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Thorpe v. District of Columbia

United States District Court, District of Columbia

March 29, 2014

JACQUALYN THORPE, et al., Plaintiffs,


ELLEN SEGAL HUVELLE, United States District Judge

In this Olmstead action, plaintiffs, who include nine[1] current and former nursing facility residents, claim that the District of Columbia (“District” or “defendant”) provides Medicaid-funded long-term care services to individuals with physical disabilities in a manner that results in the unnecessary segregation of such individuals in nursing facilities in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq.[2] (Third Am. Compl., Mar. 27, 2013 [ECF No. 98] (“3d Am. Compl.”).) Before the Court is plaintiffs’ renewed motion for class certification, seeking to certify a class of nursing facility residents who allegedly are “stuck” in nursing facilities due to the District’s lack of an “effective system of transition assistance.” (Pls.’ Renewed Mot. for Class Certification, May 6, 2013 [ECF No. 103] (“CC Mot.”).) Defendant opposes the motion (Def.’s Opp’n to CC Mot., June 4, 2013 [ECF No. 106] (“CC Opp.”)), and has moved to dismiss the complaint. (Def.’s Mot. to Dismiss, Apr. 11, 2013 [ECF No. 99] (“MTD Mot.”).) For the reasons stated herein, defendant’s motion to dismiss is denied and plaintiffs’ motion for class certification is granted.



The Supreme Court concluded in Olmstead that the “integration mandate” of the ADA and the Rehabilitation Act requires a public entity such as the District to administer its Medicaid program in a manner that does not result in the “unjustified segregation or isolation” of individuals with disabilities. See Olmstead v. L.C., 527 U.S. 581, 607 (1999).[4] Thus, under Olmstead, the District is “required to provide community-based treatment for persons with . . . disabilities” when three conditions are satisfied: (1) the District’s “treatment professionals determine that such placement is appropriate”; (2) the “affected persons do not oppose such treatment”; and (3) “placement can be reasonably accommodated, taking into account the resources available to the [District] and the needs of others with . . . disabilities.” See Olmstead, 527 U.S. at 607; see also 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d).[5] However, even if these three conditions are satisfied, there is no violation of law if the public entity can show “that making the modifications would fundamentally alter the nature of the service, program, or activity, ” 28 C.F.R. § 35.130(b)(7), or that it has “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 605-06.

Since Olmstead, numerous “integration mandate” or “Olmstead” cases have been brought.[6] Across a wide range of services, programs and activities, these cases have challenged undue segregation of individuals with disabilities (or at risk of segregation) in nursing facilities, [7]mental health facilities, [8] institutions for individuals with intellectual and developmental disabilities, [9] and sheltered workshops/segregated day services.[10] Some cases are private actions brought by individuals, some are class actions, and some are enforcement actions by the Department of Justice. Where a private action raises systemic issues, courts have uniformly granted class certification to allow plaintiffs to pursue those claims, even after the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011), which arguably tightened the standard for class certification.[11] In the present case, named plaintiffs seek to bring a class action on behalf of individuals with physical disabilities who are receiving Medicaid-covered long-term care services in nursing facilities, but who want to be receiving such services in the community.


A. Existing Medicaid Coverage of Long-Term Care Services for Individuals with Physical Disabilities

In the District, individuals with physical disabilities who require Medicaid-covered long-term care services[12] have three options for accessing those services: (1) in a nursing facility; (2) in the community with services provided by a Medicaid waiver program; or (3) in the community with personal care assistance services covered by the District’s Medicaid Plan.

