NEWS & ANNOUNCEMENTS
Washington Post Addresses Decision in DL v. District of Columbia
On June 24, 2016, the Washington Post addressed the decision in DL v. District of Columbia, and the District of Columbia's appeal of that decision, in an article titled, “Court rules D.C. underserves and under-identifies preschoolers with disabilities.” Click here to link to that article.
For more information about this case, click here.
TPM Wins Injunction Requiring Improvements to District of Columbia’s Provision of Special Education and Related Services for Preschoolers in the District
In DL v. District of Columbia, on May 18, 2016, the district court found the District of Columbia liable for violating children’s rights under the Individuals with Disabilities Education Act (IDEA) and District law through November 12, 2015, and the Rehabilitation Act until March 22, 2010, and issued an injunction. The district court enjoined the District of Columbia from further violations of the IDEA and District law, and ordered specific corrective actions, including that the District ensure that (1) at least 8.5 percent of children between the ages of three and five who reside in the District or are wards of the District receive necessary special education and related services, (2) at least 95 percent of all children between the ages of three and five referred for special education services receive a timely eligibility determination, and (3) at least 95 percent of all children receiving Part C services (early intervention services for children up to three years of age) that are found eligible for Part B services (special education and related services for children ages three and older) receive a smooth and effective transition to those Part B services by their third birthdays.
The injunction also includes specific provisions related to the measurement and monitoring of compliance. Specifically, the District of Columbia was ordered to correct several metrics that it uses to measure compliance with these benchmarks, which had made it appear that it was performing much better than it actually was.
The District of Columbia is required to provide annual reports on its compliance with the numerical benchmarks and semi-annual reports regarding compliance with other programmatic requirements. The injunction will remain in effect until the District has demonstrated sustained compliance with its requirements.
The district court wrote that “The District’s lack of effective Child Find and transition policies is particularly troubling in light of the intense scrutiny and seemingly constant admonishment it has received over the last decade. In 2011, this Court stated, ‘Defendant’s persistent failure to live up to their statutory obligations, a failure that works a severe and lasting harm on one of society’s most vulnerable populations—disabled preschool children—is deeply troubling to this Court.’ * * * Moreover, as discussed, OSEP [the U.S. Department of Education Office of Special Education Programs] informed OSSE [the District of Columbia Office of the State Superintendent of Education] in 2015 that it ‘needs intervention in implementing the requirements of Part B of the IDEA’ for the ‘ninth consecutive year,’ which is the longest period in the country. * * * Although OSEP’s long-running ‘needs intervention’ determination does not deal exclusively with the statutory obligations at issue in this litigation, it contributes to the overarching narrative that the District requires strong, outside involvement to produce even minimally acceptable results. And critically, this litigation has been ongoing for more than ten years, providing the District with ample time and robust incentives to come into full compliance with the law. It is for these reasons that a structural injunction is necessary.”
The district court concluded by stating that “The District has come a long way since 2005 when this lawsuit was initiated, but it has not come far enough. Indeed, while its progress has been in some ways impressive, the District started at such a low base that the advances it has made are insufficient to bring it into compliance with its legal obligations. The Court today makes clear that the implementation and outcomes of the District’s policies are paramount. The District will comply with its statutory obligations when it actually locates and identifies children to provide them with a FAPE [free appropriate public education], timely evaluates them, timely determines their eligibility, and smoothly and effectively transitions them—not when they establish policies that, if properly implemented, would achieve these goals. If the defendants fail[] to abide by the order and adopt a more outcome-based approach, the District will earn far more significant court involvement and oversight than is ordered today.”
We are pleased with the injunction and believe that it will have a positive and lasting impact on children with disabilities in the District of Columbia. We hope that this will draw this case closer to its end and that, rather than appealing, the District will focus its attention and resources on the needed improvements.
For more information with regard to this case, click here.
Following the Court’s May 18, 2015 Ruling in Salazar, Medicaid Implements New Procedures for Reimbursement of Out-of-Pocket Expenses
The District of Columbia has issued a new transmittal informing managed care organizations, providers, and the public about changes affecting reimbursement of out-of-pocket medical expenses for Medicaid beneficiaries as a result of the District Court’s May 18, 2015, Memorandum and Order in Salazar v. District of Columbia.
