UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.J., et al.,
Plaintiffs,
v. Civ. No. 1:18-cv-1901 (EGS)
THE DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, M.J. and L.R., 1 two children who suffer from
mental illnesses, and University Legal Services, Inc., the
designated protection and advocacy program for such individuals
in the District of Columbia, bring this action on behalf of
themselves and a putative class of mentally-ill children who
allegedly have been unnecessarily institutionalized or face
unnecessary institutionalization. In their complaint, plaintiffs
allege that the District of Columbia (“District of Columbia” or
“District”) and its officials (collectively “Defendants”) have
failed to provide intensive community-based services, in favor
of admitting children to residential facilities even though the
children are eligible for community-based treatment. Plaintiffs
1 Pursuant to Federal Rules of Civil Procedure and Local Rule
5.4(f)(2), the minor individual plaintiffs are identified by
their initials.
seek declaratory and injunctive relief based on alleged
violations of federal law including the Medicaid Act 42 U.S.C.
§ 1396d et seq. and the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12131, et seq.
Pending before the Court is defendants’ motion to dismiss
the complaint. Defendants argue that plaintiffs do not have
standing to bring this action, and, in the alternative, that
plaintiffs have failed to state a cognizable claim. Upon
consideration of the parties' memoranda, the applicable law, and
for the following reasons, defendants’ motion to dismiss is
DENIED.
I. Background
Plaintiffs M.J. and L.R. are Medicaid-eligible children
with mental health disabilities. Compl., ECF No. 3 ¶ 1. Both
plaintiffs as well as all members of the plaintiffs’ putative
class have a mental health disability by virtue of having a
serious emotional disturbance. Id. ¶ 13. Under District of
Columbia law, a child has a serious emotional disturbance when a
child has a mental health condition and that condition causes a
functional impairment. Id. ¶ 14 (citing D.C. Mun. Regs. Tit. 22-
A, § 1201.l). The functional impairment also needs to, on an
episodic, recurrent or continuous basis, substantially limit the
child’s functioning in family, school, or community services; or
limit the child from achieving or maintaining one or more
2
developmentally appropriate social, behavioral, cognitive,
communicative, or adaptive skills. Id. Because the children are
“individuals with a disability” they are also protected by the
ADA and the Rehabilitation Act. Id. (citing 42 U.S.C. § 12102;
29 U.S.C. § 705(20)(B)).
Plaintiff University Legal Services is an independent, non-
profit corporation organized under the laws of the District of
Columbia that does business under the name Disability Rights
D.C. at University Legal Services (“Disability Rights D.C.”).
Compl., ECF No. 3 ¶ 15. Disability Rights D.C. is the designated
protection and advocacy program for individuals with
disabilities for the District of Columbia. Id. The organization
is authorized under the Protection and Advocacy for Individuals
with Mental Illness Act, 42 U.S.C. § 10801 et seq., and the
Protection and Advocacy for Individuals with Developmental
Disabilities Act, 42 U.S.C. § 15041 et seq., to bring this
action on behalf of the named individual plaintiffs and members
of the putative class, who are its constituents. Id.
Defendant District of Columbia is a public entity covered
by Title II of the ADA, and, as a participant in the federal
Medicaid program, its agencies receive federal financial
assistance through that and other federal programs. Id. ¶ 16.
Defendant Muriel Bowser is the Mayor of the District of Columbia
and supervises the official conduct of the Departments of Health
3
Care Finance (“DHCF”) and Behavioral Health (“DBH”). Id. ¶ 17.
Defendants Wayne Turnage and Tanya Roster are the Directors of
DHCF and DBH respectively. Id. ¶¶ 18–19. All four defendants
play a role in ensuring the District is in compliance with
federal law. Id. ¶¶ 16–19.
Under the Medicaid Act, a state must provide “early and
periodic screening, diagnostic, and treatment [“EPSDT”] services
(as defined in subsection (r)) for individuals who are eligible
under the plan and are under the age of 21.” 42 U.S.C.
§ 1396d(a)(4)(A). Those services are defined as screening
services (including physical exams, immunizations, health and
developmental health history review, and laboratory tests),
vision services, dental services, hearing services, and “[s]uch
other necessary health care, diagnostic services, treatment, and
other measures . . . to correct or ameliorate defects and
physical and mental illnesses and conditions discovered by
screening services, whether or not such services are covered
under the State plan.” 42 U.S.C. § 1396d(r)(5). Section 1396d(a)
describes a list of services which, if medically necessary, must
be provided to EPSDT beneficiaries.
