UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

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ROSIE D., by her parents John and Debra D.;

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TYRIEK H., by his mother Christine H.;

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JOSHUA D., by his mother Emelie D.;

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SHEENA M., by her mother, Deborah D.; )

DEVIN E., by his grandmother Barbara E.; )

ANTON B., by his mother Lisa A.;

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NATHAN F., by his mother Tracey F.;

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SHAUN E., by his grandmother Jacquelyn E.; )

JERRY N., by his mother Susan P.

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on behalf of themselves and

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all others similarly situated,

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Plaintiffs,

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v.

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JANE M. SWIFT, Acting Governor

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ROBERT GITTENS, Secretary of the

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Executive Office of Health and Human Services )

STEPHEN CROSBY, Secretary of the Executive )

Office of Administration and Finance;

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WENDY E. WARRING, Commissioner of the )

Division of Medical Assistance,

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Defendants.

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Civil Action No. _______________

COMPLAINT

I. INTRODUCTION

1. Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun

E., and Jerry N. are Medicaid-eligible children who have been screened and diagnosed with

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behavioral, emotional, or psychiatric disabilities, but who are not being provided with the preventive and rehabilitative treatment required by the federal Medicaid program. 42 U.S.C. ∋ 1396a et seq. In particular, each child needs and has requested more appropriate mental health services, but is not receiving intensive home-based mental health services, including behavioral support services, psychiatric and other clinical services, professionally acceptable assessments, crisis services, and case management (hereafter, collectively, "intensive home-based services"), in order to treat or ameliorate their impairments. Most have been hospitalized because of the lack of intensive home-based services. Each has been and is being harmed because s/he is not receiving medically necessary, intensive home-based services.
2. The nine named plaintiffs are part of a class of similarly disabled and needy children who are eligible for, but have not been promptly assessed and considered for, intensive home-based services. The class includes thousands of children who have been hospitalized or are at risk of hospitalization because of the absence of intensive home-based services. The individual plaintiffs and those like them are either forced to leave their families and communities in order to obtain the very limited, episodic mental health services which have been made available by the defendants, or are compelled to forego these limited and unduly restrictive services altogether, leaving them with inadequate treatment and supports.
3. As Medicaid-eligible children under the age of 21, the plaintiffs are entitled to receive Early and Periodic Screening, Diagnostic and Treatment Services (EPSDT services), which include Αnecessary health care, diagnostic services, treatment, and other measures Ψ to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services Ψ.≅ 42 U.S.C. ∋ 1396d(r)(5). The defendants have failed to establish an
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adequate and effective screening and assessment process for children with behavioral, emotional, or psychiatric conditions. The plaintiffs are eligible for and would benefit from intensive homebased mental health services. Nevertheless, they are not receiving these Medicaid-covered services which are necessary to treat their conditions in a manner that allows them to remain with their families and in their home communities and thus avoid unnecessary and often harmful institutionalization.
4. In violation of federal law, the defendants have failed to provide these medically necessary, intensive home-based services to the plaintiffs at all, let alone in a timely manner. As a result of the defendants' actions and inactions, many of the most vulnerable children in the Commonwealth who have behavioral, emotional, and psychiatric impairments are inadequately assessed and denied the care and medically necessary treatment which they desperately need to function successfully in the community, including case management, crisis, and in-home supports. The denial of these medically necessary services at a critical point in the plaintiffs' development has caused and will continue to cause serious, long term, and potentially irreversible harm.
5. The plaintiffs seek prospective injunctive relief ordering the defendants to provide the intensive home-based services that the plaintiffs need and that they are entitled to receive in accordance with federal law. II. JURISDICTION AND VENUE
6. This is a civil action authorized by 42 U.S.C. ∋ 1983 to redress the deprivation under color of state law of rights, privileges, and immunities guaranteed by federal law. This Court has jurisdiction pursuant to 28 U.S.C. ∋ 1331, 1343(3), and 1343(4).
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7. This Court has jurisdiction over this action for declaratory relief pursuant to 28 U.S.C. ∋ 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. ∋ 2202, 42 U.S.C. ∋ 1983, and Rule 65 of the Federal Rules of Civil Procedure.
8. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. ∋ 1391(b)(2), as a substantial part of the events or omissions giving rise to these claims occurred within the Commonwealth of Massachusetts. A majority of the individual plaintiffs reside in the four counties of western Massachusetts. III. PARTIES
A. Individual Plaintiffs 9. Rosie D. is a thirteen year old girl who has intensive mental health needs. She is a resident of Berkshire County and brings this action through her parents John and Debra D. 10. Tyriek H. is an eight year old boy with intensive mental health needs. He is a resident of Berkshire County and brings this action through his mother Christine H. 11. Joshua D. is a twelve year old boy with intensive mental health needs. He is a resident of Berkshire County and brings this action through his mother Emily D. 12. Sheena M. is a sixteen year old girl with intensive mental health needs. She is a resident of Berkshire County and brings this action through her legal guardian Deborah D. 13. Devin E. is an eight year old boy with intensive mental health needs. He is a resident Berkshire County and brings this action through his grandmother Barbara E. 14. Anton B. is an eight year old boy with intensive mental health needs. He is a resident of Plymouth County and brings this action through his mother Lisa A.
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15. Nathan F. is a fifteen year old boy with intensive mental health needs. He is a resident of Norfolk County and brings this action through his mother Tracey F.
16. Shaun E. is a five year old boy with intensive mental health needs. He is a resident of Norfolk County and brings this action through his grandmother Jacquelyn E.
17. Jerry N. is a seventeen year old boy with intensive mental health needs. He is a resident of Norfolk County and brings this action through his mother Susan P.
B. Defendants 18. Jane M. Swift, Acting Governor of Massachusetts, is the Chief Executive Officer of the Commonwealth. She is responsible for seeking funds from the legislature to implement the Medicaid program. She also oversees the various executive departments of state government including the multiple secretariats and agencies responsible for the care, treatment, and education of children, such as the Executive Office of Health and Human Services (EOHHS), the Executive Office of Administration and Finance (EOAF), the Department of Education (DOE), and the Executive Office of Public Safety. She appoints the heads of these secretariats and agencies that are responsible for managing and funding of children's mental health services, including the Secretaries of EOHHS and EOAF, as well as the secretaries of other relevant departments, and approves the appointment of the Commissioners of the Division of Medical Assistance (DMA), the Department of Mental Health (DMH), and the Department of Social Services (DSS). She is sued in her official capacity. 19. Stephen Crosby, Secretary of EOAF, is responsible for seeking and approving the expenditure of adequate funds from the legislature to comply with the requirements of the Medicaid program. He is sued in his official capacity.
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20. Robert Gittens, Secretary of EOHHS, is responsible for the oversight, supervision, and control of the health and human services departments within the executive branch. Within EOHHS are many of the multiple agencies responsible for providing, funding, or arranging mental health services to children, including DMA, DMH, and DSS. He is sued in his official capacity.
21. Wendy E. Warring, Commissioner of the DMA, is responsible for the direction, supervision, and control of the single state agency that operates the Massachusetts Medicaid program. She oversees the development and execution of the Massachusetts Medicaid Plan, all Medicaid policies, procedures, contracts, and practices, including those regarding services provided to children with behavioral, emotional, and psychiatric disabilities. She is sued in her official capacity.
C. The Plaintiff Class 22. Pursuant to Rule 23(a) and (b)(2) of the Fed. R. Civ. P., the plaintiffs bring this action as a class action on behalf of all current or future Medicaid-eligible residents of Massachusetts under the age of twenty-one who have or may have a behavioral, emotional, or psychiatric disability or impairment and who need or may need intensive home-based services, including professionally acceptable assessments, special therapeutic aides, crisis intervention, and case management services, in order to treat or ameliorate their disability or impairment. 23. The plaintiff class is so numerous and geographically diverse throughout the Commonwealth that joinder of all members is impracticable. 24. There are questions of law and fact common to the plaintiff class including, inter alia:
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a. whether the defendants' failure (i) to provide or arrange medically necessary behavioral and mental health services, including intensive home-based services under the EPSDT program; (ii) to establish policies and procedures that facilitate access to these services; and (iii) to inform classmembers and their families of their entitlement to these services violates the EPSDT mandate of Title XIX of the Social Security Act (Medicaid); b. whether the defendants' failure to promptly provide classmembers with medically necessary, intensive home-based services violates the reasonable promptness requirement of Title XIX of the Social Security Act; c. whether the defendants' policies, practices, and procedures with respect to behavioral and mental health services for children comply with the requirements of Title XIX of the Social Security Act; and d. whether the defendants' operation and oversight of its behavioral health managed care program is consistent with the requirements of Title XIX of the Social Security Act. 25. The claims of the named plaintiffs are typical of the claims of the plaintiff class. As a result of the defendants= policies, practices, and procedures, all of the individual plaintiffs and classmembers are not considered for or provided with intensive home-based services to treat or ameliorate their behavioral, emotional, and psychiatric conditions. 26. The named plaintiffs will fairly and adequately represent the interests of the class. The individual plaintiffs have a clearly defined and personally vital controversy with the defendants, which dictates that they will fully and vigorously prosecute this action. At stake for
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these plaintiffs is their ability to obtain medically necessary, intensive home-based behavioral and mental health services and to remain at home with their family and friends.
27. The plaintiffs are represented by attorneys experienced in federal class action litigation and public assistance benefits, particularly the Massachusetts Medicaid program. The named plaintiffs seek relief that will inure to the benefit of the plaintiff class as a whole.
28. The plaintiffs seek certification of a class pursuant to Fed. R. Civ. P. 23(b)(2) on the grounds that the defendants' policies, practices, and procedures in failing to provide intensive home-based services deny the plaintiffs access to medically necessary services, thereby making initial and final injunctive and declaratory relief appropriate with respect to the whole plaintiff class. IV. THE MANDATES OF THE MEDICAID PROGRAM
A. The Federal Medicaid Program 29. The Medicaid program, authorized and regulated pursuant to Title XIX of the Social Security Act, is a joint federal-state medical assistance program for certain groups of lowincome persons. See 42 U.S.C. ∋ 1396, et seq. One of the purposes of the Medicaid program is to provide Αservices to help such families and individuals attain or retain capability for independence or self-care.≅ Id. 30. At the federal level, the Medicaid program is administered by the U.S. Department of Health and Human Services= Health Care Financing Administration (HCFA). 31. States are not required to participate in Medicaid, but once a State agrees to participate in Medicaid, it must comply with the requirements imposed by the Act itself and by the Secretary of Health and Human Services.
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32. States are reimbursed by the federal government for a portion of the cost of providing Medicaid benefits. Massachusetts receives approximately fifty cents in federal reimbursement for every dollar it spends on Medicaid services.
33. Federal law requires participating States to cover certain "mandatory" services. One mandatory service is Early and Periodic Screening, Diagnosis and Treatment services (EPSDT) for Medicaid-eligible children under age 21. 42 U.S.C. ∋∋ 1396a(a)(10)(A), 1396a(a)(43), 1396a(a)(4)(B); 1396d(r). In addition, EPSDT requires States to cover all "optional" services listed at 42 U.S.C. ∋ 1396d(a).
34. States must provide Medicaid benefits to all eligible individuals with reasonable promptness. 42 U.S.C. ∋ 1396a(a)(8); 42 C.F.R. ∋ 435.930(a).
35. Even when a particular service or treatment for children is not included in the State's Medicaid Plan for adults, the State must nevertheless provide that service or treatment for children if it is otherwise covered and reimbursed by the federal Medicaid program. 42 U.S.C. ∋ 1396a(a)(43)(C); 42 C.F.R. ∋ 441.57.
36. The Medicaid Act requires participating States to provide an EPSDT program consisting of the following services:
(a) informing all persons in the state who are under the age of 21 and who [are] eligible for medical assistance of the availability of early and periodic screening, diagnostic and treatment services as described in Section 1396d(r); (b) providing or arranging for the provision of such screening services in all cases where they are requested; (c) arranging for (directly or through referral to appropriate agencies, organizations, or
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individuals) corrective treatment the need for which is disclosed by such child health screening services. 42 U.S.C. ∋ 1396(a)(43). 37. EPSDT treatment services must be initiated in a timely manner, as the individual needs of the child require and consistent with accepted medical standards, within six months from the date of request. 42 C.F.R. ∋ 441.56(e). 38. The purpose of EPSDT services is to ascertain children=s physical and mental impairments, and to arrange for or provide such health care, treatment, or other measures to treat or ameliorate impairments and chronic conditions discovered through EPSDT screenings. The policy underlying the EPSDT mandate is to prevent illness as well as to ensure that health problems are comprehensively diagnosed and then treated as soon as they are detected, before they become more complex and their treatment more costly. 39. Under EPSDT, States must provide all of the services listed in 42 U.S.C. ∋ 1396d(a) when needed to correct or ameliorate a psychiatric, behavioral, or emotional condition. Among the services listed in ∋ 1396d(a) are home health care services, ∋ 1396d(a)(7) and 42 C.F.R. ∋ 440.70; rehabilitative services, ∋ 1396d(a)(13) and 42 C.F.R. ∋ 440.130; case management services, ∋∋ 1396d(a)(19), 1396n(g); and personal care services, 1396d(a)(24) and 42 C.F.R. ∋ 167. 40. EPSDT services include all forms and types of listed behavioral and mental health Medicaid-covered services which are medically necessary for children. Covered services clearly include behavioral support services, psychiatric and clinical services, professionally acceptable assessments, crisis services, case management, and intensive home-based services. 41. For children, HCFA has determined that rehabilitative services include, among
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others, clinical evaluations, the development of treatment plans, basic living skills development, intensive in-home individual and family therapy services, behavioral management services, individual and family crisis intervention services, crisis support in residential settings, therapeutic staff support, behavioral specialists, and a broad array of evaluations and assessments. Home health services include, among others, home-based mental health services such as training and staff support to improve the basic functioning and skills of the child and of the family.
42. In order to provide these required services, Α[t]he [Medicaid] agency must make available a variety of individual and group providers qualified and willing to provide EPSDT services.≅ 42 C.F.R. ∋ 441.61(b).
43. While States may adopt managed care concepts and contract with entities to oversee the delivery of services and to arrange services through provider networks, in doing so, the States remain responsible for ensuring compliance with all relevant Medicaid requirements, including the mandates of the EPSDT program. 42 U.S.C. ∋ 1396u-2. The managed care contract must specify all mandatory benefits. The State must ensure that the managed care entity has the capacity to offer the full range of necessary and appropriate preventive and primary services for all enrolled beneficiaries. 42 U.S.C. ∋ 1396u-2(b)(5). Moreover, children with special needs, including those in foster care or out-of-home placements, are exempt from mandatory managed care enrollment provisions. 42 U.S.C. ∋ 1396u-2(a)(A).
44. The State additionally must Αprovide such methods and procedures to assure that payments [to providers] are consistent with efficiency, economy, and quality of care and are
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sufficient to enlist enough providers so that care and services are available under the Plan at least to the extent that such care and services are available to the general population in the geographic area.≅ 42 U.S.C. ∋ 1396a(a)(30)(A).
B. The Massachusetts Medicaid Program 45. Massachusetts has chosen to participate in the Medicaid program. DMA is the single state agency that administers the Massachusetts Medicaid program. M.G.L. c. 118E et seq. 46. As required by the Medicaid Act, Massachusetts has prepared a State Plan that the Department of Health and Human Services has reviewed and approved. That Plan, along with relevant federal law and regulations, forms the foundation for the Massachusetts Medicaid program and establishes the Commonwealth=s obligations and responsibilities to Medicaid recipients. The Plan includes all treatment, services, and supports required by the EPSDT program. 47. As permitted by the Medicaid program, DMA currently contracts with a private managed care entity, the Massachusetts Behavioral Health Partnership (the ΑPartnership≅), to provide behavioral health and mental health services to Massachusetts Medicaid recipients. In particular, the Partnership is charged with delivering behavioral health services to Medicaid eligible individuals, including all EPSDT services to children with behavioral, emotional, or psychiatric impairments. Some children and families may also elect to participate in a health maintenance organization (HMO) in lieu of enrollment in the Partnership. 48. The Partnership devotes most of its funding and resources to the provision of short term, inpatient hospital services, acute care, medication, and brief counseling services. It
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does not offer most types of residential or intensive home-based services. 49. Intensive home-based services, which are funded as part of the Medicaid program
in other states, involve trained behavioral support staff who support the child in her natural or foster home, and in any other educational, after-school, or treatment setting where the child spends part of her day. Staff are consistently and routinely available for as long as necessary and for as many hours each day as necessary to treat or ameliorate the child's behavioral, emotional, or psychiatric condition. For some children with intensive needs, behavioral support staff are provided up to twenty-four hours a day and seven days a week on an ongoing basis and not just in emergencies. Trained staff assist the child in learning new behaviors, routines, and skills so s/he can eventually function as independently as possible in the community.
50. Intensive home-based services can also include psychiatric and other clinical services to complement the ongoing, trained behavioral support staff who assist the child at home, in school, after school, and at other times. These additional supports focus on discrete clinical and other daily living issues, such as, inter alia, the development of an individualized treatment plan, the creation and implementation of a special behavioral plan, the supervision and direction of the behavioral support staffperson, the provision of support therapies, the assessment and administration of medication, and the coordination and monitoring of intensive home-based services through an interdisciplinary team.
51. Intensive home-based services also incorporate certain other supports to achieve desired outcomes. Professionally adequate assessments are essential to determine the type, level, and intensity of treatment and support services that an individual child needs, particularly where the child has complex or difficult-to-treat behavioral or emotional impairments. Crisis services
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must be available to come to the home and offer clinically intensive interventions in the event of a mental health crisis which places the child at risk of hospitalization. Finally, case management is the program which usually refers the child to screening agencies and intensive home-based service providers, and then ensures that home-based services meet all of the child's individual behavioral and mental health needs by identifying, coordinating, and monitoring the array of supports and staff that allow the child to remain at home.
52. The defendants have not included intensive home-based services, as described above, as part of the Massachusetts Medicaid program or as a covered EPSDT service. Instead, pursuant to the current contract between DMA and the Partnership, the Partnership provides time-limited, non-intensive, behavioral health interventions to Medicaid eligible children in their homes through two specific programs: Family Stabilization Teams (ΑFST≅) and Community Support Programs (ΑCSP≅). Both programs are organized, administered, funded, and managed in a manner that, by design, systematically renders them unavailable, insufficient, or unsuitable for most children who need and would benefit from intensive home-based services.
53. FST services normally are offered for thirty days or less, even when long term, home-based treatment is necessary, although they can be extended, at least theoretically, for up to ninety days in exceptional cases. Moreover, FST services generally are delivered for approximately six to eight hours a week, and are designed to address acute crises or short-term conditions where a child is at imminent risk of hospitalization or is being discharged from a hospital. FST services ordinarily are not prescribed for multiple days per week for multiple weeks or months. Most FST programs do not have the capacity or non-professional staff to sustain intensive home-based supports to the most needy children for long periods. Finally, FST
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services are not regularly provided to children in other settings where individuals receive educational, after-school treatment, or supports. When FST services are terminated because the situation is no longer acute, CSP services may be authorized if the child still needs home-based supports. CSP services generally are delivered for two to three hours per week, primarily to assist the family or child with basic living skills and similar tasks.
54. FST and CSP services do not provide the intensive home-based services needed to treat or ameliorate the plaintiffs' conditions. Because of the limitations in the design and implementation of the FST and CSP program models, neither of these programs provides meaningful access to intensive home-based services for the most needy and vulnerable children with behavioral, emotional, or psychiatric conditions.
55. Because intensive home-based services have not been made available, children, families, clinicians, and doctors are not informed of the possibility of obtaining medically necessary, intensive home-based services. Indeed, some eligible and needy children and their families, as well as clinicians and doctors, are not aware of even the limited and restricted FST and CSP programs. The lack of notice to families and professionals prevents children from even being considered for intensive home-based services. V. THE CHILDREN'S MENTAL HEALTH CRISIS IN MASSACHUSETTS
A. The Crisis for the Plaintiff Class 56. Thousands of children with behavioral, emotional, and/or psychiatric disabilities in the Commonwealth desperately need, but are not being provided, medically necessary services in the community. This crisis is confirmed by numerous reports prepared by the defendants' own agents, published research, position papers of major professional associations, and the frequent
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and consistent media articles. While the precise parameters of this crisis and the exact number of children it impacts may be unclear, a number of state officials have publicly acknowledged the gravity of the current situation and the likely prospect of its further deterioration. The documented impact on the Commonwealth's children and families is measured mostly in lost lives and damaged families.
57. The severity of this crisis is revealed in a litany of reports generated by the Department of Social Services (DSS), the Department of Mental Health (DMH), and the Massachusetts Behavioral Health Partnership (Partnership) over the past several years. In a probing and still relevant 1999 report to DMA on the dysfunctional system of children's services, former DSS Commissioner Linda Carlisle stressed the medical necessity of home-based treatment for children with behavioral, emotional, or psychiatric disabilities, rather than confinement in hospitals or other institutions:
[E]very effort needs to be made to keep children at home or with relatives in their own communities and schools. We exacerbate the mental health problems of abused and neglected children by removing them not just from homes, but also from friends, schools, and communities. Linda Carlisle, Meeting the Behavioral Health Needs of Children in the Custody of the Department of Social Services at 7 (1999). 58. One small measure of the extent of this crisis is the number of children who are needlessly hospitalized or unnecessarily retained just in private psychiatric hospitals due to the lack of appropriate community alternatives like intensive home-based services. These child are now referred to as "stuck kids." DMA, DSS, and DMH, among others, have tracked the phenomena of these Αstuck kids≅ for several years. As indicated in the Carlisle report, the
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"stuck kid" phenomenon had reached emergency proportions by 1999: The weekly "stuck case" lists have grown to about 35 children today from about ten children a year ago. Many residential programs have waiting lists. The number of children in residential care has risen. The DMA has asked whether or not DSS needs to add capacity in order to facilitate hospital discharges by developing more high-end [nonhome-based] capacity. I believe the answer to this question is no.
Carlisle Report at 19. 59. A much more accurate measure of this crisis is the vastly larger number of
children who are needlessly hospitalized or needlessly retained in all types of institutions, including general hospitals, state hospitals, DSS and other adolescents units in public hospitals, children's programs on the grounds of state hospitals (Intensive Residential Treatment Programs), DSS and DHM congregate care programs, and other restrictive facilities. Ironically, there is no parallel tracking or accurate data on these stuck kids. The number of children in these institutions and facilities is growing, as is the number who are needlessly institutionalized due to the absence of appropriate intensive home-based services. These children, who are often more vulnerable and suffer as much or more from disabling conditions than those in private hospitals, are less visible but no less deserving of appropriate behavioral and mental health treatment.
60. Moreover, despite concerted efforts by several agencies and additional funding for inpatient and restrictive residential beds, and despite the obvious incentives for the agencies to undercount these children, even the number of "stuck kids" in private psychiatric hospitals which is publicly reported by the agencies actually has increased rather than decreased. This escalating crisis is primarily due to the defendants' failure to remedy persistent deficiencies in less restrictive community treatment options such as intensive home-based services. The number
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of "stuck kids" as reported by the defendants is now approaching one hundred. 61. The inappropriate and excessive use of psychiatric hospital beds, and the
attendant backlog of admissions, have forced the defendants and the Partnership to transport children far from their homes when hospitalization is the only available option for children in crisis. Often children are hospitalized at the other end of the Commonwealth from where they live, or even to other states, which further complicates and delays the individual's discharge to an appropriate community living arrangement.
62. A corollary of the defendants' excessive reliance on costly inpatient psychiatric beds is the frequent need to place mentally ill children on even more costly pediatric wards because of a lack of psychiatric beds. As "stuck kids" remain hospitalized beyond when it is medically necessary, defendants and the Partnership have conscripted pediatric units in general medical facilities to "house" children with severe behavioral, emotional, or psychiatric conditions. Even with protests from pediatricians and hospital associations, as well as focused media attention, additional funding for more inpatient psychiatric beds has only partly alleviated this egregious and expensive situation.
63. Another aspect of this crisis is the interminable waiting list for case management services. DMH currently estimates that 2,497 children have been determined to need, and are still awaiting, case management services. DMH Report (Fall/Winter 2000). Case management, like other EPSDT services, is a mandatory Medicaid service for children which, under federal law, must be provided promptly. Case management is also the critical entry point to accessing and coordinating all other treatment and support services. In the absence of a case manager, families independently must negotiate the maze of state bureaucracies, broker the array of
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services, and locate available providers willing and able to serve their children. As a result, children without case managers are not informed of, and, therefore, cannot request or access appropriate home-based services.
64. Although DMH has acknowledged the magnitude of the waiting list for case management services, the defendants have taken no meaningful action to address the failure to provide these Medicaid services promptly. Similarly, DMH proposals to expand intensive home-based services from an isolated pilot program in the Cambridge-Somerville area to a statewide Medicaid-funded initiative have gone unheeded.
65. The unavailability of mobile crisis services and the limited availability of emergency services for children further aggravate this crisis and intensify the demand for more costly and inaccessible inpatient beds. Similarly, inadequate reimbursement rates for providers of children's mental health services results in high staff turnover and the inability of existing programs to serve the most needy children.
66. Each of the named plaintiffs and members of the plaintiff class would benefit from access to medically necessary, intensive home-based services. Medicaid-covered services which would benefit the named plaintiffs and members of the class include the development and implementation of an individualized, intensive home-based program incorporating behaviormanagement services and a one-on-one behavioral support staffperson, personal care in the home, psychiatric and clinical services, comprehensive assessments and treatment planning, crisis intervention instead of hospitalization in an emergency, transportation, and case management.
B. The Crisis for the Individual Plaintiffs
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Rosie D. 67. Rosie D. is a thirteen year old girl who suffered sexual and physical abuse prior to her pre-adoptive placement in 1993. Rosie experienced at least eight temporary placements by the Department of Social Services before she was placed with Mr. and Mrs. D, just before her fifth birthday. When Rosie began banging her head against the wall and pulling out her hair, Mr. and Mrs. D. desperately contacted DSS for assistance, to no avail. Within weeks of beginning kindergarten, they were told to remove her from school because of her aggressive behavior. She was forced to spend hours a day in restraints. Over the next six years, Rosie was institutionalized at numerous facilities for extended periods of time, primarily due to the lack of appropriate home-based services to address her serious mental health condition. 68. As Rosie's mental health needs became more problematic, Mr. and Mrs. D's efforts to secure mental health treatment were thwarted and unsuccessful, as DSS squabbled with the Department of Mental Health over the cost of treatment. At age six, Rosie was placed in the psychiatric ward at Baystate Medical Center, where she remained for three months pending a more appropriate placement. Upon discharge, she embarked on a twenty-two month odyssey through three more facilities -- Franciscan Children's Hospital, Three Rivers residential facility, and the Children's Study Home. At the last program, she broke her wrist, was slammed and bruised in a quiet room, and received several stitches for other injuries. Ultimately, in November 1996, she returned to the home of Mr. and Mrs. D, who love and care for her very much but were unable to manage her mental health needs without additional assistance. Five months later, she was placed at the Northampton Center for Children & Families, where she stayed for almost two years before being discharged, once again, to Mr. and Mrs. D., who formally adopted her in June
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1997. 69. Family stabilization therapy and community support services have been offered,
but have not been adequate to address the severity of Rosie's needs. In recent years, Rosie has been held on several occasions at the Berkshire County Crisis Stabilization Unit for up to one week at a time. She was institutionalized in New York for twenty days in the fall of 2000 at the Four Winds-Saratoga Hospital. Unless Rosie receives intensive, around-the-clock, home-based services, her mental health condition will continue to worsen, and her behavioral issues will continue to escalate, until she again faces hospitalization.
70. Rosie suffers from Post Traumatic Stress Disorder, Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder. She presently is living at Children's House, a DMH facility in Pittsfield. Until late May 2001, she had been living at home with her adoptive parents. They agonized about putting her on the waiting list for a residential placement, but felt it was necessary due to increasing fears that they could not care for her and her mental health needs without more assistance.
71. If Rosie were provided with adequate and appropriate EPSDT mental health services, she would improve significantly and be able to live safely and continuously with her adoptive mother and father. Rosie is a young child who deserves and needs to live at home with her loving adoptive mother and father, rather than in an institution. Without intensive homebased services through the MassHealth EPSDT program, there is little hope that Rosie's condition will improve or that she will be able to receive necessary treatment to return to her adoptive parents.
Tyriek H.
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72. Tyriek H. is a eight year old boy who has exhibited out-of-control behaviors since he was a toddler. Before he was one, he engaged in severe head-banging behaviors and held his breath until he passed out. By age two, he began to physically hurt others. At age three, he was throwing rocks and threatening relatives with knives. His mother pleaded for help from physicians and unsuccessfully sought treatment from DSS for his mental health needs. Tyriek was thrown out of five day care centers and suspended from kindergarten ten times before being expelled from one school and then assigned to a special education classroom in another school.
73. When he was six, Tyriek attacked his mother and two year old cousin with a knife. She was forced to place him in restraints and called the local crisis program, which advised her to call her family doctor or to go to the local emergency room. Three months later, Tyriek was removed from his kindergarten class in leather restraints, transported by ambulance to the local emergency room, but promptly discharged without any additional supports. Two days later, he was finally admitted to the crisis stabilization unit for one week. Although his mother has requested and was eligible services from DMH, Tyriek was not assigned a case manager for almost six months. Family stabilization therapy was offered, but services were inadequate and too brief to address his ongoing needs.
74. Tyriek H. suffers from Psychosis or a psychotic disorder. His prior diagnoses include Attention Deficit Disorder, Oppositional Defiant Disorder, and Bipolar Disorder. Because of his intensive mental health needs, he presently is placed at Three Rivers residential facility in Springfield, Massachusetts. He has been residing at Three Rivers, located fifty miles away from home, since November 2000. Immediately prior to his placement at Three Rivers, he had been held for two months at the Berkshire County Crisis Stabilization Unit (CSU). He
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previously had spent a week at the stabilization unit in June 2000. 75. Tyriek's placement at the Berkshire County CSU from September 19, 2000,
through November 16, 2000, at least allowed his mother to visit and interact daily. She could not visit with him regularly at Three Rivers for three months, since she had no access to a car and was dependent on DMH vouchers for buses and taxis to visit her son. No vouchers were provided for many months. Tyriek's physical separation from his family and the prolonged time between visits has exacerbated his mental health issues.
76. Tyriek's current therapist at Three Rivers had informed his mother that if intensive home-based services were in place, he could return home for weekend visits prior to the completion of the Three Rivers residential program, and ultimately, could return to live with his mother and receive ongoing treatment and support in their home. As a result of the absence of these services, and other clinical events, Tyriek's condition has deteriorated and temporarily requires further hospitalization.
77. Tyriek's mother cares for him and loves him very much, but is unable to manage his mental health needs without assistance. Unless he is provided with intensive home-based services, he will have to remain institutionalized while his mental health continues to worsen and his behavioral issues continue to escalate. If Tyriek were provided with appropriate EPSDT mental health services, he would improve significantly and be able to live with his mother.
Joshua D. 78. Joshua D. is a twelve year old boy who suffers from a Non-Verbal Learning Disability, Dysthymia Disorder, and Anxiety Disorder. Other diagnoses have included Oppositional Defiant Disorder and Pervasive Developmental Disorder. Because of his mental
23

health needs, he was placed last fall at Lakeview NeuroRehabilitation Center. Upon discharge in April 2001, to his adoptive mother's home, he has not received any home-based services. He attended local schools last spring with a full-time aide.
79. Joshua was initially raised by his maternal grandmother because his biological parents had schizophrenia. His mother was admitted to a psychiatric hospital shortly after his birth. His adoptive parents became his primary caretakers when he was about five months old. He has routinely performed far below grade level at school. He is excessively overweight, and has been an easy target for taunts and bullying. These conditions exacerbate his mental health problems. His adoptive mother loves him and cares for him very much but cannot manage his mental health needs without assistance. Unless Joshua is provided with intensive home-based services, his mental health will continue to worsen and his behavioral issues will continue to escalate, risking another residential placement.
80. Due to his mental health needs, Joshua has seen numerous physicians, therapists and social workers. In the past, he has received outreach services in the community, including after-school programming and twice-weekly in-home visits by support workers. However, he is now too old to attend the younger group's after-school program, and too young to participate in the teen-oriented program. His current therapist maintains Joshua's mental health needs, especially his Anxiety Disorder, interfere with his ability to interact with peers or engage in interaction with other people.
81. Joshua has advised his therapist that he wishes to attend a day program so that he may continue to live at home with his adoptive mother. However, the absence of intensive home-based services may leave the family no option but to separate and have Joshua live in a
24

congregated residential program. 82. If Joshua were provided with adequate and appropriate EPSDT mental health
services, he would improve significantly and be able to stay at home and live with his adoptive mother. Joshua is a young child who deserves and needs to live in his home with his adoptive mother, rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Joshua has little hope of receiving necessary treatment while remaining home with his adoptive mother.
Sheena M. 83. Sheena M. is a sixteen year old girl who suffers from Attention Deficit Hyperactivity Disorder, and mild mental retardation. Because of her intensive mental health needs, she has periodically been held at the Berkshire County Crisis Stabilization Unit. Until August 1, 2001, she lived with her mother, at home, where Sheena required intensive homebased services. At best, she received time-limited and inadequate supports. Due to her mental health needs, Sheena presently sees a psychiatrist and social workers. 84. Due to delayed speech and motor skills, Sheena was held back in pre-school and repeated kindergarten. Her sister, two years her junior, is ahead of her in grade level, which has "emotional repercussions" for Sheena, who remains in special education classes. From September 2000 to March 2001, Sheena missed eleven days of school as a result of suspensions due to disruptive and/or assaultive behaviors. Such an incident led to her recent stay at the CSU in February 2001. The experience of being repeatedly held back in school, channelled into special education classes, and held in the Crisis Stabilization Unit has exacerbated her mental health problems. Her mother cares for her and loves her, but cannot manage her mental health
25

needs without assistance. Unless Sheena is provided with intensive home-based services, her mental health will continue to worsen and her behavioral issues will continue to escalate, risking further suspensions and/or longer stays at the Crisis Stabilization Unit.
85. Family stabilization therapy and respite programs have been made available to Sheena but have not been appropriate or beneficial because of significant restrictions on their frequency and intensity. Due to staff changes or staff turnover, the original FST therapist left and a new therapist was assigned during the course of the short-term program. FST was not extended, despite her ongoing need for intensive home-based supports. Sheena and her family received respite services through a twice-monthly overnight program at Key Shelter.
86. For several months, Sheena was on a wait list for a long-term placement at Howard House, a six-bed DMH-funded facility. She entered the residential facility on August 1, 2001. The absence of intensive home-based services has left her family with no option but to separate and have Sheena live in a congregated residential program. Sheena's former therapist warned that a residential placement would be detrimental to her treatment because of Sheena's attachment to her mother. In-home services would be far more beneficial to secure Sheena's own long-term goal of finishing high school and becoming an independent woman.
87. If Sheena were provided with adequate and appropriate EPSDT mental health service, she would improve significantly and be able to live with her mother. Sheena is a child who deserves and needs to live in her home with her loving mother, rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Sheena has little hope of receiving necessary treatment and remaining at home with her mother.
Devin E.
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88. Devin E. is a eight year old boy who was neglected and possibly abused as an infant. He was born to a teenage mother who, immediately after his birth, was incarcerated for thirty days on a drug charge. There are reports of additional incidents involving drugs during the short time he lived with his mother. When he was eighteen months old, Devin was traumatized when he witnessed a police raid in his home, the arrest of his mother's boyfriend, and the loss of other important people in his life. Shortly thereafter, he stopped speaking. Psychiatric evaluations refer to Devin as a permanently damaged child.
89. Devin's maternal grandmother, Barbara, assumed guardianship and now has legal custody of him. His grandmother loves him and cares very much for him, but she requires assistance managing his mental health needs. Unless he is provided with intensive home-based services, his mental health will continue to worsen and his behavioral issues will continue to escalate.
90. Because of his mental health needs, Devin's grandmother sought assistance through Early Intervention programs and the local school system. He continually was sent home due to unmanageable behaviors. He is impulsive, easily agitated, aggressive, and occasionally assaultive. As a result, he has been kept in an isolated classroom with a teacher and/or aide, and was forced to eat lunch alone. Eventually, he attended school only for twice-weekly, 30-minute occupational therapy sessions. The experience of these programs failing him repeatedly has exacerbated his mental health problems.
91. Devin suffers from Pervasive Developmental Delay and significant speech and language delays. Throughout the years, several other diagnoses have described his condition, including Global Developmental Delay, Post Traumatic Stress Disorder, Reactive Attachment
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Disorder, Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder, and autism. Because of his mental health needs, he was held at the Intensive Treatment Unit of the Hillcrest Educational Center from February 7 to May 30, 2001, for evaluations and assessments, after which he was returned to his grandmother's house.
92. If Devin were provided with adequate and appropriate EPSDT mental health services, he would improve significantly and be able to live safely with his grandmother. Devin is a young child who deserves and needs to live in his home with his loving grandmother, rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Devin has little hope of receiving necessary treatment while living with his grandmother.
Anton B. 93. Anton B. is an 8 year old boy who suffers from Attention Deficit and Hyperactivity Disorder and Bipolar Disorder. Because of his mental health needs, he recently underwent back-to-back hospitalizations at two different institutions, Pembroke Hospital and Franciscan Children=s Hospital. He was discharged from Franciscan Children=s Hospital to his mother=s (Lisa A.=s) home. When Anton was discharged, Lisa and her family needed and requested intensive home-based services to cope with his return, but received none. 94. Anton's mother first observed his serious behavioral problems and temper tantrums when he was three years old. Subsequently, Anton has suffered numerous violent episodes since he was five that have culminated in suicidal behavior. At age five, Anton=s explosions occurred almost daily, and on one occasion, he threatened his mother=s life with a knife. By the time he was six years old, Anton regularly experienced seizure-like shakes, and
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underwent a four-day evaluation at Children=s Hospital, during which time he was on a constant

EEG. Anton was prescribed multiple medications that were designed to stabilize his behavior,

but he still experienced regular outbursts that became increasingly violent.

95. Anton

attended first and second grades at Hancock Elementary School, where his anxious behavior

continued. During the summer of 2000, Anton told his mother that he wanted to kill himself,

and then ran away from home. A month later, Anton exploded in a supermarket, swept

everything off the shelves onto the floor and ran out of the store into oncoming traffic in an

attempt to kill himself. Anton was restrained, taken to the local emergency room, and then by

ambulance to Pembroke Hospital for about ten days.

