                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


    M.J., et al.,

            Plaintiffs,

                v.                       Civ. No. 1:18-cv-1901 (EGS)

    THE DISTRICT OF COLUMBIA, et al.,


             Defendants.


                           MEMORANDUM OPINION

        Plaintiffs, M.J. and L.R., 1 two children who suffer from

mental illnesses, and University Legal Services, Inc., the

designated protection and advocacy program for such individuals

in the District of Columbia, bring this action on behalf of

themselves and a putative class of mentally-ill children who

allegedly have been unnecessarily institutionalized or face

unnecessary institutionalization. In their complaint, plaintiffs

allege that the District of Columbia (“District of Columbia” or

“District”) and its officials (collectively “Defendants”) have

failed to provide intensive community-based services, in favor

of admitting children to residential facilities even though the

children are eligible for community-based treatment. Plaintiffs



1 Pursuant to Federal Rules of Civil Procedure and Local Rule
5.4(f)(2), the minor individual plaintiffs are identified by
their initials.
seek declaratory and injunctive relief based on alleged

violations of federal law including the Medicaid Act 42 U.S.C.

§ 1396d et seq. and the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12131, et seq.

     Pending before the Court is defendants’ motion to dismiss

the complaint. Defendants argue that plaintiffs do not have

standing to bring this action, and, in the alternative, that

plaintiffs have failed to state a cognizable claim. Upon

consideration of the parties' memoranda, the applicable law, and

for the following reasons, defendants’ motion to dismiss is

DENIED.

I. Background

     Plaintiffs M.J. and L.R. are Medicaid-eligible children

with mental health disabilities. Compl., ECF No. 3 ¶ 1. Both

plaintiffs as well as all members of the plaintiffs’ putative

class have a mental health disability by virtue of having a

serious emotional disturbance. Id. ¶ 13. Under District of

Columbia law, a child has a serious emotional disturbance when a

child has a mental health condition and that condition causes a

functional impairment. Id. ¶ 14 (citing D.C. Mun. Regs. Tit. 22-

A, § 1201.l). The functional impairment also needs to, on an

episodic, recurrent or continuous basis, substantially limit the

child’s functioning in family, school, or community services; or

limit the child from achieving or maintaining one or more

                                2
developmentally appropriate social, behavioral, cognitive,

communicative, or adaptive skills. Id. Because the children are

“individuals with a disability” they are also protected by the

ADA and the Rehabilitation Act. Id. (citing 42 U.S.C. § 12102;

29 U.S.C. § 705(20)(B)).

     Plaintiff University Legal Services is an independent, non-

profit corporation organized under the laws of the District of

Columbia that does business under the name Disability Rights

D.C. at University Legal Services (“Disability Rights D.C.”).

Compl., ECF No. 3 ¶ 15. Disability Rights D.C. is the designated

protection and advocacy program for individuals with

disabilities for the District of Columbia. Id. The organization

is authorized under the Protection and Advocacy for Individuals

with Mental Illness Act, 42 U.S.C. § 10801 et seq., and the

Protection and Advocacy for Individuals with Developmental

Disabilities Act, 42 U.S.C. § 15041 et seq., to bring this

action on behalf of the named individual plaintiffs and members

of the putative class, who are its constituents. Id.

     Defendant District of Columbia is a public entity covered

by Title II of the ADA, and, as a participant in the federal

Medicaid program, its agencies receive federal financial

assistance through that and other federal programs. Id. ¶ 16.

Defendant Muriel Bowser is the Mayor of the District of Columbia

and supervises the official conduct of the Departments of Health

                                3
Care Finance (“DHCF”) and Behavioral Health (“DBH”). Id. ¶ 17.

Defendants Wayne Turnage and Tanya Roster are the Directors of

DHCF and DBH respectively. Id. ¶¶ 18–19. All four defendants

play a role in ensuring the District is in compliance with

federal law. Id. ¶¶ 16–19.

     Under the Medicaid Act, a state must provide “early and

periodic screening, diagnostic, and treatment [“EPSDT”] services

(as defined in subsection (r)) for individuals who are eligible

under the plan and are under the age of 21.” 42 U.S.C.

§ 1396d(a)(4)(A). Those services are defined as screening

services (including physical exams, immunizations, health and

developmental health history review, and laboratory tests),

vision services, dental services, hearing services, and “[s]uch

other necessary health care, diagnostic services, treatment, and

other measures . . . to correct or ameliorate defects and

physical and mental illnesses and conditions discovered by

screening services, whether or not such services are covered

under the State plan.” 42 U.S.C. § 1396d(r)(5). Section 1396d(a)

describes a list of services which, if medically necessary, must

be provided to EPSDT beneficiaries.

