Brown v. Dist. of Columbia

• Decision Date: 05 July 2019
• Docket Number: No. 17-7152,17-7152
• Citation: 928 F.3d 1070
• Parties: Ivy BROWN, in Her Individual Capacity and as Representative of The Certified Class, Appellant v. DISTRICT OF COLUMBIA, a Municipal Corporation, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

928 F.3d 1070

Ivy BROWN, in Her Individual Capacity and as Representative of The Certified Class, Appellant

v.DISTRICT OF COLUMBIA, a Municipal Corporation, Appellee

No. 17-7152

United States Court of Appeals, District of Columbia Circuit.

Argued January 14, 2019

Decided July 5, 2019

Kelly Bagby argued the cause for the appellant. Maame Gyamfi, Iris Y. González, Sasha M. Samberg-Champion, and Ryan Downer, Washington, DC, were with her on brief.

David A. Reiser, Washington, DC, and Jonathan H. Levy, New York, NY, were on brief for the amici curiae The Legal Aid Society for the District of Columbia, et al. in support of the appellants.

Jonathan L. Marcus was on brief for the amici curiae American Association of People with Disabilities, et al. in support of the plaintiffs-appellants.

Sonya L. Lebsack, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the appellee District of Columbia. Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, Washington, DC, and Caroline S. Van Zile, Deputy Solicitor General were with her on brief. Stacy Anderson, Assistant Attorney General, entered an appearance.

Before: Henderson and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

Opinion concurring in the judgment filed by Circuit Judge Wilkins.

Karen LeCraft Henderson, Circuit Judge:

In Olmstead v. L.C. ex rel. Zimring , the United States Supreme Court held that the unjustified segregation of disabled individuals in institutions is a form of disability discrimination barred by federal law. 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). Consequently, the District of Columbia ("District") violates the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101 et seq. ), and the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701 et seq. ), if it cares for a mentally or physically disabled individual in a nursing home notwithstanding, with reasonable modifications to its policies and procedures, it could care for that individual in the community. Plaintiffs are a class of physically disabled individuals who have been receiving care in District nursing homes for more than ninety days but wish to transition—and are capable of transitioning—to community-based care. They seek an injunction requiring the District to alter its policies and procedures in order to help them transition to the community. After a nine-day bench trial, the district court entered judgment in favor of the District. We now reverse and remand.

I. BACKGROUND

The District funds both nursing-facility-based and community-based care for individuals with physical disabilities. In both settings, individuals are provided with assistance in eating, bathing, toileting and dressing

, as well as with their mobility, medication management, meal preparation, money management and telephone use. The District does not operate nursing facilities itself; it funds care in nursing facilities certified for Medicaid reimbursement through its Medicaid State Plan.¹ There are nineteen Medicaid-certified nursing facilities in the District, which house a total of approximately 2,770 beds. Plaintiffs are physically disabled individuals in these facilities who have been receiving nursing-facility-based care for more than ninety days but wish to transition—and are capable of transitioning—to community-based care.

This litigation began in late 2010, when four disabled individuals filed a class action against the District, alleging that the District’s failure to transition them to community-based care violated Title II of the ADA and section 504 of the Rehabilitation Act. The district court rejected the District’s initial argument that it was entitled to summary judgment because it had in place an effective " Olmstead Plan"—that is, a "comprehensive, effectively working plan for placing qualified persons with [physical] disabilities in less restrictive settings," with "a waiting list that move[s] at a reasonable pace not controlled by the [District’s] endeavors to keep its institutions fully populated," Olmstead , 527 U.S. at 605–06, 119 S.Ct. 2176. Day v. District of Columbia , 894 F. Supp. 2d 1, 26–32 (D.D.C. 2012). It was "undisputed" that the District had not adopted a "formal Olmstead Plan," id. at 7, and the district court rejected the District’s argument "that its existing programs and services for individuals with disabilities me[ ]t the requirements of an Olmstead Integration Plan," id. , pointing to undisputed figures that showed the District lacked a "measurable commitment" to the transitioning of disabled individuals to the community, id. at 28–29.