Prior to the Court’s May 18, 2015, Memorandum and Order, all D.C. Medicaid-eligible individuals who incurred an out-of-pocket expense for drug prescriptions, doctor visits, or hospitalizations when they were eligible for Medicaid could potentially seek and receive free legal assistance from Terris, Pravlik & Millian, LLP to submit a claim for reimbursement. If the Medicaid recipient was unsatisfied with the District of Columbia’s decision, she could seek a fair hearing before the Office of Administrative Hearings (“OAH”) to contest it. If the Medicaid recipient was unsatisfied with the OAH decision, she could appeal it to Judge Gladys Kessler of the U.S. District Court for the District of Columbia. Terris, Pravlik & Millian, LLP would provide free legal assistance throughout this process.
The Court’s May 18, 2015 Memorandum and Order made several changes to these procedures. First, only Salazar class members may now obtain free legal assistance from Terris, Pravlik & Millian, LLP, concerning claims for reimbursement. Non-class members may obtain free legal assistance from other legal aid service agencies in the District of Columbia.
Salazar class members who can receive free legal assistance from Terris, Pravlik & Millian, LLP, are those individuals who were eligible for Medicaid or should have been eligible for Medicaid, but were forced to incur a medical expense for any of the following reasons:
- There was a delay in excess of 45 days in the processing of the individual’s Medicaid application.
- The pharmacy, clinic, hospital, or doctor’s office stated that the recipient was not eligible when she was eligible.
- The District of Columbia improperly terminated, suspended, or discontinued an individual’s Medicaid eligibility at the time of renewal or recertification.
- In the case of a child under 21 years of age, if the child was denied any Early and Periodic Screening Diagnostic Treatment service, including medical services, dental services, medication, medical equipment, supplies, or transportation services to Medicaid appointments.
- In the case of newborns, who lack immediate Medicaid coverage using the Medicaid number of their mothers, but are eligible for Medicaid at the time of their birth.
Second, if an individual is not happy with the results of the fair hearing before the OAH, she must now appeal the decision to the District of Columbia Court of Appeals, rather than the U.S. District Court for the District of Columbia.
As a result of the Court’s May 18, 2015 Memorandum Opinion and Order, individuals who previously received free legal assistance to submit claims for reimbursement , but are not Salazar class members will no longer be able to obtain free legal assistance from Terris, Pravlik & Millian LLP. These individuals include (a) Qualified Medicare Beneficiaries, who are being billed by medical providers that only accept Medicare and not District of Columbia Medicaid, (b) beneficiaries who failed to present their Medicaid or Managed Care Organization card at the point of service, and (c) beneficiaries who inform their provider of their Medicaid eligibility but are being billed for medical expenses.
Non-class members may obtain free legal assistance from Bread for the City Legal Clinic, (202) 265-2400, Legal Aid Society, (202) 628-1161, Legal Counsel for the Elderly, (202) 434-2120, Neighborhood Legal Services, (202) 269-5100, and University Legal Services, (202) 547-4747.
Non-class members may submit a claim for reimbursement on their own and send letters to providers to request that they stop billing them for medical expenses. If you are a Qualified Medicare Beneficiary, contact us for more information about what you can do to resolve billing issues.
TPM Files Motion to Prevent the District from Improperly Terminating Medicaid Recipients at Renewal and Making Applicants Wait More than 45 Days for Eligibility Determinations
On December 22, 2015, Terris, Pravlik & Millian, LLP, filed a motion for a preliminary injunction against the District of Columbia in the United States District Court for the District of Columbia on behalf of the Salazar plaintiff class. The preliminary injunction seeks to ensure that no Medicaid applicant (non-disabled) waits longer than 45 days for a decision on an application for Medicaid benefits and that no Medicaid recipient’s coverage is improperly terminated as a result of the District’s inability to make correct and timely eligibility decisions at the time of renewal or recertification. The District of Columbia has until January 15, 2016, to respond.