     Plaintiffs allege that defendants have never created a

functioning system for providing intensive community-based

services (“ICBS”) to District of Columbia children who are

entitled to receive it. See Compl., ECF No. 3 ¶ 38. ICBS is

                                4
comprised of four components: (1) Intensive Care Coordination,

(2) Intensive Behavior Support Services, (3) Mobile Crisis

Services; and (4) Therapeutic Foster Care. 2 See Id. ¶ 39.

Plaintiffs allege that these components are unique and are

collectively necessary to meet the health care needs of eligible

children. See id. ¶¶ 38–41.

     The first component, intensive care coordination, is “an

intensive form of case management in which a provider convenes a

‘child and family team,’ including the child, the child’s

family, service providers, and other individuals identified by

the family, to design and supervise a plan that provides and

coordinates services for children with mental health

disabilities.” Id. ¶ 39. The second component, intensive

behavior support services, consists of “individualized

therapeutic interventions provided on a frequent and consistent

basis that are designed to improve behavior and delivered to

children and families in any setting where the child is

naturally located.” Id. The third component, mobile crisis

services, involves a “mobile, onsite, in-person response,

available at any time or place to a child experiencing a crisis,

for the purpose of identifying, assessing, and stabilizing the




2 Therapeutic foster care is not at issue in this case; the
plaintiffs have not made any allegations regarding this
provision. See generally, Pls.’ Compl., ECF No. 3.
                                5
situation and reducing any immediate risk of harm.” Id. Mobile

crisis services may be “delivered in the child’s home, school,

or community.” Id.

     Plaintiffs’ complaint alleges that the District of Columbia

has failed to offer the plaintiff children all of the required

components of ICBS, which are collectively necessary to meet

their mental health needs. Compl., ECF No. 3 ¶¶ 38–48. As a

result, plaintiffs allege that the children are deprived of the

ICBS that they need to improve their conditions and avoid

unnecessary institutionalization or the serious risk of

institutionalization. Id. ¶¶ 49–65. Plaintiffs therefore bring

this action for violations of the ADA, Section 504 of the

Rehabilitation Act, and violations of the Medicaid Act enforced

through 42 U.S.C. § 1983. Id. ¶¶ 66–73.

     Defendants have moved to dismiss plaintiffs’ complaint

under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction and 12(b)(6) for failure to state a

claim. See generally Defs.’ Mot., ECF No. 21. Plaintiffs have

filed their opposition to the motion to dismiss. Pls.’ Opp’n,

ECF No. 29. And defendants have filed a reply thereto. Defs.’

Reply, ECF No. 33. This motion is ripe for adjudication.

II. Standard of Review

     A. Rule 12(b)(1): Subject Matter Jurisdiction

     “A federal district court may only hear a claim over which

                                6
[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court's

jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37 (D.D.C.

2017)(citation and internal quotation marks omitted). To survive

a Rule 12(b)(1) motion, the plaintiff bears the burden of

establishing that the court has jurisdiction by a preponderance

of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, (1992). Because Rule 12(b)(1) concerns a court's ability to

hear a particular claim, “the court must scrutinize the

plaintiff's allegations more closely when considering a motion

to dismiss pursuant to Rule 12(b)(1) than it would under a

motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S.

Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C.

2011)(citations omitted). In so doing, the court must accept as

true all of the factual allegations in the complaint and draw

all reasonable inferences in favor of the plaintiff, but the

court need not “accept inferences unsupported by the facts

alleged or legal conclusions that are cast as factual

allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C.

2001).

     In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

the court “may consider such materials outside the pleadings as

it deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections

                                7
& Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Faced with

motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6), a

court should first consider the Rule 12(b)(1) motion because

“[o]nce a court determines that it lacks subject matter

jurisdiction, it can proceed no further.” Ctr. for Biological

Diversity v. Jackson, 815 F. Supp. 2d 85, 90 (D.D.C. 2011)

(citations and internal quotation marks omitted).

     B. Rule 12(b)(6): Failure to State a Claim

     A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)(internal quotation marks omitted).

     Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

claim is facially plausible when the facts pled in the complaint

allow the court to “draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The

standard does not amount to a “probability requirement,” but it

                                8
does require more than a “sheer possibility that a defendant has

acted unlawfully.” Id.

     “[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)

(internal quotation marks omitted). In addition, the court must

give the plaintiff the “benefit of all inferences that can be

derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994).

III. Analysis

     Defendants argue that the claims in this case should be

dismissed under Federal Rule 12(b)(1) because plaintiffs M.J.,

L.R., and Disability Rights D.C. lack standing, and

alternatively that the case should be dismissed under Federal

Rule 12(b)(6) because plaintiffs have failed to state a claim.