96. When Anton returned home, his behavior escalated even more. He returned to

school, threatened other children, tore apart the vice principal=s office, and was again

hospitalized, this time at Franciscan Children=s Hospital for about six weeks. When he returned

home, he was banned from returning to Hancock Elementary School and received no in-home

services whatsoever. This lack of support set back Anton=s recovery significantly. Since that

time, he has attended two different schools. After months of seeking help from various state

agencies, Lisa has been able to arrange for a DMH paraprofessional to visit with Anton four

hours per week. Recently and without any warning, Lisa was told by DMH that "the policy has

just changed" and that the paraprofessional's services would be cut in half, and then after another

few weeks, cut entirely. No one from DMH spoke with Lisa or Anton's doctors before making

this decision. Four hour per week was never enough to meet Anton's mental health needs, and

now the only service he does receive will be taken away altogether. DMH's decision to

terminate services is not based upon Anton's individual needs, but instead on a policy edict and a

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unilateral and unsubstantiated administrative determination that he needs these services less than other children.
97. If Anton were provided with adequate and appropriate EPSDT mental health services, he would improve significantly and be able to live at home with his family. Anton is a young child who needs to live in his home with his loving mother, rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Anton has little hope of receiving necessary treatment while remaining with his mother.
Nathan F. 98. Nathan F. is a fifteen year old boy who almost died from Sudden Infant Death Syndrome and has experienced severe mental health and behavioral problems since then. By age four, he was diagnosed as suffering from Attention Deficit and Hyperactivity Disorder (ADHD) and prescribed medication. He has been subsequently diagnosed as having a bipolar thought disorder. Because of his mental health needs, he is presently placed in Granite House. Immediately preceding his placement at Granite House, Nathan was shuffled between three other institutions. 99. From the time Nathan was two years old, he experienced violent tantrums that would often last two hours or more. By the time he was four years old, his mother Tracey was forced to tie up the kitchen chairs so that Nathan could not climb them and jump off. As the years went by, his daily tantrums became more violent, and Nathan regularly overturned furniture, trashed the house, and threw objects at his family. At night, Nathan does not sleep. When Nathan was five years old, Tracey learned that he was being physically abused by his father.
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100. When Nathan entered third grade, his behavior worsened significantly, and by the time he entered sixth grade, he had become completely unmanageable. He regularly refused to get out of bed, get dressed or go to school. During the summer of 1998, Tracey tried to take her family on a week=s vacation to the beach. However, she was forced to return in just two days after Nathan destroyed the rented cabin and refused to eat or participate in any family activities.
101. When Nathan was in seventh grade, his therapist recommended that he go to a residential school. His mother did not welcome the idea of her son leaving her home, and tried, unsuccessfully, to obtain treatment services from DMH. Later that year, however, he physically assaulted his younger sister, and threatened Tracey with a knife, a baseball bat and a pool cue on separate occasions. He was hospitalized for six days at Westwood Lodge and was prescribed medication that was supposed to alleviate his depression and treat his ADHD. However, just a few weeks after his release, Nathan ran onto the roof of his house, tore off his clothes and threatened to jump. He was again admitted to Westwood Lodge, this time for a week. He was prescribed different medication that made his behavior even more bizarre, according to his mother.
102. A few months after his second hospitalization, he attacked both of his sisters due to a delusion that they had stolen money from him. When Tracey tried to call the police, Nathan pulled the phone cords out of the wall, grabbed a carving knife and yelled that no one was taking him alive. Eventually, his mother called the police, and Nathan was placed at the Department of Youth Services Howland Detention Center, a place where delinquent children are sent for punishment. He slept on the office floor for six nights because he was too vulnerable to be integrated with the inmates.
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103. Immediately upon returning home from DYS, Nathan began acting out sexually and again attacked his sister. That day, he was again hospitalized at Pembroke, and remained there for two weeks. Directly upon his release, he was sent to the Community Intervention Program for almost four months, on the recommendation of DMH. He did not improve, and was immediately transferred to a mental health residential program, the Granite House residential program in Quincy, MA, where he is today.
104. Granite House has told Tracey that Nathan could be released any day, because his "time is up." No in-home supports ahve been offered to facilitate Nathan's transition home, although Tracey has repeatedly asked for them. Without intensive in-home supports, Tracey will be unable to care for Nathan safely and without risk to other family members from Nathan's explosive outbreaks.
105. If Nathan were provided with adequate and appropriate EPSDT mental health services, he would improve significantly and be able to live at home with his family. Nathan is a child who needs to live in at home with his family, rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Nathan has little hope of receiving necessary treatment and returning home to his mother and family.
Shaun E. 106. Shaun E. is a five year old boy who, together with his two younger sisters, was severely neglected and then abandoned by their teenage parents when Shaun was less than three years old. Initially, DSS took custody of the children. About a week later, his grandmother, Jacki E., assumed guardianship of Shaun and now has legal custody of him. Since Shaun has lived with Jacki, he has regularly engaged in explosive and violent behavior that endangers
32

himself, his sisters and his grandmother. In the past year, this behavior has escalated. For this reason, Shaun=s sisters have remained in foster care, even though Jacki wants them to come home and live with her.
107. Over the years, Shaun's grandmother has repeatedly requested for services to be provided to her from both DSS and from DMH, but has never received any home or community based services. Jacki does have a DSS case manager, but that person=s involvement was limited to setting up a visitation schedule between Jacki and Shaun=s sisters. In fact, Jacki has repeatedly asked for home-based services for Shaun from DSS, and has repeatedly been told that the DSS case manager only coordinates services for the girls, who are in DSS custody. At this point, Jacki has had to stop the family visitation because Shaun=s behavior is so violent and explosive that Jacki fears for his sisters= lives. Jacki enrolled Shaun in the Head Start Program at his school herself, without any guidance or assistance from his case manager.
108. Jacki, without any support from DSS or any other state agency, sought out services by contacting DMH. The person with whom she spoke told her that DMH could not provide her with any services at all, but simply referred her back to DSS. Recently, Jacki contacted the Department of Mental Retardation, again of her own volition, in an attempt to procure the intensive home-based services she desperately needs and has been denied by the other agencies. She was informed that the waiting list for these services is at least a year and a half long, and that Shaun was not eligible for them anyway. Since July, Jacki has formally applied to DMH for services, and included with application all of the letters from other agencies which she has received rejecting her pleas for services. Despite her repeated inquiries concerning the status of her application, no one from DMH has ever returned her calls or
33

communicated with her in any way. Despite years of requesting and even begging for homebased services from various state agencies, Shaun still has not been provided any in-home supports.
109. Shaun suffers from Attention Deficit and Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD), and Bipolar Disorder. Because of his mental health needs, he presently resides with his grandmother and sees numerous physicians, psychiatrists and social workers. He wants to remain at home with Jacki, and Jacki wants Shaun to remain at home with her. Jacki loves Shaun very much and does all she can to care for him, but she cannot manage his mental health needs without assistance. Unless Shaun is provided with intensive home-based services, his mental health will continue to worsen and his behavioral issues will continue to escalate until he is institutionalized.
110. If Shaun were provided with adequate and appropriate EPSDT mental health services, he would improve significantly and be able to live at home with his grandmother without endangering himself or his family. Shaun is a young child who needs to live in a homelike setting with someone who loves him rather than an institution. Without intensive homebased services through the MassHealth EPSDT program, Shaun has little hope of receiving necessary treatment while remaining with his grandmother and family.
Jerry N. 111. Jerry N. is a seventeen year old boy who, from age four, has had difficulty controlling his anger. He has a long history of engaging in destructive behaviors, such as punching holes in the walls of his house, tearing apart his bed and mattress, throwing furniture, and urinating on the floor and in electrical sockets in his room. Although Jerry is sixteen years
34

old, he behaves like a child ten years youngerΧhe plays with toys and cannot be left unsupervised for any length of time. For example, when his mother recently asked him take out the trash, Jerry went down the street to a nearby wooded area and started a fire. 112. Jerry=s father was killed by a drunk driver in an automobile accident when Jerry was an infant. Although he never knew his father, Jerry feels a strong connection with him and carries around pictures of him, and of his grave, in his pocket. To make ends meet and support her family, Jerry=s mother must work eight hours a day, seven days a week.
113. By the fall of 1998, Jerry=s out-of-control behavior escalated to the point where he needed to be hospitalized. He was admitted to Westwood Lodge for repeatedly scratching the skin on his wrists, and he remained there for four days. Jerry returned home for five days, during which time his self-abusive behavior continued. He was then admitted to Pembroke Hospital for a ten-day hospitalization. He was prescribed Depakote, Adderal, Risperidal and Prozac upon his release. The medication did not help, and Jerry returned to Pembroke a month later for three days. Just a few weeks ago, Jerry fell down and cut open his head. With this injury, he should be receiving constant care. However, Susan works full time, and was therefore forced to place Jerry in a day care facility in Brockton during the day. Jerry is dropped off at his house at 4 p.m., but Susan does not return home until after 5 p.m. Susan contacted Project Connect to try to find someone to care for him until she gets home, but was told that no one was available.
114. Jerry suffers from a chromosome disorder, mild mental retardation, and Attention Deficit and Hyperactivity Disorder (ADHD). Despite his mother=s efforts, Jerry has not been able to integrate successfully into community programs, such as the YMCA and a children=s tae kwon do class. He was asked to leave both programs and responded by threatening to kill
35

himself. Jerry now attends the Cardinal Cushing School and Training Center in Hanover, MA, and lives at home with his mother. Jerry=s mother loves him very much and does all she can to care for him, but she cannot manage his mental health needs without assistance. Unless Jerry is provided with intensive home-based services, his mental health will continue to worsen and his behavioral issues will continue to escalate until he is again institutionalized.
115. If Jerry were provided with adequate and appropriate EPSDT mental health services, he would improve significantly and be able to remain at home. Jerry is a child who needs to live at home with someone who loves him rather than in an institution. Without intensive home-based services through the MassHealth EPSDT program, Jerry has little hope of receiving necessary treatment while remaining with his mother.
C. The Defendants' Responsibilities for the Crisis 116. The defendants and their predecessors have long known of the extent, severity, and consequences of the children's mental health crisis in Massachusetts, and, in particular, of the lack of medically necessary, intensive home-based services for children with behavioral, emotional, or psychiatric impairments. 117. Despite this knowledge, the defendants have failed to conduct qualified, comprehensive assessments of children with behavioral, emotional, and psychiatric conditions to determine which children need and would benefit from intensive home-based services. 118. Similarly, the defendants do not inform children and families of the appropriateness and availability of such assessments or of their entitlement to intensive homebased services under the EPSDT program. 119. The plaintiffs have no way to gain access to the mental health services they need
36

other than through the Medicaid program. The defendants have not informed the named plaintiffs or their parents or guardians about intensive home-based services which are covered by EPSDT. There is no mechanism for informing the plaintiffs and their parents or guardians of intensive home-based services covered by EPSDT, and no procedure available to request or obtain these services.
120. Although each of the plaintiffs has been screened for his/her psychiatric, behavioral, or emotional condition, none has been comprehensively assessed for nor offered intensive home-based services as an alternative to institutionalization. Indeed, there is no adequate and effective assessment process to evaluate the suitability of intensive home-based services for children like the plaintiffs with behavioral, emotional or psychiatric conditions. There are no intensive home-based providers available to them who could request authorization for these services from DMA.
121. The defendants have failed to provide or arrange for medically necessary behavioral and mental health treatment and supports to Medicaid-eligible children under age 21 throughout the Commonwealth, including intensive home-based services when appropriate for children with behavioral, emotional, or psychiatric impairments.
122. The defendants have not ensured that the managed care entity with which they contract for the provision of behavioral health services for children, including the EPSDT program, has the capacity to provide all of these services.
123. The defendants have also failed to provide or arrange for these services reasonably promptly and without lengthy waiting lists.
124. The defendants administer the State Medicaid system and its programs in a
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manner that is inefficient, that is not in the best interest of beneficiaries, and that limits the availability of intensive home-based services, thereby defeating the purpose of the EPSDT program and violating federal law. Limitations on the availability of intensive home-based services result from:
(a) the lack of information to children, families, clinicians, and doctors about EPSDT services and specifically about intensive home-based services; (b) inadequate diagnostic assessments; (c) inadequacies in the array of community programs and services that the Partnership is authorized to provide to Medicaid-eligible children; (d) policies, procedures, durational restrictions, program models, reimbursement rates, and program definitions which arbitrarily limit access to intensive home-based services; (e) financial, administrative, and procedural barriers that diminish participation by EPSDT and other qualified providers; (f) inadequacies in the funding of the programs and services that the Partnership is authorized to provide to Medicaid-eligible children; and (g) arbitrary and unreasonable administrative funding decisions by the defendants that improperly limit resources for the provision of intensive home-based services. 125. DMA's Commissioner, Wendy Warring, administers the Massachusetts Medicaid program. Commissioner Warring has failed to ensure that the program complies with federal Medicaid requirements, in particular applicable statutory provisions, rules, regulations, and the program manual for EPSDT services. Specifically, she has failed to ensure adequate assessments and the timely provision of medically necessary intensive home-based services to
38

which the plaintiffs are entitled under the Medicaid Act. 126. EOHHS Secretary Robert Gittens is responsible for the oversight, supervision,
and control of the health and human services departments within the executive branch, including DMA, DMH, and DSS. Secretary Gittens has failed to coordinate the activities, programs, and resources of the agencies under his control, in order to ensure that the plaintiffs are provided the medically necessary, intensive home-based services to which they are entitled under Title XIX of the Social Security Act.
127. EOAF Secretary Crosby is responsible for seeking adequate funds from the legislature in order to fulfill Massachusetts= obligations under its Medicaid program. Secretary Crosby has failed to seek and approve the expenditure of sufficient funds in order to ensure that the plaintiffs are provided the medically necessary, intensive home-based services to which they are entitled under Title XIX of the Social Security Act.
128. Acting Governor Swift is responsible for ensuring that Massachusetts administers the Medicaid program consistent with relevant federal statutes and federal regulations, including the statutory provisions, rules, and requirements governing EPSDT services. The Governor has failed to ensure that the plaintiffs are promptly provided the medically necessary, intensive home-based services to which they are entitled under Title XIX of the Social Security Act.
129. Despite an awareness of the children's mental health crisis and despite the submission of budget requests to fund additional inpatient and restrictive community "beds," the defendants have not developed intensive home-based services, have not established procedures to reimburse and implement such services, and have not sought the necessary funding for such services. Similarly, despite the proven success and cost-effectiveness of intensive home-based
39

services in Cambridge and Somerville, the defendants have not taken the necessary actions to make these services available statewide, as part of the federally-mandated Medicaid program.
130. The plaintiffs and members of the plaintiff class have no adequate remedy at law and, therefore, seek immediate and permanent injunctive relief to compel the defendants to arrange for the provision of medically necessary, intensive home-based services.
131. The plaintiffs and members of the plaintiff class have suffered and continue to suffer irreparable harm due to the defendants= policies, practices, procedures, and contracts that cause the denial of, or delay in, the provision of medically necessary intensive home-based services that are required to treat or ameliorate the plaintiffs' conditions. VI. LEGAL CLAIMS
Count I - EPSDT 132. The plaintiffs reallege and incorporate by reference the allegations contained in the preceding paragraphs. 133. The defendants have failed to provide or arrange medically necessary EPSDT behavioral and mental health services, including intensive home-based services, for the plaintiffs and members of the plaintiff class which are required to treat or ameliorate their behavioral, emotional, or psychiatric conditions, in violation of 42 U.S.C. ∋∋ 1396a(a)(10)(A), 1396a(a)(43) and 1396d(r)(5). 134. The defendants have failed to establish policies and procedures for obtaining EPSDT behavioral and mental health services, including intensive home-based services, which has the effect of denying these services to needy children with behavioral, emotional, or psychiatric impairments, in violation of 42 U.S.C. ∋∋ 1396a(a)(43)(C), 1396d(a)(4)(B),
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1396d(r)(5), and 42 C.F.R. ∋ 441.61(b), and 42 C.F.R. ∋ 441.50 et seq. 135. The defendants have failed to effectively inform children and their families of the
specific behavioral and mental health treatment services available under the Massachusetts EPSDT program, including intensive home-based services, which has the effect of denying these services to needy children with behavioral, emotional, or psychiatric impairments, in violation of 42 U.S.C. ∋ 1396a(a)(43) and 42 C.F.R. ∋ 441.56(a).
136. The defendants have failed to ensure that there are qualified providers which are willing to offer EPSDT behavioral and mental health services, including intensive home-based services, and to reasonably compensate such providers sufficient to facilitate meaningful access to these services, in violation of 42 U.S.C. ∋ 1396a(a)(43)(C) and 42 C.F.R. ∋ 441.61(b).
137. By their violation of the Title XIX of the Social Security Act, and its implementing regulations, the defendants, acting under the color of state law, have denied the plaintiffs and members of the plaintiff class their rights, privileges, and immunities secured by the laws of the United States.
Count II - Reasonable Promptness 138. The plaintiffs reallege and incorporate by reference the allegations contained in foregoing paragraphs. 139. The plaintiffs and members of the plaintiff class are entitled to receive EPSDT behavioral and mental health services, including intensive home-based services, that are required to treat or ameliorate their behavioral, emotional, and psychiatric conditions under the Medicaid Act, 42 U.S.C. ∋ 1396 et seq. 140. The plaintiffs and members of the plaintiff class are not receiving these services
41

in a timely and/or reliable manner at all or to the extent necessary to treat or ameliorate their behavioral, emotional, or psychiatric impairments.
141. The defendants have failed to provide such medically necessary services with reasonable promptness, in violation of 42 U.S.C. ∋ 1396a(a)(8) and 42 C.F.R. ∋ 435.930(a).
142. By their violation of the Title XIX of the Social Security Act, and its implementing regulations, the defendants, acting under the color of state law, have denied the plaintiffs and members of the plaintiff class their rights, privileges, and immunities secured by the laws of the United States.
Count III - Methods of Administration 143. The plaintiffs reallege and incorporate by reference the allegations contained in foregoing paragraphs. 144. The defendants have failed to administer the Medicaid program in an efficient and effective manner, in violation of 42 U.S.C. ∋ 1396a(30)(A). Specifically, the defendants have not established adequate policies, procedures, service definitions, and reimbursement rates for intensive home-based services and have not ensured a sufficient supply of providers qualified to offer these services. As a result, the plaintiffs have been and are being denied meaningful access to medically necessary intensive home-based services. 145. By their violation of the Title XIX of the Social Security Act, and its implementing regulations, the defendants, acting under the color of state law, have denied the plaintiffs and members of the plaintiff class their rights, privileges, and immunities secured by the laws of the United States.
Count IV - Managed Care
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146. The plaintiffs reallege and incorporate by reference the allegations contained in foregoing paragraphs.
147. The defendants are required to ensure that any managed care entity which provides Medicaid services to beneficiaries has the capacity to offer an appropriate range of services and to ensure access to preventive and primary services, including all medically necessary EPSDT behavioral and mental health for children. In violation of 42 U.S.C. ∋ 1396u-2(b)(5), the defendants have failed to ensure that the managed care entity has the capacity to provide all medically necessary EPSDT behavioral and mental health services, including intensive home-based services, and that the entity maintain a sufficient number, mix, and geographic distribution of qualified providers which offer all of these services.
148. By their violation of the Title XIX of the Social Security Act, and its implementing regulations, the defendants, acting under the color of state law, have denied the plaintiffs and members of the plaintiff class their rights, privileges, and immunities secured by the laws of the United States.
REQUEST FOR RELIEF WHEREFORE, the plaintiffs respectfully request that this Court: 1. Certify this case as a class action pursuant to Fed. R. Civ. P. 23;
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2. Grant a preliminary and permanent injunction requiring the defendants to: a. establish and implement policies, procedures, and practices for screening and evaluating the plaintiffs and members of the plaintiff class to determine whether intensive home-based services are medically necessary to treat or ameliorate their behavioral, emotional, or psychiatric conditions; b. conduct professionally-adequate assessments of all plaintiffs who reside in private or public inpatient psychiatric facilities and DMH's Intensive Residential Treatment Programs to determine whether intensive home-based services are medically necessary to treat or ameliorate their behavioral, emotional, or psychiatric conditions; c. provide meaningful notice to Medicaid-eligible children and their families of the availability of the full range of Medicaid-funded mental health, and behavioral services available under EPSDT program, including intensive homebased services; d. establish and implement policies, procedures, and practices that are sufficient to ensure that the plaintiffs and all members of the plaintiff class promptly receive medically necessary, intensive home-based services, including professionally-adequate assessments, crisis and case management services; e. establish and implement policies, procedures, practices, and reimbursement rates to ensure that a variety of qualified providers are available to offer intensive home-based services, including professionally-adequate assessments, crisis, and case management services;
44

f. remove arbitrary or other barriers which prevent Medicaid-eligible children from applying for and accessing EPSDT mental health services, including intensive home-based services; g. promptly provide intensive home-based mental health services to all plaintiffs who would benefit from them; and h. eliminate the DMH waiting list for case management services for all Medicaid eligible children by providing these children with a case manager within ninety days of application, in order to coordinate assessments and services for intensive home-based services. 2. Issue a declaratory judgment declaring that the defendants have violated Title XIX of the Social Security Act in their failure to provide medically necessary EPSDT services to Medicaid-eligible children with behavioral, emotional, or psychiatric impairments. 3. Require the defendants to provide sufficient information on a quarterly basis to allow the plaintiffs and the Court to monitor compliance with the Court's injunction and with the requirements of the Medicaid program. 4. Award the plaintiffs the costs of this litigation and their reasonable attorneys' fees and costs. 5. Grant such further and other relief as may be just and proper.
BY THEIR ATTORNEYS,
__________________________ Steven J. Schwartz
45

Dated: October 29, 2001

Cathy E. Costanzo Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024 BBO#448440 BBO#553813
____________________________ James C. Burling Sara J. Shanahan Gabrielle E. Foote Hale and Dorr, LLP 60 State Street Boston, MA 02109 (617) 526-6000 BBO#065960 BBO#567837 BBO#645218
____________________________ Frank Laski Mental Health Legal Advisors Committee 294 Washington Street Boston, MA 01208 (617) 338-2345 BBO#287560

46

 
 Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 1 of 19
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, WESTERN DIVISION

ROSIE D., et ai.,

)

Plaintiffs,

)

v.

)

CIVIL ACTION NO. Ol-30199-MAP

)

DEVAL L. PATRICK, et al,

)

Defendants.

)

JUDGMENT This Judgment and the remedies ordered herein address the findings and rulings contained in the Court's Memorandum of Decision dated January 26, 2006 ("Decision"). As detailed in the Decision, the Court found the Defendants in violation of two provisions of the Medicaid statute: the provision mandating "early and periodic screening, diagnostic, and treatment services ("EPSDT"), 42 U.S.C. §§ 1396a(a)(1 O)(A) and (a)(43), §§1396d(r)(5) and (a)(4)(B) (2005), and the "reasonable promptness provision," 42 U.S.C. §1396a(a)(8) (2005). As part of the Decision, the Court ordered the parties to confer and develop a joint remedial plan. When the parties were unable to reach an agreement, they submitted separate proposed remedial plans. The parties submitted memoranda thereafter detailing the areas of disagreement. The Court heard argument on December 12, 2006. On February 22, 2007, the Court issued a Memorandum and Order Regarding Remedy that adopted the Defendants' proposed remedial plan ("Defendants' Plan") "as its remedial order ... subject to four provisos." See February 22, 2007, Memorandum

EXHIBIT A

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 2 of 19
and Order on Remedy ("Remedy Order") at 4. The Court also ordered the Defendants to
submit a proposed form ofjudgment embodying the remedial plan adopted by the Court.
Having reviewed the Defendants' submission, the Court now orders as follows:
I. DEFENDANTS' PLAN
1. The Defendants shall take the steps described in below with respect to the class of children who are eligible for EPSDT1 and who have "serious emotional disturbance"
("SED"), subject to the following provisos:
a. Since the Medicaid Act (Title XIX of the Social Security Act, 42 U.S.C. § 1396 et gg.) itself does not define a child suffering from SED, the governing definition for an eligible SED child under this Judgment will be the definition set forth in the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1401(3)(A)(i), and its implementing regulations or the definition set forth in the regulations governing the Substance Abuse and Mental Health Services Administration ("SAMHSA") of the United States Department of Health and Human Services, 58 Fed. Reg. 29422-02 (May 10, 1993). Any child satisfying the SED criteria used in the IDEA or by SAHMSA, or both, will be eligible for services. While Defendants will be free to make clinical decisions based on the needs of the individual children, no language below that appears to categorically narrow the definition of class of children eligible for services will have any force and effect.
b. TimeJines for implementation of the Judgment are set forth in Section I.E.! below. These timelines constitute a portion of this Judgment and will be subject to enforcement by the Court. They are, however, subject to modification for good cause upon application by any party.
c. As an order of the Court, the substantive terms ofthis Judgment are mandatory and may not be modified unilaterally at the discretion of the Defendants. Absent a modification agreed to by the parties, or permitted for good cause by the Court, as further described in Section II below, the Judgment is to be implemented according to its terms.
Currently, MassHealth Standard and CommonHealth Members are eligible for EPSDT. See MassHealth Special Terms and Conditions, MassHealth Medicaid Section 1115 Demonstration Waiver (1 !-W-000301l) Attachment D -§§ 3.1. 1.2 and 3.1.4.2.
2

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 3 of 19
d. This Judgment embodies the Defendants' Plan as a final order of judgment, subject to the Court's exercise of ongoing jurisdiction to insure implementation as further described in Section IV below.
The terms of this Judgment constitute an order of the court and do not constitute a consent decree, settlement agreement, or any other agreement or consensual act of the parties.
A. Informing Families, Providers, and Others of EPSDT Services for SED Children -- Education and Outreach and Screening
2. As set forth below, the Defendants will improve their methods for notifying Medicaid-eligible individuals enrolled in MassHealth ("MassHealth Members" or "Members"), MassHealth providers, public and private child-serving agencies, and other interested parties about the availability of behavioral health services, including the services described in Section 1.D. below, and behavioral health screenings in primary care settings.
1. Education and Outreach 3. The Defendants will inform all EPSDT-eligible MassHealth Members (Members under age 21 enrolled in MassHealth Standard or CommmonHealth) and their families about the availability ofEPSDT services (including services focused on the needs of children with SED) and the enhanced availability of screening services and Intensive Care Coordination as soon as the EPSDT-eligible child is enrolled in MassHealth. 4. The Defendants will take steps to publicize the program improvements they are required to take under the terms of this Judgment to eligible MassHealth Members (including newly-eligible MassHealth Members), MassHealth providers, and the general public. As part of this effort, the Defendants will take the actions described below and will also provide intensive training to MassHealth customer service representatives,
3

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 4 of 19
including updating scripts used by such representatives to facilitate timely and accurate
responses to inquiries about the program improvements described in this Judgment.
5. MassHealth Members - The Defendants will take the following actions to educate
MassHealth Members about the program improvements they are required to take under
the terms of this Judgment:
a. Updating and distributing EPSDT notices to specifically refer to the availability of behavioral health screening and services and to describe other program improvements set forth in this Judgment.
b. Updating and distributing (in the normal course of communications with MassHealth Members) Member education materials, including Member handbooks created by MassHealth and MassHealth's contracted managed care entities, to include description ofthese improvements, and how to access behavioral health screenings and services including the home-based services described in Section 1.0.
c. Amending Member regulations, as necessary, to describe the services described in Sections 1. C and 0 below and other program improvements.
d. Participating in public programs, panels, and meetings with public agencies and with private advocacy organizations, such as PAL, the Federation for Parents of Children with Special Needs and others, whose membership includes MassHeaIth-eligible children and families.
6. MassHealth Providers - The Defendants will take the following actions to educate
MassHealth providers about the program improvements they are required to take under
the terms of this Judgment:
a. Updating EPSDT regulations to reflect the program improvements described in this Judgment.
b. Updating Appendix W of the MassHealth Provider Manual, which describes medical protocols and periodicity schedules for EPSDT services, to reflect the program improvements related to screenings for behavioral health described in Section 1.A.2 below.
c. Drafting and distributing special provider communications related to the program improvements described in this Judgment, including how to assist
4

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 5 of 19
MassHealth Members to access the home-based services described in Section I.D.
d. Updating and distributing existing provider education materials to reflect the program improvements described in this Judgment.
e. Expanding distribution points of existing materials regarding EPSDT generally, including the program improvements described in this Judgment.
f. Implementing any other operational changes required to implement the program improvements described in this Judgment.
g. Holding special forums for providers to encourage clinical perfonnance activities consistent with the principles and goals of this Judgment.
h. Amending MassHealth's managed care contracts to assure that all such entities educate the providers in their network about the program improvements described in this Judgment, as described in Paragraphs 6.ag. above.
J. Coordinating these efforts with the "Virtual Gateway," which is the EOHHS system for web-based, on-line access to programs, including MassHealth and related benefit programs such as food stamps, and which allows a wide array of hospitals, community health centers, health and human services providers, and other entities to assist children and families in enrolling in MassHealth.
7. The Public - To improve public information about the program improvements the
Defendants are required to take under the tenns of this Judgment, the Defendants will
take the following actions to present the tenns of this Judgment to public and private
agencies that serve children and families:
a. Presenting the Judgment to appropriate Commonwealth officials in the Executive Branch and the Legislature.
b. Creating new pamphlets, infonnational booklets, fact sheets, and other outreach materials describing these improvements.
c. Developing and implementing training programs for line staff at the Departments of Mental Health, Social Services, Youth Services, Mental Retardation, Transitional Assistance, and the Office for Refugees and Immigrants on how to access MassHealth services for children with SED.
5

Case 3:01 "cv-30199-MAP Document 367"2 Filed 07/16/2007 Page 6 of 19

d. Distributing outreach materials in primary care settings, community health centers, and community mental health centers and posting electronic materials on the EOHHS Virtual Gateway that are designed to provide information to MassHealth Members and to public and private agencies that come in contact with or serve children with SED or their families.

e. Working with the Department of Early Education and Care to educate pre" schools, childcare centers and Head Start Programs on how to access MassHeaIth services for children with SED.

f.

Working with the Department of Education, the Department of Public

Health and Public School Districts to educate school nurses and other

school personnel on how to access MassHealth services for children with

SED.

2. Screening (or Behavioral Health

8. The Defendants will require primary care providers who perform periodic and

medically necessary inter-periodic screenings pursuant to 42 U.S.C. §1395d(r)( 1) to

select from a menu of standardized behavioral health screening tools. The menu of

standardized tools will include, but not be limited to, the Pediatric Symptom Checklist

(PSC) and the Parents' Evaluation of DeveIopmental Status (PEDS). Where additional

screening tools may be needed, for instance to screen for autistic conditions, depression

or substance abuse, primary care providers will use their best clinical judgment to

determine which of the approved tools are appropriate for use.

9. The Defendants will amend pertinent MassHealth provider regulations to clarify

that all primary care providers, whether they are paid through the managed"care or the

fee-for-service system, are required to provide periodic and inter-periodic screens.

10. There will be a renewed emphasis on screening, combined with ongoing training

opportunities for providers and quality improvement initiatives directed at informing

primary care providers about the most effective use of approved screening tools, how to

6

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 7 of 19
evaluate behavioral health information gathered in the screening, and most particularly how and where to make referrals for follow-up behavioral health clinical assessment. Additional quality improvement initiatives will include improved tracking of delivered screenings and of utilization of services delivered by pediatricians or other medical providers or behavioral health providers following a screening and use of data collected to help improve delivery of EPSDT screening, including assuring that providers offer behavioral health screenings according to the State's periodicity schedule and more often as requested (described in Section I.E.2). 3. Identification orBehavioral Health Needs - The Role orOther EOHHS
Agencies. and other Public and Private Agencies 11. MassHealth will continue its practice of not requiring a primary care visit or EPSDT screening as a prerequisite for an eligible child to receive MassHealth behavioral health services. MassHealth-eligible children and eligible family members can be referred or can self-refer for Medicaid services at any time by another agency, including other EOHHS agencies, state agencies, public schools, community health centers, hospitals and community mental health providers. 12. The Defendants will provide information, outreach and training activities, focused on such other agencies and providers. In addition, the Defendants will develop and distribute written guidance that establishes protocols for referrals for behavioral health EPSDT screenings, assessments, and services, including the home-based services described in Section LD., and will work with EOHHS agencies and other providers to enhance the capacity of their staff to connect children with SED and their families to behavioral health EPSDT screenings, assessments, and medically necessary services.
7

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 8 of 19
B. Assessment and Diagnosis 13. The Defendants will ensure that EPSDT services include a clinical assessment process for eligible children who may need behavioral health services, and will connect those assessments to a treatment planning process as follows: 14. The Defendants will require a clinical behavioral health assessment in the circumstances described below by licensed clinicians and other appropriately trained and credentialed professionals. 15. In addition to the clinical assessment, the Defendants will require providers to use the standardized clinical information collection tool known as the Child and Adolescent Needs and Strengths (CANS) as an information integration and decision support tool to help clinicians and other staff in collaboration with families identify and assess a child's behavioral health needs. Information obtained through the CANS process provides a profile of the child which trained clinicians use in conjunction with their clinical judgment and expertise to inform treatment planning and to ensure that treatment addresses identified needs.
16. The Defendants will implement an assessment process that meets the following description:
a. In most instances, the assessment process will be initiated when a child presents for treatment to a MassHealth behavioral health clinician following a referral by the child's primary care physician based on the results of a behavioral health screening. However, there are other ways for children to be referred for mental health services. A parent may make a request for mental health services and assessment directly to a MassHealth-enrolled mental health provider, with or without a referral. A child may also be referred for assessment and services by a provider, a state agency, or a school that comes into contact with a child and identifies a potential behavioral health need.
8

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 9 of 19
f
b. Assessment typically commences with a clinical intake process. As noted, Defendants will require MassHealth providers to use the CANS as a standardized tool to organize information gathered during the assessment process. Defendants will require trained MassHealth behavioral health providers to offer a clinical assessment to each child who appears for
. treatment, including a diagnostic evaluation from/a lic~nsed clinician. c. The assessment process leads to a clinical diagnosis and the
commencement of treatment planning. During the assessment process, medically necessary services are available to the child, including, but not limited to, crisis services and short-term home based services, pending completion of the assessment and the development of the treatment plan. d. As described in more detail in Section I.C. below, upon referral to the Intensive Care Coordination process, an intensive, home-based assessment and treatment planning process will take place, organized by a care manager and with the involvement of the child's family and other community supports. e. The assessment process described here, including the use of the CANS where appropriate, will be required as part of discharge planning for children who have been identified as having behavioral health problems who are being discharged from acute inpatient hospitals, community based acute treatment settings (CBATS), from Department of Mental Health (DMH) intensive residential settings, and DMH continuing care programs, with the goal of identifying children for whom Intensive Care Coordination services may be appropriate. For those identified children, a referral for those services will be a component of a discharge treatment plan.
9

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 10 of 19 [Sections 17 and 18 deleted]
10

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 11 of 19
C. Intensive Care Coordination and Treatment Planning 19. The Defendants will provide Intensive Care Coordination to children who choose to have Intensive Care Coordination including a Care Manager, who facilitates an individualized, childcentered, family focused care planning team, as follows:
1. The Care Manager 20. The role of the Care Manager is to coordinate multiple services that are delivered in a therapeutic manner, allowing the child to receive services in accordance with his or her changing needs. Additionally, the Care Manager is responsible for promoting integrated services, with links between child-serving agencies and programs and mechanisms for planning, developing, and coordinating services. 21. The basic responsibilities of Care Managers are: (l) assisting in the identification of other members of the care planning team; (2) facilitating the care planning team in identifying the strengths of the child and family, as well as any community supports and other resources; (3) convening, coordinating, and communicating with the care planning team; (4) working directly with the child and family; (5) collecting background information and plans from other agencies, subject to the need to obtained informed consent; (6) preparing, monitoring, and modifying the individualized care plan in concert with the care planning team; (7) coordinating the delivery of available services; (8)
II

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 12 of 19
collaborating with other caregivers on the child and family's behalf; and (9) facilitating transition planning, including planning for aftercare or alternative supports when in-home support services are no longer needed. 22. The Care Manager will either be a licensed mental health professional or will provide care management under the supervision ofa licensed mental health professional. S/he will be trained in the "wraparound" process for providing care within a System of Care. The "wraparound process" refers to a planning process involving the child and family that results in a unique set of community services and natural supports individualized for that child to achieve a positive set of outcomes. The System of Care is a cross-system coordinated network of services and supports organized to address the complex and changing needs of the child. This process will be consistent with the principles and values of the Child-Adolescent Services System Program (CASSP) which encourages care provision to be strength-based, individualized, child-centered, familyfocused, community-based, multi-system, and culturally competent.
2. The Care Planning Team 23. The care planning team will be family-centered and include a variety of interested persons and entities, as appropriate, such as family members (defined as any biological, kinship, foster and/or adoptive family member responsible for the care of the child), providers, case managers from other state agencies when a child has such involvement, and natural supports such as neighbors, friends, and clergy. 24. The care planning team will use multiple tools, including a CANS standardized instrument, in conjunction with a comprehensive psychosocial assessment, as well as other clinical diagnoses, to organize and guide the development of an individualized plan
12

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 13 of 19
of care that most effectively meets the child's needs. This plan of care will be reviewed periodically and will be updated, as needed, to reflect the changing needs of the child. As part of this process, further assessments, including re-assessments using the CANS or other tools, may be conducted so that the changing needs of the child can be identified. 25. The care planning team will exercise the authority to identifY and arrange for all medically necessary services needed by the eligible child with SED, consistent with the overall authority of MassHealth to establish reasonable medical necessity criteria, set reasonable standards for prior authorization, and conduct other utilization management activities authorized under the Medicaid Act, and the obligation of all direct service providers to assure that the services they deliver are medically necessary.
3. Individualized Care Plan 26. The findings of the care planning team will be used to guide the treatment planning process. The individualized care plan is the primary coordinating tool for therapeutic interventions and service planning. The care planning team, facilitated by the Care Manager, will be responsible for developing and updating, as needed, the individualized care plan that supports the strengths, needs, and goals of the child and family and incorporating information collected through initial and subsequent assessment. The individualized care plan will also include transition or discharge plans specific to the child's needs. 27. The care and treatment planning process will be undertaken pursuant to guidelines and standards developed by EOHHS, which will ensure that the process is methodologically consistent and appropriately individualized to meet the needs of the child and family. EOHHS, in consultation with DMH, will develop an operational
13

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 14 of 19
manual that includes these guidelines and standards for the use of the care planning teams. 28. Each individualized care plan will: (1) describe the child's strengths and needs; (2) propose treatment goals, objectives, and timetables for achieving these goals and objectives, including moving to less intensive levels of service; (3) set forth the specific services that will be provided to the child, including the frequency and intensity of each service; (4) incorporate the child and family's crisis plan; and (5) identify the providers of services. 29. Individualized care plans will be reviewed as needed, but at least monthly by the Care Manager and quarterly by the care planning team. In addition, such review will be undertaken when there is a change in another EOHHS agency's plan for the child.
4. Intensive Care Coordination (or Children with Multiple EOHHS Agency Involvement
30. Intensive care coordination services are particularly critical for children who are receiving services from EOHHS agencies in addition to MassHealth. In order to assure the success of the care planning team process and the individualized care plan for a child with multiple agency involvement, EOHHS will ensure that a representative of each such EOHHS agency will be a part of the child's care planning team. Operating pursuant to protocols developed by EOHHS, EOHHS agency representatives will coordinate any agency-specific planning process or the content of an agency-specific treatment plan as members of the care planning team. EOHHS will develop a conflict-resolution process for resolving disagreements among members of the team.
14

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D. Covered Services 31. For MassHeaIth Members entitled to EPSDT services, the Defendants will cover the following services for Members who have SED when such services are medically necessary, subject to the availability of Federal Financial Participation ("FFP") under 42 U.S.C. § 1396d(a) and other requisite federal approvals: assessments, including the CANS described in Section LB above, the Intensive Care Coordination and Treatment Planning described in Section I.C above, and the services described in more detail below in this Section I.D. More detailed service descriptions will be developed later to assist in establishing billing codes, procedures and rates, and may be necessary or advisable for the process of seeking CMS approval of these services. EOHHS, in consultation with DMH, will collaborate with interested stakeholders (including clinical experts, child and family advocates, and managed care partners) in the development of clinical criteria for each of the covered services below.
1. Crisis Management
32. The components of this service category will include Mobile Crisis Intervention and Crisis Stabilization:
a. Mobile Crisis intervention - A mobile, on-site, face-to-face therapeutic response to a child experiencing a mental health crisis for the purpose of identifying, assessing, treating, and stabilizing the situation in community settings (including the child's home) and reducing the immediate risk of danger to the child or others. Mobile crisis services may be provided by a single professional crisis worker or by a team of professionals trained in crisis intervention. Services are available 24 hours a day, 7 days a week. Phone contact and consultation may be provided as part of the intervention. Providers are qualified licensed clinicians or, in limited circumstances, qualified paraprofessionals supervised by qualified, licensed clinicians.2
Where provider qualifications appear in the descriptions of the services in this section of the Judgment, the following applies:
15

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 16 of 19
b. Crisis Stabilization - Services designed to prevent or ameliorate a crisis that may otherwise result in a child being hospitalized or placed outside the home as a result of the acuity of the child's mental health condition. Crisis stabilization staff observe, monitor, and treat the child, as well as teach, support, and assist the parent or caretaker to better understand and manage behavior that has resulted in current or previous crisis situations. Crisis stabilization staff can observe and treat a child in his/her natural setting or in another community setting that provides crisis services, usually for 24-72 hours but up to 7 days. Crisis stabilization staff are qualified licensed clinicians and qualified paraprofessionals supervised by qualified licensed clinicians. Crisis stabilization in a community setting is provided by crisis stabilization staff in a setting other than a hospital or a Psychiatric Residential Treatment Facility (PRTF) and includes room and board costs.
2. Home and Community-Based Services
33. The components of this service category are In-Home Behavioral Services
(including behavior management therapy and behavior management monitoring), In-
Home Therapy Services (including a therapeutic clinical intervention and ongoing
training and therapeutic support), and Mentor Services (including independent living
skills mentors and child/family support mentors). While the services in this category may
be provided where clinically appropriate, it is intended that they be provided in any
setting where the child is naturally located, including, but not limited to, the home
As used in this Judgment, the terms "qualified, licensed clinician" and "qualified paraprofessional" refer to individuals with specific licensure, education, training, and/or experience, as will be set forth in standards to be established by the Defendants. Such individuals will be authorized to provide specific services referred to herein.
A licensed clinician is an individual licensed by the Commonwealth to provide elinical services within a particular scope as defined by the applicable licensing authority or statute, including, but not necessarily limited to, physicians, psychiatrists, licensed clinical psychologists, licensed independent clinical social workers, licensed clinical social workers, and licensed mental health counselors.
A paraprofessional is an individual who, by virtue of certification, education, training, or experience is qualified to provide therapeutic services under the supervision of a licensed clinician.
16

Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 17 of 19
(including foster homes and therapeutic foster homes), child-care centers, respite settings,
and other community settings. These services may be provided as a bundled service by a
team or as a discrete clinical intervention depending upon the service needs ofthe child.
a. In-home Behavioral Services - Behavioral services usually include a combination of behavior management therapy and behavior management monitoring, as follows: i) Behavior management therapy is provided by a trained professional, who assesses, treats, supervises, and coordinates interventions to address specific behavioral objectives or performance. Behavior management therapy addresses challenging behaviors which interfere with the child's successful functioning. The therapist develops and monitors specific behavioral objectives and interventions, including a crisis-response strategy, that are incorporated into the child's treatment plan. The therapist may also provide short-term counseling and assistance, depending on the child's performance and the level of intervention required. Behavior management therapy is provided by qualified licensed clinicians. ii) Behavior management monitoring is provided by a trained behavioral aide, who implements and monitors specific behavioral objectives and interventions developed by the behavior management therapist. The aide may also monitor the child's behavior and compliance with therapeutic expectations of the treatment plan. The aide assists the therapist to teach the child appropriate behaviors, monitors behavior and related activities, and provides informal counseling or other assistance, either by phone or in person. Behavior management monitoring is provided by qualified paraprofessionals supervised by qualified licensed clinicians.
b. In-home Therapy Services - Therapy services include a therapeutic clinical intervention and ongoing training and therapeutic support, as follows: i) A structured, consistent, therapeutic relationship between a licensed clinician and the family and/or child for the purpose ofmeeting specific emotional or social relationship issues. The licensed clinician, in conjunction with the care planning team, develops and implements therapy goals and objectives which are incorporated into the child's treatment plan. Clinical services are provided by a qualified licensed clinician who will often work in a team that includes a qualified paraprofessional who is supervised by the qualified licensed clinician. ii) Ongoing therapeutic training and support to the child/adolescent to enhance social and communication skills in a variety ofcommunity settings, including the home, school, recreational, and vocational environments. All services must be directly related to the child's
17

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treatment plan and address the child's emotional/social needs, including family issues related to the promotion of healthy functioning and feedback to the family. This service is provided by a qualified paraprofessional who is supervised by the qualified licensed clinician. This paraprofessional may also provide behavior monitoring as described above.
c. Mentor Services - Mentor services include: i) Independent Living Skills Mentors provide a structured, one-to-one relationship with an adolescent for the purpose of addressing daily living, social, and communication needs. Each adolescent who utilizes an Independent Living Skills Mentor will have independent living goals and objectives developed by the adolescent and his/her treatment team. These goals and objectives will be incorporated into the adolescent's treatment plan. Mentors are qualified paraprofessionals and are supervised by a qualified licensed clinician. ii) ChiidlFamily Support Mentors provide a structured, one-to-one relationship with a parent(s) for the purpose of addressing issues directly related to the child's emotional and behavioral functioning. Services may include education, support, and training for the parent(s) to address the treatment plan's behavioral health goals and objectives for the child. Areas ofneed may include parent training on the development and implementation of behavioral plans. ChildlFamily Support Mentors are qualified paraprofessionals and are supervised by a licensed qualified clinician.
E. Implementation
34. The Defendants will systematically execute the program improvements described
in Sections I.A-D above, including a defined scheme for monitoring success, as follows.
The description below of the steps that Defendants will take to implement this Judgment
is subject to modification during the course of implementation in accordance with Section
II below.
1. Implementation Project Planning
35. The Defendants will implement this Judgment as a dynamic process involving
mUltiple concurrent work efforts. Those efforts will be organized into four main projects,
described below, which encompass all aspects of the program improvements contained in
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Case 3:01-cv-30199-MAP Document 367-2 Filed 07/16/2007 Page 19 of 19

this Judgment. This Judgment assigns a timelines for implementing each project, which

are subject to mod ification for good cause upon application of either party. It is

important to note that certain elements of each project are subject to external factors that

are not fully within the control of EOHHS.

