ex. J.) In the District, it is undisputed that no formal Olmstead Plan has been adopted,15 but the District maintains that its existing programs and services for individuals with disabilities meet the requirements of an Olmstead Integration Plan and, thus, satisfy the Integration Mandate.
II. FACTUAL BACKGROUND
A. The District‘s Provision of Long-Term Care to Individuals with Disabilities
Medicaid is a joint federal and state program that provides medical services to
1. Nursing Facilities
A “nursing facility” (or a “nursing home“) is defined a “24-hour inpatient facility, or distinct part thereof, primarily engaged in providing professional nursing services, health-related services, and other supportive services needed by the patient/resident.”18 D.C. Code § 4-204.61(3).19 The District provides nursing
There are approximately 2,700 beds in the District‘s nursing facilities, with an approximate occupancy rate of over 90 percent. (Am. Compl. ¶ 54; Pls.’ Facts ¶ 17 (citing Pls.’ Ex. G at 150:4-152:2 (Dep. of Ericka Bryson-Walker, Interim Program Manager, Office of Chronic and Long Term Care, DHCF) (nursing facilities have been over 90% occupied since 2000); US Ex. BB at 158:8-159:8 (Bryson-Walker Dep.) (2009 nursing facility population was 2,531; 2005 population of 2,576). Approximately 70 percent of nursing facility residents are D.C. Medicaid recipients (Am. Compl. ¶ 50), plus there are approximately 200 additional D.C. Medicaid recipients currently placed in out-of-state nursing facilities. (Am. Compl. ¶ 55.) Pursuant to federal law, Delmarva collects information about all of the District‘s nursing facility residents on a quarterly basis (known as Minimum Data Set (“MDS“) information), including whether any resident wishes to speak to someone about the possibility of returning to the community. (Defs.’ Facts ¶ 17; see
2. District‘s Medicaid State Plan
The District‘s Medicaid State Plan covers certain community-based services, including personal care assistance, skilled nursing and mental health rehabilitation services. (Pls.’ Facts ¶ 29 (citing Pls.’ Ex. H at 23:14-24:5); Am. Compl. ¶ 57.) For example, the District covers home-based personal care aide services for up to 1,040 hours per year, with additional hours available pursuant to physicians’ orders and DHCF prior authorization. (Am. Compl. ¶ 90.) The present record does not reflect how many individuals are receiving services under this aspect of the District‘s Medicaid Plan.
3. Medicaid Waiver Program—EPD Waiver
Finally, since 1981, Medicaid has provided funding for home and community-based care for individuals, who would otherwise require institutional care, through the Medicaid Home and Community-Based Services (HCBS) Waiver Program. See
Under waiver programs, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation in the State‘s plan.
Waiver programs vary from state to state. In the District, individuals with physical disabilities or those who are over sixty-five years old who would otherwise require the level of care provided in a nursing facility can receive home and community-based care through the District‘s “Elderly and Physically Disabled Waiver” (“EPD Waiver“).23 (Defs. Ex. 4, at 1-2;
Under the EPD Waiver, which is administered by DHCF, the District may pay for case management services, homemaker services, personal care aides, respite care, environmental accessibility adaptation services and accessibility, personal emergency response system services, assisted living services, and chore aide services (Defs.’ Facts ¶ 4; Defs’ Ex. 2, ¶ 5; Defs.’ Ex. 4, at 1, 48-88), but not “[h]ousing, meals, room and board or 24-hour skilled care or supervision.” (Defs.’ Facts ¶ 4 (citing Defs.’ Ex. 2, ¶ 8).) In order to demonstrate cost-neutrality, the District projected “average costs for services each year of the waiver to be thousands of dollars less that nursing facility costs of services, with projected savings ranging from $19,970.10 in year one to $32,875.05 in year five.” (Pls.’ Facts ¶ 13 (citing Pls.’ Ex. M at 62:20-63:19 & Ex. 3).)
To qualify for the EPD Waiver, an individual need not already be institutionalized (Defs.’ Facts ¶ 3 (citing Defs.’ Ex. 2, ¶ 14)), and spots are not set aside for individuals already in nursing facilities nor allocated between the elderly and physically disabled. (Pls.’ Facts ¶¶ 1, 5 (citing Pls.’ Ex. G at 54:12-17).) Enrollment for the EPD Waiver is capped at 3,940 individuals (Defs.’ Facts ¶ 6 (citing Defs.’ Ex. 2, ¶ 10)), and the District has no present plan to seek an increase in that number. (Pls.’ Facts ¶ 18 (citing Pls.’ Ex. G at 66:5-20).) As of July 29, 2011, approximately 3700 of
Anticipating that the waiver slots will soon be used up, the District has established a first-come, first-served waiting list:
As a result of the enrollment cap and in accordance with the federally approved EPD Waiver, DHCF is initiating a waiting list. Individuals placed on the waiting list will be enrolled in the EPD Waiver program on a first-come, first-served basis. Applicants who are currently in Casenet with an approved level of care (LOC) and completed EPD Waiver application will be placed on the waiting list first.
58 D.C. Reg. 33 (Aug. 19, 2011), available at http://www.dcregs.org/Gateway/NoticeHome.aspx?noticeid=1560844 (see also Pls.’ Facts ¶ 18; Pls.’ Ex. G at 67:9-68:6); (Defs.’ Ex. 4, at 24.)