The Court discusses each argument in turn.

     A. Motion to Dismiss for Lack of Jurisdiction

     To establish subject matter jurisdiction a court must find

that at least one plaintiff has standing to bring this case

under Article III of the United States Constitution. Mendoza v.

Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). To have standing, a

plaintiff must have “(1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

                                9
defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016). “To establish injury in fact, a plaintiff must show

that he or she suffered ‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Id. (citation

omitted). “The party invoking federal jurisdiction bears the

burden of establishing these elements.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992)(citations omitted). Because

the elements of standing are not “mere pleading requirements but

rather an indispensable part of the plaintiff's case,” they each

“must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof, i.e., with the manner

and degree of evidence required at the successive stages of the

litigation.” Id.

          1. M.J. has Standing

     Defendants argue that M.J. lacks an injury in fact because

she has previously declined the type of services she now seeks

in this suit. Defs.’ Mot., ECF No. 21 at 19–20. 3 Defendants also

argue that M.J.’s claims are moot because any legally cognizable

interest in the outcome of the litigation was extinguished once




3 When citing to electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
page number of the filed document.
                                 10
M.J. refused services. Id. In support of this argument,

defendants provide a declaration from Patrina Anderson, Director

of the Linkage and Assessment Division at the District of

Columbia Department of Behavioral Health. See Decl. of Patricia

Anderson (“Anderson Decl.”), ECF No. 21-4. Ms. Anderson states

that M.J. is currently receiving Level II community-based

interventions (“CBI”), and that M.J.’s mother declined High

Fidelity Wrap Around services 4 after a referral was made to DBH

by the Children’s National Hospital Center. Id. ¶¶ 3–4. She also

states that M.J.’s mother inquired about the wrap around

services at a later date but then told M.J.’s CBI worker that

she did not want the services. Id. ¶¶ 6-9.

     Plaintiffs deny that the wrap around and CBI services

qualify as ICBS because they are short term and not equivalent

to the “intensive behavior support services” that are a core

component of ICBS. Pls.’ Opp’n, ECF No. 29 at 18. Moreover, even

if these wrap around services qualified, plaintiffs dispute that

M.J.’s mother has refused these services. Id. M.J. provides a

declaration from her mother, J.J., in which she explains that

she has sought to obtain the services offered by the City and

that her initial refusal was based on a misunderstanding of the

nature of the High Fidelity Wrap Around services that were


4 High Fidelity Wrap Around services is an intensive form of case
management. Compl., ECF No. 3 ¶¶ 39–41.
                                11
offered to her. See Redacted Decl. of J.J. (“J.J. Decl.”), ECF

No. 40 ¶ 5. M.J.’s mother stated that, after receiving a more

fulsome explanation of the services, she requested that M.J.

receive those services. Id. ¶ 7. Her declaration also details

several efforts that she has made to obtain High Fidelity Wrap

Around services for M.J. Id. ¶¶ 8–14. J.J. maintains that she is

still interested in receiving these services for her daughter.

Id. ¶ 15.

     The Court is persuaded that M.J. has demonstrated that she

has alleged facts sufficient to show that she has suffered an

injury in fact. As an initial matter, because M.J. has alleged

that High Fidelity Wrap Around services and CBI are short-term

backstops which fall outside the category of ICBS, defendants’

argument that M.J.’s refusal of these services precludes an

injury in fact in this case is unpersuasive. M.J. has alleged

that these types of short-term programs are not as intensive as

ICBS requires and therefore have led to repeated disruptions to

her education and periods of institutionalizations in hospitals.

See Compl., ECF No. 3 ¶¶ 51, 54–56. In light of those

allegations, it is irrelevant if M.J. refused those services

because they arguably are not categorized as ICBS.

     Moreover, even if the services did constitute ICBS, the

issue of whether M.J. has requested High Fidelity Wrap around

services is a factual dispute. In deciding a motion to dismiss,

                               12
a court “may consider such materials outside the pleadings as it

deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro, 104 F. Supp. 2d at 22.

M.J.’s mother’s declaration explains that initially she did not

receive an accurate explanation of what the wrap around services

entailed and therefore believed that they were duplicative of

the services M.J. was already receiving. J.J. Decl., ECF No. 40

¶ 5. However, once she was informed that the services were not

duplicative, she declared that she has repeatedly tried to

obtain those services for M.J. Id. ¶¶ 8–14. Drawing all

reasonable inferences in favor of M.J., as the Court must do at

this stage of the litigation, the Court accepts the allegation

that M.J.’s mother has not refused services. 5 See Rann, 154 F.

