Salazar v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OSCAR SALAZAR, et al.,
Plaintiffs,
v. Civil Action No. 93-452 (GK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
On September 2, 2014, Plaintiffs filed a Motion to Reverse
the Ruling in the Fair Hearing of Class Member Stevenson Denying
Reimbursement of Personal Care Aide Services [Dkt. No. 2007]; the
District of Columbia ("the District," "the Government" or
"Defendant") filed its Opposition on October 20, 2014 [Dkt.
No. 2019]; and Plaintiffs filed their Reply on November 14, 2014
[Dkt. No. 2023] Plaintiffs seek reversal of a decision ( "OAH
Opinion") by an Administrative Law Judge ("ALJ") of the District
of Columbia Office of Administrative Hearings ("OAH") granting in
part and denying in part Magnolia Stevenson's request for
reimbursement of certain medical expenses. Final Order on Cross-
Motions for Summary Adjudication ( "OAH Opinion"), Pls.' Ex. A [Dkt.
No. 2007-1]. For the reasons that follow, Plaintiffs' Motion shall
be denied.
I. BACKGROUND
A. Historical Background
1. The Salazar Class
On March 3, 1993, Plaintiffs filed their class-action
Complaint [Dkt. No. 1] on behalf of several named plaintiffs and
other similarly situated individuals alleging violations of
federal law in the course of the District's administration of its
Medicaid program. On June 18, 1993, Plaintiffs filed their Amended
Complaint [Dkt. No. 27].
Over the long life of this case, the Plaintiff class has
always been described as a collection of several sub-classes, with
each sub-class consisting of Medicaid applicants and recipients
with a particular set of claims. Plaintiff's Amended Complaint;
Amended Memorandum-Order of October 6, 1994 [Dkt. No. 92]; Order
of November 3, 1994 [Dkt. No. 100]. Plaintiffs' Amended Complaint
stated that "Plaintiffs' class consists of:
All persons who, now or in the future will reside in the
District of Columbia who have applied for or who have
attempted to apply for Medicaid and who have experienced one
or more of the following conditions: (a) a delay in excess of
45 days in processing their initial Medicaid application or
application to recertify Medicaid coverage; (b) as newborns
of mothers eligible for Medicaid at the time of their birth,
the lack of immediate Medicaid coverage using their mothers'
Medicaid number; (c) the inability to apply for Medicaid at
disproportionate share hospitals and federally-qualified
health centers; (d) the inability to submit their completed
Medicaid applications to the District of Columbia Department
of Human Services; (e) after being found eligible, the lack
of advance notice of the discontinuance, suspension or
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obligation to recertify their Medicaid benefits; (f) after
being found eligible, the lack of effective notice of the
availability of early and periodic screening, diagnostic and
treatment services for children under 21 years of age; (g)
after being found eligible, the lack of EPSDT services for
children under 21 years of age.
Amended Complaint at ~ 76.
In the Amended Memorandum-Order of October 6, 1994, which
granted Plaintiff's Motion for Class Certification, the Court
noted that "for analytical clarity the class should be certified
as five separate sub-classes rather than as one comprehensive
class [.] "1 Amended Memorandum-Order at 6. All class members must
fit into one or more of the five sub-classes, which "correspond to
the causes of action in Plaintiffs' Complaint." Id. at 6 n.2.
On November 1, 1994, the Parties filed a Joint Motion to Amend
the Class Definition [Dkt. No. 98]. On November 3, 1994, the Court
issued an Order [Dkt. No. 100] granting the Parties' Joint Motion.
This Order did not substantively alter the types of claims that
would suffice for inclusion in the Plaintiff class. Rather, the
Order served to clarify the previous definition and to reemphasize
the relationship between individuals' claims and class membership.
The Order defined the class as follows:
All persons who have applied, have attempted to apply, or
will apply in the future during the pendency of this
1 Plaintiffs' Amended Complaint presented seven causes of action,
but the third cause of action was dismissed and the sixth and
seventh were consolidated for the purposes of the sub-class
definitions. Amended Memorandum-Order at 6-7. Thus, five sub-
classes resulted. Id.
