denied mass health motion in two thousand and eighteen to terminate monitoring and reporting requirements in this case he committed two distinct errors of law that this court should review and reverse st of all it failed to give any effect to the language in paragraph fifty two of the two thousand and seven judgment in this case that said that while the court would retain jurisdiction going forward to ensure implementation the monitoring of reporting requirements will terminate in five years from the date of this judgment five years from the date of the judgment was the summer of two thousand and twelve those requirements did not terminate then or at any time in the future until in two thousand and eighteen mess hall filed a motion asking that he that that paragraph of the judgment be given effect and that the monetary reporting requirements and at that time the court made clear that it would entertain such a motion only if the commonwealth  demonstrate that it had fully complied with all of the substantive terms of the judgment and then and only then would the monitoring period end then reduced to the nd error here which is when the court denied  commonwealth made it an extent that ensure is showing in two thousand and eighteen that it had in fact complied with every paragraph in every command of the two thousand and seven judgement when the court denied the commonwealth motion it denied it not because it disbelieve any of those assertions or found indeed that any term of the judgment had not been complied with rather it found that because not all children in the commonwealth not all of the eligible children here had received one of the six new services the intensive care coordination or i c c service within a fourteen day period that the commonwealth had contractually imposed upon its providers that that failure in of itself what i thought the fourteen days was put in what was proportioned to being in foresman order enforcing the terms of the judgement was it wasn't that the basis that the that the court relied on the court did enter it actually st of all noel o'gara the court did not expressly cite that ok plaintiffs cite that as one of the alternative grounds where authority could be found and i'll certainly get to that but my st point that i can underline it strongly enough is that i understand and know the two thousand and eighteen order did not express lee identify the two thousand and twelve order as an independent ground for its decision the plaintiffs do the court did not the court actually idea that the the timeliness requirement that working there requirement was somehow already embedded in the judgment because at trial the at the two thousand and five trial in specificity messiness to be quite clear in the judgment the judgment is not the one s word i mean there are a lot of things that the commonwealth now has to do to implement the think it's also important to recognise what the two thousand and twelve adoption of the fourteen day standard for i c c was and what it wasn't the the coming of the dotted the fourteen day standard  for the actual deliverers of the service to come to the agencies with whom the commonwealth contracts to deliver the service it did it did this be it it did this because it was required to but their contracts with their providers and so the only number we have is this sort of hortatory three day standard that had been set forward in the initial description of the service before it was even  brought online and in the absence of anything else you should enforce that three day standard as the time when a standard under the regulation the commonwealth instead as the regulation contemplates consulted with medical experts in the field and based on their recommendation came forward and said yes we're going to adopt this fourteen day standard for our contractors which we can force against our contractors if and when we find that there  court to give ad to add that fourteen day standard as part of it to modify the judgement to add working to a standard they did a little bit obliquely in that as you've seen from the record they were extensive disengagement adopted as a as it an aspirational disengagement measure this any will the year over year improvement the point just came to the court and said add that to the police court add that to the judgment make that in forcible term of the two thousand seven judgement on both occasions the court denied that motion without prejudice to shit and certainly the play just would not have moved to add that as the terms of the judgment if they believed it was already there so that the two thousand and twelve judgment to terminate monitoring sixty four years after it was supposed to have terminated on a finding that just because of their failure to comply with this term they were up to lights with the council on them i have some question  i think roughly tracking with the period when the new services were being brought online when the court imagined that it would need the eyes and ears of the monitor as part of as as part of  injunction is still in effect they can come back to this court they don't need to file a new lawsuit i think that's what the district court had in mind in keeping jurisdiction over this matter so that if the comma if there was an allegation well that is because again that the judgment said will terminate on but it did not it did not provide any process for how that comes to be in two thousand and twelve when we got to when we were going to address what kind of motion practice it would it would contemplate for if we tried to enforce the five year sunset provision it's the big corporate explicitly said it had no view as to who would even bear the burden of proof in such motion practice and instead suggested very strongly that it would prefer that the this case and by consensus and so we accepted that invitation in two thousand and twelve and alan what turned out to be a six year path that ultimately did not lead to a consensus rule out of this litigation and so in two thousand and eighteen for the st time mass health did not agree to a proposed extension of the monitoring act and we were defending that lawsuit i think we would contest which numbers are the proper numbers to measure the time to delivery of services here and i'll just very quickly point out that in our evidentiary filing in mass health and i filing we put forward with forward numbers that said just for the i c c service over the ten years that the service has been up and running seventy eight percent of you have