Class counsel filed the preliminary injunction after hearing increasing concerns from class members, medical providers, and Medicaid advocates about the technological and other problems causing excessive delays for Medicaid applicants and improper terminations for Medicaid recipients. In addition, DC has announced that there will be no passive renewals for Medicaid for a period of time beginning on January 1, 2016.
Plaintiffs presented documents produced by the District of Columbia in response to Freedom of Information Act (FOIA) requests which show that the District of Columbia is depriving thousands of Medicaid applicants of their right to have their applications processed within 45 days. As of December 10, 2015, there was a backlog of approximately 4,500 Medicaid applicants who applied in DC Health Link, the District’s health insurance online exchange, who have been waiting more than 45 days for a decision, with an additional backlog of paper applications. Plaintiffs show in their motion that the District of Columbia routinely loses or fails to process application paperwork, forcing applicants to resubmit paperwork and stand in line at service centers for hours.
At the time of renewal, the District of Columbia is also depriving Medicaid recipients of their right to receive Medicaid benefits until found to be ineligible and to receive advance notice and an opportunity for a hearing prior to termination of their benefits. Technological problems caused by the District’s poorly functioning computer systems routinely cause improper termination of benefits at the time of renewal or recertification. In addition, plaintiffs show that despite the District of Columbia’s efforts, ongoing systemic document processing problems cause benefits to lapse, leaving otherwise eligible families and children without access to needed healthcare and medications, with burdensome out-of-pocket expenses, or high medical bills.
The Salazar plaintiff class seeks to have the Court enter an injunction requiring all applicants to be added to the Medicaid rolls within 45 days of their application and requiring that no recipient be terminated at renewal until the District of Columbia can demonstrate to the Court, based on substantial evidence, that their technology and business processing systems for making timely eligibility determinations on applications and renewals, and providing adequate notice to Medicaid recipients and applicants of such decisions, are functioning as required to ensure and protect their rights under the United States Constitution and applicable federal law and regulations.
Plaintiffs’ motion is supported by FOIA documents provided by District of Columbia agencies, the testimony of class members, the Legal Aid Society of the District of Columbia, Whitman-Walker Health, Bread for the City, Legal Counsel for the Elderly, and the DC Fiscal Policy Institute. The motion and supporting documentation are available through Dropbox at the following link:
https://www.dropbox.com/sh/nuzr290yc5s4weq/AACI339sLZyrUGYUnF6x5vyxa?oref=e&n=363363361
TPM Wins Affirmance in Federal Appeals Court of Fee Award Based on Rates Calculated with the Legal Services Index (LSI) Update to the Laffey Matrix.
Civil rights litigation can be brought by individuals who do not have the funds to pay for lawyers because of the fee-shifting provisions of 42 U.S.C. 1988. Section 1988 provides that a court may award attorneys’ fees at market rates when the plaintiffs win the case.
Counsel for the Salazar plaintiff class sought an award of fees under the Laffey matrix. The Laffey matrix is a schedule of hourly rates for lawyers handling complex federal litigation that was developed in Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), affirmed in part and reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland Mountains v. Hodel Inc., supra, 857 F.2d at 1525.
For years, the Salazar class and the District of Columbia have been engaged in litigation over whether the fees awarded to class counsel should be based on the Legal Services Index (LSI) Update of the Laffey Matrix or the CPI Update of the matrix used by the United States Attorney’s Office (USAO). The class presented substantial evidence that the LSI-Updated Laffey Matrix produced hourly rates that were below, but more closely aligned with, market rates than the USAO Laffey Matrix. The District maintained that the LSI was national, not local like the CPI, its rates compared to those of large firms, not the small firm representing the class, and that the USAO Matrix was used in the vast majority of fees decisions in the District of Columbia.
In four decisions, Judge Gladys Kessler awarded fees based on the LSI-Updated Laffey Matrix; each time finding that the LSI was the preferred index for legal services and that the LSI-Updated Matrix was a conservative estimate of the cost of legal services in the District of Columbia. Although the District abandoned an earlier appeal, it pursued an appeal of the third and fourth decisions.