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litigation, for medical assistance pursuant to Title 19 of
the Social Security Act ("Medicaid") , and all persons who
have received, are receiving, or will receive in the future
during the pendency of this litigation, Medicaid in the
District of Columbia with respect to the following claims:
Any claims for declaratory, injunctive, or other relief
premised on the alleged lack of immediate Medicaid coverage
for newborns using the Medicaid number of their mothers, who
are eligible for Medicaid at the time of the babies' birth
[Sub-Class I]
Any claims for declaratory, injunctive, or other relief
premised on an alleged inability to apply for Medicaid at
disproportionate share hospitals and federally-qualified
health centers [Sub-class II] 2
Any claims for declaratory, injunctive, or other relief
premised on an alleged delay in excess of 45 days in the
processing of Medicaid applications [Sub-class III]
Any claims for declaratory, injunctive, or other relief
premised on an alleged lack of advance notice of the
discontinuance, suspension or obligation to recertify
Medicaid benefits, after being found eligible [Sub-class IV]
Any claims for declaratory, injunctive, or other relief
premised on an alleged lack of effective notice of the
availability of early and periodic screening, diagnostic and
treatment ("EPSDT") services for children under 21 years of
age, and/or an alleged lack of EPSDT services for eligible
children under 21 years of age [Sub-class V] .
Id. at 1-2. Thus, in order to be a member of the Plaintiff class
an individual must meet the criteria of the preamble paragraph
above (i.e., be a present, past, or future, Medicaid applicant or
recipient) and have claims that fall into one of the five sub-
class categories.
2 Claims involving the first two sub-classes were resolved before
trial.
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2. Injunctive Relief
After years of litigation and some successful negotiation by
the Parties, on October 16, 1996, this Court issued an Opinion
setting forth extensive findings of fact and conclusions of law.
See Salazar v. Dist. of Columbia, 954 F. Supp. 278 (D.D.C. 1996).
"In particular, the Court ruled that Defendants had failed to
process Medicaid applications for non-disabled, non-foster care
[non-public assistance] applicants within 45 days, had terminated
or suspended eligible persons' benefits without adequate notice,
had failed to provide EPSDT services to eligible families, and had
failed to notify those eligible families about the availability of
such services." Memorandum Opinion of December 28, 1998 at 2 [Dkt.
No. 653] (summarizing findings detailed in Salazar, 954 F. Supp.
278) .
Of particular relevance here, the Court found that the
District's failure "to process large numbers of Medicaid
applications within 45 days of receipt" and inaccurate eligibility
determinations caused many Medicaid applicants and beneficiaries
to incur out-of-pocket costs for services that should have been
covered by Medicaid. Salazar, 954 F. Supp. at 289-302. The Court
also found that the District maintained an "unofficial, unwritten
practice" of reimbursing Medicaid beneficiaries by "advising the
participating provider [e.g., hospital, doctor, or other medical
service provider] to reimburse the recipient for any out-of-pocket
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medical expenditures and thereafter to submit a routine claim for
the same expenditures to [the District] . " Id. at 323. "Medicaid
recipients [were] not notified about the unofficial policy[.]" Id.
In order to redress the harm caused by the District's
practices, on September 15, 1997, the Court issued a Reimbursement
Procedures Order that established "reimbursement procedures for
class members who incurred out-of-pocket expenses because of
untimely or inaccurate eligibility determinations made by
Defendants." Reimbursement Procedures Order of Sept. 15, 1997 at 1
[Dkt. No. 550). The Order incorporated a document titled "Summary
Notice of Reimbursement Procedures for Class Members' Out-of-
Pocket Expenses [,]" which contained the detailed procedures for
obtaining reimbursement of out-of-pocket expenses. Id. Att. A.
Pursuant to the Reimbursement Procedures, "[a]ll class
members have the right to be repaid any money they spent from March
2, 1990, to the present, on drug prescriptions, doctor visits, or
hospitalizations at a ~~me that they were eligible for Medicaid
and the three (3) months prior to their Medicaid application." Id.