Plaintiffs allege that defendants have never created a
functioning system for providing intensive community-based
services (“ICBS”) to District of Columbia children who are
entitled to receive it. See Compl., ECF No. 3 ¶ 38. ICBS is
4
comprised of four components: (1) Intensive Care Coordination,
(2) Intensive Behavior Support Services, (3) Mobile Crisis
Services; and (4) Therapeutic Foster Care. 2 See Id. ¶ 39.
Plaintiffs allege that these components are unique and are
collectively necessary to meet the health care needs of eligible
children. See id. ¶¶ 38–41.
The first component, intensive care coordination, is “an
intensive form of case management in which a provider convenes a
‘child and family team,’ including the child, the child’s
family, service providers, and other individuals identified by
the family, to design and supervise a plan that provides and
coordinates services for children with mental health
disabilities.” Id. ¶ 39. The second component, intensive
behavior support services, consists of “individualized
therapeutic interventions provided on a frequent and consistent
basis that are designed to improve behavior and delivered to
children and families in any setting where the child is
naturally located.” Id. The third component, mobile crisis
services, involves a “mobile, onsite, in-person response,
available at any time or place to a child experiencing a crisis,
for the purpose of identifying, assessing, and stabilizing the
2 Therapeutic foster care is not at issue in this case; the
plaintiffs have not made any allegations regarding this
provision. See generally, Pls.’ Compl., ECF No. 3.
5
situation and reducing any immediate risk of harm.” Id. Mobile
crisis services may be “delivered in the child’s home, school,
or community.” Id.
Plaintiffs’ complaint alleges that the District of Columbia
has failed to offer the plaintiff children all of the required
components of ICBS, which are collectively necessary to meet
their mental health needs. Compl., ECF No. 3 ¶¶ 38–48. As a
result, plaintiffs allege that the children are deprived of the
ICBS that they need to improve their conditions and avoid
unnecessary institutionalization or the serious risk of
institutionalization. Id. ¶¶ 49–65. Plaintiffs therefore bring
this action for violations of the ADA, Section 504 of the
Rehabilitation Act, and violations of the Medicaid Act enforced
through 42 U.S.C. § 1983. Id. ¶¶ 66–73.
Defendants have moved to dismiss plaintiffs’ complaint
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction and 12(b)(6) for failure to state a
claim. See generally Defs.’ Mot., ECF No. 21. Plaintiffs have
filed their opposition to the motion to dismiss. Pls.’ Opp’n,
ECF No. 29. And defendants have filed a reply thereto. Defs.’
Reply, ECF No. 33. This motion is ripe for adjudication.
II. Standard of Review
A. Rule 12(b)(1): Subject Matter Jurisdiction
“A federal district court may only hear a claim over which
6
[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court's
jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37 (D.D.C.
2017)(citation and internal quotation marks omitted). To survive
a Rule 12(b)(1) motion, the plaintiff bears the burden of
establishing that the court has jurisdiction by a preponderance
of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561, (1992). Because Rule 12(b)(1) concerns a court's ability to
hear a particular claim, “the court must scrutinize the
plaintiff's allegations more closely when considering a motion
to dismiss pursuant to Rule 12(b)(1) than it would under a
motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S.
Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C.
2011)(citations omitted). In so doing, the court must accept as
true all of the factual allegations in the complaint and draw
all reasonable inferences in favor of the plaintiff, but the
court need not “accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual
allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C.
2001).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1),
the court “may consider such materials outside the pleadings as
it deems appropriate to resolve the question [of] whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections
7
& Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Faced with
motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6), a
court should first consider the Rule 12(b)(1) motion because
“[o]nce a court determines that it lacks subject matter
jurisdiction, it can proceed no further.” Ctr. for Biological
Diversity v. Jackson, 815 F. Supp. 2d 85, 90 (D.D.C. 2011)
(citations and internal quotation marks omitted).
B. Rule 12(b)(6): Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)(internal quotation marks omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim is facially plausible when the facts pled in the complaint
allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The
standard does not amount to a “probability requirement,” but it
8
does require more than a “sheer possibility that a defendant has
acted unlawfully.” Id.
“[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotation marks omitted). In addition, the court must
give the plaintiff the “benefit of all inferences that can be
derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994).
III. Analysis
Defendants argue that the claims in this case should be
dismissed under Federal Rule 12(b)(1) because plaintiffs M.J.,
L.R., and Disability Rights D.C. lack standing, and
alternatively that the case should be dismissed under Federal
Rule 12(b)(6) because plaintiffs have failed to state a claim.