Nursing Facility Care:

Federal rules provide that all Medicaid programs must cover long-term care services provided by an institution (e.g., a nursing facility), [13] although states determine the “level-of-care” criteria an individual must satisfy to qualify for such services. To define level-of-care criteria, states may use “functional” criteria, such as an individual’s ability to perform certain Activities of Daily Living (“ADLs”); or “clinical” level-of-care criteria, such as diagnosis of an illness, injury, disability or other medical condition; treatment and medications; or a combination of both. In the District, a Medicaid beneficiary qualifies for long-term care services in a nursing facility if he/she requires (1) “extensive assistance” or “total dependence” with at least two of five “basic activities of daily living” (“BADLs”)—“bathing, dressing, mobility, eating, and toilet use, ” or (2) “supervision” or “limited assistance” with at least two of the five BADLs and “extensive assistance, total dependence, supervision, or limited assistance” with three of five “instrumental activities of daily living” (“IADLs”)—“medication management, meal preparation, housekeeping, money management and telephone use.” (Def.’s Response to the Court’s Oral Order During the Dec. 11, 2013 Hrg. 4, Dec. 13, 2013 [ECF No. 122] (“Def.’s 12/13/2013 Supp. Filing”) (citing Iscandari Dep. 27-28, Mar. 20, 2013)); see also 29 D.C. Mun. Regs. § 5099.

As of January 1, 2013, there were 2, 765 available beds in nineteen Medicaid-certified nursing facilities in the District and 2388 of those beds were filled by Medicaid recipients.[14](Def.’s 12/13/2013 Supp. Filing 2; Turnage Dep. 99-100, Mar. 15, 2013.) Of the Medicaid recipients, 2019 had been in the nursing facility for more than 90 days.[15] (Def.’s 12/13/2013 Supp. Filing 2.) In addition, there were approximately 200 D.C. Medicaid beneficiaries in nursing facilities outside of the District. (See Iscandari Dep. 24.) Approximately 21% of the District’s nursing facility population is under the age of 65. 2012 NHDC, supra n.14, at 156 (Table 3.5).

The existing record does not establish with certainty how many nursing facility residents have “physical disabilities” within the meaning of the ADA and the Rehabilitation Act. Plaintiffs take the position that “most” do based on the fact that in order to enter a nursing home, an individual must meet the requirements for nursing home level of care. Plaintiffs’ assumption is not without flaws, but it is not unreasonable. First, even though the ADA’s definition of a physical disability and the District’s nursing home level-of-care standard are not identical, there is substantial overlap.[16] Indeed, the only exception suggested by the District is an individual who suffers from a developmental disability, a population that has few, if any, individuals still residing in District nursing facilities. Second, although a nursing facility resident’s condition may have improved over time such that he/she no longer qualifies for a nursing home level of care, annual record reviews of all nursing facility residents are performed to assess whether a current resident continues to require a nursing facility level of care.[17] (Iscandari Dep. 52-53, 181-183.) At trial, of course, any material factual disputes will need to be addressed, but at present it is reasonable to assume that most nursing facility residents are also individuals who satisfy the legal definition of an individual with a physical disability.

The existing record also does not establish with certainty how many current nursing facility residents (other than the named plaintiffs who still reside in nursing homes) would prefer to live in the community. The closest proxy for that information comes from a survey mandated by the Center for Medicare and Medicaid Services (“CMS”) that nursing facilities administer to their residents on a quarterly basis. As part of that survey, known as the “Minimum Data Set” (“MDS”) survey, each resident is asked “Do you want to talk to someone about the possibility of returning to the community?” (Def.’s Reply Brief in Support of its Mot. to Dismiss the Third Am. Compl. (“MTD Reply”) [ECF No. 107] Ex. C, at 31, June 4, 2013 (2010 MDS Survey) (Q500B); see also Iscandari Dep. 48-50.) In 2010, approximately 524 nursing facility residents (out of 2, 499 surveyed) answered yes to that question. (See Turnage Dep. 97-98; Iscandari Dep. 48-50; see also Turnage Dep. 95 & Ex. 14 (Oct. 22, 2010 DHCF MFP Operational Protocol Amendment) (indicating that 580 residents had expressed desire to move).) The existing record does not include any information about more recent answers to this question. Publicly available data from the MDS survey, [18] however, suggests that the number of residents who are interested in returning to the community has remained fairly stable. For example, for the fourth quarter of 2013 (the most recent available data), 27.50% of 2182 residents surveyed (approximately 600 individuals) “expect[ed] to be discharged to the community.” See MDS 3.0 Frequency Report, 4th Quarter 2013, supra n.18. The only other preference data in the existing record comes from a screening the District did in 2012: at that time it screened 354 nursing facility residents and identified 256 who wanted to return to the community. (Def.’s Resps. to Pls.’ First Set of Interrogatories 5, Feb. 15, 2013 (“Def.’s Interrog. Resps.”).)

