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Brown v. District of Columbia

United States District Court, District of Columbia

September 13, 2017

IVY BROWN, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge.

         This action was brought by a class of individuals with physical disabilities who (1) have received DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible for Medicaid-covered home and community-based long-term care services; and (3) would prefer to live in the community instead of a nursing facility. (4th Am. Compl. ¶ 120, Sept. 10, 2015, ECF No. 162.) Plaintiffs allege that the District's failure to provide effective transition services has caused the class to remain in nursing facilities, in violation of the integration mandate 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. (See id. ¶¶ 1-3.)

         The integration mandate was first recognized by the Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Under Olmstead, the essential inquiry is whether a state administers its Medicaid programs in a manner that unjustly segregates individuals with disabilities. Olmstead involved the question of whether the integration mandate had been violated with respect to two disabled individuals. Here, plaintiffs are proceeding as a class action, and therefore, the question is far more complicated.

         To succeed, plaintiffs have the burden under Rule 23, as interpreted by Supreme Court and Circuit precedent, to show a systemic policy or practice of the District's operation of its Medicaid system that has caused a common harm to plaintiffs. Plaintiffs have a further burden to show that the common harm can be remedied by a single injunction, which would result in the class members being transitioned out of the nursing facilities. Thus, the essential question before the Court is whether plaintiffs have shown concrete systemic deficiencies that harm the class and, if these deficiencies exist, whether they are redressable by a single injunction.

         Based on the testimony and exhibits admitted at trial, the parties' arguments, and the applicable law, the Court has reached the Findings of Fact and Conclusions of Law set forth below, and it concludes that plaintiffs have failed to demonstrate that they are entitled to class-wide relief under Fed.R.Civ.P. 23. The class-wide claims will therefore be dismissed, and as plaintiffs do not seek individual relief, judgment will be entered for the District.

         BACKGROUND [1]

         I. LEGAL BACKGROUND

         Proceeding under an Olmstead theory of liability, plaintiffs contend that the District is violating the so-called “integration mandate” of Title II of the ADA and Section 504 of the Rehabilitation Act by failing to provide effective transition services to a class of physically disabled individuals who receive Medicaid-funded long-term care, have lived in nursing facilities for more than 90 days, and would prefer to live in the community. Plaintiffs seek class-wide declaratory and injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2).

         A. The Integration Mandate of the ADA and the Rehabilitation Act

         Title II of the ADA and Section 504 of the Rehabilitation Act, along with their implementing regulations, require that public entities and programs receiving federal funds take reasonable steps to avoid administering their programs in a manner that results in the segregation of individuals with disabilities. This is the crux of the integration mandate.

         Title II of the ADA provides that “no qualified individual with a disability 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, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” under the ADA is

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.

Id. § 12131(2). A “public entity” is “any State or local government, ” and “any department, agency, [or] special purpose district, ” including the District of Columbia. See Id. §§ 12131(1)(A), (B).

         Congress included in Title II of the ADA its express finding that “segregation” of persons with disabilities is a “form[] of discrimination” forbidden by the statute. Id. § 12101(a)(5); see id. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”). Congress instructed the Attorney General to promulgate regulations implementing Title II's proscription against disability-based discrimination, including unjust segregation. See Id. § 12134(a). To this end, the ADA's implementing regulations include an “integration” provision, which requires that “[a] public entity shall 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). The regulations define the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Id. pt. 35, App. B.

         Similarly, Section 504 of the Rehabilitation Act, which applies to “any program or activity receiving Federal financial assistance, ” such as Medicaid, 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.” 29 U.S.C. § 794(a). Although the Rehabilitation Act does not contain an express finding that segregation is a form of discrimination, the Rehabilitation Act's implementing regulations mirror those of Title II of the ADA by requiring that programs, services, and activities be administered in “the most integrated setting appropriate” to the needs of individuals with disabilities. See 28 C.F.R. § 41.51(d).

         Albeit in slightly different formulations, the regulations implementing both statutes require “reasonable accommodations” to avoid discrimination of individuals with disabilities. Under ADA regulations, 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.” Id. § 35.130(b)(7). Similarly, under the Rehabilitation Act, the recipient of federal funds must “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.” Id. § 41.53. These regulations, while not identical, are intended to be “consistent.” See 42 U.S.C. § 12134(b) (the regulations implementing the ADA “shall be consistent with” the regulations implementing Section 504).

         The regulations of each law also prohibit the use, direct or otherwise, 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.

28 C.F.R. § 35.130(b)(3) (ADA); 45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act). Read together, these regulations require that public entities and programs receiving federal funds take reasonable steps to avoid administering their programs in ways that result in discrimination.

         B. Olmstead

         In Olmstead, the Supreme Court expounded on the meaning of the integration mandate for disabled individuals receiving Medicaid-funded care in institutions. In that case, the 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.” 527 U.S. at 587. The Court answered with “a qualified yes, ” holding a state government liable for its failure to provide community care for two individual plaintiffs with mental disabilities. Id. at 587, 598.[2]

         The Court first held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. In doing so, the Court concluded that “[u]njustified isolation” of individuals with disabilities, even without a showing of disparate treatment, constitutes discrimination prohibited by Title II of the ADA, id., and that the government's failure to provide “reasonable accommodations” for individuals with disabilities to access community care is actionable under the law, id. at 601.