Att. A at 2. In order to begin the reimbursement process, "[c]lass
members are to submit the 'Medicaid Reimbursement Form' with
supporting documents to" the District. Id. The Procedures give
class members notice of their "right to a fair hearing" in the
event they are unsatisfied with the District's resolution of their
claims. Id. at 3. Finally, the Procedures state that if class
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members are "not satisfied with the result of the fair hearing,
[they] will have 30 days to appeal to the United States District
.Court for the District of Columbia." Id.
3. Other Relevant Medicaid Reimbursement Procedures
Federal regulations provide Medicaid beneficiaries with the
right to a hearing when they believe a state Medicaid "agency has
taken an action erroneously." 42 C.F.R. § 431.220. 3 If the
beneficiary prevails at the hearing, "[t]he agency must promptly
make corrective payments, retroactive to the date an incorrect
action was taken[.]" Id. § 431.246. In addition, the District of
Columbia Code provides individuals dissatisfied with the outcome
of a hearing before the D. C. Off ice of Administrative Hearings
with a right of appeal to the District of Columbia Court of
Appeals. D.C.C. § 2-1831.16.
B. Factual Background4
Magnolia Stevenson is 96 years old and suffers from late-
stage Alzheimer's disease. Pls.'s Ex. Eat~ 2 [Dkt. No. 2007-5].
The Parties agree that at all times relevant to Plaintiffs' Motion,
she was an enrolled beneficiary of Medicaid's Elderly and
3The District o.f Columbia is defined as a state for purposes of
Medicaid. 42 U.S.C. § 130l(a).
4 Unless otherwise noted, the facts that follow are drawn (often
quoting verbatim) from the "Undisputed Facts" set forth in the
Office of Administrative Hearings' Final Order on Cross-Motions
for Summary Adjudication ( "OAH Opinion") . Pl. 's Ex. A [Dkt. No.
2007-1] .
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Physically Disabled ( "EPD") Waiver program. OAH Opinion at 7;
Gov't's Opp'n at 4; Pls.' Mot. at l; Pls.' Ex. Cat 6 [Dkt. No.
2007-3] . Under the EPD Waiver program, Magnolia Stevenson is
eligible to receive eight hours of personal care aid ( "PCA")
services per day, seven days per week.
In August of 2013, ASAP Services became Magnolia Stevenson's
PCA service provider. Patience Breckenridge, an ASAP employee,
became her assigned aide.
In October or November of 2013, Ms. Breckenridge informed
Magnolia Stevenson and her daughter, Deborah Stevenson, that ASAP
Services had issued Ms. Breckenridge bad checks and had otherwise
failed to pay her regularly. Admirably, Ms. Breckenridge continued
to provide services to Magnolia Stevenson despite these problems.
On December 13, 2013, Ms. Breckenridge told someone in the
Stevenson family that she was quitting her job with ASAP Services
because of the company's continuing failure to pay her and that
she would no longer be providing services to Magnolia Stevenson.
Beginning on December 14, 2013, Magnolia Stevenson's family
repeatedly contacted ASAP Services in an effort to restore PCA
services for her. Having heard no response from ASAP, on December
17, 2013, Deborah Stevenson called Social Services Representative
Melvin Gains at the District's Department of Healthcare Finance
( "DHCF") . She left Mr. Gains a message, but he too never called
back.
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Determined to help her mother, on December 18, 2013, Deborah
Stevenson found the contact information for Maude Holt, the
District's Health Care Ombudsman. From December 18 to 23, 2013,
she called the offices of Ms. Holt, DHCF, and ASPA Services, but
could not reach anyone who would help her.
On December 2 3, 2013, Deborah Stevenson spoke with Mirka
Shephard, an Associate Health Care Ombudsman with DHCF. Ms.
Shephard coordinated a conference call with Deborah Stevenson and
Erica Battle, a representative of ASAP Services. Ms. Battle
acknowledged that since December 14, 2013, ASAP had failed to
provide Magnolia Stevenson with the PCA services to which she was
entitled.
On December 24, 2014, Magnolia Stevenson's counsel requested
a fair hearing from OAH to address ASAP's failure to provide PCA
services as well as other issues that have since been resolved.
