NEWS & ANNOUNCEMENTS
Dental Services for Children on DC Medicaid Cannot Be Subject to Arbitrary Limits Set by a Managed Care Organization
On December 7, 2020, Health Services for Children with Special Needs, Inc. (HSCSN), a managed care organization contracted by the District of Columbia Department of Health Care Finance to provide Medicaid services for children with special health care needs in the District, reversed its prior decision denying coverage of a panoramic radiographic image, also known as a whole mouth dental x-ray, for one of its members with developmental delays and autism. HSCSN had denied coverage of the whole mouth dental x-ray because it claimed that the child had reached his limit of one whole mouth dental x-ray every three years.
Terris, Pravlik & Millian, LLP appealed the decision on behalf of the child, showing that the early and periodic, screening, diagnostic and treatment services (EPSDT) provision of the Medicaid statute (42 U.S.C. § 1396d(r)(3)) includes diagnostic dental services, such as a whole mouth x-ray, “at intervals which meet reasonable standards of dental practice” and that arbitrary limitations on such services are impermissible under federal regulations that require that each (42 U.S.C. 440.230(b)) “service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.”
In reversing its decision, HSCSN acknowledged that Delta Dental, its dental benefit manager, has EPSDT guidelines for panoramic x-rays that recognize the need for more frequent dental x-rays for children with special needs. See HSCSN Notification of Resolution of Appeal.
The American Academy of Pediatric Dentistry Children recognizes that children with special health care needs “may be at an increased risk for oral diseases throughout their lifetime.” See AAPD Management of Dental Patients with Special Health Care Needs. As explained by The National Maternal and Child Oral Health Resource Center at Georgetown University (Fact Sheet on Oral Health for Children and Adolescents with Special Health Care Needs (SHCN), Challenges and Opportunities, p. 2):
Environmental factors (e.g., cost of care, difficulty finding a dentist willing to treat children with SHCN, dental offices inaccessible to children with physical limitations) and non-environmental challenges (e.g., oral defensiveness, children’s or parent’s fear of the dentist) contribute to unmet oral health needs for children with SHCN. Children with developmental disorders, Down syndrome, autism spectrum disorders, and cerebral palsy face the most barriers to care.
The AAPD’s recommendations for children and individuals with special health care needs does not set forth any numerical limits on radiographs, recognizing that (Prescribing Dental Radiographs for Infants, Children, Adolescents, and Individuals with Special Health Care Needs, p. 1):
Because each patient is unique, the need for dental radiographs can be determined only after consideration of the patient’s medical and dental histories, completion of a thorough clinical examination, and assessment of the patient’s vulnerability to environmental factors that affect oral health.
Moreover, the AAPD recommends specific measures be taken for children with special health care needs, including, “develop[ing] an individualized oral hygiene program that takes into account the unique disability of the patient[,]” the use of sealants, and the need for “[p]atients having severe dental disease to be seen every two or three months or more if indicated.” See AAPD Management of Dental Patients with Special Health Care Needs. These recommendations are consistent with the District of Columbia’s Dental Periodicity Schedule, which states that the “[t]iming, selection, and frequency [of a radiographic assessment should be] determined by [the] child’s history, clinical findings, and susceptibility to oral disease.”
Therefore, a denial by a District of Columbia Medicaid Managed Care Organization of a dental x-ray or other dental service for a child with special health care needs, on the sole basis that the child has exceeded an arbitrary limit for that dental service, is improper. Such a coverage decision can be reversed with additional information provided by your dentist or with an administrative appeal to your child’s managed care organization.
If your child is having problems getting coverage of dental services, call our Medicaid Hotline (202-682-0578), leave a message with your name, the issue you are having, and your telephone number. One of our paralegals will contact you as soon as possible and within one business day. Legal services on behalf a DC Medicaid eligible child under the age of 21 who has been denied or is having problems receiving a recommended medical or dental service are free of charge.