         Olmstead sets forth a three-part test to determine whether a state has unjustly segregated an individual with a disability. Community placement for individuals with disabilities “is in order” when (1) “the State's treatment professionals have determined that community placement is appropriate, ” (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, ” and (3) “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 587. The Court cautioned that it was not holding “that the ADA imposes on the States a ‘standard of care' for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities, '” but rather, “that States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide.” Id. at 603 n.14.

         Applying the three-part test to the two individuals in Olmstead, the Court noted that it was undisputed that the two plaintiffs satisfied the first two prongs, as they were “qualified for noninstitutional care” and did not “oppose[] such treatment.” Id. at 602-03. However, as to the third factor-whether community placement for those plaintiffs was could be “reasonably accommodated”-the Court remanded the matter for the lower courts to determine in the first instance whether providing community care to the plaintiffs would have been “reasonable.” Id. at 607. The Court counseled that, although it is a fact-bound inquiry, a state's obligation to make particular modifications is “not boundless.” Id. at 603. For instance, states are not required to make a modification that would constitute a “fundamenta[l] alter[ation]” of the existing services. Id. (quoting 28 C.F.R. § 35.130(b)(7)).

         A plurality of the Court expounded on the scope of “[t]he State's responsibility, once it provides community-based treatment to qualified persons with disabilities.” Id. at 603. The plurality observed 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. For instance, the plurality reasoned that it would not be proper to compare the cost of community-based treatment for the two individual plaintiffs who brought the lawsuit against the entire mental health budget of the state. Instead, 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.

         According to the plurality, one way that a state could defeat liability with a fundamental-alteration defense was by “demonstrat[ing] 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.” Id. at 605-06. Such a comprehensive, effectively working plan is now commonly known as an “Olmstead Plan.” A number of states, as well as the District, have adopted their own Olmstead Plans, although the name alone is obviously not enough to make it a legally sufficient defense.

         C. Federal Rule of Civil Procedure 23: Class Actions

         As will be discussed more fully herein, plaintiffs in this case proceed as a class under Federal Rule of Civil Procedure 23(b)(2), unlike the two plaintiffs in Olmstead, who sought individual injunctive relief. See infra Conclusions of Law Part I. Thus, plaintiffs carry an additional burden under Rule 23 to demonstrate that they have met the Rule 23(a) prerequisites.[3] As plaintiffs seek declaratory and injunctive relief, they must also show that the action meets the requirements of Rule 23(b)(2).

Certification under Rule 23(b)(2) for injunctive relief requires plaintiffs to show that the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Courts may certify classes under this provision “only when a single injunction or declaratory judgment would provide relief to each member of the class.”

DL v. District of Columbia, 860 F.3d 713, 723 (D.C. Cir. 2017) (“DL II”) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)).To proceed as a Rule 23(b)(2) class, the party seeking certification must “adequately allege[] that the class has suffered a uniform deprivation, and that such deprivation could be remedied by a single injunction” for purposes of commonality. In re District of Columbia, 792 F.3d 96, 101 (D.C. Cir. 2015). In other words, a Rule 23(b)(2) class must identify a “policy or practice affecting all members of the class.” Id. at 100 (citing DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (“ DL I ”)). This requirement means that plaintiffs here must “proffer[] evidence of systemic deficiencies in the District's system of transition assistance and that those deficiencies appear to be affecting the class.” Thorpe v. District of Columbia, 303 F.R.D. 120, 151 (D.D.C. 2014) (“Thorpe II).

         At the class certification stage, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 350. But at the trial stage, the class must do more than “be prepared to prove” the Rule 23 requirements. See Id. Instead, the class must actually prove that it has complied with Rule 23. Importantly, the class must answer the common questions that they identified at the class certification stage, and the answers to those questions must justify “final injunctive relief or corresponding declaratory relief . . . respecting the class as a whole.” See Fed. R. Civ. P. 23(b)(2). Here, “to prevail on the merits and obtain the relief they seek, plaintiffs [must] prove concrete[, ] systemic deficiencies” in the District's system of transition assistance and that these deficiencies have caused a common harm to class members. See Thorpe II, 303 F.R.D. at 146 n.58, 151.

         II. PROCEDURAL HISTORY

         A. Plaintiffs' Initial Complaint and the District's First Motion to Dismiss

         On December 23, 2010, four plaintiffs filed a putative class action against the District, the Mayor of the District, and various District officials seeking declaratory and injunctive relief for the plaintiffs' alleged segregation. (Compl. at 27 (Request for Relief), ECF No. 1.)[4] At the time, the proposed class consisted of

[a]ll those persons who (1) have a disability; (2) receive services in nursing facilities located in the District of Columbia or funded by [the District] at any time during the pendency of this litigation; (3) could live in the community with appropriate supports and services from [the District]; and (4) prefer to live in the community rather than in nursing facilities.