received their st visit within the fourteen days and that number goes up to eighty eight percent within twenty eight dollars days we think that's the more appropriate quantification of how the how the system is running in terms of timeliness so we do have a quarrel with which numbers the court decided to front line but this is not a factual dispute this is a pure question of law as to whether the court could have denied our motion well st of all whether the court should have held us to any showing at all to get the benefit of the term that the court put in the two thousand and seven judgment and nd of all if it was going to hold us to that burden could it have used the term not in the four corners of the judgment as the basis for denying that motion because different states st of all define their classes very differently the class of eligible children and so for four states or even municipalities that have programs like this obviously with a smaller denominator a smaller number of children who can access the service it's not nearly as difficult to get all of them in within a specified number as i guess i do have to point yes i think there are other variable from state to state is what's considered the st contact you know there are some states that the phone call is enough to have sort of stopped the clock for for the st encounter with the newly referred trial that's not the way the massachusetts system works the massachusetts measures the st actual sit down meeting we have with a therapist so i'd like tat ask you just one question as well i know we're taking a lot of your time so i hope by us in your favor ultimately results in the end of the monitor program that is the reason we have started yes but the plaintiffs can still come back in and attempt to establish that there's been a violation of the injunction in terms of these timely i c c services well what i i would answer that question by reference to this court's decision and harvey which was right in the brief which is that basically post judgment enforcement proceedings are limited to the four corners of the judgment yes  and i think our whole case is predicated on the idea that it's not you referring just to the fourteen days cable i'm not i'm talking about timely provision of i c c services which which i think judgment does cover while it covers it covers that topic in the sense that it gives discretion to mass health she said that the source of a comeback is over since the search they come back and they allege a violation of the injunction and they established to the satisfaction of the district court that there's been a violation they established to the satisfaction of the district court judge a violation of the injunction yes and on any other on any topic that is specifically dealt with yes injunction yeah i agree yes ok yes yes  again if the allegation is that there is a reasonable problem this violation argument that would be what argument is now which is that does require a new complaint and a new trial because that is a new allegation so my real side bit i just want to make sure that we're going to green on what i thought we were agreement on which is that as part of the relief for showing a violation of the injunction they could be the reimposition of a monitor yes ok yes the original judgment yes if the language is not there there's nothing enforceable about it and you can look at that two thousand and seven judgment it did in this in the senate aspirational it talks about tasks that the commonwealth has passed implemented and contemplates specified performance standards structural requirements process specifications all those kinds of things and so never made part of the judgement so what happened in two thousand and twelve was completely irrelevant to the extent that there are you would you want to comply with the for the record or to the current sorry that never got formally modified as part of the judgement specifically to i c c there are a number of provisions set out over multiple pages that are highly specific about what the service must contain it must contain a carriage or it must contain a care team composed of and it lists out all the stakeholders that should be involved in each child's teach them that there are highly specific provisions about what the service is supposed to be what it's supposed to do and then there is the more general  paragraph thirty eight dollars c i believe that's talks about you know the tasks that rating agency will have to do as as the steward of the system to figure out how to make the system work they're the kind of the nuts and bolts are left to the to the out and do these things as part of blocking and tackling of setting up the system but the highly specific commands about what i c c must contain and who must receive it are entirely enforceable and you know we would certainly suggest violations of the medicaid act that he had found in one thousand in two thousand and six and corporate it in two separate remedial orders in two thousand and seven continued to this day and denied vulnerable children necessary treatment nd the defendants persistently had failed to comply with the district court's two thousand and twelve for me to go order which this court has asked about when it with wind which was entered in response to a motion for noncompliance which adopted the defendant's own timeliness the one hundred and which was never appealed in reaching these two conclusions i think it's significant that this district court judge throughout the history of the case has consistently deferred to the defendants it adopted their own remedial plan it then allowed modifications to that plan and extensions of timelines it then applied  of the american academy as of pediatrics in his local chapter makes clear that the history and recent federal guidelines on both of those provisions require that states must establish time with the standards for the provision of treatment they must do it in conjunction with medical professionals and then they must comply with their own standards it's and it isn't there when who what is the remedy for that  so the federal government has at his disposal as the court is aware procedures for both investigating and then if necessary imposing sanctions on the state through medicaid and they can it has not taken any action there has been no complaint by anyone to the federal government what the federal government did do in issuing recent guidance on the p s t is note that in massachusetts pursuant to the court order in this case a range of