While Deborah Stevenson was working to restore her mother's
Medicaid services, she made sure that her mother did not go without
the care she needed in the interim. From December 17, 2013 through
January 25, 2014, she paid Ms. Breckenridge directly to care for
Magnolia Stevenson. 5 Although Magnolia Stevenson continued to be
5 As with many other facts in this case, the record below is far
from clear as to whose money was used. Several payments to
Ms. Breckenridge were made in cash while others were made by check
from an account bearing Deborah Stevenson's name. Pls.' Ex. Cat
15-86 [Dkt. No. 2007-3]. However, all submitted Medicaid
Reimbursement Request Forms list Magnolia Stevenson as the
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enrolled in the EPD Waiver program, ASAP Services did not provide
her with a PCA aide during this period. Nor did DHCF assist her in
obtaining PCA services during this period.
On January 15, 2015, Health Care Ombudsman Maude Holt told
Magnolia Stevenson's counsel in an e-mail that "Ms. Stevenson
should be able to get reimbursed for the monies the [sic] has paid
out of pocket for her expenses." Pls. Ex. Cat 53.
On or about January 25, 2014, ASAP Services' Staffing
Coordinator, Lisa Nelson, told Deborah Stevenson that ASAP
Services could provide another PCA aide to her mother. Deborah
Stevenson declined this offer on her mother's behalf because ASAP
Services had been found grossly deficient in serving its patients
by the D.C. Government.
On January 29, 2014, Deborah Stevenson submitted a Medicaid
claim form to DHCF, seeking reimbursement of $1,620 for PCA service
payments made to Ms. Breckenridge between December 17, 2013 and
January 25, 2014. The claim form listed Magnolia Stevenson as the
"Medicaid Recipient Requesting Reimbursement." Pls.' Ex. Cat 32.
Ms. Breckenridge continued to provide PCA services to
Magnolia Stevenson until April 25, 2014. See Pls.' Ex.Fat 7 [Dkt.
No. 2007-6]. Between December 2013 and April 2014, her daughter
"Medicaid Recipient Requesting Reimbursement." Id. There is
nothing in the Record to suggest that DHCF, OAR, or any other
component of the District ever asked for clarification as to the
financial relationship between Magnolia and Deborah Stevenson.
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submitted approximately 14 claims to DHCF for reimbursement of
$5,040 of payments to Ms. Breckenridge (the initial $1,620 claim
plus additional claims totaling $3,420). See Pls.' Ex. Cat 32-
112.
On April 15, 2014, an ALJ with OAH held a status conference
regarding the reimbursement claims, none of which had been paid by
DHCF. After the hearing, the District and Magnolia Stevenson filed
cross-Motions for Summary Adjudication. 6
On June 6, 2014, the ALJ granted in part and denied in part
the Parties' cross-Motions, holding that the District was required
to pay the claim for $1,620 to reimburse payments for
Ms. Breckenridge's services up to January 25, 2013. However, the
ALJ ruled that ASAP's January 25th offer to provide another PCA
aide to Magnolia Stevenson terminated any right to further
reimbursement. Accordingly, the ALJ denied all post-January 25th
reimbursement claims, which totaled $3,420.
On June 18, 2014, Magnolia Stevenson sought reconsideration
of the ALJ's decision, arguing that the refusal to accept a new
PCA from ASAP Services was justified because the company had been
found to be "grossly deficient in serving its patients." Pls.' Ex.
B at 2 [Dkt. No. 2007-2]. The ALJ denied Magnolia Stevenson's
Motion for Reconsideration and advised her that she could file an
6 OAH's "summary adjudication" procedure is analogous to summary
judgment procedures covered by Fed. R. Civ. P. 56.
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appeal with the District of Columbia Court of Appeals. Id. at 5-
6.
Magnolia Stevenson declined to file an appeal with the
District of Columbia Court of Appeals. Instead, on September 2,
2014, Plaintiffs filed a Motion with this Court to Reverse the
Ruling in the Fair Hearing of Class Member Stevenson Denying
Reimbursement of Personal Care Aide Services. On October 20, 2014,
the District filed its Opposition, and on November 14, 2014,
Plaintiffs filed their Reply.
