SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION
___________________________________________
)
DISTRICT OF COLUMBIA, )
)
Plaintiff, )
)
v. ) Civil Action No. 2009 CA 007399 B
) Hon. Brook Hedge
INDIVIDUAL DEVELOPMENT, INC., )
)
Defendant. )
___________________________________________)

PLAINTIFF’S MOTION TO ENFORCE COURT ORDER AND

FOR ORDER TO SHOW CAUSE

Plaintiff the District of Columbia, by and through undersigned counsel, hereby respectfully

requests that this Court enforce its October 30, 2009, Order and, further, that the Court order

Defendant Individual Development, Inc., to show cause why it should not be held in contempt for

violating the Court’s October 30, 2009, Order.

A memorandum of supporting points and authorities and a proposed order are attached

hereto.

Dated: December 17, 2010 Respectfully submitted,

PETER J. NICKLES
Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General
Civil Litigation Division

ELLEN A. EFROS [250746]

Assistant Deputy Attorney General
Civil Litigation Division
Chief, Equity I
 /s/ Sarah A. Sulkowski___________________
SARAH A. SULKOWSKI [493235]
Assistant Attorney General
441 Fourth Street, N.W., Suite 600 South
Washington, D.C. 20001
Telephone: (202) 724-6627
Facsimile: (202) 730-1454
E-mail: sarah.sulkowski@dc.gov

SCR-CIVIL 12-I(A) CERTIFICATE

I hereby certify that on the 17th of December, 2010, I contacted Nicholas G. Karambelas,

counsel for Defendant, who declined to consent to the relief requested herein.

/s/ Sarah A. Sulkowski

SARAH A. SULKOWSKI
Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that on the 17th of December, 2010, I filed the foregoing via the Court’s

electronic filing system, thereby serving copies on all counsel of record.

/s/ Sarah A. Sulkowski

SARAH A. SULKOWSKI
Assistant Attorney General

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 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
___________________________________________
)
DISTRICT OF COLUMBIA, )
)
Plaintiff, )
)
v. ) Civil Action No. 2009 CA 007399 B
) Hon. Brook Hedge
INDIVIDUAL DEVELOPMENT, INC., )
)
Defendant. )
___________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO ENFORCE AND FOR ORDER TO SHOW CAUSE

Plaintiff the District of Columbia (“the District”), by and through undersigned counsel,

respectfully requests that this Court enforce its October 30, 2009, Order and, further, that the Court

order Defendant Individual Development, Inc. (“IDI”), to show cause why it should not be held in

contempt for violating the Court’s October 30, 2009, Order.

I. BACKGROUND

The District filed suit in this matter to correct a pattern of recurring deficiencies in the care

and treatment provided by IDI at the various Intermediate Care Facilities for Persons with

Intellectual Disabilities (“ICFs/ID”)1 that IDI operates in the District. The District and IDI

ultimately entered into a settlement agreement (“the Agreement”), which was approved by Order of

this Court on October 30, 2009. (See Agreement, attached hereto as Exhibit 1.)

The Agreement was designed to ensure that IDI consistently provides high-quality care and

treatment to its consumers, who are among the most fragile and vulnerable residents of the District.

1
Some filings in this matter have referred to ICFs/ID using the outdated label ICF/MR
(Intermediate Care Facility for Persons with Mental Retardation).
(See id. at 1 (“since IDI’s initial licensure and certification, IDI consumers have been among the

most medically fragile in the ICF/[ID] setting in the District”).) To that end, the Agreement requires

IDI to meet the terms of Directed Plans of Correction (“DPoCs”) and a Continuous Quality

Improvement Plan (“CIP”), which were developed to correct persistent and recurring deficiencies in

the operation of all 11 IDI-operated ICFs/ID. (See id. at 3-6 ¶ 2(a).) IDI worked with the District to

draft these terms and, in signing the Agreement, pledged to comply with each and every one of

them.

The parties agreed that IDI’s compliance with its obligations under the Agreement would be

assessed on a bi-monthly basis by a third-party monitor, Liberty Healthcare Corporation

(“Liberty”), pursuant to a contract between IDI and Liberty. (See id. at 8-9 ¶¶ 2(c)(1)-(3).)

