# Brown v. District of Columbia

> District Court, District of Columbia · December 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10772948

## Case

- **Court:** District Court, District of Columbia
- **Decided:** December 31, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Paul L. Friedman
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10772948

## How later opinions describe it (automated extraction)

- recognizing that “unjustified institutional isolation of persons with disabilities is a form of discrimination”
- noting that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it”
- noting that states must have some “leeway” “[t]o maintain a range of facilities and to administer services with an even hand”
- observing that Georgia was at the time utilizing less than a third of its available waivers
- recognizing “the States’ need to maintain a range of facilities for the care and treatment of persons with diverse . . . disabilities, and the States’ obligation to administer services with an even hand”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
IVY BROWN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-2250 (PLF)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
____________________________________)

OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

This case was tried before the Court without a jury for all or portions of 20 days

in the Fall of 2021. Because the trial took place during the early days of the COVID pandemic,

the trial was conducted virtually.

Upon careful review of the witness testimony and the exhibits admitted at trial,

the relevant evidence from the first trial before Judge Ellen Segal Huvelle, the parties’

arguments, and the applicable statutes, regulations, and case law, the Court finds that the District

of Columbia has failed to comply with the integration mandate of Olmstead v. L.C. ex rel.

Zimring, 527 U.S. 581 (1999), thereby violating the Americans with Disabilities Act and

Section 504 of the Rehabilitation Act. The Court also considered the “fundamental alteration

defense” under Olmstead and has concluded, based on the evidence presented at trial, that the

District has failed to demonstrate that three of the four accommodations requested by plaintiffs

are unreasonable. The Court therefore will enter judgment for the plaintiffs.
I. BACKGROUND

Plaintiffs are a class of physically disabled individuals who have received

Medicaid-funded long-term care in nursing facilities for more than 90 days but wish to transition

– and are capable of transitioning – to the community to receive home- and community-based

long-term care. Plaintiffs contend that the District has for decades violated Title II of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of

the Rehabilitation Act, 29 U.S.C. § 794 et seq., by causing their unjustified segregation in

nursing facilities (i.e., institutions). Proceeding under the framework of Olmstead v. L.C. ex rel.

Zimring (“Olmstead”), 527 U.S. 581 (1999), plaintiffs seek declaratory and injunctive relief to

compel the District to alter its policies and procedures so as to better facilitate the plaintiffs’

successful transition to the community.

A. The Integration Mandate and Olmstead

“Title II of the ADA and Section 504 of the Rehabilitation Act, along with their

implementing regulations, require that public entities and programs receiving federal funds take

reasonable steps to avoid administering their programs in a manner that results in the segregation

of individuals with disabilities.” Brown v. District of Columbia (“Brown I”), 322 F.R.D. 51, 53

(D.D.C. 2017); see also 42 U.S.C. § 12101(b)(1) (“It is the purpose of [the ADA] . . . to provide

a clear and comprehensive national mandate for the elimination of discrimination against

individuals with disabilities . . . .”).

Title II of the ADA provides that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132; see also id. § 12131(2) (defining a “qualified individual with a

2
disability” as “an individual with a disability, who, with or without reasonable modifications to

rules, policies, or practices, the removal of architectural, communication, or transportation

barriers, or the provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs or activities provided by

a public entity”).1 Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise

qualified individual with a disability in the United States . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C.

§ 794(a).

Pursuant to its authority to issue implementing regulations, the Attorney General

of the United States promulgated several regulations elaborating on the government’s obligations

under Title II. Pertinent here, “[a] public entity shall administer services, programs, and

activities in the most integrated setting appropriate to the needs of qualified individuals with

disabilities.” 28 C.F.R. § 35.130(d) (emphasis added); see also 28 C.F.R. Pt. 35, App. B

(defining “the most integrated setting appropriate to the needs of qualified individuals with

disabilities” as “a setting that enables individuals with disabilities to interact with non-disabled

persons to the fullest extent possible”). Similarly, pursuant to an implementing regulation of

Section 504 of the Rehabilitation Act, recipients of federal funds (including public entities) must

1
The ADA defines a “disability” to include, “with respect to an individual . . . a
physical or mental impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. § 12102(1)(A). And “[a] ‘public entity’ is ‘any State or local
government,’ and ‘any department, agency, [or] special purpose district,’ including the District
of Columbia.” Brown I, 322 F.R.D. at 53 (quoting 42 U.S.C. § 12131(1)(A), (B)).

3
“administer programs and activities in the most integrated setting appropriate to the needs of

qualified handicapped persons.” 28 C.F.R. § 41.51(d) (emphasis added).

In Olmstead v. L.C. ex rel. Zimring, a majority of the Supreme Court interpreted

Title II of the ADA and its implementing regulations to hold that the unjustified placement,

retention, or isolation of persons with disabilities in institutions constitutes a form of

discrimination on the basis of disability. 527 U.S. at 596-97; see also id. at 601 (noting that

disabled individuals who are unjustifiably institutionalized experience dissimilar treatment

because they are required to “relinquish participation in community life they could enjoy given

reasonable accommodations” in order to receive medical services, while those without

disabilities are not required to make such a sacrifice to receive medical services).2 In adopting

the ADA, Congress expressly found that “historically, society has tended to isolate and segregate

individuals with disabilities, and, despite some improvements, such forms of discrimination

against individuals with disabilities continue to be a serious and pervasive social problem,” and

that “individuals with disabilities continually encounter various forms of discrimination,

including outright intentional exclusion, . . . failure to make modifications to existing facilities

and practices, . . . [and] segregation.” Olmstead, 527 U.S. at 600 (quoting 42 U.S.C.

§ 12101(a)(2), (5)).3

2
Although “Olmstead dealt specifically with the ADA and the mentally disabled[,]
. . . its analysis applies equally to the Rehabilitation Act and the physically disabled.” Brown v.
District of Columbia (“Brown II”), 928 F.3d 1070, 1077 n.6 (D.C. Cir. 2019) (citing Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (“[T]he courts have
tended to construe section 504 in pari materia with Title II of the ADA . . . .”)); accord Sanchez
v. Johnson, 416 F.3d 1051, 1062 (9th Cir. 2005); Steimel v. Wernert, 823 F.3d 902, 909 (7th Cir.
2016).
3
The Supreme Court recognized “two evident judgments” that justified its holding.
Olmstead, 527 U.S. at 600. “First, institutional placement of persons who can handle and benefit
from community setting perpetuates unwarranted assumptions that persons so isolated are

4
The Supreme Court in Olmstead recognized an “integration mandate” under the

ADA to “integrate eligible patients [with disabilities] into local community-based settings.”

Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 157 (3d Cir. 2005); see Steimel v.

Wernert, 823 F.3d 902, 909 (7th Cir. 2016); Arc of Wash. State Inc. v. Braddock, 427

F.3d 615, 618 (9th Cir. 2005). Such integration “is in order when [1] the State's treatment

professionals have determined that community placement is appropriate, [2] the transfer from

institutional care to a less restrictive setting is not opposed by the affected individual, and [3] the

placement can be reasonably accommodated, taking into account the resources available to the

State and the needs of others with . . . disabilities.” Olmstead, 527 U.S. at 587.

A plurality of the Supreme Court went on to note, however, that “[t]he State’s

responsibility, once it provides community-based treatment to qualified persons with disabilities,

is not boundless.” Olmstead, 527 U.S. at 603. Rather, “[a] public entity shall make reasonable

modifications in policies, practices, or procedures when the modifications are necessary to avoid

discrimination on the basis of disability, unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature of the service, program, or activity.” 28

C.F.R. § 35.130(b)(7); see also Olmstead, 527 U.S. at 605 (noting that states must have some

“leeway” “[t]o maintain a range of facilities and to administer services with an even hand”).

The plurality of the Court recognized two affirmative defenses that a public entity

may prove to demonstrate that plaintiffs’ requested accommodations are unreasonable. First, a

state may “show that, in the allocation of available resources, immediate relief for the plaintiffs

incapable or unworthy or participating in community life.” Id. “Second, confinement in an
institution severely diminishes the everyday life activities of individuals, including family
relations, social contacts, work options, economic independence, educational advancement, and
cultural enrichment.” Id. at 601.

5
would be inequitable, given the responsibility the State has undertaken for the care and treatment

of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at

604. Second, the state may “demonstrate that it ha[s] a comprehensive, effectively working plan

[now called an “Olmstead Plan”] for placing qualified persons with mental disabilities in less

restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the

State’s endeavors to keep its institutions fully populated.” Id. at 605-06; see also Arc of Wash.

State Inc. v. Braddock, 427 F.3d at 618 (noting that courts “normally ‘will not tinker with’

comprehensive, effective state programs for providing care to the disabled”).

B. Factual and Procedural History

On December 23, 2010, plaintiffs filed a putative class action against the District

of Columbia seeking declaratory and injunctive relief, claiming that defendants had violated

Title II of the ADA and Section 504 of the Rehabilitation Act. See Complaint [Dkt. No. 1]; see

also Brown I, 322 F.R.D. at 56-57.4 Specifically, plaintiffs alleged that the District of Columbia

has caused numerous individuals with physical disabilities “to be confined unnecessarily in

nursing facilities in order to obtain long-term care services, rather than facilitate [those

individuals’] transition to the community with appropriate services and supports.” Fourth

Amended Complaint [Dkt. No. 162] ¶ 135. To remedy the District of Columbia’s alleged

violations of the ADA and the Rehabilitation Act, plaintiffs requested that the Court enter a

permanent injunction requiring the District of Columbia to take four actions:

4
Judge Ellen Segal Huvelle presided over this case until her retirement, at which
time the case was reassigned to the undersigned. Judge Huvelle’s opinions set out the detailed
background of this case, so the Court will include only the relevant factual and procedural
history here. See Brown I, 322 F.R.D. at 56-64; see also Day v. District of Columbia, 894 F.
Supp. 2d 1 (D.D.C. 2012); Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014).

6
(i) 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.

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

(iii) 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:

80 class members in Year 1;

120 class members in Year 2;

200 class members in Year 3; and

200 class members in Year 4.

(iv) 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 assisted
by Defendant to transition to the community with long-term care
services through each of the MFP, EPD, and PCA, and other long-
term care programs; and the aggregate dollars Defendant saves (or
fails to save) by serving individuals in the community rather than
in nursing facilities.

7
Fourth Amended Complaint at 31-32.

On March 29, 2014, the Court certified a class of plaintiffs pursuant to Rule 23 of

the Federal Rules of Civil Procedure consisting 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 [Dkt. No. 129] at 1; see Thorpe v. District of Columbia, 303 F.R.D. at 152, petition for

appeal of class cert. denied, In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015). In 2016,

Judge Huvelle conducted a bench trial to determine whether the District of Columbia was

“liable,” reserving until a later phase, if necessary, the question of what an appropriate remedy

might be. See Brown I, 322 F.R.D. at 61-62. At the outset, the Court observed that for plaintiffs

to prevail, they had “to show a systemic policy or practice of the District’s operation of its

Medicaid system that has caused a common harm to plaintiffs” in the class and further “that the

common harm can be remedied by a single injunction, which would result in the class members

being transitioned out of the nursing facilities.” Brown I, 322 F.R.D. at 53 (citing FED. R. CIV.

P. 23).

In September 2017, after the trial, Judge Huvelle concluded that plaintiffs had

failed to prove that the District of Columbia had violated the ADA and the Rehabilitation Act

and entered judgment for the District. See Brown I, 322 F.R.D. at 96. The Court concluded that

plaintiffs had failed to prove “the existence of a concrete systemic deficiency in the District’s

transition services” that had caused plaintiffs “to remain in nursing facilities despite their

preference to receive long-term care in the community.” Id. at 87; see also id. at 56 (noting that,

8
under Rule 23, “to prevail on the merits and obtain the relief they seek, plaintiffs [must] prove

concrete[,] systemic deficiencies in the District’s system of transition assistance and that these

deficiencies have caused a common harm to class members” (alteration in original) (internal

quotation omitted)) . Furthermore, in her judgment, plaintiffs had failed to prove either that any

systemic deficiency caused plaintiffs’ institutionalization or that the harm could be addressed by

a single injunction. See id.

On appeal, the D.C. Circuit reversed, holding that the Court had erred by

requiring plaintiffs to shoulder the burden at trial of proving a “‘concrete, systemic deficiency’ in

the District’s transition services.” See Brown v. District of Columbia (“Brown II”), 928

F.3d 1070, 1079 (D.C. Cir. 2019). The court concluded that under Olmstead it is the District of

Columbia that should “bear[] the burden of proving the unreasonableness of [plaintiffs’]

requested accommodation[s]” because plaintiffs had already established that “community

placement is appropriate” and that “the transfer from institutional care to a less restrictive setting

is not opposed.” Id. at 1077 (quoting Olmstead, 527 U.S. at 600); accord Frederick L. v. Dep’t

of Pub. Welfare of Pa., 364 F.3d 487, 492 n.4 (3d Cir. 2004) (“Under this scheme, the plaintiff

first bears the burden of articulating a reasonable accommodation. The burden of proof then

shifts to the defendant, who must establish that the requested relief would require an unduly

burdensome or fundamental alteration of state policy in light of its economic resources and its

obligation to other [disabled] persons in the institutional setting.”).