“Information about the EPD Waiver is available on the DHCF and District of Columbia Office on Aging websites.” (Defs.’ Facts ¶ 17; Defs.’ Ex. 2, ¶ 11.) In addition, individuals who call DHCF‘s Office of Chronic and Long-Term Care or the Office of the Ombudsman are sent information. (Defs.’ Facts ¶ 17.) Once an individual is referred as a candidate for the EPD Waiver, the District provides “a list of Medicaid-enrolled providers who provide case management services,” from which “[t]he candidate is responsible for selecting the provider from whom he or she would like to receive case management services.” (Defs.’ Ex. 2, ¶ 16; Defs.’ Facts ¶ 15.) The case manager is responsible for “creat[ing] an individual service plan (“ISP“) that is subject to DHCF approval and that must specify the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided.” (Defs.’ Facts ¶ 15 (citing Defs.’ Ex. 2, ¶¶ 16-17).)
B. District‘s Programs Supporting Transitions to Home and Community-Based Care
1. Money Follows the Person Rebalancing Demonstration Program
As described above, the District provides long-term care for Medicaid-covered individuals with physical or mental health disabilities either in nursing facilities or in the community through the EPD Waiver or its Medicaid State Plan. In addition, the District participates in the federal Money Follows the Person Rebalancing Demonstration Program (“MFP Program“), which provides additional federal funds to State Medicaid programs to help move individuals from “inpatient facilities” to “home and community-based long-term care services under State Medicaid programs.” Deficit Reduction Act (DRA) of 2005, P.L. 109-171, Title VI, § 6071(a), 120
The District‘s MFP Program is aimed at three target groups: individuals with intellectual and developmental disabilities in Intermediate Care Facilities for Individuals with Mental Retardation (ICFs/MR) who are eligible for the ID/DD Waiver (see supra note 23); elderly and/or physically disabled individuals in nursing facilities are eligible for the EPD Waiver; and individuals with serious mental illness residing in
The District began using its MFP Demonstration grant in June 2008,32 but its pilot program was initially limited to the transfer of individuals with intellectual and developmental disabilities to the ID/DD Waiver administered by DDS/DDA—individuals who are not in the proposed class. (Defs.’ Facts ¶ 12; Defs.’ Ex. 3, ¶ 4; Defs.’ Ex. 8, at 3; see supra note 23.)33 In August 2010, the District decided to expand the pilot to include forty nursing facility residents who were eligible for the EPD Waiver (at least sixteen of whom would be part of the proposed class in this case).34 (Defs.’ Facts ¶ 20; Defs.’ Ex. 3, ¶ 23; Defs.’ Ex. 8)). To begin implementation
The MFP Program is designed so that a MFP candidate is referred to a “Transition Coordinator,” who “provides the candidate with a list of [EPD Waiver] providers who provide case management services, from which the candidate selects the EPD Waiver case manager with whom he or she would like to work. (Defs.’ Ex. 3, ¶ 14.) The selected case manager then “work[s] with an ISP team to create an ISP,” subject to DHCF approval, that “specif[ies) the community-based services to be furnished, their frequency, the type of provider who will furnish each specified service, and how backup and emergency services will be provided.” (Defs.’ Facts ¶ 11 (citing Defs.’ Ex. 3, ¶ 15).) The ISP team usually includes the candidate, the Transition Coordinator, the EPD Waiver Case Manager, the candidate‘s legal representative, and nursing facility staff. (Defs.’ Ex. 3, ¶ 15.) Transition Coordinators also “meet with nursing home administrators and staff to inform them about the EPD waiver program,” “assist with housing arrangements,” “help coordinate the participant‘s initial move, and assess existing barriers that prevent an otherwise willing and eligible person from successfully transitioning to the community.” (Defs’ Facts ¶¶ 15, 23 (citing Defs.’ Ex. 3, ¶ 16).) The District has two full-time Transition Coordinators focused on transitions from nursing facilities. (Defs’ Facts ¶ 15 (citing Defs.’ Ex. 3, ¶ 26).)36 Candidates “are not given a spot in the program and transitioned to the community until all necessary community-based services are identified and approved and [appropriate] housing is procured.” (Defs.’ Ex. 3, ¶ 20; Defs.’ Facts ¶ 22.)