The Court discusses each argument in turn.
A. Motion to Dismiss for Lack of Jurisdiction
To establish subject matter jurisdiction a court must find
that at least one plaintiff has standing to bring this case
under Article III of the United States Constitution. Mendoza v.
Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). To have standing, a
plaintiff must have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
9
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016). “To establish injury in fact, a plaintiff must show
that he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Id. (citation
omitted). “The party invoking federal jurisdiction bears the
burden of establishing these elements.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)(citations omitted). Because
the elements of standing are not “mere pleading requirements but
rather an indispensable part of the plaintiff's case,” they each
“must be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the
litigation.” Id.
1. M.J. has Standing
Defendants argue that M.J. lacks an injury in fact because
she has previously declined the type of services she now seeks
in this suit. Defs.’ Mot., ECF No. 21 at 19–20. 3 Defendants also
argue that M.J.’s claims are moot because any legally cognizable
interest in the outcome of the litigation was extinguished once
3 When citing to electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
page number of the filed document.
10
M.J. refused services. Id. In support of this argument,
defendants provide a declaration from Patrina Anderson, Director
of the Linkage and Assessment Division at the District of
Columbia Department of Behavioral Health. See Decl. of Patricia
Anderson (“Anderson Decl.”), ECF No. 21-4. Ms. Anderson states
that M.J. is currently receiving Level II community-based
interventions (“CBI”), and that M.J.’s mother declined High
Fidelity Wrap Around services 4 after a referral was made to DBH
by the Children’s National Hospital Center. Id. ¶¶ 3–4. She also
states that M.J.’s mother inquired about the wrap around
services at a later date but then told M.J.’s CBI worker that
she did not want the services. Id. ¶¶ 6-9.
Plaintiffs deny that the wrap around and CBI services
qualify as ICBS because they are short term and not equivalent
to the “intensive behavior support services” that are a core
component of ICBS. Pls.’ Opp’n, ECF No. 29 at 18. Moreover, even
if these wrap around services qualified, plaintiffs dispute that
M.J.’s mother has refused these services. Id. M.J. provides a
declaration from her mother, J.J., in which she explains that
she has sought to obtain the services offered by the City and
that her initial refusal was based on a misunderstanding of the
nature of the High Fidelity Wrap Around services that were
4 High Fidelity Wrap Around services is an intensive form of case
management. Compl., ECF No. 3 ¶¶ 39–41.
11
offered to her. See Redacted Decl. of J.J. (“J.J. Decl.”), ECF
No. 40 ¶ 5. M.J.’s mother stated that, after receiving a more
fulsome explanation of the services, she requested that M.J.
receive those services. Id. ¶ 7. Her declaration also details
several efforts that she has made to obtain High Fidelity Wrap
Around services for M.J. Id. ¶¶ 8–14. J.J. maintains that she is
still interested in receiving these services for her daughter.
Id. ¶ 15.
The Court is persuaded that M.J. has demonstrated that she
has alleged facts sufficient to show that she has suffered an
injury in fact. As an initial matter, because M.J. has alleged
that High Fidelity Wrap Around services and CBI are short-term
backstops which fall outside the category of ICBS, defendants’
argument that M.J.’s refusal of these services precludes an
injury in fact in this case is unpersuasive. M.J. has alleged
that these types of short-term programs are not as intensive as
ICBS requires and therefore have led to repeated disruptions to
her education and periods of institutionalizations in hospitals.
See Compl., ECF No. 3 ¶¶ 51, 54–56. In light of those
allegations, it is irrelevant if M.J. refused those services
because they arguably are not categorized as ICBS.
Moreover, even if the services did constitute ICBS, the
issue of whether M.J. has requested High Fidelity Wrap around
services is a factual dispute. In deciding a motion to dismiss,
12
a court “may consider such materials outside the pleadings as it
deems appropriate to resolve the question [of] whether it has
jurisdiction to hear the case.” Scolaro, 104 F. Supp. 2d at 22.
M.J.’s mother’s declaration explains that initially she did not
receive an accurate explanation of what the wrap around services
entailed and therefore believed that they were duplicative of
the services M.J. was already receiving. J.J. Decl., ECF No. 40
¶ 5. However, once she was informed that the services were not
duplicative, she declared that she has repeatedly tried to
obtain those services for M.J. Id. ¶¶ 8–14. Drawing all
reasonable inferences in favor of M.J., as the Court must do at
this stage of the litigation, the Court accepts the allegation
that M.J.’s mother has not refused services. 5 See Rann, 154 F.