Supp. 2d at 64 (“In reviewing a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1), the court must

accept all the complaint's well-pled factual allegations as true

and draw all reasonable inferences in the plaintiff's favor.”)

     The Court finds that M.J.’s allegations--that defendants’

ongoing failure to provide requested ICBS has subsequently led

to unnecessary institutionalizations--is sufficient to meet the

injury in fact requirement. Defendants do not dispute the other




5 Similarly, because the plaintiffs have sufficiently alleged
that M.J. has requested, but has not received, these services
the government’s mootness argument also fails.
                                13
two requirements for standing, redressability and causation, and

it appears to the Court that these components have been

adequately alleged. Accordingly, M.J. has standing to pursue her

claims.

          2. L.R. has Standing

     Defendants next argue that plaintiff L.R. lacks standing to

pursue her claims because she was in the custody of the

Department of Youth Rehabilitation Services (“DYRS”) and

therefore not eligible to receive services from Medicaid. Defs.’

Mot. ECF No. 21 at 20–21. In other words, L.R. cannot suffer an

injury because the defendant cannot provide her services to

which she claims she is entitled. Id. In support of this

argument, defendants provide a DHCF transmittal for

“incarcerated individuals” which outlines the policy for claims

by individuals in certain DYRS facilities. Id. (citing DHCF

Transmittal, ECF No. 21-5 at 1). Similarly, defendants argue

that because L.R. is under DYRS custody by court order, any lack

of ICBS is not attributable to the defendants, but rather to

legal process. Id.

     The parties’ disagreement stems from dueling

interpretations of the DHCF transmittal. The transmittal

“clarifies existing Federal law and policy pertaining to the

availability of Medicaid Federal Financial Participation (“FFP”)

for medical services provided to children . . . who are confined

                                 14
to the Youth Services Center (YSC) and New Beginnings Youth

Development Center.” DHCF Transmittal, ECF No. 21-5 at 1. The

transmittal explains that for children in those two institutions

“Medicaid cannot pay and providers should not submit claims for

outpatient health care services provided to these children.” Id.

at 2. This is because “Federal Medicaid law and regulations

prohibit payment for medical services provided to a child or

youth when they are ‘inmates of a public institution.’” Id. at 1

(citing 42 C.F.R. § 435.1009).

     The Court is persuaded that L.R. has demonstrated that she

has alleged facts sufficient to show that she has suffered an

injury in fact. By its own terms, the transmittal only applies

to two facilities--the Youth Services Center and the New

Beginnings Development Center. Id. at 1. L.R. was not in either

facility when this suit was filed and therefore even if there

was a prohibition on Medicaid eligibility, that prohibition

would not cover L.R. See Pls.’ Opp’n, ECF 29 at 22; see also

Redacted Declaration of Jane Brown (“Brown Declaration”), ECF

No. 41 at 8–9. Additionally, L.R. was released from DYRS custody

in late October, and therefore there is presently no question as

to her eligibility for Medicaid. See id. at 7. Therefore, since

she is not receiving services that she has requested and that

she alleges defendants are obligated to provide, she has an

injury in fact. Defendants do not dispute the other two

                                 15
requirements for standing, redressability and causation, and it

appears to the Court that these components have been adequately

alleged. Accordingly, L.R. has standing to pursue her claims. 6

     B. Motion to Dismiss for Failure to State a Claim

     Defendants argue that the plaintiffs have failed to state

a claim for violations of the ADA, the Rehabilitation Act, and

failed to state a claim for a violation of 42 U.S.C. § 1983.

          1. ADA and Rehabilitation Act Claims

     The ADA and Section 504 of the Rehabilitation Act require

that “public entities and programs receiving federal funds take

reasonable steps to avoid administering their programs in a

manner that results in the segregation of individuals with

disabilities.” Brown v. District of Columbia, 322 F.R.D. 51, 53

(D.D.C. 2017)(overruled on other grounds by Brown v. District of

Columbia, 2019 WL 2895992 (D.C. Cir. July 5, 2019)).

Specifically, the ADA mandates that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be




6 Because the Court has found at least one of the plaintiffs has
standing in this case the Court has subject matter jurisdiction
over the action and need not address defendants’ arguments
related to Disability Rights D.C.’s standing. See Mendoza v.
Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014)(“To establish
jurisdiction, the court need only find one plaintiff who has
standing.”).
                                16
subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. This requirement is commonly referred to as the

“integration mandate” since it requires the government to ensure

those who suffer from a disability are not unnecessarily

excluded from society. See Olmstead v. L.C. ex rel. Zimring, 527

U.S. 581, 583 (1999)(stating “[i]nstitutional placement of

persons who can handle and benefit from community settings

perpetuates unwarranted assumptions that persons so isolated are

incapable or unworthy of participating in community life.”)