(Id. ¶ 90.) The Complaint alleged that the District's “programs and activities for persons with disabilities systematically deny or ignore Plaintiffs' choices and preferences for integrated community care, ” in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. (Id. ¶ 9.) At the time, by virtue of not qualifying “disability, ” the proposed class included individuals with both mental and physical disabilities. (See Status Conf. Tr. at 3:25-4:3, Apr. 29, 2011, ECF No. 22 (“4/29/2011 Status Conf. Tr.”).)

         Before defendants filed a responsive pleading, plaintiffs amended their Complaint to add an additional plaintiff. (See 1st Am. Compl., March 30, 2011, ECF No. 17.) On April 27, 2011, defendants then filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. (Defs.' Mot. to Dismiss 1st Am. Compl., ECF No. 19.)

         The parties appeared for a Status Conference on April 29, 2011, at which the Court set a briefing schedule on the pending Motion to Dismiss and relieved plaintiffs of the filing deadline for their motion for class certification. (See Minute Order, April 29, 2011.) Consistent with the Court's Minute Order, plaintiffs filed their Opposition to the District's Motion to Dismiss on September 1, 2011. (Pls.' Opp'n to Defs.' Mot. to Dismiss 1st Am. Compl., ECF No. 28.) Defendants filed their Reply on October 3, 2011. (Defs.' Reply in Support of Mot. to Dismiss 1st Am. Compl., ECF No. 30.)

         On February 14, 2012, this Court granted in part and denied in part the District's motion. Day v. District of Columbia, 894 F.Supp.2d 1, 33 (D.D.C. 2012). In doing so, the Court rejected the District's argument that plaintiffs had failed to state a claim because they had not properly alleged “a causal connection between the injury and the conduct complained of, ” or, in other words, that plaintiffs had not properly alleged that “the injury [is] fairly traceable to the challenged action of the defendant.” (Defs.' Mot. to Dismiss 1st Am. Compl. at 10-11 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).) The Court concluded that it was sufficient for plaintiffs to have alleged 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 than facilitate their transition to the community with appropriate services and supports.”

Day, 894 F.Supp.2d at 22 (quoting 1st Am. Compl. ¶ 111).

         The Court also rejected the District's argument that summary judgment should be granted because it had adopted an Olmstead Integration Plan and specific programs designed to further deinstitutionalization. Id. at 29. The undisputed figures regarding the District's nursing-home occupancy “clearly undercut” its contention that it had any “plan that demonstrates a measurable commitment to deinstitutionalization, ” one generally accepted component of an “effectively working” Olmstead plan. Id. at 28. Moreover, the District had operated a waiver program for elderly and physically disabled individuals (“EPD Waiver”) since 1999, and it was impossible to determine how many individuals had transitioned to community-based long-term care from nursing facilities, as the District did not keep any such data. Id. at 29. But at least with respect to the Money Follows the Person (“MFP”) federal grant program, operated in part to transition physically disabled nursing-facility residents to community-based long-term care, the District had only transitioned three such individuals as of October 3, 2011, even though the program had been authorized in 2007. Id. Given the fact that, at the time, there were at least 526 physically disabled individuals living in nursing facilities who expressed an interest in living in the community, the undisputed facts demonstrated that the Districts' Olmstead Plan had not been effective. Id.

         However, the Court was persuaded by the District's argument that the claims against the individual defendants were redundant to those against the District. Id. at 33. The Court therefore dismissed plaintiffs' claims against the individual defendants, leaving the District as the sole remaining defendant. Id.

         B. Plaintiffs' Second Amended Complaint and First Motion for Class Certification

         On February 28, 2012, the District answered plaintiffs' Amended Complaint. (Answer to 1st Am. Compl., ECF No. 44.) On April 2, 2012, Plaintiffs filed a Second Amended Complaint, which removed three plaintiffs and added four new plaintiffs. (2d Am. Compl., ECF No. 46.) The District filed its Answer to the Second Amended Complaint on April 17, 2012. (Answer to 2d Am. Compl., ECF No. 51.) Then, based on the parties' request, the matter was referred to a Magistrate Judge for mediation, which did not succeed.

         Between the first and second settlement conferences, plaintiffs filed their Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. (Pls.' Mot. for Class Cert. May 15, 2012, ECF No. 54.) The District filed its Opposition on August 20, 2012 (Def.'s Opp'n to Pls.' Mot. for Class Cert., ECF No. 61), and a supplemental Memorandum in Opposition on September 20, 2012. (Def.'s Supp. Opp'n to Pls.' Mot. for Class Cert., ECF No. 68.) Plaintiffs file their reply on September 28, 2012. (Pls.' Reply in Support of Mot. for Class Certification, ECF No. 70.)

         Before the Court decided plaintiffs' Motion for Class Certification, the District filed three additional motions: (1) a Motion to Amend its Answer to the Second Amended Complaint, which sought leave to add the defenses of res judicata and collateral estoppel to the claims of those putative class members whose “claims overlap with claims previously litigated and resolved in Dixon v. Gray.”[5] (Def.'s Mot. to Amend Answer to 2d Am. Compl. at 1, Sept. 18, 2012, ECF No. 65); (2) a Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Donald Dupree (Def.'s Mot. to Dismiss Claims of Donald Dupree as Moot, Sept. 18, 2012, ECF No. 64); and (3) a Motion to Dismiss for Lack of Jurisdiction the Claims of Plaintiff Curtis Wilkerson. (Def.'s Mot. to Dismiss Claim of Curtis Wilkerson as Moot, Dec. 13, 2012, ECF No. 81.) On January 7, 2013, the Court heard argument on the District's pending motions. (Minute Entry, Jan. 7, 2013.)