Supp. 2d at 64 (“In reviewing a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), the court must
accept all the complaint's well-pled factual allegations as true
and draw all reasonable inferences in the plaintiff's favor.”)
The Court finds that M.J.’s allegations--that defendants’
ongoing failure to provide requested ICBS has subsequently led
to unnecessary institutionalizations--is sufficient to meet the
injury in fact requirement. Defendants do not dispute the other
5 Similarly, because the plaintiffs have sufficiently alleged
that M.J. has requested, but has not received, these services
the government’s mootness argument also fails.
13
two requirements for standing, redressability and causation, and
it appears to the Court that these components have been
adequately alleged. Accordingly, M.J. has standing to pursue her
claims.
2. L.R. has Standing
Defendants next argue that plaintiff L.R. lacks standing to
pursue her claims because she was in the custody of the
Department of Youth Rehabilitation Services (“DYRS”) and
therefore not eligible to receive services from Medicaid. Defs.’
Mot. ECF No. 21 at 20–21. In other words, L.R. cannot suffer an
injury because the defendant cannot provide her services to
which she claims she is entitled. Id. In support of this
argument, defendants provide a DHCF transmittal for
“incarcerated individuals” which outlines the policy for claims
by individuals in certain DYRS facilities. Id. (citing DHCF
Transmittal, ECF No. 21-5 at 1). Similarly, defendants argue
that because L.R. is under DYRS custody by court order, any lack
of ICBS is not attributable to the defendants, but rather to
legal process. Id.
The parties’ disagreement stems from dueling
interpretations of the DHCF transmittal. The transmittal
“clarifies existing Federal law and policy pertaining to the
availability of Medicaid Federal Financial Participation (“FFP”)
for medical services provided to children . . . who are confined
14
to the Youth Services Center (YSC) and New Beginnings Youth
Development Center.” DHCF Transmittal, ECF No. 21-5 at 1. The
transmittal explains that for children in those two institutions
“Medicaid cannot pay and providers should not submit claims for
outpatient health care services provided to these children.” Id.
at 2. This is because “Federal Medicaid law and regulations
prohibit payment for medical services provided to a child or
youth when they are ‘inmates of a public institution.’” Id. at 1
(citing 42 C.F.R. § 435.1009).
The Court is persuaded that L.R. has demonstrated that she
has alleged facts sufficient to show that she has suffered an
injury in fact. By its own terms, the transmittal only applies
to two facilities--the Youth Services Center and the New
Beginnings Development Center. Id. at 1. L.R. was not in either
facility when this suit was filed and therefore even if there
was a prohibition on Medicaid eligibility, that prohibition
would not cover L.R. See Pls.’ Opp’n, ECF 29 at 22; see also
Redacted Declaration of Jane Brown (“Brown Declaration”), ECF
No. 41 at 8–9. Additionally, L.R. was released from DYRS custody
in late October, and therefore there is presently no question as
to her eligibility for Medicaid. See id. at 7. Therefore, since
she is not receiving services that she has requested and that
she alleges defendants are obligated to provide, she has an
injury in fact. Defendants do not dispute the other two
15
requirements for standing, redressability and causation, and it
appears to the Court that these components have been adequately
alleged. Accordingly, L.R. has standing to pursue her claims. 6
B. Motion to Dismiss for Failure to State a Claim
Defendants argue that the plaintiffs have failed to state
a claim for violations of the ADA, the Rehabilitation Act, and
failed to state a claim for a violation of 42 U.S.C. § 1983.
1. ADA and Rehabilitation Act Claims
The ADA and Section 504 of the Rehabilitation Act 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.” Brown v. District of Columbia, 322 F.R.D. 51, 53
(D.D.C. 2017)(overruled on other grounds by Brown v. District of
Columbia, 2019 WL 2895992 (D.C. Cir. July 5, 2019)).
Specifically, the ADA mandates 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
6 Because the Court has found at least one of the plaintiffs has
standing in this case the Court has subject matter jurisdiction
over the action and need not address defendants’ arguments
related to Disability Rights D.C.’s standing. See Mendoza v.
Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014)(“To establish
jurisdiction, the court need only find one plaintiff who has
standing.”).
16
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. This requirement is commonly referred to as the
“integration mandate” since it requires the government to ensure
those who suffer from a disability are not unnecessarily
excluded from society. See Olmstead v. L.C. ex rel. Zimring, 527
U.S. 581, 583 (1999)(stating “[i]nstitutional placement of
persons who can handle and benefit from community settings
perpetuates unwarranted assumptions that persons so isolated are
incapable or unworthy of participating in community life.”)
