                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



OSCAR SALAZAR, et al.,

               Plaintiffs,

        v.                                       Civil Action No. 93-452        (GK)

DISTRICT OF COLUMBIA, et al.,

               Defendants.



                                   MEMORANDUM OPINION

        On September 2,        2014,      Plaintiffs filed a Motion to Reverse

the Ruling in the Fair Hearing of Class Member Stevenson Denying

Reimbursement of Personal Care Aide Services [Dkt. No. 2007]; the

District       of   Columbia        ("the    District,"    "the   Government"          or

"Defendant")        filed    its    Opposition     on   October   20,    2014     [Dkt.

No. 2019]; and Plaintiffs filed their Reply on November 14, 2014

[Dkt.    No.   2023]     Plaintiffs seek reversal of a             decision       ( "OAH

Opinion") by an Administrative Law Judge ("ALJ") of the District

of Columbia Office of Administrative Hearings ("OAH") granting in

part    and    denying       in    part     Magnolia    Stevenson's     request     for

reimbursement of certain medical expenses. Final Order on Cross-

Motions for Summary Adjudication ( "OAH Opinion"), Pls.' Ex. A [Dkt.

No. 2007-1]. For the reasons that follow, Plaintiffs' Motion shall

be denied.
I.      BACKGROUND

        A.     Historical Background

                1.    The Salazar Class

        On    March      3,     1993,    Plaintiffs     filed    their   class-action

Complaint       [Dkt. No. 1] on behalf of several named plaintiffs and

other        similarly        situated    individuals    alleging    violations   of

federal law in the course of the District's administration of its

Medicaid program. On June 18, 1993, Plaintiffs filed their Amended

Complaint [Dkt. No. 27].

     Over the long life of this case,                    the Plaintiff class has

always been described as a collection of several sub-classes, with

each sub-class consisting of Medicaid applicants and recipients

with a particular set of claims.                   Plaintiff's Amended Complaint;

Amended Memorandum-Order of October 6, 1994                     [Dkt. No. 92]; Order

of November 3, 1994 [Dkt. No. 100]. Plaintiffs' Amended Complaint

stated that "Plaintiffs' class consists of:

     All persons who, now or in the future will reside in the
     District of Columbia who have applied for or who have
     attempted to apply for Medicaid and who have experienced one
     or more of the following conditions: (a) a delay in excess of
     45 days in processing their initial Medicaid application or
     application to recertify Medicaid coverage; (b) as newborns
     of mothers eligible for Medicaid at the time of their birth,
     the lack of immediate Medicaid coverage using their mothers'
     Medicaid number; (c) the inability to apply for Medicaid at
     disproportionate share hospitals and federally-qualified
     health centers; (d) the inability to submit their completed
     Medicaid applications to the District of Columbia Department
     of Human Services; (e) after being found eligible, the lack
     of advance notice of the discontinuance, suspension or

                                           - 2 -
      obligation to recertify their Medicaid benefits; (f) after
      being found eligible, the lack of effective notice of the
      availability of early and periodic screening, diagnostic and
      treatment services for children under 21 years of age; (g)
      after being found eligible, the lack of EPSDT services for
      children under 21 years of age.
Amended Complaint at       ~   76.
      In the Amended Memorandum-Order of October 6,                 1994,   which

granted     Plaintiff's    Motion    for   Class   Certification,    the    Court

noted that "for analytical clarity the class should be certified

as   five    separate   sub-classes    rather than as     one   comprehensive

class [.]   "1   Amended Memorandum-Order at 6. All class members must

fit into one or more of the five sub-classes, which "correspond to

the causes of action in Plaintiffs' Complaint." Id. at 6 n.2.

      On November 1, 1994, the Parties filed a Joint Motion to Amend

the Class Definition [Dkt. No. 98]. On November 3, 1994, the Court

issued an Order [Dkt. No. 100] granting the Parties' Joint Motion.

This Order did not substantively alter the types of claims that

would suffice for inclusion in the Plaintiff class. Rather,                   the

Order served to clarify the previous definition and to reemphasize

the relationship between individuals' claims and class membership.