III. LEGAL ANALYSIS
Plaintiffs ask this Court to reverse OAH's determination that
Magnolia Stevenson is entitled to only partial reimbursement for
PCA expenses incurred between December 2013 and April 2014. The
District argues that Magnolia Stevenson should have brought her
appeal before the District of Columbia Court of Appeals instead of
this Court. In the alternative, the District contends that this
Court should uphold the merits of the OAH Opinion.
A. Magnolia Stevenson Has Standing to Pursue Her Claims.
The District contends that Magnolia Stevenson lacks standing
before this Court because she did not suffer an injury that would
be redressed by the relief sought. "The Supreme Court has explained
that 'the irreducible constitutional minimum of standing contains
three elements.'" Teton Historic Aviation Found. v. U.S. Dep't of
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Def., No. 13-5039, 2015 WL 2145859, at *3 (D.C. Cir. May 8, 2015)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
First, a plaintiff must show injury in fact, or an invasion
of a legally protected interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural
or hypothetical. Second, the plaintiff's injury must be
fairly traceable to the challenged action of the defendant.
Third, . the plaintiff must demonstrate redressability,
or a substantial likelihood that the requested relief will
remedy the alleged injury in fact.
Id. (internal citations and quotation marks omitted). Because
Constitutional standing is a bedrock jurisdictional requirement,
the Court must assure itself that Plaintiffs have standing to
pursue their claims. Florida Audubon Soc. v. Bentsen, 94 F.3d 658,
663 (D.C. Cir. 1996).
The District argues that Magnolia Stevenson suffered no
injury because her daughter, Deborah, arranged for private
provision of the necessary care services. In the District's view,
if anyone was injured, it was Deborah, not Magnolia Stevenson.
The District goes on to argue that even if Magnolia Stevenson
was injured, her injury would not be redressed by the grant of
Plaintiffs' Motion because it believes repayment would accrue to
her daughter Deborah, not to her.
Plaintiffs have put forth credible evidence that Magnolia
Stevenson, who is 96 years old and suffers from late-stage
Alzheimer's disease, is incapable of managing her own affairs. See
Pls.'s Ex. Eat ~ 2. Her daughter and other children look after
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their mother and ensure that she has the care she needs. This Court
has previously recognized that individuals often pay the medical
expenses of dependent family members, and that reimbursement is
warranted to redress the injury caused by out-of-pocket expenses
that should have been paid by Medicaid. See e.g., Reimbursement
Procedures Order of Sept. 15, 1997, Att. A at 2 [Dkt. No. 550]
("If you spent money for drugs, doctor visits, or hospitalizations
for a family member (such as a child) who was eligible for
Medicaid, you are also entitled to be repaid that money.").
Moreover, Magnolia Stevenson did suffer an injury: she was
entitled to receive personal care services from Medicaid and did
not receive them. See CC Distribs., Inc. v. United States, 883
F.2d 146, 150 (D. C. Cir. 1989) ("a plaintiff suffers a
constitutionally cognizable injury by the loss of an opportunity
to pursue a benefit") . The fact that her family stepped in' to avoid
catastrophe does not absolve the District of its obligation to
provide the personal care services to which Magnolia Stevenson was
entitled. The District's position leads to the conclusion that a
tort victim whose family paid his medical bills would lack standing
to sue the tortfeasor to recoup his medical expenses.
Constitutional standing is simply not so limited.
Furthermore, the injury caused by Medicaid's failure to
provide services would be redressed by a cash payment equal to the
cost of equivalent services. Regardless of whether Deborah
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Stevenson used her own funds to cover the cost of her mother's
care, Magnolia Stevenson has invoked her own right under 42 C.F.R.
§ 431. 246 7 to "prompt[] corrective payments, retroactive to
the date an incorrect action was taken" as compensation for the
District's failure to provide PCA services.
In short, Magnolia Stevenson has identified a benefit that
she was wrongfully denied and has requested the cash equivalent of
that benefit as compensation. That is sufficient to demonstrate
that her asserted injury would be redressed by the requested
relief. Accordingly, Magnolia Stevenson has standing under Article
III.
B. Magnolia Stevenson Is Not a Member of the Plaintiff
Class.
The District argues that Magnolia Stevenson is not a member
of the Salazar Plaintiff class. Plaintiffs assert, but never
specifically argue, that she is a member of the Plaintiff class.