         At the hearing, the Court granted the District's motion to amend its answer. (Hrg. Tr. at 87:11-12, Jan. 7, 2013, ECF No. 90 (“1/7/2013 Hrg. Tr.”); Minute Order, Jan. 7, 2013.), The Court also indicated that it would deny the District's two remaining motions, which sought dismissal for lack of jurisdiction of two individual plaintiffs, as their claims satisfied a number of exceptions to the mootness doctrine. (1/7/2013 Hrg. Tr. at 3:19-23.)[6]

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.

Thorpe II, 303 F.R.D. at 134 (quoting 1/7/2013 Hrg. Tr. at 98:1). The Court was persuaded that it would be inappropriate to issue an injunction that included orders to the Department of Mental Health, which was already under a consent decree in the Dixon case. (1/7/2013 Hrg. Tr. at 86:7-9.)

         In order for plaintiffs to address the deficiencies the Court identified, the Court denied plaintiffs' first 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. (Minute Order, Jan. 17, 2013; Am. Scheduling Order, Jan. 17, 2013, ECF No. 87.) The Court determined that fact discovery would continue but that expert discovery would be stayed until after the Court ruled on the renewed Motion for Class Certification. (Am. Scheduling Order at 1-2.).)

         C. Plaintiffs' Third Amended Complaint and Renewed Motion for Class Certification

         On March 27, 2013, plaintiffs filed their Third Amended Complaint. (3d Am. Compl., ECF No. 98.) The Third Amended Complaint “added six new class representatives, revised the proposed class definition in several ways, and amplified plaintiffs' requests for relief.” Thorpe II, 303 F.R.D. at 135. Under the Third Amended Complaint, the class was defined as

[a]ll persons with physical disabilities who, now or during the pendency of this lawsuit: (1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days; (2) are eligible to live in the community; and (3) would live in the community instead of a nursing facility if the District of Columbia would provide transition assistance to facilitate their access to long- term care services in the community.

(3d Am. Compl. ¶ 153.) This definition “limit[ed] the class to individuals who have a physical disability, have been in a nursing facility for over 90 days, and need transition assistance from the District in order to leave the nursing facility and obtain community-based long-term care services.” Thorpe II, 303 F.R.D. at 135. The Third Amended Complaint alleged a laundry list of some 11 deficiencies in the District's transition services, which the Court characterized as “broad and far-ranging institutional reform” that went “far beyond transitional services.” Id. at 136 (discussing 3d Am. Compl. ¶ 139).

         On April 11, 2013, the District filed a Motion to Dismiss the Third Amended Complaint. (Def.'s Mot. to Dismiss 3d Am. Compl., ECF No. 99.) On May 6, 2013, plaintiffs filed their Renewed Motion for Class Certification (Pls.' Renewed Mot. for Class Cert., ECF No. 103), and the Department of Justice filed a Statement of Interest in support of plaintiffs' renewed Motion for Class Certification. (Statement of Interest of the United States, June 26, 2013, ECF No. 109.)

         In its motion, the District argued that the Third Amended Complaint should be dismissed because the proposed class was not “readily ascertainable” with reference to “objective criteria” and that the class was overbroad. (Def.'s Mem. in Support of Mot. to Dismiss 3d Am. Compl. at 5-6.) The District further argued that, should the Court find the proposed class to be deficient, plaintiffs would lack standing to seek “system-wide injunctive relief” and that, even if the class were certified, plaintiffs would lack standing to seek “broad systemic relief [that] . . . exceeds the specific injuries alleged.” (Id. at 12, 15.) On December 13, 2013, the Court held a hearing on the two pending motions, and on March 29, 2014, the Court issued a Memorandum Opinion denying the District's Motion to Dismiss and granting plaintiffs' renewed Motion for Class Certification. Thorpe II, 303 F.R.D. at 124.

         As to the District's Motion to Dismiss, the Court found that the class was sufficiently definite, notwithstanding plaintiffs' use of the length of stay in the nursing facility as a proxy for needing the District's transition assistance. Id. at 140-41. The Court also found that it was not fatal to plaintiffs' case that individuals who lack housing (or physically disabled individuals who are also mentally disabled) were included in the class. Id. at 141-42. The Court, mindful that its role at the motion to dismiss stage was “not . . .to resolve the merits, ” found no overbreadth problem even though it expressed concern about plaintiffs' ability to prove “a causal link between the alleged deficiencies in the District's system of transition assistance and the alleged unnecessary segregation.” Id. at 142.

         The Court also explained its conclusion that, “despite . . . serious problems” as to whether plaintiffs would be able to prevail on the merits and prove their entitlement to the class-wide relief they sought in their Complaint, plaintiffs had, at that juncture, carried their burden under Rule 23. Id. at 138. The Court found that “the District ha[d] yet to demonstrate that its Olmstead Plan is an ‘effectively working plan for placing qualified persons with . . . disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.'” Id. (quoting Olmstead, 527 U.S. at 606-07).