The Order defined the class as follows:

      All persons who have applied, have attempted to apply, or
      will apply in the future during the pendency of this


1 Plaintiffs' Amended Complaint presented seven causes of action,
but the third cause of action was dismissed and the sixth and
seventh were consolidated for the purposes of the sub-class
definitions. Amended Memorandum-Order at 6-7. Thus, five sub-
classes resulted. Id.
                                      - 3 -
     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 the alleged lack of immediate Medicaid coverage
     for newborns using the Medicaid number of their mothers, who
     are eligible for Medicaid at the time of the babies' birth
     [Sub-Class I]

     Any claims for declaratory, injunctive, or other relief
     premised on an alleged inability to apply for Medicaid at
     disproportionate share hospitals and federally-qualified
     health centers [Sub-class II] 2

     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 [Sub-class 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] .

Id. at 1-2. Thus, in order to be a member of the Plaintiff class

an individual must meet the criteria of the preamble paragraph

above (i.e., be a present, past, or future, Medicaid applicant or

recipient)   and have claims that fall into one of the five sub-

class categories.




2 Claims involving the first two sub-classes were resolved before
trial.
                              - 4   -
               2.      Injunctive Relief

         After years of litigation and some successful negotiation by

the Parties,         on October 16,       1996,    this Court issued an Opinion

setting forth extensive findings of fact and conclusions of law.

See Salazar v. Dist. of Columbia, 954 F. Supp. 278 (D.D.C. 1996).

"In particular,         the Court     ruled that Defendants had failed to

process Medicaid applications for non-disabled,                    non-foster care

[non-public assistance] applicants within 45 days, had terminated

or suspended eligible persons' benefits without adequate notice,

had failed to provide EPSDT services to eligible families, and had

failed to notify those eligible families about the availability of

such services." Memorandum Opinion of December 28, 1998 at 2 [Dkt.

No. 653]      (summarizing findings detailed in Salazar, 954 F. Supp.

278) .

         Of   particular      relevance    here,     the   Court   found   that   the

District's          failure    "to   process       large   numbers    of   Medicaid

applications within 45 days of receipt" and inaccurate eligibility

determinations caused many Medicaid applicants and beneficiaries

to incur out-of-pocket costs for services that should have been

covered by Medicaid. Salazar, 954 F. Supp. at 289-302. The Court

also found that the District maintained an "unofficial, unwritten

practice" of reimbursing Medicaid beneficiaries by "advising the

participating provider [e.g., hospital, doctor,                    or other medical

service provider] to reimburse the recipient for any out-of-pocket

                                          - 5 -
medical expenditures and thereafter to submit a routine claim for

the same expenditures to                    [the District] . " Id. at 323.             "Medicaid

recipients [were] not notified about the unofficial policy[.]" Id.

        In    order         to    redress       the   harm    caused      by   the   District's

practices, on September 15, 1997, the Court issued a Reimbursement

Procedures Order that established "reimbursement procedures for

class     members           who    incurred      out-of-pocket           expenses    because    of

untimely          or     inaccurate            eligibility         determinations      made     by

Defendants." Reimbursement Procedures Order of Sept. 15, 1997 at 1

[Dkt. No. 550). The Order incorporated a document titled "Summary

Notice       of    Reimbursement           Procedures        for    Class   Members'     Out-of-

Pocket Expenses [,]" which contained the detailed procedures for

obtaining reimbursement of out-of-pocket expenses. Id. Att. A.

        Pursuant         to       the    Reimbursement        Procedures,       "[a]ll       class

members have the right to be repaid any money they spent from March

2, 1990, to the present, on drug prescriptions, doctor visits, or

hospitalizations at a                   ~~me    that they were eligible for Medicaid

and the three (3) months prior to their Medicaid application." Id.

Att. A at 2. In order to begin the reimbursement process, "[c]lass

members      are       to    submit       the    'Medicaid     Reimbursement         Form'    with

supporting documents to"                   the District.           Id.   The Procedures give

class members notice of their "right to a fair hearing"                                  in the

event they are unsatisfied with the District's resolution of their

claims.      Id.       at 3.      Finally,       the Procedures state that             if class

                                                  - 6 -
members are "not satisfied with the result of the fair hearing,

    [they] will have 30 days to appeal to the United States District

.Court for the District of Columbia." Id.

                  3.    Other Relevant Medicaid Reimbursement Procedures

        Federal regulations provide Medicaid beneficiaries with the

right to a hearing when they believe a state Medicaid "agency has

taken        an   action     erroneously."        42   C.F.R.    §   431.220. 3   If   the

beneficiary prevails at the hearing,                   "[t]he agency must promptly

make corrective payments,                 retroactive to the date an incorrect

action was taken[.]" Id.              §   431.246. In addition, the District of

Columbia Code provides individuals dissatisfied with the outcome

of a hearing before the D. C.                   Off ice of Administrative Hearings

with    a     right    of    appeal   to    the District        of   Columbia Court     of

Appeals. D.C.C.          §   2-1831.16.