As previously noted, neither the EPD Waiver nor the MFP Program provides housing, although for transition to the EPD Waiver, the MFP Program pays for “a maximum $5,000 one-time transition service payment to purchase furniture, cooking utensils, and other essential items for community life[] and to cover moving expenses.” (Defs.’ Facts ¶ 10; Defs.’ Ex. 3, ¶ 19; Defs.’ Ex. 8, at 55). Candidates who lack housing may apply to the District of Columbia Housing Authority for a spot in the Housing Choice Voucher program or the Moderate Rehabilitation program; however, both are available to any qualified individual regardless of disability. (Defs.’ Facts. ¶ 23 (citing Defs.’ Ex. 3, ¶ 17).) Other barriers to transition include poor credit histories that “prevent property owners from approving leasing application,” “a lack of family members or friends willing to provide support in the community in preparation for, during, and post-transition,”
As of April 27, 2011, when the District filed its summary judgment motion, one “nursing home resident eligible for the EPD waiver had transitioned to the community under the MFP program“—on April 13, 2011 (Defs.’ Facts ¶ 26; Defs.’ Ex. 3, ¶ 25; Pls.’ Facts ¶ 67), and it was working with twenty-six additional EPD Waiver candidates.37 (Defs.’ Facts ¶ 21; Defs.’ Ex. 3, ¶ 25.) At that time, the District predicted that “[a]ll pilot participants should be transitioned by September 2011 barring any unanticipated barriers.”38 (Defs.’ Ex. 3, ¶ 25; Defs.’ Facts ¶ 26.) On June 13, 2011, the second nursing facility resident (plaintiff Jackson) transitioned. (Pls.’ Ex. B, ¶ 10 (Decl. of Bonita Jackson); see also 2011 MFP Report at 27 (two individuals with physical disabilities transitioned to EPD Waiver by June 2011). By the beginning of September 2011, the District reduced its projection to twelve individuals by September 2011, with another eleven by December 2011. (Pls.’ Facts ¶ 67 (citing Pls.’ Ex. H at 74:10-19).)39 On September 13, 2011, a third nursing facility resident (plaintiff Bacon) transitioned. (Defs.’ Reply Ex. 3, ¶ 3 (Second Decl. of Leyla Sarigol).) Thus, by October 3, 2011, three individuals, including two of the plaintiffs, had transitioned. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3-11; Pls.’ Ex. H at 85:14-17; Defs.’ Reply at 12). The record does not reflect how many, if any, of the remaining pilot participants have transitioned since that time. As for the remainder of the nursing facility population, the District “maintain[s] a list” of individuals who have requested transition assistance from the MFP Program, but at least as of September 2011, it was doing nothing further to assist them. (Pls.’ Facts ¶ 150 (citing Pls.’ Ex. H at 96:4-97:1, 97:2-99:5).)
2. Department of Mental Health (“DMH“)
Although the Department of Mental Health (“DMH“) does not operate or provide
On the front end, the referring clinician must conduct a “Level I Screening to determine whether an individual being referred to a nursing facility has a primary or secondary diagnosis of mental illness.” (Defs.’ Ex. 5, ¶ 4). “If so, DMH conducts a Level II Screening, which requires an independent psychiatric evaluation of the individual and a determination as to whether the level of care provided by a nursing facility is required.” (Defs.’ Facts ¶ 28 (citing Defs.’ Ex. 5, ¶ 4); see also
Once admitted, an individual with a mental health diagnosis must be reviewed annually.
Dr. Elspeth Ritchie, the Chief Clinical Officer at DMH, “is responsible for managing the [PASRR] determinations for current and potential nursing facility [] residents.” (Defs. Ex. 5, ¶ 2; Defs.’ Facts ¶ 32.) On October 18, 2010, and again on January 12, 2011, DMH sent letters to the nineteen nursing facilities within the District “attaching the DMH PASRR Policy and reminding [them] of their continuing obligation to notify DMH of any significant changes in the physical or mental condition of a [nursing facility] resident.” (Defs.’ Ex. 5, ¶ 6; Defs.’ Facts ¶ 31.) And, as of the fall of 2011, Dr. Ritchie had visited seven nursing facilities “to discuss continued implementation of the PASRR program and coordination with DMH on discharge planning.” (Defs.’ Ex. 5, ¶ 6; Defs.’ Facts ¶ 32;)
C. Costs of Institutional and Home and Community-Based Long-Term Care
The present record includes the following information about the costs of institutional and community-based long-term care:
1. Overall Spending on Long-Term Care Services
In fiscal year 2010, the District spent a combined total of $494,434,042 on all long-term care services—$274,141,306 (55.4%) on institutional care (including both nursing facilities and intermediate care facilities) and $220,292,737 (44.6%) on home and
2. Average Costs of Long-Term Care Services
The average annual cost of long-term care services in a nursing facility typically exceeds the average annual cost of long-term care services provided under the EPD Waiver. For example, in 2008, the average annual cost of long-term care services in a nursing facility was $58,957, whereas the average annual cost of services provided via the EPD Waiver was $21,849. (Pls.’ Facts ¶ 14 (citing Pls.’ Ex. G at 135:2-138:12).) In 2007, the average annual cost of services in a nursing facility was $62,633, as compared to an annual average cost of $46,186.23 under the EPD Waiver. (Pls.’ Facts. ¶ 15 (citing Pls.’ Ex. L at 226:17-227:5); Pls.’ Ex. G at 134:3-11; see also Pls. Ex. G at 140:13-17 (average cost per enrollee in 2010 was $29, 938).)
3. Mental Health Care Costs
The annual average cost of community-based mental health services is less than treatment in a psychiatric hospital. (Compare Am. Compl. ¶ 81 (alleging that average annual cost of community mental health treatment is approximately $25,000) and Pls.’ Facts ¶ 14 (citing Pls.’ Ex. L at 226:17-227:5) (agreeing that $4,200 was a reasonable estimate of the average annual cost of mental health rehabilitation services cost) with Am. Compl. ¶ 80 (alleging that average annual cost in a psychiatric hospital is over $230,000).