The D.C. Circuit proceeded to lay out two alternative ways that that the District

can carry its burden. First, the District can “‘demonstrate that it ha[s] a comprehensive,

effectively working plan for placing qualified persons with [physical] disabilities in less

restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the

9
State’s endeavors to keep its institutions fully populated,’ i.e., an ‘Olmstead Plan.’” Brown II,

928 F.3d at 1078 (quoting Olmstead, 527 U.S. at 605-06). Second, if the District cannot

demonstrate that it has an adequate Olmstead Plan, it can demonstrate that each of plaintiffs’

requested modifications to the District’s policies and procedures “would be so costly as to

require an unreasonable transfer of the State’s limited resources away from other disabled

individuals.” Id. at 1078. If it cannot demonstrate either, the District “must make every

[reasonable] modification to its policies and procedures requested by an institutionalized

disabled individual who wishes to, and could, be cared for in the community.” Id.

Because this Court failed to analyze plaintiffs’ claims “in clear terms and under

the correct burden of proof,” the D.C. Circuit remanded the case for further factfinding and

consideration. Brown II, 928 F.3d at 1084; see also id. at 1083-85 (providing detailed remand

instructions). Although on remand this Court remains “free to apply certain facts that it has

already found to the legal standards articulated” by the court of appeals, id. at 1085, it cannot

reuse “facts that were found based on an improper allocation of the burden of proof [on

plaintiffs],” id. at 1085 n.14. 5

5
The D.C. Circuit also addressed the parties’ disputes regarding whether the case
was properly certified as a class action under Rule 23(a)(2) and (b)(2) of the Federal Rules of
Civil Procedure. See Brown II, 928 F.3d at 1079-83. With respect to the former, the court of
appeals observed that “on the current record, there does not appear to be a Rule 23(a)(2)
deficiency” because “common proof will lead to common answers” to the questions on which
plaintiffs’ claims turn. Id. at 1082. And with respect to the latter, the court suggested that the
certified class action was proper because an injunction favoring plaintiffs would satisfy Rule
23(b)(2) so long as it “improved [each plaintiff’s] likelihood of achieving the legally mandated
outcome,” i.e., transition to the community. Id. at 1083; see also id. (noting “that the Supreme
Court has called ‘[c]ivil rights cases against parties charged with unlawful, class-based
discrimination’ like this one, ‘prime examples of what (b)(2) is meant to capture’” (quoting Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 361 (2011))). The court of appeals noted, however,
that on remand this Court may modify or decertify the class as necessary. See id. at 1085; see
also FED. R. CIV. P. 23(c)(1)(C) (“An order that grants or denies class certification may be
altered or amended before final judgment.”).

10
After additional discovery and pretrial litigation, this case proceeded to a second

bench trial before the undersigned that commenced on October 25, 2021.6 Pursuant to the D.C.

Circuit’s remand instructions regarding burden of proof, the District presented its case-in-chief

first over eight days, calling eight witnesses and introducing numerous exhibits. Plaintiffs then

presented their opposition case over eight-and-a-half days, calling eleven witnesses (two of

whom had testified during the District’s case-in-chief) and introducing numerous exhibits. The

District presented its rebuttal case over two-and-a-half days, calling four witnesses (recalling two

witnesses from its case-in-chief) and introducing additional exhibits. The parties presented their

closing arguments on the twentieth day of trial, December 20, 2021.

After the conclusion of the bench trial and in accordance with the schedule set by

the Court, see Order [Dkt. No. 435], the parties simultaneously filed proposed findings of fact

and conclusions of law, see Defendant’s Proposed Findings of Fact and Conclusions of Law

[Dkt. No. 442]; Plaintiffs’ Proposed Findings of Fact and Conclusions of Law [Dkt. No. 441],

and their respective responses thereto, see Plaintiffs’ Response to Defendant’s Proposed Findings

of Fact and Conclusions of Law [Dkt. No. 446]; Defendant’s Response to Plaintiffs’ Proposed

Findings of Fact and Conclusions of Law [Dkt. No. 447].7 In addition, at the Court’s invitation,

6
On November 30, 2021, the parties jointly stipulated to the dismissal of one of
three remaining named plaintiffs. See Joint Stipulation of Dismissal of Donald Dupree [Dkt.
No. 429].
7
In addition, plaintiffs filed two motions to strike portions of the District’s
submissions that assertedly relied on material that is not part of the evidentiary record. See
Plaintiffs’ Motion to Strike Portions of Defendant’s Proposed Findings of Fact and Conclusions
of Law That Are Based Upon Documents That Were Not Admitted Into Evidence [Dkt.
No. 445]; Plaintiffs’ Motion to Strike Portions of Defendant’s Response to Plaintiffs’ Findings of
Fact and Conclusions of Law [Dkt. No. 453]. Having reviewed plaintiffs’ objections and the
District’s responses, the Court denied both motions by Order of September 18, 2024. See Order
of September 18, 2024 [Dkt. 503]. The Court stated in that order that it will not rely in this
Opinion on those portions of the District’s submissions that are still in dispute, thus rendering the

11
the parties filed supplemental post-trial briefs in January 2024. See Plaintiffs’ Supplemental

Post-Trial Brief [Dkt. No. 497]; Defendant’s Supplemental Memorandum [Dkt. No. 498];

Defendant’s Response to Plaintiffs’ Supplemental Post-Trial Brief [Dkt. No. 499]; and Plaintiffs’

Response to Defendant’s Supplemental Post-Trial Brief [Dkt. No. 500].8

After carefully considering all of the admissible evidence from both bench trials

in this case, making credibility findings as necessary, and after reviewing the parties’

voluminous filings and the applicable law, the Court makes the following findings of fact and

conclusions of law. See FED. R. CIV. P. 52(a).

II. FINDINGS OF FACT

As the D.C. Circuit instructed, the trial focused on “whether the District can

establish that the plaintiffs’ requested accommodations are in fact unreasonable.” Brown II, 928

motions moot. It has relied in this Opinion exclusively on material that has been admitted in
evidence in order to resolve this case.

8
In their filings, the parties agreed that there had been no material changes in the
applicable law since the close of trial, except with regard to one case, United States v. Florida,
682 F. Supp. 3d 1172 (S.D. Fla. 2023). Defendant’s Response to Plaintiffs’ Supplemental Post-
Trial Brief at 1. In that case, the court held the state liable for unjustifiably segregating
medically complex children in need of long-term care by institutionalizing them rather than
placing them in the most integrated setting appropriate to their needs, in violation of the ADA.
See United States v. Florida, 682 F. Supp. 3d 1172. Plaintiffs argued that the District of
Columbia, like the state of Florida, “failed to address [ ] barriers through reasonable
accommodations to help the [plaintiff class] realize their integration rights.” Plaintiffs’ Response
to Defendant’s Supplemental Post-Trial Brief at 3. The District pointed out “several key
differences” between this case and the Florida case, including the fact that it involved private
duty nursing and the long waiting list for Medicaid waivers in Florida. Defendant’s
Supplemental Memorandum at 2-3. It noted that there is no waiting list at all for EPD waivers in
the District of Columbia. Id. at 3. The Court finds that the decision in the Florida case was
largely fact-based and, as defendant points out, arose in a very different context from the one at
issue here. The Court concludes that United States v. Florida is not relevant to its analysis in the
instant case.

12
F.3d at 1083-84. As that court held, the District can meet its burden of proof in one of two ways.

First, “[t]he District can establish that it has a ‘comprehensive, effectively working plan’ for

transitioning [plaintiffs] to the community and a ‘waiting list [for transition to the community]

that move[s] at a reasonable pace,’ i.e., an adequate ‘Olmstead Plan.’” Id. at 1084 (third and

fourth alterations in original) (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. at 605-06).

Second, if it cannot do so, “the District can establish, seriatim, that each of the four provisions of

Plaintiffs’ requested injunction would be so costly as to require an unreasonable transfer of the

District’s limited resources from other disabled individuals.” Id.

The following findings of fact are based on the live testimony of witnesses at trial,

the documentary evidence admitted at trial, factual findings from the first bench trial in this case

that have been reaffirmed under the correct burden of proof, see Brown II, 928 F.3d at 1085 n.14,

and the parties’ stipulations of undisputed facts.

A. The District’s Witnesses

The District of Columbia offered live testimony from the following District

officials and employees and from one expert witness. The District also offered live testimony

from the two named plaintiffs and one of their guardians during plaintiffs’ case-in-chief.

Melisa Byrd

1. Melisa Byrd has been the Medicaid Director and Senior Deputy Director of the

D.C. Department of Health Care Finance (“DHCF”) since October 2018. See Trial Transcript

(“Tr.”) at 39:8-16, 41:13-15 (Byrd). In that role, Ms. Byrd oversees DHCF’s administration of

the District’s Medicaid State Plan and other programs, and she also plays a role in the agency’s

13
policy decisions, budget formulation and decisions, and compliance with federal law, including

the Medicaid statute. See id. at 41:16-42:11, 43:18-20 (Byrd).9

Tamara Freeman

2. Tamara Freeman is a supervisory nurse consultant in the Health and Regulation

and Licensing Administration of the D.C. Department of Health (“DOH”). See Tr. at 310:24-

311:5 (Freeman). Ms. Freeman holds a bachelor’s degree in nursing and a master’s degree in

nursing leadership, is certified by the Centers for Medicare and Medicaid Services (“CMS”) to

conduct long-term care surveys, is a registered nurse, and was the director of nursing at a long-

term care facility before joining DOH 15 years ago. See id. at 311:10-8 (Freeman). As a

supervisory nurse consultant, Ms. Freeman oversees a team of nurses and a sanitarian who visit

and inspect long-term care facilities to ensure that the care and services provided to residents

accord with federal and state regulations. See id. at 312:21-313:8 (Freeman).

Laura Newland

3. Laura Newland has been the Director of the D.C. Department of Aging and

Community Living (“DACL”), previously known as the D.C. Office on Aging (“DCOA”), for

about six years. See Tr. at 499:7-15 (Newland). In that role, Ms. Newland oversees the agency,

which provides services and supports, directly or through grants or contracts, to D.C. residents

aged 60 years and older, adults with disabilities, and their caregivers. See id. at 502:12-503:8

(Newland). Ms. Newland personally played a role in drafting the District’s Olmstead Plan and

9
The present tense is frequently used throughout this Opinion. Certain statements of fact –
including the jobs held by witnesses and their titles – may not be accurate today. But the
evidence in this case closed on the last day of this non-jury trial, December 20, 2021. The facts
stated herein reflect the evidence and testimony as of the time of trial.

14
oversees DACL’s implementation of its portion of the plan. See id. at 507:9-13, 508:16-21,

549:10-550:9 (Newland).

4. Before beginning her current role, Ms. Newland was special assistant for

community living to the Deputy Mayor for Health and Human Services, Brenda Donald. See Tr.

at 499:23-500:4 (Newland). In that role, Ms. Newland investigated the system of long-term

services and supports provided through various D.C. agencies – including DACL, the D.C.

Department of Health Care Finance (“DHCF”), the D.C. Department of Behavioral Health,

DOH, the D.C. Department on Disability Services, and the Office of Disability Rights – and

sought to increase collaboration between the agencies. See id. at 500:13-19, 506:20-506:1,

553:23-554-9 (Newland). She also studied the EPD Waiver application process and made

recommendations to the Deputy Mayor on how to improve the process. See id. at 500:23-501:7

(Newland).

Dr. Heather Stowe

5. Dr. Heather Stowe was the Clinical Director of DACL from June 2019 through

October 2021. See Tr. at 965:11-20 (Stowe). Dr. Stowe has a Ph.D. in social work and is a

licensed clinical social worker, having worked in social work for approximately 30 years. See

id. at 967:11-13, 968:1-20 (Stowe). As the Clinical Director, Dr. Stowe worked to ensure that

the teams within DACL that provided direct services to clients were able to do so in an efficient,

effective, and person-centered manner that allowed individuals to live safely in the community as

long as possible. See id. at 970:18-24 (Stowe). She also was responsible for improving the

professionalism of the clinical teams, particularly by establishing standard operating procedures

and data collection practices. See id. at 972:11-23.

15
Carolyn Punter

6. Carolyn Punter was the Senior Vice President of the Housing Choice Voucher

Program and Eligibility and Continued Occupancy Division of the D.C. Housing Authority

(“DCHA”) until late 2021. See Tr. at 1200:1-4 (Punter). Ms. Punter was responsible for

overseeing the administration of locally- and federally-funded housing choice vouchers,

inspections of units paid for with those vouchers, and the maintenance and management of the

housing choice voucher wait list. See id. at 1200:17-24 (Punter).

Kristy Greenwalt

7. Kristy Greenwalt is an independent consultant who works with various cities,

including the District of Columbia, to shape their homeless service system response. See Tr. at

1428:19-22 (Greenwalt). From 2014 to 2021, Ms. Greenwalt was the D.C. Director to End

Homelessness, also known as the Director of the Interagency Council on Homelessness, a body

composed of government officials and private- and nonprofit-sector partners that guide the

District of Columbia’s homeless service system response. See id. at 1428:23-1430:8

(Greenwalt).