Home and Community-Based Services Waiver Programs:

In addition to the mandatory coverage of long-term care services provided in a nursing facility, a state Medicaid program may opt to cover home and community-based long-term care services via a “Home and Community Based Services (HCBS) Waiver” program. See 42 U.S.C. § 1396n(c).[19] Generally, a waiver program serves targeted population groups, such as individuals with mental illnesses, intellectual disabilities, or physical disabilities. Subject to approval by CMS, each state decides how many waiver programs to offer and determines the eligibility requirements, number of participants, and scope of services covered.[20] Waiver participants remain eligible for all other Medicaid-covered services.

In the District, the “Elderly and Persons with Disabilities Waiver” (“EPD Waiver”) covers home and community-based long-term care services for individuals who are aged 65 and over and adults with physical disabilities who are 18 or older who meet the District’s nursing home level-of-care requirements.[21] 29 D.C. Mun. Regs. § 4200 (citing 42 CFR § 440.40; 42 CFR § 440.155). A participant can receive up to sixteen hours of care per day without prior authorization and up to twenty-four hours with prior authorization. (Iscandari Dep. 55, 164.)

The District began enrolling individuals in the EPD Waiver in 2008. At the time the District did not keep track of whether EPD Waiver participants were coming directly from the community or from nursing facilities. By August 2011, the available slots (3940) were filled, and on August 17, 2011, the Department of Health Care Finance (“DHCF”) started a waiting list. (See DHCF Transmittal No. 11-24; DHCF Transmittal No. 11-32; Iscandari Dep. 33.) In December 2011, the EPD waiver was reauthorized for the next five years (from January 4, 2012 – January 3, 2017). (Iscandari Dep. 24.) For the first year, there were 4050 slots; for the second year, there were 4162 slots; and the number was set to increase to 4278 in 2014, 4387 in 2015 and 4520 in 2016.[22] (EPD Waiver Renewal Application, Appendix B; Turnage Dep. 150-51.) Forty slots per year are reserved for nursing facility residents. (Turnage Dep. 150; Iscandari Dep. 34-35.)

By July 2012, there were 681 people on the EPD waiver waiting list. (Turnage Dep. 158-59.) By the beginning of January 2013, there were 1084, including 114 nursing facility residents, seven of whom were named plaintiffs (Carter, Collins, Goines, Magby, McDonald, Rivers, and Thorpe). (Iscandari Decl. ¶¶ 6-7, June 3, 2013.) On January 7, 2013, the District sent letters offering waiver slots to the 1084 individuals then on the waiting list. (Iscandari Decl. ¶ 4.) By June 4, 2013, the District reported that of the 1084 individuals who had been sent offer letters, approximately 246 had enrolled; 472 were in the process of enrolling; and 366 had not responded, including all of the named plaintiffs. (Iscandari Decl. ¶ 5.) Additional names have been added to the waiting list since January 2013, but it is not clear how many. (Compare Iscandari Dep. 105 (estimating that 220 individuals were added to the waiting list between January 7, 2013 and March 20, 2013); Iscandari Decl. ¶ 4 (as of May 21, 2013, there were 1519 individuals on the EPD Waiver waiting list, out of which 1084 had been offered waiver spots) with DHCF, DC Medical Care Advisory Committee Report (“MCAC”), [23] Apr. 2013 (reporting 1397 individuals on the EPD Waiver waiting list, 1084 of whom had been notified of an available slot); id., Jan. 2014 (same).)

State Plan Coverage of Personal Care Services:

Finally, a state Medicaid program may opt to cover certain “personal care assistance” services. The District’s Medicaid State Plan includes coverage for “personal care assistance” for up to eight hours per day or 1040 hours per year, although additional care may be authorized. See 29 D.C. Mun. Regs. §§ 5003.5, 5003.6; (Iscandari Dep. 55.) To be eligible to receive personal care assistance services, a Medicaid beneficiary must have an “extensive need for assistance with at least one of the activities of daily living, ” making these services available to individuals who may not meet the nursing facility/EPD Waiver level-of-care requirements. (Iscandari Dep. 53-56.)