See Pl.'s Mot. at 1 (the word "class" appears only in the heading,
and nowhere in the body, of Plaintiffs' brief); see also Pl.'s
Reply at 10-11. Rather than address the question of class
membership, Plaintiffs contend that "regardless of whether
Magnolia Stevenson should be considered a member of the [P]laintiff
7On each and every Medicaid Reimbursement Form submitted to the
District, Magnolia Stevenson is listed as the "Medicaid Recipient
Requesting Reimbursement." Pls.' Ex. C at 15-86 [Dkt. No. 2007-
3] .
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class or not, she is entitled to the relief that she is seeking
here[.]" Pls.' Reply at 11.
As described above, the Salazar class is made up of Medicaid
applicants and recipients who fall into one or more of the three
remaining sub-classes. Supra at 2-4. Each sub-class "correspond[s]
to [a] cause[] of action in Plaintiffs' Complaint." Amended
Memorandum-Order of October 6, 1994 at 6; see also Order of
November 3, 1994; Plaintiff's Amended Complaint. Plaintiffs fail
to identify which, if any, of the sub-classes include Magnolia
Stevenson.
For the following reasons, the Court concludes that Magnolia
Stevenson does not meet the criteria for any of the three remaining
sub-classes. Even if counsel had not resolved Sub-classes I and
II, Magnolia Stevenson does not present claims relating to services
for newborns or an inability to apply for Medicaid at
disproportionate share hospitals. Thus, Sub-classes I and II are
clearly inapplicable. Magnolia Stevenson does not complain of any
delay in excess of 45 days in the processing of her Medicaid
application. Accordingly, she is not included in Sub-class III.
While Sub-class IV applies to Medicaid recipients whose Medicaid
eligibility was terminated without advance notice, the Parties
agree that at all times relevant to Magnolia Stevenson's claims,
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she remained a beneficiary of the District's EPD Waiver program. 8
Therefore, she cannot be a member of Sub-class IV. Finally,
Magnolia Stevenson does not seek EPSDT services, for which she
would not be eligible, so she is not a member of Sub-class V.
Because Magnolia Stevenson is not a member of one or more of the
Salazar sub-classes, she cannot be a member of the Plaintiff class.
C. The 1997 Reimbursement Procedures Order Provisions
Permitting Direct Appeal to This Court Do Not Apply to
Magnolia Stevenson's Claims.
Having concluded that Magnolia Stevenson is not a member of
the Plaintiff class, the Court must determine whether the remedial
provisions permitting direct appeal to this Court nevertheless
apply to her claims. Over the course of many years, this Court's
orders with the exception of one9 have required class
membership with respect to the scope of injunctive relief. See
Amended Memorandum-Order of October 6, 1994 (certifying class);
Order of November 3, 1994 (amending class definition); Amended
Remedial Order of May 9, 1997 at 24 [Dkt. No. 493] ("Reimbursement
8 As the ALJ put it, "[t]he following facts are not in dispute: At
all times relevant to this case, Ms. Stevenson has received
Medicaid services under the Elderly and Physically Disabled (EPD)
Waiver program. She has been found eligible to receive eight hours
of PCA services per day, seven days per week." OAH Opinion at 7.
Magnolia Stevenson did not challenge this statement in her Motion
for Partial Reconsideration before the ALJ. See Pls.' Ex E.
9
See Order on Reimbursement Procedures of July 30, 1998 at 1
[Dkt. No. 617] (ordering publication of certain notice documents
to "all current and future Medicaid recipients").
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of class members shall be made when the class member presents
reasonable and reliable documentation or other evidence of their
out-of-pocket expenses."); Reimbursement Procedures Order of Sept.
15, 1997 at 1 ("reimbursement procedures for class members who
incurred out-of-pocket expenses"); Remedial Order January 25, 1999
at ~ 62 [Dkt. No. 663] (repeating language of May 9, 1997 Order).
Plaintiffs nonetheless rely on the Court's Reimbursement
Procedures Order of Sept. 15, 1997 to establish Magnolia
Stevenson's right to appeal to this Court for relief from OAH's
Order. They contend that even if Magnolia Stevenson is not a member
of the Salazar class, she may still benefit from the injunctive
relief available under the Reimbursement Procedures Order.