36. Project i: Behavioral Health Screening, informing, and Noticing improvements

a. Project Purpose: Implementation of improvements to behavioral health screening and clear communication of new requirements about the use of standardized screening tools.

b. Tasks performed will include: i) Developing and announcing a standardized list of behavioral health screening tools. ii) Drafting managed-care or provider contract amendments and regulatory changes to conform to the new requirements. iii) Improving EPSDT Member notices concerning the availability of behavioral health and other EPSDT screening, and the availability of behavioral health services.

c.

Timelines for implementation:

i) Defendants will submit to the Court a written report on the

implementation of Project I no later than June 30,2007.

ii) Completion of this project will be by December 31, 2007.

37. Project 2: CANS Development, Training and Deployment

a. Project Purpose: To design a statewide common assessment information gathering tool, the CANS, for statewide use, and to train behavioral health providers in its appropriate use.

b. Tasks performed will include: i) Developing a Massachusetts-specific short and long form CANS in conjunction with Developer John Lyons. ii) Training behavioral health providers to complete and use the CANS tool, including EOHHS-required data gathering techniques. iii) Drafting managed-care and provider contract amendments and regulatory changes to conform with the new requirements.

c. Timelines for implementation:

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Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 1 of 10
i) Defendants will submit to the Court a preliminary report with regard to the completion of Project 2 no later than November 30, 2007.
ii) Completion of this project will be by November 30,2008.
38. Project 3: Development ofQ Service Delivery Network
a. Project Purpose: Plan, design, and contract for a service delivery network to deliver the services described in this Judgment.
b. Basic Project Description: EOHHS, and DMH, will engage in a process of network design and development that is directed and managed by EOHHS and DMH toward establishing a statewide network of community service agencies ("CSAs"), common across all MassHeaIth payers, to the extent feasible, and responsible for coordinating and providing or arranging for medically necessary home-based services.
Although a number of mechanisms are available to EOHHS, and DMH, to design and approve this system, the initial, phased network development process will be implemented through the existing Medicaid managed care behavioral health contractor under the direction ofEOHHS in consultation with DMH. EOHHS, and DMH, will establish standards for CSAs that will include provider qualifications, service delivery standards, training requirements, documentation requirements, utilization management standards, and performance measures. EOHHS will amend its managed care behavioral health contract to require the behavioral health contractor to procure a network ofCSAs that meets the standards established by EOHHS, and DMH.
CSAs will be providers included in the networks of MassHealth's contracted managed care entities and its fee-for-service network. All MassHealth payers, including MassHealth's managed care organizations ("MCOs") and the managed care behavioral health contractor, will offer to contract with the same entities as CSAs, subject to successful negotiations and EOl-IHS' determination that such entities have the capacity to serve the managed care entities' expected MassHealth enrollment. The current expectation is that the Medicaid fee-for-service population will have access to the same providers as the Medicaid managed care population.
CSAs will operate in service areas that will be defined by EOHHS, and DMH, with the following objectives in mind: that CSA service areas be generally consistent with DMH sites; that they promote consistency with DSS Family Networks provider areas; that they promote consistency, capacity, and efficiency; that they reflect linguistic or cultural characteristics, as appropriate; and that they reflect natural service areas. The current expectation is that there will be one CSA in each area so
20

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 2 of 10

defined, and that in total there will be no fewer than 15, and may be as many as 30, CSA service areas. The Defendants will consider defining regions for certain functions.

CSAs may deliver the clinical assessment services described above in Section LB. 1 and the intensive care coordination services described above in Sections 1.B.2 and I.C. CSAs will either deliver or, as a component of intensive care coordination, assist MassHealth Members to access the services described above in Section I.D. CSAs will be responsible for assisting Members to access all services described in this Judgment that they do not themselves provide.

c. Tasks performed will include:

i)

Designing delivery system approaches that maximize

access to services, taking into consideration the availability

and willingness of providers to provide the services.

ii) Engaging in a public process to involve stakeholders in the

development of the network and services.

iii) Planning concerning anticipated need and provider

avai lability.

iv) Working with CMS to obtain approval of services to be

offered and of managed care contracting documents.

v) Defining CSA Service Areas.

vi) Defining standards with respect to provider qualifications,

service delivery standards, training requirements,

documentation requirements, utilization management

standards, and performance measures.

vii) For each service described in Section 1.0. above, defining

the following: clinical criteria (including admission

criteria, exclusion criteria, continuing stay criteria, and

discharge criteria); performance specifications (including

service definition and philosophy, structural requirements,

staffing requirements, service, community and collateral

linkages, quality management, and process specifications);

credentialing criteria (for licensed clinicians and

paraprofessionals); and utilization management standards

(prospective and retrospective).

viii) Drafting contract and procurement documents, including

the production of a detailed data set for contractors and the

creation of detailed performance standards for contractors

and providers.

ix) Negotiating contracts, setting rates for new services, and

arranging for appropriate federal claiming protocols.

x) Performing reviews of new service providers to assure

readiness to perform contract requirements.

21

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 3 of 10

xi) Designing strategies to educate providers, MassHealth Members, and the general public about the new services offered.
xii) Designing a system of contract management for managed care contracts that includes performance standards or incentives, required reports, required quality improvement projects, and utilization management review, administrative services, and claims payment protocols.

d. Timeline for implementation: i) Defendants will submit to the Court a written report with regard to completion of Project 3 no later than November 30,2007. Further status reports thereafter may be required. ii) Full implementation of this project will be completed by June 30,2009.

39. Project 4: Information Technology System Design and Development

a. Project Purpose: The design and development ofa web-based application to facilitate identification and monitoring of behavioral health service delivery to children with serious emotional disturbance.

b. Tasks performed will include: i) Defining existing system capacities. ii) Gathering requirements for new functionality, including assessing whether development should be in-house or outsourced. iii) Obtaining legislative authorization and funding. iv) Drafting contract and procurement documents, including detailed architectural standards, privacy standards, and performance standards. v) Working with CMS to obtain necessary federal approvals of contracting documents. vi) Issuing an RFR, reviewing responses, and selecting bidder(s). vii) Negotiating contract(s). viii) Confirming business requirements and technical specifications. ix) Performing construction, testing, and provider training.

c.

Timelinesfor implementation:

i) Defendants will submit to the Court a written status report

with regard to Project 4 no later than November 30, 2007.

Ii) Full completion of this project will be by November 30,

2008.

22

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 4 of 10
2. Data Collection 40. There are multiple sources of data available to the Medicaid agency and multiple methods for data collection. This Judgment outlines a basic data set that, based on sound principles of program management, will ultimately provide very useful data that will support the agency's ability to track, monitor and evaluate a system of behavioral health care for children with SED. Some of the data points outlined here are presently available or easily accessible, while others are not. 41. The primary source for Medicaid data is MassHea!th's claims payment system, known as the Medicaid Management Information System (MMIS). While MMIS can collect claims level data on utilization and spending, it is not a good source for much of the data required to evaluate the implementation beyond that otherwise necessary for providers to claim reimbursement from MassHealth. EOHHS is currently part way through a major multi-year project to develop a replacement MMIS (New MMIS), currently anticipated for implementation in August, 2007. 42. A secondary means of collecting data commonly used in MassHealth program management originates from contract requirements, typically of managed care entities. MassHealth often requires managed care entities to collect data or report information in a particular form as an obligation of the contract. This method of collecting data is not limited by the capacities of the MassHealth payment system, but may be hampered by the managed care entities' own system limitations. Any business requirements placed on contractors generally require time to make business process changes and systems modifications as well as some form of reimbursement of costs.
23

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 5 of 10
43. For detailed clinical and provider performance data, MassHealth's clinical staff and contracted reviewers undertake clinical record reviews. This method of collecting data is appropriate in very limited circumstances and is time-intensive and costly. 44. For collecting and managing all of the data points associated with this Judgment, EOHHS will need to develop a new information technology (IT) application. Although the Defendants are not required by the Medicaid Act (42 U.S.c. §1396 et~) to collect this data, EOHHS believes that the data will assist in assessing its perfonnance of the requirements of the Judgment, to improve the quality of Medicaid behavioral health services for children, and to reassure the Court of success. However, an IT systems development project is a significant undertaking. The Defendants will need specific legislative authorization and appropriation in order to proceed with an IT project of the size contemplated below, since it would involve a capital appropriation and expenditure authorization. Following that, the Defendants can engage one or more vendors through a competitive procurement process; design business specifications with input from the MassHealth provider community; allow time for the vendor to build and test the data collections and management system(s); amend provider agreements and contracts, as necessary; and train providers to report required information using the new IT application. Timetables for such large-scale IT projects usually range from J8-24 months from the time that legislative authorization and appropriation is received, and often include multiple rollouts of advancing sophistication and breadth to assure that providers can successfully use the application and that the data collected is accurate and timely. 45. With these considerations in mind, the Judgment includes the following as a preliminary data collection strategy to assess Member access to, and utilization of,
24

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 6 of 10

EPSDT behavioral health screenings, clinical intake assessments, intensive care

coordination, comprehensive assessments, and intensive home based services. Data

points described below that are not available from MMIS are conceptual and subject to a

complete inventory of the business requirements and data elements necessary for creating

an appropriate tracking system or systems.

46. Potential Tracking Measures

a. EPSDT Behavioral Health Screening

i)

Number of EPSDT visits or well-child visits and other primary

care visits.

Ii) Number of EPSDT behavioral health screens provided. An

EPSDT behavioral health screen is defined as a behavioral health

screen delivered by a qualified MassHealth primary care provider.

iii) Number of positive EPSDT behavioral health screens. A positive

screen is defined as one in which the provider administering the

screen, in his or her professional judgment, identifies a child with a

potential behavioral health services need.

b. Clinical Assessment i) Number of MassHealth clinical assessments performed. A MassHealth clinical assessment is defined as any diagnostic, evaluative process performed by a qualified MassHealth behavioral health provider that collects information on the mental health condition of an EPSDT-eligible MassHealth Member for the purposes of determining a behavioral health diagnosis and the need for treatment. ii) Number of clinical assessments that meet SED clinical criteria and indicate that the Member could benefit from intensive care coord ination services.
c. Intensive Care Coordination Services and Intensive Horne-Based Assessment i) Number of intensive home-based assessments performed as the first step in intensive care coordination. Such assessment processes shall result in the completion of a standardized data collection instrument (i.e. the CANS tool). As part of the treatment planning process, that standardized tool will be used, and the resulting data collected on a Member level at regular intervals. ii) Number of Members who receive ongoing intensive care coordination services.

25

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 7 of 10

d. Intensive Home-Based Services Treatment

i)

Member-level utilization of services as prescribed under an

individualized care plan, including the type, duration, frequency,

and intensity of home-based services.

ii) Provider- and system-level utilization and cost trends of intensive

home-based services.

e. Child and System Outcome Measures - Member-level outcome measures will be established to track the behavioral health of an EPSDT-eligible MassHealth Member with SED who has been identified as needing intensive care coordination services over time. Defendants will consult with providers and the academic literature and develop methods and strategies for evaluating Member-level outcomes as well as overall outcomes. Member-level outcome measures would be tracked solely for the purpose of program improvement and would not be useable as a basis for arguing that Defendants are not complying with any order of the Court.

f.

Member Satisfaction Measures - Defendants will develop sampling

methods and tools to measure Member satisfaction of services covered

under this Judgment. Member satisfaction would be measured solely for

the purpose of program improvement and would not be useable as a basis

for arguing that Defendants are not complying with any order of the Court.

3. Reporting and Monitoring

47. Compliance Coordinator - The Defendants shall designate an individual to serve

as their Compliance Coordinator. The Coordinator shall have the necessary authority to

review, evaluate, design, and implement strategies to facilitate compliance with this

Judgment by the Defendants, their agencies, agents, and employees. The Coordinator

shall identify any obstacles to timely compliance and have the authority to implement

actions that effectively address such obstacles.

a.

Compliance Meetings - The Plaintiffs will meet quarterly with the

Defendants and Defendants' Compliance Coordinator to discuss the

implementation of this Judgment and any obstacles to its full and timely

implementation for at least 18 months from the date of this Judgment.

26

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 8 of 10
b. Compliance Reports - The Compliance Coordinator shall develop semiannual reports that describe the Defendants' actions to address each provision or section of this Judgment. The report also shall identify any obstacles that have impeded compliance with these provisions.
48. Court Monitor - According to the steps described in more detail herein, the Court
shall appoint a Monitor acceptable to both Defendants and Plaintiffs to oversee the
implementation of this Judgment. The Monitor shall serve at the discretion of the Court,
and shall undertake those tasks described herein:
a. The Monitor shall have the authority to: (l) receive information relevant to the Defendants' obligations under this Judgment; (2) coordinate and facilitate meetings between the parties; (3) independently review the Defendants' compliance with this Judgment; (4) respond to complaints concerning compliance or other actions of the Defendants; (5) recommend corrective or further actions necessary to redress any problems identified in implementing this Judgment; (6) mediate disputes between the parties; and (7) take whatever actions are useful to facilitate the timely implementation ofthis Judgment.
b. The Monitor shall have relevant expertise in behavioral health, health care, or Medicaid program administration.
c. The Monitor shall have access to all data, reports, records, or related documentation in the possession of the Defendants, their agents, contractors, evaluators, and providers that is necessary to perform the above functions.
d. The Monitor shall be compensated by the Defendants at a rate established by the Court. The Monitor shall prepare an annual budget for approval by the Court. The parties shall be afforded an opportunity to review and comment on the budget prior to its submission to the Court.
e. The Plaintiffs and Defendants shall attempt to agree on a Monitor with relevant experience. The parties will report to the Court, in writing, no later than March 23, 2007, regarding their efforts to agree upon a Monitor. If they agree on a Monitor, the name of this party, along with the proposed Monitor's curriculum vila and a budget, will be submitted at that time. In the event that the parties are unable to agree on a Monitor, each side will submit a list of three names, along with the curriculum vita of each. no later than April 6, 2007. The Court will thereafter select a Monitor from the proposed names. At the time the names are submitted, the parties will also submit a proposed budget for the Monitor. In the event that the
27

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 9 of 10
Monitor resigns or otherwise is unable to continue to serve, the same process shall be used to select a replacement. 49. Nothing contained in this Judgment shall require the Defendants to take any action or pay for any service or otherwise perform any aspect of this Judgment unless Federal Financial Participation is available in accordance with all applicable federal requirements. Implementation of this Judgment depends on the availability of FFP and an required federal approvals, obtaining all required Massachusetts legislative authorization and funding, and compliance with all applicable state and federal laws. II. MODIFICATIONS 50. The terms of this Judgment, including the deadlines established in Section I.E. I., are subject to modification as follows: a. for good cause upon application to the Court by either party; or b. by agreement ofthe parties. III. DISPUTE RESOLUTION 51. During the Court's term ofjurisdiction, as described in Section IV below, the parties will resolve disputes as follows: a. The preferred mechanism for resolution of disputes between the
parties is by complaint to the Court Monitor, mediation ofthe dispute by the Monitor, and a recommendation by the Monitor with respect to such dispute as set forth in Section I.E.3 above.
28

Case 3:01-cv-30199-MAP Document 367-3 Filed 07/16/2007 Page 10 of 10

b. If either party is dissatisfied with the Monitor's recommended solution of the dispute, it may bring the matter to the Court's attention by motion for review of the Monitor's recommended solution.

c. Notwithstanding the foregoing, either party may apply to the Court immediately, with concurrent notice to other parties, if the dispute involves an emergency requiring the Court's immediate attention.

IV. RETAINED JURISDICTION

52. This Judgment constitutes a final order ofjudgment, subject to the Court's

exercise of ongoing jurisdiction to insure implementation. The Reporting and Monitoring

provisions set forth in Section I.E.3 above will terminate five years after the date of entry of this

Judgment.

It is So Ordered.

r(2L1-l?hg@ ~
MICHAEL A. PONSOR United States District Judge

29

 
 Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) CIVIL ACTION NO. 01-30199-MAP ) ) )

MEMORANDUM AND ORDER REGARDING JUDGMENT July 16, 2007
PONSOR, D.J. This is a lawsuit brought under the Medicaid statute on
behalf of a class of children suffering from serious emotional disturbances (“SED”). On January 26, 2006, the court found that Plaintiffs had proved “by far more than a fair preponderance of the evidence” that Defendants had failed to comply with the statute’s provision mandating early and periodic screening, diagnostic, and treatment services (“EPSDT”), 42 U.S.C. §§ 1396a(a)(10)(A) and (a)(43), and §§ 1396d(r)(5) and (a)(4)(B), as well as its “reasonable promptness” provision, 32 U.S.C. § 1396a(a)(8). See Rosie D. v. Romney, 410 F. Supp. 2d 18, 23 (D. Mass. 2006).
As part of its decision on liability, the court ordered the parties to confer and attempt to develop a joint remedial plan. This effort consumed several months and resulted in some progress towards an agreed resolution, but was ultimately

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 2 of 9
unsuccessful. As a result, the parties submitted separate memoranda offering their own versions of a final remedial order. The court heard argument on this issue on December 12, 2006.
On February 22, 2007, the court issued its memorandum and order, adopting Defendants’ proposed plan and issuing it as the court’s remedial order, subject to four provisos. See Rosie D. v. Romney, 474 F. Supp. 2d 238 (D. Mass. 2007). These provisos were, in summary: (1) that all Medicaid-eligible children suffering from a “serious emotional disturbance” under the definition used either in the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1401(3)(A)(i) or by the Substance Abuse and Mental Health Services Administration (“SAMHSA”) would be eligible for services under the court’s remedial plan; (2) that the time lines for implementation of the remedy constituted a court order subject to modification only for good cause; (3) that no provision of the remedial plan could be unilaterally altered by Defendants but might be modified upon agreement of the parties or by order of the court; and (4) that the remedial plan would be embodied as a final order of judgment “subject to the court’s exercise of ongoing jurisdiction to insure the implementation of the plan.” Id. at 240.
On March 23, 2007, Defendants submitted their proposed
2

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 3 of 9
judgment. (See Dkt. No. 356.) On April 6, 2007, Plaintiffs filed their opposition to it, Dkt. No. 359, arguing that the final judgment as proposed by Defendants differed from the remedial order as adopted by the court in essentially two respects. First, Plaintiffs pointed to what they considered to be dilutions from and additions to Defendants’ initial proposed remedy in their proposed final judgment. Second, and more importantly, Plaintiffs contended that the proposed final judgment failed to modify Defendants’ initial proposed remedial order to incorporate the four “provisos” set down by the court and summarized above. As an alternative to Defendants’ proposed final judgment, Plaintiffs submitted their own version, which, they argued, constituted a fairer embodiment of the remedial order adopted by the court.1 Defendants have responded that any textual changes between their original proposed remedial order as adopted by the court and their more recent proposed judgment were not intended to vary the terms of the remedial order and were intended to respect fully and to incorporate entirely the provisos laid down by the court.
Having now had an opportunity to consider the parties’ positions, the court will issue the proposed judgment offered
1It is important to emphasize that, as important as the controversy over the form of the final judgment in this case may be, the remedial order already entered in this case has its own independent force. Anchored on the court’s finding of liability, it is binding on Defendants.
3

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 4 of 9
by Defendants, but with certain modifications. Perhaps the most vigorous objection offered by Plaintiffs
to Defendants’ proposed judgment pertains to Paragraphs 17 and 18, entitled “Clinical Criteria for Intensive Care Coordination.” This dispute is the latest manifestation of an ongoing difference of opinion between Plaintiffs and Defendants over the question of eligibility criteria for services under the court’s remedial plan.
Defendants concede that a class member’s eligibility for services under the court’s remedial order and ultimate judgment must be based upon the definition of “serious emotional disturbance” as set forth in the IDEA, or as used by SAMHSA. They also agree, at least implicitly, that the “clinical criteria” set forth in Paragraphs 17 and 18 of their proposed judgment considerably narrow the population of SED children eligible for Intensive Care Coordination, a central feature of the court’s remedial plan. Defendants contend, however, that the criteria set forth in Paragraphs 17 and 18 are not intended to narrow eligibility for services but merely to “guide” the clinical definition of when Intensive Care Coordination is “medically necessary,” as part of what the court has recognized as Defendants’ discretion to make “clinical decisions based on the needs of individual children . . . .” 474 F. Supp. 2d at 240.
4

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 5 of 9

Plaintiffs counter by emphasizing the court’s commandment

that no language in the remedial plan or judgment “appearing

categorically to narrow the definition of the class of children

eligible for services will have any force or effect.” Id.

Plaintiffs are concerned that the “clinical criteria” in

Paragraphs 17 and 18 of Defendants’ proposed judgment will

substantially reduce the population of SED children ultimately

eligible to receive services under the remedial order. The

phrasing of Defendants’ proposed judgment creates an ambiguity

that might permit the clinical criteria to undermine the

remedial order’s broader eligibility standards.

The court shares this concern.

Intensive care

coordination is a crucial element of the remedial plan adopted

by the court. The absence of this service for most class

members constituted one of the major shortcomings in

Defendants’ Medicaid service network; the deficiency was at the

root of the court’s finding that a violation of the Medicaid

statute had occurred.

Admittedly, individual assessments of particular children

may conclude that, in some instances (probably rather

infrequent), a Medicaid-eligible SED child may in fact not

require intensive care coordination. Neither the court nor,

presumably, Plaintiffs have any desire to require Defendants

to provide any service that is not, in fact, clinically

5

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 6 of 9
required. The language in Paragraphs 17 and 18, however, appears to go beyond this. Indeed, Paragraph 17 states that the criteria are intended to “assure that this judgment is appropriately focused” on a sub-class of SED children.
To the extent that Defendants need assurance that clinical judgment may be exercised in individual cases, the first proviso established by the court indicating that Defendants “will be free to make clinical decisions based on the needs of individual children” adequately provides this level of clinical discretion. Beyond this, Paragraphs 17 and 18 are likely to generate ambiguity as to the eligibility criteria for services and create mischief during the remedial phase. Thus, Paragraphs 17 and 18 of Defendants’ Proposed Judgment will be deleted to eliminate any potential appearance of conflict between the judgment and the court’s first proviso.
Some minor textual changes will be made to accommodate the deletion. Paragraph 19, for example, will now read: “The Defendants will provide intensive care coordination to eligible children who choose to have intensive care coordination including a care manager, who facilitates an individualized, child-centered, family-focused care planning team, as follows:” Moreover, on page 8 of Defendants’ Proposed Judgment, the sub-heading “1. The Assessment Process” will be deleted, since there will no longer be a second section
6

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 7 of 9
entitled “Clinical Criteria for Intensive Care Coordination.”
Plaintiffs’ second major concern regarding Defendants’ proposed judgment is the language in proposed Paragraph 49, stating that “Nothing contained in this Judgment shall require the Defendant to take any action that is not a requirement of EPSDT or the reasonable promptness provisions of the Federal Medicaid Act.” Plaintiffs are correct that this language also threatens to create an inconsistency that may bedevil the remedial stage.
The court’s liability decision was anchored on its finding that the requirements of the Medicaid statute’s EPSDT and “reasonable promptness” provisions had not been satisfied for very many class members. The remedy for this violation necessarily requires a number of initiatives by Defendants that are not explicitly spelled out in either of the violated provisions. Plaintiffs point to a good example of one such initiative -– data collection -– mandated by the remedial order to insure an adequate and effective response to the statutory violations, but not explicitly required by either provision.
The court has the responsibility to insure that Defendants take whatever actions are reasonably necessary to remedy the violations found in its judgment on liability. Obviously, some
7

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 8 of 9
of these measures may not be spelled out in the EPSDT and “reasonable promptness” provisions of the Medicaid statue. For this reason, the final judgment will delete the quoted sentence in Paragraph 49.
Third, Plaintiffs object to the language in Paragraph 52, which implicitly terminates the court’s jurisdiction to enforce or modify the judgment five years after its entry. Plaintiffs do not object to language terminating the “Reporting and Monitoring” provisions by that deadline, but note that nothing in the current remedial order proposes to terminate the jurisdiction of the court at that time.
While the court has no desire to retain jurisdiction any longer than required to insure implementation of the remedy, and, in fact, Defendants are free to move to terminate the court’s jurisdiction at any time that a remedy is securely in place, an inevitable termination of the court’s supervisory authority after five years would risk compelling the court to abdicate its responsibility to insure that the remedy is properly effectuated. The language of Paragraph 52 will be modified to delete this jurisdictional deadline.
Plaintiffs have offered additional miscellaneous objections to Defendants’ Proposed Judgment, but beyond the changes already noted the Proposed Judgment offered by Defendants acceptably embodies the court’s existing remedial
8

Case 3:01-cv-30199-MAP Document 367 Filed 07/16/2007 Page 9 of 9
order.2 As the court has already observed, supra n. 1, the remedial order retains its own force and will guide the remedy phase. The entry of judgment in the form described, however, will permit the court to close the case administratively and formally move from the litigation to the remedial phase. The entry of judgment will also establish time frames for appeal by any party and for submission of any application for attorneys’ fees.
The court hereby orders that the Judgment, appended to this memorandum as Exhibit A, be entered by the clerk.
It is So Ordered. /s/ Michael A. Ponsor
MICHAEL A. PONSOR United States District Judge
2 The only other change has been to insert the words “another entity” after the words “time by” on page 7, Paragraph 11, line 4.
9

 
 United States District Court District of Massachusetts
Western Section

______________________________________________

)

ROSIE D., et al.,

)

)

Plaintiffs

)

)

v.

)

)

)

JANE SWIFT, et al.,

)

)

Defendants

)

)

______________________________________________ )

PROTECTIVE ORDER

Civil Action No. 01-30199-MAP

After due consideration of the parties' request for a protective order to govern the disclosure and access to confidential documents as well as the treatment and maintenance of confidential documents by any party or third party, it is hereby Ordered and Adjudged:
1. The following documents and information shall be deemed "Confidential Information" and be governed by this Protective Order: All documents and records which include the full actual names (but not initials) and all photographs and videotapes which depict the faces of the individual plaintiffs and members of the plaintiff class or their families, or other personally-identifiable information about the plaintiffs and classmembers or family members.
2. In all pleadings filed with the Court, the parties will refer to the plaintiffs and the parents or guardians of the plaintiffs, by their first name and last initial. The parties shall ensure that only the first name and last initial of any plaintiff, or parent or guardian of a plaintiff, are readable in any document filed with the Court. Separate provision may be made for lengthy documents submitted in an evidentiary hearing.
3. Subject to the rules of evidence, this protective order, and any other orders of the Court, confidential information, material, and documents may be used in a pleading, filing, hearing, trial, or other proceeding in the matter of Rosie D. et al. v. Swift, et al., C.A.

No. 01-30199-MAP, without being sealed. However, the party who produced the confidential information may at the time of such proposed submission request that the material be sealed by the Court. The person who is the subject of such confidential material, or that person's legal guardian, may authorize its use for any other purpose. Any confidential material used in any court document or proceeding shall not lose its confidential status through such use, unless the Court orders otherwise.
4. All confidential material and information shall be controlled and maintained in a manner that precludes access by any person not entitled to access under this Order. Confidential material shall be disclosed only to the following persons:
(a)counsel, including paralegal, investigative, secretarial, and clerical personnel who are engaged in assisting such counsel in the above-entitled action;
(b)any independent outside expert or consultant, and employees and assistants under the control of such an expert or consultant, who is engaged by counsel in this litigation, whether or not such expert is paid directly by a party;
(c)any employee of a party who is requested by counsel for such party to work directly on the above-entitled action;
(d)any deposition or trial witness; (e)any person who authored or received the particular confidential material sought to
be disclosed to that person; (f)any court or other reporter or typist recording or transcribing testimony; or (g)the Court. Confidential material shall not be disclosed to persons described in paragraphs 3(b), (c), or (d), until such persons has been provided with a copy of this Order and has agreed to abide by and comply with the terms and provisions therein. 5. This Order shall not prevent a party from applying to the Court for relief therefrom, or from applying to the Court for further or additional protective orders, or from agreeing to modification of this Order.

6. Upon conclusion of the above-entitled action, the provisions of this Order shall continue to be binding. This Order shall remain in force and effect until modified, superseded, or terminated by consent of the parties or by Order of this Court.

By

the

Court:

_____________________________

Dated: December __, 2001

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS, WESTERN DIVISION

Rosie D., et al., Plaintiffs,
v. GOVERNOR MITT ROMNEY, et al.,
Defendants.

CIVIL ACTION NO. 01-30199

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Preliminary Statement
Plaintiffs, a class of Medicaid eligible children who contend that the Massachusetts Medicaid program fails to provide them with home and community based services for behavioral health needs, assert four causes of action under the Federal Medicaid Act. Defendants seek summary judgment on three grounds.
First, plaintiffs’ fundamental claim here focuses on a small pilot program serving approximately 70 children with behavioral health needs in Cambridge, Somerville, and several other communities, the Mental Health Services Program for Youth (“MHPSY”). MHSPY is a service delivery model that integrates multiple funding streams for children with a combination of medical/behavioral health, educational, and social service needs. Plaintiffs assert that various provisions of federal Medicaid law require that the MHSPY service delivery model be expanded statewide. What plaintiffs overlook, however, is that the MHSPY program operates under a federally-granted waiver of Medicaid law that, among other things, specifically waives the requirements of statewideness and uniformity, consistent with the general purpose of Medicaid

waivers, which is to allow states to experiment with innovative programs. Summary judgment should therefore be granted for defendants on any claim that Medicaid law requires expansion of the MHSPY service delivery model statewide.
Second, since this Court last addressed the existence of private rights of action under the Medicaid Act in denying defendants’ motion to dismiss, the Supreme Court has decided Gonzaga University v. Doe, 536 U.S. 273 (2002); applying the analysis required by that decision, plaintiffs’ claims do not meet the requirements for enforceable private rights of action.
Third, Count IV of the Complaint asserts claims under 42 U.S.C. § 1396u-2(b)(5), which imposes certain Medicaid provisions applicable to managed care organizations. Massachusetts, however, is exempt from those provisions by virtue of the Balanced Budget Act of 1997. For all these reasons, therefore, summary judgment should be granted for defendants.
STATEMENT OF UNDISPUTED FACTS A. The Medicaid Act Title XIX of the Social Security Act, codified at 42 U.S.C. §§ 1396-1396v and commonly known as the Medicaid Act, is a joint federal-state program providing “federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons.” Pharmaceutical Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 650 (2003); see also 42 U.S.C. § 1396 (the purpose of Medicaid is to “enabl[e] each State . . . to furnish . . . medical assistance on behalf of families with dependent children and of aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services . . .”). States are not required to participate in the Medicaid program, but states that elect to do so must comply with the Act and with regulations promulgated by the federal Secretary of the Department of Health and Human Services as a condition of receiving federal
2

funding. Most fundamentally, each participating state must devise and implement a plan for medical assistance (“State Plan”) that must be approved by the Secretary. See 42 U.S.C. § 1396; 42 C.F.R. § 430.10.
B. The Conditions Imposed on the Secretary’s Approval of a State Plan A State Plan must define the categories of persons eligible to receive assistance and the specific types of care and services covered by the plan. See 42 U.S.C. §§ 1396a(a)(10), 1396a(a)(17). Federal law establishes both mandatory and optional services. There are seven mandatory types of care and services for which the state may provide “medical assistance” in the form of payment. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17) and (21). At the state’s option, a State Plan also may provide “medical assistance” for twenty additional types of care and services. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(6)-(16), (18)-(20), (22)-(27). However, for Medicaid-eligible children, the state must pay for the types of care and services included in both the mandatory and optional categories, whether or not such care or services are included in the State Plan. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(4)(B), 1396d(r)(5). Effectively, for eligible individuals under age 21, the provisions of the Act erase the distinction between what are deemed mandatory and optional services. To be approved by the Secretary, a State Plan must (among other things) meet the following additional conditions imposed by the designated sections of 42 U.S.C. § 1396a(a): (8) provide that all individuals wishing to make application for medical
assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals . . . [the “reasonable promptness provision”] (10) provide for making medical assistance available for . . . [1396d(a)(4)(B)] early and periodic screening, diagnostic, and treatment services (as defined in subsection (r)(5) of [1396d]) for individuals who are eligible under the plan and are under the age of 21.
3

Subsection 1396d(r)(5) defines “early and periodic screening, diagnostic, and treatment services” to mean: “Such other necessary health care, diagnostic services, treatment, and other measures described in [1396d(a) – which defines the term “medical assistance”] 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. [collectively, the “EPSDT medical assistance” provision]
(30) provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . .as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . [the “equal access” provision]
(43) provide for – (A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title . . . (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary [certain required information each fiscal year relating to the utilization of services provided under this provision] [the “EPSDT program administration” provision]
42 U.S.C. § 1396a(a)(8), (10), (30)(A), (43).
In addition, since the passage of the Balanced Budget Act of 1997 (“BBA”) and its
implementing regulations, the Act has permitted states to require eligible individuals to enroll
with a managed care entity as a condition of receiving medical assistance. See 42 U.S.C. §
1396u-2(a). States that exercise that option must comply with the requirements established in
Section 1396u-2, including 1396u-2(b)(5), which provides:
Each Medicaid managed care organization shall provide the state and the Secretary with adequate assurances (in a time and manner determined by the
4

Secretary) that the organization with respect to a service area, has the capacity to serve the expected enrollment in such service area, including assurances that the organization – (A) offers an appropriate range of services and access to preventive and
primary care services for the population expected to be enrolled in such service area, and (B) maintains a sufficient number, mix and geographic distribution of providers of services [the “managed care access” provision]
C. The Massachusetts 1115 Waiver (and Other Federal Waiver Authority)
In 1994, the Commonwealth submitted a waiver application to the United States Department of Health and Human Services, Center for Medicare and Medicaid Services (then known as the Health Care Finance Administration, hereafter “CMS”). See Statement of Undisputed Facts (“Statement”), ¶ 16; Affidavit of Beth Waldman (“Waldman Aff.”), Ex. 1. Among other things, the Commonwealth requested the Waiver to allow the state to expand Medicaid eligibility to populations not otherwise eligible, and to allow the Commonwealth to require eligible members to enroll in managed care. See Statement, ¶ 17; Waldman Aff., Ex. 1 at 8. The Social Security Act authorizes the Secretary to approve a request by a state to perform a demonstration project if, in the Secretary’s judgment, such a project is likely to assist in promoting the objectives of the federal Medicaid Act. See 42 U.S.C. § 1315(a) (commonly referred to as an “1115 Waiver” because 42 U.S.C. § 1315(a) is Section 1115 of the Social Security Act). The statute authorizes the Secretary to waive compliance with any requirement of 42 U.S.C. § 1396a, which enumerates required State Plan provisions. See 42 U.S.C. § 1315(a)(1). The statute also authorizes the Secretary to authorize federal payments for some or all of the costs of a demonstration project that would not otherwise be eligible for federal funding under the Medicaid Act. See 42 U.S.C. § 1315(a)(2)(A).
By letter dated April 24, 1995, CMS approved the Commonwealth’s 1115 Waiver application. See Statement, ¶ 21; Waldman Aff., Ex. 3. The approval was subject to responses to certain questions posed by CMS, including a description of the behavioral health diversionary
5

services for which the Commonwealth’s 1115 waiver application requested the Secretary to authorize federal funding. See Statement, ¶ 22; Waldman Aff., Ex. 2. Approval was also subject to certain special terms and conditions and CMS approval of a protocol that would describe more specifically the manner and method by which the Commonwealth would administer the Waiver as the “MassHealth Demonstration.” See Statement, ¶ 23; Waldman Aff., Ex. 3 (attaching “Special Terms and Conditions”). The special terms and conditions specifically authorized federal funding for state expenditures for certain behavioral health services, including: acute residential treatment programs for substance abuse; acute residential treatment programs for children and adolescents (mental health); structured outpatient addiction programs; partial hospitalizations; family stabilization team services (“FST”); and community support programs (“CSP”). See Statement, ¶ 24; Waldman Aff., Ex. 3, at “Special Terms and Conditions” ¶ 48. According to CMS, federal funding is available for these services based exclusively on the authority of the 1115 Waiver. See Statement, ¶ 25; Waldman Aff., Ex. 7.
Under the Waiver, to permit Massachusetts to require eligible members to enroll in managed care, CMS waived certain provisions of 42 U.S.C. § 1396a, including the following pertinent provisions:
1. Statewideness/Uniformity – Section 1902(a)(1) – To enable the Commonwealth to provide managed care plans (or certain types of managed care plans) only in certain geographic areas of the Commonwealth.
2. Amount, Duration and Scope of Services – Section 1902(a)(10)(B) – To authorize the Commonwealth to offer different services based on different managed care arrangements or on the absence of managed care arrangements.
3. Freedom of Choice – Section 1902(a)(23) – To enable the Commonwealth to restrict freedom of choice of providers.
See Statement, ¶ 26; Waldman Aff., Ex. 3 at 1-3. The 1115 Waiver was approved for a five-year period beginning April 15, 1995, and ending April 30, 2001. See Statement, ¶ 27; Waldman
6

Aff., Ex. 3 at 1. In accordance with the provisions of 42 U.S.C. § 1315(e), Massachusetts applied for and received a three-year extension of the term of the 1115 Waiver. See Statement, ¶ 28; Waldman Aff., Ex. 5 at 1. The 1115 Waiver is now scheduled to expire on June 30, 2005. See Statement, ¶ 29; Waldman Aff., Ex. 5 at 1. Massachusetts is in the process of seeking an additional extension in accordance with the provisions of 42 U.S.C. §1315. See Statement, ¶ 30; Waldman Aff., ¶ L.
In addition to the 1115 Waiver authority, the federal Secretary has the authority to grant a waiver to permit states to offer an array of home and community based services that an individual may need to avoid institutionalization. However, the Commonwealth does not currently have a home and community based services waiver that includes a population such as the plaintiffs. See Statement, ¶ 32; Waldman Aff., ¶ M.
In accordance with the special terms and conditions and CMS’ approval, the state developed a protocol document that describes the state’s administration of the MassHealth Demonstration. See Statement, ¶ 33; Waldman Aff., Ex. 4. The original protocol document and all of its amendments have been approved by CMS. See Statement, ¶ 34; Waldman Aff., ¶ G. As described in applicable regulations, the Commonwealth offers MassHealth-eligible members a choice of managed care options. See Statement, ¶ 35; see also 130 C.M.R. § 450.117.1 The state currently contracts with four managed care organizations that provide both medical and behavioral health services: BMC/HealthNet, Cambridge Health Alliance, Neighborhood Health Plan and Fallon Health Plan (“the MCOs”). See Statement, ¶ 3; Norton Aff., Ex. 1-4. Each of the four MCOs is under contract to perform case management activities and to provide behavioral health covered services. See Statement, ¶ 39; Norton Aff., Ex. 1 at Appendix C Ex. 2 (BMC/HealthNet), Ex. 2 at Appendix C Ex. 2 (Cambridge Health Alliance), Ex. 3 at Appendix C

1

Members who are not eligible for managed care obtain services on a “fee for service”

basis. See 130 CMR 508.004; see also Statement, ¶ 36. The vast majority of children obtain

behavioral health services through a managed care provider. See Statement, ¶ 37; Affidavit of

Michael Norton (“Norton Aff.”), ¶ L.

7

Ex. 2 (Neighborhood Health Plan), Ex. 4 at Appendix C Ex. 2 (Fallon Health Plan). Each of
the MCO contracts includes the following provisions concerning early and periodic screening,
diagnostic and treatment services (“EPSDT Services”):
The Contractor shall operate a proactive program to deliver well child screens in accordance with the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) Medical Protocol and Periodicity Schedule as contained in 130 CMR 450.140 et seq. At a minimum such efforts shall include:
a. education of, and outreach to, Enrollees regarding the importance of well child care;
b. education of PCPs [primary care clinicians] regarding [MassHealth’s] EPSDT requirements and for the delivery of well child care;
c. coordination with school-based providers; and d. a process to measure and assure compliance with the EPSDT schedule.
See Statement, ¶ 40; Norton Aff. Ex. 1 at 86 (BMC/HealthNet), Ex. 2 at 81-82 (Cambridge
Health Alliance), Ex. 3 at 75 (Neighborhood Health Plan), Ex. 4 at 70 (Fallon Health Plan).
Alternatively, as described in applicable regulations, the state allows MassHealth
members to enroll in the state-managed Primary Care Clinician Plan (“the PCC Plan”). See
Statement, ¶ 41; see also 130 C.M.R. § 450.117. Members who select the PCC Plan may select a
primary care clinician (“PCC”) from among the primary care clinicians who are approved by the
state. See Statement, ¶ 42; see also 130 CMR 508.005. Similar to the MCO contracts, each
PCC’s contract includes the following provision concerning EPSDT Services:
The PCC shall: Inform all MassHealth Standard Enrollees under age 21 about the EPSDT
program, including the benefits of preventative health care, the services available under the EPSDT program and where and how to obtain these services;
Inform all MassHealth Standard Enrollees under age 21 that services are available without cost, except as may be provided under federal law, and that necessary transportation and scheduling assistance is available upon request;
Screen all Enrollees under age 21 and provide or refer such Enrollees to diagnosis and treatment services in accordance with the Division’s EPSDT medical protocol and periodicity schedule;
Ensure that all MassHealth Standard Enrollees under age 21 are provided or referred for all Medically Necessary care in accordance with EPSDT requirements.
8

See Statement, ¶ 43; Norton Aff. Ex. 5 at § 3.2.A (Second Amended and Restated Primary Care

Clinician (PCC) Plan Provider Contract).