         Importantly, grappling with the Supreme Court's decision in Wal-Mart and the D.C. Circuit's decision in DL I, the Court identified common questions whose “common answers [were] apt to drive the resolution of the litigation.” Id. at 145-46 (quoting Wal-Mart, 564 U.S. at 350). Namely, the Court determined that

[t]o prevail on the merits and obtain the relief they seek, plaintiffs will have to prove concrete systemic deficiencies. For example, does the District in fact “fail[] to offer sufficient discharge planning” or “fail[] to inform and provide [nursing facility residents] with meaningful choices of community-based long-term care alternatives to nursing facilities.

Id. at 146 n.58 (quoting 3d Am. Compl. ¶ 156(c), (g)).

         The Court modified slightly plaintiffs' proposed class definition, and, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2), it certified a class of

[a]ll persons with physical disabilities who, now or during the pendency of this lawsuit:
(1) receive DC Medicaid-funded long-term care services in a nursing facility for 90 or more consecutive days;
(2) are eligible for Medicaid-covered home and community-based long-term care services that would enable them to live in the community; and
(3) would prefer to live in the community instead of a nursing facility but need the District of Columbia to provide transition assistance to facilitate their access to long-term care services in the community.

(Order, March 29, 2014, at 1.)

         D. The District's Petition for Interlocutory Appeal

         After the Court certified the class, the District filed its Answer to the Third Amended Complaint. (Def.'s Answer to 3d Am. Compl., Apr. 14, 2014, ECF No. 131.) The next day, the District filed a petition to the U.S. Court of Appeals for the D.C. Circuit pursuant to Fed.R.Civ.P. 23(f) for an interlocutory appeal of the class-certification decision. (See Notice of Petition for Interlocutory Appeal, Apr. 15, 2014, ECF No. 132.)

         A merits panel of the D.C. Circuit held oral argument on the District's petition on February 6, 2015, and on June 26, 2015, it denied the Petition for Interlocutory Appeal. In re District of Columbia, 792 F.3d at 102. Although the D.C. Circuit expressed serious doubts about plaintiffs' ability to ultimately meet the requirements of Rule 23, the panel concluded that it was not “manifest error to conclude, at this procedural juncture, that those two alleged deficiencies”- failing to offer sufficient discharge planning and failing to inform nursing facility residents of community-based alternatives to nursing facilities-“could represent the sort of systemic failure that might constitute a policy or practice affecting all members of the class in the manner Wal- Mart requires for certification.” Id. at 100 (citing DL I, 713 F.3d at 126, 128). That is to say, the “two specific deficiencies” identified by this Court in a footnote of its Memorandum Opinion were pivotal to the panel's holding that this Court did not manifestly err by finding sufficient allegations that “the class has suffered a uniform deprivation, and that such deprivation could be remedied by a single injunction.” Id. at 101 (citing Thorpe II, 303 F.R.D. at 146 n.58).

         E. Plaintiffs' Fourth Amended Complaint and Pretrial Conference

         After the Court of Appeals denied interlocutory review, this Court permitted expert discovery and set deadlines for the parties to complete all discovery. (Scheduling Order, July 15, 2015, ECF No. 158.) By consent motion, plaintiffs sought to amend their Third Amended Complaint to account for recent developments in the litigation. (Pls.' Mot. to Amend 3d Am. Compl., Sept. 1, 2015, ECF No. 160.) The Court granted the motion by Minute Order on September 10, 2015, and plaintiffs filed their Fourth Amended Complaint the same day.

         The Fourth Amended Complaint-the operative complaint at the time of trial-added two new named plaintiffs, removed named plaintiffs who had died during the pendency of the litigation, and “updated [plaintiffs'] factual averments, ” but did not “alter the substance or basis for Plaintiffs' claims.” (Pls.' Mot. to Amend 3d Am. Compl. at 1.) Importantly, the 11 alleged failures or deficiencies of the District's transition system from the Third Amended Complaint remained the same. (Compare 3d Am. Compl. ¶ 139 with 4th Am. Compl. ¶ 105.) The class definition, although slightly modified from the Third Amended Complaint, was identical to the class definition in the Court's Order certifying the class. (Compare 4th Am. Compl. ¶ 120 with Order, March 29, 2014, at 1.) The District answered the Fourth Amended Complaint on September 24, 2015. (Def.'s Answer to 4th Am. Compl., ECF No. 166.) In the Joint Pretrial Statement, plaintiffs set forth their proposed injunction, which would set deadlines for the District to transition class members and require it to “[d]evelop and implement a working system of transition assistance to facilitate all class members' access to long-term care services in community-based settings.” (Joint Pretrial Statement at 10, Aug. 8, 2016, ECF No. 190.)