In Olmstead, the Supreme Court elaborated on the
integration mandate. The Court considered the claims of two
women who were institutionalized in a residential mental health
facility even though treatment providers at the facility
concluded that the women could be appropriately treated in the
community. Id. at 593. The Olmstead plaintiffs claimed that in
light of the recommendation that they could be treated in the
community, their continued institutional placements violated
Title II of the ADA. Id. at 594. The Court held that
“[u]njustified isolation . . . is properly regarded as
discrimination based on disability.” Id. at 597. Although the
Court explained that it did not “hold 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,’” it
17
made clear that “States must adhere to the ADA's
nondiscrimination requirement with regard to the services they
in fact provide.” Id. at 603 n.14. The Court held that
governmental entities are required to provide community-based
services to individuals with disabilities when: (1) such
services are appropriate; (2) the individuals do not oppose
community-based services; and (3) the individuals’ placement in
a community-based setting can be reasonably accommodated,
considering the resources available to the entity and the needs
of others who are receiving those services. Id. at 607.
Defendants advance two arguments for why plaintiffs have
failed to state a claim for an alleged violation of the ADA’s
integration mandate. Defendants’ first argument is that
plaintiffs generally failed to allege an Olmstead violation
because they have not challenged the location of the services,
but rather the nature of the services that the District
provides. Defs.’ Mot. ECF No. 21 at 24–25. In other words,
defendants argue, plaintiffs are challenging a standard of care
but not whether the care they are receiving is in the most
integrated setting. Id. Defendants’ second argument is that M.J.
and L.R. cannot meet all of the three requirements articulated
in Olmstead. Id. at 26
Defendants’ first argument fails because it is based on a
fundamental misunderstanding of plaintiffs’ claims. Plaintiffs
18
have alleged that because defendants have failed to provide
required services in their homes, or in the community, they are
unnecessarily institutionalized. Compl., ECF No. 3 ¶ 48. And
because defendants have failed to provide those services,
plaintiffs argue, plaintiffs are unnecessarily segregated into
residential institutions. Id. Plaintiffs’ allegations are
sufficient to state claims under Olmstead. See 527 U.S. at 599.
Olmstead itself made clear that “unjustified institutional
isolation of persons with disabilities is a form of
discrimination.” Id. at 600. The Court explained that the
recognition of this principle reflects the understanding that
“institutional placement of persons who can handle and benefit
from community settings perpetuates unwarranted assumptions that
persons so isolated are incapable or unworthy of participating
in community life” and that “confinement in an institution
severely diminishes the everyday life activities of individuals,
including family relations, social contacts, work options,
economic independence, educational advancement, and cultural
enrichment.” Id. at 601–02.
Plaintiffs have alleged these exact harms and others. They
allege that they suffer “curtailed life opportunities due to
[d]efendants’ continuing, longstanding failure to satisfy
federal laws requiring the District of Columbia to provide
medically necessary services that prevent unnecessary
19
institutionalization.” Compl., ECF No. 3 ¶ 2. Olmstead stands
for the proposition that it is a violation of the ADA, the
Rehabilitation Act, and their implementing regulations to
required disabled individuals to obtain treatment in residential
institutions when such individuals have the ability and desire
to receive treatment in more integrated community settings.
This is exactly what the plaintiffs allege--that the failure of
the State to provide required services forces them to reside in
institutions even though they are able and willing to engage in
community-based treatment. 527 U.S. at 599. At this stage of the
litigation, allegations that defendants failed to provide
mandated services, which has the effect of segregating
plaintiffs, are sufficient to state a claim of discrimination
under Olmstead.
Defendants’ second argument is that the plaintiffs cannot
meet all the requirements set forth in Olmstead. Again, to make
out a claim under Olmstead, a plaintiff must allege that (1) the
services requested are appropriate; (2) the individuals do not
oppose community-based services; and (3) the individuals’
placement in a community-based setting can be reasonably
accommodated. Olmstead, 527 U.S. at 607. Defendants argue that
neither plaintiff can meet all of these requirements.
Defendants argue that M.J. fails at the first prong because
she has failed to allege that during the times she was
20
institutionalized, community-based treatment would have been an
appropriate alternative. Defs.’ Mot. ECF No. 21 at 25–26.