B. Transitioning Individuals from Nursing Facilities to Home and Community-Based Long-Term Care Services

1. Money Follows the Person (“MFP”) Program

The MFP Program is a federally-funded grant program with the specific goal of helping Medicaid beneficiaries who have been in an institutional setting for over 90 days transition to a home and community-based services waiver.[24] See Day, 894 F.Supp.2d at 13-16; (Sarigol Dep. 21, July 27, 2011). The District’s first official attempt to transition nursing facility residents to community-based long term care services began in October 2010 when it implemented its MFP program targeting individuals in nursing facilities who qualified for services under the EPD Waiver. (2010 MFP Operational Protocol Amendment 35.) Since then, 49 nursing facility residents have transitioned to the community through the MFP program. Although this number is not negligible, it is far fewer than the District predicted and there is record evidence that many more residents are eligible for but have not yet received assistance from the MFP program.

First, as a prerequisite for participation in the MFP program, the District is required to set annual targets or benchmarks for the number of physically disabled nursing facility residents it anticipates transitioning via MFP to the EPD Waiver. In 2007, when the District first applied for and received approval to participate in the MFP program, the District proposed transitioning a total of 645 individuals with physical disabilities out of nursing facilities at a rate of over 100 per year. (See Turnage Dep. 186-88 & Ex. 27 (2007 MFP Rebalancing Demonstration Grant Award for the District of Columbia)); see also Day, 894 F.Supp.2d at 14. In 2010, the District’s benchmarks were reduced to 30 residents in 2010; 40 residents in 2011[25]; 40 residents in 2012; 40 residents in 2013; and 40 residents in 2014. (2013 Olmstead Plan at 39; Sarigol 2013 Dep. 60-61; Def.’s 12/13/2013 Supp. Filing 5.) To date, the MFP program has consistently fallen far short of its targets, transitioning 0 residents in 2010, 17 residents in 2011; 16 residents in 2012; and 16 residents in 2013, for a total of 49 MFP program transitions from October 2010 through December 6, 2013. (Def.’s 12/13/2013 Supp. Filing 1-2 & Ex. 1 (“MMIS Data Chart”); Sarigol 2013 Dep. 58-59, 65-66.) And although the District reiterated in December 2013 that it had a goal of 40 MFP transitions for 2014 (Def.’s 12/13/2013 Supp. Filing 5), it has now reduced that to goal to 30. (See Notice of the District of Columbia’s Public Release of Fiscal Year 2014 Agency Olmstead Goals Ex. 1, Mar. 11, 2014 (“2014 Olmstead Goals”) [ECF No. 127].)

Second, in 2012, the MFP program screened 354 nursing facility residents who had either “asked to be screened or [were] otherwise referred to the Transition Coordinators” and identified 256 who desired to return to the community. (Def.’s Interrog. Resps. 5.) Out of the 256, 132 were preliminarily determined to be eligible for MFP. (Def.’s Interrog. Resps. 5; Sarigol Dep. 140, Feb. 25, 2013.) In August 2012, the MFP program purportedly “began assisting all MFP-eligible nursing home residents with an identified home address outside of the nursing facility for whom funding in the [EPD] Waiver program [wa]s available to continue home and community-based long term services in the year following the MFP Demonstration” (Sarigol Decl. ¶ 4, June 4, 2013 (“Sarigol Decl. I”)), but the record does not indicate how many residents fell into this category or how many transitions resulted from this assistance. In March 2013, DHCF held a lottery among the MFP-eligible group (130 individuals) to select 40 residents who did not have an identified housing option to participate in MFP with the assistance of housing subsidies.[26] (Sarigol Decl. I ¶¶ 5, 6.) Of those 40, only 16 had transitioned by December 2013. The record does not reflect whether, and, if so, when, any more of the 40 are expected to transition or whether the District has selected any new MFP participants since then.