Hiatus to FOIA Responses Repealed
On September 17, 2020, we posted about the fact that we joined other advocates to urge DC to rescind the hiatus in FOIA responses during the COVID-19 public health emergency. We are happy to report that the Council thereafter repealed that hiatus and the FOIA system is set to return to normal as of January 15, 2021, except where additional time is needed if there is a significant COVID-related risk posed by review of hard copy files.
TPM Joins Other Advocates to Urge DC to Rescind the Hiatus in FOIA Responses During the COVID-19 Public Health Emergency
The DC Freedom of Information Act (FOIA) was put on hold this spring due to the COVID-19 public health emergency. At that time, DC passed emergency legislation that permitted its agencies to stop responding to FOIA requests until the public health emergency is over, even if the agency could safely process the requests. This complete halt in public access to government information is harmful to our democracy and is entirely unnecessary since most public information could be produced without any risk of infection.
Terris, Pravlik & Millian, LLP has joined several advocacy organizations to urge the D.C. Council to restore the government’s FOIA obligations. The request recognizes that there could be some circumstances in which production of information could be made difficult or dangerous due to COVID-19, and explains that, in those circumstances, agencies could extend the deadlines upon written notice of the specific health or safety justification.
Click here to read and support the letter.
TPM Joins Education Advocates to Demand that DCPS and OSSE Provide Appropriate Education to Detained Youth
Terris, Pravlik & Millian, LLP joined several legal advocacy organizations to urge Dr. Lewis Ferebee, Chancellor of the D.C. Public Schools, and Hanseul Kang, State Superintendent of Education, to create a comprehensive plan for the 2020-2021 school year that provides education services to students with disabilities detained in the District’s correctional facilities in compliance with the Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act. The letter describes the complete lack of adequate education for this vulnerable population since the inception of the COVID-19 pandemic.
The letter was signed by Terris, Pravlik & Millian, LLP, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, School Justice Project, Georgetown Law Juvenile Justice Initiative, and Advocates for Justice and Education, Inc.
Click here to read the letter and here to read the DCist’s coverage of the letter.
Margy Kohn and Marjorie Rifkin Join TPM As Of Counsel
Terris, Pravlik & Millian, LLP is proud to announce that two top-notch public interest litigators—Margy Kohn and Marjorie Rifkin—have joined TPM as Of Counsel. Both have committed their careers to public service and bring their decades of legal experience to TPM. Margy Kohn is an expert in issues related to special education and is a critical member of the team working on DL v. District of Columbia . Her bio is here. Marjorie Rifkin is an expert in disability rights and is a critical member of the team working on Brown v. District of Columbia. Her bio is here. We look forward to continuing our work with Margy and Marjorie.
Black Lives Matter.
As a public interest law firm committed to environmental and civil rights for over 50 years, Terris, Pravlik & Millian stands with the DC community and with Black people across the country against discrimination, brutality, and systemic racism in all forms. We are deeply saddened and angered by the murder of George Floyd at the hands of the police. We also grieve the lives of Breonna Taylor, Ahmaud Arbery, and countless others.
While TPM strives to achieve justice though legal means, we also recognize that throughout history and even today, the law has been used as a weapon to deny justice to Black people. As lawyers, we firmly believe that the Constitution must be fairly applied and enforced, whether it is on the street or in the courtroom. We will continue to advocate for the rights of all people, especially those who are underserved and underrepresented in the legal system.
Black lives matter now and always.
Letter Urging the District of Columbia Government to Immediately Address the Life-Threatening Incidence of COVID-19 in Nursing Facilities
Terris, Pravlik & Millian, LLP, represents nursing home residents with AARP Foundation and Disability Rights DC at University Legal Services in Brown v. District of Columbia. We have collectively urged the District of Columbia to immediately address the life-threatening incidences of COVID-19 in nursing facilities in DC. See that letter here.
Click here for additional information regarding this case.
Message Regarding COVID-19 Public Health Emergency
At Terris, Pravlik & Millian, LLP, we are working hard to continue serving our clients during the on-going COVID-19 pandemic. We are operating on our regular office schedule, but many of our lawyers are working from home. Our office is not open for clients to visit without an appointment.