services were created nine when the standards were adopted and that those are now binding in fact the rosie de case was what  actually does not the two thousand and seventeen judgment does not incorporate a fourteen day requirement and no read of the regulation incorporates a fourteen day court it is now been assigned to a new judge and it would the judge would have to pass before one is to consider whether there was any other provision including the two thousand and twelve remedial order which was never appealed which explicitly was adopted which explicitly adopted the fourteen day requirement and which is binding no no no that i'm sure isn't one of us i didn't understand that so if that if the court said that neither the two thousand and seven order nor the two thousand and twelve order were binding or require this then the matter would remanded to the district court on the additional issues that the district court judge posited not adjudicate concerning whether or not there was compliance with the remedial plan and can con man on the preliminary injunction in the future if they really and their view you're limited to the actual text of the order is tw water because the defendants keep talking about the the remedial plan the judgment st there was an order in two thousand and seven mark excuse me february of two thousand and seven which said that the defendants mus your all medicaid violations and provide services promptly then there was a nd order in the same year in july that nd order is what adopted what's known as the injunction or the judgment as part of that order judge concert or noted in footnote one that it was not only the judgment that was being imposed that the earlier war of the more of the february two thousand and order had its own binding effect after the two thousand after that to two thousand and seven orders had been adopted neither of which were appealed the court or the plaintiffs filed their noncompliance motion in two thousand and eleven renewed it sees me two thousand and ten renewed in two thousand and eleven and two more waters were entered one was an order in november of two thousand and eleven that afford that at order of mass health to take to effect to a management strategies to eliminate waiting lists for i c c and in addition afforded mass health the opportunity to develop a time when the standard then there was a th of water that was entered the one we've talked about was entered in two thousand and twelve and march again never appealed coldwater and that remedial order whether it be seen as a clarification or a modification or just an implementation of the earlier orders explicitly said fourteen days and that fourteen days came from mass health it came from mass health operating pursuant to the regulation and in answer to your question earlier to my  brother council about other states the available data about other states was it was gathered by mass health this was in their motion they said we looked at other states we made our is that they came to the district court with that standard they told the district court that they thought that standard was binding they said it would be it was consistent with their regulations and i quote they said that children have a right to expect the services within that timeframe once they told the district or a judge judge that they were going to live with that standard they were it was their standard it was based on their analysis it was done in conjunction with medical professionals and then it was adopted the district court judge then incorporated in an order and the defendants never appeal this was a remedial order of the district court whether we called it a formal modification did in two thousand and twelve and what the district court did with this order in two thousand and twelve if then went on to as as was mentioned encouraged the parties in order to avoid more  hearings and more motions to work together to develop disengagement standards we did that in two thousand and thirteen scimitar to joint stipulation that the court approved we did it again with more of ject of measures in two thousand and sixt after the district court urged us to try to work together we took the fourteen day time stare standard and everyone agreed to use the fourteen day time standard as a basis for measuring  services within the goetia a stipulation that said so many children will receive leave i c c services some percentage of all children who receive these services by this state some percentage more a higher percentage by that date and so on it was that incremental improvement of performance that the plane just moved with we call them disengaging measures that the plane just  to modify or incorporated in the underlying two thousand and seven order it was that incremental change that the district court denied without prejudice there is a motion pending before the district court again because in june two thousand and eight the district court asked the plaintiffs if they would or invited the plaintiffs if they prefer wish to to submit another motion to incorporate the incremental changes the incremental changes in other words are different then the obligation to provide the services and fourteen day one was a voluntary negotiated thing that had different benchmarks thing motion and then it notes in his order the order on a meal that it has not reached that so if i could correct myself to have been earlier question you asked actually and you said what is remaining before the district court on  really are two issues i should have been clear the st issue is the issue of the aspects of compliance or noncompliance with the remedial plan that the district court did not reach and nd the plaintiff's motion for modification to incorporate these incremental measures ok thank you so this is the district court's two thousand and nineteen  indicated that the very purpose of its remedial plan and it is for earlier remedial orders were to ensure none of which had been appealed was to ensure that the remedial services were provided promptly not just that the services were created had some on one day the children would actually get the treatment the district court judge noted in this two thousand and nineteen opinion that reasonably competent competent sorry services for these children make the difference between a life and a living death and sometimes a literal death as a quote as this court held in price and vs shumway there's no question that these medicaid provisions are enforce if this court looked at it in the hawkings a