        B.        Factual Background4

        Magnolia Stevenson is 96 years old and suffers from late-

stage Alzheimer's disease. Pls.'s Ex.                   Eat~     2 [Dkt. No. 2007-5].

The Parties agree that at all times relevant to Plaintiffs' Motion,

she     was       an   enrolled    beneficiary         of   Medicaid's     Elderly     and


3The District o.f Columbia is defined as a state for purposes of
Medicaid. 42 U.S.C. § 130l(a).

4 Unless otherwise noted, the facts that follow are drawn (often
quoting verbatim) from the "Undisputed Facts" set forth in the
Office of Administrative Hearings' Final Order on Cross-Motions
for Summary Adjudication ( "OAH Opinion") . Pl. 's Ex. A [Dkt. No.
2007-1] .
                                            -    7 -
Physically Disabled        ( "EPD")    Waiver program.         OAH Opinion at       7;

Gov't's Opp'n at 4; Pls.' Mot. at l; Pls.' Ex. Cat 6 [Dkt. No.

2007-3] .   Under   the    EPD   Waiver       program,    Magnolia     Stevenson    is

eligible    to   receive   eight      hours    of   personal    care    aid   ( "PCA")

services per day, seven days per week.

        In August of 2013, ASAP Services became Magnolia Stevenson's

PCA service provider.        Patience Breckenridge,            an ASAP employee,

became her assigned aide.

        In October or November of 2013,             Ms.   Breckenridge informed

Magnolia Stevenson and her daughter, Deborah Stevenson, that ASAP

Services had issued Ms. Breckenridge bad checks and had otherwise

failed to pay her regularly. Admirably, Ms. Breckenridge continued

to provide services to Magnolia Stevenson despite these problems.

        On December 13,    2013, Ms. Breckenridge told someone in the

Stevenson family that she was quitting her job with ASAP Services

because of the company's continuing failure to pay her and that

she would no longer be providing services to Magnolia Stevenson.

        Beginning on December 14, 2013, Magnolia Stevenson's family

repeatedly contacted ASAP Services in an effort to restore PCA

services for her. Having heard no response from ASAP, on December

17, 2013, Deborah Stevenson called Social Services Representative

Melvin Gains at the District's Department of Healthcare Finance

( "DHCF") . She left Mr. Gains a message, but he too never called

back.

                                       - 8 -
        Determined to help her mother, on December 18, 2013, Deborah

Stevenson     found     the   contact    information     for   Maude    Holt,     the

District's Health Care Ombudsman. From December 18 to 23,                       2013,

she called the offices of Ms. Holt, DHCF, and ASPA Services, but

could not reach anyone who would help her.

        On December 2 3,      2013,   Deborah Stevenson spoke with Mirka

Shephard,    an    Associate     Health    Care    Ombudsman    with    DHCF.     Ms.

Shephard coordinated a conference call with Deborah Stevenson and

Erica    Battle,    a   representative      of    ASAP   Services.     Ms.   Battle

acknowledged that        since December 14,        2013,   ASAP had failed to

provide Magnolia Stevenson with the PCA services to which she was

entitled.

        On December 24, 2014, Magnolia Stevenson's counsel requested

a fair hearing from OAH to address ASAP's failure to provide PCA

services as well as other issues that have since been resolved.

     While Deborah Stevenson was working to restore her mother's

Medicaid services, she made sure that her mother did not go without

the care she needed in the interim. From December 17, 2013 through

January 25, 2014, she paid Ms. Breckenridge directly to care for

Magnolia Stevenson. 5 Although Magnolia Stevenson continued to be


5 As with many other facts in this case, the record below is far
from clear as to whose money was used. Several payments to
Ms. Breckenridge were made in cash while others were made by check
from an account bearing Deborah Stevenson's name. Pls.' Ex. Cat
15-86   [Dkt.  No.  2007-3].   However,  all   submitted Medicaid
Reimbursement Request Forms list Magnolia Stevenson as the
                                        - 9 -
enrolled in the EPD Waiver program, ASAP Services did not provide

her with a PCA aide during this period. Nor did DHCF assist her in

obtaining PCA services during this period.