If you are calling our Medicaid Hotline (202-682-0578), please leave a message with your name, the issue you are having, and your telephone number. One of our paralegals will contact you as soon as possible and within one business day. DC Medicaid beneficiaries whose coverage would have otherwise expired as of March 2020 or later will have their Medicaid benefits automatically extended during the COVID-19 federal public health emergency and they do not need to take any action to extend the benefits.
The District of Columbia has compiled information regarding the specific effects of the COVID-19 pandemic on Medicaid beneficiaries, which can be found here.
We wish everyone good health as we work together to combat this public health emergency and we will continue to help in any way we can. To contact us or schedule an appointment, simply give us a call at 202-682-2100 or send us a message here.
Notice to Plaintiff Class in D.L. v. District of Columbia
On February 27, 2020, plaintiffs’ counsel filed a request for an award of attorneys’ fees and expenses in D.L. v. District of Columbia, a class action related to special education services for preschool-aged children in the District of Columbia. The District of Columbia (the defendant) agreed to pay those fees and expenses and the matter has been submitted to the Court for its approval. Class members may file objections with the Court to the fee request on or before April 24, 2020. For additional detail, click here for a copy of the notice related to this motion. Click here for additional information regarding this case.
TPM Announces Nicholas Soares as Newest Partner
Terris, Pravlik & Millian, LLP is pleased to announce Attorney Nicholas F. Soares as its newest partner, effective January 1, 2020. As a partner, Nicholas will continue his work furthering the mission of TPM, to advocate for civil rights and the environment. Nicholas has been a part of the firm since 2012 and has concentrated his practice on environmental litigation, as well as on representing plaintiffs fighting employment discrimination.
Nicholas earned his Juris Doctorate, cum laude, from Georgetown University Law Center in 2012 and has been admitted to the bar in the District of Columbia, Virginia, and the District of Columbia U.S. District Court. While in law school, he served as a student attorney with Georgetown University’s Institute for Public Representation and interned with the Civil Rights Division of the United States Department of Justice. He also served as an editor for the American Criminal Law Review.
Longtime TPM partner Kathleen Millian notes that “Nick brings his keen insights and sense of humor to the work of the firm. We are very pleased that he will be joining us as a partner.” Along with Ms. Millian, all of Nicholas’s colleagues at TPM welcome his promotion and look forward to the contribution that his partnership will bring to the important civil rights and environmental work of TPM.
Notice to Plaintiff Subclasses in D.L. v. District of Columbia
Plaintiffs’ counsel filed a request for an award of attorneys’ fees and expenses in D.L. v. District of Columbia, a class action related to special education services for preschool-aged children in the District of Columbia. The District of Columbia (the defendant) agreed to pay those fees and expenses and the matter has been submitted to the Court for its approval. Subclass members may file objections with the Court to the fee request on or before February 10, 2020. For additional detail, click here for a copy of the notice related to this motion. Click here for additional information regarding this case.
TPM Medicaid Due Process Case Highlighted by National Health Law Program
Senior Attorney at the National Health Law Program, Wayne Turner, highlights Maldonado v. District of Columbia in a recent article about prescription denials entitled, “When Patients Leave the Pharmacy Empty Handed.” Maldonado v. District of Columbia is TPM’s putative class action case challenging the District of Columbia’s systemic failure to provide timely and adequate individualized written notice to persons whose prescriptions are denied Medicaid payment at the pharmacy. In his post, Turner speaks to the human cost of this failure to provide notice, noting that up to forty seven percent of prescriptions submitted by Medicaid beneficiaries are denied coverage on any given day—a statistic that is compounded by the fact that low-income people who rely on Medicaid to pay for their prescribed medications often “have no other means of obtaining potentially life-saving medication.”