         At the pretrial conference, the Court decided that the bench trial would be bifurcated into a “liability” phase and, if necessary, a “relief” phase. In the first phase of trial, the Court would determine whether plaintiffs had proven that deficient transition services had resulted in a violation of Olmstead's integration mandate, entitling them to class-wide relief. In other words, plaintiffs would first present their evidence that they were unjustly segregated under Olmstead and that the District has a uniform policy or practice causing the unjust segregation that could be remedied in a single injunction, as required by Rule 23(b)(2). If plaintiffs were successful in proving liability, the Court would then decide the scope of the injunction. At this second phase, the District could raise the “fundamental alteration” defense recognized by the plurality in Olmstead. See 527 U.S. at 604.

         F. The Trial

         The liability phase of the bench trial was held on September 13, 14, and 16; October 4 and 5; and November 8, 9, and 15, 2016. The issue before the Court related to the District's current efforts to comply with Olmstead; the deficiencies in its transition services; and whether the lack of transition services contributed to the class members' segregation in nursing facilities. The evidence related to the years 2014-2016, as the Court's prior opinion in Thorpe II covered in detail the District's failure to transition class members through 2013. See 303 F.R.D. at 132- 33. But that Opinion expressly left unanswered the question of whether the problem of available housing, as opposed to a lack of transition services, resulted in the class members' continued segregation in nursing facilities, since that was an issue of fact that had to be decided at trial. Id. at 147 n.60.

         Plaintiffs presented their case-in-chief over five days, calling ten live witnesses, reading portions of the depositions of four other witnesses, and introducing exhibits. After plaintiffs rested, the District moved for Judgment as a Matter of Law. (Def.'s Mot. for Judgment as a Matter of Law, Oct. 6, 2016, ECF No. 223.) The Court took the motion under advisement and ultimately permitted the parties to incorporate by reference their arguments from their memoranda addressing the District's Motion for Judgment as a Matter of Law into their Proposed Findings of Fact and Conclusions of Law.

         The District presented its defense over four days, calling six live witnesses, reading counter-designations of the depositions of plaintiffs' four deposition witnesses, and introducing exhibits.

         G. Briefing and Argument on the Court's Findings of Fact and Conclusions of Law

         After the close of the first phase of trial, the Court ordered the parties to “specifically address liability, causation, and the propriety of maintaining a class under Fed.R.Civ.P. 23.” (Order, Nov. 15, 2016, ECF No. 227, at 1.) Thereafter, the parties submitted simultaneous Proposed Findings of Fact and Conclusions of Law (Pls.' Proposed FF&CL, Jan. 30, 2017, ECF No. 232; Def.'s Proposed FF&CL, Jan. 30, 2017, ECF No. 233) and simultaneous responses to the opposing party's Proposed Findings of Fact and Conclusions of Law. (Pls.' Response to Def.'s Proposed FF&CL, March 10, 2017, ECF No. 239; Def.'s Response to Pls.' Proposed FF&CL, March 10, 2017, ECF No. 239.)

         On July 20, 2017, the Court held oral argument. Prior to the hearing, the Court posed specific questions and ordered the District to produce some updated information regarding evidence that had been admitted at trial. (Notice to Counsel, July 12, 2017, ECF No. 248; see Def.'s Response to Order of the Court, July 24, 2017, ECF No. 252.)[7] The first question related to causation:

How should the Court analyze the argument that factors beyond the District's control resulted in the plaintiffs' unjustified segregation?
i. Under ADA and/or Rehabilitation Act case law;
ii. As a question of commonality under Rule 23(a);
iii. As an issue of redressability; or
iv. As a matter of the third Olmstead factor-”the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” 527 U.S. 581, 587 (1999).

(Notice to Counsel at 1.) The parties could not agree on a governing legal standard, nor could they cite any relevant case law involving an Olmstead class action.

         The District stated that “[t]he standard is whether the District is administering its Medicaid program in the least restrictive setting appropriate when considering the state's resources.” (Hrg. Tr., July 20, 2016, at 6:8-15.) The District further argued that, without plaintiffs having identified a “uniform policy or practice, ” plaintiffs' claims should fail. (See id. at 8:12-20.) In response, plaintiffs argued that the causation standard is “substantial factor, ” i.e., plaintiffs must prove that the District's deficient policy or practice with respect to transition services was a substantial factor in causing the class members' segregation. (Id. at 23:15-25) Plaintiffs stated that the “substantial factor” causation standard “is in the Department of Justice's guidance on how to implement the integration mandates.” (Id.; see Pls.' Opp'n to Def.'s Motion for Judgment as a Matter of Law at 5, Oct. 28, 2016, ECF No. 225.)[8]

         In addition to grappling with identifying the appropriate legal standard for analyzing causation, the Court has, since the inception of this case, expressed its concern about the existence of barriers beyond the District's control that have resulted in the class members' inability to move out of nursing facilities. The gravamen of the District's position has consistently been that the lack of available, affordable, and accessible housing is the real reason that class members have not been able to move out of nursing facilities to receive long-term care in the community. Plaintiffs, for their part, have maintained that housing is not a barrier, nor is it the cause of class members' institutionalization. Both parties, however, agree that the supply of public and subsidized housing is under the control of the D.C. Housing Authority (“DCHA”), which is an independent authority not subject to the control of the District.