       On January 15,     2015, Health Care Ombudsman Maude Holt told

Magnolia Stevenson's       counsel    in an e-mail          that   "Ms.    Stevenson

should be able to get reimbursed for the monies the [sic] has paid

out of pocket for her expenses." Pls. Ex. Cat 53.

      On    or   about   January   25,      2014,    ASAP     Services'     Staffing

Coordinator,      Lisa   Nelson,     told    Deborah     Stevenson        that   ASAP

Services could provide another PCA aide to her mother.                       Deborah

Stevenson declined this offer on her mother's behalf because ASAP

Services had been found grossly deficient in serving its patients

by the D.C. Government.

      On January 29, 2014, Deborah Stevenson submitted a Medicaid

claim form to DHCF, seeking reimbursement of $1,620 for PCA service

payments made to Ms. Breckenridge between December 17, 2013 and

January 25, 2014. The claim form listed Magnolia Stevenson as the

"Medicaid Recipient Requesting Reimbursement." Pls.' Ex. Cat 32.

      Ms.   Breckenridge     continued       to     provide    PCA   services      to

Magnolia Stevenson until April 25, 2014. See Pls.' Ex.Fat 7 [Dkt.

No.   2007-6]. Between December 2013 and April 2014,                 her daughter



"Medicaid Recipient Requesting Reimbursement." Id. There is
nothing in the Record to suggest that DHCF, OAR, or any other
component of the District ever asked for clarification as to the
financial relationship between Magnolia and Deborah Stevenson.
                                     - 10 -
submitted approximately 14 claims to DHCF for reimbursement of

$5,040 of payments to Ms. Breckenridge (the initial $1,620 claim

plus additional claims totaling $3,420). See Pls.' Ex. Cat 32-

112.

       On April 15, 2014, an ALJ with OAH held a status conference

regarding the reimbursement claims, none of which had been paid by

DHCF. After the hearing, the District and Magnolia Stevenson filed

cross-Motions for Summary Adjudication. 6

       On June 6, 2014, the ALJ granted in part and denied in part

the Parties' cross-Motions, holding that the District was required

to     pay    the    claim    for     $1,620    to   reimburse   payments     for

Ms. Breckenridge's services up to January 25, 2013. However, the

ALJ ruled that ASAP's January 25th offer to provide another PCA

aide    to    Magnolia     Stevenson    terminated     any   right   to   further

reimbursement. Accordingly, the ALJ denied all post-January 25th

reimbursement claims, which totaled $3,420.

       On June 18, 2014, Magnolia Stevenson sought reconsideration

of the ALJ's decision,          arguing that the refusal to accept a new

PCA from ASAP Services was justified because the company had been

found to be "grossly deficient in serving its patients." Pls.' Ex.

B at 2       [Dkt.   No.   2007-2].   The ALJ denied Magnolia Stevenson's

Motion for Reconsideration and advised her that she could file an


6 OAH's "summary adjudication" procedure is analogous to summary
judgment procedures covered by Fed. R. Civ. P. 56.
                                       - 11 -
appeal with the District of Columbia Court of Appeals. Id. at 5-

6.

        Magnolia      Stevenson     declined     to    file   an   appeal   with    the

District of Columbia Court of Appeals.                  Instead,     on September 2,

2014,    Plaintiffs filed a Motion with this Court to Reverse the

Ruling       in the    Fair Hearing of      Class Member           Stevenson Denying

Reimbursement of Personal Care Aide Services. On October 20, 2014,

the   District        filed   its   Opposition,       and on November       14,   2014,

Plaintiffs filed their Reply.

III. LEGAL ANALYSIS

        Plaintiffs ask this Court to reverse OAH's determination that

Magnolia Stevenson is entitled to only partial reimbursement for

PCA expenses incurred between December 2013 and April 2014. The

District argues that Magnolia Stevenson should have brought her

appeal before the District of Columbia Court of Appeals instead of

this Court.      In the alternative,        the District contends that this

Court should uphold the merits of the OAH Opinion.