Turner explains how health law advocates, including TPM attorney Stephanie Madison and Sheldon Toubman of the New Haven Legal Assistance Association, are taking this issue beyond District lines and advocating for individualized notice on the national level. He notes that the National Council for Prescription Drug Programs was persuaded “to establish a Point of Sale Patient Specific Denial Notice Task Group” by Madison and Toubman who traveled to San Antonio to make their case for individualized notice standards. Along with organizations like the National Health Law Program, TPM continues to fight for the due process rights of Medicaid beneficiaries in the District of Columbia and beyond. Read Wayne Turner’s full article here.
TPM Wins Leave to File a Second Amended Complaint in Medicaid Due Process Notice Case
On April 4, 2019, the United States District Court for the District of Columbia granted plaintiffs, represented by Terris, Pravlik & Millian, LLP and the National Health Law Program, leave to file a Second Amended Complaint over the opposition of the defendant the District of Columbia in Maldonado v. District of Columbia, D.D.C., Civ. No. 10-1511.
The case was brought in 2010 by plaintiffs, a class of Medicaid beneficiaries seeking due process notice when their requests for coverage for prescription medications are denied. Plaintiffs first amended their complaint in 2013, after their standing to bring suit had been recognized by the Court of Appeals for the District of Columbia Circuit.
There have been significant rulings by the district court and the Court of Appeals since 2013. In 2015, the Court of Appeals held that plaintiffs had a protected property interest under the Fifth Amendment of the Constitution in any prescribed medication “not completely excluded from coverage” by Medicaid. In March 2017, the district court found that plaintiffs stated a claim that the District’s current Medicaid prescription medication claims processing system violates the Fifth Amendment’s Due Process Clause by not providing individualized written notice at the point-of-sale to persons denied Medicaid coverage for their prescriptions as written. In plaintiffs’ Second Amended Complaint, plaintiffs add a class representative, supplement the descriptions of recent prescription denial experiences by the class representatives, refine the definition of the plaintiff class, and ensure consistency with the rulings of the district court and the Court of Appeals since 2013.
On May 31, 2019, the District of Columbia filed a partial motion to dismiss plaintiffs’ Second Amended Complaint – its fourth motion to dismiss in the case. On June 28, 2019, plaintiffs opposed the motion to dismiss and filed a cross-motion for partial summary judgment. The parties are currently completing the briefing on the motions.
D.C. Circuit Rejects USAO-ALM Attorneys’ Fees Matrix in DL v. District of Columbia
DL v. District of Columbia is a class action seeking to remedy the District of Columbia’s failure to provide and timely provide special education services to preschoolers with disabilities. After years of litigation, in 2016, the District Court found the District of Columbia liable and ordered sweeping injunctive relief, which the Court of Appeals subsequently affirmed. Plaintiffs’ counsel are working to ensure that the District of Columbia makes the improvements needed to comply with the injunction and appropriately serve the District’s children.
The parties to this case have also been involved in a lengthy dispute regarding the amount of attorneys’ fees that must be paid by the District of Columbia to plaintiffs’ counsel for their work to effectuate this change. The District argued that plaintiffs’ fee award should be based on hourly rates from the USAO-ALM Matrix, which is a new matrix of attorneys’ hourly rates developed by the United States Attorney’s Office for the District of Columbia. That matrix provides hourly rates that are substantially below market rates for complex federal litigation in the District of Columbia.
In the most recent development in that dispute, on May 21, 2019, the Court of Appeals for the District of Columbia Circuit rejected the USAO-ALM Matrix because it is “based on data for all types of lawyers—not just those who litigate complex federal cases—from the entire metropolitan area—not just the District of Columbia.” The Court explained that “[t]he USAO’s matrix is helpful only if it canvasses the relevant type of lawyer, which it does not.” It also stated that the USAO-ALM Matrix is based on data for the wrong geographic area, explaining that its geographic area “stretches well beyond the District to cover thousands of square miles over three states, from rural Madison County, Virginia, to the eastern shore of Maryland, back to the foothills of Jefferson County, West Virginia.”
This decision should result in the ultimate award of attorneys’ fees in this case at market rates for complex federal litigation in the District of Columbia. Congress used fee-shifting provisions in civil rights and other laws to improve access to justice for those that cannot afford counsel. This decision furthers that purpose because it takes plaintiffs’ counsel one step closer to being compensated at market rates.