similar p s the case where the issue was where the services being provided promptly from the time of request the court said we need to look at the consent decree provisions as well as the federal law here the district court in trying to give meaning to the general term reasonable promptness and the medicaid e t s the peace mandate for timely services looked to mass health to give that meaning so rather than the court come up with its own standard of what time and services were or decide that services that didn't happen in two days or three act fourteen day standard and the judge indicated and that he didn't see it a great likelihood since he was just making clear what the timeline a standard was he didn't see a great likelihood that three months honor i didn't understand that they that what is true is that they they did extend it you know they don't have to continue doing stand if they're not under an obligation but the extensions that did exist the  dollars extensions that were entered as orders of them or were modification the judge found they were modifications of the original order there's no question they they just like other extensions  which the court had answered every time that the commonwealth has asked for an extension the court has allowed it just like when the defendants asked for their version of the remedial plan so the money the underlying two thousand and seven remedial plan that had a five year for monitoring that has been modified judge concert has found that they were agreed to modifications and there are dozens and even dispute about that just like there isn't dispute that at some point in time whenever the defendants want to call it quits and say that no more extensions they are free to do that and they did they well they they have most recently until a or july of two thousand and nineteen the plaintiffs moved in as you're starting to continue inventing appeal he agreed they oppose that and they can impose any future ones but there is no question that there was an agreed to modification when they say the me that's right and so i think that the remaining points i just want to turn to are that first when the court entered its two thousand and twelve order it did so after making a statement from the bench that it believes the defendants were substantially out of compliance with its underlying water actually as to remedial orders and with its remedial plan which is often called the judgment none of those statements were contested instead mass health did what we've talked about already adopted a timeliness standard as required by federal law and hasn't complied with that standard and hasn't complied with the order that adopted that standard it did until the defendants in their motion explicitly has had disavowed although they can certainly change their mind seeking any relief under rule of what particular orders you know say or don't say to to implement or correct violations of federal law that the purpose of the order the very purpose the order is to eliminate the violation of federal law that's what judge pons or said in his more in his february two thousand and seven remedial order that's what he said again in his july two thousand and seven order and that's what he's found did not happen in his two thousand and nineteen decision in other words the very purpose of the injunction whether or the remedial plan just like the very purpose of all four remedial orders two in twenty thousand and seventy one in twenty thousand one hundred and eleven in two thousand and twelve was to correct the violation of federal law that he had found a long time ago that kids were not getting timely and appropriate timely and prompt treatment and he said those violations still exist the defendant's own data there's not any controversy about the data it was after all mass health data he ate and he found that whatever that the that the data demonstrated that the situation was deteriorating that is the commonwealth was falling further and further behind from his own fourteen day standard thank you thank you very much ambiguity in the proceedings themselves as to each time that we think we did expressly agree to each of the six month extensions that the court entered i don't think we conceived of them as formal modifications of the judgment but we also know that was kind of an academic one of their own was kind of an academic distinction at the time because we had agreed not to pursue any relief his or be the monitor during the six months that we had agreed to  and then you have agreements that extended six months six months and six months rather committed believe other than a modification of the judgement no i understand i understand the question that i think the better answer is even if they were modifications of the judgement didn't we did not read it as imposing any affirmative or enforceable obligations on mass health and it as yet as you suggested in one of your questions to my brother had we understood it as such at the time we either a would never agree to it or b once it was entered as an enforceable modification of the judgment we would have sought to appeal from it so you know i think that's different in kind from this sort of informal agreement to continue extending the monitoring period until we didn't at which point i think the status quo had to take sandwiches that the monitoring is for a finite period of time albeit no longer for for just five years but until such time after the five years and separate vision that we ceased to agree to the extension and so that's where i think we are now in that that's those are the rights we attempted to enforce with this motion the only other time i just want to make was there's lynch asked me earlier why we had cited cases like horn and the like and in our original motion when this is not a sixty five motion and in fact it's obviously not a consent decree  supreme court to federal district courts that state programs that the state still retain sovereignty in their administrative programs that the courts can insure and exercise jurisdiction over them until such time as federal law violations have been cured but once they've been cured the autonomy over the program has to revert back to the state and that's what we're trying to do here that's why we're seeking freedom from montreal reporting requirements  because that is a significant incursion into states offering t here where we need to discuss every operational detail of the program with other stakeholders in a way that we don't have to do with other mature medica