The pace of the District’s transitions through the MFP program has been flagged as too slow by CMS. Following an “on-site” visit, CMS sent a letter to the DHCF’s Medicaid Director in July 2012, noting that there had been a “limited number of transitions” via MFP as of May 2012, and advising the District that “[t]he lack of meeting MFP transition benchmark issue and repeated revision to lower numbers since the start of the 2008 MFP Demonstration program has hampered meeting the intent of [] Olmstead. Without significant improvement in the number of individuals with significant disabilities transitioned, there is a distinct possibility the continuation of the DC MFP program could be in jeopardy.” (Sarigol 2013 Dep. Ex. 25, at 2 (July 6, 2012 CMS letter to DHCF Medicaid Director)[27]; Teasdell Dep. 184, Feb. 28, 2013 (describing the MFP Program as having “been in a dormant stage for the past thirteen months”).) CMS also “identified several practices that could be improved” in the administration of the MFP Program and “provide[d] recommendations for action.”[28] (Sarigol Dep. Ex. 25, at 1.) As a result of the CMS review, the District’s MFP Program was placed “on an Action Plan for not meeting its transition benchmarks for 2011, ” and the District was told that “the expectation is for [the District] to meet its required transition benchmarks for 2012.” (Sarigol Dep. Ex. 25, at 6.) CMS further advised the District that “[i]f this requirement as specified in the terms and conditions of the MFP grant does not occur, the receipt of future supplemental funds for 2013 and possibly the future operations of MFP in DC could be negatively impacted.” (Sarigol Dep. Ex. 26, at 6.) Since the CMS letter, the number of MFP transitions has increased, but it remains far below the transition benchmarks.

2. The District’s Olmstead Plan

In April 2012, the District released its first official “Olmstead Plan, ” which it updated in April 2013. (Def.’s 12/13/2013 Supp. Filing Ex. 1, at 2 (District of Columbia, Olmstead Community Integration Plan: One Community for All, Apr. 2013 (“2013 Olmstead Plan”)).) Under the Plan, the District’s overall goal is to “institute a comprehensive, effectively working plan for placing individuals with disabilities in less restrictive settings” in order “to meet the needs and preferences of the individual while allowing him or her to choose where s/he wants to live in the community with the appropriate supports and services.” (Id. at 2.) Moving nursing facility residents back to the community is one component of the plan.[29] (2013 Olmstead Plan at 17, 38.)

Two entities in the District are identified as having a role in nursing facility transitions: DHCF and the Aging and Disability Resource Center (“ADRC”), which is part of the District’s Office on Aging. (2013 Olmstead Plan at 17, 38.) DHCF administers the MFP Program and the EPD Waiver, both of which were in place prior to the adoption of the written Olmstead Plan. The ADRC’s role with respect to nursing facility transitions has developed during the pendency of this case.[30] After the MFP program completed its screening in 2012, it referred the 124 residents who wanted to move but were not eligible for MFP to the ADRC for further assistance, and it thereafter referred the 91 individuals who were not selected in the March 2013 lottery. (Def.’s Interrog. Resp. 5; Sarigol Decl. I ¶ 8.) In April 2013, ADRC established a “Nursing Home Transition Team” to “provide assistance to all nursing home residents who wish to move to less restrictive settings, ” hired five “full-time Transition Care Specialists” whose sole job is “assisting nursing facility residents transition to community-based settings” (Teasdell Decl. ¶ 4, June 4, 2013), and began tracking 175 current residents whom DHCF had identified as interested in moving to the community. (Def.’s Notice of Data in Resp. to the Court’s Order of Nov. 22, 2013, at 2, Dec. 6, 2013 [ECF No. 118] (“Def.’s 12/6/2013 Supp. Filing”); Def.’s 12/6/2013 Supp. Filing Ex. 2 (ADRC Nursing Home Transition Team Report) (“ADRC Tracking Rep.”).) ADRC’s assistance is available to all nursing facility residents, not just Medicaid beneficiaries. (Teasdell Decl. ¶ 6.) In 2013, the District calculates that the ADRC has assisted 56 residents transition to less restrictive settings. (Def.’s Reply to Pls.’ Resp. to Def.’s Dec. 13, 2013 Supp. Submission of Nursing Facility Data 5, Dec. 20, 2013 [ECF 124] (“Def.’s 12/20/2013 Supp. Filing”).) It now oversees all nursing facility transitions except those accomplished under the MFP program, and if a nursing facility resident indicates in the MDS survey an interest in moving to the community, the nursing facility is supposed to give that individual’s name to the ADRC.