A copy of the decision is here. More information about this case is here. Please contact Todd Gluckman at 202-204-8482 or tgluckman@tpmlaw.com if you have any questions.
Funds Are Available under the Salazar Class Action for Projects to Benefit Children on DC Medicaid
Approximately $1.2 million is available in the Salazar Penalty Escrow Account Fund to be granted to court-approved projects that will improve the health of Medicaid eligible children and their families in the District of Columbia.
The Salazar Penalty Escrow Account Fund was set up by the United States District Court for the District of Columbia in 2010 with funds deposited by the District of Columbia to pay penalties assessed against it by the Court in Salazar v. District of Columbia, Civil Action No. 93-452. The funds must be used solely for the benefit of the Salazar plaintiff class, which includes Medicaid eligible children in the District of Columbia. The court order establishing the fund is available here. As of April 2018, the fund contains $1,295,279.45. The distribution of the funds is subject to court approval.
In the past, the Salazar Penalty Escrow Account Fund has been used for a project to encourage higher rates of blood lead testing by purchasing point-of-care blood lead testing equipment for pediatric practices and to pay for a report by the National Academy for State Health Policy (NASHP) concerning the potential use of national quality child health measures and electronic reporting to track and improve the delivery of health services to Medicaid-enrolled children in the District of Columbia.
For further information, please contact plaintiffs’ attorney, Zenia Sanchez Fuentes, at zsanchez@tpmlaw.com or at 202-204-8484.
TPM Wins Summary Judgment Ruling That Environmental Groups Have Constitutional Standing to Sue NL Industries for Contaminating River Sediments
On March 27, 2018, the United States District Court for the District of New Jersey issued a decision in Raritan Baykeeper v. NL Industries granting summary judgment to environmental groups Raritan Baykeeper and Edison Wetlands Association on the issue of constitutional standing. The district court held that these groups have standing to sue NL Industries under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972(a)(1)(B), for contaminating the sediments of the Raritan River with heavy metals such as arsenic, copper, lead, nickel, and zinc. The district court’s decision came after a five-day evidentiary hearing in May 2017 in which plaintiff members testified about their environmental and recreational interests in the river and their concerns that contamination would diminish these interests. Click here to read the decision.
For almost a half-century, NL operated a titanium dioxide production plant in Sayreville, New Jersey, on a peninsula bordering the Raritan River. NL’s discharges from the site, during the plant’s operation and after its closure, caused high levels of metals to accumulate in the sediments of the river adjacent to the site. These metals may cause an imminent and substantial endangerment to human health and the environment. Raritan Baykeeper and Edison Wetlands Association filed this case in August 2009, in order to compel NL to clean up the sediment contamination that it caused.
The land portion of the former NL site is currently undergoing remediation for a redevelopment project called Riverton. Although the redeveloper intends to build a marina offshore in the Raritan River, as of now, there is no plan to clean up the sediments. With the district court’s ruling that plaintiffs have standing under RCRA, Raritan Baykeeper and Edison Wetlands Association can now seek a trial on the merits to compel a cleanup of the river sediments.
TPM has a long history of fighting to ensure that citizen-plaintiffs have access to the federal courts and has established many landmark decisions on the issue of standing, including the Supreme Court case Friends of the Earth v. Laidlaw and the court of appeals cases Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., ICO v. Honeywell, Inc., and Public Interest Research Group of New Jersey v. Powell Duffryn Terminals Inc. TPM is pleased that the district court followed these cases in reaching its decision.
To read a press release issued by Raritan Baykeeper on April 2, 2018, click here.
To read local news coverage of the decision published on April 5, 2018, click here.