     In Olmstead, the Supreme Court elaborated on the

integration mandate. The Court considered the claims of two

women who were institutionalized in a residential mental health

facility even though treatment providers at the facility

concluded that the women could be appropriately treated in the

community. Id. at 593. The Olmstead plaintiffs claimed that in

light of the recommendation that they could be treated in the

community, their continued institutional placements violated

Title II of the ADA. Id. at 594. The Court held that

“[u]njustified isolation . . . is properly regarded as

discrimination based on disability.” Id. at 597. Although the

Court explained that it did not “hold that the ADA imposes on

the States a ‘standard of care’ for whatever medical services

they render, or that the ADA requires States to ‘provide a

certain level of benefits to individuals with disabilities,’” it

                               17
made clear that “States must adhere to the ADA's

nondiscrimination requirement with regard to the services they

in fact provide.” Id. at 603 n.14. The Court held that

governmental entities are required to provide community-based

services to individuals with disabilities when: (1) such

services are appropriate; (2) the individuals do not oppose

community-based services; and (3) the individuals’ placement in

a community-based setting can be reasonably accommodated,

considering the resources available to the entity and the needs

of others who are receiving those services. Id. at 607.

     Defendants advance two arguments for why plaintiffs have

failed to state a claim for an alleged violation of the ADA’s

integration mandate. Defendants’ first argument is that

plaintiffs generally failed to allege an Olmstead violation

because they have not challenged the location of the services,

but rather the nature of the services that the District

provides. Defs.’ Mot. ECF No. 21 at 24–25. In other words,

defendants argue, plaintiffs are challenging a standard of care

but not whether the care they are receiving is in the most

integrated setting. Id. Defendants’ second argument is that M.J.

and L.R. cannot meet all of the three requirements articulated

in Olmstead. Id. at 26

     Defendants’ first argument fails because it is based on a

fundamental misunderstanding of plaintiffs’ claims. Plaintiffs

                               18
have alleged that because defendants have failed to provide

required services in their homes, or in the community, they are

unnecessarily institutionalized. Compl., ECF No. 3 ¶ 48. And

because defendants have failed to provide those services,

plaintiffs argue, plaintiffs are unnecessarily segregated into

residential institutions. Id. Plaintiffs’ allegations are

sufficient to state claims under Olmstead. See 527 U.S. at 599.

Olmstead itself made clear that “unjustified institutional

isolation of persons with disabilities is a form of

discrimination.” Id. at 600. The Court explained that the

recognition of this principle reflects the understanding that

“institutional placement of persons who can handle and benefit

from community settings perpetuates unwarranted assumptions that

persons so isolated are incapable or unworthy of participating

in community life” and that “confinement in an institution

severely diminishes the everyday life activities of individuals,

including family relations, social contacts, work options,

economic independence, educational advancement, and cultural

enrichment.” Id. at 601–02.

     Plaintiffs have alleged these exact harms and others. They

allege that they suffer “curtailed life opportunities due to

[d]efendants’ continuing, longstanding failure to satisfy

federal laws requiring the District of Columbia to provide

medically necessary services that prevent unnecessary

                               19
institutionalization.” Compl., ECF No. 3 ¶ 2. Olmstead stands

for the proposition that it is a violation of the ADA, the

Rehabilitation Act, and their implementing regulations to

required disabled individuals to obtain treatment in residential

institutions when such individuals have the ability and desire

to receive treatment in more integrated community settings.

This is exactly what the plaintiffs allege--that the failure of

the State to provide required services forces them to reside in

institutions even though they are able and willing to engage in

community-based treatment. 527 U.S. at 599. At this stage of the

litigation, allegations that defendants failed to provide

mandated services, which has the effect of segregating

plaintiffs, are sufficient to state a claim of discrimination

under Olmstead.

     Defendants’ second argument is that the plaintiffs cannot

meet all the requirements set forth in Olmstead. Again, to make

out a claim under Olmstead, a plaintiff must allege that (1) the

services requested are appropriate; (2) the individuals do not

oppose community-based services; and (3) the individuals’

placement in a community-based setting can be reasonably

accommodated. Olmstead, 527 U.S. at 607. Defendants argue that

neither plaintiff can meet all of these requirements.

     Defendants argue that M.J. fails at the first prong because

she has failed to allege that during the times she was

                               20
institutionalized, community-based treatment would have been an

appropriate alternative. Defs.’ Mot. ECF No. 21 at 25–26.