III. PROCEDURAL BACKGROUND
On December 23, 2010, five individuals with disabilities41 who were receiving Medicaid-covered long-term care services in nursing facilities, initiated this litigation, claiming that the District has “caused [them] to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports” (Am. Compl. ¶ 111; see also id. ¶¶ 74-79), which could be provided by the District‘s Medicaid State Plan, the EPD Waiver, and Medicaid- and locally-funded services for adults with mental illness. (Pls.’ Facts ¶ 89.) Specifically, each named plaintiff is alleged to be an individual with a disability,42 who
Plaintiffs claim that the District‘s “failure to provide [them or the proposed class] services in the most integrated setting appropriate
- (i) Assure that individuals with mental or physical disabilities receive services in the most integrated setting appropriate to their needs;
- (ii) Develop or implement a comprehensive and effective working plan that identifies individuals with mental or physical disabilities who are needlessly in nursing facilities and helps them move to more integrated settings;
- (iii) Provide adequate and appropriate community services;
- (iv) Provide information about community-based alternatives or comprehensive discharge planning to enable Plaintiffs to live in more integrated settings;
- (v) Assure that people with mental or physical disabilities are not unnecessarily placed in nursing facilities by, for example, informing them of the availability of integrated, community-based options for mental health and other health 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;
- (vi) Properly identify persons with mental or physical disabilities who should not be admitted into nursing facilities;
- (vii) Assure that individuals with mental or physical disabilities residing in nursing facilities are periodically reviewed and assessed for community-based treatment;
- (viii) Assure that individuals with mental or physical disabilities are discharged from nursing facilities when appropriate;
- (ix) 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
- (x) Take adequate steps to preserve individuals’ existing community housing subsidies during periods of placement in nursing facilities so that people can maintain homes to which they may return.
(Am. Compl. ¶ 82.) In addition to class certification, plaintiffs ask the Court to declare that defendants’ “failure to provide Named Plaintiffs and class members with services in the most integrated setting ap-
propriate to their needs violates
ANALYSIS
Defendants’ motion to dismiss or for summary judgment includes the following arguments: (1) that the amended complaint should be dismissed for failure to state a claim; (2) that defendants are entitled to summary judgment because they have an Olmstead Integration Plan; or (3) that the individual defendants should be dismissed because the claims against them are duplicative of the claims against the District. Each of these will be addressed herein.51
I. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A. Legal Standard
“In ruling on a motion to dismiss for failure to state a claim, the court must ‘accept as true all of the factual allegations contained in the complaint.‘” Phillips v. Fulwood, 616 F.3d 577, 581 (D.C.Cir.2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). A court should dismiss a complaint for failure to state a claim if the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Rudder v. Williams, 666 F.3d 790, 793-94 (D.C.Cir.2012). To state a facially plausible claim, a complaint must set forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.
Citing the test for Article III standing,52 defendants contend that plaintiffs have not stated a claim for relief because they have not alleged “a causal connection between the injury and the conduct complained of“—i.e., that “the injury [is] fairly traceable to the challenged action of the defendant.” (Defs.’ Mem. at 10-11 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))). Specifically, defendants argue that the District cannot be held responsible for plaintiffs’ residence in a nursing facility “if the District did not cause this placement or otherwise fund the individual‘s stay in a nursing facility.” (Id. at 11.) According to defendants, the complaint‘s allegations fail to meet this requirement because there is no allegation that the District (1) places individuals in the nursing facility where they reside; (2) reviews or approves an individual‘s placement in a nursing facility; or (3) funds plaintiffs’ care in nursing facilities. Defendants further argue that “licensing nursing facilities within the District does not create the necessary relationship between the District and a third-party non-licensee, much less create an obligation to provide community-based care to these individuals.” (Id.)
Under either
C. Determination of Plaintiff‘s Eligibility for Community-Based Care
The District next argues that the amended complaint should be dismissed because there is no allegation that the District has determined that community-based services are appropriate for plaintiffs, but only alleges that each named plaintiff “has been determined by health care professionals to be appropriate for community placement.” (Defs.’ Mem. at 11 (citing Am. Compl. ¶¶ 31, 35, 39, 42, 46)) According to defendants, “[i]f Plaintiffs expect the District to fund their community-based services, Plaintiffs are subject to the District‘s determination of whether or not such services are appropriate to meet their needs. A bald assertion that some unidentified healthcare professional has determined that community-based services are appropriate to meet the medical and physical needs of the named plaintiffs is not enough.” (Defs.’ Mem. at 11-12 (internal citations omitted).)
The Court disagrees. Olmstead established that where a State‘s own professionals have determined that community-based treatment is appropriate, a State may be required to provide community-based services. Olmstead, 527 U.S. at 587, 119 S.Ct. 2176. However, although the Court in Olmstead noted that a State “generally may rely on the reasonable assessments of its own professionals,” id. at 602 119 S.Ct. 2176, it did not hold that such a determination was required to state a claim. Since Olmstead, lower courts have universally rejected the absolutist interpretation proposed by defendants. See Frederick L. v. Dep‘t of Pub. Welfare, 157 F.Supp.2d 509, 539-40 (E.D.Pa.2001) (denying defendants’ motion to dismiss Olmstead claims and rejecting the argument that Olmstead “require[s] a formal recommendation for community placement.“); Disability Advocates, Inc. v. Paterson, 653 F.Supp.2d 184, 258-59 (E.D.N.Y.2009) (requiring a determination by treating professionals, who are contracted by the State, “would eviscerate the integration mandate” and “condemn the placements of [individuals with disabilities in adult homes] to the virtually unreviewable discretion” of the State and its contractors); Joseph S., 561 F.Supp.2d at 291 (“I reject defendants’ argument that Olmstead requires that the State‘s mental health professionals be the ones to determine that an individual‘s needs may be met in a more integrated setting.“); Long v. Benson, No. 08-0026, 2008 WL 4571904, at *2 (N.D.Fla.2008) (refusing to limit class to individuals whom state professionals deemed could be treated in the community, because a State “cannot deny the [integration] right simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.“); see also DOJ Statement at 4 (“the ADA and its regulations do not require an individual to have had a state treating professional make such a determination. . . . This evidence may come from their own treatment providers, from community-based organizations that provide services to people with disabilities outside of institutional settings, or from any other relevant source. Limiting the evidence on which Olmstead plaintiffs may rely would enable public entities to circumvent their Olmstead requirements by failing to require professionals to make recommendations regarding the ability of individuals to be served in more integrated settings.“).