The D.C. Circuit affirmed Judge Kessler’s award of attorneys’ fees using the LSI-Updated Laffey Matrix. Salazar v. District of Columbia, 809 F.3d 58 (DC Cir. 2015). The D.C. Circuit agreed with Judge Kessler that the evidence presented by plaintiffs demonstrates that the LSI-Updated Laffey Matrix “’is probably a conservative estimate of the actual cost of legal services in this area’” (emphasis in original). 809 F.3d at 65. It concluded that “[t]he District, neither below nor on appeal, rebuts this logic with relevant arguments.” Id., at 65. The Court noted that the fact that other courts have applied the USAO Laffey Matrix “is not compelling.” Id., at 65, n. 1.
The D.C. Circuit also reiterated its prior en banc holding that fees should not be calculated any differently when the losing defendant is the government. 809 F.3d at 65.
Click for the decision here and for documents in the joint appendix here.
Terris, Pravlik & Millian, LLP, which represents the Salazar class, has made the evidence supporting the LSI-Updated Laffey Matrix available on its website at this link.
The Salazar case is a class action brought on behalf of adults and children, pursuant to 42 U.S.C. 1983, to enforce various provisions of the Medicaid Act. The class is currently monitoring the District’s compliance with the consent decree entered in 1997 and amended in 1999. The class periodically files fee applications. Click here for more information regarding the case.
TPM Wins Ruling in Federal Appeals Court that Denial of Plaintiffs’ Prescription Drug Benefits at Pharmacy Is a Deprivation of a Protected Property Interest that Triggers Due Process
On July 17, 2015, the United States Court of Appeals for the District of Columbia Circuit issued a decision in N.B. v. District of Columbia in favor of Plaintiffs represented by Terris, Pravlik & Millian, LLP and the National Health Law Program. Plaintiffs allege that the District of Columbia has systematically failed to provide Medicaid recipients with due process when prescription drug benefits are denied at the point-of-sale. The Court partially reversed and remanded a March 31, 2014, decision from the district court granting defendants’ motion to dismiss.
Amici curiae in support of reversal included the Legal Aid Society of the District of Columbia, New Haven Legal Assistance Association, American Association of Retired Persons (AARP), Bread for the City, Florida Legal Services, Legal Counsel for the Elderly, the National Senior Citizens Law Center, The Public Justice Center, The Tennessee Justice Center, and University Legal Services.
Plaintiffs filed their complaint on September 7, 2010. On August 8, 2011, the district court granted defendants’ first motion to dismiss on the ground that plaintiffs lacked standing. On June 8, 2012, the Court of Appeals for the District of Columbia Circuit reversed the district court’s decision and remanded the case for further proceedings. The Court of Appeal’s July 2015 decision, therefore, is the second reversal of the district court in this case.
Plaintiffs contend that the existing point-of-sale prescription drug system violates Title XIX of the Social Security Act and its implementing regulations (“Title XIX”), the Due Process Clause of the Fifth Amendment, and D.C. law by failing to provide adequate and timely written notice of the basis for denial, the opportunity for a fair hearing, and the opportunity for reinstated coverage pending a hearing decision. Based on a computerized reply from an electronic claims system, a pharmacist will either fill a prescription or tell an individual that they will have to pay out-of-pocket to receive their prescribed medications. Many individuals, without the ability to pay for their prescription drugs on their own, leave the pharmacy without these medically necessary treatments.
The district court granted defendants’ second motion to dismiss in March 2014, because, inter alia, it determined that many of the plaintiffs lacked a “legitimate claim of entitlement to the drugs” and had no protections under the Due Process Clause, nor were they “denied” a covered Medicaid benefit under Title XIX. The district court also held that in cases where there was a legitimate claim, plaintiffs failed to allege adequately that any “state action” caused the denials. The D.C.-law claims were dismissed by the district court for lack of pendant jurisdiction as no federal causes of action remained in the case.