However, it is not clear whether Olmstead requires that a

plaintiff allege a specific determination by a medical

professional that the plaintiff is suitable for community-based

treatment. In Olmstead, the Court stated that “the State

generally may rely on the reasonable assessments of its

professionals in determining whether an individual ‘meets the

essential eligibility requirements’ for habilitation in a

community-based program.” Olmstead, 527 U.S. at 602 (citing 28

CFR § 35.130(d))(emphasis added). The Court did not state that a

determination by a State’s own professionals is the only way

that a plaintiff may establish that the first prong is

satisfied. Accordingly, courts have held that a plaintiff need

not allege that a treatment provider has explicitly recommended

that community-based treatment is appropriate. See Stemiel v.

Wernert, 823 F.3d 902, 915–16 (7th Cir. 2016)(whether community

based treatment was appropriate could be demonstrated by

allegations that the state had previously allowed plaintiffs

more community interaction); Long v. Benson, No. 08–0026, 2008

WL 4571904, at *2 (N.D. Fla. 2008)(refusing to limit class to

individuals whom state professionals deemed could be treated in

the community, because a State “cannot deny the [integration]

right simply by refusing to acknowledge that the individual

                               21
could receive appropriate care in the community. Otherwise the

right would, or at least could, become wholly illusory.”).

     This is especially the case when a plaintiff alleges that

the state failed to provide required community-based treatment

programs. This is because a plaintiff would not have an occasion

to be assessed for programs that should, but do not, exist. At

this stage of the litigation, plaintiffs have alleged that they

are able to live in their homes and communities, if the District

provided the required treatment; these allegations are enough to

meet the pleading standards. At a later stage, plaintiffs will

be required to provide evidence to back up their claims that

community-based treatment was appropriate, but that requirement

will not be imposed on them at this stage of the proceedings.

See Boyd v. Steckel, 753 F. Supp. 2d 1163 (M.D. Ala.

2010)(stating dispute regarding whether plaintiff was eligible

for community based-services should be resolved “at summary

judgment or trial”)

     As for L.R., defendants argue she cannot meet the third

prong of the Olmstead test, whether an individuals’ placement in

a community-based setting can be reasonably accommodated,

because she is in custody pursuant to court order. However,

plaintiffs have alleged that compliance with federal law that

requires defendants to provide ICBS services would not require a

fundamental alteration to defendants’ service system, which is

                               22
all that is required at this stage. See Compl., ECF No. 3 ¶ 70;

see, e.g., Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio

2002)(“[W]hether requested relief would entail a fundamental

alteration is a question that cannot be answered in the context

of a motion to dismiss . . . .”); Doe v. Sylvester, No. CIV. A.

99-891, 2001 WL 1064810, *6 (D. Del. Sep. 11, 2001)(stating

“[u]ltimate factual determinations” regarding reasonableness of

requested modification are “not for the court to decide in the

context of a motion to dismiss”). Therefore, the Court finds

that plaintiffs have stated a claim under the ADA and the

Rehabilitation Act.

     2. Section 1983 Medicaid Act Claims

     Defendants next argue that plaintiffs fail to state a claim

under Section 1983 for violations of the Medicaid Act. 7 In

precedent of long-standing, the Supreme Court has held that

Section 1983 is an available remedy for violations of federal

statutes. Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). To

determine municipal liability under Section 1983, a court must

conduct a two-step inquiry. Baker v. Dist. of Columbia, 326 F.3d


7 Although plaintiffs’ complaint refers to violations of the
federal “Medicaid Act,” the Medicaid statutory provisions are
found in Title XIX of the Social Security Act, codified at 42
U.S.C. § 1396, et seq. Violations of Title XIX of the Social
Security Act are properly enforced through 42 U.S.C. § 1983
which provides a cause of action for violations of federal law.
See Salazar v. District of Columbia,954 F. Supp. 278 (D.D.C.
1996).
                                23
1302, 1306 (D.C. Cir. 2003). First, a court must determine

whether the plaintiff establishes a predicate constitutional or

statutory violation. Id. If so, a court then determines whether

the complaint alleges that a custom or policy of the

municipality caused the violation. Id.; see also Monell v. Dep't

of Soc. Servs., 436 U.S. 658, 694 (1978).

          i. Plaintiffs Have Sufficiently Alleged a Statutory
             Violation

     The Medicaid Act mandates that a state provide “early and

periodic screening, diagnostic, and treatment services (as

defined in subsection (r)) for individuals who are eligible

under the plan and are under the age of 21.” See also 42 U.S.C.