However, it is not clear whether Olmstead requires that a
plaintiff allege a specific determination by a medical
professional that the plaintiff is suitable for community-based
treatment. In Olmstead, the Court stated that “the State
generally may rely on the reasonable assessments of its
professionals in determining whether an individual ‘meets the
essential eligibility requirements’ for habilitation in a
community-based program.” Olmstead, 527 U.S. at 602 (citing 28
CFR § 35.130(d))(emphasis added). The Court did not state that a
determination by a State’s own professionals is the only way
that a plaintiff may establish that the first prong is
satisfied. Accordingly, courts have held that a plaintiff need
not allege that a treatment provider has explicitly recommended
that community-based treatment is appropriate. See Stemiel v.
Wernert, 823 F.3d 902, 915–16 (7th Cir. 2016)(whether community
based treatment was appropriate could be demonstrated by
allegations that the state had previously allowed plaintiffs
more community interaction); Long v. Benson, No. 08–0026, 2008
WL 4571904, at *2 (N.D. Fla. 2008)(refusing to limit class to
individuals whom state professionals deemed could be treated in
the community, because a State “cannot deny the [integration]
right simply by refusing to acknowledge that the individual
21
could receive appropriate care in the community. Otherwise the
right would, or at least could, become wholly illusory.”).
This is especially the case when a plaintiff alleges that
the state failed to provide required community-based treatment
programs. This is because a plaintiff would not have an occasion
to be assessed for programs that should, but do not, exist. At
this stage of the litigation, plaintiffs have alleged that they
are able to live in their homes and communities, if the District
provided the required treatment; these allegations are enough to
meet the pleading standards. At a later stage, plaintiffs will
be required to provide evidence to back up their claims that
community-based treatment was appropriate, but that requirement
will not be imposed on them at this stage of the proceedings.
See Boyd v. Steckel, 753 F. Supp. 2d 1163 (M.D. Ala.
2010)(stating dispute regarding whether plaintiff was eligible
for community based-services should be resolved “at summary
judgment or trial”)
As for L.R., defendants argue she cannot meet the third
prong of the Olmstead test, whether an individuals’ placement in
a community-based setting can be reasonably accommodated,
because she is in custody pursuant to court order. However,
plaintiffs have alleged that compliance with federal law that
requires defendants to provide ICBS services would not require a
fundamental alteration to defendants’ service system, which is
22
all that is required at this stage. See Compl., ECF No. 3 ¶ 70;
see, e.g., Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio
2002)(“[W]hether requested relief would entail a fundamental
alteration is a question that cannot be answered in the context
of a motion to dismiss . . . .”); Doe v. Sylvester, No. CIV. A.
99-891, 2001 WL 1064810, *6 (D. Del. Sep. 11, 2001)(stating
“[u]ltimate factual determinations” regarding reasonableness of
requested modification are “not for the court to decide in the
context of a motion to dismiss”). Therefore, the Court finds
that plaintiffs have stated a claim under the ADA and the
Rehabilitation Act.
2. Section 1983 Medicaid Act Claims
Defendants next argue that plaintiffs fail to state a claim
under Section 1983 for violations of the Medicaid Act. 7 In
precedent of long-standing, the Supreme Court has held that
Section 1983 is an available remedy for violations of federal
statutes. Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). To
determine municipal liability under Section 1983, a court must
conduct a two-step inquiry. Baker v. Dist. of Columbia, 326 F.3d
7 Although plaintiffs’ complaint refers to violations of the
federal “Medicaid Act,” the Medicaid statutory provisions are
found in Title XIX of the Social Security Act, codified at 42
U.S.C. § 1396, et seq. Violations of Title XIX of the Social
Security Act are properly enforced through 42 U.S.C. § 1983
which provides a cause of action for violations of federal law.
See Salazar v. District of Columbia,954 F. Supp. 278 (D.D.C.
1996).
23
1302, 1306 (D.C. Cir. 2003). First, a court must determine
whether the plaintiff establishes a predicate constitutional or
statutory violation. Id. If so, a court then determines whether
the complaint alleges that a custom or policy of the
municipality caused the violation. Id.; see also Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 694 (1978).
i. Plaintiffs Have Sufficiently Alleged a Statutory
Violation
The Medicaid Act mandates that a state provide “early and
periodic screening, diagnostic, and treatment services (as
defined in subsection (r)) for individuals who are eligible
under the plan and are under the age of 21.” See also 42 U.S.C.