TPM to Participate in Symposium on Environmental Law at Georgetown University Law Center
Kathy Millian will speak on a panel about the future of environmental law at the 30th Anniversary Symposium sponsored by the Georgetown Environmental Law Review entitled “From Exxon to Paris: An Examination of Environmental Law Over the Past 30 Years.” The symposium will be held at the law school on Friday, April 13. Ms. Millian litigated Interfaith Community Organization v. Honeywell, an important citizen suit enforcing RCRA and resulting in a comprehensive clean-up of a site and the nearby river sediments contaminated by hexavalent chromium.
Lynn Cunningham Retires as Of Counsel to TPM
After more than 40 years of practicing law and 22 years as of counsel with Terris, Pravlik & Millian, LLP, our good friend and colleague Lynn Cunningham has announced that he is retiring from the practice of law. We will miss him and wish him luck in his future endeavors.
Lynn’s legal career is a testament to his life-long commitment to advocate for the public interest. Over his 40-year legal career, Lynn has represented the neediest people in Washington DC and elsewhere to gain access to health care, housing, and welfare through impact litigation in the federal and local courts. Lynn is also an Episcopal priest who was the Rector of St. Thomas Episcopal Church in Dubois, Wyoming from 2005 to 2011.
Lynn graduated from Cornell University in 1966 and Union Theological Seminary in 1969. After graduating from Columbia University Law School in 1972, Lynn began his legal career with the New York firm of Lovejoy, Wasson, Lundgren & Ashton. In 1975, Lynn moved to Washington DC, where he joined the law offices of Florence Wagman Roisman, which served as the Washington Branch Office of the National Housing Law Project. There, he worked on complex class actions, including a successful nationwide class action lawsuit against the U.S. Department of Housing and Urban Development (HUD) to release $60 million in impounded multifamily housing subsidy funds, an action against HUD to prevent the demolition of a low-income housing project in the District of Columbia, and an action against the U.S. Secretary of Labor to provide employment goals and timetables for women in the skilled construction trades.
In 1977, Lynn joined the nonprofit law firm Neighborhood Legal Services Program, where he worked in the Law Reform Unit and became the managing attorney of the unit in 1980. At Neighborhood Legal Services, Lynn practiced as lead counsel or co-counsel in major litigation in the District of Columbia in the areas of landlord-tenant, low-income housing, consumer protection, homelessness, and public benefits, resulting in substantial relief for the plaintiffs in those cases.
In 1993, Lynn joined Terris, Pravlik & Millian, LLP, in bringing a successful class action lawsuit, Salazar v. District of Columbia, challenging the District of Columbia’s operation of its Medicaid program on behalf of Medicaid recipients and applicants to enforce their statutory and Constitutional rights. In 1996, Lynn joined Terris, Pravlik & Millian, LLP, as of counsel. For the past 20 years, Lynn has been providing strategic advice as co-counsel in Salazar, as the firm continues to monitor and enforce the District of Columbia’s compliance with a consent decree in that case. His knowledge of class reform litigation in the District of Columbia has been invaluable to the firm.
In 1996, Lynn became a professor of clinical law at the George Washington University Law School, where he co-led the Public Justice Advocacy Clinic teaching students to vigorously advocate for the most disadvantaged members of society. During his tenure as professor at George Washington University Law School, he acted as lead counsel or co-counsel in class action lawsuits on behalf homeowners who lost their homes as a result of the failure of their mortgage lenders to maintain proper licenses for making mortgage loans in the District of Columbia, school children with disabilities challenging the failure of the D.C. Public Schools to maintain emergency evacuation plans, and prisoners in the D.C. jail who were illegally strip searched and detained beyond their release dates in violation of their Constitutional rights. He retired as Professor Emeritus of Clinical Law in 2005. From 2005 to 2017, Lynn continued practicing as a solo practitioner in complex federal litigation under the Constitution or federal statutes on behalf of incarcerated and low-income people.
Lynn has published many articles on affordable housing and poverty issues, most notably updating the Neighborhood Legal Services Program Landlord and Tenant Manual, a widely used reference manual on landlord-tenant law. In recognition of his contributions to the public interest, Lynn has been awarded the Legal Aid Society of DC Servant of Justice Award, the Stuart Stiller Award, and the Jerrold Scoutt Prize.