The District has not yet issued an updated Olmstead Plan for 2014, but it has publicly released numerical “Olmstead goals” for fiscal year 2014. (See 2014 Olmstead Goals.) As noted, the MFP goal for 2014 is 30 transitions, 10 less than the MFP benchmark. For the first time, DHCF has also set a numerical goal of transitioning 25 nursing facility residents directly to the EPD waiver (2014 Olmstead Goals at 10), although it is not clear whether there are any waiver slots available for the nursing facility residents who are seeking to transition outside of the MFP program. (See Turnage Dep. 150; Iscandari Dep. 34-35.) Also for the first time, ADRC has distinguished between hospital discharges and nursing facility discharges and set a goal of assisting 80 nursing facility residents transition to the community. For ADRC, though, any nursing facility resident who transitions, regardless of Medicaid coverage or length of stay, is counted toward that goal. (2014 Olmstead Goals at 3.)

3. Transition Data

Getting an accurate picture of how many nursing facility residents in the District have transitioned to community-based long-term care services since Olmstead is exceedingly difficult given the variety of sources of data (some of which is conflicting) both within and outside the District, the significant gaps in the available data, and the parties’ disputes over its accuracy and how it is to be interpreted.

According to data submitted by the District, [31] since this lawsuit was filed, a total of 412 Medicaid beneficiaries have been discharged from nursing facilities to community-based long- term care services (102 in 2010; 118 in 2011; 112 in 2012; and 81 in 2013 (as of Dec. 6, 2013)0. (Def.’s 12/6/2013 Supp. Filing 2.) Out of the 412, approximately 221 had been in a nursing home for 90 days or longer. (Def.’s 12/6/2013 Supp. Filing 2.) Of the over 90-day transitions, 49 were through the MFP program and 14 were through ADRC.[32] (Def.’s Reply to Pls.’ Resp. to Def.’s Dec. 13, 2013 Supp. Submission of Nursing Facility Data 5, Dec. 20, 2013 [ECF No. 124] (“Def.’s 12/20/2013 Supp. Filing”).)

The District has further broken down the overall discharge numbers for 2012 and 2013 for Medicaid beneficiaries who had been in the nursing home for over 90 days to identify how many transitions came under the MFP program, how many were attributable to the ADRC, and how many were not attributable to either the MFP program or the ADRC. For 2012, the District calculates that there were a total of 63 discharges, 16 under the MFP program, zero with assistance from the ADRC, and 47 “other” discharges. (Def.’s 12/13/2013 Supp. Filing 1.) For 2013, the District calculates a total of 57 discharges, 16 under the MFP program, 14 assisted by the ADRC, and 27 other discharges. (Def.’s 12/13/2013 Supp. Filing 2; Def.’s 12/20/2013 Supp. Filing 5.)

This data, as has been the situation throughout this litigation, is fraught with problems. At the time of the Court’s prior decision, the District had very little information about nursing home transitions. See Day, 894 F.Supp. at 28. The record showed that as of October 2011 only three residents had moved via the MFP program but no data existed as to how many residents had moved to the EPD Waiver or the State Plan. Id. Since then, we know from the District that, as of its latest filing in late 2013, it calculates that for the period 2010-2013, there were 221 discharges of Medicaid residents who had been in a nursing home for over 90 days, 49 residents had moved via the MFP program, 14 residents had been assisted by ADRC, and some unknown number of the remaining 160 “other discharges” may have been assisted by the District in their return to community-based long-term care services. But even assuming that the total discharges of persons in nursing homes for over 90 days to community-based services is 221, that figure covers a four-year period and its significance is vigorously disputed by plaintiffs.