Pursuant to the parties’ Agreement, if Liberty reports certain violations that either (1) persist for 30

or more consecutive calendar days or (2) occur, are cured, but then recur within 60 calendar days,

the District may assess monetary penalties against IDI.2 (See id. at 9 ¶ 2(d).) IDI may seek relief

from any such monetary penalty within 5 business days of its assessment, by submitting a written

response to the Attorney General for the District of Columbia (the “Attorney General”), who must

decide the appeal within 5 business days. (See id. at 10 ¶ 2(d)(5).) Unless the Attorney General

grants the appeal, IDI’s failure to timely pay an assessed penalty constitutes a violation of the Court-

ordered Agreement. (See id. at 9 ¶ 2(d)(4).) Such a violation is sufficient, standing alone, to trigger

automatic termination—i.e., termination effective immediately and without the need for the typical

cycle of deficiency reports and opportunities for correction—of the license of the subject ICF/ID.

(See id. at 10 ¶ 2(e)(2).)

2
The Agreement establishes the amount of each monetary penalty at 5 percent of the gross Medicaid
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 On October 21, 2010, the District assessed monetary penalties against IDI in the amount of

$241,089.60, based on Liberty’s reporting that IDI was out of compliance for more than 30

consecutive calendar days with 8 terms of the DPoC and 2 terms of the CIP. (See Oct. 21, 2010,

Letter, attached hereto as Exhibit 2.) IDI appealed that assessment to the Attorney General on

October 27, 2010. (See Oct. 27, 2010, Appeal, attached hereto as Exhibit 3.) The Attorney General

denied IDI’s appeal, pointing out in the decision letter that Liberty’s reports for the period from June

2010 through August 2010 showed continued noncompliance throughout the period with the same 8

DPoC items and 2 CIP items at the 6 IDI facilities at issue; that the Agreement contemplates the

assessment of a separate monetary penalty for each violation at each ICF/ID, as otherwise there

would be no incentive for IDI to minimize violations at each facility; and accordingly that, pursuant

to the Agreement as incorporated by this Court’s Order, a failure to make payment in full of the

$241,089.60 in penalties on or before December 2, 2010, would trigger automatic termination of the

licenses of the 6 subject ICFs/ID. (See Nov. 2, 2010, Letter, attached hereto as Exhibit 4.)

Although IDI acknowledged receipt of the Attorney General’s decision (see Nov. 2, 2010,

E-mail, attached hereto as Exhibit 5), it did not pay the assessed penalties; in fact, IDI made no

response at all until November 30, 2010, when IDI’s counsel requested by telephone that the

deadline for IDI’s “response” be extended from December 2 to December 20, because IDI was still

considering what course of action it should take. (See Nov. 30, 2010, E-mail, attached hereto as

Exhibit 6.) The Attorney General declined the request that afternoon. (See id.)

IDI then became completely unresponsive; the December 2 deadline came and went without

either word or payment from IDI. On December 10, 2010, the Attorney General sent a final

revenues per day per affected ICF/ID. (See id. at 8 ¶ 2(d)(1).)

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demand letter, once again notifying IDI that its continued failure to pay the assessed penalties would

result in termination of the licenses of the 6 affected ICFs/ID. (See Dec. 10, 2010, Letter, attached

hereto as Exhibit 7.) IDI acknowledged receipt of this letter but, rather than paying the past-due

penalties, indicated that it would respond in some unspecified fashion the following Monday,

December 13, 2010. (See Dec. 10, 2010, E-mail, attached hereto as Exhibit 8.)

The District received no communication from IDI on December 13. On December 15,

2010, counsel for the District spoke with counsel for IDI, who indicated that IDI intended to provide

its response on or before December 16, 2010. The District received no response from IDI on

December 16.

On December 17, 2010, IDI appealed to the Attorney General from the District’s notice of

termination of the licenses of the 6 affected ICFs/ID. This termination appeal is entirely separate

and discrete from the appeal of the penalty assessment, as contemplated by the Agreement itself.

(See Ex. 1 at 10 ¶ 2(d)(5) (providing for appeal from assessment of monetary penalties); id. at 11 ¶

2(e)(4) (providing for appeal from notice of termination).) Accordingly, it has no effect on IDI’s

obligation to pay the penalties assessed against it pursuant to the Agreement and affirmed by the

Attorney General. To date, the District has received no substantive response from IDI to the final

demand for payment of these past-due penalties.

The Agreement is clear: IDI must pay all assessed penalties within 30 days of notification

thereof. (See Ex. 1 at 9 (“Payment in full of penalties is due to the District within 30 calendar days

of the occurrence or identification of the violation(s). Failure to pay penalties in a timely fashion

shall constitute a violation of this Agreement.”).) IDI did not timely pay the penalties that it owes,

and it evidently has no intention of paying those penalties.

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 Accordingly, having exhausted every potential avenue for resolving the payment issue

collaboratively, and having been met at every turn with IDI’s defiance, the District now requests the

Court’s assistance in holding IDI to the terms of its Agreement and the Court’s October 30, 2009,

Order.