Jennifer Reed

8. Since October 2017, Jennifer Reed has served as the Director of the D.C. Office

of Budget and Performance Management. See Tr. at 1565:6-14 (Reed). In that position, Ms.

Reed leads a budget team that is responsible for the formulation and implementation of the

mayor’s annual budget and financial plan, a performance team to drive strategic planning and

service improvements across the District, and a third team that uses academic insights to improve

District policies and programs. See id. at 1566:24-1567:20.

16
Gwendolyn Noonan-Jones

9. Gwendolyn Noonan-Jones is a transition care specialist at DACL, where she

assists nursing facility residents to safely transition back to the community to receive services.

See Tr. at 3544:15-20 (Noonan-Jones). Ms. Noonan Jones worked with Ivy Brown, one of the

two named plaintiffs, as her transition care specialist from 2016 to 2018. See id. at 3545:23-

3546:9 (Noonan-Jones).

Jemila Darku

10. Jemila Darku was a transition care specialist at DACL from 2013 to 2016, and she

worked with Ivy Brown as her transition care specialist from 2014 to 2016. See Tr. 3589:2-11,

3611:1-6, 3613:20-22 (Darku); see also id. at 3546:5-15 (Noonan-Jones). Since 2019, Ms.

Darku has served as the community outreach coordinator for the community transition program

of DACL, in which capacity she provides information to nursing facility residents, social

workers, guardians, and family caregivers about the District’s community transition program.

See id. at 3589:19-3590:4 (Darku).

Wanda Seiler

11. Wanda Seiler was retained by the District of Columbia as an expert. See Def.

Ex. 114.10 Ms. Seiler is a Managing Director with Alvarez & Marsal Public Sector Services,

LLC, and has 24 years’ experience providing government social services in South Dakota. See

id. ¶ 1; see also id. Appendix A. She has previously “served as an expert in civil matters relating

to the quality of services provided to people with developmental disabilities.” Id. ¶ 4.

10
Pursuant to the parties’ stipulation, Ms. Seiler’s written expert report constituted her
direct testimony except to the extent it was supplemented at trial based on recent developments.

17
12. Ms. Seiler was qualified by the Court as “an expert in the requirements of the

Americans with Disabilities Act and Olmstead and how states can design and improve the

programs under which they provide long-term care services and supports to people with

disabilities, including Olmstead planning.” Tr. at 3788:4-11 (Seiler).

B. The Plaintiffs’ Witnesses

Plaintiffs offered live testimony from the following individuals, including three

expert witnesses, whose expert reports, pursuant to the parties’ stipulation, constituted their

direct testimony except to the extent it was supplemented at trial based on recent developments.

Megan Fletcher

13. Megan Fletcher was a management analyst at DACL from February 2020 until

late November 2021. See Tr. at 1897:10-23 (Fletcher). In that capacity, Ms. Fletcher collected

and analyzed data related to DACL’s work, including data on the referral of nursing facility

residents to DACL, giving insight into the department’s performance and efficacy. See id. at

1898:15-18, 1898:23-1899:15 (Fletcher).

Larry McDonald

14. Larry McDonald is a D.C. Medicaid Beneficiary who has lived in a nursing

facility since at least 2006. See Tr. at 2102:10-2103:16 (McDonald); Tr. at 2980:18-22 (Cason

Daniel); see also Pl. Ex. 388 at 6. Mr. McDonald has a physical disability and requires

assistance with at least two activities of daily living. See Pl. Ex. 388 at 6. Mr. McDonald is one

of two remaining named plaintiffs in this case. See Plaintiffs’ Fourth Amended Class Action

Complaint [Dkt. No. 162] ¶¶ 46-53.

18
Deborah Cason Daniel

15. Deborah Cason Daniel has served as Mr. McDonald’s legal guardian since April

2017, when Mr. McDonald’s previous guardian was replaced. See Tr. at 2980:6-9, 3001:5-16

(Cason Daniel). Ms. Cason Daniel is an attorney who practices abuse and neglect law,

represents wards and subjects in guardianship and conservatorship matters, and serves as the

personal representative in probating estates. See id. at 2979:20-2980:1 (Cason Daniel).

Leyla Sarigol

16. Leyla Sarigol is a project manager in the Long Term Care Administration of

DHCF. See Tr. at 2331:17-23 (Sarigol). In that role, Ms. Sarigol coordinates and provides

guidance regarding community transition programs, focusing on the Money Follows the Person

Demonstration Grant (“MFP”) program. See id. at 2332:5-13 (Sarigol). She is also DHCF’s

lead representative to the District’s Olmstead Plan and for compliance with federal regulations

governing home- and community-based services. See id. at 2332:5-25 (Sarigol).

Ivy Brown

17. Ivy Brown is a D.C. Medicaid beneficiary who has lived in a nursing facility since

May 2013. See Tr. at 2866:7-9, 2868:8-25; Pl. Ex. 388 at 5. Ms. Brown has a physical disability

and requires assistance with at least two activities of daily living. See Pl. Ex. 388 at 5. Ms.

Brown is one of two remaining named plaintiffs in this case. See Plaintiffs’ Fourth Amended

Class Action Complaint [Dkt. No. 162] ¶¶ 26-29.

Kenneth Slaughter

18. Kenneth Slaughter is the Americans with Disabilities Act / Section 504 of the

Rehabilitation Act Coordinator for DCHA. See Tr. at 2960:23-2961:3 (Slaughter). Mr.

19
Slaughter oversees requests from D.C. residents with disabilities who seek reasonable

accommodations from DCHA. See id. at 2961:4-13 (Slaughter).

Nancy Weston

19. Nancy Weston was retained by plaintiffs as an expert. See Pl. Ex. 140. Ms.

Weston is the Director of Nursing Facility Operations for the Massachusetts Department of

Developmental Services, in which capacity she “manage[s] the statewide clinical eligibility

process for persons with brain injuries and other disabilities requiring community placement

through HCBS residential waivers in coordination with partner state agencies.” Pl. Ex. 141A

at 1. Ms. Weston is a licensed social worker, which informed her opinions regarding the work

of nursing facility social workers and DACL transition care specialists. See Tr. at 3058:24-

3059:3 (Weston). She has previously provided trial testimony in another Olmstead litigation,

Steward v. Abbott, Civil Action No. 10-1025 (W.D. Tex.). See Pl. Ex. 141A at 1, 40.

20. Ms. Weston was qualified by the Court as “an expert in the administration of

government programs to assist with the transition of people with disabilities from nursing

facilities and other institutions, as well as an expert in Olmstead implementation and

compliance.” Tr. at 3113:22-3114:1, 3115:1-4 (Weston); accord id. at 4054:4-14 (Weston).

Randall Webster

21. Randall Webster was retained by plaintiffs as an expert. See Pl. Ex. 140. Mr.

Webster has 44 years’ experience in treatment and care for people with intellectual and

developmental disabilities. See Tr. at 3232:12-15 (Webster); see also Pl. Ex. 141A at 3. Most

recently, Mr. Webster served as a Consultant to the Massachusetts Department of Developmental

20
Services Special Projects, where he consulted on “key projected related to implementation” of an

Olmstead Plan. Pl. Ex. 141A at 3.

22. Mr. Webster was qualified by the Court as “an expert in the implementation of

state obligations under Title II of the ADA and Olmstead for people with disabilities in nursing

facilities and other institutions” and as “an expert about transition assistance for populations of

people with disabilities who have been institutionalized for long periods of time.” Tr.

at 3535:6-19 (Webster).

Michael Petron

23. Michael Petron was retained by plaintiffs as an expert. See Pl. Ex. 142. Mr.

Petron is a Managing Director of Risius Ross, LLC, where he leads the Disputes, Compliance,

and Investigations group. See Pl. Ex. 143. Relying on conclusions reached by plaintiffs’ other

two experts, Mr. Petron developed and implemented “a statistically valid random sample . . . to

estimate a number of different attributes related to people with disabilities that are located within

District of Columbia nursing facilities.” Pl. Ex. 142. ¶ 5.

24. Mr. Petron was qualified by the Court as an “expert in the field of statistical

sampling.” Tr. at 2740:24-2741:8 (Petron).

C. Medicaid-Funded Long-Term Care in the District

25. Medicaid is a federal public health insurance program that “provid[es] federal

financial assistance to States that choose to reimburse certain costs of medical treatment for

needy persons.” Harris v. McRae, 448 U.S. 297, 301 (1980); see also Nat’l Fed’n Indep. Bus. v.

Sebelius, 567 U.S. 519, 541 (2012) (“Medicaid offers federal funding to States to assist pregnant

women, children, needy families, the blind, the elderly, and the disabled in obtaining medical

21
care.”). States’ participation in the Medicaid program is voluntary, but to do so “States must

comply with federal criteria governing matters such as who receives care and what services are

provided at what cost.” Nat’l Fed’n Indep Bus. v. Sebelius, 567 U.S. at 541-42. As relevant

here, Medicaid is administered in the District of Columbia by the D.C. government and is used to

fund “long-term care” for low-income or disabled individuals and their families. See Brown I,

322 F.R.D. at 71.

26. The Centers for Medicare and Medicaid Services (“CMS”) is the federal agency,

housed within the U.S. Department of Health and Human Services (“HHS”), that regulates

Medicaid and oversees the services provided by states using Medicaid funding, including those

provided by long-term facilities like nursing facilities. See Brown I, 322 F.R.D. at 71; Tr.

at 58:20-59:6 (Byrd). The District regularly submits reports about its Medicaid-provided

programs to CMS, as the federal oversight agency, as well as to the Council of the District of

Columbia. See, e.g., Def. Ex. 219 (report to CMS regarding EPD Waiver); Def. Ex. 230 (DHCF

Performance Plan).

27. “A ‘Medicaid State Plan’ is an agreement between a state – or here, the District of

Columbia – and the Federal government that describes how that state shall administer its

Medicaid program and provides assurance that a state will abide by Federal rules and may claim

Federal matching funds for its program activities.” Joint Stipulations of Fact (“Stipulated Facts”)

[Dkt. No. 382] at 1-2; see Tr. at 50:17-51:6 (Byrd); see also 42 U.S.C. § 1396a(a) (setting forth

the requirements for a state plan). Through the Federal Medical Assistance Percentage, the

federal government reimburses the District for 70% of the cost of direct services provided under

the District’s Medicaid State Plan, leaving the District to pay for 30%. See Tr. at 56:8-57:4

(Byrd); Def. Ex. 102 at 7; accord Brown I, 322 F.R.D. at 71. The Medicaid program does not

22
provide direct services to individuals; it pays for services provided by others. See id. at 45:19-

25, 46:13-25 (Byrd); see also id. at 47:20-48:9 (Byrd) (noting several federal limitations on what

a Medicaid program can provide).

28. In addition to providing services pursuant to a Medicaid State Plan, states can

petition CMS for waivers from the general Medicaid rules in order to provide additional services

that are not typically authorized or to provide special services to certain subsets of the Medicaid-

eligible population. See Tr. at 66:8-67:13 (Byrd); see also Sanchez v. Johnson, 416 F.3d 1051,

1054 (9th Cir. 2005) (“In 1981, in response to the fact that a disproportionate percentage of

Medicaid resources were being used for long-term institutional care and studies showing that

many persons resident in Medicaid-funded institutions would be capable of living at home or in

the community if additional support services were available, Congress authorized the Home and

Community Based Services (‘HCBS’) waiver program.”); see also 42 U.S.C. § 1396n(c)(1)

(establishing the waiver program).

29. The D.C. Department of Health Care Finance (“DHCF”) is the agency

responsible for administering the District’s Medicaid program, including when a Medicaid

function is delegated to another D.C. agency or an independent entity. See Tr. at 41:13-42:3,

185:6-22 (Byrd). DHCF oversees Medicaid-funded programs in the District of Columbia,

including long-term care in nursing facilities, the Medicaid State Plan, the EPD Waiver, and the

MFP Program, discussed further below. See Def. Ex. 102 at 7, 11, 21, 25-26.

1. Long-Term Care Services and Supports in Nursing Facilities

30. Under the District’s Medicaid plan, individuals may (if appropriate) receive D.C.

Medicaid-funded long-term care services and supports in an institutional setting, like a nursing

facility, or in a community-based setting. See Tr. at 52:18-53:8 (Byrd); Def. Ex. 202 at 5.

23
Generally, to qualify for Medicaid in the District of Columbia, an individual must fall within

200% of the federal poverty level. See Tr. at 45:6-17 (Byrd). Long-term care services and

supports are “things which are necessary for individuals to be able to live successfully in their

community.” Id. at 969:19-22 (Stowe); see also Brown I, 322 F.R.D. at 71 (noting that

individuals in either setting are provided with assistance performing activities of daily living

(‘ADLs’) – including self-care tasks like eating, bathing, toileting dressing, and

mobility/transferring – and instrumental activities of daily living (‘IADLs’) – including

“medication management, meal preparation, housekeeping, money management, and telephone

use”).

31. A nursing facility is “any facility licensed to operate as a nursing facility under

Title 22B, Section 3200 et seq. of the D.C. Municipal Regulations.” Stipulated Facts at 2; see

also D.C. MUN. REGS. tit. 22-B, § 3299 (“[A] 24-hour institution . . . that: (1) is primarily

engaged in providing nursing care and related services to residents who require medical or

nursing care, or rehabilitation services for the rehabilitation of persons who are injured, disabled,

or sick; (2) is not primarily for the care and treatment of mental diseases; and (3) has in effect a

transfer agreement [with at least one hospital that meets federal statutory requirements].”).

“Nursing facilities are ‘institutions’ within the meaning of Olmstead . . . and Title XIX of the

Social Security Act, 42 U.S.C. § 1396r.” Stipulated Facts at 3. The District does not operate

nursing facilities itself; rather, it funds long-term care in nursing facilities for eligible Medicaid

beneficiaries through its Medicaid State Plan. Brown I, 322 F.R.D. at 71.

32. As of the time of trial, “[t]here [we]re 17 nursing facilities in the District of

Columbia that [we]re certified for reimbursement through DC Medicaid.” Stipulated Facts at 2;

see also Pl. Ex. 850. In 2020, the District asserted that it had access to a total of 6,574 nursing

24
facility beds, including beds both in nursing facilities in the District of Columbia and in

facilities in certain neighboring jurisdictions. See Def. Ex. 102 at 50; Tr. at 246:2-5 (Byrd);

compare Pl. Ex. 850 (listing, as of June 30, 2021, 2,447 available beds across 17 nursing

facilities in the District of Columbia), with Tr. at 837:7-838:11 (Newland) (acknowledging

the 6,574 figure but testifying that the bed capacity inside District nursing facilities did not

significantly change between 2017 and 2020). The District provides services and supports,

including transition assistance, to D.C. Medicaid beneficiaries in nursing facilities in

neighboring jurisdictions (e.g., Maryland, Virginia) whose services are provided by D.C.

Medicaid. See Tr. at 577:3-578:11, 933:8-934:19 (Newland); id. at 1065:22-25 (Stowe).

33. In 2014, there were 3,650 D.C. Medicaid beneficiaries – including class members

– living in nursing facilities in the District of Columbia and in neighboring jurisdictions. See Pl.

Ex. 954 at 1-2 (showing that there were nursing facility residents in the District of Columbia,

Maryland, Virginia, Delaware, and Massachusetts). In 2015, there were 3,742 unique D.C.

Medicaid beneficiaries in nursing facilities. See id. In 2016, there were 3,751 D.C. Medicaid

beneficiaries in nursing facilities. See id. In 2017, there were 4,166 D.C. Medicaid

beneficiaries in nursing facilities. See id. In 2018, there were 4,245 D.C. Medicaid

beneficiaries in nursing facilities. See id. In 2019, there were 4,107 D.C. Medicaid

beneficiaries in nursing facilities. See id. In 2020, there were 4,183 D.C. Medicaid

beneficiaries in nursing facilities. See id.; see also Pl. Ex. 851 (showing that, in 2020, the

District had a nursing facility occupancy rate of 87%); Tr. at 241:23-242:9 (Byrd). And as of

25
November 8, 2021, there were 4,099 D.C. Medicaid beneficiaries in nursing facilities. See Pl.

Ex. 954 at 1-2.11

34. As of 2016, the average length of stay of a resident in a nursing facility (for both

class members and non-class members) was 624 days. See Def. Ex. 101 at 9; accord Pl.

Ex. 140 at 45-46; see also Brown I, 322 F.R.D. at 72 (noting that the average length of stay in a

nursing facility as of the fourth quarter of 2014 was 537 days). The District compiles data of

the time spent by residents in nursing facilities before they successfully transition to

community-based long-term care with the District’s transition assistance. See Def. Ex. 112

(updated as of July 30, 2021).

35. The D.C. Department of Health (“DOH”) is the local agency responsible for

regulatory oversight of all health facilities in the District of Columbia, which responsibility

includes assessing nursing facilities’ compliance with health and safety standards. See Tr.

at 59:18-22 (Byrd); id. at 372:3-9 (Freeman).12 DOH regulates nursing facilities’ compliance

with local regulations and federal statutes, like the Nursing Home Reform Act (“NHRA”),

which collectively govern the quality of care and services in nursing facilities. See id.

at 372:10-373:2 (Freeman); 42 U.S.C. § 1396a(a)(9)(A).13

11
The Court acknowledges that the COVID-19 pandemic significantly impacted
nursing facilities residents, who were placed at particular risk of infection and death. See Pl.
Ex. 405 at 1-2; Pl. Ex. 835B.
12
DOH does not have regulatory authority over nursing facilities outside of the
District of Columbia. See Pl. Ex. 417 at 2.
13
DHCF also plays a role in regulating nursing facilities by requiring facilities to
comply with DOH regulations as a condition of participating in the Medicaid program. See Tr.
at 59:23-61:11 (Byrd).

26
36. DOH solicits and receives complaints about nursing facility care and services

from nursing facility residents, their friends and family, ombudsmen, and nursing facility staff

themselves. See Tr. at 364:21-365:25 (Freeman). DOH employees regularly, and often in

response to complaints, visit and inspect nursing facilities and conduct interviews with nursing

facility residents and staff. See Tr. at 312:21-25, 335:17-336:23, 481:5-482:6, 483:17-

484:8, 486:5-23 (Freeman). DOH also oversees nursing facilities to ensure that nursing facility

social workers are aiding residents who wish to transition to the community. See Tr. at 314:18-

24, 366:3-367:20 (Freeman); see also Tr. at 1001:4-1002:12 (Stowe) (discussing DACL’s

analogous role in overseeing and coordinating with nursing facility social workers’ efforts to

transition nursing facility residents to the community).

37. To qualify for Medicaid-funded services and supports in a nursing facility, an

individual must meet the nursing facility level of care, meaning “he or she requires extensive

assistance with two or more ADLs, or supervision with two or more ADLs and one IADL.”

Brown I, 322 F.R.D. at 71-72; see Tr. at 62:16-63:4 (Byrd).14 DHCF retains a contractor called

Liberty to conduct the initial assessment of whether an individual meets the nursing facility

level of care. See Tr. at 63:5-15, 64:1-4, 123:20-124:5 (Byrd); see also Def. Ex. 224. DHCF

retains a different contractor called Comagine to conduct additional assessments – known as

“continuing stay reviews” – six months after the initial level of care determination and annually

thereafter, verifying that the individual continues to meet the nursing facility level of care. See

Tr. at 63:5-25, 64:5-12 (Byrd).

14
As previously noted, “ADLs” are activities of daily living, and “IADLs” are
instrumental activities of daily living. See FF ¶ 30.

27
2. The Minimum Data Set

38. Nursing facilities are required by federal law to periodically administer to nursing

facility residents the Minimum Data Set (“MDS”), a set of questions that “provides a

comprehensive assessment of each resident’s functional capabilities and helps nursing home

staff identify health problems.” Minimum Data Set 3.0 Public Reports, CTRS. FOR MEDICARE &

MEDICAID SERVS., https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-

and-Systems/Minimum-Data-Set-3-0-Public-Reports (last modified Sept. 6, 2023); Tr. at

326:17-328:19, 465:8-23 (Freeman). The District and its contractors indirectly oversee nursing

facilities’ administration of the MDS to nursing facility residents as required. See Tr. at 236:4-7

(Byrd) (noting that the District’s contractor, Comagine, reviews portions of nursing facility

residents’ responses to the MDS); id. at 333:9-334:18 (Freeman) (noting that DOH staff reviews

nursing facility residents’ MDS data prior to visiting a nursing facility).

39. One section of the MDS referred to as “Section Q,” is an assessment designed to

“record the participation and expectations of the resident, family members, or significant other(s)

in the assessment, and to understand the resident’s overall goals” regarding receiving long-term

care services and supports in a nursing facility or elsewhere. Def. Ex. 113; Def. Ex. 113.1 (MDS

RAI Manual, Oct. 2019). Section Q “uses a person-centered approach to ensure that all

individuals have the opportunity to learn about home- and community-based services and to

receive long term care in the least restrictive setting possible.” Id.; see also Pl. Ex. 110 (“Section

Q . . . provides a process that, if followed correctly, gives the resident a direct voice in

expressing preference and gives the facility a means to assist residents in locating and

transitioning to the most integrated setting.”). A resident is supposed to be administered the

MDS Section Q once within the first 14 days of arriving in a nursing facility, once every quarter

28
thereafter, and whenever there is a significant change in the resident’s status, including

discharge. See Tr. at 327:8-15 (Freeman); id. at 1027:21-1028:2 (Stowe); Def. Ex. 109.

40. Of the several questions contained within the MDS Section Q, question

“Q0500B” requires the assessor to “[a]sk the resident (or family or significant other or guardian

or legally authorized representative if resident is unable to understand or respond): ‘Do you want

to talk to someone about the possibility of leaving this facility and returning to live and receive

services in the community?’” Def. Ex. 113 at 15; see also Brown I, 322 F.R.D. at 82.15 Pursuant

to the CMS manual for administering the MDS (the “RAI Manual”), if a nursing facility resident

responds “yes” to MDS question Q0500B, the nursing facility is supposed to connect them with

the designated local contact agency for additional information regarding transitioning to the

community, which in turn may result in that individual receiving transition assistance should

they decide to move forward. See Def. Ex. 113 at 17 (“A ‘yes’ response to item Q0500B will

trigger follow-up care planning and contact with the designated local contact agency (LCA)

about the resident’s requires.”); Pl. Ex. 110 at 4; Tr. at 388:12-20, 389:10-15 (Freeman); see also

Brown I, 322 F.R.D. at 82 (“Residents who respond ‘yes’ are referred to the ADRC.”).16

41. The RAI Manual provides that if he or she responds “yes” to MDS question

Q0500B, a nursing facility resident should be put in contact with the local contact agency within

15
A nursing facility resident may opt out of being asked MDS question Q0500B
quarterly but may not opt out of being asked the question during the annual, comprehensive
assessment. See Def. Ex. 113 at 13-14, 19-20 (discussing questions “Q0490” and “Q0550”); see
also id. at 19 (“Some individuals, such as those with cognitive impairments, mental illness, or
end-stage life conditions, may be upset by asking them if they want to return to the
community.”). In addition, a questioner may skip MDS question Q0500B if active discharge
planning is already occurring for the nursing facility resident to transition to the community. See
id. at 9.
16
States designate local contact agencies to “provide individuals with information
about community living options and available supports and services.” Def. Ex. 113 at 21-22.

29
10 business days. See Def. Ex. 113 at 17 (noting that a state has discretion in setting its own

policy). The District does not have a regulation or policy setting a specific timeframe within

which a nursing facility must put a nursing facility resident who responds “yes” to MDS question

Q0500B in contact with the District’s local contact agency. See Pl. Ex. 388 at 33. If a nursing

facility resident responds affirmatively to MDS question Q0500B, the contractor administering

the MDS Section Q will give the resident brochures or flyers explaining home- and community-

based services and DACL’s transition coordination services. See Tr. at 125:18-126:22 (Byrd);

id. at 562:19-563:15 (Newland); Def. Ex. 104; Def. Ex. 106.

42. The MDS nevertheless recognizes that, in some circumstances, putting an

individual who responds “yes” to MDS question Q0500B in contact with a local contact agency

is not immediately required. See Def. Ex. 113 at 21-23. MDS question “Q0600” asks: “Has a

referral been made to the Local Contact Agency?” Id. at 21. Under the MDS guidelines, nursing

facility staff are permitted to decline to refer a nursing facility resident to a local contact agency

(1) if the person responds “no” to MDS question Q0500B; (2) “[i]f the resident’s discharge

planning has been completely developed by the nursing home staff, and there are no additional

needs that the [nursing facility] cannot arrange for”; and (3) in other limited circumstances where

“the designated local contact agency needs to be contacted but the referral [need] not be[]

initiated at this time.” Def. Ex. 113 at 21-23; see also id. at 23 (offering as an example of the

third category the circumstance in which a nursing facility resident wishes to transition to the

community but cannot safely do so in the immediate future due to health reasons).

43. In addition to caring for nursing facility residents, see Oct. 4, 2016 Tr. at 8:21-

10:3 (Fisher), nursing facility social workers also assist residents who wish to transition back to

the community by, among other things, helping those residents to obtain necessary documents,

30
like identification or Social Security cards, to identify and visit potential housing, and to develop

and implement discharge plans. See Tr. at 322:6-25, 324:14-325:3 (Freeman); id. at 999:5-9

(Stowe).

44. A discharge plan is a plan that lays out the requirements for a person to safely

transition from a nursing facility back to the community. It typically will include information on

housing, financial resources, social supports, Medicaid-funded and nonmedical home- and

community-based services, and the necessity for home modifications and assistive technology.

See id. at 999:10-19 (Stowe); Def. Ex. 110 at 5. Discharge planning is necessarily individualized

and is based on a resident’s level of care requirements, personal circumstances, and existing

familial and community support. See Tr. at 330:7-331:7 (Freeman); id. at 999:10-25 (Stowe).

45. Although nursing facilities are ultimately the entities that formally admit and

discharge residents, see Tr. at 718:10-719:12 (Newland), the District has a major role in the

discharge planning process, along with residents’ other supporters, like family members, legal

guardians, and case workers. See Tr. at 1000:17-1001:7 (Stowe). Witnesses testified that the

District therefore seeks to build and maintain strong relationships with nursing facility staff, to

educate nursing facility social workers about the services and supports that exist in the

community as well as the services that District agencies provide, and to participate in the

discharge planning and transition process. See id. at 577:3-13, 581:17-582:4 (Newland); id. at

979:2-981:13, 1002:13-23, 1181:13-1182:6 (Stowe).

3. Home- and Community-Based Services and Support

46. The District administers two principal Medicaid-funded programs that are

relevant to this case and provide home- and community-based long-term care services (“HCBS”)

to individuals: the State Plan Personal Care Assistance (“State Plan PCA”) program, and the

31
Elderly and Persons with Physical Disabilities Waiver (“EPD Waiver”) program, established

under Section 1915(c) of the Social Security Act. See Tr. at 105:6-106:17; Def. Ex. 102

at 25-26; see also Stipulated Facts at 1-3. Individuals can be enrolled in – and can receive

services funded by – both the State Plan PCA program and the EPD Waiver program. See

Stipulated Facts at 3. “Each program provides personal-care assistance in community-based

settings, based on slightly different eligibility criteria.” Brown I, 322 F.R.D. at 73. DHCF uses

two independent contractors (Liberty and Comagine) to conduct assessments and determine

individuals’ level of care and eligibility to receive home care services under the State Plan PCA

program and the EPD Waiver program. See Tr. at 123:20-24, 235:7-16 (Byrd).

47. The State Plan PCA program offers to all eligible Medicaid beneficiaries living in

the community up to eight hours daily of personal care aide services, including assistance with

bathing, grooming, toileting, transfers, ambulation, and exercise, meal preparation, eating,

attending medical appointments, obtaining and attending employment, attending approved

activities, and self-administering medication. See Def. Ex. 102 at 26 (“Home Health and

Medicaid State Plan Services”); Tr. at 105:6-106:16 (Byrd). There is no limit to the number of

District residents who can receive State Plan PCA services. See Tr. at 69:20-70:3 (Byrd). To be

eligible for State Plan PCA services, an individual does not need to meet a nursing facility level

of care. See Stipulated Facts at 3; see also Tr. at 201:8-202:15 (Byrd); Brown I, 322 F.R.D. at

73. “Because the level-of-care eligibility requirement for State Plan PCA services is lower than

the requirement for the EPD Waiver, a qualified individual [can] receive State Plan PCA services

even if not eligible for the EPD Waiver.” Stipulated Facts at 3.

48. The EPD Waiver program, on the other hand, provides a broader array of services

than the State Plan PCA program to qualifying individuals, including case management, up to 16

32
hours daily of personal care aide services, adult day health programs, respite care, assisted living

services, environmental-accessibility adaptations, participant-directed services (which allows a

beneficiary to receive services from a non-professional chosen by the beneficiary), and

community transition services. See Def. Ex. 102 at 25-26 (“Elderly and Persons with Physical

Disabilities (EPD) Waiver”); Tr. at 107:2-113:6 (Byrd); Stipulated Facts at 3.17 To be eligible

for the EPD Waiver program, an individual must be eligible to receive long-term care in a

nursing facility, meaning they must require a nursing facility level of care. See Brown I, 322

F.R.D. at 73; Tr. at 123:10-19 (Byrd); see also Pl. Ex. 388 at 19.

49. In contrast to the State Plan PCA program, the EPD Waiver program has a cap.

As of 2021, no more than 5,560 individuals may receive services through the EPD Waiver

program in a given year. See Def. Ex. 213.1; Tr. at 75:2-76:2, 139:3-140:3 (Byrd) (discussing

the EPD Waiver’s number of waiver slots). As of 2021, there were more than enough EPD

Waiver slots to accommodate all class members who need services under the EPD Waiver. See

Def. Ex. 114 ¶ 38; Tr. at 139:4-140:6 (Byrd); see also Brown I, 322 F.R.D. at 75 (noting that a

low EPD Waiver utilization rate “means there is more than sufficient capacity to serve any

individual who has housing in the community and is eligible for Medicaid-funded home and

community-based services”). Although there was a waiting list of hundreds of individuals

waiting for EPD Waiver services at least through 2013, see Brown I, 322 F.R.D. at 73, there is

no longer a waiting list for the EPD Waiver; there are more than enough EDP slots. See

Stipulated Facts at 3.

17
The District also operates an “ID/DD Waiver” program for individuals with
developmental and intellectual disabilities. See Def. Ex. 102 at 51. Individuals who have only
intellectual disabilities are not included in the plaintiff class. See Order [Dkt. No. 129].

33
50. “[I]ndividuals who require eight or fewer hours of personal-care assistance do not

have to enroll in the EPD Waiver to receive their needed assistance” because they can obtain

their needed services solely through the State Plan PCA program. The EPD enrollment figures

therefore “do not reflect the full population of individuals who receive Medicaid-funded home

and community-based services.” Brown I, 322 F.R.D. at 75.

51. At the time of trial, the EPD Waiver approved by CMS was set to expire in April

2022. See Def. Ex. 105 at 1. On February 7, 2022, CMS renewed the District’s EPD Waiver for

a five-year period, maintaining the services previously provided by the EPD Waiver and

allowing enrollees to cumulatively access 24 daily hours of personal care aid services through a

combination of the EPD Waiver and the State Plan PCA programs. See Pl. Ex. 974 at 1-2

(“Under the current approved waiver, enrollees will be able to cumulatively access 24 daily

hours of PCA through a combination of 16 daily hours under the EPD waiver, and 8 daily hours

under the State [PCA] Plan, so long as such hours are medically necessary in accordance with

the requirements set forth by law and policy, and duly determined upon assessment and

consideration of all relevant evidence.”); see also Tr. at 108:5-109:10 (Byrd).18, 19

18
After the conclusion of trial, the Court granted plaintiffs’ unopposed motion to
supplement the evidentiary record and admitted Plaintiffs’ Exhibit 974 into evidence. See
April 19, 2022 Minute Order.
19
On two occasions, CMS has placed the District under a Corrective Action Plan for
improperly administering its EPD Waiver program. See Brown I, 322 F.R.D. at 74. In
December 2015, CMS imposed a CAP for “abdicating responsibility for determining the amount
of needed services to agency providers that stood to benefit from recommending additional
services.” Id. And in January 2016, CMS imposed a second CAP for failing to (1) “ensure
quality monitoring of services”; (2) “track how long it takes for class members to access EPD
Waiver services”; (3) accurately assess the services class members will need under the EPD
Waiver once they leave the nursing facility”; (4) “have a system of resolving complaints
regarding lack of access and authorization for EPD Waiver services”; and (5) “utilize existing
slots in the EPD Waiver.” Id.

34
52. In addition to these two programs, the District administers the Money Follows the

Person Demonstration Grant (“MFP”) program, a federally-funded program that was established

to provide states with financial incentives to move people from institutional settings back to the

community with Medicaid services and supports. See Tr. at 2333:2-15, 2334:15-22 (Sarigol);

Def. Ex. 102 at 22; Def. Ex. 114 ¶ 41; see also Pl. Ex. 177 (noting that one objective of the MFP

program is “[t]o increase the access to and use of home and community-based, rather than

institutional, long-term care services”).20 Under the MFP program, the federal government

reimburses the District for an enhanced 85% – compared to the standard 70% under the State

Plan PCA program – of the cost of direct services “in the [one] year after eligible DC residents

transition from a nursing facility or hospital to home.” Def. Ex. 102 at 7, 22; see Tr. at 166:18-

167:9 (Byrd); id. at 2333:18-2334:14 (Sarigol) (instead of 70% federal funding and 30% funding

with local funding, this program provides 85% federal funding).

53. More specifically, the MFP program covers “set-up” costs that are incurred by a

nursing facility resident as they transition to the community, including “leasing application fees,

security deposit, essential furnishings, and household set-up items including linens,

kitchenware, and bathroom essentials.” Def. Ex. 102 at 22; see also Brown I, 322 F.R.D. at 76

(noting also that the MFP program funds “outreach and education, transition coordination,

environmental accessibility adaptations up to $10,000, household setup costs up to $5,000, and

intensive case management during the transition and for 365 days following discharge from the

nursing facility”). To be eligible for the MFP program, individuals with physical disabilities

must meet the EPD waiver program’s level of care requirements (i.e., a nursing facility level of

20
Since 2010, the MFP program has been available to elderly or physically disabled
individuals in addition to individuals with intellectual disabilities. See Brown I, 322 F.R.D.
at 76.

35
care), must have resided in a nursing facility for at least 60 days, and must have had their

nursing facility services paid for by Medicaid for at least one day during the last 30 days. See

Pl. Ex. 388 at 24.

54. The MFP program is called a “grant” program because it is time limited, although

it historically has been extended by Congress year after year and, at the time of trial, had been

extended through 2023. See Tr. at 166:10-23 (Byrd). When initially introduced, the MFP

program funded certain set-up services that were only available through the program. But the

District has since incorporated those unique services into its EPD Waiver program, such that

even if the MFP program were to be discontinued, the services provided under it would still be

available to eligible and enrolled individuals. See id. at 167:24-168:19 (Byrd); id. at 2334:23-

2336:5 (Sarigol) (noting that the District, anticipating that the federal government might sunset

the MFP program across the country, began to – and still does – provide the same services in a

“sustainability mode,” that is, that D.C. has taken steps to maintain the commitments made

during the MFP program to assist people to transition back to the community). Because of this,

the MFP program now functions effectively as an additional source of funding for home- and

community-based services that the District would otherwise provide. See Def. Ex. 114 ¶¶ 43-

44; Tr. at 559:20-560:5 (Newland) (noting that the work of the District’s transition care

specialists is agnostic as to whether an individual is a participant in the MFP program); id. at

167:24-168:19 (Byrd).

55. Beginning in 2010, the District began providing MFP-funded transition services

to elderly and physically disabled individuals and proposed benchmarks for transitioning such

individuals to the community. See Brown I, 322 F.R.D. at 77; Pl. Ex. 802 (listing the transition

benchmark totals from 2008 through May 2021). In 2010, the District proposed to transition 30

36
elderly or physically disabled nursing facility residents to the community, but it did not

transition any that year. See Pl. Ex. 802 at 1; see also Tr. at 2344:2-10 (Sarigol) (noting that the

numbers of individuals who transitioned each year counted only those individuals who “actually

enrolled in the [MFP program] upon discharge from the nursing facility”). From 2011 through

2013, the District proposed transitioning 40 elderly or physically disabled individuals to the

community each year, though it fell short: it transitioned 17 in 2011, 19 in 2012, and 16 in 2013.

See id. After being placed under a Corrective Action Plan (“CAP”) by CMS for missing its

MFP benchmarks, the District reduced its benchmarks for 2014 through 2017 to 30 transitions a

year. See Brown I, 322 F.R.D. at 77; Pl. Ex. 802 at 1. Although it missed its goal in 2014,

transitioning only 24 elderly or physically disabled individuals, it exceeded its goals the

following years: it transitioned 36 in 2015, 40 in 2016, and 37 in 2017. See Pl. Ex. 802 at 1.

56. In 2018, the District exceeded its benchmark of 24 transitions by transitioning 32

elderly or physically disabled individuals. See Pl. Ex. 802 at 1. In 2019, although the District

was not required by CMS to set an annual benchmark under the MFP program, see Tr. at

2370:17-2371:10 (Sarigol), the District transitioned 47 elderly or physically disabled

individuals through the District’s sustainability mode. See Pl. Ex. 802 at 1. In 2020, the

District exceeded its benchmark of 39 transitions by transitioning 44 elderly or physically

disabled individuals, and as of June 2021, only a portion of that calendar year, the District had

transitioned 19 individuals through the MFP program. See id.

57. Every year, the District of Columbia spends hundreds of millions of dollars

providing home- and community-based services and supports to District residents through these

Medicaid-funded programs: the State Plan PCA Program, the EPD Waiver program, and the

MFP program. See Def. Ex 233; Def. Ex. 204 at 66; Tr. at 120:13-121:10 (Byrd). Generally,

37
the average cost of providing services to a Medicaid recipient who resides in a nursing facility is

greater than the average cost of providing home- and community-based services to a Medicaid

recipient. See Def. Ex. 204 at 66; Tr. at 121:11-122:24 (Byrd).

58. Under federal law, the District is required to maintain “cost neutrality” – that is,

ensure that the average cost of services provided under the EPD Waiver is less than the average

cost of services provided in a nursing facility – or else risk the loss of certain Medicaid funding.

See Tr. at 115:19-119:2 (Byrd); see also Olmstead, 527 U.S. at 601 n.12 (“The waiver program

provides Medicaid reimbursement to States for the provision of community-based services to

individuals who would otherwise require institutional care, upon a showing that the average

annual cost of such services is not more than the annual cost of institutional services.” (citing 42

U.S.C. § 1396n(c))). The EPD Waiver has been cost neutral for each of the five years covered

by the District’s April 2020 application to renew the EPD Waiver. See Pl. Ex. 388 at 22; e.g.,

Def. Ex. 229; see also Def. Ex. 214 at 214 (projecting cost neutrality for the renewed EPD

Waiver).