The state contracts with a specialty managed care provider, currently the Massachusetts Behavioral Health Partnership (“MBHP”), to arrange behavioral health services for both members who select the PCC Plan and children in the care or custody of the Commonwealth (the “Behavioral Health Carve-Out Provider” or “BH Carve-Out Provider”). See Statement, ¶ 44; Norton Aff. ¶ K and Ex. 6. The MCOs and the BH Carve-Out Provider are under contract to provide over forty-nine behavioral health covered services.2 See Statement, ¶ 44; Norton Aff. ¶ M and Ex. 6 at App. C. As further discussed below, eligible MassHealth members under age 21 are not limited to these behavioral health services, but may request MassHealth coverage for any medically necessary service within the categories of “medical assistance” defined in the Medicaid Act. See Statement, ¶ 44; Norton Aff. ¶ E and Ex. 6.
In addition, the 1115 Waiver authorizes the state to administer the “Mental Health Services Program for Youth” pilot (“MHSPY”). See Statement, ¶ 46; Waldman Aff. Ex. 4 at § 3.2.2.2.4.3. The pilot, which originally operated only in Cambridge and Somerville but has since been expanded to several additional towns, is designed for children who are enrolled in MassHealth and receiving services from multiple state agencies.3 See Statement, ¶ 47; Waldman Aff., Ex. 4 at § 3.2.2.2.4.3.1. The MHSPY pilot is a service delivery model that integrates multiple funding streams for children who have a combination of medical/behavioral health, educational and social service needs. See Statement, ¶ 50; Waldman Aff. Ex. 4 at §

2

The BH Carve-Out Provides a somewhat enhanced covered services package in order to

provide services particularly needed by children in the custody of the Departments of Social

Services and Youth Services. See Statement, ¶ 45; Norton Aff. ¶ F and Ex. 6 at App. A-1, §§

I(C)(4), I(D)(2)-(6).

3

In 2003, MassHealth received federal approval to expand the MHSPY pilot and to

administer a second pilot called Coordinated Family-Focused Care (“CFFC”). See Statement, ¶

48. The BH Carve-Out Provider manages CFFC, which, like MHSPY, is also designed for

children who are eligible for MassHealth Standard and are receiving services from multiple state

agencies. See Statement, ¶ 49; Waldman Aff. Ex. 4 at § 3.2.2.2.4.4.6

9

3.2.2.2.4.3.1. The MHSPY pilot is intended to test the use of a traditional managed health care organization (currently, Neighborhood Health Plan) as a single point of entry for medical, behavioral health, social and family support services. See Statement, ¶ 51; Waldman Aff. Ex. 4 at § 3.2.2.2.4.3.1. Originally, MHSPY was funded from a combination of sources, including MassHealth, the Department of Social Services (“DSS”), the Department of Education, the Department of Mental Health (“DMH”) and the Department of Youth Services. See Statement, ¶ 52; Waldman Aff., Ex. 4 at § 3.2.2.2.4.3.1. Currently, DSS and DMH are the other state payor agencies, in addition to MassHealth. See Statement, ¶ 53; Norton Aff. ¶ O.
Children who are enrolled in MHSPY have access to the same MassHealth covered behavioral health services as children who obtain behavioral health services through the BH Carve-Out Provider or an MCO (including other children who obtain services from NHP and are not enrolled in MHSPY). See Statement, ¶ 54; Waldman Aff., Ex. 4 at § 3.2.2.2.4.3.1. In addition to covered behavioral health services for children, families of children who enroll in MHSPY (whether or not such family members are MassHealth Members) may obtain a number of social support services including, for example, respite care, behavioral management intervention with the family, parent aides, and other parent support. See Statement, ¶ 55; Norton Aff. ¶ Q and Ex. 3 at App. C Ex. 10, §§ B(2), C(2)(b) through (e).
In addition to covered behavioral health services, children who enroll in MHSPY may receive camping, recreation and access to “flexible funds,” which may be used to purchase such items as prom dresses and “Game Boys.” See Statement, ¶ 56; Norton Aff. ¶ P and Ex. 3 at App. C Ex. 10, §§ C(4)(a) and (b), F(1).
D. The Federal Secretary’s Ongoing Enforcement Authority The Secretary has ongoing enforcement authority with respect to state Medicaid programs. If, after a State Plan is approved, the Secretary finds that (1) “the plan has been changed so that it no longer complies with the provisions of section 1396a of this title” or (2) “in the administration of the plan there is a failure to comply substantially with any such provision,”
10

the Secretary “shall notify [the state agency in charge of the plan] that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.” 42 U.S.C. § 1396c.
The Secretary also exercises specific oversight and enforcement with respect to managed care contracts. Contracts with managed care organizations over a specified dollar amount must be approved in advance by the appropriate regional office of CMS. See 42 C.F.R. § 438.806. Federal funds are not available to the state unless the CMS regional office determines that the contract is compliant with the provisions of 42 C.F.R. § 438; see also Statement, ¶ 63. Federal funds are available to the state for expenditures under an MCO contract only if the contract complies with the Medicaid Act’s statutory and regulatory requirements and only if both the state and the MCO are in compliance with the contract and regulatory requirements. See 42 C.F.R. § 438.802, Statement ¶ 65. CMS has the authority to impose sanctions directly on MCOs and to make a referral to the federal Office of the Inspector General, who may impose additional civil money penalties. See 42 C.F.R § 438.730, Statement ¶ 66.
E. Plaintiffs’ Substantive Allegations The named plaintiffs include children all of whom allegedly have “intensive mental health needs.” See Complaint, ¶ 9-17. Plaintiffs allege that each named plaintiff and the other class members would benefit from access to “medically necessary intensive home-based services.” See Complaint, ¶ 66. Plaintiffs assert that although such “intensive home-based services” have proven successful in Cambridge and Somerville (where the MHPSY program operates), defendants have not developed intensive home-based services and have not established
11

procedures to reimburse and implement such services statewide. See Complaint, ¶ 129.4 Plaintiffs allege that defendants are violating the following provisions of the federal Medicaid Act as a result: 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(r )(5) (collectively, the “EPSDT medical assistance” provision), 1396a(a)43 (the “EPSDT program administration” provision), 1396a(a)(8) ( the “reasonable promptness” provision), 1396a(a)(30)(A) (the “equal access” provision) and 1396u-2(b)(5) (the “managed care access” provision). At a minimum, plaintiffs seek an order requiring defendants to “provide the intensive home-based services that the plaintiffs need and that they are entitled to receive in accordance with federal law,” Complaint ¶ 5.
ARGUMENT I. Federal Medicaid Law Does Not Require Statewide Expansion of an
Experimental Service Delivery Model Operated Pursuant to a Medicaid Waiver.
One of plaintiffs’ basic theories is that to satisfy the requirements of federal Medicaid law the MHSPY program must be expanded statewide. This theory is only hinted at in the Complaint, which asserts that the named plaintiffs require “medically necessary, intensive homebased services” (¶ 66) and that “intensive home-based services in Cambridge and Somerville” (where MHSPY operates) have “proven success and cost-effectiveness” (¶ 129). It is more explicit in plaintiffs’ experts’ disclosures. Barbara J. Burns, one of plaintiffs’ experts, opines that MHSPY is “generally consistent with nationally accepted mental health treatment standards for home and community-based programs,” offers “full access to mental health services within a single network, which is far superior to other service models,” that “confidence in the impressive findings for MA-MHSPY is strong,” but that MHPSY is “not available statewide” (Burns Disclosure, pp. 7, 9, 14, 17)5. Bruce Kamradt, another expert for the plaintiffs, asserts that

4

Although plaintiffs do not reference MHSPY by name, paragraph 129 of the Complaint is

an apparent reference to the MHSPY pilot. 5 Copies of all plaintiffs’ expert disclosures were filed with Docket No. 120 and are

available in the Clerk’s office.

12

“Families in Massachusetts are choosing to place and keep their children in institutional settings because they are not being offered an alternative that can provide the comprehensive, long-term services needed in their home and community,” and that MHPSY “is an excellent home based services program” (Kamradt Disclosure, pp. 19, 18). Carl Valentine offers an analysis of the cost of statewide expansion of home and community based services derived almost entirely from MHSPY costs (Valentine Disclosure, pp. 3-7). Marty Beyer, another expert for plaintiffs, opines that MHSPY and another program, CFFC, are the only Medicaid-funded programs in Massachusetts that offer home-based services designed to meet a child’s needs in his home and community, and that elsewhere in the state “programs that provide in-home services must be created” (Beyer Disclosure, p. 17).
As described above in this Memorandum, the MHSPY program is operated pursuant to a Medicaid waiver, specifically an 1115 Waiver granted by the federal Medicaid agency. In general, the purpose of Medicaid waivers is to authorize the federal Medicaid agency to waive certain Medicaid requirements for innovative or experimental state health care programs. Townsend v. Quasim, 328 F.3d 511, 514 (9th Cir. 2003); Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir. 2002) (“The waiver program is designed to allow states to experiment with methods of care, or to provide care on a targeted basis, without adhering to the strict mandates of the Medicaid system.”) The MHSPY pilot is intended to test the use of a traditional managed care health organization as a single point of entry for medical, behavioral health, social and family support services.
In granting the Commonwealth’s 1115 Waiver application, the federal Medicaid agency waived a number of provisions of federal law that would otherwise apply to the Massachusetts Medicaid program (above pp. 5-6). Specifically, it waived the requirements of statewideness and uniformity, thereby enabling the Commonwealth to provide managed care plans in certain geographic areas of the Commonwealth. It waived requirements with respect to the amount, duration, and scope of services, authorizing the Commonwealth to offer different services based
13

on different managed care arrangements, or in the absence of managed care arrangements. And it also specifically authorized federal funding for state expenditures for certain behavioral health services for which federal funding would not otherwise be available. That fact was reemphasized in a letter from CMS to the Massachusetts Medicaid program just last month (Waldman Aff., Ex. I) (“While CMS supports the goals and objectives of the MHSPY pilot project, we are required to limit federal financial participation (FFP) to services listed in the Massachusetts Medicaid Plan (State Plan) or to services for which the State has expenditure authority through the 1115 Demonstration Waiver.”)
MHSPY, in short, operates pursuant to a different set of rules than the Massachusetts Medicaid program generally. For that reason, plaintiffs' contention that the MHSPY delivery system is required to be replicated statewide in Massachusetts is fatally flawed. To the contrary, far from being required by federal law, MHSPY is able to operate because of a waiver of various Medicaid provisions. The recent CMS letter, identifying a variety of MHSPY services expressly including "Home, School and Community-Based Services" -- as ineligible for federal financial participation makes this clear. The Medicaid Act cannot be a basis for compelling a state to adopt a delivery model that, by design, includes the provision of services not eligible for federal financial participation, and that would require amendment of the state’s 1115 waiver in order for FFP to be claimed. Therefore, to the extent that plaintiffs seek to have this Court order expansion of MHSPY or a MHSPY-like program statewide, defendants are entitled to summary judgment.
II. Plaintiffs Lack a Private Cause of Action Under the Medicaid Act. A. The Gonzaga Analysis: Only Unambiguously Created Rights Are Enforceable Under Section 1983
In Gonzaga, the Supreme Court reaffirmed the longstanding principle that, “‘[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather
14

action by the Federal Government to terminate funds to the State.’” Gonzaga, 536 U.S. at 280 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981)) (emphasis added). Only in rare circumstances where Congress “speaks with a clear voice, and manifests an unambiguous intent to confer individual rights” may a court deviate from this general rule by allowing a private party to maintain an individual enforcement action under § 1983. Id. at 280, 283. (“We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.”) (emphasis added). The Court explicitly rejected the “confusion” that had “led some courts to interpret [its prior decisions in the private rights arena] as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect.” 6 Id. at 283. “[I]t is rights” – the Court stressed – “not the broader or vaguer ‘benefits’ or ‘interests’ that may be enforced under the authority of that section.” Id. (emphasis in original).
Whether Gonzaga represents “a tidal shift or merely a shift in emphasis” in the private rights arena, it nevertheless has forced courts, including the First Circuit, to re-examine their prior decisions to ensure compliance with Gonzaga’s heightened emphasis on “rights-creating language” and “individually focused terminology.” Long Term Care Pharm. Alliance v. Ferguson, 362 F.3d 50, 57-59 (1st Cir. 2004). Indeed, in Long Term Care, the First Circuit implicitly reversed its prior decision in Visiting Nurse Ass’n of N. Shore, Inc. v. Bullen, 93 F.3d 997 (1st Cir. 1996), cert. denied, 519 U.S. 1114 (1997), on the ground that “[i]f Gonzaga had existed prior to Bullen, the panel could not have come to the same result” with respect to the

6

In Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), the Court formulated a three-part

test to determine whether a private right of action exists. The statute must (1) be intended by

Congress to benefit the plaintiff, (2) not be “vague and amorphous,” and (3) impose an

unambiguous “binding obligation on the States.” Id. While not explicitly abandoning this test,

the Court in Gonzaga clarified that nothing “short of an unambiguously conferred right [can]

support a cause of action brought under § 1983.” Gonzaga, 536 U.S. at 283.

15

existence of a private right under the Medicaid Act’s equal access provision. Id. This is because, in the post-Gonzaga universe, a private right of action cannot be recognized where the “text and structure of a statute provide no indication that Congress intend[ed] to create new individual rights . . . .” 7 Gonzaga, 536 U.S. at 286. Similarly, where the “text and structure of a statute” are unclear or indefinite as to whether Congress intended to create such rights, “that means that Congress has not spoken with the requisite ‘clear voice.’” 31 Foster Children v. Bush, 329 F.3d 1255, 1270 (11th Cir.), cert. denied, 540 U.S. 984 (2003). “Ambiguity precludes enforceable rights.” Id. Plaintiffs bear the burden of establishing that the statute at issue confers an “individual right” enforceable by § 1983, and to identify that right with particularity. Id. at 284; Blessing v. Freestone, 520 U.S. 329, at 342 (1997) (it is “incumbent” upon plaintiffs claiming a “right” under a particular statute to articulate “well-defined claims”); see also Frison v. Zebro, 339 F.3d 994, 999 (8th Cir. 2003) (“The plaintiff bears the burden to demonstrate that the statute at issue confers a federal right on the plaintiff.”).
In Gonzaga, the Court found that the “text and structure” of the Family Educational Rights and Privacy Act (“FERPA”) foreclosed a private right of action under Section 1983 for alleged violation of that statute’s nondisclosure provisions.8 Significantly, the Court contrasted

7

Moreover, it is settled that the statutory text is the sole source from which a private right

may be derived. See Bonano v. East Caribbean Airline Corp., No. 03-1843, 2004 U.S. App. LEXIS 7984, at *8 (1st Cir. Apr. 22, 2004). Although a regulation may “define” or “flesh out”

the meaning of statutorily-created rights, it cannot alone “create individual rights enforceable through § 1983.” Save Our Valley v. Sound Transit, 335 F.3d 932, 935-36 (9th Cir. 2003); Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003) (“a regulation ‘may invoke a private right of

action that Congress through statutory text created, but it may not create a right that Congress

has not’”) (quoting Alexander v. Sandoval, 532 U.S. 275, 291 (2001)). As the Supreme Court

stated, “[a]gencies may play the sorcerer’s apprentice but not the sorcerer himself.” Sandoval,

532 U.S. at 291.

8

The relevant FERPA language provided: “No funds shall be made available under any

applicable program to any educational agency or institution which has a policy or practice of

permitting the release of educational records (or personally identifiable information contained

16

the “individually focused,” “rights-creating” language of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 (“no person shall be subject to discrimination”) with FERPA’s general provisions directed to the Secretary of Education (“No funds shall be made available” to any “educational agency or institution” that has a prohibited “policy or practice”). See Gonzaga, 536 U.S. at 287. The Court found that the focus of FERPA’s nondisclosure provisions was the Secretary’s duty to withhold funds in the event of noncompliance – not the “interests of individual students and parents.” Id. at 287; see also Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (“Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.”). Plaintiffs, therefore, were “two steps removed” from any right enforceable under Section 1983.
In addition to focusing on the Secretary’s obligation to withhold funds, the Court held that another reason why FERPA’s nondisclosure provisions did not create a federal right was that they “[spoke] only in terms of institutional policy and practice, not individual instances of disclosure.” Id. at 288. The provisions, therefore, had an aggregate focus, instead of a concern for “whether the needs of any particular person ha[d] been satisfied.” Id. Also significant was the fact that institutions could “avoid termination of funding so long as they ‘compl[ied] substantially’ with the Act’s requirements.” Id. (emphasis added). Compliance in every individual case was thus not required. See id. This language was reminiscent of the Court’s earlier holding in Blessing, where the Court found no basis for a private right under Title IV-D of the Social Security Act, which “required states receiving federal child-welfare funds to ‘substantially comply’ with requirements designed to ensure timely payment of child support.” Gonzaga, 536 U.S. at 281 (citing Blessing, 520 U.S. at 343). “‘Far from creating an individual entitlement to services, [the substantially comply] standard is simply a yardstick for the Secretary
therein. . . .) of students without the written consent of the parents to any individual, agency, or organization.” 20 U.S.C. § 1232g(b)(1).
17

to measure the systemwide performance of a State’s [child welfare] program.’” Id. (quoting Blessing, 520 U.S. at 343). Statutes that focus on the “‘aggregate services provided by the state,’ rather than ‘the needs of any particular person,’” accordingly confer no individual rights and cannot be enforced under Section 1983. Id. at 282 (quoting Blessing, 520 U.S. at 340).
Last, the Court deemed it significant that Congress “expressly authorized the Secretary of Education to “deal with violations’ . . . and to ‘establish or designate a review board’” for investigating and adjudicating violations of the Act. Gonzaga at 289. Without considering whether this enforcement mechanism was sufficiently comprehensive to independently foreclose a private right of action, see id. at 284-85, n.4, the Court held that its existence nevertheless “buttressed” the conclusion that no private right existed because the statute provided a means whereby “aggrieved individuals” could obtain “federal review.” Id. at 289-90 & n.8. Moreover, as Justice Breyer explained in his concurring opinion, “much of the statute’s key substantive language is broad and nonspecific,” id. at 292 (Breyer, J., joined by Souter, J., concurring in the judgment), thereby suggesting that “exclusive agency enforcement might fit the scheme better than a plethora of private actions threatening disparate outcomes.” Long Term Care, 362 F.3d at 58 (citing Justice Breyer’s concurring opinion).
B. The Text and Structure of the Medicaid Act Do Not Unambiguously Confer Private Rights
Naturally, the Medicaid Act benefits those individuals who are eligible to receive medical assistance under a participating state’s plan. The Gonzaga standard, however, requires more than a mere showing that the Act may benefit an individual to support a cause of action under Section 1983: it requires a showing that Congress unambiguously intended the Medicaid Act to confer privately enforceable rights on individual Medicaid recipients. See id. at 280, 283. Nothing in the text or structure of the Medicaid Act as a whole or, more particularly, in the specific statutory provisions on which plaintiffs rely, establishes any such unambiguous intent to create new private rights. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000)
18

(courts must interpret a single statutory provision in relation to, and in harmony with, the text and purpose of the statute as a whole).
1. No Individually Focused, Rights-Creating Language Like the FERPA provisions that the Court examined in Gonzaga, the Medicaid Act (at least, as relevant here) does not contain the sort of “individually focused,” “rights-creating” language that is “critical to showing the requisite congressional intent to create new rights.” Gonzaga, 536 U.S. at 280; contrast Rolland v. Romney, 318 F.3d 42, 44, 46, 53, n.10 (1st Cir. 2003) (post-Gonzaga, finding private right of action under the Nursing Home Reform Amendments (“NHRA”) to the Medicaid Act, 42 U.S.C. § 1396r, because those amendments conferred “specific enumerated rights” on nursing home residents).9 Rather, the Act consists of a series of directives to the federal government (to appropriate funds for the program), to the Secretary (to approve State Plans and enforce the provisions of the Act), and to the state agencies charged with designing and administering a State Plan. See 42 U.S.C. §§ 1396, 1396a, 1396c. These directives are not a proper source from which to infer private rights because, like the FERPA provisions at issue in Gonzaga, they speak only in terms of regulating the conduct of government officials and controlling the expenditure of federal funds. See Gonzaga, 536 U.S. at 287 (citing Sandoval, 532 U.S. at 289). Medicaid recipients (like the students and parents in Gonzaga) are therefore at least “two steps” removed from this statutory focus.

9

Section 1396r(c) of the NHRA expressly states that a “nursing facility must protect and

promote the rights of each resident,” including the “right to choose a personal attending

physician,” the “right to be free from physical or mental abuse,” the “right to privacy with regard

to accommodations, medical treatment,” the “right to confidentiality of personal and clinical

records,” and the “right to reside and receive services with reasonable accommodation of

individual needs and preferences.” 42 U.S.C. § 1396r(c)(1)(A)(i)-(v). Given this literal “laundry

list of rights” extended to nursing home residents, the First Circuit did not hesitate in finding a

privately enforceable right of action under § 1983. See Rolland, 318 F.3d at 53, n.10. No

similarly express “rights-creating” language is at issue here.

19

2. Aggregate, Not Individual, Focus
In contrast to the sort of “individually focused terminology” that the Court held would demonstrate an unambiguous congressional intent to create “new individual rights,” the enabling section of the Medicaid Act establishes that its purpose is to enable “each State, as far as practicable under the conditions in each State, to furnish” medical assistance to eligible needy persons. 42 U.S.C. § 1396 (emphasis added). Subsequent sections of the Act spell out in great detail the requirements for approval of a State Plan.10 See 42 U.S.C. § 1396a. These are matters of administrative “policy and practice,” not matters of individual rights. See Gonzaga, 536 U.S. at 288. Additionally, when a state’s compliance with the Act is in question, the focus of the Secretary’s inquiry is on the plan or administration of the plan, not on individual instances of noncompliance. See 42 U.S.C. § 1396(c)(1)-(2) (“If the Secretary . . . finds that the plan has been changed so that it no longer complies . . . or that in the administration of the plan there is a failure to comply. . . .”) (emphasis added). And, even then, compliance in every individual case is not required; rather, the statute requires only that a state’s plan and the state’s administration of its plan “comply substantially” with the requirements of the Medicaid Act. See 42 U.S.C. § 1396c(2). As the Court in Gonzaga stated, “‘[f]ar from creating any individual entitlement to services, the [comply substantially] standard is simply a yardstick for the Secretary to measure systemwide performance of [the state] program.’” Gonzaga, 536 U.S. at 281 (quoting Blessing, 520 U.S. at 343) (emphasis in original). The Medicaid Act therefore has an “aggregate” focus, concerned with addressing the overall administration of a public spending program, as opposed to addressing the particular needs of individual recipients. See id. at 288; see also Alexander v.
10 Defendants do not contend that the provisions at issue here are unenforceable simply because they are included in a section requiring or specifying the contents of a State Plan. See 42 U.S.C. § 1320a-2 (precluding such reliance); Rabin v. Wilson-Coker, 362 F.3d 190, 202 (2nd Cir. 2004) (rejecting argument that no private right existed where argument was based solely on the fact that provision was included in plan requirements section). Rather, defendants contend that the provisions at issue here are unenforceable for all of the other reasons detailed above and relied on by the Supreme Court in Gonzaga. See Harris v. James, 127 F.3d 993, 1002-03 (11th Cir. 1997) (discussing the limited applicability of § 1320a-2 and recognizing similar distinction).
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Choate, 469 U.S. 287, 303 (1985) (“. . . Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services, such as [coverage for dental services]”).
3. Multiple Enforcement Mechanisms The conclusion that Congress did not intend to create new private rights under the Medicaid Act is further bolstered by the mechanisms it chose to provide for its enforcement. See Gonzaga, 536 U.S. at 289; Long Term Care, 362 F.3d at 58 (“the presence of an explicit enforcement mechanism weighs against inferring private rights of action”). Initially, of course, the Secretary can enforce compliance with Medicaid conditions by withholding approval of a State Plan. See Long Term Care, 362 F.3d at 56 (citing 42 C.F.R. § 430.15); see also 42 U.S.C. § 1316(a). After a State Plan has been approved, the Secretary maintains enforcement authority and is expressly empowered to cut off or reduce funding to any state whose plan “no longer complies with the provisions of § 1396a” or whose “administration of the plan” fails to “comply substantially with any such provision.” 42 U.S.C. § 1396c (emphasis added); see also Long Term Care, 362 F.3d at 56 and 58 (noting that the Medicaid Act “decidedly is not a situation lacking an outside watchdog”). Significantly, the Secretary may restore such funding only when he or she is “satisfied that there will no longer be any such failure to comply.” 42 U.S.C. § 1396c. By its own language, the Medicaid Act establishes that “plan review by the Secretary is the central means of enforcement intended by Congress.” Long Term Care, 362 F.3d at 58. In addition, the Medicaid Act requires the Secretary to monitor strictly all aspects of managed care contracting and managed care contract compliance, to withhold funds from states and impose sanctions on non-compliant MCOs. See 42 C.F.R. § 438; see also Walsh, 538 U.S. at 675 (“. . . the remedy for a State’s failure to comply with the obligations it has agreed to undertake under the Medicaid Act . . . is set forth in the act itself: termination of funding by the Secretary. . . .”) (Scalia, J., concurring); id. at 679-80 (Thomas, J., concurring).
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Because Congress chose to provide a centralized enforcement mechanism to ensure State Plan compliance, compliance with waivers of such State Plan requirements and compliance with managed care requirements, it is “implausible to presume” that Congress intended challenges to a state’s administration of its Medicaid plan, 1115 Waiver administration or managed care contracts to be subject to “a plethora of private actions threatening disparate outcomes.” Gonzaga, 536 U.S. at 290 and 292 (Breyer, J., concurring). Indeed, broad-based challenges of the sort brought here “essentially invite[] the District Court to oversee every aspect” of the state Medicaid program and, thereby, intrude impermissibly upon the authority that Congress has vested in the Secretary to police State Plan compliance with the Medicaid Act. See Blessing, 520 U.S. at 341 (holding that a request by plaintiffs for a “broad injunction requiring the director of Arizona’s child support agency to achieve ‘substantial compliance’” with Title IV-D requirements and “[a]ttributing the deficiencies in the state’s program to staff shortages and other structural defects” inappropriately “invited the District Court to oversee every aspect of” the state program). Thus, where a group of persons (like plaintiffs here) claim that the state has failed to administer its plan in conformity with the conditions imposed by the Medicaid Act, they “must seek enforcement of the Medicaid conditions” through the authority conferred on the Secretary under § 1396c(1)-(2) – “and may seek and obtain relief in the [federal] courts only when the denial of enforcement is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Walsh, 538 U.S. at 675 (Scalia, J., concurring, emphasis added) (quoting 5 U.S.C. § 706(2)(A)).
Congressional intent to foreclose private rights of action challenging a state’s administration and management of its Medicaid plan is further demonstrated by the review mechanism that Congress provided for challenges to individual plan decisions. See Gonzaga,
22

536 U.S. at 289-90 (distinguishing Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987) and Wilder v. Virginia Hosp. Ass’n., 496 U.S. 498 (1990) on the ground that aggrieved individuals there “lacked any federal review mechanism” at all to ensure program compliance).11 Section 1396a(a)(3) expressly requires all participating states to provide a means whereby Medicaid recipients may obtain administrative review of a state’s denial of or failure to act with “reasonable promptness” upon any individual request for medical assistance. See 42 U.S.C. § 1396a(a)(3) (fair hearing plan requirement). Massachusetts has such an administrative review procedure, see 130 C.M.R. § 610.032 (listing the multiple grounds upon which a fair hearing may be requested under the MassHealth plan, which include adverse determinations made by MCOs); and, any individual who is “dissatisfied with the final decision of the hearing officer” in such a proceeding may obtain judicial review of that decision pursuant to the Massachusetts Administrative Procedures Act. See 130 C.M.R. § 610.092. Although these administrative procedures may not be sufficiently comprehensive to independently preclude private enforcement under § 1983 in and of themselves, see Wilder, 496 U.S. at 521, the fact that Congress included them in the Medicaid Act nevertheless “further counsel[s] against . . . finding a congressional intent to create individually enforceable private rights.” Gonzaga, 536 U.S. at 290 and n.8; see also Cannon v. University of Chicago, 441 U.S.677, 707 n.41 (1979) (noting
11 The fact that Congress chose to rely on state – not federal – administrative review procedures for challenges to individual Medicaid plan decisions is not surprising given the joint federal-state nature of the Medicaid program. Nor is this a legitimate basis upon which to distinguish the result reached in Gonzaga (which, of course, did not involve such a joint federalstate program). As Gonzaga makes clear, the critical consideration in determining whether a private right should be implied is not whether the review is state or federal, but whether it provides an adequate mechanism pursuant to which an aggrieved individual may obtain relief. See Gonzaga, 536 U.S. at 280 and 290 (distinguishing those situations where a private right of action was found because the statutory scheme provided no meaningful opportunity for administrative review); Cannon v. University of Chicago, 441 U.S. 677, 707 n.41 (1979) (same).
23

that the Court has declined to imply private rights where “administrative or like remedies are expressly available” under the statute).
A review of the relief sought by the plaintiffs reveals that the plaintiffs are, in essence, seeking nothing less than the wholesale transformation of the state’s Medicaid system as it relates to children with mental or behavioral health issues. Among other things, plaintiffs are seeking to have this Court issue an injunction to “establish and implement policies, procedures, and practices for screening and evaluating the plaintiffs and members of the plaintiff class to determine whether intensive home-based services are medically necessary to treat or ameliorate their behavioral, emotional, or psychiatric conditions.” Complaint, Ad damnum clause, para. 2; Plaintiffs’ response to Defendants’ First Set of Interrogatories, Response to Interrogatory No. 18 (among the specific decisions plaintiffs challenge are those “to limit the duration, intensity, and capacity of FST and CSP”; “not to substantially expand MHSPY”; “to limit CFFC to six locations”; “not to include intensive home-based services, behavioral specialists, community therapeutic activities and after school support services in the Medicaid State Plan or Rehabilitation Plan or waiver”; “not to invest in intensive home-based services and to instead invest in costly in-patient hospitalization, and residential programs”; and “not to continue prefiling settlement discussions on the design and structure of a statewide home-based services model.”) In sum, there can be no question that this is a challenge to the Commonwealth’s administration and management of its Medicaid plan; as such, no private right of action is available.
C. Two of the Particular Medicaid Provisions on which Plaintiffs Rely Do Not Unambiguously Confer Private Rights
The conclusion that Congress did not unambiguously create private rights under the Medicaid Act is further confirmed by analysis of the text and structure of two of the particular provisions on which plaintiffs rely. Each provision is addressed in turn.
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1. Equal Access – §1396a(a)(30) (Complaint Count III)
The First Circuit recently held, in an action brought by a group of Medicaid service
providers, that the equal access provision provides no private right of enforcement under Section
1983. See Long Term Care, 362 F.3d at 57-59. The analysis applied by the First Circuit in
Long Term Care is controlling here.12 As the Court there noted, the equal access provision has
“no ‘rights-creating language’ and identifies no discrete class of beneficiaries – two touchstones
in Gonzaga’s analysis . . . and of those earlier cases on which Gonzaga chose to build.” Id. at 57.
“The provision focuses instead upon the state as ‘the person regulated rather than individuals
protected . . . , suggesting no ‘intent to confer rights on a particular class of persons,’ or at least
not providers.” Id. (internal citations omitted). Indeed, “read literally” the equal access
provision does not make its criteria (avoiding overuse, efficiency, quality of care, and geographic
12 District court cases from other circuits have reached different conclusions, but the reasoning in these decisions is flawed. For example, in Memisovski v. Maram, No. 92 C 1982, 2004 WL 1878332, at * 5-7 (N.D. Ill. Aug. 23, 2004), the court relied on 42 U.S.C. § 1320a-2 in concluding that the Medicaid Act’s equal access provision conferred a private right of action. Section 1320a-2 provides in pertinent part: “[a provision] is not deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan . . .” Based on this statute, the court reasoned that a provision elaborating on what a State Plan must include cannot be deemed enforceable. However, this reasoning ignores a significant threshold issue: the provision must still create an unambiguous private right in the first place. Section 1320a-2 merely provides that an otherwise enforceable right shall not be deemed unenforceable merely because it appears in a statute mandating that participating states include a particular provision in their State Plans. See id. at *6 (citing Messier v. Southbury Training Sch., 916 F. Supp. 133, 144 (D. Conn. 1996) (“[T]he fairest reading of Section 1320a-2 is that Congress was concerned only that a court should not eviscerate an otherwise enforceable right merely because it appears in a statute mandating that participating states include a particular provision in their state plans.”)). The court’s secondary argument based solely on Section 1396a(30)(A) and its legislative history entailed similarly flawed reasoning. The court argued (in the negative) that Section 1396a(30)(A) “is not phrased in indirect terms” and had it been, “that might suggest that no single beneficiary is entitled to quality care or equal access.” Id. at *6 (internal quotation marks omitted). The court also argued that the absence of language in legislative history specifically prohibiting Medicaid recipients from filing private actions indicates that Congress did not intend to foreclose these types of suits. These types of argument in the negative fall far short of the Gonzaga requirement that a statute create an unambiguous private right. See also Clark v. Richman, 339 F. Supp.2d 631, 639-40 (M.D. Pa. 2004) (adopting arguments set forth in Memisovski and holding that Section 1936a(30)(A) grants private right of action).
25

equality) “directly applicable to individual state decisions; rather state plans are to provide ‘methods and procedures’ to achieve these general ends.” Id. at 58. The statute, therefore, has an aggregate or systemwide focus, not an individual focus. See id. Moreover, the “generality of the goals and the structure for implementing them suggests that plan review by the Secretary is the central means of enforcement intended by Congress.” Id. For all of these reasons, the Court declined to follow a number of circuit court decisions issued prior to Gonzaga that reached the opposite conclusion and effectively overruled its prior (contrary) decision in Bullen. See id. at 58-59 & n.5.
Plaintiffs likely will contend that Long Term Care is not controlling here because they are a group of Medicaid recipients, not providers. Although the First Circuit arguably left some room for making this sort of distinction (since the “rights” of Medicaid recipients were not at issue there), see Long Term Care, 362 F.3d at 57; the distinction does not withstand scrutiny for the same reasons identified above. Indeed, at least one district court in Massachusetts has expressly rejected just such a distinction. See Health Care for All v. Romney, No. 00-10833RWZ, slip op. (D. Mass. Oct. 1, 2004) (copy attached) (Following Long Term Care, holding MassHealth members have no private right of enforcement of equal access provision in lawsuit concerning EPSDT dental services) (see also Sanchez v. Johnson, 301 F. Supp.2d 1060, 1063-64 (N.D. Cal. 2004) (post-Gonzaga, Medicaid recipients have no private right of enforcement under equal access provision); Sanders ex rel. Rayl v. Kansas Dep’t of Soc. & Rehabilitative Servs., 317 F. Supp.2d 1233, n.5 (D. Kan. 2004) (same conclusion, in dicta).13 In Sanchez, the district
13 In an earlier decision, another district court from the same circuit as the Sanchez Court held that the economy and efficiency criteria of the equal access provision were aimed at benefiting the state, and thus did not confer any private right on Medicaid providers or recipients. See Clayworth v. Bonta, 295 F. Supp.2d 1110, 1122 (E.D. Cal. 2003). The Clayworth Court proceeded to hold, however, that the quality care and equal access criteria of the same provision
26

court concluded that “[w]hile § 30(A) benefits both recipients and providers of [Medicaid]
services, the language of the statute does not clearly confer an enforceable right on either.” Id. at
1063. Instead, “Section 30(A) has an aggregate focus[,]” reflecting a Congressional intent to set
forth the “State’s obligation to develop ‘methods and procedures’ of providing medical
services.” Id. at 1064. As such, it does “not reflect a congressional intent to create a private
right of action.” Id.
Moreover, even prior to Gonzaga, courts observed that the equal access provision was
primarily “directed at prohibiting the payment of insufficient reimbursement rates to providers.”
Sobky v. Smoley, 855 F. Supp. at 1138 (emphasis added); see also Long Term Care, 362 F.3d at
57 (noting that “some traces of legislative history suggest that Congress assumed or favored the
ability of providers to get relief for inadequate payment rates,” but nevertheless finding no
private right for providers to sue for such rates under Section 1396a(a)(30)(A)). While increased
reimbursement rates for providers of Medicaid services may indirectly benefit the recipients of
such services by (theoretically) encouraging more providers to participate in the State Plan,
Medicaid recipients, like the parents and students in Gonzaga, are at least “two steps removed”
from this goal. See Gonzaga, 536 U.S. at 287. Indeed, Medicaid recipients are even more
removed than the providers themselves, whom the First Circuit explicitly held have no private
right of enforcement under this provision. See Long Term Care, 362 F.3d at 59.
did confer a private right on Medicaid recipients (but not providers), despite the court’s acknowledgment that, “as to [recipients], the language of Section 30A is not the paragon of rights-creating language.” See also Association of Residential Resources v. Minnesota Comm’r of Human Resources, No. 03-2438, 2003 U.S. Dist. LEXIS 15056, at **24-25 (D. Minn. Aug. 29, 2003) (holding, in connection with ruling on preliminary injunction and relying on Eighth Circuit precedent issued prior to Gonzaga, that the equal access provision created a private right enforceable by Medicaid providers and recipients). The Clayworth Court’s analysis cannot be squared with Gonzaga’s unambiguous rights requirement or the First Circuit’s holding in Long Term Care. Nor is there any basis under settled rules of statutory construction for the Clayworth Court’s unusual parsing of Section 30A’s text, which appears to have impermissibly isolated selected portions of the text from its surrounding language. See Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Progs., U.S. Dep’t of Labor, 136 F.3d 34, 44 (1st Cir. 1998) (“we must read statutes as a whole, rather than focus on isolated phrases”).
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2. Managed Care Access Provision – §1396u-2(b)(5) (Complaint Count IV) Applying the analysis articulated in Gonzaga and Long Term Care, the managed care access provision provides no private right of enforcement under Section 1983. As is true of the equal access provision, the managed care access provision has no “rights creating language” and identifies no discrete class of beneficiaries; the language focuses on the entities to be regulated – the managed care organization and the state – suggesting “no intent to confer rights on a particular class of persons.” See, e.g., Long Term Care, 362 F.3d at 59 (internal citations omitted). The provision requires states to obtain from any managed care organization with which they contract, “assurances” that the MCO has the “capacity” to serve “expected enrollment.” It requires that the MCO offer an “appropriate range of services” and “access” for the “population expected to be enrolled,” and, using language similar to that found in Section 1396a(a)(30)(A), that the MCO maintains a “sufficient number, mix and geographic distribution of providers of services.” This language has an aggregate or a system wide focus, not an individual one. See id. Moreover, the generality of the goals and the structure for implementing them – which includes direct reporting from the MCOs to the state and review by the Secretary of Health and Human Services – strongly suggest that Secretary is the means of enforcement intended by Congress. This is particularly true where CMS prior approves MCO contracts, where federal funding is directly linked to substantial compliance with this provision and where CMS has authority to directly impose civil penalties on MCOs and refer MCOs to the Office of the Inspector General for noncompliance with the provision. Where the text of the managed care access provision demonstrates that the provision focuses on the entity to be regulated – the state and the managed care organization – the goals of the provision are system wide, and not focused on establishing an individual right, and where the Secretary maintains multiple and specific enforcement mechanisms, there is no private enforcement of the provision and defendants are entitled to summary judgment as a matter of law.
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III. The Managed Care Access Provision, §1396u-2(b)(5), Is Inapplicable. The Balanced Budget Act of 1997 (the “BBA”) explicitly exempts Massachusetts, and other states with 1115 Waivers, from provisions within the managed care statute that were covered under the state’s 1115 Waiver, thus “grandfathering” the approved Waiver notwithstanding the BBA. As discussed below, Massachusetts’ 1115 Waiver is grandfathered with respect to the provisions of 1396u-2(b)(5), which is the basis for Count IV of the Complaint. Section 1396u-2 was passed as part of a major piece of Medicaid reform legislation contained within the BBA. Prior to the passage of the BBA, states could not require Medicaid enrollees to enroll in managed care without obtaining a waiver from CMS of a number of applicable provisions of Section 1396a(a) of the Act (e.g., 42 U.S.C. §1396a(a)(1) – statewideness; §1396a(a)(10)(B) – amount, duration, scope of services; § 1396a(a)(23) – freedom of choice). The BBA allows states to require Medicaid enrollees to enroll in managed care subject to the provisions of § 1396u-2 and other applicable statutory and regulatory provisions not relevant here. See 42 U.S.C. § 1396u-2. When Congress enacted the BBA, it was mindful of the disruption that changes in the managed care rules could have on the 1115 research and demonstration waivers then in effect in number of states, including Massachusetts. The BBA explicitly exempts states with 1115 Waivers from provisions within the managed care statute that were covered under the state’s 1115 Waiver, thus “grandfathering” the approved Waiver notwithstanding the BBA. Section 4710(c) of the BBA (the grandfathering provision) establishes that:
Nothing in this [managed care] chapter shall be construed as affecting the terms and conditions of any waiver, or the authority of the Secretary of Health and Human Services with respect to any such waiver, under section 1115 . . . of the Social Security Act.
29

42 U.S.C. § 1396u-2. The grandfathering provision clearly reflects the congressional intent that states be free to
operate under the terms of the 1115 Waiver – once approved – notwithstanding the provisions of the BBA statute and regulations. In addition to the grandfathering provision itself, Congress included in the BBA an amendment to the 1115 Waiver statute specifically to provide for continuation of an approved waiver through a streamlined waiver extension process. See 42 U.S.C. §1315(e). CMS recognizes the grandfathering provision applies to the regulations it promulgated to implement the BBA and, as a result, the terms of the Waiver are to take precedence over those regulations. See 67 Fed. Reg. at 40993-40994 and 41072-41073 (discussing the BBA grandfathering provision).
Massachusetts’ 1115 Waiver was in effect at the time the BBA was passed and remains in effect until June 30, 2005, pursuant to an extension the state obtained under 42 U.S.C. § 1315(e)(6). See Statement, ¶ 28; Waldman Aff., Ex. 5 at 1. In accordance with the “grandfathering” provisions of the BBA, CMS reviewed the MassHealth 1115 Waiver to determine the effect of the BBA on it. See Waldman Aff., Ex. 5. By letter dated October 10, 2003, CMS determined that a number of the regulations would have a “potential impact on the current terms and conditions of the MassHealth 1115 Demonstration Waiver” and that the state “was exempt from those regulations through the end of June 30, 2005.” Id. The letter goes on to state:
In conducting this review, we ensured that the provisions are specifically addressed in the state’s waivers, special terms and conditions, operational protocol, or other official state policy or procedure approved by CMS.
30

The statute at issue here, § 1396u-2(b)(5), and implementing regulations 42 C.F.R. § 438.200-438.242, were among the provisions CMS identified as inapplicable based on the grandfathering provisions of the BBA. See id. at 4.
Since the BBA currently grandfathers the Commonwealth’s waiver provisions, Massachusetts is not subject to the provisions of 42 U.S.C. § 1396u-2(b)(5) and plaintiffs cannot rely on those provisions to support a claim against the state defendants. As a result, defendants are entitled to summary judgment as a matter of law on Count IV of the Complaint.
CONCLUSION For all of the foregoing reasons, defendants’ motion for summary judgment should be granted.

Dated: December 16, 2004

Respectfully submitted,
THOMAS F. REILLY ATTORNEY GENERAL
Attorney for Defendants
___/s/ Deirdre Roney__________ Deirdre Roney, BBO No. 652886 Adam Simms, BBO No. 632617 John R. Hitt, BBO No. 567235 Assistant Attorneys General Government Bureau One Ashburton Place – Room 2019 Boston, MA 02108 (617) 727-2200 Ext. 2093, 2052

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 Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) CIVIL ACTION NO. 01-30199-MAP ) ) )

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO MODIFY JUDGMENT
(Dkt. No. 431) February 27, 2009 PONSOR, D.J. On January 26, 2006, this court issued its Memorandum of Decision, finding that Defendants violated the Medicaid Act by failing to provide medically necessary screening, diagnostic, and treatment services to eligible children suffering from serious emotional disturbances. See Rosie D. v. Romney, 410 F. Supp. 2d 18 (D. Mass. 2006). On February 22, 2007, the court issued a further order, adopting Defendants’ proposed remedial plan, subject to certain provisos. See Rosie D. v. Romney, 474 F. Supp. 2d 238 (D. Mass. 2007). In accepting, in large part, Defendants’ remedial proposal the court explicitly put the burden on the shoulders of Defendants to honor their own commitment. The court observed that . . . there is some force in being able to say to Defendants: You have endorsed this plan, now implement it; prove to the court that it will work.

Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 2 of 6
Undue delay or ineffective programming will not be excused by complaints that Defendants are being forced to implement a plan they never bought into. Id. at 239. Following issuance of the remedial plan, the court entered judgment in favor of Plaintiffs on July 16, 2007. 497 F. Supp. 2d 76 (D. Mass. 2007). In doing this, the court again showed deference to Defendants; the form of judgment largely followed Defendants’ proposal. The judgment was not appealed. Since entry of the remedial order and appointment of a monitor, the parties have been working towards the effectuation of the remedial plan with the creation of new treatment modalities for class members. With the assistance of the court monitor, and the good faith efforts of both Plaintiffs and Defendants, considerable progress has been made. On January 16, 2009, Defendants filed a motion to amend the court’s judgment (Dkt. No. 431), seeking leave of the court to postpone implementation of certain services required by the remedial order. Specifically, Defendants sought to postpone for one year the implementation date for four services: In-Home Behavioral Services, In-Home Therapy Services, Therapeutic Mentoring Services, and Crisis Stabilization Services. The justification for the requested
2

Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 3 of 6
postponement was the fiscal crisis facing the Commonwealth. Defendants estimated that the one-year postponement of these services would save the Commonwealth $48,000,000. Under Defendants’ proposal, all remaining services, including most importantly Intensive Care Coordination Services, would fall into line on the required date of July 1, 2009.
On February 2, 2009, Plaintiffs filed a motion for discovery and briefing regarding Defendants’ request for modification, and the court heard argument on both motions on February 12, 2009. At the hearing, Plaintiffs’ counsel argued vigorously that Defendants had failed to demonstrate any adequate fiscal justification for a postponement of implementation of the four services, that the Plaintiff class would suffer disproportionately by the delay in comparison to other needy populations in the Commonwealth, and that separating care coordination services from substantive treatment services by a year would be indefensible from an administrative and clinical viewpoint. Plaintiffs argued that, at a minimum, they should be permitted to take discovery to probe the fiscal background and process of decision-making that led to Defendants’ proposal.
At the conclusion of the February 12 hearing, the court made two preliminary decisions. First, the court denied Plaintiffs’ request for discovery and an evidentiary hearing
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Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 4 of 6
regarding Defendants’ decision-making process, on the ground that it would risk an improper intrusion by the federal court into the sphere of discretion properly exercised by the Commonwealth. Second, the court indicated that it would not countenance a one-year delay of the four services for class members. The children awaiting these services are among the most fragile and vulnerable citizens of the Commonwealth; their needs have been grossly neglected for decades. Given this history, the irony of creating care coordination services at one point, with substantive therapeutic treatment to follow only a year later, was too cruel for long consideration.
Having made these two preliminary decisions, the court directed the parties to attempt to negotiate a resolution of their differences, considering a possible postponement of some of the four substantive services in the three-month to sixmonth range. Pursuant to the court’s request, and consistent with the good faith that both sides have shown throughout the implementation process, extensive efforts were made to negotiate a resolution to the dispute. Unfortunately, while the differences were narrowed, complete resolution proved to be out of the parties’ reach.
Following negotiations, however, Defendants filed a Revised Proposal to Extend Certain Deadlines (Dkt. No. 439). The revised proposal contemplated implementation of three
4

Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 5 of 6
services (Intensive Care Coordination, Mobile Crisis Intervention, and Family Partners) no later than July 1, 2009, with In-Home Behavioral Services and Therapeutic Mentoring Services to be delayed by three months, Crisis Stabilization by five months, and In-Home Therapy by six months.
Counsel appeared for argument on this revised proposal on February 25, 2009. Based on the parties’ presentations, it became clear that a crucial sticking point was the six-month delay in In-Home Therapy Services. The In-Home Therapy component of the treatment regimen provides support to families and children aimed at permitting children with serious emotional disturbances to stay in their homes. Clinically, well more than half of the class population needs these services, and they are therapeutically one of the key components of the remedial plan. Counsel for Defendants estimated that the revised proposal would garner savings to Defendants of approximately $18,000,000.
Following argument, the court adopted Defendants revised proposal, with one exception. In-Home Therapy Services will commence on November 1, 2010, following a four-month, not a six-month, postponement. Assuming that a two-month modification of the proposed postponement will reduce the savings contemplated by Defendants by approximately $4,000,000, this still means that the contribution by this
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Case 3:01-cv-30199-MAP Document 443 Filed 02/27/2009 Page 6 of 6
class of disabled children to assist the Commonwealth’s fiscal crisis will be approximately $14,000,000. This is enough.
The court is sensitive to the difficult decisions that these economic times force onto the Commonwealth and is willing to respond with some degree of flexibility. On the other hand, these children have already waited far too long for the services they are legally entitled to under the Medicaid statute. The modification adopted by the court represents the fairest and most sensible balance achievable in this situation.
Based on the foregoing, the court hereby ALLOWS Defendants’ Motion to Modify Judgment (Dkt. No. 431), to the extent that In-Home Behavioral Services and Therapeutic Mentoring Services may commence by October 1, 2009, In-Home Therapy Services may commence by November 1, 2009, and Crisis Stabilization Services may commence by December 1, 2009. In all other respects, the original Remedial Order of February 22, 2007 will remain as issued.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge
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 410 F.Supp.2d 18 410 F.Supp.2d 18, Med & Med GD (CCH) P 301,777 (Cite as: 410 F.Supp.2d 18)
Motions, Pleadings and Filings
United States District Court, D. Massachusetts.
ROSIE D. et al., Plaintiffs, v.
Mitt ROMNEY et al., Defendants. No. CIV.A.01-30199-MAP.
Jan. 26, 2006.
Background: Children with serious emotional disturbances (SED) brought class action against State of Massachusetts under ' 1983, alleging that State failed to provide them with services required by Medicaid Act. Following affirmance of denial of motion to dismiss based on Eleventh Amendment immunity, 310 F.3d 230, non-jury trial was held.
Holdings: The District Court, Ponsor, J., held that: (1) State failed to provide children suffering from SED with adequate early and periodic screening, diagnostic, and treatment services (EPSDT); (2) State failed to satisfy Act's "reasonable promptness" requirement; and (3) State did not violate Act's "equal access" provision. Judgment for children as to liability.
*21 James C. Burling, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Cathy E. Costanzo, Center for Public Representation, Northampton, MA,
Gabrielle E. Foote, New York, NY, John Sup Rhee, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA,
Frank J. Laski, Mental Health Legal Advisors Committee, Boston, MA, Samantha J. Morton, Hale & Dorr, LLP, Boston, MA, Steven J. Schwartz, Center for Public Representation, Northampton, MA,
Sara Jane Shanahan, Griesinger, Tighe & Maffei, LLP, Boston, MA, for Anton B., Chelsea T., Chris T., Christine Q., Danielle H., Devin E., Forrest W., Jason S., Jerry N., Jose M., Joshua D., Kristin P., Marc St. L., Natisha M., Ralph B., Rosie D., Samuel L., Sarah B., Shaun E., Sheena M., Shentelle G., Terrence M., Tevin W., Tyriek H., Nathan F., Plaintiffs.
Daniel J. Hammond, Attorney General's Office, Boston, MA, Bart Q. Hollander, Attorney General's Office, Springfield, MA, Timothy M. Jones , Mass. Attorney General's Office,
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Springfield, MA, Stephanie S. Lovell, Attorney General's Office, Boston, MA, Deirdre Roney, Attorney General's Office, Boston, MA, John R. Hitt, Attorney General's Office, Boston, MA, Juliana deHaan Rice, Attorney General's Office, Boston, MA, Adam Simms, Deutsch Williams, Boston, MA, for EOHHS, Eric Kriss, Janice B., Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Jane M. Swift, Governor Mitt Romney, Ronald Preston, Defendants.
MEMORANDUM OF DECISION
PONSOR, District Judge.
I. INTRODUCTION On July 30, 1965, the citizens of this country, through the enactment of the Medicaid Act, Pub.L. 89-97, 79 Stat. 343, committed themselves to providing certain basic medical services to millions of low-*22 income Americans. On December 19, 1989, Congress restated and deepened its commitment to eligible children by amending the Medicaid statute to promise that persons under twenty-one years of age would receive all reasonably necessary medical care regardless of ability to pay. From today's perspective, the scope of this commitment seems breathtaking: no Medicaid-eligible child in this country, whatever his or her economic circumstances, will go without treatment deemed medically necessary by his or her clinician.
The 1989 amendment made the provision of particular services a mandatory part of each state's Medicaid program. With special relevance to this case, the amended statute called for "early and periodic screening, diagnostic, and treatment services" (so-called "EPSDT" services) for all eligible children.
This lawsuit challenges whether the Commonwealth of Massachusetts, a conceded Medicaid participant, has kept the promise made by Congress to America's children. Specifically, it charges that Defendants have failed to provide medically necessary EPSDT services to persons who might be described as the neediest of the needy: children suffering from serious emotional disturbances ("SED") such as autism, bi-polar disorder, or post-traumatic stress disorder. Plaintiffs contend that as a result of Defendants' violation of the Medicaid statute, thousands of disabled low-income children continue to suffer needlessly.
On October 31, 2001, Plaintiffs filed their complaint, alleging violations of four specific provisions of the Medicaid Act: the EPSDT provisions, 42 U.S.C. '' 1396a(a)(10)(A), -(a)(43), 1396d(r)(5), -(a)(4)(B)(2005) (Count I); the "reasonable promptness" provision, ' 1396a (a)(8) (2005) (Count II); the methods of administration or "equal access" provision, ' 1396a(a)(30)(A) (2005) (Count III); and the managed care provision, ' 1396u-2(b)(5) (Count IV).
The suit named various state officials and agencies as defendants [FN1] (referred to variously as "Defendants" or "the Commonwealth"): Mitt Romney, the Governor of Massachusetts; Eric Kriss, the Secretary of the Executive Office of Administration and Finance; Ronald Preston, the Secretary of the Executive Office of Health and Human Services (EOHHS); Robert H. Weber, Guardian ad Litem; EOHHS; and the Massachusetts Division of Medical Assistance.
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FN1. Between the time Plaintiffs filed this lawsuit in 2001 and the date the suit went to trial in April 2005, a new administration took over the governor's office. Thus, some parties were terminated and others added. The names specified in this memorandum were the defendants at the time of trial.
On December 19, 2001, Defendants filed a motion to dismiss, contending, among other things, that the Eleventh Amendment granted them immunity from suit. Two days later, on December 21, 2001, Plaintiffs moved for certification of a class.
On March 29, 2002, the court denied the motion to dismiss and certified a class of all current and future Medicaid-eligible children in Massachusetts under twenty-one years of age, who were (or might become) eligible to receive, but were not receiving, what Plaintiffs described as "intensive home-based services."
Defendants pursued an interlocutory appeal of the court's denial of their motion to dismiss. On November 7, 2002, the Court of Appeals for the First Circuit affirmed this court's ruling, holding that "Eleventh Amendment immunity does not protect state officials from federal court suits for prospective injunctive relief under the Medicaid Act." Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 238 (1st Cir.2002).
*23 On March 25, 2005, the court allowed the parties' joint motion to dismiss Count IV, without prejudice. Non-jury trial with regard to liability on the three remaining counts took place from April 25, 2005, to June 9, 2005. On August 9, 2005, following submission of extensive proposed findings of facts and conclusions of law by the parties, the court heard closing arguments and took the matter under advisement.
For the reasons set forth below, the court finds that Plaintiffs have proved, by far more than a fair preponderance of the evidence, that Defendants have failed to comply with the EPSDT and "reasonable promptness" provisions of the Medicaid Act. Plaintiffs are therefore entitled to judgment with regard to liability on Counts I and II of their complaint; the court will consider prospective injunctive relief pursuant to the schedule set forth at the end of this memorandum. As for Count III, the claim under the equal access provisions of the Act, the court finds that Plaintiffs have not carried their burden of proof.
Plaintiffs are entitled to judgment on Counts I and II based on two types of violations of the Medicaid Act: (1) inadequate or non-existent medical assessments and coordination of needed services for children with serious emotional disturbances, and (2) inadequate or non-existent in-home behavioral support services for the same group.
With regard to assessment and coordination of services, the testimony of virtually all of Plaintiffs'--and for that matter Defendants'--witnesses established that compliance with Medicaid's EPSDT mandate for children with a serious emotional disturbance requires that Defendants provide, at a minimum, reasonably comprehensive medical assessments and ongoing clinical oversight of the services being provided. The evidence established overwhelmingly that, for this particularly needy group, assessment and coordination is essential to (a) identify promptly a child suffering from a serious emotional disturbance, (b) assess comprehensively the nature of the child's
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disability, (c) develop an overarching treatment plan for the child, and (d) oversee implementation of this plan (typically by multiple medical providers) as the needs of the child evolve.
The evidence showed, time and again, that the Commonwealth's efforts to comply with these minimum EPSDT assessment and service coordination requirements were woefully inadequate, with detrimental consequences for thousands of vulnerable children. At present, thousands of needy SED children lack comprehensive assessments; treatment occurs haphazardly, with no single person or entity providing oversight and ensuring consistency. Multiple providers offer overlapping and sometimes conflicting services, with little or no knowledgeable, overall coordination.
The second aspect of Defendants' Medicaid violation concerns the provision of in-home behavioral support services. Plaintiffs offered credible evidence that such services are a medical necessity for many SED children, particularly the roughly 15,000 Medicaid-eligible SED children in the Commonwealth who suffer extreme functional impairment. Except in rare instances, however, Defendants fail to provide these services adequately. The result of this failure is that thousands of Massachusetts children with serious emotional disabilities are forced to endure unnecessary confinement in residential facilities, or to remain in costly institutions far longer than their medical conditions require. The shortage or inadequacy of in-home support services often results in removal of a fragile child from his or her home. While such a removal is a heartbreaking consequence in and of itself, it is equally clear that the unnecessary isolation of a child in an expensive *24 residential facility has well-documented, objective clinical sequelae. These are reflected in exacerbated symptoms including: failure at school, inability to relate positively to others, isolating depression, and assaultive or other anti-social behavior.
The undisputed evidence offered at trial made it clear that children with serious emotional disabilities are among the most fragile members of our society; their medical needs frequently extend across a spectrum of service providers and state agencies. Prompt, coordinated services that support a child's continuation in the home can allow even the most disabled child a reasonable chance at a happy, fulfilling life. Without such services a child may face a stunted existence, eked out in the shadows and devoid of almost everything that gives meaning to the gift of life. Defendants' failure to provide adequate assessments, service coordination, and home-based supportive services for Medicaid-eligible children with serious emotional disturbances was glaring from the evidence and at times shocking in its consequences.
II. THE STATUTORY ENVIRONMENT A. The Medicaid Act and Regulations.
In passing the Medicaid Act, Congress embarked on an ambitious program to provide medical care for the country's poorest people. The Act creates a "cooperative federal-state program" through which states that elect to participate receive federal financial assistance to pay for the medical treatment of specific groups of needy individuals. See Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 650, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003); Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). To receive the funds, states are required first to formulate a plan that meets federal requirements. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431,
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433, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004); Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 522 (8th Cir.1993) (noting that a state's plan must comply with the "fifty-eight subsections outlined in 42 U.S.C. ' 1396a").
A state's plan must provide coverage to seven designated classes of needy individuals, termed "categorically needy," for at least seven specific kinds of medical care or services. See '' 1396a(a)(10)(A)(i), -(a)(17), 1396d(a). See Pharm. Research & Mfrs., 538 U.S. at 651 n. 4, 123 S.Ct. 1855. A state may, if it chooses, extend this coverage to other designated populations, termed "medically needy." ' 1396a(a)(10)(C). Additionally, the state may choose to expand the care and services available under its plan beyond the seven mandated categories. See '' 1396a(10)(A), 1396d(a) (defining "medical assistance" by enumerating twenty-eight types of care and services). For example, a state must provide coverage of inpatient hospital and physicians' services, but retains the option of covering private duty nursing or physical therapy services. See '' 1396a(a)(10)(A), 1396d(a).
[1][2] Congress does not require states to participate in the Medicaid Act. However, once a state opts in, it must abide by Medicaid's laws and regulations in order to obtain federal funds. See Bowen v. Massachusetts, 487 U.S. 879, 883, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); Bryson v. Shumway, 308 F.3d 79, 81 (1st Cir.2002); see also 42 U.S.C. ' 1396a. Although the Medicaid statute and its regulations impose many obligations, states do retain substantial discretion in implementing their plans and in choosing "the proper mix of amount, scope, and duration limitations on coverage, as long as care and services are provided in the best interests of the recipients." Alexander v. Choate, *25 469 U.S. 287, 303, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), quoted in Pharm. Research & Mfrs., 538 U.S. at 665, 123 S.Ct. 1855; see also 42 C.F.R. ' 440.230(d) (2005) (allowing states to "place appropriate limits on service based on such criteria as medical necessity or on utilization control procedures"); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 591 (5th Cir.2004); Ark. Med. Soc'y, 6 F.3d at 531 (holding, in a case involving the equal access provision, that a state "may take ... budget factors into consideration when setting its reimbursement methodology," but "may not ignore the Medicaid Act's requirements in order to suit budgetary needs"); J.K. ex rel. R.K. v. Dillenberg, 836 F.Supp. 694, 697 (D.Ariz.1993).
Plaintiffs challenge Defendants' compliance with three Medicaid Act provisions: EPSDT, reasonable promptness, and equal access. Each has its own particular requirements.
1. EPSDT.
As broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive. When Congress amended the Medicaid statute in 1989, it made the provision of "early and periodic screening, diagnostic, and treatment services" ("EPSDT" services) to Medicaid-eligible children mandatory for participating states. Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, ' 6403, 103 Stat. 2261-2265, 2268, 2269 (codified as amended at 42 U.S.C. ' 1396d(r)(2005)); 42 U.S.C. ' 1396d(a)(4)(B), - (r). In defining EPSDT services, Congress required states to include four types of specific services: screening, vision, dental, and hearing services. In addition to these services, the statute mandated the provision of [s]uch other necessary health care, diagnostic services, treatment, and other measures described in
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subsection (a) of this section 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)(emphasis added).
[3] Subsection (a), which defines the term "medical assistance," enumerates seven categories of care and services that must be covered under a state's plan. In addition, twenty-one other categories may, at the option of the state, be included under the state's Medicaid plan. See ' 1396d(a). Therefore all twenty-eight types of medical care and services contained within the definition of "medical assistance" are mandated EPSDT services. Thus, Congress imposed a mandatory duty upon participating states to provide EPSDT-eligible children with all the health care, services, treatments and other measures described in ' 1396d(a) of the Act, when necessary to correct or ameliorate health problems discovered by screening, regardless of whether the applicable state plan covers such services. S.D., 391 F.3d at 589-90(emphasis added); see also Rosie D., 310 F.3d at 232 (stating that the 1989 amendments "required states to provide Medicaid coverage for any service 'identified as medically necessary through the EPSDT program' ") (quoting 135 Cong. Rec. S6899, 6900 (daily ed. June 19, 1989) (statement of Sen. Chafee)).
[4] In other words, while a state may choose which medical services beyond the mandated seven it may offer to eligible adults, states are bound, when it is medically necessary, to make available to Medicaid-eligible children all of the twenty-eight types of care and services included as part of the definition of medical assistance in the Act. See S.D., 391 F.3d at 590 ("[E]very Circuit which has examined the scope of the EPSDT program has recognized that states must cover every type of health care or service necessary for *26 EPSDT corrective or ameliorative purposes that is allowable under 1396d(a)."); Collins v. Hamilton, 349 F.3d 371, 376 n. 8 (7th Cir.2003) ( "[O]ther circuits [have] also found that in the context of individuals under the age of twenty-one subject to EPSDT services, a state's discretion to exclude services deemed 'medically necessary' by an EPSDT provider has been circumscribed by the express mandate of the statute.")
[5] 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 broad. See, e.g., S.D., 391 F.3d at 594-95 (finding disposable incontinence underwear qualifies under "home health care services", ' 1396d(a)(7), as a form of medical assistance for which the state must cover the costs); 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 physician recommends such treatment"); Pittman ex rel. Pope v. Sec'y, Fla. Dep't of Health & Rehab. Servs., 998 F.2d 887, 892 (11th Cir.1993) (holding that the discretion Medicaid gives states to elect not to cover organ transplants for adults does not extend to cases involving qualified Medicaid recipients under age twenty-one); Chisholm v. Hood, 133 F.Supp.2d 894 (E.D.La.2001) (holding that the state must provide services rendered by a licensed psychologist because services by psychiatrists or other practitioners cannot substitute).
[6] The breadth of EPSDT requirements is underscored by the statute's definition of "medical services." Section 1396d(a)(13) defines as covered medical services any "diagnostic, screening, preventative, and rehabilitative services, including any medical or remedial services ... for the
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maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level." 42 U.S.C. ' 1396d(a)(13) (emphasis added). Thus, if a licensed clinician finds a particular service to be medically necessary to help a child improve his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT mandate. See '' 1396d(a)(13), 1396d(r)(5); Pediatric Specialty Care, 293 F.3d 472.
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 1989 amendments to the Medicaid statute require a participating state to cover it. See, e.g., Collins, 349 F.3d at 375 (holding that if a competent medical service provider determines that a specific type of care or service is medically necessary, state may not substitute a different service that it deems equivalent); see also Rosie D., 310 F.3d at 232; John B. v. Menke, 176 F.Supp.2d 786, 800 (M.D.Tenn.2001) (noting that a state "is bound by federal law to provide 'medically necessary' EPSDT services").
Congress' firm intent to ensure that Medicaid-eligible children actually receive services is powerfully underlined by provisions in the statute that place explicit duties on states to: (a) inform eligible children of the availability of early and periodic screening, diagnostic, and treatment services, (b) provide or arrange for screening services "in all cases where they are requested," and (c) arrange for whatever corrective treatments are discovered to be needed. See ' 1396a(a)(43); see also 42 C.F.R. ' 441.56(a)(1), -.61, -.62 (2005).
[7] The requirement that states inform eligible children of EPSDT services has both procedural and substantive implications. States must draft guidelines by which the information regarding EPSDT services is to be transmitted; they must also ensure that effective notice, in fact, *27 reaches children and their families. See 42 C.F.R. ' 441.56(a)(1) (2005). If a state's scheme for informing children of their rights is ineffective or conveys out-of-date or inaccurate information, the state is not in compliance with the law. See Health Care for All v. Romney, Civ. No. 00-10833RWZ, 2005 WL 1660677, at * 14 (D.Mass. July 7, 2005) (Zobel, J.) (concluding that the state violated its duty to inform children of EPSDT services where notices sent to children and their families contained "incorrect or outdated guidance on obtaining services"); cf. Pediatric Specialty Care, 293 F.3d at 481 ("The state may not shirk its responsibilities [under ' 1396a(a)(43) ] to Medicaid recipients by burying information about available services in a complex bureaucratic scheme."); John B., 176 F.Supp.2d at 802 ("The State must assure that the contractors provide adequate outreach efforts"); Chisholm, 133 F.Supp.2d at 901 (concluding that the state's system for providing access to psychological services for Medicaid-eligible children rarely resulted in children successfully receiving the services and fell "woefully short of complying with federal law").
[8] Moreover, in Health Care for All, the court noted that the Act requires a proactive approach. The statute effectively requires states to identify obstacles to the effective conveyance of information and to "develop measures to mitigate the negative impact of such potential influences." 2005 WL 1660677 at *14.
2. Reasonable Promptness.
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The statute also requires states to provide medical attention in a timely manner. Assistance must be "furnished with reasonable promptness to all eligible individuals." ' 1396a(a)(8); see also Doe ex rel. Doe v. Chiles, 136 F.3d 709, 718 (11th Cir.1998) (finding that because "[t]he language of the statute is undoubtedly cast in mandatory rather than precatory terms," the reasonable promptness clause imposes a binding obligation).
The accompanying Medicaid regulations require state agencies to "[f]urnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures." 42 C.F.R. ' 435.930 (2005). In addition, the state agency "must set standards for the timely provision of EPSDT services which meet reasonable standards of medical ... practice, ... and must employ processes to ensure timely initiation of treatment, if required, generally within an outer limit of 6 months after the request for screening services." Id. ' 441.56(e).
Although the statute does not specifically define "reasonable promptness," courts facing this question have found defendants in violation of the provision when eligible individuals are placed on waiting lists for medically necessary services. See, e.g., Sobky v. Smoley, 855 F.Supp. 1123, 1148 (E.D.Cal.1994) (discussing the history of the "reasonable promptness" language and noting that it is intended to prevent states from "establish[ing] waiting lists for individuals eligible for assistance" (quotation omitted)). Courts have also found a failure to comply with the statute where a state fails to establish guidelines for the timely provision of services recommended after a screening. See Kirk T. v. Houstoun, Civ. No. 99-3253, 2000 WL 830731, at * 4, 2000 U.S. Dist. LEXIS 8768, at * 14 (E.D. Pa. June 23, 2000) (finding the defendant in violation of the "reasonable promptness" provision where the state lacked "some method of measuring timeliness," thus making it "impossible to tell whether the state is in compliance with the Medicaid statute").
[9] A reasonable promptness violation may also turn on the nature of the services provided. In Boulet v. Cellucci, plaintiffs received access to some services in a *28 prompt manner, but were denied access to the specific services they had requested. The court held that "the assistance must correspond to the individual's needs" and that the requirement of prompt provision of services "is not satisfied by other services the plaintiffs are receiving or might be offered." Boulet v. Cellucci, 107 F.Supp.2d 61, 79 (D.Mass.2000) (Woodlock, J.).
3. Equal Access.
Finally, states must satisfy the "equal access" provision of the Medicaid statute. See Ark. Med. Soc'y, 6 F.3d at 522. Section 1396a(a)(30)(A) requires states to: provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 42 U.S.C. ' 1396a(a)(30)(A)(emphasis added); see also 42 C.F.R. ' 447.204 (2005).
[10] The purpose of the equal access provision and its corresponding regulations is "to prevent gross disparity between the availability of [a] service to Medicaid patients and its availability to
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those who can afford to pay privately." King v. Sullivan, 776 F.Supp. 645, 655 (D.R.I.1991) (stating that "[t]he 'sufficiency' of a state's reimbursement payments is measured against the payments that a health care facility can demand from non-Medicaid patients").
B. EPSDT Caselaw.
Since the enactment of the EPSDT provisions of Medicaid in 1989, courts have regularly been called on to judge whether a state is meeting its obligations to Medicaid-eligible children and have frequently found states in violation of the law. See Health Care for All, 2005 WL 1660677 (finding for plaintiff in an EPSDT suit against Massachusetts based on lack of access to Medicaid-covered dental services); see generally Collins, 349 F.3d 371; Pediatric Specialty Care, 293 F.3d 472; John B., 176 F.Supp.2d 786 (involving enforcement of a consent decree, but basing decision on defendants' failure to comply with federal law); Chisholm, 133 F.Supp.2d 894 (E.D.La.2001); Salazar v. District of Columbia, 954 F.Supp. 278 (D.D.C.1996).
Three of these cases are particularly helpful in illustrating how courts have enforced the EPSDT provisions of the Medicaid Act; they involve treatments and services for children who, like the class of plaintiffs here, suffer from chronic behavioral and psychiatric conditions. Collins found that the state of Indiana was required to provide long-term treatment in psychiatric residential treatment facilities to children with mental illness. Pediatric Specialty Care held that Medicaid's EPSDT provisions require the state of Arkansas to provide early intervention day treatment when a physician recommends such treatment. Chisholm concluded that federal law obliges the state of Louisiana to offer autistic children behavioral and psychological services, rendered by licensed psychologists.
[11][12][13][14] A common analytical approach emerges from these three decisions. First, each court analyzes whether the services or treatments sought by the plaintiffs are covered under the Medicaid Act. Second, the court examines whether the state in fact provides the sought-after services. There are several elements to this second *29 inquiry. For example, if a competent and credible diagnosis shows that a child requires a specific treatment, courts will find that the state has an obligation to provide it; a state's attempts at substitutes will be viewed with skepticism, especially where their availability or adequacy is doubtful. Additionally, even if the state offers the service or treatment on paper, courts will examine whether children can, in practice, actually access these services. Where a state has failed to provide treatments and services covered by Medicaid, a court will proceed to consider an appropriate remedy, giving the state the opportunity initially to fashion its own remedial proposal.
In this case, the court's conclusion that Defendants have failed to provide mandated EPSDT services to the plaintiff class rests on this analytical platform. Indeed, the first inquiry is easily disposed of, since Defendants do not substantially contest the claim that service coordination and in-home support services for the plaintiff class are covered by Medicaid. [FN2] The heart of the dispute in this case is whether the relevant services are actually being provided. On this point, as the following findings will demonstrate, Plaintiffs have proved by more than a preponderance of the evidence that thousands of seriously emotionally disturbed children in the Commonwealth are simply not receiving the EPSDT services they are entitled to under federal law.
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FN2. Defendants do vigorously dispute Plaintiffs' argument that they are entitled to "intensive home-based services," a phrase that Defendants contend describes only one of several possible methods of service delivery and not an actual treatment. With equal vigor, however, Defendants assert that Massachusetts already does provide the specific array of substantive clinical interventions, including service coordination and in-home supports, that they admit Medicaid statute's EPSDT provisions require. The strong weight of the evidence offered at trial emphatically rebuts the latter assertion.

A. Preliminary Issues.

III. FINDINGS OF FACT

Before weighing the quantum of proof, it is important to note four points.

First, the comprehensiveness of Plaintiff's evidence is prodigious. Plaintiffs offered evidence in seven different categories: (a) testimony of parents or custodial relatives of several of the named plaintiffs; (b) testimony of clinicians who have served or are serving specific class members; (c) testimony of agency personnel who provide, or attempt to provide, services to seriously emotionally disturbed children within the Commonwealth generally; (d) reports and testimony of expert clinicians who studied the Commonwealth's overall system for delivering services to these children; (e) analysis of the services received by a sample of thirty-five randomly selected seriously emotionally disturbed children who are class members but not named plaintiffs; (f) documents containing data submitted to the Massachusetts legislature by Defendants on the actual utilization of existing services; and (g) testimony from directors of programs that currently are providing, for a very limited number of class members, medical services that, in fact, fully comply with Medicaid requirements. Finally, a hastily enacted and ineffective state Benefit Clarification, apparently intended to convey the impression that Defendants are complying with Medicaid requirements, served only to highlight the deficiencies in Defendants' service delivery system.

Defendants' counsel's determined efforts to prick holes in this imposing corpus of evidence failed to reduce, to any significant degree, its credibility and powerful impact. Logistical, financial, and ethical restrictions, for example, reduced Plaintiffs' ability to extract and analyze a sample of class *30 members that was identified in accordance with the strictest academic requirements for perfect randomness. Nevertheless, the thirty-five children analyzed were chosen in a reasonably fair manner designed to minimize bias. The credible evidence demonstrated that the vast majority of this group needed, but was not receiving, clinical interventions such as comprehensive assessments, service coordination, crisis intervention, and in-home supports that Defendants concede are required under the Medicaid statute. This evidence, though only one portion of Plaintiffs' case, was vividly probative.

Short of bringing to court a parent or guardian of every one of the thousands of class members, and offering testimony by an expert clinician for each child, it is hard to imagine how a more meticulously constructed case could have been offered on behalf of the plaintiff class. Moreover, Defendants' failure or inability to offer their own opposing concrete evidence showing actual delivery of services to the class members speaks volumes. [FN3] Defendants' witnesses did provide fairly detailed evidence of the general design of the system intended to provide children in
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the Commonwealth with EPSDT services, along with descriptions of the way the system was supposed to work. Defendants, however, offered little objective data on the actual amount or quality of service delivered to class members or its clinical impact. The available data tended to show that EPSDT services--outside a few, limited geographic areas--were simply not being provided effectively to children with serious emotional disturbances in the Commonwealth.
FN3. This observation should not be interpreted as a criticism of Defendants' counsel. The quality of advocacy on both sides was outstanding.
Second, before embarking on a recital of the court's findings of fact, it is important to trace the temporal boundaries of the evidence. Before trial, Plaintiffs sought a ruling barring Defendants from offering any evidence regarding activities or services after September 30, 2004, the date discovery closed. In response, Defendants argued that the court should have a full and accurate picture of the efforts made by the state to comply with the Medicaid statute even after that date. The court concluded that, in determining liability, it would generally consider only evidence pre-dating September 30, 2004, with exceptions for good cause, but might consider evidence of later conduct if liability were found and it became necessary to consider an appropriate remedy. Therefore, the findings of fact set forth in this memorandum with respect to liability are based mainly on information current as of September 30, 2004. [FN4]
FN4. The cut-off was obviously necessary. Permitting Defendants to offer evidence acquired after the close of discovery would leave Plaintiffs unprepared to challenge the newly-acquired material.
Third, in rendering its findings of fact the court has chosen, for the most part, to discard the label "intensive home-based services" used by Plaintiffs as a short-hand for the amalgam of clinical interventions they claim the EPSDT portions of the Medicaid statute require Defendants to provide. The term generated an unhelpful, time-consuming, and largely irrelevant dispute over whether the phrase describes a discrete clinical intervention (i.e., an actual form of treatment) or merely one method or system for delivering medical treatment. Rather than enter into this semantic debate, the court has looked behind the phrase to the array of actual clinical interventions that constitute, in the terms of the Medicaid statute, "medically necessary" services for class members.
*31 Viewed from this perspective, the evidentiary landscape is greatly simplified. Plaintiffs' reasonable medical needs are not dramatically different from the needs of anyone else with a significant medical problem. Children with serious emotional disturbances must be made aware of the availability of services and their entitlement to them; they need comprehensive assessments of the nature of their disabilities; each child also requires the development of a clinical plan to address the disability, and he or she needs a properly-trained and empowered person to monitor implementation and (when necessary) modification of the plan to ensure that its benefits are actually realized. This is not, in the well-worn phrase, rocket science; diagnosing maladies, prescribing treatments, and monitoring outcomes is at the heart of what clinicians do. Yet on the whole these medical services are not being provided, or are being provided inadequately, to the thousands of vulnerable children with serious medical needs who comprise the plaintiff class.
While children with serious emotional disturbances are, in most respects, no different from other
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persons with medical problems, certain unique features of their clinical environment make scrupulous attention to their medical needs especially critical. First, the complexity of their problems may require a range of services from different providers (for example, medication monitoring, behavioral supports, and crisis intervention) in different arenas (for example, home, school, or community). As a result, centralized, knowledgeable, and painstaking service coordination is essential; without it, a child's life becomes a chaos of ineffective, overlapping plans and goals. Second, SED children suffer both a high risk of clinically unwarranted institutionalization and a possibility that, once institutionalized, they will encounter delays returning to the community. As delays lengthen, the likelihood of successful re-integration into a home or home-like setting diminishes. A lonely, stunted existence becomes a distinct possibility. For this reason, the provision of competent, in-home supports, including prompt crisis intervention to contain episodes when a child's needs may be particularly intense, is widely recognized as clinically appropriate and, indeed, essential for children with serious emotional disturbances.
In shifting the focus away from the phrase "intensive home-based services," and towards the medical services behind these words, the court has not altered in any way the nature either of the lawsuit or of the remedy Plaintiffs seek. Plaintiffs have consistently argued that Defendants have failed to provide the actual services falling under the rubric of "intensive home-based services"-e.g., comprehensive assessment, effective service coordination, and adequate in-home behavioral supports. Defendants have consistently contended that these actual services are being provided, though in a manner different from what Plaintiffs would prefer.
As the court's summary below will demonstrate, the evidence belies Defendants' contention; in fact, the actual clinical interventions described by Plaintiffs with the phrase "intensive home-based services" are not being provided adequately.
Fourth, and finally, it is important to note that in making these findings the court has not attempted to comment on every piece of evidence offered. Much evidence that supports the court's findings has not been recited; similarly, not every stray piece of evidence that may run contrary to the court's findings has been addressed. Despite the abbreviation necessary to keep this memorandum to a reasonable length the court has considered all the evidence. This is not a close *32 case; the evidence favoring Plaintiffs is overwhelming.
B. Plaintiff Class: Medically Necessary Treatment Generally.
1. Children with serious emotional disturbances, [FN5] have been diagnosed with a mental illness (e.g., bipolar disorder or autism) and suffer a significant functional impairment in multiple settings (e.g., home and/or school) for a period lasting at least one year. Their strictly medical problems are often exacerbated by external traumas arising from poverty, family chaos or violence, drug abuse, separation from loved ones, and institutionalization.
FN5. The condition SED, as abbreviated, is recognized in the Individuals with Disabilities Education Act, 20 U.S.C. ' 1401(3)(A)(i)(2005), and in its regulations, 34 C.F.R. ' 300.7(a)(1),-(c)(4)(2005).
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2. Children with SED are particularly challenging to treat because of the severity of their needs and the number and intensity of services they require. The danger for these children, given their complex problems, is that they will not only receive insufficient services, but that a lack of coordination among the service providers will undermine the effectiveness of the treatment that they do receive. Comprehensive assessments and scrupulous service coordination are essential parts of the Commonwealth's EPSDT responsibility to children with SED. Defendants' provision of these services has been markedly lacking.
3. Children with SED suffer a chronic disability and therefore tend to require long-term care and support. With limited exceptions, Defendants' system generally addresses children's serious emotional disturbances only in crises, offering few options (other than residential programs) for effective, ongoing care after acute episodes and minimal resources for coordination of treatment over the extended period that SED children usually require. Long-term, in-home support services that address the chronic medical needs of SED children, including crisis intervention services that avoid or reduce the necessity of residential treatment out of the home, are part of the package of medically necessary EPSDT services Defendants are required to provide. Except in limited circumstances, Defendants have failed to meet this requirement.
C. Overview of Massachusetts' Medicaid Program.
4. Massachusetts has chosen to participate in the Medicaid program and, pursuant to 42 U.S.C. ' 1396a(a)(5), has designated the Executive Office of Health and Human Services ("EOHHS") as the single state agency responsible for administering the Medicaid program in Massachusetts. The division within EOHHS that administers Medicaid is called the Office of Medicaid, also known as "MassHealth."
5. When a child first enrolls in the Massachusetts Medicaid plan, his or her guardian selects one health plan from the five offered by the state to Medicaid-eligible individuals. Four of the plans are managed care organizations [FN6] covering limited geographical areas; the last plan, called the Primary Care Clinician ("PCC") plan, is state-managed and is available state-wide. The five plans offer a common set of health care services.
FN6. The four managed care organizations are the Neighborhood Health Plan, Network Health, Boston Medical Center Health Plan, and the Fallon Community Health Plan.
6. The Massachusetts Behavioral Health Partnership (MBHP), a private entity contracting with the Commonwealth, provides all behavioral and mental health services for Medicaid-eligible individuals who elect to enroll in the PCC plan.
*33 7. The families of half of all Medicaid-recipient children choose the state-wide PCC plan and therefore receive behavioral and mental health services through MBHP. Approximately 59,000 children under the age of eighteen [FN7] in Massachusetts suffer from a serious emotional disturbance with extreme dysfunction, the most severely handicapped sup-group of SED children. Many additional SED children suffer some lesser degree of impairment. Approximately twenty to twenty-five percent of all Massachusetts children are Medicaid eligible. Accordingly, employing a
13