        A.    Magnolia Stevenson Has Standing to Pursue Her Claims.

        The District contends that Magnolia Stevenson lacks standing

before this Court because she did not suffer an injury that would

be redressed by the relief sought. "The Supreme Court has explained

that 'the irreducible constitutional minimum of standing contains

three elements.'" Teton Historic Aviation Found. v. U.S. Dep't of




                                        - 12 -
Def., No. 13-5039, 2015 WL 2145859, at *3 (D.C. Cir. May 8, 2015)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

      First, a plaintiff must show injury in fact, or an invasion
      of a legally protected interest which is (a) concrete and
      particularized; and (b) actual or imminent, not conjectural
      or hypothetical. Second, the plaintiff's injury must be
      fairly traceable to the challenged action of the defendant.
      Third,      . the plaintiff must demonstrate redressability,
      or a substantial likelihood that the requested relief will
      remedy the alleged injury in fact.

Id.   (internal       citations      and quotation marks           omitted).   Because

Constitutional standing is a bedrock jurisdictional requirement,

the Court must assure             itself that       Plaintiffs have standing to

pursue their claims. Florida Audubon Soc. v. Bentsen, 94 F.3d 658,

663 (D.C. Cir. 1996).

      The    District       argues    that   Magnolia      Stevenson       suffered   no

injury      because    her     daughter,     Deborah,      arranged     for    private

provision of the necessary care services. In the District's view,

if anyone was injured, it was Deborah, not Magnolia Stevenson.

      The District goes on to argue that even if Magnolia Stevenson

was injured,      her injury would not be redressed by the grant of

Plaintiffs' Motion because it believes repayment would accrue to

her daughter Deborah, not to her.

      Plaintiffs have put            forth credible evidence that Magnolia

Stevenson,     who     is    96   years    old     and   suffers    from    late-stage

Alzheimer's disease, is incapable of managing her own affairs. See

Pls.'s Ex. Eat         ~    2. Her daughter and other children look after


                                          - 13 -
their mother and ensure that she has the care she needs. This Court

has previously recognized that individuals often pay the medical

expenses of dependent family members,                         and that reimbursement is

warranted to redress the injury caused by out-of-pocket expenses

that should have been paid by Medicaid.                            See e.g., Reimbursement

Procedures Order of Sept.                15,       1997, Att. A at 2                [Dkt. No.   550]

("If you spent money for drugs, doctor visits, or hospitalizations

for    a     family     member       (such    as    a     child)    who       was    eligible     for

Medicaid, you are also entitled to be repaid that money.").

       Moreover,        Magnolia Stevenson did suffer an injury:                           she was

entitled to receive personal care services from Medicaid and did

not receive them.            See CC Distribs.,              Inc.    v.    United States,          883

F.2d       146,     150     (D. C.     Cir.        1989)     ("a    plaintiff           suffers     a

constitutionally cognizable injury by the loss of an opportunity

to pursue a benefit") . The fact that her family stepped in' to avoid

catastrophe does not absolve the District of its obligation to

provide the personal care services to which Magnolia Stevenson was

entitled. The District's position leads to the conclusion that a

tort victim whose family paid his medical bills would lack standing

to     sue        the     tortfeasor         to     recoup        his     medical        expenses.

Constitutional standing is simply not so limited.

       Furthermore,          the     injury        caused    by    Medicaid's          failure     to

provide services would be redressed by a cash payment equal to the

cost       of     equivalent       services.        Regardless           of    whether     Deborah

                                              -    14 -
Stevenson used her own funds to cover the cost of her mother's

care, Magnolia Stevenson has invoked her own right under 42 C.F.R.

§    431. 246 7 to "prompt[]              corrective payments, retroactive to

the date an incorrect action was taken" as compensation for the

District's failure to provide PCA services.

        In short, Magnolia Stevenson has identified a benefit that

she was wrongfully denied and has requested the cash equivalent of

that benefit as compensation.                 That is sufficient to demonstrate

that     her asserted         injury would be          redressed by the            requested

relief. Accordingly, Magnolia Stevenson has standing under Article

III.

        B.        Magnolia   Stevenson    Is     Not   a   Member    of    the     Plaintiff
                  Class.

        The District argues that Magnolia Stevenson is not a member

of     the    Salazar      Plaintiff    class.     Plaintiffs       assert,      but      never

specifically argue, that she is a member of the Plaintiff class.