§ 1396a(a)(43)(C). Those services are defined as screening

services (including a physical exam, immunizations, health and

developmental health history review, and laboratory tests),

vision services, dental services, hearing services, and “[s]uch

other necessary health care, diagnostic services, treatment, and

other measures . . . to correct or ameliorate defects and

physical and mental illness and conditions discovered by

screening services, whether or not such services are covered

under the State plan.” 42 U.S.C. § 1396d(r)(5); see also 42

C.F.R. § 440.40(b). EPSDT requires the State to screen eligible

children “to determine the existence of certain physical or

mental illnesses or conditions,” 42 U.S.C. § 1396d(r)(1)(A)(ii);


                               24
and the Act requires the State “to correct or ameliorate defects

and physical and mental illnesses and conditions discovered by

the screening services, whether or not such services are covered

under the State plan.” 42 U.S.C. § 1396d(r)(5). Section 1396d(a)

describes a list of services which, if medically necessary, must

be provided to EPSDT beneficiaries.

      Plaintiffs allege that the failure to provide ICBS services

violates the EPSDT mandate. Compl., ECF No. 3 ¶ 72. They argue

that the District failed to make available the three critical

components of ICBS: (1) intensive care coordination; (2)

intensive behavioral support services; and (3) mobile crisis

services. Pls.’ Opp’n, ECF No. 29 at 33. Defendants argue that

plaintiffs have failed to allege a statutory violation. Although

defendants agree that the District is required to provide

certain services, they argue that plaintiffs have only

challenged how the services are administered and not that the

services have not been received. Defs.’ Mot., ECF No. 21 at 28–

29.

      Plaintiffs’ allegations are sufficient to survive a motion

to dismiss. The defendants’ argument that plaintiffs take issue

with the delivery method of the services, not whether the

services are offered, is belied by plaintiffs’ complaint.

Plaintiffs allege that ICBS is “medically necessary to improve

[plaintiffs’] mental health conditions.” Compl., ECF No. 3 ¶ 38.

                                25
Plaintiffs allege that “there is no service provider in the

District that offers ICBS.” Id. ¶ 41. Plaintiffs go on to

identify the three components of ICBS that they allege

defendants have failed to provide: intensive care coordination,

intensive behavior support services, and mobile crisis services.

Id. ¶ 39. Plaintiffs acknowledge that although the District

provides “community-based intervention,” this intervention does

not include sufficiently intensive behavior support services.

Id. ¶ 43. In light of these allegations, defendants’ claim that

plaintiffs are merely alleging the delivery methods of the

interventions--not whether the interventions exist at all--is

factually inaccurate.

     Defendants next argue that ICBS is not required by the

Medicaid Act because ICBS is not a required Medicaid service.

Defs.’ Reply, ECF No. 33 at 12. Defendants argue that plaintiffs

are instead required to specify exactly what treatments “they

believe the District is not providing” to have a cognizable

claim under the Medicaid Act. Id. However, as other courts have

noted, because the only limit placed on the provision of EPSDT

services is the requirement that they be “medically necessary,”

the scope of the EPSDT program is wide-ranging. Pediatric

Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d

472, 480 (8th Cir. 2002)(holding that Medicaid-eligible children

have “a federal right to early intervention day treatment when a

                               26
physician recommends such treatment”). Courts construing EPSDT

requirements have ruled that so long as a competent medical

provider finds specific care to be “medically necessary” to

improve or ameliorate a child's condition, the Medicaid statute

requires a participating state to cover it. See, e.g., Collins

v. Hamilton, 349 F.3d 371, 375–76 (7th Cir. 2003)(holding that

if a competent medical service provider determines a specific

type of care or service is medically necessary, a state may not

substitute a different service that it deems comparable).

     Plaintiffs have identified three areas of treatment they

allege are required and that the defendants have failed to

provide. Compl., ECF No. 3 ¶ 38. They have alleged that ICBS is

medically necessary to improve their treatment and to ensure

they are not unnecessarily institutionalized. Id. Plaintiffs

also explain why the services provided fall short of that goal.

Id. ¶¶ 41–43. Defendants’ argument that plaintiffs fail to

allege that instances of services have been declined or not been

provided, but rather debate the effectiveness of the services

misses the point. The plaintiffs do not address the

effectiveness of the services provided, but rather allege that

the District fails to provide appropriate treatment

opportunities in the three areas that comprise ICBS services.

Id. 38–43. These allegations, if true, would form the basis for

a statutory violation of the EPSDT mandate because such services

                               27
have been alleged to be medically necessary to ameliorate

plaintiffs’ mental health condition. See 42 U.S.C.

§ 1396d(r)(5). Accordingly, the plaintiffs have sufficiently

alleged a statutory violation.

          ii. Plaintiffs’ Have Sufficiently Alleged a Custom or
              Policy

     To properly plead a municipal liability claim, a plaintiff

must also “allege[] that a custom or policy of the municipality

caused the violation.” Baker, 326 F.3d at 1306 (citing Monell,

436 U.S. at 694). There are four ways in which a plaintiff can

allege a custom or policy under Section 1983: (1) “the explicit

setting of a policy by the government that violates the

Constitution”; (2) “the action of a policy maker within the

government”; (3) “the adoption through a knowing failure to act

by a policy maker of actions by his subordinates that are so

consistent that they have become custom”; or (4) “the failure of

the government to respond to a need (for example, training of

employees) in such a manner as to show deliberate indifference

to the risk that not addressing the need will result in

constitutional violations.” Ryan v. District of Columbia, 306 F.

Supp. 3d 334, 341 (D.D.C. 2018)(citation omitted).

     Plaintiffs have alleged several theories supporting the

claim that defendants have engaged in a custom or policy or

violating the EPSDT requirements, including that defendants


                                 28
knowingly and consistently failed to provide services under the

Medicaid Act and that defendants were deliberately indifferent

to plaintiffs’ rights under the Medicaid Act. See Pls.’ Opp’n

ECF No. 29 at 35; see also Compl., ECF No. 3 ¶ 73.

     Applying the Baker analysis, the Court concludes that

plaintiffs’ allegations state a claim that the District

knowingly and consistently failed to provide services under the

Medicaid Act. The complaint alleges consistent failure to

provide ICBS, and it identifies numerous occasions on which

defendants were notified of deficiencies in their service system

for the plaintiff children through the efforts of families and

advocacy groups, defendants’ own data, and defendants’

discussions with plaintiffs’ counsel. See Compl., ECF No. 3, ¶¶

7-8, 44–48.

     Furthermore, plaintiffs have sufficiently alleged that the

District demonstrated “deliberate indifference” to their rights

under the Medicaid Act. In support of this allegation,

plaintiffs cite to numerous public reports throughout the

complaint demonstrating that defendants were aware of the need

for comprehensive community-based care, and the inadequacy of

the services the District currently offers. See id. ¶¶ 23, 39,

41, 43, 45-56. These reports support the allegations that

defendants either were aware of or should have been aware of the

lack of the necessary mental health services in the District.

                               29
See, e.g., Jones v. Ritter, 587 F. Supp. 2d 152, 157-58 (D.D.C.

2008)(denying motion to dismiss Section 1983 claim where

plaintiff alleged the District was deliberately indifferent in

failing to train police officers when it was on notice of its

training deficiencies and failed to act); see also Byrd v. Dist.

of Columbia, 297 F. Supp. 2d 136, 139 (D.D.C. 2003)(stating

deliberate indifference is “determined objectively, by analyzing

whether the municipality knew or should have known of the risk

of . . . violations, and yet failed to respond as necessary.”)

(citations omitted)   Accordingly, plaintiffs have sufficiently

alleged a Section 1983 claim that survives defendants' motion to

dismiss.

     C. Motion to Dismiss Individual Defendants

     The individual defendants, the Mayor of the District, the

Director of DBH, and the Director of DHCF, argue that the claims

against them should be dismissed because they are sued in their

official capacities and it is the District that is the real

party in interest. Defs.’ Mot., ECF No. 21 at 31–32. Defendants

are correct, and plaintiffs do not disagree, that plaintiffs'

claims against the individual defendants are duplicative of the

claims against the District. See Holmes–Ramsey v. District of

Columbia, 747 F. Supp. 2d 32, 42 (D.D.C. 2010)(“claims against

[District] officials in their official capacities are

effectively claims against the District of Columbia”); see also

                                30
Monell, 436 U.S. at 690 n. 55 (a suit against a municipal

official in his or her official capacity “generally represent[s]

only another way of pleading an action against an entity of

which an officer is an agent”).

     However, plaintiffs argue that the individual defendants

will be responsible for the effective implementation of any

prospective declaratory or injunctive relief. Pls.’ Opp’n, ECF

No. 29 at 41. Precedent in this district recognizes that

although retaining a defendant in his or her official capacity

may be “redundant, there is no requirement that, because of the

equivalence, the public official defendant must be dismissed.”

See e.g., Owens v. District of Columbia, 631 F. Supp. 2d 48

(D.D.C. 2009). On balance, the Court is persuaded that because

of the lack of prejudice, there is no reason to dismiss the

redundant claims against the District's officials. Accordingly,

the Court DENIES the motion to dismiss the individual defendants

at this time.

IV. Conclusion

     For the foregoing reasons, defendants’ motion to dismiss is

DENIED. An appropriate order accompanies this Memorandum

Opinion.

     SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           July 25, 2019

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