The Court of Appeals for the District of Columbia Circuit, in its July 2015 decision, found that, inter alia, plaintiffs and all other D.C. Medicaid recipients have a “legitimate claim of entitlement” to the reimbursement of any prescription drug prescribed for a medical purpose and not completely excluded from coverage under Medicaid. The Court found that the District’s arguments “misapprehend[ ]” the meaning of a “legitimate claim of entitlement” by “incorrectly skip[ping] ahead to the plaintiff’s ultimate eligibility for a government benefit instead of asking whether she would be entitled to the benefit if she were to satisfy the preconditions to obtaining it.” Instead, the Court found a “ ‘legitimate claim of entitlement’ means that a person would be entitled to receive the government benefit assuming she satisfied the preconditions to obtaining it” (emphasis in original).
The Court explained that plaintiffs and all other D.C. Medicaid recipients are entitled to receive prescription drug benefits upon satisfaction of all preconditions, because the language of the District’s Medicaid regulations (29 D.C.M.R. 2700, et seq.) provides for prescription drug coverage using “mandatory, non-discretionary terms.” The eligibility requirements place “substantive limitations on official discretion” to withhold a benefit upon satisfaction of the eligibility criteria.
In addition, the Court found that plaintiffs adequately alleged that the electronic claims system “determined their eligibility for benefits while acting as an agent of the District” and the Due Process Clause’s state action requirement was satisfied. However, the Court’s decision does affirm the district court’s dismissal of the Title XIX claims.
In conclusion, the Court found that plaintiffs’ constitutionally protected property interest triggers the District’s obligation to provide due process and that the case must be remanded for “further proceedings to determine what process is ‘due’ to the plaintiffs.” The Court also noted that on remand, the district court could reconsider its jurisdiction over the D.C.-law claims in light of its partial reversal.
Click here for the decision.
TPM Wins Summary Judgment Ruling that High pH Contamination at PPG Waste Site May Present an Imminent and Substantial Endangerment to Human Health and the Environment
In 2012, PennEnvironment and Sierra Club brought a citizen suit against PPG Industries, Inc. for contamination from PPG’s disposal of waste from its glass manufacturing plant in Ford City, Pennsylvania. From 1949 to 1970, PPG disposed of waste slurry in its former sandstone quarry. PPG created three slurry lagoons that cover approximately 77 acres (“SLA”). From the 1920s to the 1970s, PPG also disposed of solid waste in another area of the Site.
For decades, the Pennsylvania Department of Environmental Protection (“PADEP”) has sought unsuccessfully to compel PPG to address the contamination at the Site. In 1971, PADEP issued a Notice of Violation to PPG concerning PPG’s discharge of industrial waste from the Site, and PADEP and PPG entered into a Stipulation and Agreement in which PPG committed to either eliminating or treating its discharges. PPG did not do so. On March 9, 2009, after decades of trying to have the contaminated discharges addressed, PADEP issued an Administrative Order (“Administrative Order”) designed to bring about regulation of the discharges under a National Pollutant Discharge Elimination System (“NPDES”) permit. In the letter accompanying the Administrative Order, PADEP described PPG’s discharges to the Allegheny River and Glade Run as “pos[ing] a significant threat to public health and the environment.”
PPG’s discharge is comprised of contaminated stormwater and leachate. Leachate is formed when uncontaminated stormwater and groundwater pass through the waste and become contaminated with the contaminants from the waste. The leachate discharges or emerges from the waste as seeps that flow or are conveyed to the Allegheny River, Glade Run, or adjacent wetlands. The leachate is contaminated with heavy metals and has a very high pH.
PPG continues to discharge from the Site without an NPDES permit. On December 10, 2014, the District Court for the Western District of Pennsylvania issued a preliminary injunction ordering PPG to file an application for an NPDES permit by March 31, 2015. PennEnvironment v. PPG Industries, Inc., 2014 WL 6982461, at *18 (W.D. Pa. 2014). The permit application is pending.
On August 31, 2015, the district court awarded summary judgment to plaintiffs on PPG’s liability for several claims. The court found that the high pH leachate from the SLA may present an imminent and substantial endangerment to human health and the environment under RCRA. The court found PPG in violation of the Clean Water Act for discharging pollutants into the Allegheny River and its tributaries without an NPDES permit. The court also found that PPG violated the administrative order issued by PADEP.
Click here for the decisions: