# Salazar v. District of Columbia

> District Court, District of Columbia · October 16, 1996 · 954 F. Supp. 278

URL: https://www.frixlaw.com/law-library/cases/1488739

## Case

- **Full name:** Oscar SALAZAR, Jr. Et Al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. DISTRICT OF COLUMBIA Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** October 16, 1996
- **Citations:** 954 F. Supp. 278; 1996 WL 768038
- **Precedential status:** Published
- **Opinion:** Opinion by Kessler
- **Judges:** Kessler
- **Cited by:** 38 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/1488739

## How later opinions describe it (automated extraction)

- finding deliberate indifference based on the agency’s failure to rectify problems in Medicaid application processing after “high-level DHS managers have known about [the agency’s] recurrent backlogs of NPA Medicaid applications for several years”
- finding that District of Columbia's failure to ensure that EPSDT-eligible children receive diagnosis and treatment for health problems detected during screening violated § 1396a(a)(43)(C)
- finding an agency’s practices so inadequate as to establish deliberate indifference where the agency “deliberately assigned only one person . . . to run the entire [assistance] program” and completely failed to monitor compliance
- finding District of Columbia liable for failing to give Medicaid recipients adequate notice before terminating benefits
- applying Monell standard to the District’s compliance with Medicaid processing requirements even though the statute defines D.C. as a “State”

## Opinion text

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
1
KESSLER, District Judge.
Plaintiffs
2
bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and a class of needy children and adults who have applied for Medicaid
3
in the District of Columbia. After three years of pretrial litigation, including extensive, complex discovery generally conducted in good faith by both sides, several dispositive motions, and exhaustive settlement efforts,
4
this case proceeded to trial.
This Court conducted a seven-day bench trial on the four remaining claims
5
in the Complaint: Claim 4, which alleges that Defendants
6
do not issue decisions and provide Medicaid coverage within 45 days after initial applications are submitted; Claim 5, which alleges that Defendants do not provide advance notice of the discontinuance or suspension of Medicaid benefits; Claim 6, which alleges that Defendants do not provide or arrange for the provision of early and periodic screening, diagnostic and treatment
*281
(“EPSDT”) services to Medicaid recipients who request such services; and Claim 7, which alleges that Defendants do not effectively notify individuals of the availability of EPSDT services. During the trial, the Court heard testimony from 38 witnesses for Plaintiffs and 16 witnesses for Defendants; over 500 exhibits were admitted into evidence.
This case is about people — children and adults who are sick, poor, and vulnerable— for whom life, in the memorable words of poet Langston Hughes, “ain’t been no crystal stair”. It is written in the dry and bloodless language of “the law” — statistics, acronyms of agencies and bureaucratic entities, Supreme Court case names and quotes, official governmental reports, periodicity tables, etc. But let there be no forgetting the real people to whom this dry and bloodless language gives voice: anxious, working parents who are too poor to obtain medications or heart catheter procedures or lead poisoning screens for their children, AIDS patients unable to get treatment, elderly persons suffering from chronic conditions like diabetes and heart disease who require constant monitoring and medical attention. Behind every “fact” found herein is a human face and the reality of being poor in the richest nation on earth.
I. INTRODUCTION
Medicaid is the largest public assistance program in the District of Columbia, serving slightly over 25% of all District residents. From April 1995 to April 1996, an average of approximately 115,000 people per month were eligible for Medicaid. For example, in February 1996, 111,644 people were eligible for Medicaid. Of this total, 73,337, or 65.7%, qualified as categorically eligible for Medic-' aid through the Aid to Families with Dependent Children (“AFDC”) program; 23,903, or 21.4%, qualified for Medicaid as a result of nursing home care, their enrollment in the General Public Assistance (“GPA”) program, or their enrollment in the Supplemental Seeurity Income (“SSI”) program; 11,321, or 10.1%, qualified through the Non-Public Assistance (“NPA”) program; and 3,083, or 2.8%, qualified because they were foster care children. Within NPA, the Multinational Program serves approximately 3,000 people, who constitute slightly over 2.5% of all Medicaid-eligible persons.
7
However, of the entire monthly Medicaid application workload, which is approximately 2,150 cases, the Multinational Program normally accounts for approximately 8% of all applications.
8
Testimony of John M. Bayne (“Bayne Test.”), ¶ 6.
Upon Plaintiffs’ motion, the court certified the following class pursuant to Fed.R.Civ.P. 23(b)(2):
All persons who have applied, have attempted to apply, or will apply in the future during the pendency of this litigation, for medical assistance pursuant to Title 19 of the Social Security Act (“Medicaid”), and all persons who have received, are receiving, or will receive in the future during the pendency of this litigation, Medicaid in the District of Columbia with respect to the following claims:
Any claims for declaratory, injunctive, or other relief premised on an alleged delay in excess of 45 days in the processing of Medicaid applications [Sub-class III]
Any claims for declaratory, injunctive, or other relief premised on an alleged lack of advance notice of the discontinuance, suspension or obligation to recertify Medicaid benefits, after being found eligible [Subclass IV]
Any claims for declaratory, injunctive, or other relief premised on an alleged lack of effective notice of the availability of early and periodic screening, diagnostic and treatment (“EPSDT”) services for children under 21 years of age, and/or an alleged lack of EPSDT services for eligible children under 21 years of age [Sub-class V].
See
Orders of October 6,1994 and November 3,1994 (Kessler, J.).
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The NPA program encompasses different categories of eligible persons, including non-SSI disabled and multinational persons and children in foster care. As the litigation developed, and as a result of obtaining discovery, Plaintiffs focused more and more narrowly on NPA applicants and recipients. At trial, Plaintiffs asserted Claim 4, regarding untimely processing of initial Medicaid applications, only on behalf of certain NPA applicants,
ie.,
non-disabled, non-foster care applicants. As to Claim 5,
9
Plaintiffs asserted the recertification component of that claim on behalf of all non-foster care NPA recipients. As to the EVS component of Claim 5 and the request for reimbursement for Plaintiffs’ out-of-pocket expenses, Plaintiffs sued on behalf of all Medicaid applicants and recipients. As to Claims 6 and 7, Plaintiffs continued to seek relief on behalf of all Medicaid applicants and recipients.
On April 1, 1994, Defendants started implementing the District’s Medicaid Managed Care Program, a health care delivery system for the 65.7% of all Medicaid recipients who receive AFDC benefits. Testimony of Terri Thompson (“T. Thompson Test.”), ¶ 15. The Medicaid Managed Care Program allows patients to choose between prepaid, capitated managed care organizations and fee-for-service primary care providers.
Id.
Testimony of Paul Offner (“Offner Test.”); Testimony of Jane E. Thompson (“J. Thompson Test.”).
Mr. Paul Offner, Commissioner of Health Care Finance for the District of Columbia, and Ms. Jane Thompson, Chief of the Managed Care Program in the Commission on Health Care Finance (“CHCF”), testified at length regarding their plans for a major overhaul of the Medicaid Managed Care Program. This massive restructuring of the delivery of health care to poor people in the District of Columbia was to begin with a Request for Proposals (“RFP”), which was issued shortly before trial, in early April 1996. Both Mr. Offner and Ms. Thompson testified that this restructuring of the Medicaid Managed Care Program would alleviate many of the problems they conceded existed in the District’s EPSDT program. Defendants repeatedly relied upon the reforms embodied in the RFP to assure the Court that concrete steps were being taken to correct a system which was admittedly failing to operate efficiently, economically, and in accordance with federal law. After trial, however, the Court learned that this RFP has been withdrawn.
See
Pis.’ Post-Trial Brief at 2, n. 1.
10
II. FINDINGS OF FACT
A. Timeliness of Initial Application Processing
Defendants are required to send notices of decision on Medicaid applications within 45 days of receiving the applications.
See
42 U.S.C. § 1396a(a)(8); 42 C.F.R. § 435.911 (a); D.C.Code Ann. § 3-205.26. However, as discussed below, the record clearly establishes that NPA Medicaid applications are not processed in a timely manner.
1. Initial Medicaid applications are accepted and processed by the Income Maintenance Administration (“IMA”), a division of the Commission on Social Services within the D.C. Department of Human Services (“DHS”), at IMA’s central intake offices at 645 H Street, N.E., Washington, D.C. (“645 H Street”), and at IMA’s nine decentralized service centers located at various community locations. Bayne Test., ¶¶ 5 and 7. At 645 .H Street, there are two separate sections that handle NPA applications: the Multinational Section and the NPA Intake Section.
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Bayne Cross-Exam. Test.
11
2. Medicaid applications are processed by IMA social service representatives (“SSRs”), who in turn rely upon the Automated Client Eligibility Determination System (“ACEDS”), a computer system used to determine eligibility for the many public assistance programs administered by IMA. Testimony of Arlene Conover (“Conover Test.”), ¶¶ 8-4. An IMA SSR enters the application into ACEDS, determines from the automated ACEDS checklist which information is still needed to complete the application process, and gives the applicant that checklist with instructions to provide any missing, required information to the SSR.
Id.,
¶ 6.
3. As the applicant provides the required information, the SSR updates the automated record of the checklist.
Id.
On the 10th and 30th days after an application is submitted, notices requesting any outstanding information are issued to the applicant automatically, without intervention by the SSR, to remind the applicant of the date of application and the data still needed to determine eligibility.
Id.
On the 15th day or on the next available workday following the issuance of the 30-day notice, ACEDS denies the application automatically if the checklist still contains outstanding items. If the applicant requests additional time to supply the required information and the SSR grants that request and enters an extension date, ACEDS will not automatically deny the application on the 45th day.
Id.,
¶¶ 6-7. When ACEDS does deny the application automatically, it also issues a denial notice. If, during the application time frame, the applicant provides all of the information, no additional reminder notices are issued and the automatic denial does not occur.
Id.
Medicaid applications and notices generated by ACEDS are available in both English and Spanish; when applicants first apply for Medicaid, they are given the choice of having their ACEDS notices printed in either language. Bayne Test.; Conover Test.
1. Medical Eligibility Operations Reports
4. IMA’s Medical Eligibility Operations (“MEO”) reports, which provide information about non-disability NPA applications, clearly show that all Medicaid applications are not processed within 45 days. MEO reports are available for the period from January 1992 through February 1996. In every month for which MEO reports are available, the reports indicate that applications filed more than 45 days earlier were still pending at the end of the month. Pis.’ Exs. 103, 104, 111. The December 1993 MEO report for the Multinational Section at 645 H Street reveals that at the end of that month, that section had 536 applications pending over 45 days, or 60% of all reported applications pending at the end of that month for that unit. Pis.’ Exs. 104, lili In the same month, the NPA Intake Section at 645 H Street had 517 applications pending over 45 days, or 54% of the total reported applications pending at the end of the month. Pis.’ Exs. 103,104.
5. Although Defendants managed to reduce that backlog by 1995, there were still substantial backlogs. Pis.’ Exs. 4 at 199, and 19 at 100. The May 1995 MEO report shows 46 cases pending over 45 days for the Multinational Section, and 30 cases pending over 45 days for the NPA Intake Section. Pis.’ Exs. Ill, 103. These numbers represent 8% and 15% of the reported applications for the Multinational Section and the NPA Intake Section, respectively. The June 1995 MEO report for the Multinational Section shows 35 applications pending for more than 45 days, or 12.2% of the 288 total applications pending at the end of June; the same report for the NPA Intake Section shows 33 applications pending at the end of June, or 7.8% of the 425 total applications pending at the end of June. Pis.’ Exs. 103, 104, and 111. Finally, the MEO report for July 1995 shows that 73 applications were pending for over 45 days in
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the Multinational Section, or 24.7% of the total number of applications pending at the end of July. Pis.’Ex. 111. The NPA Intake Section had 135 applications pending for more than 45 days, or 28.6% of the 472 Medicaid applications pending at the end of July. Pis.’Ex. 103.
6. For the 12-month period from March 1995 until February 1996, the average monthly number of applications pending for more than 45 days was 67.8 for the Multinational Section, or 19.8%, and 49.6 for the NPA Intake Section, or 10.6%. In the Multinational Section, the percentages of applications pending for more than 45 days were 25% or greater in five out of twelve months, including three of most recent months for which data is available — December 1995 and January and February 1996. In the NPA Intake Section, the percentages of applications pending for more than 45 days were 11% or lower for all months except July and August 1995. Pis.’ Ex. 104.
7. The MEO reports actually undercount the number of applications that IMA fails to process within 45 days, because they only count applications that are still pending at the end of the month. Thus, they do not capture applications that were processed before the end of a particular month, but which took more than 45 days to process. The MEO reports also do not account for delays in application processing caused by applicants’ failure to submit complete documentation, changes of address, or death, nor do they account for transfers' of applicants to different categories of eligibility or Defendants’ procedure for counting 45 days. Finally, the available MEO reports only show application processing rates for two NPA application processing sections: the NPA Intake Section and the Multinational Section, both located at 645 H Street.
12
2. Plaintiffs’ Statistical Sample
a. Nature of the Study
Plaintiffs retained the Center for Forensic Economic Studies, Inc. (“CFES”) to analyze IMA’s timeliness in processing applications. CFES began by selecting samples of five groups of Medicaid recipients in the District of Columbia: (1) all active, non-disability, NPA cases
13
; (2) all active, non-categorically eligible disability cases; (3) all active cases involving newborns bom to mothers receiving Medicaid at the time of the newborns’ birth; (4) all active, AFDC Medicaid cases; and (5) NPA cases processed by IMA’s Multinational Section (“NPA-Multinational cases”). Siskin Test, at 3.
14
CFES and Plaintiffs then received from IMA four computer data files corresponding to the above requests.
Id.
at 4.
15
Each data file contained thousands of individual case records.
Id.
at Table 1. From these data files, CFES selected systematic random samples for each of the five Medicaid populations: (1) 300 NPA case records involving cases not processed by the Multinational Section (“NPA-Nonmultinational”), (2) 100 non-
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categorically eligible disability (“disability”) case records, (3) 100 ease records of newborns born to mothers receiving Medicaid at the time of the newborns’ birth, (4) 100 AFDC or AFDC-related case records, and (5) 100 NPA-Multinational case records, for a total of 700 Medicaid ease records. Plaintiffs’ counsel then requested and received the actual case files corresponding to the ease records.
Id.
Plaintiffs’ counsel reviewed the IMA ease files, recorded relevant information onto database entry forms, reviewed the database entry forms for accuracy, and reviewed the computer database for accuracy. Testimony of Rochelle Bobroff (“Bobroff Test.”) at 5-7. In conducting their review of the ease files, Plaintiffs’ counsel found that only 97 of the requested 300 NPA-Nonmultinational case files were relevant for purposes of application processing. Siskin Test, at Table 2. The remainder of the case files received were considered irrelevant for several reasons. First, 112 of the records received from IMA were merely case profiles rather than actual case files. Bobroff Test, at 3; Bobroff Cross-Exam. Test. The case profiles lacked crucial information, such as the dates of Medicaid applications and the dates of notice of decision. Bobroff Test, at 3;
see also
Pis.’ Ex. 180 (examples of case profiles provided to Plaintiffs). Second, 56 of the NPA case files concerned foster care children. Bobroff Test, at 3. Plaintiffs’ counsel considered these case files irrelevant because children in foster care are automatically eligible for Medicaid and thus do not undergo the application process that NPA applicants undergo.
Id.
Third, the NPA ease files suppled by IMA to Plaintiffs’ counsel contained 42 AFDC case files.
Id.
at 4; Bobroff Cross-exam. Test. If persons apply for and are found eligible for AFDC, they also become automatically eligible for Medicaid.
16
Defs.’ Ex. 2 (D.C. Medical Assistance Policy Handbook), § 1610.
17
Thus, Plaintiffs’ counsel excluded the AFDC case files from their study also.
The fourth Medicaid population Plaintiffs excluded was the group of non-categorically eligible, disabled applicants for Medicaid.
18
Although such persons submit Medicaid applications to IMA, their case files were irrelevant, in Plaintiffs’ estimation, because IMA has an ádditional 15 days in which to process their applications. Bobroff Cross-Exam. Test. Finally, some case files lacked relevant data, such as an application form, or information about the time in which the application was processed.
Id.
at 5. These case files were also excluded from the sample.
Id.
Plaintiffs’ counsel identified 188 relevant NPA-Multinational case files by supplementing the original sample of 100 case files with 88 case files drawn from other samples. These 88 additional ease files included 70 case files that initially appeared in the general NPA sample of 300 but contained information about NPA-Multinational applications.
Id.
at 5.
19
After Plaintiffs’ counsel determined which case files contained relevant information, they presented the computer database containing all such files to CFES for statistical analysis. Siskin Test, at 2. Using a 95% confidence interval, CFES found that applications were improperly processed
20
approximately 42.3% of the time by IMA units that
*286
processed NPA-Nonmultinational applications (41 out of 97 applications) and 69.7% of the time by the Multinational Section (131 out of 188 applications). Pis.’ Ex. 5 at 8; Siskin Test, at 2 and. 10.
b. Defendants’ Objections to the Study
Defendants have strenuously challenged these findings. Mr. Bayne testified that CFES’ study was not useful from a managerial perspective, because it did not measure IMA’s overall timeliness in processing Medicaid applications; it did not study processing of AFDC-Medicaid applications; and it did not study applications that were ultimately denied. A typical, and more useful, study, according to Mr. Bayne, would be one that measured timeliness of all Medicaid application processing within a particular time frame,
e.g.,
one month. Bayne Cross-Exam. Test. Mr. Bayne also criticized the study for focusing only on the universe of active cases,
ie.,
cases in which applications were granted, and for including cases from 1993 and 1994.
Rebecca Klemm, Ph.D., an expert witness retained by Defendants, similarly criticized Plaintiffs’ failure to measure timeliness of all applications being processed within a particular time period. According to Dr. Klemm, the best and most accurate method for studying the Medicaid application process is “to identify eases as they arrive for processing and then follow them through the entire process until a decision is reached.” Klemm Test., ¶ 4a. This way, both the timeliness or untimeliness of the processing and the reasons for the timeliness or untimeliness
21
can be understood. Klemm Test., ¶ 4.
Additionally, Dr. Klemm objected to the title of CFES’ study, “untimely processing of applications for Medicaid,” as too broad, because CFES actually studied only a discrete subgroup of Medicaid eligibility determinations,
ie.,
non-disability, non-foster care NPA Medicaid applications.
Id.
¶ 5. Dr. Klemm asserted that IMA’s timeliness in making initial Medicaid eligibility decisions should be measured by considering not only how quickly IMA processes non-disability NPA applications, but also by considering how quickly IMA makes eligibility determinations for NPA-disability applicants and other Medicaid “applicants,”
ie.,
children in foster care, AFDC recipients, and SSI recipients.
Id.,
¶ 5 and Table 2A. With respect to foster care cases, Dr. Klemm testified that the time period between commitment of children to the District of Columbia’s custody and commencement of those children’s Medicaid eligibility could be measured. Similarly, with respect to SSI cases, the time period between IMA’s receipt of a computer tape identifying SSI recipients and commencement of Medicaid eligibility for those recipients could be measured. With respect to disability NPA applications, Plaintiffs could have assessed IMA’s compliance with the 60-day requirement for application processing. In sum, Dr. Klemm testified, a study of the timeliness of application processing should consider all of the ways in which Medicaid eligibility is determined. Klemm Cross-Exam.Test. Finally, Dr. Klemm also criticized CFES’ failure to study applications that were denied.
Id.
¶ 5.
22
Finally, Dr. Klemm provided tables purporting to show updated percentages of improperly processed cases. Klemm Test., ¶ 5e and Tables 4A, 6A, and 8A This data is based on IMA’s study of CFES’ findings. Klemm Cross-Exam.Test. Out of the 41 NPA-Nonmultinational cases in which Plaintiffs alleged improper processing, IMA re
*287
viewed 27. Klemm Test., Table 4A. Using the number of eases in which IMA refuted Plaintiffs’ findings (4) as the numerator and the total number of IMA-reviewed cases (27) as the denominator, Dr. Klemm calculated a percentage, or error rate, of 14.8%. She applied that percentage to the total number of cases in which Plaintiffs alleged improper processing (41), to estimate the number of cases IMA would have refuted had it reviewed all 41 instances of alleged improper processing. This number (roughly 6) was then subtracted from 41, to reflect Defendants’ view of the number of actual instances of improper processing (35). This analysis resulted in 35 instances of improper processing out of 97 non-disability NPA-Nonmultinational cases studied, or 36.0%. Klemm Cross-Exam.Test. and Table 4A.
Dr. Klemm used a similar analysis with Plaintiffs’ NPA-Multinational findings. Considering the 16 refutations Defendants made after actually reviewing 99 of Plaintiffs’ cases, she estimated that out of the 188 NPA-Multinational cases studied by Plaintiffs, IMA improperly processed 110, or 58.4%, of the applications.
See id.
With respect to six of Defendants’ actual refutations, Plaintiffs conceded timely processing of applications. Plaintiffs also agreed with Defendants that two had been processed in 46 days; an additional seven had been processed in 46 days due to IMA’s allowance of a full 15-day period following the issuance of the 30-day notice, where the date of the 30-day notice was delayed because it fell on a non-business day; and one had been ignored because the applicant had already been found eligible for Medicaid. Two of the refutations have been withdrawn by Defendants. Stipulation of the Parties Concerning Siskin Test., Jesberg Test., and CFES Study, 5-30-96 (“Joint Stipulation”) at 5. However, because neither party has identified the categories from which the agreed-upon applications were drawn
(i.e.,
non-disabled NPA-Nonmultinational or NPA-Multinational), the Court cannot incorporate this information into the percentages offered by either Plaintiffs or Defendants.
c. The Court’s Findings
8. Defendants contend that Plaintiffs’ study should be excluded from evidence in this case, because it failed to encompass eligibility determinations for the groups identified by Dr. Klemm,
i.e.,
NPA-disability applicants, children in foster care, AFDC recipients, GPA recipients, and SSI recipients.
See
Defs.’ Posh-Trial Brief at 7. Such eligibility determinations should not have been included in Plaintiffs’ statistical sample, however, because they are outside the scope of the Court’s November 3, 1994 Class Certification Order. In that order, the Court certified plaintiff subclass III, which was defined as
[a]ll persons who have applied, have attempted to apply, or will apply in the future during the pendency of this litigation, for [Medicaid] ... with respect to ... [a]ny claims ... for declaratory, injunctive, or other relief premised on an
alleged delay in excess of 45 days in the processing of Medicaid applications.
November 3, 1994 Class Certification Order (emphasis added). SSI recipients — persons whose eligibility for SSI is determined by the federal Social Security Administration — and foster care children are automatically eligible for Medicaid in the District of Columbia; consequently they do not submit Medicaid applications to IMA and IMA makes no independent Medicaid eligibility ' determination for them. Defs.’ Ex. 2 (D.C. Medical Assistance Policy . Handbook), § 1620; Bobroff Test, at 3. Similarly, AFDC recipients and GPA recipients are automatically eligible for Medicaid, Defs.’ Ex. 2, §§ 1610 and 1630, and thus do not submit separate Medicaid applications to IMA.
23
Finally, applications for NPA-disability Medicaid must be processed within 60 days, rather than 45 days. D.C.Code Ann. § 3-205.26 (1994).. Thus, the groups about whose exclusion Dr. Klemm complained simply do not belong to a plaintiff
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subclass alleging “delay in excess of 45 days in the processing of Medicaid applications.”
9. Even before the Court defined subclass III in its November 3, 1994 Order, Defendants knew that Claim 4 only encompassed applicants for NPA Medicaid. In June 1994, Defendants responded to Plaintiffs’ First Set of Interrogatories, which asked Defendants for “the number of applicants for Medicaid benefits in the District of Columbia.” Pis.’ Ex. 101 at 2. Defendants responded that “this information can be derived from the available statistical reports prepared by each intake center handling
NPA Medicaid applications.” Id.
at 3 (emphasis added). Similarly, when Defendants were asked to supply the number of Medicaid applicants who were denied benefits, their response “assum[ed] [that] this interrogatory actually seeks information on
NPA Medicaid applicants
who were ultimately denied Medicaid eligibility ...”
Id.
at 5-6 (emphasis added).
10. Defendants’ argument that Plaintiffs also should have studied denied applications is more compelling.
See
Defs.’ Post-Trial Brief at 7. The ease of
Bazemore v. Friday,
478 U.S. 385 , 106 S.Ct. 3000 , 92 L.Ed.2d 315 (1986), is instructive on this issue, however. The court of appeals had upheld the district court’s exclusion of expert statistical analyses purporting to show salary disparities between white and black workers, on the ground that the analyses did not incorporate “all measurable variables thought to have an effect on salary level.”
Id.
at 399 , 106 S.Ct. at 3008 . The Supreme Court rejected this conclusion as “plainly incorrect,” and ruled that “[n]ormally, failure to include variables will affect the analysis’ probativeness, not its admissibility.”
Id.
at 400 , 106 S.Ct. at 3009 . The Court further noted that at trial, the defendants had merely “declare[d] ... that many factors go into making up an individual employee’s salary; they made no attempt — statistical or otherwise — to demonstrate that when these factors were properly organized and accounted for there was no significant disparity between the salaries of blacks and whites.”
Id.
at 404 , 106 S.Ct. at 3010 .
24
11. It is true that IMA’s timeliness in processing applications that were denied would be one relevant factor for determining its timeliness in processing all non-disability, non-foster care NPA applications. However, the Court has no reason to assume that applications resulting in denial are processed more quickly than applications resulting in a finding of eligibility and, therefore, no reason to assume that Defendants are prejudiced by exclusion of such applications from the study. For example, the inherent difficulties in processing NPA-Multinational applications promptly, which are described in Finding No. 34, would apply with equal force to applications which are both accepted and denied. Thus, the Court finds that Plaintiffs’ omission of denied applications is a weakness which merely “render[s] the analysis less probative that it otherwise might be”; it does not affect the study’s admissibility.
Bazemore,
478 U.S. at 400 , 106 S.Ct. at 3008-09 .
The Court further notes that Defendants’ criticism of Plaintiffs’ failure to measure application processing for denied applications is similar to the criticisms of the
Bazemore
regression analyses. Like the defendants in
Bazemore ,
Defendants in this case merely pointed to the denied applications, without ever attempting to show, statistically or otherwise, that when denied applications are considered, IMA’s rate of proper application processing improves.
See Bazemore,
478 U.S. at 404 , 106 S.Ct. at 3010 . In short, no evidence suggests that if Plaintiffs had statistically analyzed denied applications as well as accepted applications, the results would be any different.
12. The Court accepts the numerical corrections to CFES’ study made by Dr. Klemm in reliance on Ms. Jesberg’s refutations. Thus, the final results of the study, as corrected by Dr. Klemm, are that Defendants failed to decide applications within 45 days in 35 out of the 97 non-disability NPA-Nonmul
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tinational applications, or 36.0%, and in 110 out of 188 NPA-Multinational cases studied, or 58.4%.
25
3. Hospital Evidence
13. Hospitals frequently treat patients who, at the time of hospitalization or outpatient treatment, qualify for but are not currently receiving Medicaid. In order to ensure their own reimbursement, many hospitals have retained private firms to help patients who have already received hospital services complete their Medicaid applications. Testimony of David Sparks (“Sparks Test.”), ¶ 5; Testimony of Helen Green (“Green Test.”). To receive Medicaid reimbursement for services already rendered, the applications must be submitted within 90 days of treatment. Testimony of Timothy B. Sheridan (“Sheridan Test.”).
14. Georgetown University Medical Center (“GUMC”) submits Medicaid applications on behalf of its patients on a rolling basis. In other words, as soon as patients complete Medicaid applications, GUMC has a messenger deliver them to IMA. For the period from August 1, 1995 to March 26, 1996, GUMC sent 136 Medicaid applications to IMA on behalf of its patients, and IMA issued 70 eligibility decisions. As of March 28, 1996, 66 applications were still pending, 55 of which (83%) had been pending over 45 days. In 23 out of the 70 decided applications (33%), IMA issued a decision within 45 days. In 47 out of 70 (67%), however, IMA issued a decision more than 45 days after IMA received the application. -Of the 47 decisions that took longer than 45 days, 18 (26%) were decided more than 60 days after IMA received the application; 15 (21%) were decided more than 90 days after IMA received the application; and 14 (20%) were decided more than 120 days after IMA received the application. Sheridan Test., ¶¶ 4-7; Sheridan Cross-Exam.Test.
15. As of March 28, 1996, of the 107 Medicaid applications submitted by Providence Hospital on behalf of its patients in November and December 1995, 58 had been decided, and 49 had not yet been decided. Thus, 45.8% of the applications had been pending for between three and four months. Sparks Test. ¶ 7.
4. Class Members’ Experiences
Many individual class members testified regarding IMA’s failure to process Medicaid applications within 45 days.
16. Ms. Josefa Alvarez submitted a Medicaid application on or about April 1993 for her children, but did not receive a notice of decision until October 1993, nearly six months later. By the time she received this notice, her Medicaid eligibility had already expired. Testimony of Josefa Alvarez (“J. Alvarez Test.”) at 1.
17. Ms. Sylvia Cruz-Diaz Alvarez applied for Medicaid on August 31, 1992, for herself and her children, Nelson and Jessica, after Ms. Alvarez was informed that Nelson needed a hernia operation. Ms. Alvarez did not receive any decision until on or about November 30,1992, approximately 90 days after she applied. Moreover, the November 30, 1992 determination notice only covered herself and Nelson; Ms. Alvarez received no determination notice concerning Jessica until May 25, 1994, approximately 21 months after she applied. Jessica’s notice, furthermore, stated that Jessica was eligible for Medicaid from June 1992 to August 1993, a period that had already expired by the time the notice was received. Ms. Alvarez applied a second time for Medicaid on or about June 13, 1994; she received a determination notice about two months later, on August 8, 1994, after her lawyer intervened. Testimony of Silvia Alvarez (“S. Alvarez Test.”) at 1-5.
18. In April 1993, Ms. Blanca Arce applied for Medicaid at 645 H Street, N.E. for herself and her four children. Ms. Arce never received any notice regarding their
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eligibility periods, but she did receive Medicaid cards for herself and her children in March or April 1994, after her legal representative intervened. During September and October 1993, while her application was still pending, Ms. Arce suffered headaches so severe that on or about November 13,1993, she had to visit the emergency room at the Washington Hospital Center. Testimony of Blanca Arce (“Arce Test.”) at 1-2. Ms. Arce was diagnosed with a sinus infection, and was sent a bill for her treatment for $1,241.92, but she has failed to provide DHS with a copy of that bill.
Id.;
Arce Cross-Exam. Test.
19. Ms. Mirna Argueta submitted a Medicaid application on or about December 13, 1994. She did not receive a determination until late February 1995, over two months later. At that time, she received a notice of approval for her two children, but did not receive Medicaid cards for them until March 1995. Testimony of Mirna Argueta (“Argue-ta Test.”) at 3-4.
20. Ms. Hilda Avelar applied for Medicaid on January 6, 1994, at 645 H Street, N.E., and, in February 1994, informed DHS of her son’s birth on January 29,1994. On or about August 3, 1994, about eight months after she had applied, Ms. Avelar received a notice of decision indicating that her children were Medicaid-eligible from January 1994 through December 1994; however, she did not receive Medicaid cards until August 31, 1994, after her legal representative intervened. Testimony of Hilda Avelar (“Avelar Test.”) at 1-3.
21. In August 1992, Ms. Abigail Flores applied for Medicaid on behalf of four of her children. She did not receive IMA’s notice of decision until March 31, 1993, after the intervention of her legal representative. Testimony of Abigail Flores (“Flores Test.”) at 1-2; Green Test., ¶¶ 43-47.
22. Ms. Orbelina Guardado applied for Medicaid when she was pregnant on or about early April 1993. Four months later, in August 1993, her legal representative learned, from Ms. Jesberg, that Ms. Guardado’s son, who had been born in June 1993, was eligible for Medicaid from June 1993 to August 1994. Testimony of Orbelina Guardado (“Guardado Test.”) at 1-3.
23. Ms. Patricia Harden applied for Medicaid on May 9,1994, and received a notice of eligibility dated July 13, 1994. Testimony of Patricia Harden (“Harden Test.”) at 1. Thus, DHS took approximately 60 days to process Ms. Harden’s application.
24. Ms. Irma Hernandez applied for Medicaid on behalf of her children in April 1993, and received a notice of approval on or about November 23, 1993, approximately eight months after her application was submitted. While awaiting her application decision, Ms. Hernandez frequently had trouble obtaining medicine for her children. Testimony of Irma Hernandez (“Hernandez Test.”) at 1-2.
25. Ms. Maria Mendoza applied for Medicaid on behalf of herself and her three children in April 1994, when her son was hospitalized at D.C. General Hospital. Ms. Mendoza’s sister inquired at IMA about the status of the application in September 1994, and learned that the application had been denied for failure to submit necessary documentation. Ms. Mendoza had not received the three notices requesting further information which IMA allegedly sent. Ms. Mendoza re-applied for Medicaid in January 1995; her family was found eligible and was issued Medicaid cards in February 1995. However, she is now being sued by D.C. General Hospital to collect the $20,000 hospital bill incurred for her son’s April 1994 hospitalization. Ms. Mendoza’s caseworker informed Ms. Mendoza’s sister that Medicaid would not pay for the April 1994 hospitalization. Testimony of Maria Mendoza (“Mendoza Test.”) at 1.
26. On April 27, 1993, Ms. Maria Moreno applied for Medicaid for her family. On May 6, 1993, she received a request for employment verification, and submitted the necessary information on May 20,1993. Ms. Moreno then received a second letter dated May 26, 1993, in which IMA again requested the same information. Ms. Moreno received a denial notice dated June 10,1993, which stated that Ms. Moreno had failed to provide information to IMA. The same month, however, after her legal representative intervened, Ms. Moreno received an approval no
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tice for her two sons, stating that they were eligible retroactively from January 1, 1993 until October 31, 1993. Testimony of Maria Moreno (“Moreno Test.”) at 1-2.
27. On or about March 14,1995, Ms. Rosa Rivas submitted a Medicaid application at 645 H Street, N.E. for her son, Joaquin. Ms. Rivas received a notice from IMA on April 3, 1995, which, she thought, stated that all necessary information had been received. In late April 1995, however, she received a denial notice for failure to submit necessary information. Rivas Test, at 4r-5.
28. On or about June 17, 1992, Ms. Adela Salazar applied for Medicaid on behalf of her son, Oscar, Jr., who suffers from spastic quadriplegia. She received no response until January 1993, approximately seven months later, when IMA informed the Salazars that their income was too high for Medicaid, but that they could “spend down” that income in order to qualify.
26
During the summer of 1993, IMA informed the Salazars that Oscar was eligible. By that time, they had incurred medical bills of over $5,000 for Oscar, Jr., and had spent $1,604 in out-of-pocket costs for his care. Testimony of Oscar Salazar, Sr. (“Salazar Test.”) at 1-2; Salazar Cross-Exam.Test.
29. Ms. Miriam Turcios applied for Medicaid in person at 645 H Street, N.E. on or about September 27, 1995, while she was pregnant with her daughter Tania. While waiting for IMA’s decision, she gave birth to her daughter on January 14, 1996, and received bills from Mary Center for prenatal care and medical care for Tania, and a $10,-000 bill from Providence Hospital for charges associated with the birth. During the week of April 8, 1996, she received a notice of approval for Medicaid dated April 2, 1996. The notice stated that she was eligible from September 1,1995 to August 31,1996, as well as for three months before September 1, 1995. Testimony of Miriam Turcios (“Turcios Test.”) at 1-2; Pis.’ Ex. 314.
30. Mi\ Karl Von Faust submitted a Medicaid application to IMA which was received on December 7, 1993. After submitting additional information in May 1994, he received a determination of eligibility on June 23,1994. During the time in which his application was pending, Mr. Von Faust spent $832 of his own funds to obtain prescriptions and pain medications, volunteered for 10 different drug trials in two years in order to receive free medical treatment, and could not afford to visit the doctor. He also spent $434.10 in Medicare premiums and $20 on care for his foot after surgery. Testimony of Karl Von Faust (“Von Faust Test.”) at 2-4.
31. Ms. April Land, an attorney at the Neighborhood Legal Services Program from 1991 through 1995, has provided legal assistance to at least 20 additional families who did not receive decisions on their Medicaid applications within 45 days. Testimony of April Land (“Land Test.”), ¶ 3. According to Ms. Land, IMA requested the same information five times from Mr. Roosevelt Abrego and his wife, who applied for Medicaid on behalf of their daughter.
Id.
¶¶5-7. Although the Abregos provided the requested information each time, they received a notice that their application had been denied for failure to provide information.
Id.
27
In general, Ms. Land testified, by the time many people are notified of their eligibility for Medicaid, that eligibility has expired or is about to expire. Land Test.
5. Defendants’ Knowledge of Untimely Processing
32. Since January 1990, Defendants have known about IMA’s failure to process large numbers of NPA Medicaid applications within 45 days. In January 1990, Mr. Ronald Lewis, then manager of 645 H Street, N.E.,
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wrote Mr. Bayne, then IMA’s Acting Chief of Program Operations:
This is a follow-up memorandum to the one I wrote you on December 13, 1989. The crisis in the Hispanic Unit [Multinational Section] with the [M]edicaid backlog continues and the overtime project is not solving it.
Pis.’ Ex. 285. In September 1990, Mr. Lewis again wrote Mr. Bayne to inform him that “the backlog in NPA Medicaid continue^] to grow.” Pis.’ Ex. 283. Again, in April 1991, Mr. Lewis reported to Mr. Bayne that there were 75 NPA-Multinational applications that had been pending for over 45 days. Pis.’ Ex. 280.
33. On or about February 1993, DHS studied the causes of the application backlog in the Multinational Section, and found, in a written report entitled “Program Analysis: Multinational Medicaid,” that “50% of all applications [were] backlogged over 180 days.” Pis.’ Ex. 292. The report concluded that the Multinational Section was “ineffective in providing timely medical assistance to community residents.”
Id.
34. At trial, Defendants conceded that prompt processing of applications has been an ongoing struggle for the Multinational Section. Bayne Test., ¶ 13.
28
B. Termination of Benefits
Plaintiffs challenge two different systemic problems: (1) IMA fails to act promptly on Medicaid recipients’ recertification requests, thereby terminating or causing temporary lapses in Medicaid benefits; and (2) 'IMA’s Eligibility Verification System (“EVS”) malfunctions, thereby preventing eligible Medicaid recipients from obtaining needed medical services and medications.
1. Recertification Processing
35. The period of Medicaid eligibility is generally one year. Green Test., ¶23. At the end of the applicable period, each recipient must be recertified in order to maintain her eligibility. All recertifications are handled exclusively by the central service site at 645 H Street, N.E. At that site, the Multinational Section handles recertifications for NPA-Multinational Medicaid recipients, and the Recertification and Spenddown Section handles recertifications for all other Medicaid recipients, including NPA-Nonmultinational recipients. Bayne Cross-Exam. Test.; Green Test., ¶23. ACEDS automatically generates recertification forms to be sent to current Medicaid recipients generally 90 days, but occasionally 60 days, before the end of the previously established certification period. Conover Test., ¶ 11; Green Test., ¶ 23.
29
36. When the recertification form is returned by the recipient, an IMA SSR enters the receipt date into ACEDS. Conover Test., ¶ 12. If ACEDS does not reflect receipt of a recertification form by 30 days
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before the end of the certification period, ACEDS automatically generates an advance termination notice (“30-day termination notice”) for the recipient, which states that termination will be effective on the last day of the certification period.
Id.
If, however, the recertification form is returned by the recipient and entered into ACEDS by 30 days before the end of the certification period, no 30-day termination notice is issued.
Id.
37. IMA SSRs review the returned recertification forms for completeness and verify the information provided. Green Test., ¶ 26. If additional information is required, ACEDS generates an appropriate letter on the basis of the eligibility worker’s entry, and the recipient is usually given 15 days to submit the supplemental documentation.
Id.
This 15-day period can be extended by the SSR, with supervisory authorization, if the recipient has submitted at least some of the documentation and is actively trying to complete the recertification form.
Id.
Finally, once all necessary documentation has been received and reviewed, ACEDS generates a notice of denial or approval on the basis of the data entered by the worker. All denials and approvals must be authorized by a supervisor.
Id.
¶27. No recipients should be terminated without first receiving notice 30 days in advance.
Id.
38. IMA’s stated policy is to process re-certifications before the date on which recipients’ eligibility expires. However, it often fails to do so, as Plaintiffs vividly demonstrated.
a. MEO Reports
39. IMA’s Medical Eligibility Operations (“MEO”) reports for the Multinational Section demonstrate that IMA frequently fails to process NPA-Multinational recipients’ recertification forms before their Medicaid eligibility expires.
30
The MEO reports for the Multinational Section contain, on line B.7, data entitled “number of recerts due for the month.” Pis.’ Ex. 111. According to Ms. Grace Howard, Chief of the Multinational Section for several years before her retirement in March 1995, line B.7 indicates the number of recertifications in the unit for whom eligibility will expire at the end of the reporting period month. Howard Test.; Pis.’ Ex. Ill at 1523 (MEO report for November 1993).
31
.
40. Thus, according to Ms. Howard, in November 1993, there were 99 people whose Medicaid eligibility would expire at the end of the month, and whose “recerts” were therefore “due for the month.” Howard Test. Line B.9 indicates the number of re-certifications that were processed during the reporting month.
Id.
In November 1993, the recertification forms of only 30 people, out of the 99 people whose eligibility was scheduled to expire, were processed.
Id.
Therefore, 69 Medicaid recipients that month may have suffered at least a temporary lapse in benefits due to the fact that their eligibility expired before their recertifications were processed,
ie.,
before IMA determined whether they were still eligible.
See
Bayne Cross-Exam. Test.
41. The Multinational Section failed to process as many recertifications as were due in many months during the period from January 1992 to February 1996.
See
Pis.’ Ex. 111. During the 12-month period from March 1995 through February 1996, the most recent months for which MEO reports were available, the Multinational Section processed as mány recertifications as were due in only
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four out of twelve months.
See
Pis.’ Ex. Ill (MEO reports for May 1995, September 1995, November 1995, and February 1996). In each of the remaining eight months, the Multinational Section did not process all re-certifications for which eligibility was due to expire that month. In March, April, June, July, August, October, and December of 1995, and January 1996, 138, 129, 147, 128, 228, 200, 148, and 129 recertifications were due, respectively, but only 76, 89, 71, 66,119, 143,144, and 98 were processed, respectively.
Id.
Considering the entire 12-month period, the average number of recertifications pending for recipients whose eligibility would expire at the end of the month was 146 per month, but IMA failed to process an average of 37 recertifications per month,, or 25%. Thus, 37 people per month suffered temporary lapses in Medicaid.
42. Medicaid recipients whose recertifications are not processed before their eligibility is scheduled to expire experience lapses in Medicaid coverage because when recertification forms are received and logged into ACEDS, but are not processed by an IMA SSR, ACEDS does not automatically adjust the eligibility period. Rule 30(b)(6) Deposition of Arlene Conover (“Rule 30(b)(6) Con-over Dep.”), 1-24-95, at 43. In general, Medicaid recipients in this situation receive no notice of the fact that their recertifications have not been processed and that their benefits will lapse. Howard Test. There are two exceptions, however. First, IMA may, on an individual,
ad hoc
basis, contact such Medicaid recipients to inform them of this lapse in benefits. Howard Test. Second, Medicaid recipients who do not submit recertification forms by 30 days before the end of the certification period are automatically sent the ACEDS 30-day termination notice discussed in Finding No. 36.
If a recertification form is processed after a recipient’s eligibility has expired, IMA provides benefits retroactively for the period during which benefits lapsed. Deposition of Grace Howard (“Howard Dép.”), 11-8-94, at 53-56.
43. It is IMA’s policy to extend Medicaid benefits automatically for those people who, after submitting recertification forms, happen to call IMA to inquire about their recertifications. Howard Cross-Exam. Test.; Green Test.;
cf.
Jackson Dep., 11-3-94, at 328-29 (stating that IMA has an unwritten practice of extending benefits for one month when a recertification is not processed by the end of the eligibility period, in order to prevent a lapse in coverage). However, it is not IMA’s policy to extend Medicaid benefits automatically for all recipients who submitted recertification forms,
ie.,
those who did not know to, could not, or did not happen to call IMA to inquire about their recertifications. Howard Test.; Green Test. Nor does IMA take any steps to inform recipients about the importance of such telephone inquiries.
32
b. Plaintiffs’ Statistical Sample
33
44. Plaintiffs retained CFES to measure the frequency of the following four problems with IMA’s recertification processing: (1) IMA failed to give the recipient any advance notice whatsoever of a lapse or termination, including the 30-day termination notice, (2) IMA terminated eligibility for failure to return a recertification form, even though it had failed to send the recipient a recertification form, (3) IMA issued a termination notice for failure to return a recertification form, but the recipient subsequently submit
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ted a recertification form before the end of the eligibility period, or (4) the recipient’s eligibility lapsed because IMA failed to process the recertification form before the end of the eligibility period. Siskin Test., ¶ 27.
34
CFES statistically analyzed 122 NPA-Non-multinational recertifications, including NPA-disability recertifications, and 199 NPA-Multinational recertifications.
45. Using a 95% confidence interval, CFES found that one of the above scenarios occurred, resulting in a termination or temporary lapse of Medicaid benefits, an estimated 34.4% of the time in the non-disability NPA-Nonmultinational cases, an estimated 47.2% of the time in the NPA-Multinational cases, and an estimated 26.4% in the NPA-disability cases. Siskin Test., ¶ 2S.
35
46. Again extrapolating from the number of cases IMA had actually reviewed,
see supra
§ II.A.2.b, Dr. Klemm recalculated the percentages of improperly processed recertifications to be 19.5% for the non-disability NPA-Nonmultinational cases, 33.4% for the NPA-Multinational cases, and 21.1% for the NPA-disability eases.
See
Klemm Test., Table 6A.
36
47. The Court accepts Dr. Klemm’s modifications to CFES’ findings. Thus, the Court finds that IMA improperly allowed Medicaid benefits to lapse or to be terminated in an estimated 19.5% of the non-disability NPANonmultinational cases, an estimated 33.4% of the NPA-Multinational cases, and an estimated 21.1% of the NPA-disability eases.
c. Class Members’ Experiences
48. Numerous class members who were covered by Medicaid experienced terminations or lapses in benefits either because they were never sent recertification forms, or because they received them and returned them but IMA failed to approve their recertifications before expiration of their Medicaid eligibility.
49. In or about October 1993, Ms. Josefa Alvarez received a notice of Medicaid eligibility for a period which had already expired. Ms. Alvarez completed a recertification form in or about January 1994. IMA did not receive the recertification form until February 17, 1994, however. Green Test., ¶31. On or about January 31, 1994, Ms. Alvarez received a letter which stated that her children’s benefits would expire on February 28, 1994, because she had not returned the re-certification form.
See
Pis.’ Ex. 113.
37
In March 1994, her legal representative spoke
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with Ms. Jesberg and wrote to Mr. Bayne, and learned that Ms. Alvarez’ children were eligible , for Medicaid until August 31, 1994. Ms. Alvarez received a notice of approval for Medicaid at the end of March 1994. J. Alvarez Test, at 1 — 4.
50. In early January 1996, Ms. Alvarez received a recertification form and a letter stating that her children’s benefits were due to expire on February 29,1996. Ms. Alvarez submitted the completed recertification form in person at 645 H Street, N.E.; however, on March 26,1996, she was told by a pharmacist that her children’s Medicaid cards were not working, so she had to pay for their medications herself. Supplemental Testimony of Josefa Alvarez (“J. Alvarez Supp. Test.”) at 1-2. According to Ms. Green, ACEDS would have revealed her Medicaid coverage, even though EVS incorrectly reported that her family was not enrolled in Medicaid. Green Cross-Exam. Test.
51. On December 27, 1995, Katy Lisette Alvarez became ill and was admitted to Children’s Hospital, which informed her mother, Ms. Silvia Alvarez, that Katy’s Medicaid had expired. Ms. Alvarez contacted IMA and learned that Katy’s eligibility had expired because no recertification form had been submitted. However, Ms. Alvarez had never received a recertification form from IMA. Ms. Alvarez submitted all necessary recertification information in January 1996, and received a notice dated February 29, 1996, stating that her children were Medicaid-eligible until May 31, 1996. When Ms. Alvarez took Katy to the Adams-Morgan Clinic for a checkup on March 13, 1996, she was informed that Katy’s Medicaid card was working. Supplemental Testimony of Silvia Alvarez (“S. Alvarez Supp. Test.”) at 1-2.
52. On or about July 22, 1993, Ms. Reina Aparicio received a notice for her son Brian stating that Brian was eligible for Medicaid from April 1993 to September 1993. On or about August 19,1993, Ms. Aparicio returned a recertification form to DHS via certified mail. On or about October 13, 1993, Ms. Aparicio received a notice from IMA indicating that Brian was eligible from October 1993 to September 1994. Therefore, Brian experienced a lapse in Medicaid benefits for 13 days in October 1993. Testimony of Reina Aparicio (“Aparicio Test.”) at 1-2. Eligibility begins on the first day of the first month of the eligibility period, and ends on the last day of the last month. Green Test., ¶ 34. Thus, Brian did receive retroactive coverage for early October 1993.
Id.
53. In March 1994, Ms. Blanca Arce received a recertification form, which she returned in person to the DHS office at 645 H Street, N.E. Ms. Arce never received a response to this recertification form. In July 1994, she received another recertification form, which she also returned in person to 645 H Street, N.E. Arce Test, at 2.
54. On or about November 30, 1994, Ms. Mirna Argueta, who had been receiving Medicaid for her children, was informed by the Adams Morgan Clinic that her children’s Medicaid benefits had expired. Ms. Argueta had not received a recertification form in the mail advising her of her obligation to recertify the benefits or any advance notice that the benefits would be terminated. Argueta Test, at 3.
55. In or about April 1994, Ms. Abigail Flores received a recertification form for an eligibility period expiring on May 31, 1994. She completed and hand-delivered the recertification form to DHS, although the date of delivery is not clear. She received a notice of eligibility on or about July 25, 1994. Her children experienced a lapse in benefits from June 1, 1994 to July 25, 1994, during which time Ms. Flores was told by the Adams Morgan Clinic that her daughter Irma was not Medicaid-eligible. Flores Test, at 2-4.
56. Subsequently, Ms. Flores’ children’s Medicaid benefits were due to expire on December 31,1995. Ms. Flores completed their recertification forms and delivered them to 645 H Street, N.E., in early September 1995. On March 22, 1996, Ms. Flores visited the office at 645 H Street, N.E., in person, and learned that the recertifications still had not been processed. As of March 27, 1996, she had still not received any response to the recertifications; however, when she recently took her son Alfredo to Children’s Hospital for emergency treatment, she was informed by hospital staff that her son was Medicaid-
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eligible. Supplemental Testimony of Abigail Flores (“Flores Supp.Test.”) at 1-2.
57. Ms. Orbelina Guardado submitted a recertification form on or about January 5, 1995 for an eligibility period ending February 28, 1995. Ms. Guardado then submitted information requested by IMA in person on or about February 16, 1995. She did not receive a notice of approval concerning the recertification until April 14, 1995, however. Thus, she experienced a lapse in benefits for her family from March 1, 1995 until on or about April 14,1995. During that period, in March 1995, she had to pay a deposit to have her son Mauricio treated at Children’s Hospital when he was ill, and had to pay for his prescription. Ms. Guardado was unable to purchase a prescription for her son Edwin in March because she lacked the money. Guardado Test, at 4 — 7.
58. In January or. February 1995, Ms. Patricia Harden received a Medicaid recertification form. She completed the form and had it delivered to IMA by courier. On November 27, 1995, Ms. Harden suffered a heart attack and was taken to Georgetown University Medical Center, where she underwent double bypass surgery and remained until December 4, 1995. On December 4, 1995, Ms. Harden’s son attempted to fill her prescriptions with her Medicaid card; however, the pharmacist said that the card was invalid. Thus, Ms. Harden had to pay approximately $150 for the prescriptions.
59. When Ms. Harden called IMA, she was informed that her benefits had been terminated because IMA had never received her recertification form. Ms. Harden had never received any notice of termination of benefits, however. Ms. Harden called an official in Mayor Barry’s office, who told her that he would look into the matter. Within a few days, Ms. Green and her assistant visited Ms. Harden’s apartment with a blank recertification form, had her sign it, and promised that they would begin processing it immediately. Ms. Harden then received a notice dated January 2,1996, stating that her Medicaid eligibility would not expire until April 30, 1996. During the period when IMA did not consider her to be Medicaid-eligible, Ms. Harden spent several hundred dollars on prescription medicine. Harden Test, at 2-3.
60. Ms. Irma Hernandez was not sent a recertification form for Medicaid benefits due to expire at the end of August 1994. Pis.’ Ex. 160, bates stamp no. 201978. She went to the DHS office and requested a recertification form, and submitted it on or about July 27, 1994. Hernandez Test, at 4-5. An approval notice was generated by ACEDS on October 24,1994. Pis.’ Ex. 160, bates stamp no. 201978. Thus, the Hernandez family experienced a lapse in Medicaid benefits from September 1,1994, to October 24,1994.
61. In mid-January 1996, Ms. Adriana Lopez took her daughter Maria, who has a heart condition, to Children’s Hospital for a checkup. Maria’s eligibility had been scheduled to expire in December 1995, but Ms. Lopez had sent a recertification form to IMA in October 1995. At the hospital, Ms. Lopez was informed that Maria’s Medicaid card was not working, and that verification through an IMA caseworker was not possible that day. Therefore, Maria did not receive her checkup until January 20, 1996. Testimony of Adriana Lopez (“Lopez Test.”) at 1, 3; Lopez Cross-Exam. Test.
62. In February 1995, Ms. Mendoza and her three children received Medicaid cards. In January 1996, Ms. Mendoza’s sister called IMA to make sure that the children’s Medicaid cards were valid before taking them to the dentist. An IMA SSR informed her that the children’s eligibility had expired on December 31, 1995, and that she should wait to hear further from IMA. In February 1996, Ms. Mendoza’s sister returned to IMA, and was told that the Mendozas’ Medicaid had expired on January 31, 1996, and that they should wait to be contacted by IMA. On March 18, 1996, Ms. Mendoza’s sister called IMA once again, and was informed that IMA was still processing the Mendozas’ recertification. Mendoza Test, at 1-2.
63. On or about mid-October 1992, Ms. Rosa Rivas submitted a recertification form for her son, Joaquin, whose benefits were scheduled to expire on October 31, 1992. In November 1992, Ms. Rivas took her son to the Adams Morgan Clinic several times because he was ill. She was informed that
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Joaquin was not Medicaid-eligible. On or about February 1993, Ms. Rivas received a letter from IMA requesting information which she had already provided. During April 1993, Ms. Rivas provided the information once again. On or about February or March 1993, while Ms. Rivas was waiting for a decision on Joaquin’s recertification, Joaquin’s teacher told her that he needed speech therapy. Ms. Rivas could not afford to pay for speech therapy; thus, Joaquin did not obtain speech therapy during the period when his recertification was pending.
64. Two or three months later, Ms. Rivas took Joaquin to the Children’s Hospital emergency room because he had a fever and was vomiting. She was told that he was not Medicaid-eligible. The recertification form was not processed until September 1993, after the intervention of Ms. Rivas’ legal representative. Thus, Joaquin had no Medicaid coverage from November 1992 until September 1993. Rivas Test, at 1-3.
65. In early August 1994, Ms. Rivas received, completed, and returned another re-certification form. She never received any response concerning this form. On March 14,1995, she visited the DHS office at 645 H Street, N.E., and learned that the ease had been closed. Ms. Rivas had received no notice of this action.
Id.
at 2-4.
66. Ms. Yadira Silva requested a recertification form for her son Michael, because she knew that his Medicaid eligibility was due to expire in November or December 1995 and she had not received a recertification form by September 1995. In March 1996, Ms. Silva still had not received a recertification form for Michael. At trial, in April 1996, Ms. Silva still did not know if Michael was Medicaid-eligible because he had not visited a doctor since early 1995. Silva Supp. Test, at 1.
67. In July 1992, Mr. Karl Von Faust, who has AIDS, submitted a recertification form to DHS. On September 15, 1992, he received a letter from IMA, dated September 2, but postmarked September 14, which directed him to submit certain information by September 14, 1992. When Mr. Von Faust contacted his IMA SSR, he was .told that his case was already closed and that he would need to reapply. Ms. Von Faust did reapply on December 7, 1993, but did not receive a decision notice on his application until June 23, 1994. During the period when Mr. Von Faust was deemed ineligible for Medicaid, he could not obtain many needed prescriptions. He volunteered for experimental drug trials so that he could obtain medical treatment. Von Faust Test, at 1-3.
68. Ms. Mary Williams, an 82-year old woman who is disabled and suffers ft’om diabetes, ulcers and a heart condition, received a recertification form in the fall of 1993, which she promptly returned to IMA with the requested documentation. However, in the summer of 1994, Ms. Williams received a notice of termination for failure to return a recertification form. After Ms. Land wrote a letter to Mr. Bayne on Ms. Williams’ behalf, a new recertification form was sent to Ms. Williams, which Ms. Williams again promptly completed and mailed back to IMA. Ms. Williams was finally informed by Mr. Bayne that her benefits would not be terminated, but not until after Ms. Land wrote a second letter to Mr. Bayne on August 29, 1994. Land Test., ¶¶ 26-28.
2. EVS Malfunctioning
69. The Eligibility Verification System (“EVS”) is the primary method by which health care providers can determine whether a person with a Medicaid card is currently eligible for Medicaid. Testimony of Theresa Cullinane (“Cullinane Test.”) at 2; Testimony of Pearl Edwards (“Edwards Test.”) at 1. EVS is a telephonic verification system that is ostensibly accessible 24 hours per day, seven days per week. Once a health care provider calls EVS, he or she hears a recorded message that indicates whether the patient is eligible for Medicaid. Rule 30(b)(6) Deposition of A. Sue Brown (“Rule 30(b)(6) Brown Dep.”), 5-2-95, at 11.
70. EVS is administered by the District of Columbia Commission on Health Care Finance (“CHCF”). T. Thompson Test., ¶4. EVS obtains its information from ACEDS, through the. Medicaid Management Information System (“MMIS”). Rule 30(b)(6) Brown
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Dep. at 18; Offner Cross-Exam. Test.
38
Specifically, once an eligibility determination has been completed by a worker using ACEDS and authorized by a supervisor, the eligibility data is transmitted from ACEDS to MMIS. Conover Test., ¶ 10. Transmissions to MMIS are scheduled for every work day.
Id.
71. EVS frequently provides erroneous information about patients’ Medicaid eligibility. This problem was described in detail by several health care providers who serve Medicaid recipients.
72. Dr. Janet Adams is a pediatrician in southeast Washington. About 50% of her practice is devoted to Medicaid recipients. Testimony of Carolyn Roberts (“Roberts Test.”) at 3. Dr. Adams frequently encounters eligibility verification problems when using EVS. Testimony of Dr. Janet Adams (“Adams Test.”) at 6. On some occasions, she has provided medical care to patients whom EVS had indicated were Medicaid-eligible, only to learn later that they were not eligible; in such instances, she does not get paid for her services.
Id.
Dr. Adams described recent episodes where she saw patients in the morning who, at that time, were identified by EVS as Medicaid-eligible.
Id.
at 7. Later that same day, however, EVS was either not functioning at all or indicated that those very patients were ineligible for Medicaid.
Id.
Thus, she has had patients who, a few hours after visiting her, were unable to fill their prescriptions.
Id.
In 1993 and 1994, in approximately 10% of the instances in which EVS informed Dr. Adams’ office that a patient was ineligible, IMA eligibility workers later stated to her or her office staff that EVS was incorrect, and that the patient was eligible. Roberts Test, at 3.
39
73. Providence Hospital has experienced the same problems with EVS. For many patients seeking treatment there, EVS has also incorrectly indicated ineligibility for Medicaid. Cullinane Test., ¶¶ 11-12. Mr. Timothy Sheridan, Director of Patient Financial Services at Providence Hospital from 1989 to 1995, and his staff used EVS to verify Medicaid eligibility for hundreds of patients per week. Whenever EVS reported that a patient was ineligible, Providence Hospital would contact DHS to determine whether EVS was correct. During that time period, approximately 20 times per week, when EVS reported that a patient was ineligible, the subsequent check with DHS revealed that the patient was, in fact, eligible. Sheridan Test., ¶¶ 10-11. Because of this track record, staff at Providence Hospital now contact the Managed Care Helpline for verification whenever EVS indicates ineligibility for Medicaid. Cullinane Test., ¶ 12.
40
When EVS falsely indicates that a patient is eligible, however, the financial burden is borne by the hospital, which will then not be paid by Medicaid for health care services rendered.
Id.
¶ 13. In 1994 and 1995, this problem became so severe for Providence Hospital— 23% of whose patients are on Medicaid — that it began recording EVS calls to establish a record.
Id.
¶¶ 3, 14. In fact, Ms. Cullinane, Director of Providence Hospital’s Admitting Office, has instructed her staff to reconfirm with the Managed Care Helpline all EVS information for the hundreds of Medicaid registrations the hospital has received since March 19,1996.
Id.
¶ 15.
74. Shortly before the trial in this case, Mr. David Sparks, Vice President for Finance at Providence Hospital, reviewed 20 EVS determinations; six of the 20 reflected inaccurate information about the patient’s primary care provider or enrollment in Medicaid. Sparks Test.
75. Ms. Pearl Edwards, Medical Service Coordinator of the HIV Women’s Program of the Infectious Disease Unit at Georgetown University Medical Center (“HIV Women’s Program”), uses EVS five times per week in order to determine the Medicaid eligibility of the HIV Women’s Program patients, and
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verifies all EVS statements of ineligibility with DHS. Edwards Test., ¶ 3. Before the fall of 1995, she called IMA directly to determine patients’ eligibility, and was able to reach someone at DHS only about one-third of the time.
Id.
When she was able to reach someone, she learned that EVS’ information that patients were not Medicaid-eligible was incorrect more than half the time.
Id.
Since the fall of 1995, Ms. Edwards calls CHCF directly for eligibility information without using EVS at 202-727-0725.
Id.
Over the past three years, Ms. Edwards has seen dozens of eases in which patients with HIV or AIDS were unable to obtain their medication, because EVS indicated ineligibility for Medicaid and she was unable to verify the EVS information with CHCF or IMA.
Id.
¶ 4.
76. Ms. Sarah Shapiro, Administrator of Community Connections, an agency providing case management services for mentally ill clients, calls EVS about five times per week on behalf of Community Connections’ clients, SSI recipients who are automatically eligible for Medicaid. Shapiro Test, at 1-2. During the period from October 1995 to March 1996, CHCF staff informed Ms. Shapiro that EVS was incorrect, and the patient was actually eligible, about four to six times per month. When this occurred, Community Connections would either ask IMA to verify eligibility to the health care provider or, if it was a provider whom Community Connections knew, the provider would accept Community Connections’ assurance that the client was eligible. Id.
41
77. From March 1-March 19, 1996, EVS stopped all functioning. Edwards Test, at 2. During this period, many providers were forced to rely on one of the three alternative methods for verifying Medicaid eligibility.
78. The first alternative, First Health Services Corporation (“First Health”), a private CHCF contractor, began operating a Managed Care Helpline in 1994. Cullinane Test, at 2 and Cross-Exam. Test.; T. Thompson Test., ¶ 10. Like EVS, the Managed Care Helpline is a 24-hour-per-day, seven-day-per-week telephone system. The Helpline differs from EVS, however, in that it is staffed by First Health employees who provide information to both Medicaid recipients and health care providers serving those recipients. Rule 30(b)(6) Deposition of Linda Piraido (“Rule 30(b)(6) Piraido Dep.”), 1-26-95, at 64-65. The Managed Care Helpline handles about 350-425 calls per day.
Id.
at 80. It has several limitations, not the least significant of which is that Managed Care Helpline operators may only verify a maximum of three people per call.
42
Nonetheless, the Managed Care Helpline is still considered an extremely helpful supplement to EVS. Cullinane Cross-Exam. Test.
79. As a second alternative to EVS, providers may call CHCF staff or specific employees at IMA with whom they are personally acquainted. Rule 30(b)(6) Deposition of Grace Howard (“Rule 30(b)(6) Howard Dep.”), 4-25-96, at 85-86; Shapiro Test, at 2-3 and Cross-Exam. Test.; T. Thompson Test., ¶¶ 10 and 12. When providers or pharmacies call IMA’s NPA Branch and state that EVS is reporting a client as ineligible, the IMA employee verifies that client’s eligibility with ACEDS. If the employee learns that the client is in fact eligible, she so informs the provider or pharmacy and directs it to state, in its payment request form, that eligibility was confirmed by an IMA supervisor. Green Test.
80. A third method of verifying eligibility is the ACEDS computer system. Georgetown University Medical Center has access to ACEDS; thus, it verifies eligibility directly through that system without relying on EVS. Sheridan Test., ¶12. All other Dis
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trict of Columbia hospitals have access to ACEDS. Sheridan Test.
43
However, access to ACEDS may be impractical for some hospitals. In order to access ACEDS, one must be authorized as a “security sign-on,” and DHS only grants a limited number of security sign-ons to each hospital. For example, there are only 10 security sign-ons for all of Providence Hospital, and only two for its admitting office. The admitting office has 42 staff members who register patients; therefore, it does not use ACEDS very often. Cullinane Test.; Sheridan Test.
81. Defendants have no method for ensuring that Medicaid providers or pharmacies know about or use the three alternatives to EVS. The EVS Provider User Manual does not mention any of the EVS alternatives. T. Thompson Cross-Exam. Test.; Pis.’ Ex. 88. The D.C. Medicaid Managed Care Physician Handbook directs managed care providers to verify patients’ Medicaid eligibility by checking EVS or calling First Health; however, this handbook is not issued to all Medicaid providers. Pis.’ Ex. 73 at 10. CHCF did notify all Medicaid providers on or about January 27,1994 that it was experiencing eligibility verification problems with EVS, and that it was therefore “requesting providers to please call (202) 727-0725 [CHCF] for verification of current eligibility status.” Pis.’ Ex. 90; Rule 30(b)(6) Brown Dep. at 39. However, Defendants do not know whether Medicaid providers have any obligation to utilize a back-up system when EVS supplies incorrect information about eligibility. Rule 30(b)(6) Brown Dep. at 53-54.
82. Moreover, Defendants have no reports and have not conducted any studies regarding how frequently EVS provides incorrect information about Medicaid recipients’ eligibility.
Id.
at 59. Defendants usually “become aware of a problem [through] call[s] from a provider or a recipient.”
Id.
at 35.
83. At trial, Defendants conceded that the EVS system breakdown in March 1996 was a serious problem. Offner Cross-Exam. Test.
44
Even before that breakdown occurred, CHCF had hired computer consultants to investigate problems with the system; after the breakdown, the consultants worked on EVS for about three weeks. The consultants finally repaired EVS in April 1996, and left DHS a report on avoiding similar problems in the future.
Id.
45
Although CHCF is allegedly planning to procure a replacement system for EVS, no RFP has even been issued. Bayne Cross-Exam. Test. Moreover, Ms. Green still frequently receives calls from providers and pharmacies describing problems with EVS. Green Cross-exam. Test.'
84. Defendants have been aware that EVS inaccurately informs providers that Medicaid recipients are ineligible since at least February 1993, when A. Sue Brown assumed her position as Deputy Commissioner of the Commission on Health Care Finance. Rule 30(b)(6) Brown Dep. at 6, 30-31. On or about January 27, 1994, Defendants issued a notice to all Medicaid providers, which admitted that Defendants were “experiencing difficulty with the Medicaid Eligibility Verification System (EVS).” Pis.’ Ex. 90; Rule 30(b)(6) Brown Dep. at 39. The notice further stated that EVS was “unable to verify current eligibility status for some Medicaid recipients, even though the recipient’s eligibility [was] current.”
Id.
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85. Ms. Doris Jackson, who at the time of her deposition was Branch Chief for the entire NPA Medicaid program, received telephone inquiries about problems with EVS “all day long.” Rule 30(b)(6) Deposition of Doris Jackson, 10-5-94 (“Rule 30(b)(6) Jackson Dep.”), at 4, 369. From October 1993 to October 1994, she received an average of 20 calls per’ day from Medicaid recipients who were reported as ineligible by EVS when they were actually eligible.
Id.
at 371.
86. At her deposition in April 1995, Ms. Grace Howard, Chief of the Multinational Section, was asked if she recalled intervening for a Medicaid recipient when EVS incorrectly informed a pharmacy that the recipient was ineligible. Ms. Howard replied, “I do it so often.” Rule 30(b)(6) Howard Dep., 4-25-95, at 86.
87. While the erroneous information imparted by EVS may not always preclude access to necessary or emergency medical services,
46
it often prevents class members from obtaining needed prescriptions. In May 1994, at a time when her two daughters were eligible for Medicaid, Ms. Blanca Arce attempted to fill their prescriptions for a special fluoride toothpaste. CVS pharmacy, however, informed her that the children’s Medicaid cards were not working. Because Ms. Arce did not have money to pay for the prescriptions, she could not obtain them. Arce Test, at 2.
88. On March 15, 1996, a time when Victoria Dorsey was eligible for Medicaid, Ms. Dorsey’s mother tried to fill a prescription for her, but was told by the pharmacist that Ms. Dorsey’s Medicaid number was not working. Ms. Dorsey’s mother paid $356.86 out of her own funds for the medication; however, the pharmacy refunded this money after a conference call among an IMA supervisor, the pharmacy, and Ms. Dorsey’s mother. Dorsey Test, at 2.
89. From October 21 through November 16, 1994, a time in which Ms. Christina Duncan and her family had recently been found eligible for Medicaid, Ms. Duncan attempted to obtain necessary medications for herself (high blood pressure medicine and foot cream), her husband (medicine for a urological problem), and her daughter (allergy medicine). She was initially unable to do so, however, because EVS informed the pharmacies she visited that her family was ineligible for Medicaid. Finally, between November 16 and December 12, 1994, Ms. Duncan’s family did obtain the medicines, from a pharmacy that was willing to rely on verbal assurances of eligibility from a DHS supervisor. Duncan Test, at 1-3.
90. On or about January 26, 1994, at a time when he was eligible for Medicaid, Roberto Hernandez, Jr. visited the Adams Morgan Clinic with his mother, Irma Hernandez. Ms. Hernandez was informed that her son’s Medicaid card was not working. Only after her attorney arranged a conference call with Ms. Jesberg and a pharmacy, three weeks after that visit, did Roberto obtain his prescriptions. Hernandez Test., ¶¶ 10-14; Pis.’ Ex. 133.
91. On October 8,1993, at a time when he was eligible for Medicaid, Eric Moreno had an asthma attack. He was unable to obtain medicine, however, because his Medicaid card did not work. On December 29, 1993, Eric again suffered from asthma, and was again unable to obtain medicine because his Medicaid card was not working. Moreno Test, at 2-3; Green Test., ¶ 55.
92. Ms. Yadira Silva was initially unable to obtain her son Michael’s prescriptions for antibiotics and painkillers, because the pharmacy she visited relied on EVS’ incorrect report of ineligibility. After Ms. Silva’s lawyer and Ms. Jesberg intervened, and Ms. .Jesberg assured the pharmacy that Michael was eligible for Medicaid, the pharmacy did fill the prescriptions. Silva Test, at 1-2.
93. Mr. Karl Von Faust received a notice of approval for Medicaid on June 23, 1994, which confirmed his eligibility from December 1, 1993 to November 3, 1994. However, Mr. Von Faust was unable to obtain prescrip
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tions or medical treatment until July 13, 1994, when, according to a pharmacy, his Medicaid number was finally activated. Von Faust Test, at 2-3.
94. As noted above, Dr. Adams has had patients who, on the morning of their visit, were reported eligible for Medicaid by EVS, but later that same day, were reported ineligible by EVS. Adams Test, at 7. As a result, these patients were unable to have their prescriptions filled.
Id.
C. Claim 6: EPSDT Service Delivery
The District must provide early and periodic screening, diagnostic, and treatment (“EPSDT”) services to persons under age 21 who are eligible for Medicaid and who request such services. 42 U.S.C. § 1396a(a)(43) (1996). Federal law sets forth the minimum services which the District must provide: 1) screening services, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests (including appropriate lead blood level assessments), and health education; (2) vision services, including diagnosis and treatment for vision defects; (3) dental services, including “relief of pain and infections, restoration of teeth, and maintenance of dental health”;' (4) hearing services, including diagnosis and treatment for defects in hearing; and (5) “such other necessary health care ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan.” 42 U.S.C. § 1396d(r) (1996).
The purpose of the EPSDT program is to ensure that poor children receive comprehensive health care at an early age, so that they will develop fewer health problems as they get older. EPSDT, therefore, is designed to provide health education, preventive care, and effective follow-up care for conditions identified during check-ups. Preventive health care identifies health problems that may respond to early treatment but, if left undiagnosed and untreated, may instead lead to serious disorders or conditions. For example, a heart murmur detected during an EPSDT screen, if untreated, could lead to heart failure. Poor hearing, if untreated, could result in a lack of language development and poor school performance. Severe anemia, if untreated, could result in behavioral problems and reduced mental capacity. In sum, “some problems that are quite serious in older children can be prevented if the children are treated ... at a very young age.” Hutchins Test, at 5-8
47
; Paulson Test, at 5-7. Immunizations, parent education, assistance with scheduling appointments and transportation assistance, and coordination of EPSDT and other programs serving Medicaid-eligible children are also critical components of EPSDT. Hutchins Test, at 8-12; Paulson Test, at 6-7; Pis.’ Ex. 75 (Sample Provider Agreement), at 11, ¶¶ III.E and III.F.
The Health Care Finance Administration (“HCFA”), a division of the U.S. Department of Health and Human Services, establishes guidelines in its State Medicaid Manual, which set forth in detail the basic services which should be provided by the states, and the District of Columbia, under the EPSDT program. Pis.’ Exs. 167, 178, 232, 243, and 287; Rule 30(b)(6) Davidson Dep., 9-12-94, at 134.
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95. In the District of Columbia, there is only one person — CHCF’s EPSDT coordinator — who is directly responsible for all implementation and administration of the EPSDT program. Davidson Cross-Exam. Test.; Rule 30(b)(6) Davidson Dep., 9-12-94, at 51-52. Plaintiffs have produced significant evidence to show that Defendants have failed to deliver EPSDT services to eligible poor children.
1. Screening Services
a. The District’s Participant Ratios
96. HCFA’s State Medicaid Manual sets forth,
inter alia,
state participation goals for EPSDT screening services, and directs states to report their progress in achieving these goals to HCFA. Pis.’ Ex. 167. For purposes of HCFA reporting, one screening service must consist of all of the following components: a comprehensive health and developmental history, a comprehensive unclothed physical exam, appropriate immunizations according to age and health history, laboratory tests (including lead blood level assessment appropriate for age and risk factors), and health education.
Id.,
§ 5360.D.
97. In reporting its progress, the District must compute an annual participant ratio. This ratio is calculated by dividing the number of Medicaid-eligible children who received at least one initial or periodic screening service in a given year by the number of Medicaid-eligible children who should have received at least one initial or periodic screening service in that year.
Id.,
§ 5360.B. HCFA expected each state (including the District of Columbia) to achieve an 80% EPSDT participant ratio by 1995.
Id.
Furthermore, each state was expected to reduce the difference between its current performance and the 80% goal by one-fifth each year from fiscal year 1991 through fiscal year 1995.
Id.
For the District of Columbia, this meant attaining “interval goals,”
i.e.,
participant ratios of 35%, 46%, 58%, and 69% for fiscal years 1991, 1992, 1993, and 1994, respectively.
Id.,
Ex. A.
98. In 1989, the District’s estimated participant ratio was 24%, instead of the 35% goal set by HCFA.
Id.,
Ex. A. For fiscal year 1992, the District’s participant ratio was 26%, Pis.’ Ex. 222, line 5, a little more than half of HCFA’s stated interval goal of 46%, and well below the national average participant ratio of 36%. Pis.’ Ex. 242, bates stamp no. 10316. For fiscal year 1993, the District’s participant ratio was 30%, Pis.’ Ex. 6, line 5, a little more than half of HCFA’s stated interval goal of 58%, and well below the national average participant ratio of 39%. Pis.’ Ex. 230 at l.
48
For fiscal year 1994, the District’s participant ratio was 43%, Pis.’ Ex. 223, line 8, which was below HCFA’s stated interval goal of 69%. Finally, for fiscal year 1995, the District’s participant ratio was 64%, which was still well below HCFA’s stated goal of 80%. Pis.’ Ex. 306, line 8; Davidson Cross-Exam. Test.
49
Thus, for every fiscal year from 1992 to 1995, the District’s participant ratios lagged at least 15 percentage points behind HCFA’s expected participant ratios.
b. Separate Evidence of Immunizations
99. Free immunizations are provided to children through the federal Vaccines for Children program. In the District of Columbia, this program is administered by DHS’ Commission of Public Health. Levy Test. That program currently uses over 100 participating physicians at approximately 100 sites in the District.
Id.
Sixty-five of those physicians serve only Medicaid patients. Levy Cross-Exam. Test. Thus, it is clear that many EPSDT-eligible children receive their immunizations through the Vaccines for Children program. However, Defendants were unable to provide estimates of either the actual number or percentage of EPSDT-eli
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gible children who receive vaccines through this program.
100. Plaintiffs attempted to show that immunizations are not being provided to a sufficient number of EPSDT-eligible children. Specifically, Plaintiffs pointed out that the number of immunizations for which Medicaid payment claims were made in 1994 and 1995 was relatively low.
See
Levy Cross-Exam. Test.; Pis.’ Ex. 303. However, the figures relied upon by Plaintiffs,
see
Pis.’ Ex. 303, undercount the number of EPSDT-eligible children who have actually received immunizations, because a significant number of free immunizations are available independently from the Medicaid program. For example, the 65 physicians who participate in the Vaccines for Children program, and who serve only Medicaid patients, provide free vaccines to children and therefore do not seek reimbursement from Medicaid, even if their patients are Medicaid-eligible. Levy Cross-Exam. Test. Thus, both the percentage and the number of EPSDT-eligible children who have been immunized are still 'unclear. Moreover, Defendants do not know the number of EPSDT-eligible children who have received a full sét of age-appropriate immunizations. Pis.’ Ex. 101 at 51-52.
101. Immunization assessments performed by the Division of Immunization within the Commission of Public Health indicate that for the 1994-1995 school year, 96.5% of all school entrants at the pre-kindergarten and kindergarten levels,
50
98.1% of all children in Head Start programs, and 93.5% of all children in licensed child care centers received their immunizations in accordance with the minimum national standards established by the federal Center for Disease Control. Levy Test., ¶8. With respect to all children aged two, and again using CDC’s minimum national standards, the immunization rate in 1994 was 78%, slightly lower than the national average of 81%.
Id.
¶ 16.
102. Neither Plaintiffs nor Defendants provided estimated immunization rates for children under age two. DHS admitted, in an Executive Staff Briefing Book, prepared for the City Administrator on July 15, 1992, that there was “underimmunization of children age two and under.” Pis.’ Ex. 201, bates stamp no. 6922.
103. Defendants produced evidence of other immunization programs in the District. The Public Health Commission’s Division of Immunization provides free immunization services at four walk-in clinics: Reeves Municipal Center, which immunizes over 3,000 children annually, 20% of whom are under age two; Hadley Memorial Hospital; Purity Baptist Church; and Israel Baptist Church. The Division of Immunization also distributes brochures, available in both English and Spanish, on the importance of immunization and disease prevention.
See
Campbell Redirect and Defs.’ Exs. 27-29, 31, 33-44, 46-68, and 72-74.
51
c. Separate Evidence of Blood Lead Screening
Appropriate lead screening is a necessary component of a screening service. 42 U.S.C. § 1396d(r) (1996). All children ages six months to five years are considered at risk and must be screened for lead poisoning. Pis.’ Ex. 232 (HCFA State Medicaid Manual), § 5123.2D1. The frequency of lead screenings for each child depends upon whether the child is identified as high risk or low risk for exposure to lead poisoning.
Id.
Low risk children must be tested when they are one and two years old; high risk children who are found to have a certain quantity of lead must be tested until the age of five at
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every visit prescribed in the state EPSDT periodicity schedule.
Id.
52
104. Defendants do not know the number of EPSDT-eligible children who have received all age-appropriate lead blood screenings. Pis.’ Ex. 101 at 55.
105. In fiscal year 1995, there were 32,-579 EPSDT-eligible children in the District of Columbia between the ages of one and five. Pis.’ Ex. 306 (HCFA Form 416), line 1. For the same fiscal year, only 5,395 payment claims for lead blood screening tests were submitted to CHCF. Plaintiffs estimate that 40% of the 32,579 children between ages one and five in 1995 were one or two years old (the ages at which lead blood tests are mandatory). In other words, Plaintiffs offer a rough estimate of 13,031 children in the District of Columbia who were one or two years old in 1995. Therefore, even though roughly 13,031 children should have received lead blood tests, only 5,395 lead blood tests were performed for which Medicaid reimbursement claims were submitted.
See
Pis.’ Ex. 307; Davidson Cross-Exam. Test. While these figures are only rough estimates of the number of children who should have been screened for lead, they are fairly rehable estimates of the number of children who were actually screened,
53
and they clearly show that a grossly insufficient number of EPSDT-eligible children (approximately 16%) were screened for lead poisoning in 1995.
106. A particularly compelling case history is presented by Ms. Moreno, a class member, who actually requested lead blood tests for her children whenever she took them to a doctor. Her children did not receive such t'ests on a regular basis, however. Ms. Moreno’s son Walter now suffers from lead poisoning, and needs special education because of his condition. Moreno Test, at 4r-5.
d. Class Members’ Testimony
107. Numerous parents of EPSDT-eligible children testified that those children had not received complete EPSDT screening services: Argueta Test, at 5-6 (no lead blood screening services); J. Alvarez Test, at 4-5 (no complete EPSDT screening services)
54
; Aparicio Test, at 2 (no lead blood screening services); Arce Test, at 3 (no EPSDT screening services, though children had received some health screens in school); Avelar Test, at 3 (no complete EPSDT screening services); Flores Test, at 4 (same); Guardado Test, at 7 (no complete EPSDT screening services or immunizations); Hernandez Test, at 5 (no regular physical or mental examinations; no lead blood screenings); Ayala Test, at 3 (no regular physical examinations; no mental health screenings); Moreno Test, at 4-5 (no physical examinations, dental services, or vision, hearing or lead blood screenings); Rivas Test, at 3, 5 (no regular physical or mental examinations; no developmental assessment); Silva Test, at 2 (no full EPSDT screening services).
2. Dental Services
108. The number of preventive dental services provided to EPSDT-eligible children in the District of Columbia decreased in each year from 1992 to 1994. In fiscal year 1992, 18,052 preventive dental services were received by the 67,789 EPSDT-eligible children in the District. Pis.’ Ex. 222, lines 1 and 10.
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In other words, only 26.6% of the EPSDTeligible children in the District received dental services. In fiscal year 1993, only 11,800 preventive dental services were received -by the 73,837 EPSDT-eligible children in the District. Pis.’ Ex. 6, lines 1 and 10. Thus, only 15.9% of the EPSDT-eligible children in the District received dental services. Finally, in fiscal year 1994, only 10,659 preventive dental services were received by the 84,593 EPSDT-eligible children in the District, which means that only 12.6% of the EPSDTeligible children in the District received dental services. Pis.’ Ex. 223, lines 1 and 14. Therefore, from 1992 to 1994, the percentages of EPSDT-eligible children receiving dental services declined from 26.6% to 12.6%.
109. Several class members who are EPSDT-eligible have not received dental services. J. Alvarez Test, at 4-5; Moreno Test, at 4-5; Rivas Test, at 5.
3. Vision and Hearing Services
110. Neither Plaintiffs nor Defendants presented any system-wide data regarding vision and hearing services provided to EPSDT-eligible children in the District of Columbia. Several parents of children on Medicaid testified that their children had not received any vision or hearing screenings. Argueta Test, at 5 (no hearing screenings); Hernandez Test, at 5 (no vision or hearing screenings); Ayala Test, at 3 (no regular vision or hearing screenings); Moreno Test, at 5 (no vision or hearing screenings); Rivas Test, at 5 (no regular vision or hearing screenings).
111. It is true that the District of Columbia Public Schools (“DCPS”) provide visual and hearing examinations for all children in certain grades, as part of their legal requirement to provide 20 hours of nursing services per week to DCPS students. Testimony of Dr. Mary Ellen Bradshaw (“Bradshaw Test.”). Again, however, no estimate was provided of the percentage of EPSDT-eligible children served by the DCPS visual and hearing examinations, or whether the examinations are provided in accordance with the District’s periodicity schedule.
112. In short, the Court lacks the most basic data about whether EPSDT-eligible children are being tested for eyesight and hearing problems, whether existing problems are being addressed, and whether children are being tested routinely at the times called for in the District’s periodicity schedule.
4. Monitoring to Ensure that Children Receive Complete, Up-to-Date EPSDT Services
113. Defendants have no .procedures to determine whether children receive the full battery of EPSDT screening services. Deposition of David Coronado, 7-5-94 (“Coronado Dep.”), at 127. Defendants do not know the number of EPSDT-eligible children who have received a full battery of age-appropriate EPSDT screening services. Pis.’ Ex. 101 at 53. If a child has an EPSDT screening service one year and is due for another screening service the next year, Defendants take no action to ensure that the child receives the second screening service. Coronado Dep. at 5, 101-102. Furthermore, when Defendants receive an EPSDT invoice which indicates that a child has not received a full EPSDT screening service, they take no follow-up action to ensure that the child obtains a complete screening service. Rule 30(b)(6) Davidson Dep., 9-12-94, at 171. If a Medicaid applicant informs IMA that she desires EPSDT services for her child, Defendants do not ensure that the child is provided with such services.
Id.
at 51-52.
114. As of September 1994, CHCF had not provided any oral or written information to EPSDT providers about the EPSDT screening requirements since July 1992. Rule 30(b)(6) Davidson Dep., 9-12-94, at 100-102.
55
At trial, Ms. Thompson claimed that CHCF sends transmittals, or official policy notifications, to managed care providers
*308
56
to advise them of EPSDT requirements, but Defendants provided no evidence to support this other than two transmittals issued in 1995 and 1996. J. Thompson Cross-Exam. Test.
57
115. Although the managed care agreements between CHCF and fee-for-service providers do describe EPSDT service delivery requirements, they do not specifically require providers to deliver EPSDT services — other than immunizations — to their patients in accordance with the District’s EPSDT periodicity schedule. Pis.’ Ex. 75 at 11; Sherman Cross-Exam. Test.; Rule 30(b)(6) Davidson Dep., 1-23-95, at 8-12.
58
Significantly, fee-for-service providers are not required to submit any periodic reports on EPSDT services rendered, although they do submit bills to CHCF for such services. Sherman Cross-Exam. Test.
116. While the managed care agreements between CHCF and capitated providers generally describe the EPSDT services that providers are required to render, they do not specifically require providers to deliver EPSDT services to their patients according to the District’s EPSDT periodicity schedule.
See
Pis.’ Ex. 77; Rule 30(b)(6) Davidson Dep., 1-23-95, at 8-12.
59
Capitated providers are required to report all EPSDT screening services performed and to state whether children are referred for corrective treatment. Pis.’ Ex. 308; J. Thompson Cross-Exam. Test. However, they are not required to specify whether they have provided complete screening services, including appropriate immunizations and laboratory tests, or
*309
whether each child screened is up-to-date with respect to her screening services. J. Thompson Cross-Exam.Test. Like the fee-for-serviee provider agreement, the capitated provider agreement does not include the District’s EPSDT periodicity schedule, which describes when children should receive EPSDT services.
Cf.
Defs.’ Ex. 7B, App. IX.
117. Up until July 1992, CHCF conducted site visits to inform participating EPSDT providers of EPSDT requirements and to monitor compliance with those requirements. Davidson Cross-Exam. Test. From 1985 to July 1992, Ms. Davidson, the EPSDT coordinator, personally visited physicians who wished to be Medicaid EPSDT providers. The purpose of the site visit was to inform the provider of her obligations under the EPSDT program, and to ensure that the provider had adequate equipment and knowledge to perform the comprehensive EPSDT screenings. For example, Ms. Davidson would make sure the provider knew how to assess a child’s mental health and development at various ages, had procedures for cheeking hearing and vision, and knew the requirements for blood and urine laboratory testing for children. Rule 30(b)(6) Deposition of Sarah Davidson (“Rule 30(b)(6) Davidson Dep.”), 9-12-94, at 71-76, 78-79; Pis.’ Exs. 236, 268,269,272.
60
118. Those visits were discontinued in July 1992, however.
Id.
at 72-73. Since then, CHCF has taken no action to ensure that the District’s EPSDT providers know their EPSDT obligations, are able to provide EPSDT screening services, and actually do provide them.
Id.
at 93, 96. In fact, the EPSDT coordinator has not spoken to any health care providers about the EPSDT program since July 1992.
Id.
at 104. In Ms. Davidson’s view, training for prospective EPSDT providers is still necessary, in light of the detailed screening requirements in the HCFA State Medicaid Manual. For example, general practitioners who participate in EPSDT, unlike pediatricians who participate in EPSDT, are sometimes unaware of the current methods for detecting developmental delays in children. Davidson Cross-Exam. Test.
119. Furthermore, although CHCF receives data from some managed care providers regarding EPSDT services performed,
61
it does not use that data to monitor whether managed care providers deliver complete EPSDT services to EPSDT-eligible children in accordance with the District’s periodicity schedule. Davidson Cross-Exam. Test. CHCF does virtually nothing with the EPSDT data it receives from managed care providers. In fact, CHCF does not monitor whether managed care providers deliver any EPSDT screening services at all. Rule 30(b)(6) Davidson Dep., 1-23-95, at 16-17.
120. Chartered Health Plan (“Chartered”) serves the largest number of Medicaid recipients who are enrolled in capitated programs. In 1995, it was the assigned or selected provider for 32% of the entire Medicaid managed care program. Pis.’ Ex. 301 at 8. In 1991, HCFA conducted a review of the District’s EPSDT program (“1991 HCFA EPSDT Review”), and recommended that CHCF “ensure that EPSDT screens are provided to Charteredfs]____under 21-year old population.” Pis.’ Ex. 5 at 17. In April 1992, CHCF responded with an EPSDT corrective action plan, stating that it would “ensure that Chartered ... receives updates on the-EPSDT program.”
Id.
HCFA, however, specifically found that action plan defi
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cient. Pis.’ Ex. 202, bates stamp no. 7276. Specifically, HCFA pointed out, the plan lacked a methodology for ensuring that Chartered provide EPSDT screening services.
Id.
121. As of April 1995, however, Defendants still had not monitored Chartered to determine whether it was following federal EPSDT requirements. Rule 80(b)(6) Davidson Dep., 4-20-95, at 34r-35. Moreover, as of April 1996, the month this case went to trial, Defendants had not monitored Chartered, any other capitated providers, or any fee-for-service providers, to ascertain whether those providers deliver, to EPSDT-eligible children in their care, complete EPSDT screening services in accordance with the District’s periodicity schedule. Davidson Cross-Exam. Test.
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5. Assignment of Managed Care Patients
122. Under the District’s Medicaid Managed Care Program, many patients have been assigned to new doctors whom they did not select. Sherman Test, at 9. During the AFDC recertification process, AFDC and AFDC-related Medicaid recipients are sent notices informing them of their enrollment in managed care and offering them a choice of managed care providers. The notices state that if the recipient fails to choose a provider and communicate that choice to CHCF within a stated period of time, she will be automatíeálly assigned to one of the four capitated providers. Sherman Cross-Exam. Test.; Green Test. In its Managed Care Review, HCFA found these notices to be “lengthy and difficult to read for the average Medicaid recipient.” Pis.’ Ex. 301 at 11. As a result, Medicaid recipients are not being clearly informed of their ability to choose providers.
Id.
at 10. HCFA recommended that CHCF ensure that Medicaid recipients in the managed care program be made aware of their right to choose a primary care provider.
Id.
at 11-12.
63
123. As a physician affiliated with a capitated provider
from
late 1994
to
January 1996, Dr. Adams experienced significant problems with the District’s method of assigning patients to providers. Dr. Adams’ patients were sent to other doctors whom they did not know, whereas she was sent patients who had had long-standing relationships with other doctors and did not know her. Adams Test, at 3. These patient assignments were made without advance notice to Dr. Adams.