II. LEGAL STANDARD

This Court has the “inherent authority to enforce its orders by whatever means”

necessary. Link v. District of Columbia, 650 A.2d 929, 932 (D.C. 1994) (internal quotation

marks omitted) (quoting Motley v. Yeldell, 664 F. Supp. 557, 559 (D.D.C. 1987)). Specifically,

“trial judges have . . . the power to punish individuals for contempt of court in order to maintain

an orderly system of justice. This power has been held to be inherent in the nature and

constitution of a court arising from the need to enforce compliance with the administration of the

law.” In re Dixon, 853 A.2d 708, 710-11 (D.C. 2004) (internal quotation marks, alteration marks,

and citations omitted).

Civil contempt, unlike its criminal counterpart, requires no finding of intent. See Dixon,

853 A.2d at 711 (“Criminal contempt consists of a contemptuous act accompanied by a wrongful

state of mind, both of which must be proved beyond a reasonable doubt, whereas civil contempt

is more remedial in nature and requires no finding of intent.”); Link, 650 A.2d at 931 (“Civil

contempt need not be willful to justify a discretionary award of fees and expenses as a remedial

measure.”).

The appropriate remedy for civil contempt is enforcement of the original court order,

along with an award of the attorneys’ fees and costs incurred by the opposing party in seeking

enforcement of that order through contempt proceedings. See Link, 650 A.2d at 931 (“Civil as

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distinguished from criminal contempt is a sanction to enforce compliance with an order of the

court or to compensate for losses or damages sustained by reason of noncompliance.” (internal

quotation marks omitted) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191

(1949))); see also id. at 933 (“the contemnor will ordinarily be required to pay counsel fees. . . .

[t]he granting of such relief, in our view, is therefore the norm, for if the contemnor had obeyed

the order of the court, the aggrieved party would not have required further assistance of

counsel”).

III. ANALYSIS

In granting the parties’ joint motion for entry of the Agreement in this matter, this Court

expressly incorporated the Agreement in its Order of October 30, 2009. (See Oct. 30, 2009,

Order (“ORDERED that the Settlement Agreement, as attached to the motion, is incorporated

herein and approved and Ordered.”).) Accordingly, a violation of the Agreement is also a

violation of this Court’s Order, and thus constitutes contempt.

IDI’s persistent refusal to pay the monetary penalties assessed against it pursuant to the

Agreement patently violates the Agreement. Furthermore, IDI’s outright defiance of the terms of

both its Agreement and the Court’s Order—as evidenced by its refusal even to respond to the

District’s demands for payment of these past-due penalties—constitutes the most blatant kind of

contempt for these proceedings. Accordingly, Defendants respectfully request that the Court

issue an order enforcing its October 30, 2009, Order by requiring IDI to pay the penalties

assessed against it pursuant to the Agreement, and further that the Court order IDI to show cause

why it should not be held in contempt of Court and the District awarded its attorney’s fees and

costs.

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Dated: December 17, 2010 Respectfully submitted,

PETER J. NICKLES
Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General
Civil Litigation Division

/s/ Ellen Efros

ELLEN EFROS [250746]
Assistant Deputy Attorney General
Chief, Equity Section I

/s/ Sarah A. Sulkowski

SARAH A. SULKOWSKI [493235]
Assistant Attorney General
441 Fourth St., N.W., 6th Floor South
Washington, D.C. 20001
E-mail: sarah.sulkowski@dc.gov
Telephone: (202) 724-6627
Facsimile: (202) 730-1454

-9-
 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
___________________________________________
)
DISTRICT OF COLUMBIA, )
)
Plaintiff, )
)
v. ) Civil Action No. 2009 CA 007399 B
) Hon. Brook Hedge
INDIVIDUAL DEVELOPMENT, INC., )
)
Defendant. )
___________________________________________)

ORDER

Upon review of Plaintiff’s motion for an order directing Defendant to show cause why it

should not be held in contempt; any opposition thereto; and the entire record in this matter, it is

hereby

ORDERED that Plaintiff’s motion is granted, and it is further

ORDERED that Defendant shall immediately pay to Plaintiff the sum of $241,089.60 in

penalties pursuant to the Court’s Order of October 30, 2009, plus interest at a rate of 4% of the

outstanding amount from the date on which payment was due until the date of payment; and it is

further

ORDERED that Defendant shall appear before the Court on at

a.m./p.m. to show cause why it should not be held in contempt of Court.

SO ORDERED.

Dated:
Honorable Brook Hedge
Senior Superior Court Judge