very conservative estimate, there are between 14,000 and 15,000 Medicaid-eligible children in Massachusetts with SED and extreme functional impairment.
FN7. The Medicaid Act defines children as under the age of twenty-one. Hence, the total number of children in Massachusetts under twenty-one with SED with substantial functional impairment must be greater than the state's estimate of "children," since the state only counts children under eighteen in its estimates.
8. Because MBHP is the largest contractor of behavioral health services for the MassHealth program, the parties focused on MBHP's provision of mental and behavioral health services to illustrate generally how these services are provided to all Medicaid-eligible children in Massachusetts. The mental and behavioral services offered through MBHP are essentially the same as those available through the other four health plans. The case was tried on the implicit assumption that if the provision of services for SED children through MBHP fell short of the requirements of the Medicaid statute, then Plaintiffs were entitled to a verdict in their favor.
9. The PCC Behavioral Health Program contract between the state's Division of Medical Assistance and MBHP is a roughly 500-page document detailing MBHP's duties and responsibilities, including covered services, network management, and quality management. (Defs.' Ex. [hereinafter "DX"] 35.)
10. The Commonwealth contracts with MBHP, and MBHP, in turn, either provides behavioral and mental health services directly or indirectly by subcontracting with other private service providers.
11. Despite considerable effort, programs offered through MBHP frequently fail to provide Medicaid-eligible SED children with the comprehensive, reasonably well-coordinated treatment that their medical needs require. Instead, with limited exceptions, the families of SED children are confronted by a patchwork of services, many with arbitrary time limits that are difficult to extend, and with a dearth of long-term in-home supports. Defendants' contention that, prior to September 30, 2004, services for SED children were available as long as medically necessary, is not credible and was repeatedly rebutted by the evidence.
D. Medicaid Program Components.
1. Notification of EPSDT Services.
12. As noted earlier, because it receives Medicaid funds, the Commonwealth is responsible for informing Medicaid-eligible children of their EPSDT rights, as well as for arranging services once a need has been identified. The Commonwealth performs this responsibility in two ways, directly and through third-party providers.
13. When a child first enrolls in the Massachusetts Medicaid plan, his or her guardian receives the "MassHealth Enrollment Guide." (DX 13.) The guide lists among covered services "Mental Health Care," including hospital care, family stabilization teams, and other outpatient services. EPSDT services are not explicitly mentioned.
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*34 14. Medicaid-eligible families who enroll in the PCC plan also receive a 24-page plan booklet. This booklet informs PCC members that they do not need a referral to receive mental health services but that their child's therapist must be a part of the MBHP network. Examples of available mental health services, such as counseling, day treatment, and community support services, are noted. PCC enrollees are also informed of their right to appeal MBHP decisions denying coverage for services that their child's provider requested. Again, this material makes no mention of EPSDT services.
15. MassHealth periodically mails postcards, brochures, and other notices informing eligible members of their rights to EPSDT services. These notices list services such as check-ups, dental exams, and immunizations but do not mention any mental health services.
16. All MBHP members receive a brochure entitled, "Does Your Child Need Mental Health or Substance Abuse Services?" (DX.62). This brochure describes situations or symptoms that parents might encounter that demonstrate a possible need for mental or behavioral health services. The brochure also lists types of available services, specifically including Family Stabilization Team (FST) and Emergency Service Provider (ESP) services.
17. In addition to the mailings and brochures sent directly to Medicaid-eligible children and their guardians, the Commonwealth relies on the children's primary care clinicians to provide information about EPSDT benefits and services. The contract between MassHealth and the primary care clinicians enumerates the clinicians' responsibilities with respect to meeting EPSDT requirements.
2. Comprehensive Assessments.
18. Under the PCC plan, the initial responsibility for performing assessments of the mental health needs of a MassHealth-eligible child falls on the child's pediatrician. Though this clinician may not have specialized training in mental health, he or she is expected to perform a developmental and behavioral assessment of each child who comes in for a periodic appointment or an acute problem, such as emergency treatment. MBHP also offers special assessments at particular times (e.g., when medication is being considered or when the Department of Social Services assumes custody of a child).
19. The evidence shows that this approach to assessing children with serious emotional disturbances is deficient in a number of respects. First, no feature of the Commonwealth's Medicaid system assures that SED children will necessarily receive these pediatric assessments at any particular time or in any consistent form. The evidence makes clear that thousands of SED children in Massachusetts get no comprehensive assessments at all. Second, no agency or individual is responsible for insuring that these initial assessments, if they occur, are passed on to the agencies who will ultimately be responsible for treating the child. As a result, it is uncertain that the pediatric assessment will be incorporated into any detailed plan to address an SED child's complex needs. Third, many if not most of the assessments that are performed lack depth and comprehensiveness. For example, an ad hoc "assessment" of a bipolar or autistic child performed
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in a hospital emergency room during a crisis will rarely be the sort of in-depth analysis that can serve as the foundation of the child's long-term treatment.
20. The evidence and argument offered by Defendants on the issue of assessments exemplifies a recurrent problem for the *35 court in weighing the evidence. Defendants concede, as they must, that compliance with the EPSDT provisions of the Medicaid statute requires comprehensive assessments of SED children. Without a clinically appropriate, detailed assessment of an SED child, proper treatment is obviously impossible. Because some SED children do receive assessments in a variety of contexts, Defendants argue that Plaintiffs cannot show, at least in this respect, that Defendants have failed to comply with the Medicaid statute. The problem with this reasoning is that it assumes that any "assessment" suffices to show compliance with the statute. A proper assessment must be comprehensive and in depth; it must be performed, at a minimum, by a trained professional, and more often by a team of professionals and knowledgeable lay persons, including family members. Finally, it must be made available to the agency actually providing treatment.
21. The evidence establishes that the MBHP contract titularly covers "assessments" for SED children but that these assessments are often cursory and ad hoc--assessments in name only. Moreover, very often these assessments are not passed along to appropriate service providers and incorporated into any properly coordinated treatment plan. In addition, as noted, a large number of SED children receive no assessments at all. Even acknowledging the many genuinely committed people within the Commonwealth's system of care, it is hard not to suspect an element of cynicism in this deficiency. The simplest way to escape the challenge of serving an SED child is to avoid conducting the sort of in-depth, comprehensive assessment that will reveal the real extent of that child's medical needs. Whether conscious or unconscious, this is the strategy being employed by the current system as regards many of the SED children in the Commonwealth at this time.
3. Crisis Services.
22. For most children suffering serious emotional disturbances with extreme dysfunction, acute episodes are inevitable. Any system intended to supply necessary medical treatment to SED children must foresee crises and address the proper clinical response to them ahead of time, as part of the child's treatment planning. Defendants do not provide this necessary medical service to the overwhelming majority of SED children in the Commonwealth.
23. Statewide, there are twenty-eight Emergency Service Providers (ESPs) contracted with MBHP to provide emergency screening and assessment when a child experiences a behavioral crisis. These ESP programs are designed to provide short-term counseling as well as behavior specialists to work with the child during a crisis. Generally, an ESP's assignment is to intervene, quell the immediate crisis, and move on.
24. In practice, SED children and their families often encounter difficulties getting access to crisis services. It is frequently difficult to transport a distraught or uncooperative child to an ESP location for specialized treatment. MBHP contractors sometimes provide mobile crisis services that can respond to emergencies in the child's home. Many times, however, because of other
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demands on staff or concerns regarding safety, crisis intervention is not offered in the child's home but, rather, at the agency's office or at a general hospital, where a child may have been brought by the police.
25. Emergency service staff attempt to reduce the need hospitalize the child but are often unsuccessful. MBHP funds Crisis Stabilization Units ("CSUs"), which provide short-term, hospital-level services in a community setting, such as a group home. These programs sometimes help to reintegrate a child with his or her family; *36 frequently, however, the CSU simply acts as a transition from home to a long-term residential placement.
26. A significant shortcoming of most of the crisis services is that they help the child and her family only through the immediate emergency situation. Once the episode is over, the crisis service terminates; the child is either left to the services she has been receiving or is referred to a different program for further treatment. Even a CSU, which sometimes offers brief follow-up interventions after a crisis, is modeled as a short-term service.
27. Moreover, as noted, crisis services offered by MBHP are almost never coordinated with any overall treatment plan. Coordination for SED children is essential to ensure that crisis intervention is consistent with the child's ongoing treatment. Planned and coordinated intervention for predictable crises is largely unavailable through MBHP's services.
4. In-Home Support Services.
28. As noted, children with SED require in-home supports of adequate intensity and duration to head off crises and forestall clinically unnecessary placements outside the home. The regular, long-term presence of a clinician or trained para-professional in the home on a regular basis--forming a relationship with the child, modifying problematic behaviors, taking the child on outings, offering support in school, relieving the parents or guardians during evenings or weekends--is a critical part of the treatment plan of many SED children.
29. Defendants insist that numerous MBHP programs provide these support services. As with assessments, however, this type of necessary service exists largely on paper and to a limited degree only. The in-home support offered by MBHP falls far short of what is required, pursuant to the terms of the Medicaid statute, "for the maximum reduction of physical or mental disability and restoration of the individual to the best possible functional level." 42 U.S.C. ' 1396d(a)(13).
30. According to Defendants, two programs--the Family Stabilization Team (FST) and the Community Support Program (CSP)--offer the in-home support service that Plaintiffs are seeking through this lawsuit. These protestations notwithstanding, the evidence at trial demonstrated that neither FST nor CSP, as presently constituted, offers children with SED the EPSDT services necessary to treat their disability and minimize placement outside the home. Moreover, the availability of these programs is so restricted that they reach only a minute fraction of the children who might benefit from them.
31. The FST and CSP programs are designed for short-term interventions during acute episodes.
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Defendants' contention that these programs were available, as of September 2004, for as long as medically necessary, was not borne out by the evidence. Neither program is designed to serve children with chronic conditions who require varying levels of service over long periods, often through their entire childhood and adolescence. In addition to this limitation, neither program is adequately coordinated with the other treatment children may be receiving.
32. There are twenty-six providers of FST services throughout the state. The FST program is described in provider manuals as a short-term service; family support through this program is authorized by MBHP only for three-week periods; extensions must be specifically justified and authorized. Billing for FST services must be submitted in fifteen-minute units. On average, those children who receive FST services get approximately ten hours per week of service for each week that *37 they participate in the program. [FN8] The FST program serves about 1200 children per year (less than one-tenth of the estimate of total children suffering SED with extreme dysfunction in the Commonwealth), each of whom receives services for an average of six to eight weeks. A small percentage of these 1200 children (4.6%) receive services for over one hundred days. Between 2001 and 2004, the intensity of FST services decreased from an average of sixty hours of service to forty hours of service for each child who received these services.
FN8. The utilization numbers for FST and CSP services came from the report of Plaintiffs' expert Dr. James Conroy, using data provided by MBHP itself. Though Defendants challenged the reliability of Dr. Conroy's data compilation, they did not offer any opposing analysis. The court is satisfied that Dr. Conroy's estimates are fundamentally reliable.
33. FST programs provide only short-term crisis intervention and in-home support. Due to their time limitations and lack of coordination with other programs, these programs do not begin to address the chronic clinical needs of children with SED. The evidence regarding actual children--named plaintiffs and class members randomly selected from the general population of SED children--dramatically highlights the shortcomings of existing system. Jennifer, Kristen, Raymond, and John were all scheduled to lose necessary behavioral support services. Emil's FST services were eliminated when he left his mother's home to spend the summer with his father and not resumed on his return. Anton, age twelve, lost necessary support services at age nine. Many other identified children found themselves trapped in the same pattern: short-term support services were terminated as soon as the most acute stage of a crisis passed, virtually ensuring that another such episode would soon follow.
34. CSPs are generally designed for adults, though they do sometimes provide services to children with SED after a hospitalization or when there is an immediate risk of hospitalization. CSPs provide outreach and support services through para-professionals (as opposed to licensed clinicians). The program provides behavioral specialists, i.e., one-on-one workers who meet with a child to help improve the child's life skills and reduce the risk of needless institutionalization. CSP is a short-term service, intended as a step down from the FST program.
35. A tiny fraction of the state's Medicaid-eligible SED children, approximately 350, receive CSP services annually. The average duration of participation in the program has decreased between 2001 and 2004 from one hundred thirty-three days per episode to fifty-five days per episode.
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Children receive on average ten hours of CSP services per week each week that they participate in the program; the intensity of services has been decreasing over time, from eighty-five hours per episode in 2001 to thirty-eight hours per episode in 2004.
36. CSP suffers the same limitations as the FST program: inadequate duration and lack of coordination with other services. In addition, this program is only available after a child's condition has passed an emergency threshold. CSP does not help a child with SED avoid the behavioral decline that places a child at risk of hospitalization or institutionalization. It does not attempt to address the chronic needs of a seriously disabled child over an extended period of time.
37. Other programs, including Crisis Stabilization Units, Partial Hospitalization Services, Community-Based Acute Treatment Units, Enhanced Residential Care, and Transitional Care Units--all cited by Defendants as programs providing in-*38 home supportive services--are each inadequate in providing ongoing, coordinated treatment for children with SED. None provides the consistent, long-term home support that is an essential element of any effective treatment program for the plaintiff class. Moreover, in general, these programs are only available to children who have already been removed from their homes or from foster care placement. None is designed to support the child in his or her home for as long as medically necessary.
5. Service Coordination.
38. Within the Commonwealth's Medicaid system, the service coordinator goes by many names: case manager, care manager, clinical case/care manager, intensive care/clinical/case manager. These variously named persons may offer service coordination at varying levels of intensity. Except for a very few children fortunate enough to qualify for three state programs in limited geographical areas, however, a child with SED in the Commonwealth does not receive adequate case management services. Such services, in most cases, will necessarily entail designation of a trained individual who (1) meets regularly with the child and his or her family, (2) coordinates necessary diagnostic efforts to ensure that the child's disability is understood, (3) oversees the formulation of a plan to address the child's needs, and (4) takes primary responsibility to ensure that the plan is carried out (by whatever state or private contract agencies may be involved) and appropriately modified as the child's needs evolve. The evidence detailing MBHP's approach to case management provides a vivid picture of the deficiencies that plague this critical service.
39. MBHP subcontractors sometimes provide case management service as a feature of time-limited programs such as CSUs or FST programs. During the interval that a child receives services from one of these programs, a para-professional may assist the child and the family with therapy visits and other appointments by, for example, assisting with transportation. A social worker might identify additional care providers to augment a child's treatment, or coordinate the different services a child already receives, such as special education plans and after-school therapy. These case management services are often very helpful while they are available. Indeed, some of the named Plaintiffs have benefitted from them and suffered greatly when they were cut off. But, to repeat, the availability of FST and CSU services, with the associated case management and in-home support, is time-limited and tends to stop as soon as the child is perceived as having moved beyond a pressing crisis. These programs are generally not available to keep a child from
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going into an acute phase.
40. Apart from case management services delivered through subcontractors, MBHP directly provides three levels of case management for a limited number of eligible children. Significantly, for a child to qualify for this service, he or she must meet one of nine clinical criteria, including two admissions into twenty-four-hour care within one twelve-month period, a history of trauma, multiple state agency involvement, or a new diagnosis for a major mental illness in a child between the ages of three and eight. Children who do not meet at least one of these threshold criteria usually do not receive case management services through MBHP.
41. The three levels of case management service offered by MBHP to this defined group of SED children, from lowest to highest intensity, are (1) targeted outreach, (2) care coordination, and (3) intensive clinical management. Although touted by Defendants as "case management" neither "targeted outreach" nor *39 "care coordination" offers the kind of consistent, long-term oversight by a trained clinician or clinical administrator required by children with SED. Staff providing "targeted outreach" or "care coordination" do not convene treatment teams, do not supervise or even participate in the preparation of treatment plans, and do not provide oversight of clinical services on any long-term basis. Significantly, they almost never even meet the child, the family or the relevant service providers. Care coordinators mainly work by telephone, for example, assisting with the implementation of hospital discharge plans. Targeted outreach, MBHP's least intensive form of care coordination, provides ad hoc assistance with, for example, transportation to a medical appointment, locating housing, or making applications for disability benefits.
42. Intensive clinical management ("ICM"), which most closely resembles the service required by the plaintiff class, does actually coordinate the delivery of services to children with SED. ICM operates through a multi-disciplinary team and is not time-limited. Unfortunately, again, MBHP's intensive clinical managers rarely meet the children whose care they help coordinate; they carry an average case load of forty-five to fifty individuals. Moreover, the MBHP eligibility criteria for receiving the services of an intensive clinical manager do not allow access to this service for more than a small fraction of the children in the plaintiff class. Children are discharged from this program when they experience no more than one acute episode lasting no longer than three days during a ninety-day period.
43. It is impossible to overstate the importance of active, informed case management or, as it is sometimes called, service coordination for children with SED. Documents submitted in July 2003 by the Commonwealth to the federal government noted that children with SED, their families, and the professionals serving them often find it difficult to identify the necessary programs among the "maze" of potentially available services and to navigate the Commonwealth's complex mental health delivery system. [FN9] The Commonwealth recognizes the need for knowledgeable case managers to steer disabled children through this labyrinth but has failed, in the overwhelming majority of instances, to give this essential assistance to children with SED. Care management is not even billed by MBHP as a clinical service, but rather as part of its administrative function, mainly focused on determining when services proposed by treating clinicians should be approved or disapproved. The testimony of guardians, clinicians, and program administrators confirmed again and again the devastating consequences of this service deficiency.
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FN9. PX 0493, "Building and Financing Sustainable Systems of Care."
E. Programs Meeting EPSDT Requirements.
44. One of the painful ironies that emerged from the evidence at trial is that adequate provision of necessary medical services for children with SED is not beyond the Commonwealth's expertise; nor is it any more costly than the current, inadequate programming. Defendants already fund three programs in Massachusetts that provide class members with a range of clinical interventions that, Plaintiffs readily concede, fully complies with all Medicaid requirements. The evidence demonstrates that these programs are no more expensive than the patched-together "treatment as usual" offered through the bulk of Defendants' Medicaid programming; objective evaluations confirm that the provision of treatment through these three existing programs is markedly better.
*40 45. The three programs successfully serving Medicaid-eligible children with SED are: Mental Health Services Program for Youth (MHSPY), Worcester Communities of Care (WWC), and Coordinated Family-Focused Care program (CFFC). These programs provide the comprehensive assessments, service coordination, crisis intervention, and in-home support services that children with SED require. Unfortunately, as of September 2004, these services are reaching only a minuscule portion of the plaintiff class.
46. MHSPY, WCC, and CFFC are similar to what are sometimes referred to a "wrap-around" programs; they provide a full range of services under one administrative and clinical umbrella. Defendants consider programs of this kind to be experimental, delivering services through a organizational structure they term a "system of care." Since programs like MHSPY and CFFC represent merely ways of delivering treatment and not, in themselves, types of treatment, Defendants argue, the Medicaid Act does not require the Commonwealth to provide access to these programs to all Medicaid-eligible children with SED. The evidence flatly contradicts this argument. The difference between, for example, MHSPY's delivery of clinical services, and the scattershot, uncoordinated treatment approach of the Commonwealth's "treatment as usual" for SED children is not a matter of mere form. The distinction was rather between effective and ineffective treatment.
47. A metaphor to highlight Defendants' inapt mode of analysis might be the contrast between a supermarket and a series of separate food shops. Shopper A might prefer to visit one store for meat and fish, another shop for fruit and vegetables, and a third for baked goods. Shopper B might prefer to do all his food shopping at a supermarket, under one roof. Similarly, Defendants argue that the Commonwealth has chosen, for the most part, to provide services to SED children through a variety of separate outlets: assessments through pediatricians; service coordination (when it occurs) through, for example, MBHP's "targeted outreach" workers; crisis services through a separate contracted ESP agency; and in-home support services through yet another contracted FST. MHSPY and CFFC offer examples of the under-one-roof, supermarket-style service provision mode, available only for a few SED children. This latter method of packaging service delivery may have certain strengths, Defendants argue, but is not mandated by federal law.
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48. The evidence sharply rebuts Defendants' position in two ways. First, comprehensive assessments, effective service coordination, planned crisis intervention, and tailored in-home behavioral support services simply are not, as a practical matter, available anywhere, in any form, to thousands of children with SED in the Commonwealth. These services may appear on paper, but they are not reaching most of the plaintiff class members. Second, even where limited services exist, arbitrary cut-offs and lack of overall coordination greatly reduces or entirely eliminates their effectiveness.
49. Objective data on the three successful programs show that, generally, they improve outcomes for children with SED. Significantly, Defendants offered no data at trial, and appeared to possess no data--not a shred of objective outcome measurement--confirming the benefits of the programs and services they offer through MBHP. A review of how programs like MHSPY and CFFC tend to succeed explains why the Commonwealth's primary method of delivering services so often fails. This examination also demonstrates that compliance with the Medicaid *41 statute, and consequent improvement in the lives of thousands of vulnerable children, is not beyond the reach of Defendants. Indeed, they are already doing it.
1. Mental Health Service Program for Youth (MHSPY).
50. Begun in 1997 as a pilot program with funding from Medicaid, the Commonwealth, and the Robert Wood Johnson Foundation, MHSPY provides well-coordinated assessment and case management services, along with appropriate in-home supports without arbitrary time limits. These services improve clinical outcomes for children with SED and protect them from unnecessary removal from their homes.
51. Originally, MHSPY enrolled thirty children at a time in two sites in Cambridge and Somerville. Most of the children who enrolled in the MHSPY program had been hospitalized at some point, and more than half the children had been placed in residential facilities. Dr. Katherine Grimes, medical director of MHSPY, characterized the children in her program as multi-agency, multi-need children for whom other interventions had failed.
52. Since its inception, there have been extensive waiting lists for access to care through MHSPY. MHSPY addresses all of a child's mental health needs through the direct provision of services or by securing needed services through a contractor. All children who enter MHSPY are given a thorough assessment. Moreover, MHSPY provides each child with an intensive clinical case manager, who oversees a multi-disciplinary team that includes the child's family, medical care-givers, and others involved in the child's life. This team creates a single treatment plan for the child; the plan includes provisions to address potential crises.
53. There are no artificial time limits on the duration of MHSPY's in-home supports and other clinical services; each child enrolled in the program receives services until the goals for that child have been achieved.
54. The outcome data for the Cambridge/Somerville MHSPY sites have been very impressive. Over six years, SED children in the program experienced a 50% reduction in hospitalization and
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residential treatment days. Foster care days declined from 1327 days in the year prior to enrollment to 317 days following enrollment. The program's expenditures on integrated care for participating children, estimated at approximately $4500 per child per month, are substantially less than the cost for usual treatment in the Commonwealth's uncoordinated, multi-agency approach to care.
55. In 2002/2003, the Commonwealth expanded the MHSPY program to an additional site, called "Tri-City," which serves the cities of Malden, Everett, and Medford. Now, MHSPY enrolls an roughly sixty additional children at these three sites.
56. Children who enter MHSPY are evaluated using the Child and Adolescent Functional Assessment Scale ("CAFAS"). The higher a CAFAS score a child has, the greater the degree of functional impairment. A score of 170 signifies maximal functional impairment.
57. Tri-City children have somewhat higher CAFAS scores upon enrollment than do the Cambridge/Somerville children; the Tri-City average is one hundred six, while the Cambridge/Somerville average is ninety-three. The Tri-City site includes a greater number of referrals from the Department of Mental Health, and the children who enroll in Tri-City are more likely to have a parent who suffers from a mental illness.
*42 58. Despite these differences, preliminary data demonstrate that the positive trends visible in the Cambridge/Somerville MHSPY sites are emerging in the Tri-City site. The MHSPY program is universally recognized as a success by children's health professionals, including state mental health officials.
2. Worcester Communities of Care. [FN10]
FN10. WCC began in September 1999 as a program to deliver intensive home-based services to SED children in Worcester. In 2003, WCC became a contractor with MBHP to provide the CFFC program. Thus separate discussion of WCC has mainly been subsumed into the discussion of the CFFC program.
59. Worcester Communities of Care (WCC) began in 1999, also as a pilot program. The WCC program enrolled children with higher degrees of functional impairment than any of the MHSPY sites; the average CAFAS score for a WCC child was roughly 135. Despite their level of disability, between October 2000 and June 2003, sixty-one percent of the children in WCC experienced an improvement. Children who showed an improvement in CAFAS scores, sustained this progress even after leaving the WCC program. In 2003, WCC became a CFFC site.
3. Coordinated Family Focused Care (CFFC).
60. CFFC, which began in July 2003, operates in five communities: Brockton, Lawrence, New Bedford, Worcester, and Springfield. It is only accessible to Medicaid-eligible children who receive mental and behavioral health services through MBHP.
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61. Like MHSBY, CFFC prepares an individualized plan for each of its participants that focuses on keeping a child with his or her family and on helping the family cope with and improve the child's behaviors. If the child has other individualized plans, such as a special education plan through the school, CFFC will make sure that the various plans are coordinated. The program also provides crisis planning, an intensive case manager, and workers who interact with the child in his or her home as often and for as long as needed. Each CFFC clinical team has a caseload of ten families; crisis intervention services are available on a twenty-four hour basis in the child's home. Finally, there is no time limit for a family's participation in the program: a child leaves the program only when he or she meets the program's discharge criteria.
62. Each of the five CFFC programs serves fifty children. Accordingly, only 250 children with SED have access to CFFC, and there are waiting lists for entry into the program. The eligibility criteria for enrolling in CFFC include a risk of placement in a twenty-four hour care facility and a minimum CAFAS score of one hundred. The average CAFAS score across all five CFFC sites is one hundred forty.
63. During the first sixth months of the CFFC program, CAFAS scores for 83% of the children enrolled improved; children also experienced a reduction in inpatient emergency episodes. The program is no more costly than the Commonwealth's system of multiple service providers. Although a small number of program participants fail to make progress, CFFC presents a powerful example of the effectiveness of adequate planning, service coordination, and in-home supports for SED children.
64. No financial, clinical, or administrative bar prohibits expansion of a MHSPY-type or CFFC-type program throughout most, if not all, of the Commonwealth. Of course, it is true, as witnesses connected with these programs were careful to point *43 out, that any such expansion would require careful planning and could not follow any rigid pattern. Tailoring of services to the specific environment--sensitivity, for example, to the culture of each community being served--is required. With appropriate modifications, however, programs like MHSPY and CFFC could provide the reasonable range of clinical interventions to which the plaintiff class members are entitled to under the EPSDT provisions of the Medicaid statute. That such services are now provided to only a few hundred of the many thousands of Medicaid-eligible children in Massachusetts with SED evinces a clear violation of federal law.
65. By finding that programs like CFFC and MHSPY provide the planning, service coordination, and in-home support the plaintiff children are entitled to under the Medicaid statute, the court is not dictating that these services be provided through these specific programs, or in any particular manner. CFFC and MHSPY, however, offer clear examples of one way the Commonwealth might fulfill its responsibilities under the Medicaid statute. Defendants may choose to comply in other ways or by other means; they cannot, as they are currently doing, choose to deprive the vast majority of children with SED of adequate EPSDT services by claiming either that their existing, deeply flawed system is adequate, or that compliance with the Medicaid statute is beyond their grasp.
F. Other State Agencies.
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[15] 66. A child with SED, in addition to qualifying for MassHealth, may sometimes receive services from other Massachusetts state agencies, such as the Department of Mental Health or the Department of Social Services. It is well established that a state may not avoid its obligations under the Medicaid statute by attempting to augment services through a non-Medicaid agency. As one Court of Appeals has noted, "obligations under Medicaid stand independent of any services available through [a] parallel state program." Collins v. Hamilton, 349 F.3d 371, 376 n. 7 (7th Cir.2003). It is significant, however, that, even if these services from other sources are examined, the package of clinical interventions available to a typical SED child in Massachusetts falls far short of what is medically necessary.
1. The Department of Mental Health (DMH).
67. DMH provides services to adults and children over the age of five. To be eligible for DMH services, a child must be (1) diagnosed with a serious mental illness or emotional disturbance that (2) lasts longer than one year and (3) results in the child's functional impairment. The testimony at trial confirmed the difficulty SED children face in trying to qualify for DMH services and the lengthy application period.
68. For children who do manage to enter its program, DMH employs ninety case managers, each responsible for a case load of approximately twenty children. Since only children who qualify for DMH services are eligible for DMH case managers, significant eligibility barriers and delays impede access to these services.
69. DMH programs are intended to treat chronic, severe mental or behavioral conditions. The evidence at trial confirmed that, despite a clinician's determination that a particular service is medically necessary, a SED child frequently will not have access to it because the Commonwealth houses the program in DMH, and many SED children are unable to satisfy the stringent eligibility requirements for service through that agency.
*44 2. Department of Social Services (DSS).
70. DSS is the state child welfare agency. It serves only children who have been removed from their homes, or (in limited cases) children who are in present danger of removal from their home. All DSS children who qualify for MassHealth receive their mental health services through MBHP.
71. Within the first thirty days of being in DSS care or custody, DSS clinicians prepare a comprehensive medical evaluation. DSS children may receive family-based services, as well as the services of a case manager, who in some cases may be designated the child's legal guardian.
72. Children removed from their homes are placed in either foster care or residential programs. Medicaid funds are not available for room and board in foster care or for locating foster parents. Children in either residential placement or receiving an intensive form of foster care called Therapeutic Foster Care (with trained foster parents) may receive the services of the DSS program called Commonworks, which coordinates these children's care and services.
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73. Because DSS services are only available to children who are in state custody, or in danger of such placement, DSS services are not available to the vast majority of Medicaid-eligible children with SED in the Commonwealth.
G. Defendants' "Benefit Clarification."
74. In April 2003, in response to this litigation, MassHealth issued a "Benefit Clarification" intended to ensure that the Commonwealth appeared to be in compliance with the federal EPSDT regulations. (See PX 0283, DMA081085, "Summary of Red Ratings".)
75. The Benefit Clarification took the form of an EPSDT administrative and billing regulation change. It explained, in substance, that, following the effective date of the clarification, service providers could submit reimbursement requests for any medically necessary service on behalf of children, regardless of whether the service had a separate billing code under the relevant contract.
76. For example, Defendants' witnesses testified that if a clinician determined that a Medicaid-eligible child needed the FST program for longer that the three to six weeks for which it was typically authorized, after April 2003 the clinician could request approval of an extension pursuant to this new EPSDT regulation. Significantly, however, the Benefit Clarification lacked any details on the process, standards, or time-line for approval of needed services after its effective date.
77. MassHealth informed providers of the Benefit Clarification through a notice about amended billing guidelines; it did not issue any similar notice through its Network Alerts, the normal avenue for informing providers of administrative changes in service options. Moreover, the Commonwealth did not send notice of the clarification to service recipients or their families.
78. To the extent that this new regulation was a good faith effort by Defendants to ensure that children with SED would have access to all necessary medical services as the Medicaid statute requires, it was an utter failure. From the date of its promulgation through the time of trial, the clarification has never once been invoked. If the new regulation was merely a gesture, crafted to allow Defendants to appear in compliance with the Medicaid statute for purposes of this litigation, then the transparency of the effort only rendered the Commonwealth's deficiencies in the provision of EPSDT services to the plaintiff class more glaring.
*45 79. It is well understood by anyone familiar with provision of Medicaid services--and confirmed by testimony at trial--that clinicians hesitate to prescribe treatments and services for Medicaid patients that are not specifically listed in billing codes. Dr. David Nace, Vice President and Chief Medical Officer of McKesson Health Solution in Pennsylvania, confirmed this obvious, practical reality. It is simply a fact that how a state constructs its billing procedures affects a clinician's inclination to prescribe the use of particular treatments. The more cumbersome or confusing the process for approving a certain service is, the less likely clinicians will be to use it. The failure of Defendants to provide any detail about how to use the Benefit Clarification to support actual provision of services effectively rendered it useless.
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80. The testimony of Defendants' own mental health service providers confirmed this reality. Several MBHP contractors testified that, despite years of experience and intimate familiarity with the provision of mental health services to Medicaid-eligible children, they were entirely ignorant of the new EPSDT Benefit Clarification. They had heard nothing of it through trade groups or other organizations associated with children's mental health. Very significantly, as already noted, in the more than two years from the issuance of the Benefit Clarification to the trial in this case not a single clinician or agency ever applied for approval of a service under the new regulation.
81. The floundering Benefit Clarification effort casts an unflattering light on the state of services for children with SED in Massachusetts before April 2003. The Commonwealth's hasty and ineffectual initiative to dress up its EPSDT regulations provides strong evidence that Defendants' themselves recognized their failure to comply with the statutory and regulatory requirements with respect to the on-going, long-term needs of children with SED.
H. The Named Plaintiffs. [FN11]
FN11. As noted earlier, the status of each of the named Plaintiffs is considered as of September 2004; ages are given as of the time of trial.
82. A review of the named Plaintiffs' clinical histories, undertaken in light of the credible testimony of Plaintiffs' expert witnesses, reveals that Defendants' provision of medical care, particularly service coordination and in-home supports, did not meet the medical needs of these disabled children.
83. Most prominent in this evidentiary landscape was the absence of adequate recognition that the named Plaintiffs' serious emotional disturbances constitute chronic conditions that require continuous monitoring, coordination, and modification of services. In most cases, the named Plaintiffs received short-term care in their homes after crisis episodes and, once the immediate flare-ups stabilized, found themselves with inadequate resources until their next, inevitable emergencies. In the worst cases, a child was terminated from a program due to arbitrary time limits despite clinicians' warnings of the child's ongoing need for the services. Sometimes the terminated program was making a real difference in the child's life; these arbitrary terminations risked, and at times precipitated, regression and needless institutionalization.
1. Plaintiff Anton B.
84. Anton is a twelve-year-old boy who lives at home with his mother. Anton was born prematurely and received early intervention services until the age of three. When he was four, Anton was diagnosed with attention deficit hyperactivity disorder *46 and at age seven, with bipolar disease. Anton received some treatment based on these various diagnoses.
85. By the age of nine, Anton had been hospitalized three times. Following his second hospitalization, Anton received FST services and support from a behavioral specialist, who took him on outings twice a week. FST services terminated after one month, and the specialist
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terminated after eight months, despite requests from Anton's mother and from his clinicians that the specialist service be continued.
86. Four months after the specialist service ended, Anton was hospitalized again. Anton's hospital discharge summaries recommended intensive home-based services, including development of a behavior management plan and in-home behavior therapy. The services recommended on discharge were not adequately provided.
87. Since 2001, Anton has received some individual therapy, medication, check-ups once or twice a month, and after-school programming. Case management services, received from DMH, comprise approximately six hours annually-- completely inadequate for someone of Anton's level of need. Anton has also received only special education support from his school.
88. Anton currently needs in-home supports, more intensive case management services, a behavioral specialist to work with him and his mother, mobile crisis management, a therapeutically-based after-school program, and individual or family therapy in his home or community. At present Anton is not receiving such services and is therefore at risk for another hospitalization.
2. Plaintiff Devin E.
89. Devin is an eleven-year-old boy who lives at home with his grandmother. He began receiving early intervention services at age 2, and has been receiving therapy and medication since the age of four. Devin has multiple diagnoses, including post-traumatic stress disorder, reactive attachment disorder, and possible bipolar disorder.
90. The absence of adequate service coordination has resulted in conflicting diagnoses of Devin's problems and unresolved disputes over appropriate treatments. Some clinicians maintain that Devin is autistic and have designed courses of therapy around this diagnosis. Devin's grandmother has rejected this diagnosis; she asserts that he is capable of functioning at a higher level than most autistic children. The grandmother's opinion is buttressed by an assessment of Devin performed by psychologists from the Children's Hospital in Boston, who have opined that Devin has post-traumatic stress disorder and global developmental delay. Several clinicians have recommended residential care for Devin, but his grandmother is determined to care for Devin at home, and has therefore consistently requested in-home supports.
91. Intensive in-home supports have been recommended frequently as a treatment for Devin, twice in hospital discharge recommendations and once by Devin's treating psychiatrist. Moreover, Devin's health care clinicians have stated repeatedly that his treatments and services need to be coordinated in order to assure continuity and consistency.
92. Clinicians first recommended "intensive home-based services" for Devin in 2000 after his assessment at Children's Hospital. Nonetheless, no adequate in-home behavioral support or service coordination was provided for nearly three years. In 2003, after this lawsuit was filed, Devin's psychiatrist recommended in-home supports similar to those sought by his *47 grandmother. A
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clinician also proposed a detailed treatment plan for such services.
93. Devin's psychiatrist contacted MBHP with the assistance of class counsel, and as a result of this pressure some of the services requested (at less than the recommended intensity) were provided. Devin now has an intensive clinical manager from MBHP, as well as case management services from other agencies. In addition to these services, Devin began receiving services from a FST behavioral specialist in November 2003, and a one-to-one aide, as well as speech and occupational therapy at school.
94. While Devin has received more services than most SED children, gaps continue to plague his treatment. The MBHP case manager, for example, has never met with Devin. No in-home supports exist to cover the weekends, when the boy's complex needs place pressure on his grandmother.
95. A review of Devin's treatment profile presents a dual picture: on the one hand, a history of insufficient services (particularly, adequate case management and on-going home supports) that continues, to some extent, to this day; on the other hand, better than average services, combined with the extraordinary commitment of his grandmother, have kept Devin out of an institution, allowed him to attend school, and given him the support to earn A's and B's. Though Devin is currently receiving many of the services he needs, they continue to fall short of the level of intensity recommended by Devin's psychiatrist. In sum, though Devin is better served than most children with SED in the Commonwealth, in part because of the intervention of counsel, his medical needs still are not being met.
3. Plaintiff Jerry N.
96. Jerry is a twenty-year-old male who lives at home with his mother. His diagnoses include mood disorder, attention deficit hyperactivity disorder, mild retardation, and a chromosomal abnormality associated with a short attention span. Jerry has received special education services since an early age, as well as outpatient therapy and medication management.
97. Jerry's first hospitalization occurred at fourteen; so far he has attended three different specialized schools. Although Jerry tends to perform better academically at these structured facilities, one terminated his enrollment because it lacked the clinical and programmatic support necessary to ensure his safety and the safety of other students.
98. In the past, clinicians have recommended case management and in-home behavioral services for Jerry. Requests for services from both DMR and DMH were unsuccessful. He did receive some CSP services toward the end of 2003, but these services ceased after only six months.
99. Jerry's reasonable medical needs--notably case management services and behavioral supports in his home and the community--have not been met by the Commonwealth's Medicaid program, despite his eligibility for such services. He has a present need for a case manager and home supports that include crisis services in the home as well as a one-on-one behavioral specialist who visits two or three times per week.
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4. Plaintiff Joshua D.
100. Joshua is a fifteen-year-old boy who lives at home with his adoptive parents. He has been diagnosed with obesity, Asperger's Syndrome, anxiety disorder, and pervasive developmental disorder. Josh also suffers from a nonverbal learning disorder and fine motor problems associated with his weight.
*48 101. Joshua has experienced two out-of-state placements. Although Joshua has received a variety of services--including CSP services from MBHP, psychiatric services, medication, physical therapy, a crisis team, and a health worker who has taken him on outings and worked on his social skills--he lacks adequate service coordination to ensure that his various providers are working towards a common goal.
102. Joshua was found eligible for DMH services, but was placed on a wait list for case management services. In March 2005, a month prior to the start of trial, MBHP finally assigned an intensive case manager to Joshua's case.
103. Joshua needs, but has not received, a range of services including behavioral supports in the home and individual and family therapy, coordinated by a single case manager. In sum, Defendants have not provided Joshua, thus far, the treatment that Congress intended in promulgating the EPSDT provisions of the Medicaid Act.
5. Plaintiff Roselin D.
104. The lead Plaintiff, also known as "Rosie," is a sixteen-year-old girl who has been diagnosed with bipolar disorder, post-traumatic stress syndrome, oppositional defiant disorder, dyslexia, and attention deficit hyperactivity disorder. Until about age four, when she was removed from the care of her parents, Roselin experienced severe physical and sexual abuse.
105. Roselin has suffered repeatedly from poorly coordinated services, which have led to an overlay of additional symptoms generated by her intervals of institutionalization. For example, at the end of 1994, when she was six years old, Roselin was hospitalized for three months, during which her treating clinicians noted a severe regression in her condition.
106. To coordinate Roselin's care, her foster mother has acted as case manager. She has directed a crisis plan, established interagency meetings, demanded transition plans where appropriate, worked to schedule community support workers, and arranged other programs for Roselin.
107. In early September 2004, Roselin was living at home with her foster mother and receiving community support services, respite, tutoring, summer camp, and therapeutic recreational activities. However, later that month, Roselin was repeatedly violent towards her foster mother, culminating in an episode which resulted in her admission to a Crisis Stabilization Unit. As a result of this incident, as of September 2004, Rosie was being considered for therapeutic foster care.
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108. Roselin is now at risk for a placement outside the home, even though both her present therapist and case manager have opined that residential placement would be detrimental to Roselin: they have recommended placement in therapeutic foster care during the week with visits home on the weekends. The physician who monitors her medication, however, has suggested that the best course of treatment would be a residential placement, since Roselin's condition has been deteriorating precipitously in the face of the challenges of adolescence.
109. Roselin's treatment history presents a familiar picture of inadequate home supports and arbitrary limitations on services. By September 2004, even after years in the Commonwealth's mental health system, Roselin's current needs were unclear and her prospects uncertain.
6. Plaintiff Shaun E.
110. Shaun is a nine-year-old boy who lives at home with his grandmother and his seventeen-year-old uncle. He experienced abuse and neglect until he and his two sisters were removed from their parents and placed with their grandmother. *49 Because of the threat Shaun's behavior posed to his two younger sisters, however, the state eventually removed the sisters from his grandmother's care. Shaun has been diagnosed with pervasive developmental disorder, mood disorder, attachment disorder, and attention deficit hyperactivity disorder. In addition, Shaun has a seventy-percent hearing loss in one ear as well as speech and other neurological problems.
111. For over two years, Shaun participated in a program called Foundations, whose services his grandmother found indispensable. However, in 2004, Foundations' services terminated because Shaun had reached the program's two-year time limit. Shortly thereafter, Shaun was hospitalized: the treating clinicians found that Shaun's functional decline was directly related to the stress he endured from losing the Foundations' life coaches.
112. As part of his discharge plan from the hospital, Shaun was supposed to receive services from FST; these services, however, were not provided in a timely fashion. Shaun was institutionalized again several weeks later.
113. At the time of trial, Shaun was in a day program at a residential school. The school provides medical, nursing, case management, and group therapy to Shaun. Although his grandmother is pleased with the services Shaun receives at the school, neither she nor Shaun has access to any services outside school. Shaun has a clear medical need for in-home behavioral support services and a well-coordinated mobile crisis service that can come to the home in emergencies.
114. The lack of in-home behavioral supports, including increased hours from a behavior specialist, pre-planned crisis services, and case management, has put Shaun at risk of unnecessary hospitalization. His current, unmet reasonable medical needs include case management and expanded one-on-one behavior support in the home.
7. Plaintiff Sheena M.
115. Sheena is a nineteen year-old female who lives at home with her father. She has been
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diagnosed with mild to borderline metal retardation, mild symptoms of psychosis, schizophreniform disorder, and non-specific anxiety. Sheena has experienced a lack of service coordination that has led to disputes about her diagnoses. Moreover, her treatment regimen reflects delay, confusion, and disagreement among the providers attempting to treat her.
116. Sheena was finally placed in a residential home in September 2001, where she stayed for two years. In 2003, Sheena's clinicians began preparing to transition her out of the residential program and back to her family home. It became obvious during this process that Sheena would need case management services to make this change successfully. As a result of her participation in this litigation, in January 2004 (while still in the residential program) Sheena received an intensive clinical manager from MBHP.
117. As part of the planning for her discharge from the residential placement, Sheena was offered time-limited FST services. Recognizing that a premature cut-off of these services was a recipe for failure, Sheena's father, her clinical manager, and her therapist all rejected the FST program as inappropriate in light of Sheena's reasonable medical needs.
118. Sheena thereafter encountered further delays in her return home, based not on her medical needs, but rather on a dispute between DMH and the Department of Mental Retardation ("DMR") over who had financial responsibility for Sheena's care.
*50 119. Sheena's therapist has predicted that Sheena's placement in yet another residential setting might lead to further deterioration of her condition. She currently receives psychiatric support, as well as case management services from other agencies, therapy and respite.
120. Sheena is at risk for a restrictive placement and needs a single treatment team, therapy, and more intense home supports, including a one-on-one behavior specialist, as well as ongoing medication and case management. Despite the clear medical necessity, MassHealth is not adequately providing the services required.
8. Plaintiff Tyriek H.
121. Tyriek is an eleven year-old boy who lives in a DMH-contracted residential program. He has been diagnosed with schizoaffective disorder and receptive and expressive learning disorders. His record suggests that he may also suffer from a psychosis related to a major mental illness, although his mother disagrees with this diagnosis.
122. In May 2000, Tyriek was deemed eligible for DMH service and was placed on a waiting list for case management. Tyriek did not meet his case manager until February 2001. An evaluation in June 2000 recommended that Tyriek's parents receive support, including a therapist and crisis intervention services, to contain his behaviors at home. Tyriek received FST services, but when those were cut off July of 2000, Tyriek's condition rapidly deteriorated.
123. As a result of Tyriek's increased need for services he was placed out of his home in September 2000 into a residential crisis intervention unit for two months. After this crisis
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admission, Tyriek's mother asked for services that would allow him to live at home, but the only option presented was a transfer to a residential program. Ultimately, Tyriek was discharged from the CSU into an intensive residential treatment facility, where he remained for the next three years, from age seven until age eleven.
124. During his years in the residential program, Tyriek went on several home-visits to see his mother and family members. These visits were a burden on both Tyriek and his family because the residential school was far from Tyriek's home and required long van trips. Though the contacts with his family frequently were successful, Tyriek's often had difficulties with the extended van rides required.
125. In 2004, Tyriek improved to the point where clinicians began to consider a less-intensive residential placement, and Tyriek was transferred to a new residential facility.
126. Tyriek's mental illness is particularly severe. Though it is possible that he would have eventually ended up in his current residential placement, the services he received prior to this placement were inadequate, both as to duration and intensity. Currently, Tyriek is disabled to the point where an at-home placement for him would likely require virtually round-the-clock assistance. Thus, while there is no current need for case management and home supports, if Tyriek continues to improve in his new, less-intensive residential placement, he and his family will require these services in the future.
I. Clinical Review
127. In addition to presenting the case histories of the named Plaintiffs, Plaintiffs' experts performed a clinical review of the needs of a randomly selected subgroup of the certified class, to determine whether the reasonable medical needs of this group were being met. This review examined the histories of thirty-five children who receive behavioral health services through MassHealth.
*51 128. The clinical review, even with its limitations, provides substantial, useful information regarding the unmet medical needs of the plaintiff class. The children were selected from a list of 3226 Medicaid-eligible children with SED who had received mental health services during two specified time periods. This list was drawn up and given to Plaintiffs' experts by Defendants; it provided the pool for the random selection.
129. Several trained clinicians, familiar with the medical needs of SED children, examined the clinical history of the sample children on behalf of Plaintiffs. Their review revealed that, in general, the thirty-five sample children suffer from similar conditions as the named Plaintiffs but have inadequate access to necessary medical treatment. Like the named Plaintiffs, the children in the clinical review usually had multiple diagnoses--most involving at least one serious mental illness--complex symptoms, and chronic needs. All the children were involved with the state's mental health system in some way.
130. Ninety percent of the children in the clinical review confronted substantial deficiencies in
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their medical treatment. Particularly glaring were the absence of comprehensive assessment, adequate case management, and in-home supports such as mobile crisis services and behavior specialists.
131. Service deficiencies suffered by the thirty-five SEDS children randomly selected for analysis followed the same pattern as those encountered by the named plaintiffs. A few examples illuminate the parallels. The treatment plan of one child, "Robbie," comprised a single page form, virtually identical year to year. Case management services were recommended for Robbie; eight months later he was still waiting to get them. Another child, "Matthew," needed intensive, home-based behavioral support services; the time-limited, sporadic services he received were insufficient to head off his hospitalization. A third child, "Dawn," needed prompt assessment by a crisis intervention team; delays resulted in her transportation to a psychiatric facility forty miles from her home. Lack of a bilingual behavioral specialist to provide support and assist in a transition to a foster home left a fourth child, "Christine," isolated in a residential program far from her Latino community.
132. Defendants' criticisms of the clinical review, directed at sample size, absence of academically approved standards of randomization, and possible reviewer bias failed to undercut the import of the evidence provided by the review: SED children in the Commonwealth are not receiving the medical services that are reasonable necessary to address their disabilities. With infinite funds, infinite time and infinite access to data, perhaps a more technically sound study might have been fashioned. As one portion of the evidence offered by Plaintiffs, however, this study--even with its limitations of time and cost--vividly supports Plaintiffs claims. Significantly, Defendants, with vastly better access to the data than Plaintiffs, attempted no study of their own as rebuttal. They did not, and apparently could not, offer any objective information on services actually provided to any specific sample of SED children.
133. None of the named Plaintiffs, or the SED children included in the clinical review, has received services from either the Mental Health Services Program for Youth (MHSPY) or Coordinated Family-Focused Care (CFFC) program. It is a fair inference from the evidence that, if they had, many would be doing far better now.
*52 J. "Stuck Kids"
134. The Massachusetts Behavioral Health Partnership tracks the number of children, sometimes referred to as "stuck kids," who remain in hospitals without clinical justification simply because they have no where else to go. Any day spent in a hospital that is not medically necessary is called an Administratively Necessary Day ("AND"). Named Plaintiffs Rosie D. and Sheena M. experienced days as "stuck kids" because of a lack of appropriate services.
135. Between 1998 and 2003, the number of children in hospitals for ANDs rose from an average of thirty-two children per year to one hundred thirty-eight. One-third of the children on MBHP's list were stuck for over one hundred days. As Plaintiffs point out, these statistics only pertain to MBHP's services (not the other four MassHealth plans) and do not include children stuck in unnecessarily restrictive residential placements other than hospitals.
34