59. Through these various Medicaid-funded programs, the District provides home-

and community-based services and supports to thousands of District residents every year. See

Def. Ex. 103; Def. Ex. 426 at 2-3; Tr. at 699:17-700:2 (Newland).

D. The District’s Provision of Transition Assistance

60. For purposes of this litigation, nursing facility residents “transition” to the

community if they move from a nursing facility to community-based housing that is appropriate

to their needs, whether that be an apartment or a house where an individual can reside

independently or in an assisted living facility where an individual will have access to more

integrated services. See Def. Ex. 102 at 10-15; see also 28 C.F.R. § 35.130(d) (requiring a public

38
entity to administer services and programs in “the most integrated setting appropriate to the

needs of qualified individuals with disabilities”); Olmstead v. L.C. ex rel. Zimring, 527 U.S. at

600-01 (recognizing that “unjustified institutional isolation of persons with disabilities is a form

of discrimination”).

61. Over the past decade, the District of Columbia has promulgated several

“Olmstead Plans” that purport to outline the programs and strategies by which it ensures that

individuals with disabilities can receive services in the most integrated setting appropriate to

their needs. See, e.g., Def. Ex. 101 (2017-2020 Olmstead Plan); Pl. Ex. 951 and Def. Ex. 102

(2021-2024 Olmstead Plan); see also Tr. at 507:25-508:15 (Newland) (describing an Olmstead

Plan as “a tool for people with disabilities and caregivers to understand a jurisdiction’s

commitment to make sure that people receive services” in the most integrated setting possible);

id. at 76:13-23 (Byrd). Ms. Newland, among many others, developed the District’s most recent

Olmstead Plans. See Tr. at 506:20-507:13, 508:19-21, 509:10-12 (Newland); see also Def. Ex.

102 at 6 (describing the “Olmstead Working Group”: a group “comprised of representatives from

District agencies as well as District residents with disabilities, their family members, community

organizations, and disability rights advocates” that provided recommendations and revisions for

future Olmstead Plans); Tr. at 510:14-511:16, 515:16-25 (Newland) (discussing the working

group’s role and composition).

62. As summarized in its most recent Olmstead Plan, numerous District agencies

collaborate to provide affordable, safe housing to individuals with disabilities and to transition

nursing facility residents to community-based housing. See Def. Ex. 102 at 11-15, 21-22. One

of those agencies, the D.C. Department of Aging and Community Living (“DACL”), which was

previously known as the D.C. Office on Aging (“DCOA”), provides transition assistance to D.C.

39
residents aged 60 and over, adults living with disabilities, and their caregivers. See Tr.

at 499:12-15, 502:9-503:8 (Newland); Def. Ex. 102 at 21-22; see also Stipulated Facts at 2. The

primary purpose of DACL is to provide supports and services, whether directly or through grants

and contracts, to individuals of those populations to “ensure that [they] can live in the

community for as long as they safely can.” Id. at 502:13-16 (Newland); see also id. at 969:2-14

(Stowe).

1. The D.C. Department of Aging and Community Living

63. DACL provides a range of services to individuals living in nursing facilities who

wish to transition to the community as well as to individuals who are receiving home- and

community-based services in the community. For example, DACL provides information

assistance to individuals, including those receiving care in nursing facilities, through a call center

that answers callers’ questions and refers callers to other agencies or non-governmental

organizations. See Tr. at 708:1-9 (Newland); id. at 972:24-973:11 (Stowe). DACL provides

“options counseling” to individuals, helping them to identify appropriate care options that are

currently available – or will become available – given their level of care needs and particular

stage in life. See Tr. at 555:25-556:8, 590:6-12 (Newland); id. at 995:18-23 (Stowe). DACL

also funds the long-term care ombudsman, an advocate that raises nursing facility residents’

concerns to the DOH and occasionally makes referrals to DACL. See Tr. at 335:8-16 (Freeman);

id. at 561:17-7, 563:17-20, 891:13-16 (Newland).

64. DACL also provides outreach to individuals in both nursing facilities and in the

community. For example, DACL conducts hundreds of outreach events in the community

every year. See Tr. at 562:19-563:8, 708:10-19 (Newland); Def. Ex. 114 ¶ 63. DACL

produces and distributes brochures and flyers that advertise the agency’s services. See id. at

40
563:9-13 (Newland); id. at 3594:1-3595:10 (Darku); Def. Ex. 106; see also Tr. at 693:3-9

(Newland) (noting that non-governmental entities also hand out flyers). DACL – primarily

through its community outreach coordinator, Ms. Darku – conducts outreach to nursing

facilities to explain the services that DACL provides and to build rapport with the nursing

facilities. See Tr. at 979:2-16, 1183:1-10 (Stowe).

65. DACL administers programs that assist individuals with physical disabilities to

live comfortably and safely in the community. For example, through the Safe At Home

program, DACL provides in-home adaptations (e.g., handrails, grab bars, shower seats) for

people with disabilities so they may live more safely in their own homes with decreased fall

risks. See Tr. at 503:21-504:12 (Newland); Def. Ex. 103; see also Tr. at 583:3-584:10

(Newland). DACL also provides meals to more than a thousand individuals every day through

home delivery or at community dining sites. See Tr. at 503:13-21, 700:18-701:15 (Newland);

Def. Ex. 102 at 10. DACL provides fitness and educational programs to individuals throughout

the District of Columbia, including at senior wellness centers. See Tr. at 702:15-23 (Newland).

DACL offers transportation programs to individuals to transport them to medical appointments

and to social and recreational activities, thereby enabling individuals with physical disabilities

to live and receive medical care in the community. See id. at 705:6-706:9 (Newland). And to

help individuals access these services, DACL employs several Medicaid Enrollment Specialists

who assist individuals with applying for the EPD Waiver. See id. at 558:8-12, 973:12-25

(Newland); Def. Ex. 400; see also Brown I, 322 F.R.D. at 75.

66. Within DACL sits the Aging and Disability Resource Center (“ADRC”), the

designated “Local Contact Agency” to which nursing facility residents who want information

about receiving home- and community-based services and supports are referred. See Tr. at

41
239:3-8 (Byrd); id. at 774:3-5 (Newland); id. at 1117:2-11 (Stowe); Def. Ex. 114 ¶ 53 (“In the

District, the ADRC is the single point of entry for older adults, individuals living with disabilities

and their caregivers to call for information and referral assistance.”); see also Pl. Ex. 112 at 11

(listing the “DC Office on Aging/ADRC” as the District of Columbia’s Section Q Component);

Stipulated Facts at 2. The ADRC is the group within DACL that provides options counseling to

nursing home residents, “a person-centered discussion to help [residents] understand their long-

term care options and empower them to make decisions based on informed choice and personal

preferences.” Def. Ex. 102 at 28; see Def. Ex. 110 at 16; Tr. at 995:12-996:5 (Stowe).

2. Transition Care Specialists

67. The Nursing Home Transition Team (“NHT”) sits within the ADRC. It is

composed of eight DACL employees (six transition care specialists, one MFP community

outreach specialist, and one MFP special assistant), and it assists nursing facility residents with

physical disabilities to seek and obtain HCBS outside of nursing facilities and to transition back

into the community. See Def. Ex. 400; Tr. at 558:22-559:19 (Newland); see also Brown I, 322

F.R.D. at 75. The MFP community outreach specialist and the MFP special assistant are funded

through the federal MFP demonstration grant, but the NHT works with individuals in nursing

facilities regardless of whether they meet the additional criteria for participation in the MFP

program. See Tr. at 559:15-560:5 (Newland); see also Brown I, 322 F.R.D. at 75.

68. Each NHT transition care specialist on average is assigned to work with 12 to 15

nursing facility residents who have expressed an interest in transitioning back to the community

and have requested DACL’s assistance in doing so. See Tr. at 558:22-559:1 (Newland); id. at

1110:4-20 (Stowe); see also id. at 2011:1-12 (Fletcher) (noting that DACL monitors transition

care specialists’ workloads so as not to overburden them).

42
69. Transition care specialists are required to comply with DACL standard operating

procedures that govern the process for assisting individuals to transition into the community.

See Pl. Ex. 388; Def. Ex. 110; see Tr. at 982:2-19 (Stowe) (discussing the purpose of the

standard operating procedures).21

70. Generally, transition care specialists assist individuals seeking to transition into

the community by locating and securing adequate housing, procuring necessary identification,

setting up their new home, and connecting them to community services and supports. See Tr. at

584:16-585:11, 615:5-616:25 (Newland); id. at 995:12-997:18 (Stowe). As described in the

District’s 2021-2024 Olmstead Plan, transition assistance services that support a nursing facility

resident’s successful transition to the community may include:

• A referral to the DACL Community Transition Program when a
resident expresses a desire to learn more about options for living in
the community . . . .

• An assessment conducted to determine the District resident’s
wishes and willingness to return to the community.

• Collaboration between the individual, including their family,
friends, and key persons in their circle of support, and their care
planning team to develop an appropriate plan for the individual
with goals, approaches, and strategies allowing the person to
reasonably achieve a safe transition into the community.

• A review to ensure all necessary services and durable medical
equipment needs are in place for the individual.

Def. Ex. 102 at 22.

21
Plaintiffs contend that the District is failing to provide adequate transition
assistance to nursing facility residents who are referred to DACL because the NHT team is
allegedly not in compliance with several provisions of the standard operating procedures. More
specifically, plaintiffs assert that transition care specialists are not developing person-centered
discharge plans for every referred nursing facility resident; are not ensuring that residents’ case
files contain documents that are vital to a successful transition; are not keeping detailed and
accurate notes in residents’ case files; and are not seeking supervisory sign-off before closing
open transition assistance cases. See Pl. Ex. 140 at 21-32; see also Def. Ex. 110 at 5-7.

43
71. According to the applicable standard operating procedures, transition care

specialists must make weekly contact with their clients to ensure that work is progressing at an

appropriate pace. See Def. Ex. 110 at 5; Tr. at 985:7-17 (Stowe); see also Brown I, 322 F.R.D.

at 77. In addition, transition care specialists are expected to make initial contact with a nursing

facility resident within 5 days of an initial referral, visiting them in-person shortly thereafter.

See Def. Ex. 110 at 3-4.

72. Transition care specialists are required to maintain case notes for nursing facility

residents who receive transition assistance from DACL. See Tr. at 988:7-989:6 (Stowe); see also

Def. Ex. 110 at 5 (“All contacts with the client and collaterals must be documented . . . .

Timeframes, barriers, goals, tasks and plans of care must be clearly documented in the case

notes . . . .”). According to Dr. Stowe, case notes should be relatively brief, provide a summary

of the relevant work being done for the nursing facility resident, and include supporting

documentation. See Tr. at 988:7-989:16, 990:4-991:3, 1121:16-1122:3 (Stowe).

73. DACL currently uses an electronic record system called “CSTARS” to store all

nursing facility residents’ case notes. See Tr. at 987:21-988:3 (Stowe). Dr. Stowe noted that

before she joined in 2019, “[t]here was inconsistent use of CSTARS . . . so not all case notes or

case information was held in the electronic record.” Id. at 988:7-10 (Stowe). At that time,

transition care specialists inconsistently used both hard copy records and CSTARS to store case

notes, and the quality of those notes were at times lacking. See id. at 990:4-15, 1120:15-1121:12

(Stowe).

3. Information: Referrals and Community Outreach

74. DACL does not conduct surveys across all nursing facilities to determine how

many residents wish to transition to the community or would like to receive transition assistance

44
from the District to do so. See Tr. at 1066:22-1067:12 (Stowe); id. at 2057:1-14 (Newland).

Rather, the District relies on two principal methods for assessing nursing facility residents’ desire

to transition to the community and for generating referrals. See Def. Ex. 102 at 21.

75. First, DACL funds or relies upon a range of services – governmental and non-

governmental – to reach nursing facility residents about the prospect of transitioning to the

community. Def. Ex. 102 at 28-29. For example, DACL conducts group information sessions in

nursing facilities throughout the year to educate residents about home- and community-based

services and the transition assistance provided by DACL. See Tr. at 562:19-563:8, 708:10-19

(Newland); Def. Ex. 102 at 29. DACL also relies on the word of mouth of people who work

with nursing facility residents – including nursing facility social workers, the long-term care

ombudsman, and the friends and family of residents – to inform nursing facility residents about

the possibility of transitioning to the community and the services that DACL provides in aiding a

transition. See Tr. at 562:19-564:15, 2144:13-2145:18 (Newland) (noting that nursing facility

social workers, administrators, and nurses; third-party contractors; the long-term care

ombudsman; and DACL staff who visit nursing facilities all educate nursing facility residents

about home- and community-based services); Def. Ex. 102 at 29.