In May 2012, Plaintiffs moved for class certification. The district court identified certain deficiencies in the proposed class and denied the motion without prejudice. In March 2013, Plaintiffs filed an amended complaint that revised the proposed class definition and alleged multiple deficiencies in the services the District provides to transition disabled individuals from nursing homes to the community. In March 2014, the district court granted Plaintiffs’ motion for class certification. Thorpe v. District of Columbia , 303 F.R.D. 120 (D.D.C. 2014). The certified class consisted of:

All 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 , No. 1:10-cv-2250 (D.D.C. Mar. 29, 2014), ECF 129 at 1. Although the district court found class certification appropriate, it expressed doubt—in light of the lack of "readily affordable housing in the community"—that Plaintiffs would ultimately be able to establish "a causal link between any proven deficiencies in the District’s system of transition assistance and the injury associated with being ‘stuck’ in a nursing facility." Thorpe , 303 F.R.D. at 137.

At the same time, the district court denied the District’s renewed motion to dismiss based on its then-recent implementation of a formal " Olmstead Plan." Id. at 131–32. The district court acknowledged that "the District has made some progress in the recent past" and that "this progress appears to be continuing." Id. at 138. Nevertheless, it was "undisputed that many Medicaid residents in nursing homes have expressed a desire to receive services in a less restrictive setting in the community, but have not been able to do so." Id. Thus, the district court held that the District had "yet to demonstrate that its Olmstead Plan is an ‘effectively working plan for placing qualified persons with ... disabilities in less restrictive settings, [with] a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.’ " Id. (first and third alterations in original) (quoting Olmstead , 527 U.S. at 606–07, 119 S.Ct. 2176 ).

In April 2014, the District petitioned this Court for leave to file an interlocutory appeal of the district court’s class certification. We denied the petition in June 2015. In re District of Columbia , 792 F.3d 96 (D.C. Cir. 2015). We held that, although "[t]he District Court’s decision to certify may or may not have been an error," "we cannot say that it was a ‘manifest error,’ which is the standard for us in this interlocutory appellate posture under Rule 23(f)" of the Federal Rules of Civil Procedure. Id. at 98.

After our decision, the district court ordered discovery and Plaintiffs filed another amended1076 complaint, which contained their proposed injunction. The proposed injunction would require the District to:

1. Develop and implement a working system of transition assistance for Plaintiffs whereby Defendant, at a minimum, (a) informs DC Medicaid-funded nursing facility residents, upon admission and at least every three months thereafter, about community-based long-term care alternatives to nursing facilities; (b) elicits DC Medicaid-funded nursing facility residents’ preferences for community or nursing facility placement upon admission and at least every three months thereafter; (c) begins DC Medicaid-funded nursing facility residents’ discharge planning upon admission and reviews at least every month the progress made on that plan; and (d) provides DC Medicaid-funded nursing facility residents who do not oppose living in the community with assistance accessing all appropriate resources available in the community.

2. Ensure sufficient capacity of community-based long-term care services for Plaintiffs under the EPD,² MFP,³ and PCA programs,⁴ and other long-term care service programs, to serve Plaintiffs in the most integrated setting appropriate to their needs, as measured by enrollment in these long-term care programs.

3. Successfully transition Plaintiffs from nursing facilities to the community with the appropriate long-term care community-based services under the EPD, MFP, and PCA programs, and any other long-term care programs, with the following minimum numbers of transitions in each of the next four years:

a. 80 class members in Year 1;

b. 120 class members in Year 2;

c. 200 class members in Year 3; and

d. 200 class members in Year 4.

4. Sustain the transition process and community-based long-term care service infrastructure to demonstrate the District’s ongoing commitment to deinstitutionalization by, at a minimum, publicly reporting on at least a semi-annual basis the total number of DC Medicaid-funded nursing facility residents who do not oppose living in the community; the number of those individuals

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