Indeed, even the one case cited by defendants, Boyd v. Steckel, 753 F.Supp.2d 1163 (M.D.Ala.2010), does not support its position. In Boyd, the court denied the motion for a preliminary injunction based in part on the fact that state medical professionals had determined that community-based treatment was not appropriate and that, “[w]ithout more at this stage, this Court cannot find that Boyd has established a substantial likelihood of proving his qualification for the community-based services requested—i.e. that they are appropriate to meet his needs.” Id. at 1174. However, the court recognized that the plaintiff would have the opportunity to “demonstrate, at summary judgment or trial, that [the state medical professional‘s] assessment is unreasonable or that he is still qualified for community-based services even under [that] assessment.” Id. Thus, Boyd recognized that whether community-based treatment is appropriate for a particular individual is a factual question that does not depend solely on a determination by a state medical professional.
Finally, plaintiffs’ claim here is based in part on the District‘s alleged failure to systematically assess whether a nursing facility resident would qualify for community-based treatment. (Am. Compl. ¶¶ 92, 99.) Under such circumstances, to allow the District to rely on the absence of an assessment by its own professionals as grounds for dismissal would “eviscerate” the Integration Mandate. See, e.g., Colbert v. Blagojevich, No. 07–4737, 2008 WL 4442597, at *2-3 (N.D.Ill. Sept. 29, 2008) (plaintiffs appropriately sought injunction directing defendants “to create a set of objective criteria against which all proposed class members will be regularly assessed for their eligibility for community placement“). Accordingly, the Court concludes that plaintiffs’ allegation that “health-care professionals” have determined that community-based treatment is appropriate is sufficient to survive a motion to dismiss.
D. Comparative Costs
According to defendants, “the District is not required to fund community-based services for Medicaid recipients for whom the cost of such services would exceed the cost of care in a nursing facility.” (Defs.’ Mem. at 12 (citing
Defendants cite only
II. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
B. Compliance with Olmstead‘s Integration Mandate
Defendants seek summary judgment on the ground it is undisputed that the District has an Olmstead Integration Plan (Defs.’ Mem. at 13), i.e., a “comprehensive, 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 605-07, 119 S.Ct. 2176 (emphasis added). Defendants claim that the District has “comprehensive and effective working plans that ensure it does not place individuals in nursing facilities unless it is necessary and appropriate to do so, as well as programs that fund community-based services and specifically support the transition of disabled individuals from nursing facilities to community-based settings.” (Defs.’ Mem. at 14.) Defendants’ argument relies primarily on: (1) the existence of programs that “facilitate community-based services for disabled residents,” including the EPD Waiver and the MFP Program; (2) the use of the PASRR screening and review process by the DMH to ensure that individuals with mental health diagnoses are not inappropriately placed or kept in nursing facilities; and (3) the existence and successful use of the ID/DD Waiver and MFP Program for individuals with intellectual and developmental disabilities. (Defs.’ Mem. at 16-27.) To the extent there remain individuals in nursing facilities who are not being served in the “most integrated setting appropriate” to their needs, defendants contend that there are external barriers (e.g., lack of housing), for which they are not responsible. (Defs.’ Mem. at 24.)
In response, plaintiffs contend that the District‘s existing programs do not qualify as an Olmstead Integration Plan. (Pls.’ Opp. at 4-24). According to plaintiffs, the “mere existence” of “[t]hese programs fall far short of what the law requires,” especially given that the District has no written “Olmstead Plan” and that “material disputes of fact abound as to what [d]efendants existing programs accomplish with respect to deinstitutionalizing people with disabilities from nursing facilities.” (Pls.’ Opp. at 5, 7.) Plaintiffs base their argument primarily on the standards for an “Olmstead Plan”54 set forth in the DOJ Statement. As described therein, an Olmstead Plan should
do more than provide vague assurances of future integrated options or describe the entity‘s general history of increased funding for community services and decreased institutional populations. Instead, it must reflect an analysis of the extent to which the public
entity is providing services in the most integrated setting and must contain concrete and reliable commitments to expand integrated opportunities. The plan must have specific and reasonable timeframes and measurable goals for which the pub-
lic entity may be held accountable, and there must be funding to support the plan, which may come from reallocating existing service dollars. The plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs. To be effective, the plan must have demonstrated success in actually moving individuals to integrated settings in accordance with the plan. A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue in the case. Any plan should be evaluated in light of the length of time that has passed since the Supreme Court‘s decision in Olmstead, including a fact-specific inquiry into what the public entity could have accomplished in the past and what it could accomplish in the future.