Plaintiffs argue that "[t]he plain terms of this Court's 1997
Reimbursement Procedures Order and subsequent orders make clear
that relief is available to family members to seek reimbursement
for out-of-pocket expenditures for medical services that should
have been covered by DC Medicaid." Pls ~' Reply at 4. In other
words, Plaintiffs contend that the Reimbursement Procedures are
available to all Medicaid beneficiaries with unreimbursed out-of-
pocket costs.
However, the Reimbursement Procedures Order cannot be
stretched that far. By its own terms, the Order created
"reimbursement procedures for class members who incurred out-of-
pocket expenses because of untimely or inaccurate eligibility
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determinations made by Defendants." Reimbursement Procedures Order
at 1 (emphasis added). The Order's notice provision lists several
situations to which the Procedures would apply:
This means that you are entitled to repayment (1) if you spent
money on drug prescriptions, doctor visits, or
hospitalizations while you were waiting for a decision on
your Medicaid application . . . (2) in the three months prior
to your application for Medicaid (if you were later found
eligible), (3) if you were improperly cut-off from Medicaid
at recertification and had to spend your own money on drug
prescriptions, doctor visits, or hospitalizations or (4) if
the pharmacy, clinic, doctor's office or hospital said that
you were not on Medicaid when you actually were and you had
to spend money . .
Reimbursement Procedures Order, Att. A at 2 (emphasis added).
These examples demonstrate that the Reimbursement Procedures
were crafted to benefit individuals who paid out-of-pocket
expenses because of eligibility determination and recertification
issues which defined the class. That was not the case with Magnolia
Stevenson because her out-of-pocket expenses arose from a provider
error that was wholly unrelated to her Medicaid eligibility.
Furthermore, the Reimbursement Procedures Order itself
indicates that it is meant to benefit only class members. The
Order's Attachment A, upon which Plaintiffs rely heavily, is titled
"Summary Notice of Reimbursement Procedures for Class Members'
Out-of-Pocket Expenses." Id. (emphasis added). At several points,
the Order refers to the rights and responsibilities of class
members. Id. at 2 ("All class members have the right to be repaid
any money they spent . at a time that they were eligible for
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Medicaid"); Id. ("Class members are to submit [particular
reimbursement forms]")
Attempting to expand the Reimbursement Procedures'
application, Plaintiffs cite language in this Court's Orders that,
in their view, demonstrates that the Reimbursement Procedures
apply "to all current and future Medicaid recipients." Pls.' Reply
at 11 (quoting Remedial Order~ 62 [Dkt. No. 663]). It is true
that many of this Court's orders appear to use the terms "class
members" and "all Medicaid recipients" interchangeably. For
example, the passage that Plaintiffs quote, paragraph 62 of the
Court's January 25, 1999 Remedial Order, states
Defendants shall provide corrective payments to Medicaid
recipients who have incurred out-of-pocket medical expenses
that should have been paid by Medicaid to all current and
future Medicaid recipients and all those who were Medicaid
recipients or were eligible for Medicaid at any time since
March 2, 1990. Reimbursement of class members shall be made
when the class member presents reasonable and reliable
documents or other evidence of their out-of-pocket expenses.
[Dkt. No. 663] (emphasis added) . While the language could have
been more precise, reference to the class def ini ti on, however,
dispels any confusion that this Court's writing may have caused.
As discussed above, the Salazar class is made up of all
Medicaid applicants and recipients who fit within the three
remaining claims identified in Plaintiff's Amended Complaint. Each
remaining claim corresponds to a sub-class defined in this Court's
Order of November 3, 1994. Thus, when Medicaid applicants and
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•
recipients have those claims set forth in the November 9, 1994,
Order, they are included as class members.