         At the very first Status Conference, the Court asked plaintiffs where the putative class members would live if they received long-term care outside of a nursing facility. Plaintiffs represented that the supply of accessible, affordable housing was not an issue, but that class members needed assistance securing the required documents to apply for housing. (See 4/29/2011 Status Conf. Tr. at 5:16-21 (“[A]s an initial matter, people would obviously have to have homes to live in. . . . [T]he good news . . . is that there are hundreds of wheelchair accessible units available in the District of Columbia now.”); id. at 7:17-20 (“People have to apply for the units and go through the application process, but they need assistance as part of that process to reestablish documentation, their identification.”).)

         Plaintiffs further represented that housing was not a barrier for many of the putative class members. According to plaintiffs, many class members “have houses already. They have apartments. They have homes, they have families. But what their families don't have is the capacity to provide the home care necessary to support them, and they don't have capacity to help to make physical accommodations to their houses so that people can be wheeled in.” (Id. at 17:5-11.)

         At the January 7, 2013 hearing, the Court pointed out that it had no power to order the District to create new housing, even if that is what would solve class members' institutionalization. Plaintiffs responded that they were not asking the District “to provide the housing.” (1/7/2013 Hrg. Tr. at 16:1.) Rather, plaintiffs maintained that “there are housing resources in the District of Columbia that people with disabilities who are Medicaid recipients can access. But they can't do it from where they sit in a nursing home.” (Id. at 16:2-5.) Rather than a lack of housing, plaintiffs argued that class members remained in nursing facilities because they were unable to “[g]et their driver's license, fill out the applications, get on the wait list, all the things that are barriers that are keeping our class members unnecessarily segregated.” (Id. at 63:8-11.)

         At the December 11, 2013 hearing, the Court again brought up the causation issue that had been looming from the outset of the litigation. The Court reasoned that it would have to resolve this as a factual issue. (See Hrg. Tr., Dec. 11, 2013, at 3:7-14.) Plaintiffs again maintained that the lack of transition services, not housing, was the problem:

[Plaintiffs are] not asking DC to provide the housing through this lawsuit, but there are available housing vouchers and there are accessible housing units in the District of Columbia. In order to make that application, you need identification documents, you need the application, you need to fill out the application, you need to track the application that's been filled out proper. Which is what a lot of our plaintiffs are doing.

(Id. at 13:24-14:7.)

         The Court also reminded plaintiffs that they have the burden to demonstrate that any injunction would solve class members' institutionalization. The Court noted that it “would have to find by [a] preponderance of the evidence [that plaintiffs] have shown that the absence of transition services means the person is stuck, not the inability to have a house, [a] place to live [in].” (Id. at 46:25-47:3.) The Court asked plaintiffs, “[h]ow are you going to prove at trial that if we beef up the services that you're actually going to succeed in getting people out. You have to prove causation. And that gets down to the old housing problem.” (Id. at 33:8-12.)

         Plaintiffs responded that expert testimony is “how we would prove a big part of that case. Because this is not rocket science.” (Id. at 33:15-17.) Using then-named-plaintiff Jacqualyn Thorpe as an example, plaintiffs doubled down on their argument that housing presented no insurmountable barrier to class members: “The fact is, you know, if people were assisting Miss Thorpe and other people to secure the necessary documents, applications, different things to get housing, Miss Thorpe, you know, could get housing.” (Id. at 61:20-23.)

         FINDINGS OF FACT

         As explained above, the trial focused on the current state of the District's efforts to comply with Olmstead's integration mandate, [9] and whether there were specific, concrete deficiencies in the District's transition services that “represent[ed] the sort of systemic failure that . . . constitute[d] a policy or practice affecting all members of the class in the manner Wal- Mart requires for certification. In re District of Columbia, 792 F.3d at 100 (citing DL I, 713 F.3d at 126, 128).

         I. PLAINTIFFS' WITNESSES

         Plaintiffs offered testimony from the following named plaintiffs, former named plaintiffs, and two class members, either live, by deposition, or through a guardian:

         A. Jacqualyn Thorpe

         1. On September 13, 2016, plaintiffs read excerpts of Jacqualyn Thorpe's March 7, 2013 deposition. The District read counter-designations of Ms. Thorpe's deposition in the afternoon of November 9, 2016, and plaintiffs read additional designations in response to the District's counter-designations on the same day.

         2. Ms. Thorpe, who was formerly a named plaintiff, is now deceased. (Joint Pretrial Statement, Appendix B, at 3.)[10] Ms. Thorpe was a Medicaid recipient. (Trial Tr., Sept. 13, 2016, a.m., at 15:24-16:1.) Ms. Thorpe was physically disabled and needed a wheelchair. (Id. at 16:9-22.) She needed assistance getting in and out of the wheelchair to get into bed, cooking, and getting in and out of the bathtub. (Id. at 16:23-17:22.) However, Ms. Thorpe did not need assistance using a phone or filling out paperwork. (Id. at 19:9-20.)

         3. As of March 2013, Ms. Thorpe resided at Deanwood Rehabilitation Center in Washington, D.C. (Id. at 14:2-3.) At the time of her March 2013 deposition, Ms. Thorpe had resided in that nursing facility for approximately five years. (Id. at 15:5-6.) Ms. Thorpe wanted to move out of the nursing facility into the community. (Id. at 23:8-10.)