DOJ Statement at 6-7. Relying largely on this framework, plaintiffs argue that the District “lacks every one of the hallmarks of a comprehensive and effective integration plan” because it has
(1) no process for identifying people who want to be reintegrated into the community from a nursing facility or (2) for assessing the needs of those individuals; (3) no policies, procedures, or practice to assist nursing facility residents who want to be deinstitutionalized in making the transition from nursing facilities to the community with necessary services and supports; (4) no idea of how many individuals who are institutionalized in nursing facilities have transitioned to the community; or (5) whether the nursing facility census has decreased over time. (Pls.’ Opp. at 36.)55
Neither the absence of a formal “Olmstead Plan” nor the failure to have a plan
With respect to the District‘s claim to have a plan that demonstrates a measurable commitment to deinstitutionalization, the undisputed numbers clearly undercut any such contention. First, the District‘s nursing home population from 1995 to 2009 decreased by only 45 individuals. (See U.S. Ex. BB, 158:8-159:8.) Second, the District‘s EPD Waiver has been available since 1999 (Defs.’ Facts ¶ 1; Defs.’ Ex. 2, ¶ 3), but since the District does not keep track of how many, if any, individuals have moved from nursing facilities directly to the EPD Waiver (Pls.’ Facts ¶ 16; Pls.’ Ex. G at 45:7-12, 77:10-21), it is impossible to determine whether the EPD Waiver demonstrates a measurable commitment to deinstitutionalization. Third, the District‘s MFP Program was first authorized in 2007 (Defs.’ Ex. 3, ¶ 4; Defs.’ Facts ¶ 12), yet as of October 3, 2011, only three individuals have actually moved from a nursing facility to the community using the MFP Program. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3-11; Pls.’ Ex. H at 85:14-17; Defs.’ Reply at 12.) Nationwide, the District‘s MFP Program (even including transitions to the ID/DD Waiver) ranks at or near the bottom in terms of achieving its transition targets. 2011 MFP Report at 30 (District achieved 9.3% of its transition target as of June 2011). In addition, the MFP Program relies on having EPD Waiver slots available, but the District is close to or has reached EPD Waiver enrollment cap of 3,940 (Defs.’ Facts ¶ 16; Defs.’ Ex. 2, ¶ 10) and has no present plans to increase it. (Pls.’ Facts ¶ 118; Pls.’ Ex. G at 66:5-20.) Finally, the problem of this lack of measurable movement to home and community-based services is magnified by the fact that there are at least 526 individuals in nursing facilities who have expressed a
The District attempts to ignore the above undisputed facts by emphasizing the undisputed facts that establish the existence of the EPD Waiver, the MFP Program and other components of the District‘s service system. Yet, there are other facts, both disputed and undisputed, that, when viewed in the light most favorable to the plaintiffs and drawing all reasonable inferences therefrom in plaintiffs’ favor, contradict or undermine defendants’ attempt to equate the existence of a specific programs designed to further deinstitutionalization with a legally adequate Olmstead Integration Plan.
1. EPD Waiver
Defendants point to the EPD Waiver as a critical component of its Olmstead Integration Plan, but ignore the evidence that creates genuine issues as to its availability for and utilization by individuals in nursing facilities. First, as previously noted, defendants do not even know how many nursing facility residents with physical disabilities have transitioned to the community using the EPD Waiver (Pls.’ Ex. G at 45:7-12), and the only undisputed evidence establishes that by October 3, 2011, only three nursing facility residents (including two of the plaintiffs) have transitioned to the EPD Waiver, all through the MFP Program. (Pls.’ Facts ¶ 24; Pls.’ Ex. H at 68:3-11; Pls.’ Ex. H at 85:14-17; Defs.’ Reply at 12). In addition, DHCF does not have “any policies or procedures about transitioning people from nursing facilities to the community” using the EPD Waiver. (Pls.’ Ex G at 45:13-46:3.) Indeed, there is evidence that with the exception of the MFP Program, discussed further infra, there is no one in the District government who “ha[s] a hand in assisting individuals who seek to get out of nursing facilities” (Pls.’ Ex. G at 42:16-21) or an awareness of how many individuals might want to do so. (Pls.’ Ex. G at 46:4-47:12 (“I‘m not familiar with the MDS data“); Pls.’ Facts ¶ 45 (citing Pls.’ Ex. G at 97:1-16 (“DHCF has neither requested nor reviewed any MDS lists“)).)