Plaintiffs commenced this litigation in December 2010, 11 years after the Supreme Court’s decision in Olmstead. After plaintiffs filed their first amended complaint (1st Am. Compl., Mar. 30, 2011 [ECF No. 17]), defendants filed a motion to dismiss or, in the alternative, for summary judgment. (Def’s Mot. to Dismiss Or, in the Alternative, for Summary Judgment, April. 27, 2011 [ECF No. 19].) In addition to its arguments for dismissal, defendants argued that they were entitled to summary judgment because “the District ha[d] instituted several comprehensive and effective programs that facilitate community-based care and transitions from nursing facilities to community-based care.” (Id.) Plaintiffs were allowed discovery in order to respond to the motion for summary judgment. (Minute Order, Apr. 29, 2011.) On February 14, 2012, the Court denied the motion, except that it dismissed all claims against the individual defendants on the ground that official capacity claims against them were redundant of the claims against the District. See Day v. DC, 894 F.Supp.2d 1, 33 (D.D.C. 2012). The Court concluded that (1) plaintiffs had alleged a sufficient causal connection between their injury and the District’s actions to establish standing, id. at 22-23; (2) plaintiffs did not need to allege, in order to state an Olmstead integration claim, that the District’s own health-care professionals had determined that community-based services were appropriate, given the allegation that other “health-care professionals” had made that determination, id. at 23-24, or that the cost of community-based care would be less than the cost of care in a nursing facility, id at 24-25; and (3) the undisputed facts did not establish that the District had a “measurable commitment to deinstitutionalization, ” an “essential component of an ‘effectively working’ [Olmstead integration] plan, ” but rather that the evidence as of October 2011 demonstrated that the District’s nursing facility population had remained constant; only three nursing facility residents had transitioned to the EPD Waiver through the MFP program, and although the EPD Waiver had been available since 1999, the District kept no record of how many waiver slots were filled by nursing facility residents. Id. at 27-28 (quoting Olmstead, 527 U.S. at 606–07).

A. Second Amended Complaint & First Motion for Class Certification

Thereafter, plaintiffs filed their second amended complaint (2d Am. Compl., Apr. 2, 2012 [ECF No. 46]), and shortly thereafter, their first motion for class certification. (Pls.’ Mot. for Class Certification, May 15, 2012 (“1st CC Mot.”) [ECF No. 54].) Plaintiffs sought to certify a class composed of:

All persons with disabilities who are eligible for Medicaid funded services from the District of Columbia and who (1) with appropriate supports and services could and would live in the community; and (2) now or during the pendency of this litigation are receiving services funded by the District of Columbia in a nursing facility.

(1st CC Mot. 2.)[33] As relief, plaintiffs sought “a permanent injunction requiring Defendant to promptly take such steps as are necessary to serve Named Plaintiffs and class members in the most integrated settings appropriate to their needs.” (2d Am. Compl., Prayer for Relief.)

The Court held a hearing on plaintiffs’ motion on January 7, 2013. During the hearing, the Court confirmed that plaintiffs were seeking only systemic relief and that they were not seeking any relief from the Department of Mental Health (“DMH”). At the end of the hearing, the Court advised plaintiffs that it would not grant the motion to certify the class as “presently constituted” for several reasons, including (1) the discrepancy between the purported systemic goals of the litigation and the undefined but individualized injunctive relief sought by the second amended complaint; and (2) plaintiffs’ failure to avoid overlap between their claims and the class action settlement in Dixon v. Gray, No. 74-cv-0285 (D.D.C. Feb. 16, 2012), which created an integrated community-based mental health system designed to guarantee the rights of individuals with mental illness to community-based treatment under the least restrictive conditions.[34] (Hrg. Tr. 92-94, Jan. 7, 2013 (“1/7/13 Hrg. Tr.”).) To allow plaintiffs an opportunity to address these deficiencies, the Court denied the motion for class certification without prejudice and set a schedule for plaintiffs to file a third amended complaint and a renewed motion for class certification. (Am. Scheduling Order, Jan. 17, 2013 [ECF No. 87].) The District, in the meantime, sought a stay “to allow for the implementation of a new nursing facility community transition initiative”[35] that would “likely be highly relevant to the merits of Plaintiffs’ claims, and will almost ...

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