         4. Prior to moving to the nursing facility, Ms. Thorpe lived with her sister in the community. (Id. at 15:13-15.) She moved to the nursing facility because of a worsening medical condition that impaired her mobility. (Id. at 15:18-23.) Ms. Thorpe believed that she would eventually return to live with her sister, but her sister died. (Id. at 29:10-12.)

         5. Although Ms. Thorpe wanted to move out of the nursing facility, she agreed that the “lack of an identified place to move is the prior reason why [she was] still in the nursing home.” (Trial Tr., Nov. 9, 2016, a.m., at 17:19-22.) She did not know where she would move to. (Trial Tr., Sept. 13, 2016, a.m., at 25:14-17.) She had not visited any housing options, and she was not aware of what housing was available. (Id. at 27:21, 28:3-5.)

         6. Ms. Thorpe spoke to her social worker about moving to the community. (Id. at 28:7-12.) She did not ask for information on housing, because she was initially planning on moving back in with her sister. (Trial Tr., Nov. 9, 2016, a.m., at 11:6-12.) Ms. Thorpe knew of one or two meetings about community-based options held at her nursing facility. (Trial Tr., Sept. 13, 2016, a.m., at 30:25-31:12.) Ms. Thorpe spoke to another nursing-facility staff member about applying for public housing and submitted her application. (Id. at 31:13-32:22.) She also spoke with a transition coordinator from the District's Money Follows the Person (“MFP”) grant program, who had apparently been notified by Ms. Thorpe's social worker that she wanted to move to community care. (Id. at 32:23-11.)[11]

         B. Larry McDonald

         7. Larry McDonald testified live on September 13, 2016. “As of July 25, 2016, Plaintiff Larry McDonald had at least one physical disability and required assistance with at least two activities of daily living.” (Joint Pretrial Statement, Appendix A, Stipulated Facts ¶ 18 (“Stipulated Facts”).) At the time of trial, Mr. McDonald had been living in a District nursing facility for approximately 12 years, since September 2004. (Trial Tr., Sept. 13, 2016, a.m., at 39:7-16.)

         8. Mr. McDonald does not have housing in the community. (Id. at 65:24-67:18.) His nephew had a private family home, but he would not allow Mr. McDonald to move in with him because of Mr. McDonald's drug history. (Id. at 67:4-5; Trial Tr., Oct. 7, 2016, p.m., at 29:12- 20 (Newland).)

         9. As of the time of trial, Mr. McDonald was in contact with social workers at the nursing home and employees of the District, who were “working on papers” for him to transition to the community. (Trial Tr., Sept. 13, 2016, a.m., at 56:2-58:12.)

         C. Lavondia Carter

         10. Excerpts of Lavondia Carter's April 23, 2013 deposition were read into the record on September 13, 2016. On November 15, 2016, the District read counter-designations of Ms. Carter's deposition, and on the same day, plaintiffs read additional designations in rebuttal to the District's counter-designations.

         11. Ms. Carter, formerly a named plaintiff, is now deceased. (Notice of Death, May 28, 2013, ECF No. 105.) At the time of her deposition, Ms. Carter was living in a District nursing facility. (Trial Tr., Sept. 13, 2016, a.m., at 71:9-11.) She had been living there since April 2011. (Id. at 71:12-16.) Ms. Carter died on May 20, 2013. (Notice of Death at 1.)

         12. Ms. Carter did not have housing in the community when she was seeking to transition to community-based care. (Trial Tr., Sept. 13, 2016, a.m., at 76:21-24.) She previously lived on her own in the community. (Id. at 71:17-25.) She wanted to live in the nursing facility during her recovery from an illness. (Trial Tr., Nov. 15, 2016, p.m., at 59:16-24.) She gave up her apartment in July 2011, 3 months after she moved to the nursing home, because she couldn't pay her rent. (Trial Tr., Sept. 13, 2016, a.m., at 75:1-10.) In addition to an apartment, she needed a home health aide. (Id. at 76:24-25.) She did not actively try to move out of the nursing home at first; instead she “just waited around to see if [she] could find another residence.” (Trial Tr., Nov. 15, 2016, p.m., at 61:8-15.) At first, there were no openings at her former residence so she “just left it alone.” (Id. at 61:22-62:1.) She testified that she would need a wheelchair accessible apartment. (Id. at 62:9-18.) Nevertheless, she temporarily moved back into her former residence, which was not wheelchair accessible. (Id. at 62:9-18.)[12]

13. Ms. Carter worked with the District to move out of the nursing home. (Trial Tr., Sept. 13. 2016, a.m., at 78:14-17.) She was a winner of the 2013 MFP lottery. (Id. at 77:16-24.) She was told to have her mother go look at potential apartments for her or to use Metro Access to see the apartments herself. (Id. at 79:3-10.) Ms. Carter did not want to use Metro Access because she would have to “wait so long just to get back.” (Id. at 79:9-10.)

         D. Orit Simhoni

         14. Orit Simhoni testified on September 13, 2016. She is a court-appointed guardian, occupational therapist, and District case worker for the EPD waiver. (Id. at 81:11-18.) As a legal guardian, she is an advocate on ...


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