§ 1396a(a)(43)(C). Those services are defined as screening
services (including a physical exam, immunizations, health and
developmental health history review, and laboratory tests),
vision services, dental services, hearing services, and “[s]uch
other necessary health care, diagnostic services, treatment, and
other measures . . . to correct or ameliorate defects and
physical and mental illness and conditions discovered by
screening services, whether or not such services are covered
under the State plan.” 42 U.S.C. § 1396d(r)(5); see also 42
C.F.R. § 440.40(b). EPSDT requires the State to screen eligible
children “to determine the existence of certain physical or
mental illnesses or conditions,” 42 U.S.C. § 1396d(r)(1)(A)(ii);
24
and the Act requires the State “to correct or ameliorate defects
and physical and mental illnesses and conditions discovered by
the screening services, whether or not such services are covered
under the State plan.” 42 U.S.C. § 1396d(r)(5). Section 1396d(a)
describes a list of services which, if medically necessary, must
be provided to EPSDT beneficiaries.
Plaintiffs allege that the failure to provide ICBS services
violates the EPSDT mandate. Compl., ECF No. 3 ¶ 72. They argue
that the District failed to make available the three critical
components of ICBS: (1) intensive care coordination; (2)
intensive behavioral support services; and (3) mobile crisis
services. Pls.’ Opp’n, ECF No. 29 at 33. Defendants argue that
plaintiffs have failed to allege a statutory violation. Although
defendants agree that the District is required to provide
certain services, they argue that plaintiffs have only
challenged how the services are administered and not that the
services have not been received. Defs.’ Mot., ECF No. 21 at 28–
29.
Plaintiffs’ allegations are sufficient to survive a motion
to dismiss. The defendants’ argument that plaintiffs take issue
with the delivery method of the services, not whether the
services are offered, is belied by plaintiffs’ complaint.
Plaintiffs allege that ICBS is “medically necessary to improve
[plaintiffs’] mental health conditions.” Compl., ECF No. 3 ¶ 38.
25
Plaintiffs allege that “there is no service provider in the
District that offers ICBS.” Id. ¶ 41. Plaintiffs go on to
identify the three components of ICBS that they allege
defendants have failed to provide: intensive care coordination,
intensive behavior support services, and mobile crisis services.
Id. ¶ 39. Plaintiffs acknowledge that although the District
provides “community-based intervention,” this intervention does
not include sufficiently intensive behavior support services.
Id. ¶ 43. In light of these allegations, defendants’ claim that
plaintiffs are merely alleging the delivery methods of the
interventions--not whether the interventions exist at all--is
factually inaccurate.
Defendants next argue that ICBS is not required by the
Medicaid Act because ICBS is not a required Medicaid service.
Defs.’ Reply, ECF No. 33 at 12. Defendants argue that plaintiffs
are instead required to specify exactly what treatments “they
believe the District is not providing” to have a cognizable
claim under the Medicaid Act. Id. However, as other courts have
noted, because the only limit placed on the provision of EPSDT
services is the requirement that they be “medically necessary,”
the scope of the EPSDT program is wide-ranging. Pediatric
Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d
472, 480 (8th Cir. 2002)(holding that Medicaid-eligible children
have “a federal right to early intervention day treatment when a
26
physician recommends such treatment”). Courts construing EPSDT
requirements have ruled that so long as a competent medical
provider finds specific care to be “medically necessary” to
improve or ameliorate a child's condition, the Medicaid statute
requires a participating state to cover it. See, e.g., Collins
v. Hamilton, 349 F.3d 371, 375–76 (7th Cir. 2003)(holding that
if a competent medical service provider determines a specific
type of care or service is medically necessary, a state may not
substitute a different service that it deems comparable).
Plaintiffs have identified three areas of treatment they
allege are required and that the defendants have failed to
provide. Compl., ECF No. 3 ¶ 38. They have alleged that ICBS is
medically necessary to improve their treatment and to ensure
they are not unnecessarily institutionalized. Id. Plaintiffs
also explain why the services provided fall short of that goal.
Id. ¶¶ 41–43. Defendants’ argument that plaintiffs fail to
allege that instances of services have been declined or not been
provided, but rather debate the effectiveness of the services
misses the point. The plaintiffs do not address the
effectiveness of the services provided, but rather allege that
the District fails to provide appropriate treatment
opportunities in the three areas that comprise ICBS services.
Id. 38–43. These allegations, if true, would form the basis for
a statutory violation of the EPSDT mandate because such services
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have been alleged to be medically necessary to ameliorate
plaintiffs’ mental health condition. See 42 U.S.C.