136. It is true, as Defendants point out, that some ANDs may always be a part of any system attempting to address the needs of seriously disturbed children with extreme dysfunction. On the other hand, the steady increase in these days was not explained by anything other than a lack of adequate services. Moreover, the evidence is overwhelming that children with SED who receive adequate case management and home support services are less likely to experience acute episodes that require the most restrictive placements. The failure of Defendants to comply with Medicaid's EPSDT requirements for SED children explains, in significant part, the state's burgeoning "stuck kid" problem.
IV. CONCLUSIONS OF LAW [16] Plaintiffs have properly invoked 42 U.S.C. ' 1983 to enforce rights conferred on them by the Medicaid Act. See S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 604 (5th Cir.2004) (noting that numerous courts have concluded that the Medicaid Act confers a federal right to EPSDT services on eligible children and that these rights are enforceable under ' 1983); Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 718-19 (11th Cir.1998) (holding that the "reasonable promptness" provision of the Medicaid statute gives rise to a federal right that the plaintiffs may seek to enforce in federal court); Stanton v. Bond, 504 F.2d 1246, 1251 (7th Cir.1974) (affirming the provision of injunctive relief in suit brought under ' 1983 to enforce EPSDT rights).
Based on the facts summarized above, the court concludes that Defendants have violated the EPSDT provisions of the Medicaid Act by failing to offer necessary medical services to children in this Commonwealth who suffer from serious emotional disturbances. Moreover, they have failed to perform their statutory obligation to furnish these medical services with "reasonable promptness."
[17] The failure to provide required EPSDT services took several forms.
[18] First, the EPSDT provisions of the Medicaid statute require, by their very language, comprehensive assessments of children with SED. It is self-evident that "early and periodic screening, diagnostic and treatment" services are impossible without a competent analysis of a child's clinical needs. For the majority of SED children in the Commonwealth, assessments take place in name only, or not at all. The assessments that are attempted often lack comprehensiveness and frequently are not incorporated into any long-range treatment planning.
Second, to address the complex needs of this particularly vulnerable population, clinical oversight--that is, ongoing case management and monitoring--will almost always constitute an essential component *53 of any treatment regimen. The solid weight of the evidence establishes that a great number of Medicaid-eligible children with SED badly need, but are not being provided, adequate case management services in the Commonwealth. Except in the MHSPY and CFFC programs, no trained individual meets regularly with the child and family, oversees formulation of a treatment plan, and takes responsibility to ensure that the plan is carried out and modified as the child's needs evolve. This medically necessary service is, for the most part, unavailable to SED children in Massachusetts. [FN12]
35

FN12. Defendants object that appointment of a case manager with responsibility for monitoring an SED child's overall treatment is not possible, since SED children often receive services from non-Medicaid providers, such as DMH and DSS. Defendants cannot, however, justify denying SED children access to necessary treatment by citing barriers they have chosen to erect in their own system of treatment.
Third, the EPSDT provisions of the Medicaid statute require provision of adequate in-home behavioral support services for SED children. Defendants have failed to provide adequate in-home supports, which include trained personnel--para-professionals or licensed clinicians--who can assist the child and his or her family in the home for as long as medically required. This bundle of in-home supports must also include crisis services, available on short notice and designed to minimize the need to remove the child from the home. Again, these services are often simply not available for an adequate duration at an adequate level of duration and intensity.
It is true, as Defendants point out, that they do provide some case management and in-home support services to a few of the Commonwealth's Medicaid-eligible SED children. For most SED children, however, Defendants provision of services amounts to an attempt to patch together long-term care out of short-term programs. For most SED children, this will not work. Though short-term programs have their uses, they are inadequate by themselves to treat children with chronic conditions, who usually require carefully planned and flexible services for months or years. The absence of these long-term services too often leaves SED children with only one option: expensive, clinically unnecessary and damaging confinement in a long-term residential program or hospital, far from home and family.
[19][20] Because Defendants have failed to meet the substance of the EPSDT mandate, they have not satisfied Congress' command to provide services with "reasonable promptness." 42 U.S.C. ' 1396a(a)(8). The fact that Defendants provide some services does not relieve them of the duty to provide all necessary services with reasonable promptness. Boulet v. Cellucci, 107 F.Supp.2d 61, 79 (D.Mass.2000).
[21][22] Finally, as noted in the introduction, the evidence does not support Plaintiffs' claim that Defendants have violated the equal access provision of the Medicaid Act, 42 U.S.C. ' 1396a(a)(30)(A). This subsection is intended to prevent "gross disparity" between the Medicaid population and the general population with respect to the availability of medical assistance. See King v. Sullivan, 776 F.Supp. 645, 655 (D.R.I.1991). No significant evidence describes barriers to providers enlisting in the state's Medicaid system or suggests significant differences between the provision of care for SED children in the general population as compared to those in the Medicaid-eligible population. [FN13]
FN13. The Ninth Circuit recently held in Sanchez v. Johnson, 416 F.3d 1051 (9th Cir.2005), that the equal access provision is not enforceable in a ' 1983 action by Medicaid recipients or providers. In so holding, the court followed the reasoning of the First Circuit's decision in Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50 (1st Cir.2004), in which the court determined that Medicaid providers could not enforce the equal access provision through a ' 1983 action. Even were the First Circuit to extend its Long Term Care decision to Medicaid recipients as the Ninth Circuit has done, the results would be the same in this case, since the court has found no violation of the equal access provision by the
36

defendants. As already noted, courts have regularly recognized the availability of ' 1983 to enforce the EPSDT provisions of the Medicaid statute. Cf. S.D., 391 F.3d at 603 (concluding that "the EPSDT treatment provisions of the Medicaid Act contains the 'rights-creating language critical to showing the requisite congressional intent to confer a new right' ") (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 274, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)).
*54 The failure of Defendants to comply with the EPSDT and "reasonable promptness" provisions of the Medicaid statute will require the court, unless voluntary remedial action is taken, to issue permanent injunctive relief to prevent continued, irreparable harm to the plaintiff class members. Ongoing denial of necessary medical services to Plaintiffs outweighs any harm to Defendants that would flow from such an injunction. Moreover, equitable relief to ensure compliance with the Medicaid statute would obviously serve the public interest.
V. CONCLUSION For the reasons set forth above, the court hereby finds in favor of Plaintiffs, on the issue of liability, on Counts I and II. The court finds in favor of Defendants on Count III. Because the issue of remedy remains to be addressed, judgment will not enter at this time, and no action by the clerk in this regard is required.
The parties are ordered to meet within fourteen days of this memorandum to discuss the issues to be addressed in the remedy phase and to attempt to agree on a timetable for doing so. On or before February 17, 2006, counsel will submit their written proposal regarding both the issues and timetable, either jointly or, if they are unable to agree, then separately. Counsel will appear again for a status conference to discuss the remedial phase on February 23, 2006 at 3:00 p.m.
It is So Ordered.
410 F.Supp.2d 18, Med & Med GD (CCH) P 301,777
Motions, Pleadings and Filings (Back to top)
. 2005 WL 2096346T2 (Trial Motion, Memorandum and Affidavit) Defendants' August 1, 2005 Reply to Plaintiffs' Proposed Findings and Conclusions (Aug. 1, 2005)Original Image of this Document (PDF)
. 3:01cv30199 (Docket) (Oct. 31, 2001)
END OF DOCUMENT
37

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

______________________________________________

)

ROSIE D., et al.,

)

)

Plaintiffs

)

)

v.

)

)

)

MITT ROMNEY, et al.,

)

)

Defendants

)

)

______________________________________________ )

Civil Action No. 01-30199-MAP

JOINT STIPULATION ON THE MONITOR Pursuant to the Court’s February 22, 2007 Remedial Order, the parties submit this Joint Report and Stipulation on the Monitor. 1. The parties agree that Karen L. Snyder should be appointed by the Court as the Monitor in this case, with the authorities and responsibilities set forth in the Defendants’ Proposed Remedial Plan. A copy of Ms. Snyder’s curriculum vitae is attached as Exhibit 1. 2. Ms. Snyder will assume some of her responsibilities as the Monitor on June 9, 2007, and begin working up to full time as needed as the Monitor on July 1, 2007. 3. The defendants will contract with Ms. Snyder as an independent consultant. The contract will include sufficient funding to operate the Office of the Monitor, as set forth in an annual budget approved by the Court. 4. The contract will represent the maximum obligation of the Commonwealth for the Office of the Monitor for that year. Ms. Snyder will have reasonable flexibility to expend the funds provided in the contract. The parties understand that Ms. Snyder may not expend all funds included in the contract, if she determines that either staff or expenses

allowed under the contract are not needed. 5. Ms. Snyder will be responsible for paying all of the expenses of the Office of
the Monitor. She will be reimbursed for such expenses by the Commonwealth in the ordinary course, consistent with the terms of the contract and the submission of necessary vouchers and documentation to the Commonwealth.
6. Pursuant to the contract, Ms. Snyder may employ a program assistant up to full-time as needed and necessary consultants. The program assistant shall have qualifications and experience in children’s mental health services.
7. The defendants will provide Ms. Snyder a business office in Massachusetts, including supplies, telephone, computers, and equipment, located in an existing program or entity that is not affiliated with this case. The defendants will also provide Ms. Snyder with a half-time administrative assistant, who is acceptable to Ms. Snyder, to be located at her Massachusetts office. The administrative assistant shall not be simultaneously employed for anyone affiliated with this case and shall ensure that all communications, documents, and information related to the Office of the Monitor are maintained in a confidential manner. Ms. Snyder also shall be reimbursed for her reasonable travel expenses for her time in Massachusetts.
8. The budget for the first year of the Office of the Monitor is attached as Exhibit 2. The parties agree that this budget is reasonable and should be approved by the Court.
Respectfully submitted, Defendants, By their attorney,

MARTHA COAKLEY ATTORNEY GENERAL
/s/ Juliana deHaan Rice Juliana deHaan Rice BBO No. 564918 Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, Massachusetts 02108 (617) 727-2200, ext. 2062

Dated: April 5, 2007

Plaintiffs,
By their attorneys,
/s/ Steven Schwartz/jdr Steven Schwartz (BBO # 448440) Cathy E. Costanzo (BBO # 553813) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

Certificate of Service
The undersigned counsel hereby certifies that this document is being filed through the ECF system and thus will be sent electronically to all registered participants.
/s/ Juliana deHaan Rice Juliana deHaan Rice Assistant Attorney General

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., by her parents and Debra D., ET AL, Plaintiffs
v.
MITT ROMNEY, ET AL, Defendants

John) ) )
)
)CIVIL ACTION NO.
)
)
)

01-30l99-MAP

MEMORANDUM AND ORDER REGARDING REMEDY February 22, 2007
PONSOR, U.S.D.J. This lawsuit has been brought on behalf of a class of
Medicaid-eligible children suffering from serious emotional disturbances. It charges the Governor of the Commonwealth of Massachusetts and certain executive officials with violation of the federal Medicaid statute.
On January 26, 2006, the court issued its decision on liability, finding that Plaintiffs had convincingly demonstrated violations of two portions of the Medicaid statute: the provision mandating "early and periodic screening, diagnostic, and treatment services" ("EPSDT"), 42 U. S.C. §§ 1396a (a) (10) (A) ,- (a) (43), 1396d(r) (5) ,- (a) (4) (5)

(2005), and the "reasonable promptness" provision, § 1396a(a) (8) (2005). Following this court's decision on liability, the parties voluntarily engaged in negotiations extending over several months in an effort to craft a remedy for these violations acceptable to both sides.
When they were unable to reach an agreement, the parties submitted their separate proposed remedial plans. Memoranda were submitted thereafter detailing the areas of disagreement between the parties. The court heard argument on December 12, 2006.
Having now had an opportunity to review both plans and to consider the parties' arguments, the court will adopt Defendants' proposed plan, subject to the provisos set forth below. Recognizing that the provision of adequate services for this extremely needy population of children presents a complex and daunting challenge and that no plan (neither Plaintiffs' nor Defendants') can guarantee an ideal level of service, the court is convinced that Defendants' plan has been offered in good faith and presents a "real prospect" for curing the Medicaid violations found by the court "at the earliest practicable date." Green v. County Sch. Bo. of
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New Kent County, Va., 391 u.s. 430, 439 (1968). Apart from its potential efficacy, adoption of Defendants' plan has two special advantages, one legal and one practical.
First, as a legal matter, a respect for the sovereignty of the Commonwealth and the competence of its officials requires the court to allow the state to demonstrate that its chosen remedial plan will address, promptly and effectively, the Medicaid violations identified by the court. The Supreme Court has emphatically underlined the obligation of the court to defer to the judgment of state authorities in fashioning remedial orders and to avoid excessive intrusiveness. Lewis v. Casey, 518 u.S. 343, 362 (1996) . Of course, deference is not infinite; the court will not be obliged to close its eyes to unreasonable delays or inadequate measures. If the plan proves to be ineffective, Plaintiffs will be free to propose, and the court free to consider, alternative approaches.
Second, as a practical matter, there is some force in being able to say to Defendants: you have endorsed this plan, now implement it; prove to the court that it will work. Undue delay or ineffective programming will not be
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excused by complaints that Defendants are being forced to implement a plan they never bought into.
Most importantly, the plan, which is attached to this memorandum as Exhibit A, is a good effort and is promising. It is detailed and directly addresses each of the areas of deficit identified by the court in its January 26, 2006 memorandum. Defendants have estimated that implementation of the plan, assuming that it reaches at least 15,000 eligible children (and it may well extend to many more) , will involve expenditures of up to $459 million, well more than twice the budgeted amount currently allocated for behavioral health services for this class of children. If implemented and successful, the plan will represent a new day for this population of underserved, disabled children. It holds the potential to be an enormous step forward.
The court's adoption of Defendants' plan as its remedial order is subject to four provisos. To the extent that any language in Defendant's proposal is inconsistent with them, these provisos will govern and constitute a portion of the court's remedial plan.
First, since the Medicaid statute does not itself
-4-

define a child suffering from a "serious emotional disturbance" ("SED"), the governing definition for an eligible SED child under the remedial plan will be the definition set forth in the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401(3) (A) (i) and its implementing regulations or the definition set forth in the regulations governing the Substance Abuse and Mental Health Services Administration ("SAMHSA") of the United States Department of Health and Human Services. 1 Any child satisfying the SED criteria used in the IDEA or by SAHMSA, or both, will be eligible for services. While, of course, Defendants will be free to make clinical decisions based on the needs of the individual children, no language in Defendants' proposed plan (if any) appearing categorically to narrow the definition of class of children eligible for services will have any force or effect. It is worth noting that Defendants disavow any narrowing of the class of eligible children under their proposal, beyond what is set out in the IDEA or by SAHMSA. This proviso clarifies that
l Notice, Substance Abuse and Mental Health Services Administration, 58 Fed. Reg. 29422-02 (May 20, 1993), available at 1993 WL 167366.
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pOint. Second, timelines for implementation of the plan are
set forth below. These timelines constitute a portion of the remedial order and will be subject to enforcement by the court. They are, however, also subject to modification for good cause upon application by any party.
Third, as an order of the court, the substantive terms of the remedial plan are mandatory and may not be modified unilaterally at the discretion of Defendants. Absent a modification agreed to by the parties, or permitted for good cause by the court, the plan is to be implemented according to its terms.
Fourth, the remedial plan will be embodied as a final order of judgment, subject to the court's exercise of ongoing jurisdiction to insure the implementation of the plan. Defendants have indicated that they "request an opportunity to submit a proposed form of judgment" (Ex. A, at 1) consistent with the plan. The timetable set forth below will give Defendants an opportunity to do this and Plaintiffs an opportunity to respond.
The timelines for implementation of Defendants' plan
-6-

(subject, as already noted, to modification for good cause upon application to the court), based on Section VI of Defendants' proposal, are as follows:
1. PROJECT 1: Behavioral Health Screening, Informing and Noticing Improvements.
Defendants will submit to the court a written report on the implementation of Project 1 no later than June 30, 2007. Completion of this project will be by December 31, 2007.
2. PROJECT 2: Assessment, Development, Training and Deployment.
Defendants will submit to the court a preliminary report with regard to the completion of Project 2 no later than November 30, 2007. Completion of this project will be by November 30, 2008.
3. PROJECT 3: DeveloPm~nt of a Service Delivery Network.
Defendants will submit to the court a written report with regard to completion of Project 3 no later than November 30, 2007. Further status reports thereafter may be required. Full implementation of this project will be completed by June 30, 2009.
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4. PROJECT 4: Information Technology Systems Design and Development.
Defendants will submit to the court a written status report with regard to Project 4 no later than November 30, 2007. Full completion of this project will be by November 30, 200B.
5. COURT MONITOR. The parties will report to the court, in writing, no later than March 23, 2007 regarding their efforts to agree upon a court monitor to oversee implementation of the remedial plan. If they agree on a monitor, the name of this party, along with the proposed monitor's curriculum vitae and a budget, will be submitted at that time. In the event that the parties are unable to agree on a court monitor, each side will submit a list of three names, along with the curriculum vitae of each, no later than April 6, 2007. The court will thereafter select a court monitor from the proposed names. At the time the names are submitted, the parties will also submit a proposed budget for the court monitor. Defendants will, as they have requested, submit a
-8-

proposed form of judgment embodying the remedial plan adopted by the court, no later than March 23, 2007. Plaintiffs may submit a written response to this submission no later than April 6, 2007.
It is So Ordered.
rfl«{!~r;p ~
MICHAEL A. PONSOR U. S. District Judge
-9-

 
 United States District Court, D. Massachusetts.
ROSIE D., et al., Plaintiffs, v.
Mitt ROMNEY, et al., Defendants. No. CIV.A. 01-30199-MAP.
April 14, 2003.
Class action was brought against various executive officials of state, who administered state's Medicaid program, alleging violations of federal Medicaid Act. On plaintiffs' motions to compel documents from agencies that were governed by defendants, and nonparty agencies, the District Court, Neiman, United States Magistrate Judge, held that: (1) balance of interests favored disclosure of documents containing personal data of agencies' clients, which were protected by Massachusetts's Fair Information Practices Act (FIPA), to plaintiffs, and (2) pursuant to contract between state Division of Medical Assistance (DMA) and non-party agencies, defendants had right to control and to obtain information about clients in Medicaid program from agencies, and thus defendants had to produce discoverable documents that were in agencies' possession to the plaintiffs.
Motions granted.
*116 Steven J. Schwartz,Center for Public Representation, Cathy E. Costanzo, Center for Public Representation, Northampton, MA, James C. Burling, Sara Jane Shanahan, Gabrielle E. Foote, Samantha J. Morton, Hale & Dorr, LLP, Boston, MA, Frank J. Laski, Mental Health Legal Advisors Committee, Philadelphia, PA, for Plaintiffs.
Stephanie S. Lovell, Daniel J. Hammond, Deirdre Roney, Attorney General's Office, Boston, MA, Bart Q. Hollander, Attorney General's office Springfield, MA, Timothy M. Jones, Attorney General's Office, Springfield, MA, for Defendants.
MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS' MOTIONS TO COMPEL (Doc. Nos.
57 and 59)

NEIMAN, United States Magistrate Judge.
Plaintiffs in this class action have sued various executive officials of the Commonwealth of Massachusetts who administer the state's Medicaid program. In essence, Plaintiffs allege violations of several provisions of the federal Medicaid Act, in particular, those provisions which establish the Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”) program. See42 U.S.C. §§ 1396a(a)(10), 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r)(5). See also42 C.F.R. §§ 441.50, 441.56(a) and 441.61(b)(2003).
Presently at issue are Plaintiffs' two motions to compel in which they request production of documents served both upon the defendants-the Division of Medical Assistance (“DMA”), the Executive Office of Health and Human Services and the Executive Office of Administration and Financeand a number of non-party agencies that are involved, to varying degrees, in the delivery of behavioral health services.*117 For the reasons which follow, the court will allow both motions.
I. STANDARD OF REVIEW
Plaintiffs' motions are brought pursuant to Fed.R.Civ.P. 26, 34 and 37. Rule 26 explains general provisions governing discovery. For its part, Rule 34 describes the procedures for requesting documents which are “within the scope of [discovery] and which are in the possession, custody or control of the party upon whom the request is served.” Fed. Ru. Civ. P. 34(a). It also states that “[a] person not a party to the action may be compelled to produce documents.” Fed.R.Civ.P. 34(c). Finally, Rule 37 allows a discovering party to file a motion to compel the opposing party to comply with the proponent's properly-filed discovery requests.
II. DISCUSSION
[1] Plaintiffs' two motions are somewhat discrete. In their first motion, Plaintiffs seek certain documents from each of the named defendants. Plaintiffs' second

motion seeks similar documents from non-party agencies that Plaintiffs claim are within DMA's control. In many respects, the motions raise one underlying issue, namely, whether the responding parties can be compelled to disclose certain personal data concerning clients of the various agencies. The second motion, by its very nature, raises a second issue, i.e., whether the documents sought from the non-defendant agencies are nonetheless within DMA's control. It is these two overriding issues which the parties ask the court to resolve. In the end, the court finds in Plaintiffs' favor with respect to both issues.
A.
With respect to the main underlying issue, Defendants' argument against the disclosure of personal data is grounded in the Massachusetts Fair Information Practices Act (“FIPA”), Mass. Gen. L. ch. 66A, § 1et seq. Section 2(k) of FIPA specifically provides that state agencies must “maintain procedures to ensure that no personal data [is] made available in response to a demand for data made by means of compulsory legal process, unless the data subject has been notified of such demand in reasonable time that he may seek to have the process quashed.” Mass. Gen. L. ch. 66A, § 2(k).
[2] There appears to be no dispute between the parties that some of the information contained within the documents sought by Plaintiffs falls within the ambit of “personal data” as that term is defined in FIPA. SeeMass. Gen. L. ch. 66A, § 1. Nor does there appear to be a dispute that, as a precondition to disclosure of such data, a party to litigation, in the normal course, must first demonstrate that “the collective public interest in disclosure warrants an invasion of the data subject's privacy.” Allen v. Holyoke Hosp., 398 Mass. 372, 496 N.E.2d 1368, 1374 (1986). This balancing test, in essence, was adopted by the First Circuit in In re Hampers, 651 F.2d 19, 22-23 (1st Cir.1981).
Before applying that test, however, two things must be understood. First, this case has been certified as a class action by District Judge Michael A. Ponsor. (See Document No. 13, margin endorsement.) That ruling necessarily entailed a finding under Rule 23 of the Federal Rules of Civil Procedure that the persons representing the class-those attorneys who, on behalf

of the class, now seek to compel the documents presently at issue-are able to fairly and adequately represent the interests of the class. See In re Bank of Boston Corp. Sec. Litig., 762 F.Supp. 1525, 1534-35 (D.Mass.1991).
*118 Second, shortly after the instant complaint was filed, the parties agreed on a protective order which was approved by the court on December 13, 2001. (See Document No. 8, margin endorsement.) An amended protective order was thereafter jointly submitted and approved by the court on January 9, 2002. (See Document No. 15.) In Plaintiffs' view, the protective order, as amended, was designed to ensure that confidential information of all class members could be released to Plaintiffs' counsel and their agents. Defendants, for their part, do not read the protective order so broadly. (See Defendants' Opposition (Document No. 62), Exhibit A (Affidavit of Deirdre Roney) ¶ 10.)
Notwithstanding these differences, Defendants assert, in what appears to be the main thrust of their argument, that Plaintiffs simply do not need any of the confidential information they presently seek in order to persuade the court, with respect to the underlying legal issue in the case, that their construction of the Medicaid Act is the correct one and that Defendants are therefore required to begin making certain screening, diagnosis and treatment services available to Plaintiffs in a home-based manner. In fact, Defendants concede that “with limited exceptions, they do not currently make such services available in a home-based setting.” (Defendants' Opposition at 2.) Rather, Defendants assert, the Medicaid Act, read correctly, creates no such enforceable duty, but allows states to choose, within general federal parameters, how to deliver Medicaid services and grants states discretion to limit the extent of services for which they will pay. (Id.)“These dueling constructions of the federal Medicaid statute,” Defendants maintain, “form the basis of the dispute in this case.” (Id.) There being no factual dispute, Defendants argue, Plaintiffs' interest in the personal data is not sufficient to overcome the state confidentiality policies contained within FIPA.
Plaintiffs acknowledge Defendants' concession, at least in part, but contend that there still are factual disputes warranting the production of client-specific information. The issue before the court can only be

one of law and not of fact, Plaintiffs argue, if Defendants “further concede that class members have a medical need for home-based services, and that these services are not being provided by the Medicaid program.” (Plaintiffs' Reply Brief (Document No. 66) at 3.) Were such a concession made, Plaintiffs continue, there would indeed be no necessity for the production of documents and the parties could move forthwith to address the underlying legal issue before the court.
After exploring this dispute at oral argument, the court concludes that Defendants, for understandable reasons, are not yet prepared to make the second factual concession, i.e., that class members had a medical need for home-based services. Accordingly, the court is left with no choice but to conclude that factual discovery must necessarily continue. More importantly for purposes here, the court concludes that the balance of interests clearly tips in favor of Plaintiffs' access to the information they seek, particularly given the fact that Plaintiffs' counsel are the very lawyers deemed capable of representing the class of individuals whose personal information is at issue. Accordingly, the court will allow Plaintiffs' first motion and will order that the information be produced forthwith, subject to the terms and conditions of the parties' amended protective order.
B.
[3] The second issue-which applies to Plaintiffs' second motion-is whether, within the strictures of Rule 34, the documents*119 which Plaintiffs seek “are in the possession, custody, or control” of DMA upon whom the request has been served. Plaintiffs say “yes,” Defendants say “no.” Again, the court is convinced that Plaintiffs have the better argument.
[4] As used in Rule 34, the concept of “control” exists where a party has a legal right to obtain documents. See, e.g., Calzaturficio v. Fabiano Shoe Co., 201 F.R.D. 33, 38-39 (D.Mass.2001) (citations omitted). Such “control” may be established by the existence of a principal-agent relationship, see, e.g., McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 78 (D.D.C.1999), or a legal right pursuant to a contractual provision, see Anderson v. Cryovac, Inc., 862 F.2d 910, 928-29 (1st Cir.1988), on remand sub nom. Anderson v. Beatrice Foods Co., 127 F.R.D. 1, 10 (D.Mass.1989).

In the case at bar, DMA delegates the delivery of behavioral health services to several entities which, in turn, are authorized to engage subcontracted service providers. At least one of those entities, the Massachusetts Behavioral Health Partnership (the “Partnership”), manages the delivery of behavioral health services to Medicaid-eligible individuals enrolled in a primary care clinician's plan, including all EPSDT services to children with behavioral, emotional or psychiatric impairments. As to those Medicaid-eligible individuals who are not enrolled in the primary care clinician plan or who may have other insurance, it appears uncontested that they receive their EPSDT services through four managed care organizations that have also contracted with DMA: Neighborhood Health Plan, Fallon Community Health Plan, Network Health, and Boston Medical Center HealthNet. Federal law requires that DMA ensure that the Partnership and the four managed care entities provide such services in accord with the Medicaid Act. See42 U.S.C. § 1396u-2.
DMA's contract with the Partnership requires the Partnership to maintain books, records and other compilations of data pertaining to the contract and provides, as well, that DMA has the right, upon reasonable notice, to examine and copy the information. Plaintiffs assert, without any evident opposition by Defendants, that DMA's contracts with the four managed care entities likely contain virtually identical provisions.FN1
FN1. Defendants' opposition makes no mention of the four managed care entities that directly contract with DMA. Defendants concentrate their opposition on a letter written to an Assistant Attorney General by counsel to the Partnership. (See Defendants' Opposition, Exhibit A.)
Given these contractual provisions, there is little doubt that Defendants have the right to control and obtain the documents that are in the possession of the various non-defendant agencies. See Calzaturficio, 201 F.R.D. at 38-39 (“Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.”) (citations and internal quotation marks omitted); Haseotes v. Abacab Int'l Computers, Inc., 120 F.R.D. 12, 14

(D.Mass.1988) (“A party has ‘control’ over a document if that party has a legal right to obtain those documents.”). See also Alexander v. FBI, 194 F.R.D. 299, 301-02 (D.D.C.2000). That being so, and the information having been deemed by the court to be discoverable, Plaintiffs' second motion will be allowed and subject to the parties' amended protective order. Defendants' efficiency argument, i.e., that Plaintiffs resort to subpoenas on the Partnership and the four managed care entities, has little merit.
*120 III. CONCLUSION
For the reasons stated, Plaintiffs' motions are ALLOWED. Defendants are to produce the requested documents forthwith.
IT IS SO ORDERED.
D.Mass.,2003. Rosie D. v. Romney 256 F.Supp.2d 115, 55 Fed.R.Serv.3d 883
END OF DOCUMENT

 
 United States District Court, D. Massachusetts.
ROSIE D., by her parents JOHN and Debra D., et al., Plaintiffs v.
Deval PATRICK, et al., Defendants. Civil Action No. 01-30199-MAP.
Jan. 14, 2009.
Background: Medicaid-eligible children suffering from serious emotional disturbances (SEDs) filed putative class action against state officials under § 1983 alleging violation of provisions of Medicaid Act that covered early and periodic screening, diagnostic, and treatment services (EPSDT). Plaintiffs filed motion for award of attorney fees and costs.
Holdings: The District Court, Ponsor, J., held that: (1) hourly rates established for private law firm could provide benchmark for hourly rates applicable to public interest attorneys who also worked on case; (2) action had not been over-staffed; (3) conferencing by attorneys that was necessary element of managing complex litigation competently was compensable; and (4) in-house copying was reimbursable.
Motion granted.
*326 James C. Burling, James W. Prendergast, WilmerHale LLP, Frank J. Laski, Mental Health Legal Advisors Committee, Boston, MA, Cathy E. Costanzo, Northampton, MA, Kathryn L. Rucker, Steven J. Schwartz, Newton, MA, for Plaintiffs.
Daniel J. Hammond, Attorney General's Office, Deirdre Roney, Boston, MA, Timothy M. Jones, Springfield, MA, Juliana deHaan Rice, Arlington, MA, for Defendants.
Robert H. Weber, Newton Highlands, MA, pro se.
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
AND COSTS (Dkt. No. 383)
PONSOR, District Judge.
I. INTRODUCTION

On October 31, 2001, Plaintiffs filed this lawsuit on behalf of a class of Medicaid-eligible children suffering from Serious Emotional Disturbance (“SED”). The complaint alleged violations of the Medicaid Act, most particularly the Act's provisions covering early and periodic screening, diagnostic, and treatment services (“EPSDT”). On January 26, 2006, after successfully defending an appeal to the First Circuit by Defendants, working through years of contentious discovery, and prevailing in a six-week jury trial, Plaintiffs obtained judgment on liability in their favor regarding Counts I and II.
In the following eight months, during bi-weekly meetings the parties attempted, unsuccessfully, to negotiate an agreed remedy. Ultimately, the parties submitted separate proposed versions of a remedial plan, and on July 16, 2007, the court issued its final judgment, adopting the many common elements of the parties' submissions and resolving the relatively few disputed areas. Rosie D. v. Patrick, 497 F.Supp.2d 76 (D.Mass.2007).
*327 The judgment, which has not been appealed, constituted a hard-fought but spectacular victory for Plaintiffs' counsel and, more importantly, for their vulnerable clients. The remedial order incorporated in the judgment mandates the creation by Defendants of a comprehensive package of in-home behavioral support services for low-income SED children. This system of services will permit many more of these children to stay in their homes, or in home-like settings, rather than languishing in large and often inappropriate institutions, sometimes untreated and virtually forgotten for months or even years. The Defendants' commitments under the court's order will enrich programming for this population by hundreds of millions of dollars annually and offer the opportunity for a far happier life to thousands of disabled children.
Following entry of judgment, the parties once more spent several months in negotiation, this time to seek a resolution of Plaintiffs' fee claim, but again without success. Now before the court is Plaintiffs' motion for an award of $7,185,958.32 in fees and costs pursuant to 42 U.S.C. § 1988. Defendants do not dispute Plaintiffs' entitlement to an award, but contend that the total amount should be no more than $2,708,487.01.

The analysis below will begin with a more detailed overview of this unusually complex and protracted litigation. It will then address the areas of disagreement between the parties regarding fees and costs. The court will conclude that, with modest reductions, Plaintiffs' counsel's requested fees and costs are more than reasonable. Indeed, counsel's request, substantially reduced before submission, reflects laudable restraint and scrupulousness. In the case of the attorneys working in association with the private law firm, WilmerHale, their reduced request constitutes both a testament to their dedication to the disabled children and an expression of the highest values of the bar. The firm's willingness to charge at rates far lower, and for hours far less, than would be accepted as a matter of course from other clients deserves, and has, the respect of this court.
Before going into the details, it may be helpful to emphasize three factors that have influenced the court's ruling with particular force.
First, in more than twenty-five years trying civil cases as a Magistrate Judge and District Judge, this is one of the two or three most legally and factually complicated, and vigorously litigated, lawsuits I have presided over. Second, the level of professionalism exhibited by Plaintiffs' counsel at every stage has been unsurpassed by any the court has seen.FN1 Third, as noted, the result achieved by Plaintiffs' counsel has been profound and, for their clients, one hopes, transformational.
FN1. The fact that the quality of effort exhibited by Plaintiffs was matched by Defendants' counsel does nothing to dilute the significance of this finding. Indeed, it has been a privilege over these many years to work with attorneys on both sides who have exhibited the highest levels of skill and dedication.
II. BACKGROUND
Even before the filing of the first pleading, this case demanded an unusually high level of fact investigation, including months of consultation with children's mental health providers and professionals, interviews with families and family organizations, and a lengthy review of medical records. The legal

research demands were also heavy. A plethora of generally relevant statutory and decisional law existed, but little directly applicable authority *328 existed for the groundbreaking litigation contemplated.
Following this preliminary factual and legal work-up, a demand letter was sent to Defendants in January 2001. This communication triggered six months of unsuccessful negotiations, leading to the formal commencement of litigation on October 31, 2001.
On March 29, 2002, Plaintiffs obtained a class certification order, as well as a ruling denying Defendants' Motion to Dismiss. An appeal of the denial of Defendants' claim of Eleventh Amendment immunity proceeded before the First Circuit and resulted in an affirmance of the district court's ruling in all respects. 310 F.3d 230 (1st Cir.2002).
On remand, fact discovery was, to put it mildly, lengthy and contentious. Frequent judicial oversight was required, and rulings by the court largely upheld the positions of Plaintiffs. Rosie D. v. Romney, 256 F.Supp.2d 115 (D.Mass.2003). The discovery process resulted in the production of over 200,000 pages of documents, including 30,000 pages of medical records, and the deposition of thirty fact witnesses and twenty experts. At every stage, specialized legal, medical, and data consultants were, of necessity, retained to analyze the information provided. Fifty typical children suffering from SED were selected from the class, and five highly qualified experts evaluated this sample and presented their findings with regard to whether the children's level of care complied with Medicaid requirements.
Following rulings on various motions in limine, trial commenced on April 25, 2005 and unfolded with the presentation of twenty-five witnesses for Plaintiffs and fifteen for Defendants. Plaintiffs offered five hundred exhibits and Defendants one hundred; the ultimate trial transcript exceeded 20,000 pages. Evidence closed on June 9, 2005, and final arguments on August 9, 2005. The court issued judgment for Plaintiffs with regard to liability on January 26, 2006, Rosie D. v. Romney, 410 F.Supp.2d 18, 29 (D.Mass.2006). Following extensive, but unsuccessful attempts to negotiate an agreed remedial order, final judgment entered on July 16, 2007. Rosie D. v. Patrick, 497 F.Supp.2d 76 (D.Mass.2007).

