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"),
Title II of the ADA provides that "no qualified individual with a disability
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." 29 U.S.C. § 794(a).
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
28 C.F.R. § 35.130(b)(3)(i)-(ii)(ADA); see also 45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act); 28 C.F.R. § 41.51(b)(3)(i)-(iii) (same).
28 C.F.R. § 35.130(b)(7) (1998). Similarly, under the Rehabilitation Act, the recipient of federal funds must
28 C.F.R. § 41.53.
In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (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."
Id. at 607, 119 S.Ct. 2176.
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, 119 S.Ct. 2176. 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, 119 S.Ct. 2176. 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, 119 S.Ct. 2176. 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, 119 S.Ct. 2176 (quoting 28 C.F.R. § 35.130(b)(7)). The plurality went on to observe that "[t]o maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow." Id. at 605, 119 S.Ct. 2176. For example, the plurality stated:
Id. at 603, 119 S.Ct. 2176.
Id. at 604, 119 S.Ct. 2176. Finally, the plurality set forth one way that it believed a State could meet its burden of establishing a fundamental alteration defense:
Id. at 605-606, 119 S.Ct. 2176 (emphasis added).
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,
Medicaid is a joint federal and state program that provides medical services to
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."
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 42 C.F.R. 483.20(c) ("A facility must assess a resident using the quarterly review instrument specified by the State and approved by CMS not less frequently than once every 3 months.") Presently, according to the most recent data, there are between 526 and 580 nursing facility residents who, in response to the MDS written questionnaire, have expressed a preference for living in the community.
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.
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 42 U.S.C. § 1396n(c).
(Defs.' Ex. 4, at 4.) The federal government reimburses the District 70% of the cost of services and supports for people enrolled in a HCBS Waiver. In order to obtain approval of a waiver program, a State submits an application to the Center for Medicaid and Medicare Services ("CMS"). Among other requirements, a State must demonstrate that the program is "cost-neutral" — that the "cost of the program in its entirety cannot exceed the cost of care absent a waiver program."
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").
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, ¶ 4)), 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:
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 ¶ 7; 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 ¶ 7.) 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, ¶ 6; Defs.' Facts ¶ 5.) 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 ¶ 5 (citing Defs.' Ex. 2, ¶¶ 16-7).)
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,
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).)
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.
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 42 C.F.R. § 483.112 ("For each [nursing facility] applicant with [mental illness] or [mental retardation], the State mental health or mental retardation authority (as appropriate) must determine, in accordance with § 483.130, whether, because of the resident's physical and mental condition, the individual requires the level of services provided by a [nursing facility].").
Once admitted, an individual with a mental health diagnosis must be reviewed annually. 42 C.F.R. § 483.114. In addition, the facility is "required to notify DMH and request a PASRR review if a patient with a primary or secondary mental health diagnosis has undergone significant change in his or her physical or mental conditions." (Defs.' Facts ¶ 30 (citing Defs.' Ex. 5, ¶ 5).) "In the event that a PASRR review ... identifies a resident as capable and willing to return to the community, the DMH Office of Integrated Care is responsible for coordinating with the [nursing facilities] and the [DHCF] to assist those [nursing facility] residents with mental illness in the discharge process." (Defs.' Ex. 5, ¶ 5.)
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;)
The present record includes the following information about the costs of institutional and community-based long-term care:
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
The average annual cost of long-term care services in a nursing facility typically exceeds the annual average 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).)
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).
On December 23, 2010, five individuals with disabilities
Plaintiffs claim that the District's "failure to provide [them or the proposed class]... services in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act ... [and] Section 504 of the Rehabilitation Act."
(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 appropriate
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.
"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,
Under either Title II of the ADA or Section 504 of the Rehabilitation Act, the District is required to "administer" services, programs, and activities "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (ADA implementing regulations); 28 C.F.R. § 41.51(d) (Rehabilitation Act implementing regulations). In addition, the District is prohibited from utilizing "criteria or methods of administration" that have either the "effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability" or that "have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the [District's] program with respect to individuals with disabilities." 28 C.F.R. § 35.130(b)(3)(i)-(ii)(ADA); see also 45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act); 28 C.F.R. § 41.51(b)(3)(i)-(ii) (same). Accordingly, to state a claim under either the ADA or the Rehabilitation Act, plaintiffs do not need to allege that the District "caused" plaintiffs' placement in a nursing facility. Rather, to allege the necessary "causal connection" between the District's actions and plaintiffs' injury, it is sufficient to allege, as plaintiffs do, that the District provides, administers and/or funds the existing service system through which plaintiffs receive long-term care services and/or that the District, in so doing, has utilized criteria or methods of administration that have "caused [plaintiffs] ... to be confined unnecessarily in nursing facilities in order to obtain long-term care services, rather
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
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.