See Pl.'s Mot. at 1 (the word "class" appears only in the heading,

and nowhere in the body,               of Plaintiffs'       brief);       see also Pl.'s

Reply        at   10-11.     Rather    than     address    the   question          of     class

membership,          Plaintiffs       contend     that     "regardless        of        whether

Magnolia Stevenson should be considered a member of the [P]laintiff




7On each and every Medicaid Reimbursement Form submitted to the
District, Magnolia Stevenson is listed as the "Medicaid Recipient
Requesting Reimbursement." Pls.' Ex. C at 15-86 [Dkt. No. 2007-
3] .

                                          - 15 -
class or not,     she is entitled to the relief that she is seeking

here[.]" Pls.' Reply at 11.

       As described above, the Salazar class is made up of Medicaid

applicants and recipients who fall into one or more of the three

remaining sub-classes. Supra at 2-4. Each sub-class "correspond[s]

to    [a]   cause[]    of    action    in    Plaintiffs'       Complaint."     Amended

Memorandum-Order of          October    6,   1994    at   6;    see    also   Order of

November 3, 1994; Plaintiff's Amended Complaint. Plaintiffs fail

to identify which,          if any,    of the sub-classes include Magnolia

Stevenson.

       For the following reasons, the Court concludes that Magnolia

Stevenson does not meet the criteria for any of the three remaining

sub-classes. Even if counsel had not resolved Sub-classes I and

II, Magnolia Stevenson does not present claims relating to services

for    newborns       or    an   inability      to    apply      for    Medicaid    at

disproportionate share hospitals. Thus, Sub-classes I and II are

clearly inapplicable. Magnolia Stevenson does not complain of any

delay in excess of 45 days              in the processing of her Medicaid

application. Accordingly,          she is not included in Sub-class III.

While Sub-class IV applies to Medicaid recipients whose Medicaid

eligibility was terminated without advance notice,                       the Parties

agree that at all times relevant to Magnolia Stevenson's claims,




                                       - 16 -
she remained a beneficiary of the District's EPD Waiver program. 8

Therefore,    she   cannot    be    a   member   of    Sub-class   IV.   Finally,

Magnolia Stevenson does not seek EPSDT services,                   for which she

would not be eligible,         so she is not a member of Sub-class V.

Because Magnolia Stevenson is not a member of one or more of the

Salazar sub-classes, she cannot be a member of the Plaintiff class.

     C.      The 1997 Reimbursement Procedures Order Provisions
             Permitting Direct Appeal to This Court Do Not Apply to
             Magnolia Stevenson's Claims.

     Having concluded that Magnolia Stevenson is not a member of

the Plaintiff class, the Court must determine whether the remedial

provisions permitting direct appeal              to this Court nevertheless

apply to her claims. Over the course of many years, this Court's

orders       with the   exception of one9                have   required     class

membership with respect to the scope of injunctive relief.                     See

Amended Memorandum-Order of October 6,                1994   (certifying class);

Order of November 3,         1994   (amending class definition);           Amended

Remedial Order of May 9, 1997 at 24 [Dkt. No. 493]               ("Reimbursement




8 As the ALJ put it, "[t]he following facts are not in dispute: At
all times relevant to this case, Ms. Stevenson has received
Medicaid services under the Elderly and Physically Disabled (EPD)
Waiver program. She has been found eligible to receive eight hours
of PCA services per day, seven days per week." OAH Opinion at 7.
Magnolia Stevenson did not challenge this statement in her Motion
for Partial Reconsideration before the ALJ. See Pls.' Ex E.

9
 See Order on Reimbursement Procedures of July 30, 1998 at 1
[Dkt. No. 617] (ordering publication of certain notice documents
to "all current and future Medicaid recipients").
                                        - 17 -
of class members shall be made when the class member presents

reasonable and reliable documentation or other evidence of their

out-of-pocket expenses."); Reimbursement Procedures Order of Sept.

15,       1997 at 1    ("reimbursement procedures for class members who

incurred out-of-pocket expenses"); Remedial Order January 25, 1999

at    ~   62 [Dkt. No. 663]       (repeating language of May 9, 1997 Order).

          Plaintiffs    nonetheless           rely      on    the      Court's    Reimbursement

Procedures       Order       of   Sept.           15,     1997        to   establish     Magnolia

Stevenson's right to appeal to this Court for relief from OAH's

Order. They contend that even if Magnolia Stevenson is not a member

of the Salazar class, she may still benefit from the injunctive

relief available under the Reimbursement Procedures Order.