In addition, use of the EPD Waiver is not limited to individuals with disabilities in nursing facilities. It is also available to the elderly in nursing facilities, who may or may not qualify as disabled, and to individuals (either elderly or physically disabled) who are not already institutionalized. No slots are reserved for nursing facility residents, and there is an enrollment cap that the District may have already reached. (As of October 2011, only 240 slots remained open.) Even assuming technical availability for individuals such as the proposed class of plaintiffs, there is evidence that individuals seeking to enroll in the EPD Waiver confront a number of systemic barriers. For example, there is evidence that nursing facility residents may lack information about the existence of the EPD Waiver. (See Pls.’ Facts ¶ 20 (citing Pls.’ Ex. H at 108:8-18 (“[d]efendants’ internet postings include minimal and outdated information that, in any case, most nursing facility residents cannot access“)); Pls.’ Facts ¶ 21 (citing Pls.’ Ex. G at 43:1-10, 44:12-17, 121:2-16; Pls.’ Ex. H at 48:16-50:3) (defendants have failed “to conduct outreach targeted to those people who express an interest in transitioning out of nursing facilities, provide informa- tion
2. MFP Program
Defendants also point to the MFP Program as a component of its Olmstead Integration Plan. (Defs.’ Mem. at 17-21.) However, there are again genuine issues as to its availability and efficacy. Although the MFP Program is the only help the District provides to assist individuals seeking to get out of nursing facilities (see Pls.’ Ex. G at 42:16-21),57 as previously noted, its actual success in transitioning such individuals has been minimal—as of October 3, 2011, only three nursing facility residents had transitioned to the community through the MFP Program (Pls.’ Facts ¶ 24 (citing Pls.’ Ex. H at 68:3-11); Pls.’ Ex. H at 85:14-17; Defs.’ Reply at 12.) In addition, the evidence suggests potential systemic problems such as not knowing how many nursing facility residents would prefer to live in the community (Pls.’ Facts ¶ 44 (“MFP Project Team requested and received only two [MDS] partial lists of nursing facility residents in selected facilities“) (citing Pls.’ Ex. H at 92:3-12)), and “delayed payments for transition costs such as security deposits, housing applications, and furnishings.” (Pls.’ Facts ¶ 28 (citing Pls.’ Ex. H at 48:16-50:3)).58 Accordingly, as there is substantial evidence to support plaintiffs’ position that the
3. PASRR/DMH
Defendants also point to DMH‘s administration of PASRR as a component of its Olmstead Integration Plan. Specifically, they claim that PASRR plays an important role in ensuring that placement in a nursing facility is appropriate.59 Again, this claim does not withstand scrutiny.
In the first place, PASRR affects only individuals with primary or secondary mental health diagnoses. (Defs. Ex. 5, ¶ 4.) Although a substantial percentage of the nursing facility population may fall into this category (Pls.’ Facts ¶ 75 (defendants estimate “10-20% of nursing facility residents have a diagnosis of schizophrenia“), the majority do not. In addition, PASRR review is designed to assure that individuals with mental illness who do not need the level of care provided by a nursing facility are not placed there in the first instance and that those who no longer need that level of care are not kept there. (Defs.’ Ex. 5, ¶ 3.) It is not designed to identify individuals who qualify for the nursing facility level of care, but who could nonetheless receive those services in the community through the EPD Waiver or other community-based service options. (See, e.g., Defs.’ Mem. at 22 n. 7 (“DMH has conducted a [PASRR] review of [plaintiff] Bacon and determined that her physical disabilities required the level of care provided in a nursing facility. [Plaintiff] Bacon therefore is working with DHCF, as part of the MFP pilot program, to transition from the nursing facility in which she currently resides to the community.“) In addition to the limited scope of a PASRR review, the facts do not support defendants’ attempt to rely on it as part of its Olmstead Integration Plan. (See, e.g., Pls.’ Facts ¶ 83 (“[d]efendants cannot identify a single individual with a mental illness that they have transitioned from a nursing facility“) (citing Pls.’ Ex. L at 159:2-162:13); Pls.’ Facts ¶ 72 (“Prior to Spring 2011, DMH did not have any staff person assigned to work with individuals with serious mental illness in nursing facilities.“) (citing Pls.’ Ex. L at 42:17-44:6)); id. (“Currently, DMH has only two individuals whose part-time job is to “work with” individuals in nursing facilities, meaning to oversee the PASRR assessment process; only one of these individuals is assigned to assist with transitions from nursing facilities on a part-time basis“) (citing Pls.’ Ex. L at 42:17-46:6); Pls.’ Facts ¶ 75 (“DMH has no mechanism, policy, or protocol regarding how to assist individuals in nursing facilities who seek to move back to the community with the services and supports they need“) (citing Pls.’ Ex. L at 195:20-196:15; Pls.’ Facts ¶ 74 (DMH‘s Department of Integrated Care “has never transitioned an individual from a nursing home to the community“) (citing Pls.’ Ex. L at 50:7-14, 52:2-53:4); Pls.’ Fact ¶ 79 (“[d]efendants only recently started tracking what happens to individuals who received PASRR II screenings“) (citing Pls.’ Ex. L at 167:15-168:15; Pls.’ Facts ¶ 79 (“DMH does not know specifically how many individuals with serious mental illness are in nursing facilities“) (citing Pls. Ex. L at 170:18-171:19); Pls.’ Facts ¶ 84 (“DMH
4. Money Expended by the District
As further evidence of an Olmstead Integration Plan, defendants rely on the overall amount of money spent on community services and their efforts to increase available funding. It is undisputed that the District spent $494,434,042 in long-term care services in institutions (including both nursing facilities and intermediate care facilities) and under waiver programs (including both the EPD Waiver and ID/DD Waiver) in fiscal year 2010, and of that amount, $274,141,306 (55.4%) covered institutional services and $220,292,737 (44.6%) covered home and community-based services waiver programs. (Defs.’ Ex. 1, ¶ 3.) However, as plaintiffs point out, if only the cost of long-term care in nursing facilities is compared to the costs of community-based services provided under the EPD Waiver, the District only spends about 26% of its total expenditures on community-based services. (Pls.’ Facts ¶ 23; Pls’ Ex. M at 38:4-39:9) More importantly, although the District‘s balance of expenditures is undoubtedly relevant, see Sanchez v. Johnson, 416 F.3d at 1066; Disability Advocates, Inc., 653 F.Supp.2d at 269, a mere comparison between the amount spent on community-based services and long-term care in nursing facilities tells us very little in terms of whether the District can satisfy Olmstead.