76. These formal and informal educational programs and interactions generate

referrals to DACL of nursing facility residents who want to transition to the community and

expressly want DACL’s assistance in doing so. See Tr. at 3726:8-17 (Newland) (“[T]he initial

kind of referrals that we get, they’re either going to be directly from the community, by which it

could be any nursing facility resident, or it can be a friend, family member, the ombudsman, etc.,

or it could be from a nursing facility . . . .”); Def. Ex. 114 ¶ 55 (“Referrals come from nursing

facility social workers and family members; through outreach activities, such as public

45
information campaigns; and from agency partners, such as DHCF and the long term care

ombudsman.”); see also Brown I, 322 F.R.D. at 77. To complete a referral to DACL, however, a

nursing facility resident, their legal representative or guardian, or a nursing facility social worker

on the resident’s behalf must complete a community transition services referral form and submit

it to DACL. See Def. Ex. 110 at 2-3; Pl. Ex. 283 at 4; Tr. at 561:9-16 (Newland); id. at 1134:19-

1135:6 (Stowe). But see Tr. at 2387:24-2389:24 (Sarigol) (testifying that under the MFP

program – a “small subset” of referrals – only a nursing facility social worker may submit a

community transition services referral form to DACL); Pl. Ex. 416 at 21.

77. Numerous witnesses for the District of Columbia testified that nursing facilities

are properly referring nursing facility residents who wish to obtain information about

transitioning to the community to DACL. See, e.g., Tr. at 370:17-371:5 (Freeman) (testifying

that nursing facilities are “conduct[ing] their discharge planning” and “want residents to

transition back to the community”); id. at 625:2-9, 694:19-24 (Newland) (“We receive referrals, I

believe, from every [nursing] facility. We’ve received at least one referral from every facility I

think within the past year, and we do track that. And again, nursing facilities do not have to

make referrals to us. In a lot of cases, nursing facilities won’t.”); id. at 1028:16-1029:1 (Stowe)

(testifying that she was unaware of any evidence “that nursing facilities were not referring clients

to DACL”); id. at 2011:20-2012:21 (Fletcher) (testifying that DACL found no evidence that

nursing facilities were failing to contact DACL if a nursing facility resident expressed a desire to

transition to the community).

78. Second, DACL relies on MDS Section Q data to learn of nursing facility residents

who have expressed an interest in speaking to someone about the possibility of transitioning to

the community but have not yet been referred to DACL. See Tr. at 3726:8-24 (Newland); Def.

46
Ex. 102 at 12; Def. Ex. 114 ¶ 67. In the District’s view, this method is not the “primary means”

by which DACL learns of nursing facility residents who want or need transition assistance. See

Tr. at 3726:25-2727:8 (Newland).

79. By administering the MDS Section Q – specifically MDS question Q0500B – to

nursing facility residents during continuing stay reviews, Comagine periodically asks residents

whether they would like to discuss returning to live and receive services in the community. See

Def. Ex. 113 at 15, 17; Tr. at 65:20-24 (Byrd); id. at 770:4-23 (Newland); Def. Ex. 109; see also

Brown I, 322 F.R.D. at 77. As the District’s contractor, Comagine reports nursing facility

residents’ responses to MDS question Q0500B to DHCF, which shares those responses with

DACL every month. See Tr. at 173:10-21 (Byrd); id. at 621:4-16 (Newland); id. at 1106:22-

1107:9 (Stowe); id. at 3605:6-23 (Darku). DACL cross-checks these reports with DACL’s own

records of nursing facility residents who have completed a referral to DACL in order to receive

transition assistance. See Tr. at 621:4-21, 3726:8-24 (Newland); id. at 2378:6-23 (Sarigol); see

also Pl. Ex. 950B; Tr. at 3693:16-22 (Darku).

80. DACL’s community outreach coordinator, Ms. Darku, uses this data received

from Comagine to identify individuals who responded “yes” to MDS question Q0500B but have

not been formally referred to DACL to begin receiving transition assistance. See Tr. at 3607:11-

3608:9 (Darku); Pl. Ex. 950B.22 Ms. Darku then reaches out to nursing facility social workers to

22
Ms. Darku began performing this function around May 2020. See Tr. at 3693:4-6
(Darku); see also Pl. Ex. 388 ¶ 101 (admitting that the outreach coordinator position was vacant
between April 2017 and July 2019). Moreover, DACL ceased receiving monthly MDS Section
Q data from DHCF for a period of time, preventing DACL from performing this “double check”
of the comprehensiveness of its referral system. See Pl. Ex. 47 at 1-3 (“We used to receive this
data from DHCF to help us compare whether our referral system is working properly . . . , but we
haven’t received it lately.”); Pl. Ex. 957 at 249-50.

47
inquire whether residents who responded “yes” but have not yet been referred to DACL for

transition assistance indeed wish to transition to the community. See Tr. at 3606:12-3607:9,

3607:16-3609:18, 3697:3-9 (Darku) (agreeing that DACL “rel[ies] exclusively on the social

worker to tell [Ms. Darku] whether the resident want to talk with [her]”); id. at 621:4-624:5

(Newland); id. at 1139:20-1140:15 (Stowe). See Tr. at 3847:6-19 (Seiler) (social worker

referrals are the “primary referral source and Q as a backup seemed appropriate to me”).

81. Ms. Darku does not reach out directly to nursing facility residents unless the

nursing facility social worker notifies her that a resident (or a legal representative on a resident’s

behalf) would like transition assistance from DACL. See Tr. at 3606:12-3607:3, 3607:11-19,

3608:15-3609:8 (Darku); see also id. at 3700:14-22 (Darku) (noting that Ms. Darku stops

“contacting the facility” if the nursing facility social worker represents that “the resident has no

plans to transition at this time”).23 If Ms. Darku does not receive a response from a nursing

facility social worker about a resident, she will elevate the situation to DHCF, which will in turn

get in touch with the nursing facility to address the lack of communication. See Tr. at 3696:20-

3697:2, 3697:20-3699:2 (Darku).

82. On some occasions, Ms. Darku’s follow-up with nursing facility social workers

leads to referrals of the nursing facility resident to DACL for transition assistance. See Pl.

Ex. 950B; Tr. at 3694:18-25 (Darku); see also Tr. at 622:3-16 (Newland). The majority of

nursing facility residents who respond “yes” to MDS question Q0500B, however, are not

23
The RAI Manual notes that although “[s]ome States may determine that the LCAs
can make an initial telephone contact to identify the resident’s needs,” the expectation is “that
most residents will have a face-to-face visit.” Def. Ex. 113 at 17. In contrast to this policy,
DACL seemingly communicates with nursing facility residents who have responded “yes” to
MDS question Q0500B only if a nursing facility social worker confirms that the resident wants
transition assistance.

48
formally referred to DACL and therefore do not receive transition assistance. See Pl. Ex. 20 at 2;

Pl. Ex. 155A at 9; Tr. at 1985:22-1987:2 (Fletcher).24 For this reason, the District views its

reliance on the Comagine reports and Ms. Darku’s follow-up with nursing facility social workers

as a “supplement” to the “myriad ways” that the District learns of nursing facility residents’

desire to transition to the community. See Tr. at 578:2-11, 3726:25-3727:11 (Newland); id.

at 3820:13-3822:2 (Seiler); Def. Ex. 114 ¶ 67.

83. The District embraces a framework of “Person-Centered Planning,” which

provides that individuals themselves – not the District of Columbia – are responsible for deciding

whether to receive services in a nursing facility or in a community setting. See Def. Ex. 102

at 21-22, 25-28; see Tr. at 513:21-514:5 (Newland) (“It’s the person who gets to make the

decisions. It’s the person who gets to say where they want to live, who they want to live with,

what kind of treatment that, you know, they want, those kinds of things. And that the role of

government or any caregiver is really to support those decisions as much as possible for that

person.”); id. at 553:12-19 (Newland); id. at 970:25-971:5 (Stowe).

84. The District also adheres to the “No Wrong Door” principle, which provides that

an individual should be directed to whichever entity – whether governmental, community-based,

or non-profit – is the most appropriate to meet that individual’s needs, regardless of which entity

is first approached. See Def. Ex. 102 at 7 (describing “No Wrong Door” as a “government-wide

24
The District emphasizes – and plaintiffs sometimes conflate – the difference
between a formal referral to DACL to receive transition assistance and a less formal referral that
notifies DACL of a nursing facility resident’s desire to speak to someone about the possibility of
transitioning to the community. According to the District, the former describes the process of
formally opening a case with the NHT team by submitting a community transition services
referral form. See Tr. at 1976:9-13, 2008:21-2009:3 (Fletcher); id. at 1186:15-19, 1186:22-
1187:14 (Stowe); 566:15-567:19 (Newland). The latter describes the process of putting a
nursing facility resident who responds “yes” to MDS question Q0500B in contact with DACL
about the resident’s request for information. See Def. Ex. 113 at 16-17.

49
program which streamlines the eligibility process and provides District residents with accurate

information, regardless of where they enter the system”); Tr. at 511:22-513:20 (Newland); see

also Def. Ex. 114 ¶ 47.

4. Transitioning to the Community

85. A transition care specialist may close an individual’s case when DACL

determines that, in its view, there is no additional transition coordination assistance that can be

provided at that time to help transition that individual from the nursing facility into the

community. See Tr. at 614:5-12 (Newland); id. at 1005:19-1006:15 (Stowe); see also Brown

I, 322 F.R.D. at 75 (“Obstacles that would interfere with a transition include lack of housing,

income, and family support.”).25 Pursuant to the NHT standard operating procedures, a case may

not be closed without supervisory approval. See Def. Ex. 110 at 11-12; Tr. at 1006:16-1008:8

(Stowe). Transition care specialists may occasionally revisit closed cases if they find resources

or developments that might benefit the individual who was initially unable to transition. See Tr.

at 614:5-615:4 (Newland); see also Tr. at 1010:3-1011:6 (Stowe) (noting that transition care

specialists encourage nursing facility residents who decide to cease attempting to transition to

reach back out to DACL for transition assistance if they later change their minds).

86. In recent years, between 40 to 60 nursing facility residents transition to the

community every year with the transition assistance of DACL. See Tr. at 717:16-718:9

(Newland); see also Brown I, 322 F.R.D. at 72 (noting that 16 nursing facility residents

transitioned to the community in 2011; 16 nursing facility residents transitioned in 2012; 27

nursing facility residents transitioned in 2013; 39 nursing facility residents transitioned

25
Prior to 2015, cases were not closed and were instead kept active regardless of
there being barriers to transition. See Brown I, 322 F.R.D. at 75. DACL began to close cases
after determining that leaving cases open was a “resource drain.” Id.

50
in 2014; 42 nursing facility residents transitioned in 2015; and 51 nursing facility residents

transitioned in 2016). In 2017, 60 nursing facility residents transitioned to the community with

DACL’s transition assistance. See Def. Ex. 102 at 53. In 2018, 50 nursing facility residents

transitioned to the community with DACL’s transition assistance. See id. In 2019, 62 nursing

facility residents transitioned to the community with DACL’s transition assistance. See id. And

in 2020, 61 nursing facility residents transitioned to the community with DACL’s transition

assistance. And by the time of trial, 49 residents had transitioned to the community in the first

half of 2021. See id.26

87. Approximately 50% of all nursing facility residents who are referred to DACL for

transition assistance do not transition to the community for a number of reasons, including many

that are not within the District’s control. See Def. Ex. 111 at 2 (noting that in the first half

of 2021, 38% of DACL referrals were closed due to a successful transition); Pl. Ex. 406 at 4-5

(noting that, between January 2017 and April 2020, 44% of 543 unique referrals to DACL did

not discharge); Pl. Ex. 155A (noting the closure reasons for DACL referrals in 2019 and 2020);

see also Pl. Ex. 967 (suggesting that, between January 5, 2017, and July 30, 2021, 76% of

nursing facility residents who were referred to DACL did not successfully transition to the

community). For example, some nursing facility residents receiving transition assistance from

DACL ultimately do not transition because they (or their legal guardians on their behalf)

withdraw a request for transition assistance, lack affordable and adequate housing to move into,

or lack community or family support to facilitate a transition. See Pl. Ex. 155A at 8; Pl. Ex. 406

26
Plaintiffs contend that these figures are deplorably low when compared to the
number of nursing facility residents that plaintiffs’ experts estimate wish to transition to the
community but need DACL’s assistance to do so. See Pl. Ex. 140 at 37-39; Pl. Ex. 142 at 12;
see also Tr. at 2686:7-19 (Petron).

51
at 5. Some choose to stay in the nursing home due to declining health, and some die while

waiting to transition. See Pl. Ex. 155A at 8; Pl. Ex. 406 at 5.

88. Not every nursing facility resident who seeks to transition to the community

requires DACL’s transition assistance to do so, and some individuals successfully transition

without DACL’s support. See Tr. at 602:12-603:16 (Newland); id. at 1024:22-1025:15 (Stowe)

(noting that individuals are discharged from nursing facilities on a daily basis without requesting

services or transition assistance from DACL “[b]ecause they [already] have whatever resources

they need”); id. at 1182:10-25 (Stowe) (noting that nursing home social workers also provide

services and transition coordination to residents); see id. at 1715:13-1716:13 (Seiler); see also

Def. Ex. 103 (listing the number of people who directly transitioned to the community without

transition assistance in the first three quarters of 2021). In some circumstances, nursing facility

residents discharge against medical advice. See Def. Ex. 111 at 2.

89. In addition, a nursing facility resident’s legal guardian may decide, over the

expressed interest of a nursing facility resident to transition to the community, that it is in the

best interest of the resident for them to continue receiving services in a nursing facility. See Tr.

at 477:20-479:7 (Freeman); Pl. Ex. 406 at 5 (noting “guardian declined services” as a case

closure reason).