Id.
124. This confusing assignment process also caused delays in access to new patients’ medical records.
Id.
These delays, in turn, resulted in many Medicaid patients experiencing serious delays in receiving EPSDT services.
Id.
In the fall of 1994, a few children were unable to start school at all or on time because of delays in obtaining physicals and immunizations.
Id.
at 5.
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125. Moreover, many of Dr. Adams’ patients were assigned to doctors in different parts of the city, and many “simply did not want to go to another doctor and stopped seeing any doctor.”
Id.
at 4. Additionally, some children in the same family were assigned to different doctors, which greatly inconvenienced parents and discouraged some from obtaining proper medical care for their children.
Id.; cf.
Paulson Test, at 8 (testifying that families with children on Medicaid appear to have no input in choosing their providers, and that children in the same family are assigned to different providers, both of which factors inhibit children’s access to EPSDT services); Sherman Test, at 9 (testifying that the confusion surrounding the assignment process caused some patients to postpone health appointments until they suffered from acute illnesses or conditions).
126. HCFA’s Managed Care Review addressed the same problems outlined above.
See
Pis.’ Ex. 301 at 6. HCFA found:
The District’s computer system auto-assignment process “randomly” assigns recipients to various providers without any logical sequence, except the recipient’s “last name.” Specifically, the system is unable to link a family with one provider or unable to assign a recipient to a provider in the ward in which they live. For example, twins were assigned to two different providers, and a family of eight had all of its children assigned to different providers. Also recipients are assigned to providers across town though they have a provider across the street from their residence. While this situation should be corrected by calling the Helpline, we found through monitoring telephone conversations that it is very time consuming for families, and many times they were not successful.
Pis.’ Ex. 301 at 6. Consequently, HCFA directed CHCF to “eorredf ] the deficiencies with the auto-assignment process so that families are kept together and special-needs recipients are taken into consideration,” and suggested that the District assign recipients based on provider history and location of residence. Pis.’ Ex. 301 at 8.
127. In its Corrective Action Plan, CHCF responded that the enrollment process was overhauled in the Spring of 1995, so that family members are now enrolled with the same provider. Pis.’ Ex. 302 at 3. CHCF did not specifically address the recommendation that the District assign recipients according to provider history and location of residence.
Id.
at 3-4; Offiier Test.
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6. Case Management Services
128. States are given the option of providing ease management services. 42 U.S.C. § 1396n(g)(l) (1996). These are “services which will assist' individuals eligible under the plan in gaining access to needed medical, social, educational, and other services.”
Id.
§ 1396n(g)(2). Some case management services are mandatory, however. Defendants were specifically informed in HCFA Regional Medicaid Letter No. 13-90:
[T]o the extent that case management services are medically necessary
to provide assistance in gaming access to
...
services required to diagnose and/or treat a condition found during a screening service,
states must provide case management services to EPSDT participants.
Pis.’ Ex. 240.
129. As of October 1994, 29 states had formal case management components in their EPSDT programs. Pis.’ Ex. 204 at 2 and Table 2. Case management activities in these states include assisting families with scheduling appointments, reminding families about appointments, ensuring that children receive regular and preventive health screening services, following up on missed appointments and referrals for further medical care, and assisting families in need of other social services.
Id.
130. The District of Columbia does not have a formal case management program.
Id.
The 12 DHS neighborhood climes run by the D.C. Commission on Public Health do not provide advance notice to EPSDT patients
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that they should come in for their next EPSDT screening service. Rule 30(b)(6) Deposition of Peter Coppola (“Rule 30(b)(6) Coppola Dep.”), 4-18-95, at 14.
65
Similarly, IMA SSRs do not inform Medicaid recipients of dates upon which EPSDT screening services are due. Rule 30(b)(6) Deposition of Sandra Wallace (“Rule 30(b)(6) Wallace Dep.”), 4-21-95, at 42-43.
131. The EPSDT coordinator takes no action when she receives forms indicating that Medicaid applicants or recipients desire EPSDT services for their children. Davidson Cross-Exam. Test.
66
When a Medicaid recipient indicates on her recertification form that she desires EPSDT services, she receives no reply from DHS, and DHS takes no action to deliver EPSDT services to the child. Rule 30(b)(6) Cephas Dep., 4-21-95, at 6-7; Rule 30(b)(6) Davidson Dep., 9-12-94, at 51-52;
see also
Aparicio Test, at 1-2 (testifying that she received no reply to her request for EPSDT services on the recertification form);
cf.
Pis.’ Ex. 197, bates stamp no. 10152 (Defendants’ representation to HCFA in March 1990 that when recipients requested EPSDT services on DHS Form 1544 — Form 1209’s predecessor — they were “mailed a form letter acknowledging their request and informing them of the location of EPSDT providers in their community.”).
132. Finally, Defendants do not pay providers for case management services as part of EPSDT. Rule 30(b)(6) Davidson Dep., 9-12-94, at 245.
133. Defendants did present evidence of the District of Columbia Linkage and Tracking System (“DCLTS”), a program run by the Commission of Public Health, which identifies and monitors children from birth to age eight who are disabled or have certain at-risk conditions.
67
These children are enrolled in a centralized registry, and are referred to appropriate services. Testimony of Eleanor Elaine Vowels, Ph.D. (“Vowels Test.”) at 2.
68
DCLTS itself does not provide any EPSDT services. Vowels Cross-Exam. Test. Additionally, the District’s Office of Maternal and Child Health (“OMCH”), which is also within the Commission of Public Health, attempts to ensure that EPSDT-eligible children obtain access to pediatric services. Testimony of Barbara A. Hatcher, Ph.D. (“Hatcher Test.”) at 6.
69
Defendants provided no evidence or specific data on how many EPSDT-eligible children are served by OMCH’s programs, however.
7. Referrals for Treatment of Conditions Discovered During EPSDT Screenings
134. EPSDT-eligible children enrolled in the District’s Medicaid Managed Care Program experience considerable difficulty in receiving necessary follow-up care from specialists, because physicians lack information about available specialists. For example, as a contractor with Prudential Health Plan, a capitated provider, Dr. Adams was unable to obtain a list of approved medical specialists
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to whom she could refer her patients for various follow-up care needs. Adams Test, at 5-6. Although she had contracted with Prudential in late 1994, she did not receive a directory containing the names of Prudential-approved specialists until late 1995, despite her requests to Prudential staff over many months for such a list.
Id.
at 6. As a result of this delay, Dr. Adams’ Medicaid patients were delayed in obtaining the specialized care that they needed.
Id.
135. Similarly, Dr. Paulson was never informed about how Medicaid-eligible children should be referred to specialists. Paulson Test, at 8-9. As a result of these problems, his child patients have experienced delay in obtaining specialized follow-up treatment.
Id.
136. Fee-for-service providers have experienced similar difficulties, prompting the following corrective action recommendation in HCFA’s Managed Care Audit:
[CHCF] must ensure referrals are made by fee-for-service providers for specialty care. [CHCF] must also give instructions to providers on making referrals ...
Pis.’ Ex. 301 at 8. In its Corrective Action Plan, CHCF responded that it planned to send a letter by March 7, 1996 to all providers explaining procedures for referrals to specialists. Pis.’ Ex. 302 at 5. There is nothing in the record to indicate that such letter was ever sent.
137. Pursuant to managed care agreements with CHCF, the four capitated providers should submit data on the number of children they refer for corrective treatment following EPSDT screening services.
See
Pis.’ Ex. 77 at 20, ¶ G; Pis.’ Ex. 308.
70
Fee-for-service providers, however, are not obligated, contractually or otherwise, to report such data. Instead, CHCF has retained First Health Services Corporation to compile information from the Medicaid billing claims of fee-for-service providers for use on the HCFA Form 416. Rule 30(b)(6) Davidson Dep., 9-12-94, at 157. Line 8 on the FY 1993 HCFA Form 416 and line 12 on the FY 1994 HCFA Form 416 are entitled “Number of Eligibles Referred for Corrective Treatment.” Pis.’ Exs. 6, 223. HCFA has stated that these lines require the reporting of
the unduplicated count of individuals who, as the result of at least one health problem identified during an EPSDT child health screening,
excluding
vision, dental, and hearing services, were scheduled for another appointment with the screening provider or referred to another provider for further needed diagnostic or treatment service.
Pis.’ Ex. 166 (HCFA State Medicaid Manual, § 2700.4) (emphasis in original);
accord
Pis.’ Ex. 64 at 2-219.
138. In completing line 8 and line 12 for fiscal years 1993 and 1994, respectively, First Health did not actually count the number of children who were scheduled for further appointments following the identification of health problems during EPSDT screening services. Instead, First Health merely “count[ed] claims for services other than an assessment or screening, when the services [were] provided after an assessment or screening (up to six months after the fiscal year).”
See
Pis.’ Ex. 169 (letter from Erica Birath of First Health to EPSDT Coordinator); Pis.’ Ex. 170 (letter from A. Sue Brown, Acting Commissioner of CHCF, stating that First Health’s method was acceptable).
139. Defendants’ lack of proper referral records demonstrates the absence of procedures for ensuring that EPSDT-eligible children receive treatment for conditions discovered during the course of EPSDT screening services.
140. This problem is exemplified by the ease of Ms. Rosa Rivas, a class member, who was informed in mid-1994 by her son Joaquin’s speech therapist at Children’s Hospital that Joaquin needed two additional hours per week of speech therapy. Joaquin was not referred for the further speech therapy through the EPSDT program; instead, he was referred to his school. Although Ms. Rivas requested the additional speech therapy in September 1994, Joaquin did not receive the additional therapy until early 1995. When Joaquin did finally receive the addi
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tional therapy, his mother learned that his speech level was three years below the normal level for a child of his age. Rivas Test, at 3-4.
8. Scheduling and Transportation Assistance
141. Scheduling assistance is a required part of the EPSDT program. Davidson Test., ¶ 16. Defendants have provided virtually no scheduling assistance to parents of EPSDT-eligible children, however. If a person who is EPSDT-eligible speaks English, knows the “system,” and happens to call the EPSDT coordinator, she will be assisted by the coordinator in locating a provider. Rule 30(b)(6) Davidson Dep., 9-12-94, at 155-156.
71
However, the EPSDT coordinator no longer even schedules appointments for those few people who may call.
Id.
at 153-155. Similarly, IMA SSRs do not schedule EPSDT appointments. Rule 30(b)(6) Wallace Dep. at 20. If a Medicaid applicant informs an SSR that she wants an EPSDT referral to a doctor or clinic, the SSR fills out a Form 612 and forwards it to the EPSDT coordinator. Rule 30(b)(6) McNair Dep. at 24. As noted earlier, the EPSDT coordinator takes no action in response to Form 612s. Rule 30(b)(6) Davidson Dep., 9-12-94, at 51-52.
142. The Office of Maternal and Child Health (“OMCH”) does operate two hotlines which provide necessary scheduling assistance to families (547-BABY and 1-800-MOM-BABY).
72
Hatcher Test, at 6. Defendants provided no estimate, however, of the number of EPSDT-eligible children served by these hotlines.
73
143. Transportation assistance is also required under EPSDT. Davidson Test., ¶ 21. Transportation services are theoretically available to any Medicaid recipient who has received a physician’s certification that transportation services are medically necessary. Pis.’ Ex. 244. Plaintiffs’ Exhibit 85 sets forth the current procedures for obtaining transportation assistance for taxicabs. Rule 30(b)(6) Deposition of Carmen Vega (“Rule 30(b)(6) Vega Dep.”), 4-21-95, at 9. In order to be eligible for transportation to a medical appointment in a taxicab, a Medicaid recipient’s provider must conclude that “use of bus transportation would cause undue hardship.” Pis.’ Ex. 85 at l.
74
First Health arranges transportation assistance “only for Medicaid-eligible recipients [who] are confined to wheelchairs, walkers, canes, or are classified as weak and frail.” Rule 30(b)(6) Deposition of Samuel Young, Jr., 1-24-95, at 3,11.
144. Defendants have no method of ensuring that Medicaid recipients who need transportation assistance in order to obtain EPSDT services actually receive such assistance. Medicaid recipients must request bus or Metro tokens — if they know of their availability — from providers in order to obtain them for medical appointments. Rule 30(b)(6) Vega Dep. at 12-13. If a provider has tokens, it can provide them to Medicaid recipients; the decision as to whether or not to provide bus or Metro tokens to Medicaid recipients lies with the provider.
Id.
at 18-20. Defendants take no steps to ensure that providers have an adequate supply of bus or Metro tokens.
Id.
at 24-25.
145. For example, Dr. Adams’ office has never been given bus tokens or other trans
*315
portation assistance for her patients. Adams Test, at 8. To her knowledge, no system exists within Prudential, the capitated provider with which she was formerly affiliated, to provide transportation services to doctors’ offices.
Id.
Many of Dr. Adams’ patients rely on public transportation to get to the office; Dr. Adams’ office manager has “never heard of any program where doctors provide bus or Metro fare to patients and are then reimbursed by DHS or Medicaid.” Roberts Test, at 4.
146. Staff at GUMC’s Mobile Clinic, on the other hand, are given taxi vouchers for patients who are unable to use any form of public transportation. Sherman Test, at 6.
147. Dr. Paulson’s patients have experienced difficulty in traveling to his office, which is located at the George Washington University School of Medicine, on 22nd

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1488739. Public record. Not legal advice.