          Plaintiffs argue that "[t]he plain terms of this Court's 1997

Reimbursement Procedures Order and subsequent orders make clear

that relief is available to family members to seek reimbursement

for out-of-pocket expenditures for medical services that should

have been covered by DC Medicaid."                           Pls ~'    Reply at 4.       In other

words,      Plaintiffs contend that the Reimbursement Procedures are

available to all Medicaid beneficiaries with unreimbursed out-of-

pocket costs.

          However,     the    Reimbursement               Procedures        Order      cannot   be

stretched       that     far.     By        its     own      terms,        the   Order    created

"reimbursement procedures for class members who incurred out-of-

pocket      expenses     because       of    untimely or              inaccurate    eligibility

                                              - 18 -
determinations made by Defendants." Reimbursement Procedures Order

at 1 (emphasis added). The Order's notice provision lists several

situations to which the Procedures would apply:

       This means that you are entitled to repayment (1) if you spent
       money    on   drug    prescriptions,    doctor   visits,    or
       hospitalizations while you were waiting for a decision on
       your Medicaid application . . . (2) in the three months prior
       to your application for Medicaid (if you were later found
       eligible), (3) if you were improperly cut-off from Medicaid
       at recertification and had to spend your own money on drug
       prescriptions, doctor visits, or hospitalizations or (4) if
       the pharmacy, clinic, doctor's office or hospital said that
       you were not on Medicaid when you actually were and you had
       to spend money . .

Reimbursement Procedures Order, Att. A at 2 (emphasis added).

       These examples demonstrate that the Reimbursement Procedures

were    crafted   to   benefit      individuals     who   paid   out-of-pocket

expenses because of eligibility determination and recertification

issues which defined the class. That was not the case with Magnolia

Stevenson because her out-of-pocket expenses arose from a provider

error that was wholly unrelated to her Medicaid eligibility.

       Furthermore,    the     Reimbursement      Procedures     Order    itself

indicates that it      is meant to benefit only class members.               The

Order's Attachment A, upon which Plaintiffs rely heavily, is titled

"Summary Notice of Reimbursement            Procedures    for Class Members'

Out-of-Pocket Expenses." Id.         (emphasis added). At several points,

the    Order refers    to    the   rights   and   responsibilities   of    class

members. Id. at 2 ("All class members have the right to be repaid

any money they spent .             at a time that they were eligible for

                                     - 19 -
Medicaid");           Id.     ("Class       members       are    to     submit    [particular

reimbursement forms]")

        Attempting           to      expand       the      Reimbursement          Procedures'

application, Plaintiffs cite language in this Court's Orders that,

in their view,              demonstrates        that     the    Reimbursement      Procedures

apply "to all current and future Medicaid recipients." Pls.' Reply

at 11        (quoting Remedial           Order~     62    [Dkt. No.      663]).   It is true

that many of this Court's orders appear to use the terms "class

members"        and     "all      Medicaid       recipients"          interchangeably.     For

example,       the passage that Plaintiffs quote, paragraph 62 of the

Court's January 25, 1999 Remedial Order, states

        Defendants shall provide corrective payments to Medicaid
        recipients who have incurred out-of-pocket medical expenses
        that should have been paid by Medicaid to all current and
        future Medicaid recipients and all those who were Medicaid
        recipients or were eligible for Medicaid at any time since
        March 2, 1990. Reimbursement of class members shall be made
        when the class member presents reasonable and reliable
        documents or other evidence of their out-of-pocket expenses.

[Dkt.    No.    663]        (emphasis added) . While the language could have

been more precise,                reference to the class def ini ti on,              however,

dispels any confusion that this Court's writing may have caused.

        As    discussed above,            the    Salazar class          is made up of all

Medicaid       applicants          and   recipients        who    fit    within    the   three

remaining claims identified in Plaintiff's Amended Complaint. Each

remaining claim corresponds to a sub-class defined in this Court's

Order of November 3,                1994.     Thus,      when Medicaid applicants and


                                                - 20 -
•


    recipients have those claims set forth in the November 9,                        1994,

    Order, they are included as class members.

