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Salazar v. District of Columbia

October 28, 2009

OSCAR SALAZAR, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiffs have filed a Motion for an Award of Litigation Costs for Representation of Class Members from January Through June 2007 [Dkt. No. 1419]. They seek a total, at this time,*fn1 of $361,507.23 for attorneys' fees, which includes out-of-pocket litigation expenses of $8,143.46.*fn2 Upon consideration of the Motion, the Opposition, the Reply, and the detailed exhibits, the Court concludes that the Motion should be granted in part and denied in part for the following reasons.

Defendants have raised a number of substantive objections to the requests submitted by Plaintiffs. They argue that much of the work for which compensation is being sought was related to issues that were either not litigated in the original trial, not related to the findings by the Court in its Opinion subsequent to trial,*fn3 and/or not addressed in the Order Modifying the Amended Remedial Order of May 6, 1997 and Vacating the Order of March 27, 1997 ("Settlement Order") [Dkt. No. 663] . In addition, Defendants continue to argue that Plaintiffs' time spent representing individual members of the class should not be compensated, and that their time entries are inadequate.*fn4 The Court will address each of Defendants' objections seriatim and in detail.

1. First, Defendants argue strongly that one of the largest items for which Plaintiffs seek attorneys' fees, namely the issue of "medical necessity,"*fn5 is not compensable. The majority of Plaintiffs' work in this area covered their representation of individual Plaintiffs in administrative due process hearings, who were challenging the decision of their provider, HSCSN, to deny particular treatments and therapies as not medically necessary, even though prescribed by the child's doctor. In addition, Plaintiffs also sought discovery from HSCSN regarding the procedures and guidelines that this managed care organization (MCO) used in reaching its medical necessity decisions. Finally, in 2007, Plaintiffs submitted comments regarding proposed District of Columbia regulations on medical necessity determinations and reviews.

There is absolutely no question that all these activities by Plaintiffs were appropriate, necessary to adequately represent the welfare of members of the Plaintiff class, and were covered by both the Medicaid statute and the Settlement Order. The Court has already ruled that litigation of individual claims including the issue of medical necessity are covered by the Settlement Order. See Mem. Op. of June 4, 2008, at 2 [Dkt. No. 1373] (stating that "[t]here is no question that Plaintiffs are entitled to be compensated for their work on individual claims. . . ."). Moreover, the Court has consistently awarded attorneys' fees for work related to EPSDT fair hearings. See Mem. Op. of May 29, 2008, at 4 [Dkt. No. 1367]. There is no point in Defendants rearguing this issue every time Plaintiffs file a request for attorneys' fees.

Defendants vigorously challenge the number of hours (405.36) and the amount ($46,211.38) that Plaintiffs request for their work in litigating the fair hearings claims of 11 children with severe disabilities, who are members of the class and who were denied therapeutic after-school services which had been prescribed by their physicians. It should be noted that of the 405.36 hours included in this category, more than half, 284.68 hours, were billed for the work of practicing attorneys who only charged at the paralegal rate, pursuant to the terms of the Settlement Order.

Plaintiffs respond that it was the litigation strategy adopted by Defendants that forced them to spend so many hours litigating the individual children's claims. As Plaintiffs explained, in each one of the EPSDT fair hearings for failure of HSCSN to provide services, the MCO intervened. Thereafter, Defendants allowed HSCSN's outside counsel, Drinker, Biddle and Wreath, LLP, to take the lead role and to fully and aggressively litigate the administrative proceeding. That litigation involved motions to dismiss, related discovery, designation of expert witnesses, and requests to depose the parents of each child. After conducting the litigation in a full-blown fashion, HSCSN reversed its position on the merits of each of these cases just before depositions were to be conducted and reinstated the therapeutic after-school services for each child who was challenging their denial through the fair hearing process. One can only wonder whether, if Plaintiffs had not represented each of those children, each one of them would have been deprived of the EPSDT services to which they were entitled under Federal law.*fn6 In short, Plaintiffs were giving their clients the same quality of representation that Drinker, Biddle & Wreath was giving its client, HSCSN.