The Reimbursement Procedures apply to all Medicaid applicants
and recipients to the extent that they have claims for out-of-
pocket expenses because of untimely or inaccurate eligibility
determinations made by Defendants. Those claims correspond to the
definitions of Sub-classes III and IV. That is to say, the
Reimbursement Procedures apply to all Medicaid applicants and
recipients to the extent that they are class members. 10
The provisions of this Court's orders relating to payment of
Plaintiffs' counsel's fees for representing Medicaid recipients
also demonstrate that appeal to this Court is limited to class
members. The Settlement Order entered by this Court authorizes
Plaintiffs' counsel to litigate at the District's expense only
10Plaintiffs contend that this Court's 1998 Order on Reimbursement
Procedures "modified the scope of the 1997 Reimbursement
Procedures Order to apply 'to all current and future Medicaid
recipients."' Pl.'s Reply at p. 5 (citing [Dkt. No. 617]). That
Order extended the deadline for submission of reimbursement claims
and added certain notice requirements. Nowhere does the Order,
which was entered with the District's consent, purport to expand
the type of claims to which the Reimbursement Procedures apply in
order to include non-class members. Indeed, it would be surprising
for such an expansion to have gone unopposed by the District.
Finally, this Court's Remedial Order of January 25, 1999 -- issued
after the 1998 Order reemphasizes the importance of class
membership with respect to the scope of the Reimbursement
Procedures. Remedial Order at ~ 62 ("Reimbursement of class members
shall be made when the class member presents reasonable and
reliable documentation or other evidence of their out-of-pocket
expenses. ") .
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class members' appeals from OAH fair hearings at the District's
expense. The Court's Remedial Order of January 25, 1999 describes
the following process:
Plaintiffs' counsel may respond to all calls which come to
their off ice and make reasonable inquiry to determine whether
the caller is a member of the plaintiff class. If the caller
is a member of the plaintiff class, Plaintiffs' counsel may
provide the caller with legal assistance. The reasonable time
and expenses of Plaintiffs' counsel in making such inquiry
and providing such assistance shall be deemed compensable
monitoring of this Order
Remedial Order at 40-41 [Dkt. No. 663] (emphasis added) . 11
The Reimbursement Procedures Order states that Plaintiffs'
counsel may provide free legal assistance to individuals seeking
to appeal the result of a fair hearing to this Court. Reimbursement
Procedures Order At t. A at 3 ("You may obtain free legal assistance
to help you present your claim at the fair hearing or during the
appeal by contacting Terris, Pravlik & Wagner . . ") . If the
Reimbursement Procedures Order applied to non-class members as
Plaintiffs argue, Plaintiffs' counsel would be obliged to provide
free legal services to any and all non-class Medicaid recipients
without compensation from the District. No such outcome was ever
contemplated by the Parties or this Court.
11 See also Amended Remedial Order of May 9, 1997 at 24 [Dkt. No.
493] ("If the caller [to the offices of Plaintiffs' counsel] is a
member of the [P]laintiff class, [P]laintiffs' counsel may provide
the caller with legal assistance. The reasonable time and expenses
of Plaintiffs' counsel in making such inquiry and providing such
legal assistance shall be deemed compensable[.]").
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Finally, this Court has previously "emphasize[d]" with
respect to class-member claims for EPSDT services "that [it has
never meant] to suggest that every 'garden variety' individual
claim" appealing an OAH decision "should be brought to the Court."
Memorandum Opinion of May 29, 2008 at 4 n.3 [Dkt. No. 1363]
(emphasis in original) . Appeal to this Court of matters not
presenting "class-wide issues" would "conflict with and replace
the Fair Hearing Process that has been established in the District
of Columbia and approved by [the federal Centers for Medicare &
Medicaid Services], which provides for final judicial review by
the District of Columbia Court of Appeals." Id. at 5 (internal
quotation marks omitted) . The same is true for reimbursement
claims.
For all these reasons, the Court concludes that the
Reimbursement Procedures Order provision permitting appeal to this
Court does not apply to Magnolia Stevenson's claims.
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III. CONCLUSION
For the forgoing reasons, Plaintiffs' Motion to Reverse the
Ruling in the Fair Hearing of Class Member Stevenson Denying
Reimbursement of Person Care Aide Services [Dkt. No. 2007] is
hereby denied. An Order shall accompany this Memorandum Opinion.
May d, 2015 G~~
Glady~eier
United States District Judge
Copies to: attorneys on record via ECF
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