         The Reimbursement Procedures apply to all Medicaid applicants

    and recipients to the extent that they have claims for out-of-

    pocket     expenses    because of    untimely or        inaccurate    eligibility

    determinations made by Defendants. Those claims correspond to the

    definitions     of    Sub-classes    III    and   IV.   That   is    to   say,     the

    Reimbursement        Procedures   apply    to   all   Medicaid applicants          and

    recipients to the extent that they are class members. 10

         The provisions of this Court's orders relating to payment of

    Plaintiffs'    counsel's fees for representing Medicaid recipients

    also demonstrate that appeal to this Court is limited to class

    members.    The Settlement Order entered by this Court authorizes

    Plaintiffs'    counsel to litigate at the District's expense only




    10Plaintiffs contend that this Court's 1998 Order on Reimbursement
    Procedures     "modified the scope of the 1997 Reimbursement
    Procedures Order to apply 'to all current and future Medicaid
    recipients."' Pl.'s Reply at p. 5 (citing [Dkt. No. 617]). That
    Order extended the deadline for submission of reimbursement claims
    and added certain notice requirements. Nowhere does the Order,
    which was entered with the District's consent, purport to expand
    the type of claims to which the Reimbursement Procedures apply in
    order to include non-class members. Indeed, it would be surprising
    for such an expansion to have gone unopposed by the District.
    Finally, this Court's Remedial Order of January 25, 1999 -- issued
    after the 1998 Order        reemphasizes the importance of class
    membership with respect to the scope of the Reimbursement
    Procedures. Remedial Order at ~ 62 ("Reimbursement of class members
    shall be made when the class member presents reasonable and
    reliable documentation or other evidence of their out-of-pocket
    expenses. ") .
                                         - 21 -
class members'    appeals from OAH fair hearings at the District's

expense. The Court's Remedial Order of January 25, 1999 describes

the following process:

     Plaintiffs' counsel may respond to all calls which come to
     their off ice and make reasonable inquiry to determine whether
     the caller is a member of the plaintiff class. If the caller
     is a member of the plaintiff class, Plaintiffs' counsel may
     provide the caller with legal assistance. The reasonable time
     and expenses of Plaintiffs' counsel in making such inquiry
     and providing such assistance shall be deemed compensable
     monitoring of this Order

Remedial Order at 40-41 [Dkt. No. 663]   (emphasis added) . 11

     The Reimbursement Procedures Order states that Plaintiffs'

counsel may provide free legal assistance to individuals seeking

to appeal the result of a fair hearing to this Court. Reimbursement

Procedures Order At t. A at 3 ("You may obtain free legal assistance

to help you present your claim at the fair hearing or during the

appeal by contacting Terris,   Pravlik & Wagner .         . ") . If the

Reimbursement    Procedures Order applied to non-class members      as

Plaintiffs argue, Plaintiffs' counsel would be obliged to provide

free legal services to any and all non-class Medicaid recipients

without compensation from the District. No such outcome was ever

contemplated by the Parties or this Court.




11 See also Amended Remedial Order of May 9, 1997 at 24 [Dkt. No.
493] ("If the caller [to the offices of Plaintiffs' counsel] is a
member of the [P]laintiff class, [P]laintiffs' counsel may provide
the caller with legal assistance. The reasonable time and expenses
of Plaintiffs' counsel in making such inquiry and providing such
legal assistance shall be deemed compensable[.]").
                               - 22 -
     Finally,      this    Court     has    previously       "emphasize[d]"            with

respect to class-member claims for EPSDT services "that [it has

never meant]      to suggest that every            'garden variety'            individual

claim" appealing an OAH decision "should be brought to the Court."

Memorandum Opinion of May 29,               2008   at     4 n.3        [Dkt.   No.    1363]

(emphasis   in    original) .      Appeal    to    this    Court       of    matters    not

presenting "class-wide issues" would "conflict with and replace

the Fair Hearing Process that has been established in the District

of Columbia and approved by [the federal Centers for Medicare &

Medicaid Services], which provides for final judicial review by

the District of Columbia Court of Appeals."                      Id.    at 5    (internal

quotation marks      omitted) .     The     same   is     true    for       reimbursement

claims.

     For    all    these    reasons,        the    Court     concludes         that     the

Reimbursement Procedures Order provision permitting appeal to this

Court does not apply to Magnolia Stevenson's claims.




                                      - 23 -
III. CONCLUSION

       For the forgoing reasons, Plaintiffs' Motion to Reverse the

Ruling     in the   Fair Hearing of   Class Member Stevenson Denying

Reimbursement of Person Care Aide Services        [Dkt.   No.   2007]   is

hereby denied. An Order shall accompany this Memorandum Opinion.




May   d,   2015                          G~~
                                       Glady~eier
                                       United States District Judge


Copies to: attorneys on record via ECF




                                - 24 -