Second, Defendants claim that Plaintiffs are not entitled to fees for preparation of comments on the draft regulations published by the Department of Health regarding Therapeutic After-School Programs ("TASP") for children entitled to EPSDT services. The proposed regulations contained the standards Defendants would use in the future to govern the extent of EPSDT medical assistance to be provided to children.

As Plaintiffs succinctly stated in their Reply, "[p]laintiffs' clients will be seriously affected by the District's medical necessity regulations as the regulations could potentially be used to deny children services under EPSDT in violation of paragraph 36 of the Settlement Order. . . . Plaintiffs would have been negligent as representatives of members of the class if they did not review and comment on the District's proposed regulations in an effort to ensure that the regulations would comply with the federal Medicaid statute regarding provision of care and that the plaintiff class would not be harmed in any other way by the regulation." Pls.' Reply, at 10. See also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 561-62 (1986) ("[W]e agree that participation in these administrative proceedings was crucial to the vindication of Delaware Valley's rights under the consent decree and find that compensation for these activities was entirely proper and well within the 'zone of discretion' afforded the District Court.").

Third, Defendants also object to Plaintiffs' request for fees for discovery requests to HSCSN and Defendants regarding the provision of home health care services.*fn7 Again, Defendants argue that work on this issue does not implicate the claims in this law suit or the requirements of the Settlement Order. Plaintiffs argue that "the manner in which the District determines medical necessity is not related to any of the claims litigated in this case," Defs.' Opp'n at 4, and speculate that the final bill for discovery on this issue "will be well over $200,000." Id., at 5.

Plaintiffs initially sought discovery about provision of home health care services because local health advocates were concerned that class members might not be receiving the EPSDT home health services to which they were entitled under paragraph 36 of the Settlement Order. In the Memorandum Opinion of December 19, 2006 [Dkt. No. 1256], the Court granted Plaintiffs' discovery request in part and said that "[i]t is hard to understand what possible legitimate objection Defendants or HSCSN can have to producing such 'policies and procedures' [about provision of home health care services] so long as they do in fact exist." Moreover, in the Memorandum Opinion of May 29, 2008 [Dkt. No. 1370], the Court reiterated that Plaintiffs' work on discovery "falls within the parameters of both the Settlement Order and the EPSDT claims Plaintiffs litigated and on which they prevailed." Finally, Plaintiffs were again awarded fees for this subject matter in the Memorandum Opinion of June 4, 2008 ]Dkt. No. 1373], at 1-2. Given the fact that this issue has already been decided -- twice -- by this Court, Plaintiffs shall be awarded the full amount of expenses on their discovery requests for the first half of 2007, an amount of of $14,611.24.*fn8

Defendants' argument that attorneys' fees for discovery could exceed $200,000 is pure speculation. We will cross that bridge if and when we come to it.

2. Defendants also argue that Plaintiffs' fees for assisting individuals ($54,138.30)*fn9 should be reduced by 70 percent because they are "not remotely of a legal nature nor . . . related to any claim the individual class member has brought against the District." Defs.' Opp'n at 6-7. As part of this objection, Defendants also argue that the majority of the entries in this category "show no indication that the issue involved was the result of an error on the part of the District. . . ." Id. at 7. The Settlement Order does not restrict Plaintiffs' counsel from assisting class members who have not brought individual claims against the District. Paragraph 64 of the Settlement Order specifically states that: "Plaintiffs' counsel may respond to all calls which come to their office and make reasonable inquiry to determine whether the caller is a member of the plaintiffs' class. If the caller is a member of the plaintiff class, Plaintiffs counsel may provide the caller with legal assistance." In short, Paragraph 64 clearly authorizes Plaintiffs' counsel to take all calls from individuals seeking EPSDT assistance, to respond to those callers to ascertain whether the caller is a member of the class and, upon ascertaining that the caller is a member, to provide that caller with legal assistance.

Defendants' objection is particularly unfounded in view of the fact that the MCOs are required, under the Settlement Order and the Order of September 2, 2005 [Dkt. No. 1082] to send written notice to all class members who are claiming reimbursement for out-of-pocket expenses that, in order "to obtain free legal assistance with your reimbursement claim, please contact ...


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