5. Barriers to Integration
The most significant barrier to integration identified by defendants is the need for housing. Neither the EPD Waiver nor the MFP Program pays for housing and, although individuals may apply to the District‘s Housing Authority to participate in the Housing Choice Voucher program, that program is not limited to persons with disabilities. (Defs.’ Facts ¶ 123; Defs. Ex. 3, ¶ 17.) The Court agrees that it is not the District‘s responsibility to provide housing, but the record does not establish that this factor has resulted in the continued residence in nursing facilities of the proposed plaintiff class or that the housing issue cannot be overcome. Other potential barriers to integration such as the need for care not covered by the EPD Waiver, credit history problems, lack of providers and lack of family or friends willing to assist in transition (Defs.’ Mem. at 24-25), are similarly plausible, but their concrete impact (or whether the District could alleviate that impact) is not established by the present record.
In sum, the undisputed facts do not establish that the District has an Olmstead Integration Plan or that it has moved individuals to the “most integrated setting” as required by Olmstead. Therefore, defendants are not entitled to summary judgment.60
III. MOTION TO DISMISS INDIVIDUAL DEFENDANTS
The individual defendants, the Mayor of the District, the Director of the
Plaintiffs argue, however, that the need for public accountability and the effective implementation of any injunctive relief counsels against dismissal of the individual defendants. Defendant, conceding that dismissal is “not required,” Owens v. District of Columbia, 631 F.Supp.2d 48 (D.D.C.2009), argue that dismissal is nonetheless appropriate because “[p]laintiffs fail to explain why the harm they have allegedly suffered cannot be remedied in an action against the District alone.” (Defs.’ Reply at 24.) On balance, the Court is persuaded that for reasons of judicial economy and lack of prejudice there is no reason to refrain from dismissing the redundant claims against the District‘s officials. Accordingly, plaintiffs’ claims against individual defendants Gray, Turnbage, and Baron are dismissed, leaving the District of Columbia as the sole remaining defendant in the case.
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss or, in the alternative, for summary judgment is GRANTED in part and DENIED in part. An separate Order accompanies this Memorandum Opinion.
ORDER
For the reasons stated in an accompanying Memorandum Opinion, it is hereby
ORDERED that defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 19] is GRANTED IN PART AND DENIED IN PART; it is further
ORDERED that the motion is GRANTED insofar as the individual defendants, Vincent Gray, the Mayor of the District of Columbia, Wayne Turnage, Director of the District of Columbia‘s Department of Health Care Finance, and Stephen Baron, Director of the District of Columbia‘s Department of Mental Health, who are sued only in their official capacities, are DISMISSED and DENIED in all other respects; it is further
ORDERED that plaintiffs’ Motion for Leave to File a Motion for Class Certification by January 5, 2012 [Dkt. No. 37] is DENIED as moot; it is further
ORDERED that a telephone conference call, to be originated by the parties, will be held on Tuesday, February 28, 2012 at 2:00 p.m.; and it is further
ORDERED that a status conference is set for March 13, 2012, at 9:30 a.m. in Courtroom 23A, at which all matters per- taining
Steven Alan MAGRITZ, Plaintiff,
v.
OZAUKEE COUNTY, et al., Defendants.
Civil Action No. 12-806 (EGS).
United States District Court, District of Columbia.
Aug. 30, 2012.
Notes
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.Id. at 601.
In evaluating a State‘s fundamental alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants [individuals with mental disabilities], but also the range of services the State provides others with mental disabilities, and the State‘s obligation to mete out those services equitably.Id. at 597, 603.
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 or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan....
B. Average Per Capita Expenditures: The State assures that, for any year that the waiver is in effect, the average per capita expenditures under the waiver will not exceed 100 percent of the average per capita expenditures that would have been made under the Medicaid State plan for the level(s) of care specified for this waiver had the waiver not been granted. F. Actual Total Expenditures: The State assures that the actual total expenditures for home and community-based waiver and other Medicaid services and its claim for FFP in expenditures for the services provided to individuals under the waiver will not, in any year of the waiver period, exceed 100 percent of the amount that would be incurred in the absence of the waiver by the State‘s Medicaid program for these individuals in the institutional setting(s) specified for this waiver. G. Institutionalization Absent Waiver: The State assures that, absent the waiver, individuals served in the waiver would receive the appropriate type of Medicaid-funded institutional care for the level of care specified for this waiver.(Defs.’ Ex. 4, at 10.)
| FY 2007 | FY 2008 | FY 2009 | FY 2010 | FY 2011 | Total | |
|---|---|---|---|---|---|---|
| All transitions | 120 | 175 | 230 | 265 | 320 | 1,110 |
| Elderly | 25 | 35 | 45 | 50 | 60 | 215 |
| ID/DD | 0 | 15 | 30 | 45 | 60 | 150 |
| Physically Disabled | 75 | 105 | 135 | 150 | 180 | 645 |
| Mental Illness | 20 | 20 | 20 | 20 | 20 | 100 |
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.(Am. Compl. ¶ 98.)