90. Under its current Olmstead Plan, the District does not commit to transition a

specified number of nursing facility residents to the community every year. See Tr.

at 599:18 600:1 (Newland); Def. Ex. 102. In previous Olmstead Plans, the District had

committed to transitioning a specified number of nursing facility residents to the community

each year. See, e.g., Def. Ex. 101 at 51-53 (listing District agencies’ “Quantitative Transition

Goals”).

52
E. Plaintiffs’ Expert Witnesses

91. Plaintiffs called Nancy Weston, Randall Webster – who together had prepared an

extensive expert report, Pl. Ex. 140, – and Michael Petron, as expert witnesses. Ms. Weston, a

trained social worker and Director of Nursing Facility Operations for the Massachusetts

Department of Developmental Services, provided opinions regarding the work of nursing facility

social workers and DACL transition care specialists. Pl. Ex. 141 A (Appendix A, Resume of

Nancy L. Weston); Tr. at 2800:7-22 (Weston).27 Mr. Petron was qualified as an expert in the

field of statistical sampling. Tr. at 2740:24-2741:8 (Petron).

92. Ms. Weston and Mr. Webster reviewed a random sample of 69 nursing facility

records for Medicaid beneficiaries residing in District of Columbia nursing homes to assess the

need and provision of transition assistance. Pl. Ex. 140 at 11, 13, 36; Tr. at 2488:12-18

(Weston). Mr. Petron had developed this random sample of nursing facility residents from

responses to Section Q of the Minimum Data Set (“MDS”), which is a federally mandated

screening tool for assessing health care needs and abilities of residents in Medicare or Medicaid

funded facilities. Pl. Ex. 140 at 8, 12, 36-38.

93. Section Q specifically asks residents questions related to returning to the

community. Pl. Ex. 140 at 9. Plaintiffs’ counsel received that data for 1,794 nursing home

residents in D.C. Id. at 12.28 Once Mr. Petron developed the sample of 69 residents, plaintiffs’

27
Mr. Webster was a consultant to the same Department. Pl. Ex. 141 A (Appendix
B, Resume of Randall Webster).

28
The Centers for Medicare and Medicaid Services (“CMS”) provided plaintiffs’
counsel with the Section Q of the MDS data reported to CMS from June 3, 2019 to September 1,
2019 for District of Columbia nursing home residents who had been in the facility for at least 90
days as of June 3, 2019. Pl. Ex. 140 at 12.

53
counsel subpoenaed additional information and records with respect to these 69 residents,

including their social work records and Care Plans. Id. at 12.

94. Ms. Weston and Mr. Webster created six descriptive categories and determined

who of the 69 residents met each criterion. Pl. Ex. 140 at 13. Mr. Petron then used their

conclusions to extrapolate to the relevant population of District of Columbia nursing home

residents. Id. at 13-14. Ms. Weston and Mr. Webster referenced two criteria, Attribute A and B,

as helping to measure the number of residents interested in moving to the community. Tr. at

2790:25-2791:7 (Weston). In their report, Ms. Weston and Mr. Webster describe Attribute A as

residents whose nursing facility records indicated a “preference for returning to the community.”

Pl. Ex. 140 at 36. They found that 30 out of the 69 residents identified by Mr. Petron had

Attribute A. Id. Mr. Petron used their conclusions with respect to Attribute A to calculate the

plaintiff class size as 685 residents as of June 2019. Pl. Ex. 140 at 1 n.2; Tr. at 2687:9-25,

2725:21-2726:4 (Petron).

95. Attribute B consists of residents who responded affirmatively to Question Q-500

of Section Q of the MDS. Pl. Ex. 140 at 8-9, 36; Tr. at 2485:1-6, 2488:19-25, 2489:1-4

(Weston). Ms. Weston and Mr. Webster found that 13 of the 69 residents identified by Mr.

Petron had said “yes” to Q-500, which asks if the individual wants “to talk to someone about the

possibility of leaving the facility and returning to live and receive services in the community.”

Pl. Ex 140 at 33, 36. Of the 13 residents who responded “yes” to Q-500, Ms. Weston testified

that 11 were never referred to the ADRC. Pl. Ex. 140 at 33; Tr. at 2815:21-2816:2 (Weston).

96. Ms. Weston further testified that it is her opinion that if there is an affirmative

response to Q-500, the nursing facility is required to make a referral to the local contact agency,

the ADRC. Pl. Ex. 140 at 9; Tr. at 2484:18-25, 2485:1-14, 2489:6-14, 2499:1-21, 2502:4-

54
2503:10, 2512:2-2513:21, 2532:8-12, 2820:23-2821:1, 3084:11-20 (Weston). She said that the

nursing facility cannot insert its judgment to overrule a resident’s expressed interest. Tr. at

3084:25-3085:17 (Weston). Nor can it refuse to make a referral because it believes there is no

home in the community to go to or no support in the way of services. Id. Ms. Weston further

testified that if a nursing home resident responds “yes” to Q-500 that indicates that he or she

needs assistance from the ADRC in transitioning to the community. Tr. at 3088:8-16 (Weston).

97. Ms. Weston acknowledged that she did not consider whether – after expressing a

preference for transition to the community – a resident might change his or her mind over time.

Tr. at 2785:11-2786:22, 2838:11-17 (Weston). Rather, she said that expressing an interest is the

same as preferring to live in the community. Tr. at 2577:24-2578:10, 2582:24-2583:17,

2773:22-41 (Weston). She further testified that people never change their desire to transition

once they know what the options and available services are in the community. Tr. at 2785:11-

2786:22, 2838:11-17 (Weston). That is why she said they all need transition services from the

ADRC. Tr. at 3088:8-16 (Weston). She concluded that “anybody who is in a facility would not

choose to be in a facility. It would not be their first choice,” and “that anybody in a facility

would prefer to live in a home-like environment.” Tr. at 3131:24-3132:13 (Weston).

98. Mr. Webster testified that D.C. had 91 referrals in the first two quarters of 2021.

Tr. at 3227:4-25 (Webster). He obtained this information from one of DACL’s 2021 quarterly

reports on its clinical team. Tr. at 3227:4-25 (Webster); Pl. Ex. 946 at 2. Based on his

experience in Massachusetts, Mr. Webster opined that with more robust outreach or transition

services, there would be approximately 400 referrals a year rather than the current 91. Tr. at

3227:4-25, 3228:6-3229:17, 3230:19-3231:17 (Webster).

55
99. Michael Petron, the statistician, reviewed the expert report of Ms. Weston and Mr.

Webster and relied exclusively on their conclusions; he did not review the content of the nursing

facility files himself other than to calculate the sample size for his report. Tr. at 2686:20-2687:3,

2725:7-20, 2726:14-18, 2732:19-24, 2734:4-12, 2740:2-23 (Petron). Based on those conclusions

and the assumptions provided to him by plaintiffs’ counsel, he focused on three nursing facilities

– out of 17 in the District of Columbia – chosen by plaintiffs’ counsel. Tr. at 2716:14-21

(Petron). On these bases, he calculated that 685 residents in these facilities wanted to transition

into the community. Tr. at 2725:21-2726:4 (Petron).

100. The Court finds Ms. Weston’s analysis and opinions unreliable and gives them no

credence – for three primary reasons: (1) she started with the unfounded premise that every

nursing home resident who expresses an interest in transitioning to the community in fact prefers

to live in the community, Tr. at 2577:24-2578:10, 2582:24-2583:17, 2773:22-41 (Weston), and

that such preference never changes; (2) based on this premise, she interpreted a “yes” answer to

Q-500 to mean that a nursing home resident wants to transition to the community, rather than

reflecting only a request for more information; and (3) she further assumed that everyone who

wants to transition to the community needs the assistance of DACL’s ADRC. Tr. at 3088:8-16

(Weston). Even her colleague, Mr. Webster, disagrees with this last conclusion. Tr. at 3435:2-

10 (Webster).

101. Ms. Weston reads an affirmative answer to Q-500 as expressing a preference to

move to the community, Tr. at 2583:10-17 (Weston), when in fact Q-500 only asks a nursing

home resident whether he or she “want[s] to talk to someone about the possibility of leaving this

facility and returning to live and receive service in the community?” Def. Ex. 113 at Q-15

56
(MDS RAI, Section Q).29 See also Thorpe v. District of Columbia, 303 F.R.D. 120, 144 n. 54

(D.D.C. 2014) (“Nor does it make sense to assume that every nursing home resident who had

indicated an interest in talking to someone about moving to the community (the MDS preference

number) satisfies all of the other criteria for class membership. Even the 256 residents identified

through the MFP screening, which the plaintiffs focus on in their reply, may not satisfy all of the

other criteria for class membership.”)

F. Systemic and Individual Barriers to Successful Transitions, Particularly Housing

102. Because of the challenges that a nursing facility resident may face when

navigating the complex administrative and logistical processes of transitioning back to the

community, many nursing facility residents are unable to successfully transition without

assistance from professional transition care specialists. See Pl. Ex. 140 at 19; see Tr.

at 3850:18-23 (Seiler). Among other things, transition care specialists may facilitate a successful

transition by helping residents obtain vital records and financial documentation, helping residents

apply for available home- and community-based services and supports, planning and

documenting the stages of a transition, coordinating with other members of a resident’s support

network, helping residents secure housing, furniture, food, and household startup items, and

providing emotional and technical support. See Pl. Ex. 140 at 19-20 (discussing the qualities of

“an effective system of transition assistance [that] helps people with numerous tasks necessary

for a safe and effective transition to the community”).

29
Mr. Webster, by contrast, acknowledged that Q-500 asks only about a desire for
more information regarding transition to the community. Tr. at 3248:9-24, 3521:19-3522:14
(Webster). Mr. Webster testified that it is not a good indicator of whether someone wants to
return to the community. Tr. at 3522:15-21 (Webster). He also testified that not everyone needs
transitional assistance. Tr. at 3435:2-10 (Webster).

57
103. There nevertheless are a multitude of various systemic and individual barriers that

may inhibit a nursing facility resident’s ability to transition to the community. See Pl. Ex. 155A

at 8; Pl. Ex. 406 at 5. “[N]ursing facility residents [may be] impeded by [a] lack of proper

identification to access community-based services and [a] lack of family support for their

transition.” Brown I, 322 F.R.D. at 86. In addition, a nursing facility resident may experience

barriers to transition including:

(1) finding a home health agency to staff [their] care needs;
(2) understanding the requirements of a completed EPD waiver;
(3) getting a . . . determination of the required level of care or the
number of personal-care hours; (4) a lack of support in the
community; (5) the medical complexity of the individual; and (6) a
lack of training of family members who would otherwise provide
personal care assistance.

Id.

104. In addition, nursing facility residents with physical disabilities may lack self-

confidence in their ability to navigate the complex administrative processes of applying for

Medicaid-funded services, to secure subsidized housing, and most critically, to safely transition

to the community, given their individual, particularized needs. See Tr. at 2491:1-21 (Weston);

see also Pl. Ex. 140 at 18-20. Setting aside logistical and administrative challenges that make it

difficult to transition, individuals with disabilities who require nursing facility level of care may

also find the prospect of living alone in the community to be daunting. See Tr. at 1007:14-17,

1010:3-1011:1 (Stowe).

105. To successfully transition from an institution to the community, a physically

disabled nursing facility resident must secure safe and affordable housing that is appropriate to

their disability. See Tr. at 518:16-519:6, 552:2-24 (Newland); Def. Ex. 102 at 10; see also

Brown I, 322 F.R.D. at 83 (“Special needs populations including older adults and persons with

58
disabilities, are disproportionately affected by housing problems, and may require costly home

modifications and supportive services.”).

106. Finding and securing appropriate housing can be a challenge for many nursing

facility residents, particularly those of limited means – like the class members in this case – who

also have needs specific to their disabilities. See Tr. at 584:16-585:11 (Newland); id. at 993:3-

12, 993:24-994:14 (Stowe); Def. Ex. 102 at 10; see also Tr. at 1490:5-1491:5 (Greenwalt)

(noting that it is very rare for an extremely low income individual – 30% of the median family

income – to be able to secure housing in the District without public assistance); Def. Ex. 609 at 4

(describing the various income levels of D.C. residents who receive housing assistance).

1. The D.C. Housing Authority and Housing Vouchers

107. The D.C. Housing Authority (“DCHA”) is a public housing agency that provides

safe, decent, affordable housing for extremely-low-to-moderate income families in the District of

Columbia. See Tr. at 1200:5-16 (Punter); Def. Ex. 609 at 2, 4; see also Tr. at 1247:18-1248:5

(Punter) (explaining that the extremely low income category pertains to those with incomes

equal to 0-30% of the area median income). DCHA is an independent agency; it is not formally

part of the D.C. government but receives funding from both the U.S. Department of Housing and

Urban Development (“HUD”) and from the D.C. government to provide housing services to

D.C. residents. See id. at 1200:10-12, 1201:2-1202:16 (Punter). DCHA serves individuals

through traditional public housing and through housing voucher programs, which subsidize the

expense of housing to allow individuals to offset their rent toward privately-owned housing. See

id. at 1203:4-1204:13, 120

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10772948. Public record. Not legal advice.