§ 1396d(r)(5). Accordingly, the plaintiffs have sufficiently
alleged a statutory violation.
ii. Plaintiffs’ Have Sufficiently Alleged a Custom or
Policy
To properly plead a municipal liability claim, a plaintiff
must also “allege[] that a custom or policy of the municipality
caused the violation.” Baker, 326 F.3d at 1306 (citing Monell,
436 U.S. at 694). There are four ways in which a plaintiff can
allege a custom or policy under Section 1983: (1) “the explicit
setting of a policy by the government that violates the
Constitution”; (2) “the action of a policy maker within the
government”; (3) “the adoption through a knowing failure to act
by a policy maker of actions by his subordinates that are so
consistent that they have become custom”; or (4) “the failure of
the government to respond to a need (for example, training of
employees) in such a manner as to show deliberate indifference
to the risk that not addressing the need will result in
constitutional violations.” Ryan v. District of Columbia, 306 F.
Supp. 3d 334, 341 (D.D.C. 2018)(citation omitted).
Plaintiffs have alleged several theories supporting the
claim that defendants have engaged in a custom or policy or
violating the EPSDT requirements, including that defendants
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knowingly and consistently failed to provide services under the
Medicaid Act and that defendants were deliberately indifferent
to plaintiffs’ rights under the Medicaid Act. See Pls.’ Opp’n
ECF No. 29 at 35; see also Compl., ECF No. 3 ¶ 73.
Applying the Baker analysis, the Court concludes that
plaintiffs’ allegations state a claim that the District
knowingly and consistently failed to provide services under the
Medicaid Act. The complaint alleges consistent failure to
provide ICBS, and it identifies numerous occasions on which
defendants were notified of deficiencies in their service system
for the plaintiff children through the efforts of families and
advocacy groups, defendants’ own data, and defendants’
discussions with plaintiffs’ counsel. See Compl., ECF No. 3, ¶¶
7-8, 44–48.
Furthermore, plaintiffs have sufficiently alleged that the
District demonstrated “deliberate indifference” to their rights
under the Medicaid Act. In support of this allegation,
plaintiffs cite to numerous public reports throughout the
complaint demonstrating that defendants were aware of the need
for comprehensive community-based care, and the inadequacy of
the services the District currently offers. See id. ¶¶ 23, 39,
41, 43, 45-56. These reports support the allegations that
defendants either were aware of or should have been aware of the
lack of the necessary mental health services in the District.
29
See, e.g., Jones v. Ritter, 587 F. Supp. 2d 152, 157-58 (D.D.C.
2008)(denying motion to dismiss Section 1983 claim where
plaintiff alleged the District was deliberately indifferent in
failing to train police officers when it was on notice of its
training deficiencies and failed to act); see also Byrd v. Dist.
of Columbia, 297 F. Supp. 2d 136, 139 (D.D.C. 2003)(stating
deliberate indifference is “determined objectively, by analyzing
whether the municipality knew or should have known of the risk
of . . . violations, and yet failed to respond as necessary.”)
(citations omitted) Accordingly, plaintiffs have sufficiently
alleged a Section 1983 claim that survives defendants' motion to
dismiss.
C. Motion to Dismiss Individual Defendants
The individual defendants, the Mayor of the District, the
Director of DBH, and the Director of DHCF, argue that the claims
against them should be dismissed because they are sued in their
official capacities and it is the District that is the real
party in interest. Defs.’ Mot., ECF No. 21 at 31–32. Defendants
are correct, and plaintiffs do not disagree, that plaintiffs'
claims against the individual defendants are duplicative of the
claims against the District. See Holmes–Ramsey v. District of
Columbia, 747 F. Supp. 2d 32, 42 (D.D.C. 2010)(“claims against
[District] officials in their official capacities are
effectively claims against the District of Columbia”); see also
30
Monell, 436 U.S. at 690 n. 55 (a suit against a municipal
official in his or her official capacity “generally represent[s]
only another way of pleading an action against an entity of
which an officer is an agent”).
However, plaintiffs argue that the individual defendants
will be responsible for the effective implementation of any
prospective declaratory or injunctive relief. Pls.’ Opp’n, ECF
No. 29 at 41. Precedent in this district recognizes that
although retaining a defendant in his or her official capacity
may be “redundant, there is no requirement that, because of the
equivalence, the public official defendant must be dismissed.”
See e.g., Owens v. District of Columbia, 631 F. Supp. 2d 48
(D.D.C. 2009). On balance, the Court is persuaded that because
of the lack of prejudice, there is no reason to dismiss the
redundant claims against the District's officials. Accordingly,
the Court DENIES the motion to dismiss the individual defendants
at this time.
IV. Conclusion
For the foregoing reasons, defendants’ motion to dismiss is
DENIED. An appropriate order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 25, 2019
31