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 42 U.S.C. § 1396n(c)(4)(A).) Thus, defendants argue that the complaint must be dismissed because plaintiffs fail to allege that the cost of community-based services on an individual basis for each plaintiff would be less
Defendants cite only 42 U.S.C. § 1396n(c)(4)(A) as legal authority for their novel proposition that there can be no liability under the ADA if the cost of funding community based services for an individual would exceed the cost of care for that individual in a nursing facility. That statutory section, however, is part of the Medicaid Act, not the ADA, and it provides only that a State may include such a individual cost-neutrality requirement as part of its waiver eligibility standards. See 42 U.S.C. § 1396n(c)(4)(A) ("A waiver granted under this subsection may ... limit the individual's provided benefits under such waiver to individuals with respect to whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not exceed the amount of such medical assistance provided for such individual if the waiver did not apply.")
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." Fed.R.Civ.P. 56(a), (c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" of material fact arises if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. "In considering a motion for summary judgment, the `evidence of the non-movant is to be believed, and all justifiable inferences drawn in his favor.'" Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Carney
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 606-07, 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"
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
(Pls.' Opp. at 36.)
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 ¶ 6; 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. ¶ 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 ¶ 6; Defs.' Ex. 2, ¶ 10) and has no present plans to increase it. (Pls.' Facts ¶ 18; 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.
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 information
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),
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.
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
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 undoubtably relevant, see Sanchez v. Johnson, 416 F.3d at 1066 (9th Cir.2005); 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.
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 ¶ 23; 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.
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, Turnbrage, and Baron are dismissed, leaving the District of Columbia as the sole remaining defendant in the case.
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.
For the reasons stated in an accompanying Memorandum Opinion, it is hereby
42 U.S.C. § 12131(2).
Id. at 601.
Id. at 597, 603, 119 S.Ct. 2176.
D.C. Code § 7-771.03. In addition, DHCF is supposed to "maximize federal assistance," "[c]oordinate with other District government agencies to ensure effective and efficient use of Medicaid dollars," and "ensure coordinated health-care access and delivery for publicly funded health-care services." D.C. Code § 7-771.07(3)-(5). DHCF is also supposed to "[d]evelop a long-term-care-finance infrastructure, in cooperation with other District agencies, including the Department of Disability Services, Office on Aging, Long-Term Care Ombudsman, and DOH [Department of Health]. D.C. Code § 7-771.07(9).
42 U.S.C. § 1396n(c)(1) (emphasis added). 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. 42 U.S.C. § 1396n(c)(3). One of the requirements waived is the "comparability" requirement, which requires State plans to offer services to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396(a)(10)(B). In addition, a State is permitted to "cap" the number of persons receiving waiver services, 42 U.S.C. § 1396n(c)(9)-(10), and it may elect not to offer waiver services on a statewide basis. 42 U.S.C. § 1396n(c)(3).
(Defs.' Ex. 4, at 10.)
MFP Statute, § 6071(a). Initially Congress authorized 1.75 billion in funding through fiscal year 2011. Mathematica Policy Research, Inc., Money Follows the Person Demonstration Grants: Summary of State MFP Program Applications 28 (2007) (report prepared for CMS) ("2007 MFP Report"). In 2010, Congress increased the total MFP grant funding to $4 billion and extended the demonstration to 2016. See Pub.L. 111-148, Title II, § 2403(a), (b)(1); Mathematica Policy Research, Money Follows the Person Demonstration: Overview of State Grantee Progress xi (Dec. 2011), available at http://www.mathematica-mpr.com/publications/PDFs/health/mfp_jan-jun2011_progress.pdf ("2011 MFP Report"). States now have until the end of federal fiscal year 2019 to transition people and until the end of fiscal year 2020 to expend all their grant funds. Id.
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
2007 MFP Report at 27.
(Am. Compl. ¶ 96.)