The outline above can only give a flavor of the degree of effort expended by both parties in this now more than seven-year litigation. Many attorneys, many experts, hundreds of thousands of documents, dozens of witnesses, scores of depositions, and tens of thousands of hours were reasonably necessary to do justice to the complex facts and intricate legal issues posed by this case.
III. DISCUSSION
A. Legal Principles
The framework for determining an appropriate award of attorney's fees pursuant to 42 U.S.C. § 1988 is well established and superficially straightforward. The first step, a determination as to whether Plaintiffs “prevailed,” requires no discussion here; Defendants concede that Plaintiffs won. Indeed, the court must add that, given the fierce resistance by Defendants, the huge stakes for the Plaintiff class, and the far from certain outcome, the victory was resounding.
[1] The mathematics of the fee calculation, once the prevailing party is recognized, are deceptively simple. The court is to determine the fee based upon “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Once this so-called “lodestar” figure is established,*329 the court has the discretion in “cases of exceptional success” to make an enhanced award. Id. at 435, 103 S.Ct. 1933. Although the basics of the math have a disarmingly objective appearance, the calculations leave a good deal of room for disagreement and, equally importantly, for the exercise of discretion on the part of the court. A very recent First Circuit opinion has re-emphasized the “extremely broad” discretion of the trial court in setting fee awards. Massachusetts Eye and Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 75 (1st Cir.2009).
[2] As a final step in the process of calculating an appropriate award, the court has the discretion, within certain parameters, to order reimbursement of reasonable expenses over and above attorney's fees to the prevailing Plaintiffs.

In connection with the calculation of the appropriate hourly rate, the First Circuit requires that affidavits be submitted attesting to the reasonableness of the rates by knowledgeable attorneys unconnected to the underlying litigation. Bordanaro v. McLeod, 871 F.2d 1151, 1168 (1st Cir.1989). In Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court made it clear that fee awards under 42 U.S.C. § 1988 should be based upon “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel.” Indeed, as Plaintiffs' counsel points out, the legislative history of § 1988 makes it clear that fee awards should “be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases....”S.Rep. No. 94-1011, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5913. Plaintiffs have fully complied with their obligation by filing with the court four affidavits from attorneys with broad and pertinent experience attesting to the reasonableness of the hourly rates Plaintiffs claim.
In connection with the calculation of the reasonable number of hours expended, the First Circuit has required that prevailing plaintiffs maintain and submit detailed, contemporaneously-recorded time records describing with particularity the date, activity and time spent on each litigation task. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984). Once again, Plaintiff have fully complied with this requirement by submitting detailed, computerized time records. These were later reduced to a searchable form and turned over to Defendants for their review.
Despite the apparent clarity of the framework to be used in awarding fees and costs, and the compliance by Plaintiffs with all the requirements articulated by First Circuit and Supreme Court authority, a wide disagreement exists between Plaintiffs and Defendants with regard to the fee award. Plaintiffs, as noted, seek $7,185,958.32 for fees and costs, while Defendants can only concede that they “do not dispute” an award of figure of $2,708,487.01. (See, Defendants' Memorandum in Opposition, Dkt. 396, at 1.)
Although the spectrum of disagreement between Plaintiffs and Defendants has many components and

ranges from the global to the picayune, the issues whose resolution will permit a ruling on Plaintiff's motion come down to three: 1) proper calculation of the hourly rates; 2) Defendants' claim for an overall, general reduction in fees of thirty percent; and 3) specific items Defendants object to with regard to the hourly claims of particular attorneys. The final portion of the court's responsibility, which will be addressed at the conclusion of this discussion, will be calculation of the appropriate amount of costs.
*330 For the reasons set forth below, the court will approve the hourly rates claimed by all counsel in this case, will decline to impose any 30% overall reduction in the fee claim, and will deduct from Plaintiffs' claim all of the items specifically identified by Defendants as noncompensable. As will be seen, the items in the third category are so minimal that they do not merit extended discussion. In other words, while they have general objections, Defendants have been unable to identify specifically any substantial amount of overreaching on the part of Plaintiffs' counsel. To the extent particular problems have been identified, the court has made the reduction claimed by Defendants.
Clarification of these issues will result in calculations producing an award of $6,885,108.75 for Plaintiffs. Finally, the court will approve Plaintiffs' request for costs, resulting in an award in this area of $221,305.82.
B. Hourly Rates
The calculation of an appropriate hourly rate is simplified in this instance by the fact that the rates of several of Plaintiffs' counsel, those associated with the law firm WilmerHale, have been previously established by their firm. Thus, for Attorney James Burling his established rate is $685/hour, for James Prendergast, $625/hour, for John Rhee, $470/hour, for Christopher Zimmerman, $420/hour, for Sara Shanahan FN2 at $395 per hour, and for paralegals Janet Rountree and Anita Galino, $190/hour and $225/hour, respectively. At least one court of appeals has found that the best evidence of a reasonable hourly rate is the rate “customarily charged by counsel....” Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir.1986).
FN2. The hours for Attorney Shanahan are

set forth in Plaintiffs' Summary of Fees, Dkt. No. 383-3 at 4, but not referenced in their summarized claim in their memorandum, Dkt. No. 384 at 23. This omission has resulted in some confusion, which will be addressed below.
[3] Although the case law is not entirely consistent, the strongest and most persuasive authority is that an attorney representing a plaintiff in a civil rights action should get whatever his or her normal hourly rate is, assuming that it lies under the broad umbrella of what is “reasonable.” Certainly, an attorney should not expect to receive less for doing important work on behalf of vulnerable plaintiffs in a piece of hotly contested, complex class litigation. There is no “good guy” or “white hat” fee discount. Thus, as a threshold matter, the court might well simply start, with regard to these seven individuals at least, by approving their well-established, customary hourly rates.
Significantly, and despite the fact that they might well claim these billing rates, all counsel associated with WilmerHale have reduced their rate claim in this case by more than a third, to roughly 62% of their normal hourly fee. This voluntary reduction greatly strengthens Plaintiffs' case and is an eloquent expression of the good faith of the WilmerHale contingent. The adjustment in hourly rates, coupled (as will be seen) with the voluntary surrender of hundreds of other hours that might well have been claimed by dozens of other WilmerHale lawyers who worked on the case but whose hours have been entirely omitted from the fee claim, has reduced the portion of the claim for attorneys' fees by the professionals associated with WilmerHale by nearly two million dollars.
Based on the foregoing, the court will award the rates actually requested by the WilmerHale lawyers, specifically $425/hour for James Burling, $400/hour for James *331 Prendergast, $290/hour for John Rhee, $265/hour for Christopher Zimmerman, $145/hour for Anita Galino, and $125/hour for Janet Rountree. The court will award an hourly rate for Sara Shanahan, whose rate is not specified in Plaintiffs' memo, at $245/hour.
[4] The hourly rates established for the WilmerHale group provide a benchmark for the hourly rates applicable to the public interest attorneys who also

worked on the case and who are associated with the Center for Public Representation (“CPR”) and for the Mental Health Legal Advisors Committee (“MHLAC”). Lead attorney Steven Schwartz of CPR and Frank Laski of MHLAC have comparable years before the Bar and more pertinent experience than Attorney James Burling and therefore an award of fees at the same hourly rate applied to him of $425/hour is appropriate. Similarly Cathy Costanzo possesses experience roughly comparable to James Prendergast and is entitled to her requested hourly fee of $375/hour. The court will award $300/hour to Kathryn Rucker and $125/hour to Marcia Boundy, a paralegal in roughly the same role as Janet Rountree.
These rates are close to or below rates awarded to experienced attorneys in other civil rights cases in this District. See Stokes v. Saga Int'l Holidays, Ltd., 376 F.Supp.2d 86 (D.Mass.2005)($445/hour for lead attorney, $395/hour for second attorney). Moreover, as Plaintiffs' counsel point out, the district court for the District of Columbia has previously awarded attorneys associated with this case hourly rates at the level requested and awarded by the court in this case.
It is significant, in addition, that the hourly rates requested in this case are strongly supported by affidavits submitted by knowledgeable, independent attorneys with broad experience in this area of the law. Ira A. Burnim has been for eighteen years the legal director of the Judge Bazelon Center for Mental Health Law in Washington, D.C. and is familiar both with similar class action litigation and with the complexity of the case now before the court. Stephen F. Hanlon, a partner in the law firm of Holland & Knight, has thirty years of experience related to litigation of this sort. He aptly describes counsel's willingness to compromise their fee rates as “ ‘outfairing’ their opponent.” (Affidavit of Stephen F. Hanlon, Dkt. No. 383-14 at ¶ 21, 8-9.) The Burnim and Hanlon affidavits are supported by affidavits from two local attorneys, well informed of the local hourly rates, Daniel Manning, litigation director for Greater Boston Legal Services, Inc., and Stuart Rossman, senior attorney and director of litigation at the National Consumer Law Center in Boston. It is significant that these well informed submissions have not been contested by any affidavits from Defendants, and they strongly support the hourly rates requested here.

Defendants' citation of Rolland v. Cellucci, 151 F.Supp.2d 145 (D.Mass.2001), in support of an upper-end hourly rate of $275/hour is unpersuasive, for several reasons. The Rolland decision is seven years old, the case was far less complex, the duration of the litigation was a small fraction of the duration of this case, and the hourly rate was negotiated and established by agreement of the parties.FN3
FN3. Plaintiffs contend in a footnote to their reply memorandum, that a “core element of that [ Rolland ] agreement was that such rates could not be used by any party as a precedent to establish ... a reasonable rate in any other proceeding or case.” (Dkt. No. 399 at 7 n.10.) The court has not considered Plaintiffs' contention that Defendants agreed not to cite the Rolland fee as a precedent, but to the extent that this assertion is true, it further supports the court's conclusion that Rolland does not establish a persuasive precedent for the hourly rate in this case.
*332 In sum, Defendants' almost complete reliance on Rolland for a further drastic reduction in the already-reduced applicable hourly rates collapses in the face of the overwhelming evidence contained in comparable litigation, in the affidavits supporting the fee claim, and in the unprecedented good faith demonstrated by counsel in their current hourly rate proposals.
C. Percentage Reduction of Claimed Hours
Apart from their objections to the hourly rates, Defendants contend that the requested hours should be reduced across the board by thirty percent to account for excessive claimed time and duplication of effort. (SeeDkt. No. 396 at 7.) The arguments supporting such a substantial overall reduction are entirely unpersuasive and particularly inappropriate in light of the substantial number of hours that Plaintiffs have already voluntarily deducted from their petition.
[5] One argument of Defendants for the thirty percent reduction-overstaffing the case-has a particularly hollow ring, for two reasons. First, Defendants committed a comparable number of staff to this difficult litigation. Second, in addition to voluntarily reducing hourly rates, Plaintiffs have voluntarily

eliminated the hours contributed by eighty lawyers from WilmerHale and three additional public interest lawyers associated with the Center for Public Representation. These voluntary reductions have eliminated more than 5,200 hours from the total now claimed. (SeeDkt. No. 383-5, Schwartz Aff. ¶ 15 and Dkt. No. 383-6, Burling Aff.¶¶ 39-43.) With these subtractions, and especially in light of their own committed resources, Defendants can have no legitimate complaint of overstaffing as reflected in Plaintiffs' ultimate fee submission.
Similarly unsupported and unconvincing are Defendants' arguments that Plaintiffs' counsel engaged in excessive conferences and consultations, Excessive use of attorneys for paralegal functions, and excessive time doing research, drafting and editing. As already noted, the case was enormously complex, both factually and legally. The number of attorneys comfortably matched the complexity of the litigation. Moreover, Plaintiffs made resourceful efforts to use their time efficiently by separating defined segments of legal research and factual development into working groups headed by different attorneys. These efficiencies helped to lower the necessary hours.
[6] It is especially significant that Defendants, as was their right, litigated this case to the hilt. An unsuccessful appeal by Defendants to the First Circuit required considerable attention by Plaintiffs, discovery was (as noted) very contentious and resulted in numerous motions, almost all of which were resolved in Plaintiffs' favor. The trial was protracted and preparation of the numerous lay and expert witnesses reasonably required considerable time. Conferencing, to a significant but not excessive extent, was simply a necessary element of managing the litigation competently. In the end, Defendants' demand for a further thirty percent reduction-beyond the hours and hourly rates already surrendered by Plaintiffs-appears to have been concocted out of thin air and has no objective relationship to any fairly identified deficiencies in the fee petition.
Finally, it is worth noting that the court has the power to award an additional fee based upon extraordinary success. A *333 strong case could be made that this was one of the infrequent instances where the degree of success was so outstanding, and the risk counsel took on in committing such enormous resources so

profound, that an upward adjustment of the fee award might well be considered. To the extent that Defendants were able to produce evidence justifying a modest additional fee reduction of, say, five percent-which they have not-the court would be inclined to award an enhanced fee of the same percentage to recognize the marked success of this litigation on behalf of the Commonwealth's neediest citizens. To repeat, success in this case was by no means guaranteed, and counsel showed rare courage in offering a huge commitment of hours and expenses (many of which, even now, will not be reimbursed), with no certainty of success.
To conclude, based on the foregoing, no across-theboard reduction of the hours claimed by Plaintiffs' counsel is justified in this case.
D. Specific Requested Subtractions from Plaintiff's Request
Defendants have objected to a relatively limited, specific number of hours which they say counsel are not entitled to claim. In order to eliminate any unnecessary disputes, and to insure complete fairness to Defendants, the court will subtract from Plaintiffs' fee request all the hours specifically requested by Defendants.FN4 It is significant, particularly in light of the thirty percent requested reduction, that these hours specifically identified are, in the overall fee petition, extremely few.
FN4. In determining the hours conceded by Defendant, the court has relied on the numbers listed in Part D of their memorandum. (Dkt. No. 396 at 15-19.)
E. Fee Award
In light of the findings made by the court above, the following fees are hereby awarded.
1. Attorney Schwartz
Reasonable non-travel hours: 3520.3
Reasonable billing rate: $425/hour
Total non-travel fee award:$1,496,127.50

Travel hours: 261.4 50% hourly rate for travel: $212.50/hour Total travel fee award:$55,547.50 Total fee award for Atty. Schwartz: $1,551,675 2. Attorney Costanzo Reasonable non-travel hours: 2485.5 Reasonable billing rate: $375/hour Total non-travel fee award:$932,062.5 Travel hours: 286.3 50% hourly rate for travel: $187.50/hour Total travel fee award: $53,681.25 Total fee award for Atty. Costanzo: $985,743.75 3. Attorney Laski Reasonable non-travel hours: 756.6 Reasonable billing rate: $425/hour Total non-travel fee award: $321,555 Travel hours: 42.5 50% hourly rate for travel: $212.50/hour Total travel fee award: $9,031.25 Total fee award for Atty. Laski: $330,586.25 4. Attorney Rucker. Reasonable non-travel hours: 1178.5 Reasonable billing rate: $300/hour Total non-travel fee award: $353,500

Travel hours: 145.7
50% hourly rate for travel: $150/hour
*334 Total travel fee award: $21,855
Total fee award for Atty. Rucker: $375,405
5. Paralegal Boundy
Reasonable non-travel hours: 3,725.6
Reasonable billing rate: $125/hour
Total non-travel fee award: $465,700
Travel hours: 154.9
50% hourly rate for travel: $62.50/hour
Total travel fee award: $9,681.25
Total fee award for Paralegal Boundy: $475,381.25
6. Attorney Burling.
Reasonable hours: 1958.6
Reasonable billing rate: $425/hour Total fee award for Atty. Burling: FN5 $832,405
FN5. It is not the practice of WilmerHale to reduce its attorneys' hourly rates for travel. Since travel was a relatively small portion of the WilmerHale claim and since WilmerHale attorneys have already reduced both their hourly rates and total hours substantially, the court will make no separate award for travel but will calculate the fee award simply on hours claimed and not specifically objected to.
7. Paralegal Galino.
Reasonable hours: 146

Reasonable billing rate: $145/hour
Total fee award for Paralegal Galino: $21,170
8. Attorney Prendergast.
Reasonable hours: 1,212.6
Reasonable billing rate: $400/hour
Total fee award for Atty. Prendergast: $485,040
9. Attorney Rhee.
Reasonable hours: 3,135.5
Reasonable billing rate: $290/hour
Total fee award for Attorney Rhee: $909,295
10. Paralegal Rountree.
Reasonable hours: 2,588
Reasonable billing rate: $125/hour
Total fee award for Paralegal Rountree: $323,500 11. Attorney Shanahan.FN6
FN6. As noted above, Attorney Shanahan, though mentioned in several of Plaintiffs' exhibits, is not listed in Plaintiffs' memo where the hourly rates appear. (Dkt. No. 384 at 23.) However, since it appears this is an oversight, the court has awarded fees for the hours conceded by Defendants (without any across-the-board reduction), at an hourly rate roughly 62% of her usual billing fee.
Reasonable hours: 383.8
Reasonable billing rate: $245/hour
Total fee award for Attorney Shanahan: $94,031
12. Attorney Zimmerman.

Reasonable hours: 1890.1
Reasonable billing rate: $265/hour
Total fee award for Atty. Zimmerman: $500,876.50
Total fees for all counsel: $6,885,108.75
F. Reasonable Costs
[7] Plaintiff have requested costs in the amount of $221,305.82. The court will award this full amount. Plaintiffs, as their submissions demonstrate, actually incurred costs in excess of $645,000 but made substantial reductions in their cost claim to insure compliance with applicable law and avoid any risk of overreaching. Defendants' argument that in-house copying is not reimbursable, (in contrast to copying by an outside professional copying firm) is unsupportable. The reduction of copying costs in a case of this magnitude is particularly unjustified. In addition, the claims for travel and meals are entirely reasonable.
*335 IV. CONCLUSION
Based on the forgoing, the court hereby awards attorneys' fees in the total amount of $6,885,108.75 and costs in the amount of $221,305.82.
In view of the lengthy wait Plaintiffs have endured in obtaining this award, the court orders Defendants to make full payment of fees and costs, absent an appeal, within forty-five days of this order. In the event of an appeal, the court orders that Defendants make a payment of $2,708,487.01 as fees and costs within forty-five days of this order. This is the amount that Defendants have stated that they do not dispute. (See Dkt. 396 at 1.)
It is So Ordered.
D.Mass.,2009. Rosie D. ex rel. John D. v. Patrick 593 F.Supp.2d 325, Med & Med GD (CCH) P 302,744
END OF DOCUMENT

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) CIVIL ACTION NO. 01-30199-MAP ) ) )

ORDER
June 4, 2010
PONSOR, D.J.
Counsel appeared for a status conference on May 18, 2010.
For the reasons stated at the conference, the court orders as
follows:
1. On or before June 18, 2010, Defendants will submit a written report regarding the status of the application for a waiver by the federal government to permit Defendants to move forward with their proposed crisis stabilization program. Included in this report will be a review of Defendants’ analysis of other state plans approved by the federal government for crisis stabilization programs. Crisis stabilization programs are a critical part of the system embodied in the court’s Remedial Order, and, as the state concedes, all best efforts must be made promptly to establish this program component.
2. Plaintiffs having submitted their proposed order regarding waiting lists to access the intensive care coordination program, Defendants will respond by June 18, 2010.
Counsel will appear again to report to the court on these
and other matters on July 20, 2010 at 2:00 p.m.
It is So Ordered.

/s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge
2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., by her parents )

John and Debra D., ET AL., )

Plaintiffs

)

)

v.

)

)

DEVAL PATRICK, ET AL.,

)

Defendants

)

C.A. NO. 01-cv-30199-MAP

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
(Dkt. No. 487) January 3, 2011 PONSOR, D.J. I. INTRODUCTION This case comes before the court on Plaintiffs' Motion for Attorneys' Fees and Costs pursuant to 42 U.S.C. § 1988. (Dkt. No. 487.) For the reasons stated below, the motion will be allowed, in part. II. BACKGROUND On October 31, 2001, Plaintiffs filed this lawsuit on behalf of a class of Medicaid-eligible children suffering from Serious Emotional Disturbance ("SED"). Following a lengthy bench trial, Plaintiffs obtained a judgment in their

favor on liability on January 26, 2006. Many months of negotiations between the parties followed in an attempt to craft an agreed remedy, until, when the parties were unable to reach a consensus, the court issued its remedial order and final judgment on July 16, 2007.
The judgment required Defendants (1) to initiate education and outreach to ensure that care givers of eligible children were informed about the availability of behavioral health services under Medicaid; (2) to provide assessments of children who might need these behavioral services; (3) to make "Intensive Care Coordination and Treatment Planning" available to children who desired to have it; and (4) to offer reimbursement for behavioral health services deemed medically necessary (subject to certain conditions and the availability of federal funding). Implementation of the judgment was to be monitored by a neutral, court-appointed monitor over a period of five years, during which the court would retain jurisdiction. No one contests that the judgment was a victory for Plaintiffs, who were awarded substantial attorneys’ fees on January 14, 2009 for the period up to January of 2007.
2

Since January 2007, the implementation of the judgment has indisputably required significant effort from Plaintiffs’ counsel. The process has featured both substantial cooperation among the parties and, at times, a certain amount of dispute. Plaintiffs now request an award of additional fees and costs for time spent monitoring implementation and litigating disputes from January 1, 2007 through June 30, 2009, in the amount of $1,476,592.65, plus $28,657.65 in costs. (Dkt. Nos. 487 and 488, Ex. 1.)
Defendant Executive Office of Health and Human Services ("Defendant") has submitted a limited opposition to Plaintiffs’ motion, arguing that the court should reduce the award to a modest extent, to no more than $1,223,728.28. No objection is offered to the claim for costs. In support of its position, Defendant contends, first, that the hourly rates of Plaintiffs’ attorneys were excessive and, second, that Plaintiffs' counsel is not entitled to fees for activities that were not, Defendants say, reasonably calculated to deliver a material benefit to Plaintiffs. The five challenged activities are: • Filing a motion for declaratory relief to the effect
3

that certain clinical determinations -- those that might make a child ineligible for services under the remedial order -- were appealable;
• Opposing Defendants’ interpretation of the judgment to the effect that only class members in certain MassHealth coverage categories were eligible for services (Plaintiff argued that all class members were entitled to benefits regardless of their MassHealth coverage categories);
• Opposing Defendant's motion to postpone certain service-implementation deadlines;
• Proposing an alternative form of judgment in April 2007; and
• Litigating Plaintiffs' previous fee request.
III. DISCUSSION
The court will find (1) that most of the challenged
activities were necessary to monitor the judgment and (2)
that the requested fee award for work on the original fee
petition is reasonable. In addition, the court will not
reduce Plaintiffs’ counsels’ hourly rates on the ground, as
Defendant suggests, that post-trial work in this case
deserves a lower measure of compensation than trial work.
A. Specific Challenged Activities.
1. The Legal Standard.
“[P]ost-judgment services necessary for reasonable
4

monitoring of a consent decree are compensable” based upon the original prevailing party status. Garrity v. Sununu, 752 F.2d 727, 738-739 (1st Cir. N.H. 1984). To demonstrate reasonableness, a prevailing party's counsel need not show that a “substantial issue” has arisen regarding the defendant's obligations under the remedial order, or that “the work of plaintiffs’ counsel yield[ed] a resolution more favorable to the class than the defendants were prepared to concede.” Brewster v. Dukakis, 786 F.2d 16, 18 (1st Cir. 1986) (affirming the Garrity standard for award of fees associated with post-judgment monitoring).
Defendant correctly notes that, in the post-judgment monitoring phase, the court should not necessarily compensate Plaintiffs’ counsel “for every legal undertaking, whether successful or not.” (Dkt. No. 499, Def.’s Mem. at 6.) Instead, Defendant proposes that the court should identify activities that “were not reasonably calculated to (and, indeed, did not) produce material benefits to the plaintiff class” and should decline to award fees for those activities. (Id. at 7.)
Plaintiffs argue that Defendant’s approach runs afoul
5

of the Brewster rule. As noted, Brewster explicitly repudiated the requirement that Plaintiffs’ counsel’s work must result in a “more favorable” outcome than would otherwise have been achieved. Brewster, 786 F.2d at 18.
Defendant attempts to distinguish its “material benefit” rule from the “more favorable outcome” rule rejected in Brewster. It explains that its “reasonably calculated to produce material benefit” standard would not require actual success but only a reasonable likelihood of some “material benefit.” (Dkt. No. 499, Def.’s Mem. at 9.) Defendant has not cited any authority for its proposed standard, which would be significantly stricter than Garrity demands. Accordingly, the court will not adopt it and, using the Garrity standard, will make the conventional inquiry into whether each of the challenged activities was necessary for reasonable monitoring.
It is important to note that this reasonableness standard, while flexible up to a point, does not give a plaintiffs’ attorney carte blanche to expend whatever hours are deemed necessary, willy nilly, with confidence that the court will necessarily award fees to compensate them. A
6

court must take seriously its responsibility to oversee post-judgment attorneys’ fees requests and, in the blunt words of the Court of Appeals, avoid creating “a state-funded, open-ended sinecure for counsel.” Brewster, 786 F.2d at 18 (internal quotation omitted). A review of the implementation activities challenged by Defendant in light of this standard reveals that virtually all were entirely reasonable and necessary.
2. Seeking an Order Declaring Clinicians’ Determinations Appealable.
Plaintiffs sought an explicit declaration from the court that a clinician’s determination rejecting a class member’s eligibility for services under the remedial order would be appealable according to a stipulated process. Defendant does not argue that counsel’s decision to bring this significant issue to the attention of the court was unnecessary to insure reasonable monitoring. Nor does it argue that Plaintiffs’ counsel spent an inordinate amount of time on the motion. Defendant’s brief simply states that the “exercise was not reasonably calculated to deliver a material benefit to the Plaintiff class (and, ultimately,
7

did not).” (Dkt. No. 499, Def.’s Mem. at 9.) The court is not persuaded that Plaintiffs’ attempt to
obtain a court order, though not immediately successful, was unreasonable. Plaintiffs understandably sought assistance from the court in identifying pivotal clinical decisions that class members might challenge and in determining procedures to press these challenges. True, the court ultimately found that it was premature to address this particular dispute. Evidence had not, and (so far as the court can discern now) has not, emerged that an appeals process of this sort was or is needed. But, the issue was not so obviously unripe, or so trivial, as to be an unreasonable use of counsel’s time.
3. Seeking an Order Defining the Population of Eligible Children.
In October 2007, Plaintiffs opposed Defendants' proposed regulations that, in their view, would effectively exclude some members of the Plaintiff class from eligibility for services under the court’s remedial order. (Dkt. No. 375.) After a hearing on the issue, Defendant agreed to provide the services at issue to the entire Plaintiff class.
8

Defendant, noting that no court-ordered relief issued following the hearing, now argues that the dispute “was not calculated to, and did not, lead to any tangible betterment” for the Plaintiff class. (Dkt. No. 499, Def.’s Mem. at 10.)
An explicit court order need not issue every time a dispute arises to justify an award of fees in a postjudgment context, particularly where the ultimate agreed resolution of the dispute benefits the plaintiff class. It is true that Defendant and Plaintiffs ultimately reached an accommodation on the crucial issue of who was covered by the court’s order, but it does not follow that Plaintiffs’ expenditure of time in negotiating this accommodation was either unnecessary or unreasonable. Negotiations around eligibility issues are a classic part of post-judgment implementation, and Plaintiffs’ efforts to litigate and ultimately resolve this issue without court intervention were entirely reasonable and appropriate.
4. Opposing Defendants’ Motion to Postpone Agreed-Upon Implementation Schedule.
Defendant does not argue that Plaintiffs’ opposition to its draft order extending the dates of implementation was
9

per se frivolous. It does, however, object to Plaintiffs’ motion for discovery seeking “to look behind Commonwealth’s budgetary process and, implicitly, to determine what other cuts could have been made” to avoid the extension of deadlines. (Dkt. No. 499, Def.’s Mem. at 11.) Accordingly, Defendant seeks to exclude fees for time it estimates Plaintiffs’ counsel spent seeking to inquire into the budget process.
Here, the court agrees that a modest reduction in fees is appropriate. While Plaintiffs’ efforts to litigate Defendant’s proposal to modify the remedial order’s implementation schedule were appropriate, the attempt to analyze the Commonwealth’s budget as a whole, and offer a critique of the state’s overall budgetary decision making, went a step too far, both legally and factually. The court will therefore reduce Plaintiffs’ proposed fee award by $24,024.76.
5. Proposing an Alternate Form of Judgment. In the months leading to the issuance of the court’s final judgment and remedial order in July 2007, Defendant prepared the first draft judgment. Plaintiffs objected to
10

Defendant’s proposal in toto and, alternatively, offered suggested modifications to Defendant’s draft if the court were inclined to adopt it. Ultimately, the court adopted most of Defendant’s draft and some, but not all, of Plaintiffs’ suggested modifications in its final judgment and order. The court concluded that it would be fairer to Defendant, and more beneficial to the Plaintiff class, to expect Defendant to comply with what was largely their own proposed remedial order, rather than generate a different order out of whole cloth and then proceed to enforce it.
Defendant now argues that, although some of Plaintiffs’ suggested modifications to its original proposal were well grounded, Plaintiffs’ filing of a seventeen-page brief with “hundreds of pages” of attached exhibits was excessive and “a more targeted approach” would have accomplished the same result. (Dkt. No. 499, Def.’s Mem. at 14.) In particular, Defendant objects to Plaintiffs’ having urged the court to reject Defendant’s entire proposed draft outright. As a result, Defendant contends, the fees requested for working on the draft judgment and remedial order should be reduced by one third.
11

Defendant’s position is not persuasive. Plaintiffs timely objected to Defendant’s proposed draft judgment on a number of valid grounds, and they properly raised those objections in court. Their arguments were far from frivolous; their papers were not excessive; and the amount of attorney time spent litigating the wording of the final judgment was quite reasonable given the crucial stage of the litigation. Again, litigating the terms of a remedial order is a classic and essential post-judgment task. Indeed, this work is fully as important as the effort put into obtaining the original judgment on liability. Without care, the judgment on liability giveth, and the remedial judgment taketh away. See Job 1:21 (“The Lord giveth, and the Lord hath taken away.”) Given the level of detail in the order in this case, and the number of these details that would have crucial consequences for the Plaintiff class, participation in the discussions leading to the issuance of the remedial order demanded a significant commitment of time if the interests of this particularly vulnerable class were to be protected. B. Fees for Litigating the Original Fee Petition.
12

Defendant does not dispute that Plaintiffs’ counsel is entitled to attorneys’ fees for time spent litigating the original request for fees and costs. However, Defendant argues that the amount of time Plaintiffs’ counsel spent preparing this initial fee petition was unreasonable. Defendant, noting that the fee request was decided on the papers on the basis of a single motion, argues that the 181 attorney hours claimed for assembling and defending the request is excessive. Defendant further argues that the assembly of a fee request is essentially ministerial and “can be accomplished for the most part by secretaries and staff,” but “was performed to an excessive degree by the highest-compensated members of the plaintiffs’ legal team.” (Dkt. No. 499, Def.’s Mem. at 15-16.)
The fee request was certainly well prepared and deserved the praise it received. However, the equivalent of twenty-two eight-hour days claimed for its drafting does exceed a reasonable boundary. The court will therefore reduce this element of the current fee request by the thirty percent proposed by Defendant, or $21,541.04. C. Proposed 12% Across-the-Board Reduction in Hourly Rates
13

to Reflect Less Strenuous Nature of Post-Judgment Practice. The court will not reduce Plaintiffs’ counsels’ hourly rates for work during implementation. While it is perhaps true, in some cases, that post-judgment work is less onerous, and therefore less compensable, than trial-related work performed prior to judgment, this paradigm simply does not hold up in this case. Post-judgment work in this complicated case and for this vulnerable class, even with the assistance of the monitor, has been fully as demanding as the work performed in obtaining the original judgment on liability. It is noteworthy, moreover, that Plaintiffs’ counsel are seeking no increase in 2011 over the rates claimed in 2007. Nothing more need be said.
IV. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Attorneys’ Fees and Costs is hereby ALLOWED. Counsel are hereby awarded $1,431,026.85 in fees and $28,657.65 in costs, to paid, absent an appeal, within ninety days of this ruling. It is So Ordered.
14

/s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
15

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) C.A. 01-cv-30199-MAP ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ SUPPLEMENTAL MOTION TO INSURE TIMELY
ACCESS TO REMEDIAL SERVICES (Dkt. No. 542)
November 29, 2011
PONSOR, U.S.D.J.
On November 22, 2011 counsel appeared for argument on
Plaintiffs’ Motion to Insure Timely Access to Remedial
Services (Dkt. No. 542).
Having considered counsel’s arguments, the court orders
as follows:
1. Defendants will promptly complete their review of access data, as described in their Supplemental Memorandum (Dkt. No. 551).
2. Defendants will report to Plaintiffs their proposal for new prospective access standards governing enrollment in Intensive Care Coordination (ICC) services by January 3, 2012.
3. Defendants will include in their periodic report, to be submitted by January 13, 2012, a proposed timetable for implementation of Crisis Stabilization services, with a May 31, 2012 target date.
4. Plaintiffs will respond to Defendants’ periodic report, Defendants’ proposal for new ICC access standards, and Defendants’ proposal for Crisis Stabilization services by January 24, 2012.

5. Defendants will effectuate management strategies specifically targeting the reduction, and ultimately the elimination, of waiting lists for ICC services, including strategies outlined in their Supplemental Memorandum (Dkt. No. 551), and will include in their January 13, 2012 report a summary of their progress in this area.
6. Counsel will appear again before this court on January 27, 2012 at 3:00 p.m. to discuss the periodic report, including the proposed timetable for Crisis Stabilization, the proposed ICC access standards, and the status of efforts to improve access to ICC services.
7. Counsel for Defendants will appear before the court every sixty (60) days following January 27, 2012 to report on progress in reducing access time to ICC services. Based on these reports, the court may consider the necessity of setting firm deadlines for bringing these times into better compliance with the court’s remedial order. In connection with this, the Monitor will continue to oversee the improvements in ICC access and the Defendants will report on progress in writing no later than ten (10) days prior to each 60-day appearance.
Plaintiff’s Supplemental Motion to Insure Timely Access
to Remedial Services (Dkt. No. 542) is ALLOWED to the extent
set forth above and is otherwise DENIED.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge
2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) C.A. NO. 01-cv-30199-MAP ) ) )

ORDER June 25, 2013 PONSOR, U.S.D.J. The appointment of the Court Monitor in this matter being presently scheduled to expire by its terms on June 30, 2013, it is hereby ordered that the Court Monitor’s term shall be, and hereby is, extended through and including December 31, 2013. It is further ordered that during this extended appointment period, the Court Monitor shall engage principally in reviewing and analyzing, in consultation with the parties, the data collected pursuant to the Disengagement Criteria document prepared by the parties, together with such other activities as the court may, at its discretion, direct. The Court Monitor shall continue to have the authorities and responsibilities set forth in ¶ 48 of the Judgment. The parties shall file a document setting forth a budget

to compensate the Court Monitor for her fees and expenses during this extended appointment period.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge
2

 
 Case 3:01-cv-30199-MAP Document 567 Filed 02/14/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) CIVIL ACTION NO. 01-30199-MAP ) ) )

ORDER RE: THIRD MOTION FOR ATTORNEY’S FEES (Dkt. No. 558) February 14, 2012
PONSOR, U.S.D.J. In light of Defendants’ report that they do not oppose
entry of an order granting Plaintiffs’ Third Motion for Attorney’s Fees, (see Dkt. No. 566), the motion (Dkt. 558) is hereby ALLOWED. Defendants are directed to proceed with payment of the requested fee in accordance with state regulations governing the payments of settlements and judgments, codified at 515 C.M.R. 5.00 et seq.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge

 
 Case 3:01-cv-30199-MAP Document 571 Filed 03/20/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ROSIE D., ET AL, Plaintiffs
v.
DEVAL L. PATRICK, ET AL, Defendants

) ) ) ) CIVIL ACTION NO. 01-cv-30199-MAP ) ) )

MEMORANDUM AND ORDER REGARDING ICC ACCESS STANDARD, ONGOING MONITORING, AND STATUS CONFERENCE
March 20, 2012 PONSOR, U.S.D.J.
Counsel appeared on March 20, 2012 for a status conference. After some discussion, decisions were made in three areas.
1. ICC MEDICAID ACCESS STANDARD. The court approved a fourteen-day access standard for Intensive Care Coordination (“ICC”) access. This means that no more than fourteen days will elapse between the initial contact with the ICC provider and the first offered date for a face-to-face meeting. The court approved this standard with the understanding that the contractual obligations of the ICC providers as contained in their performance specifications would require that the period be three days for at least 50% of the clients, ten days for 75% of the clients, and no more

Case 3:01-cv-30199-MAP Document 571 Filed 03/20/12 Page 2 of 3
than fourteen days for 100% of the clients. The court will be monitoring data regarding access carefully to insure that the approval of the more generous standard does not result in longer delays. Defendants will copy the court, Plaintiffs, and the court monitor with the monthly data reports on this issue.
2. ONGOING MONITORING. With the agreement of both sides, the period for oversight, monitoring, and reporting with regard to the Remedial Order has been extended to December 31, 2012. It is understood that funds to support the court monitor have been approved for fiscal year 2013. Both sides agreed that the time is drawing close to begin discussion of disengagement criteria to be applied in the final stage of implementation of the Remedial Order. 3. Further Status Conference Defendants will report by March 23, 2012 as to the date when they will be submitting their next comprehensive status report. This will be, in any event, no later than May 31, 2012. Plaintiffs will respond to Defendants’ report no later than June 21, 2012, or thirty days following the submission of Defendants’ report. Counsel will appear again before this court for a further status conference on June 25, 2012 at 10:00 a.m.
2

Case 3:01-cv-30199-MAP Document 571 Filed 03/20/12 Page 3 of 3

It is So Ordered.

/s/ Michael A. Ponsor MICHAEL A. PONSOR United States District Judge

3

 
 Case 3:01-cv-30199-RGS Document 676 Filed 12/22/14 Page 1 of 1

UNITED STATES DISTRICT COURT 
 DISTRICT OF MASSACHUSETTS 
 Western Division 


ROSIE D., et ai, v.

Plaintiffs,

DEVAL PATRICK, et al.

Defendants.

)

)

)

)

)

Civil Action No.

)

01-30199-MAP

)

)

)

)

)

PROPOSED ORDER FOR ATTORNEYS' FEES AND COSTS

It is hereby ordered, adjudged, and decreed that: The Commonwealth pay the Plaintiffs $200,131.05 for attorneys' fees and costs for the period July 1,2013 - June 30, 2014. The defendants shall make such payment within ninety days of this Order.

DatJ2e~2 2..,, 20 If.?

Michael A. Ponsor United States District Judge

 
 Case 3:01-cv-30199-RGS Document 766 Filed 12/23/16 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

)

ROSIE D., eta/,

)

)

Plaintiffs,

)

)

v.

)

)

)

CHARLES BAKER, et al.

)

)

Defendants.

)

________________________________) )

Civil Action No. 01-30199-MAP

PROPOSED ORDER FOR ATTORNEYS' FEES AND COSTS

It is hereby ordered, adjudged, and decreed that: The Commonwealth pay the Plaintiffs $348,599.14 for attorneys' fees and costs for the period July 1, 2014- June 30, 2016. The defendants shall make such payment within ninety days of this Order.

b Date: {k (!_ ' )./, 2D( i

Michael A. Ponsor United States District Judge

 
 Case 3:01-cv-30199-MAP Document 875 Filed 12/28/18 Page 1 of 1 Case 3:0l-cv-30199-MAP Document 871 Filed 12/07/18 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

ROSIE D., et al,
V.

Plaintiffs,

CHARLES BAKER, et al.

Defendants.

)

)

)

)

)

)

Civil Action No.

)

01-30199-MAP

)

)

)

)

)

PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS
In response to the plaintiffs' Seventh Request for Attorney's Fees and Costs, the parties have conferred on the amount of fees and costs reasonably incurred for the period July 1, 2016June 30, 2018. Plaintiffs have conferred with Defendants about the substance of this motion. Defendants have indicated they are unlikely to oppose the Motion, but have reserved their rights. Therefore, plaintiffs are not submitting detailed time records, affidavits, or legal memorandum at this time.
Wherefore, the plaintiffs move that the Court enter an Order requiring the Commonwealth to pay the plaintiffs the amount of$ 340,553.01 for fees and costs incurred during this period. The Court further should direct the defendants to make such payment within ninety days of this Order.
Dated: December 7, 2016

 
 Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 1 of 45

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ROSIE D. ET AL.,

)

Plaintiffs, )

)

v.

)

)

)

CHARLIE BAKER ET AL.,

)

Defendants. )

C.A. No. 01-cv-30199-MAP

MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION REGARDING SUBSTANTIAL COMPLIANCE AND
TO TERMINATE MONITORING AND COURT SUPERVISION (Dkt. 848)
February 7, 2019 PONSOR, U.S.D.J.
I. INTRODUCTION
In this class-action litigation Plaintiffs charged that Defendants’ provision of services for Medicaid-eligible children suffering from serious emotional disturbances (“SED”) failed to satisfy the requirements of the federal Medicaid statute. 42 U.S.C. § 1396 et seq.1 On January 26,
1 The definition of a child with serious emotional disturbance includes the following elements:
• Persons from birth up to age 18; • Who currently or at any time during the past year;
1

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 2 of 45
2006, following a lengthy non-jury trial, the court issued its opinion on liability, ruling that Defendants had violated Medicaid provisions mandating early and periodic screening, diagnosis, and treatment (“EPSDT”) services, as well as the statute’s “reasonable promptness” requirements, for SED children. Rosie D. v. Romney, 410 F.Supp.2d 18 (D. Mass. 2006) (“Rosie D. I”).
The portion of the class suffering “extreme functional impairment” at the time of this judgment comprised approximately 15,000 children in Massachusetts. Id. at 23. Diagnoses for the named class members included Attention Deficit/Hyperactivity Disorder, Post-Traumatic Stress Disorder, Pervasive Developmental Disorder, Oppositional Defiant Disorder, and Schizoaffective Disorder. Id. at 45-
• Have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria specified within DSM-III-R; and
• Which has resulted in functional impairment which substantially interferes with or limits the child’s role or functioning in family, school, or community activities.
Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1401(3)(A)(i), 58 Fed. Reg. § 29422-02 (1993). DSM-III-R refers to the 1987 revision to the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
2

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 3 of 45
50. These impairments were sometimes complicated by bipolar disease, extreme neglect, or physical and sexual abuse. Id.
Following the ruling on liability, the court directed the parties to negotiate a joint remedial order that would cure the statutory violations. After discussions failed to produce an agreed-upon plan, the court ordered the parties to submit their separate proposals. On July 16, 2007, the court issued its final judgment, adopting with minor modifications the version of the proposed remedial order offered by Defendants. Rosie D. ex rel. John D. v. Romney, 474 F.Supp.2d 238 (D. Mass. 2007), modified sub nom. Rosie D. v. Patrick, 599 F. Supp. 2d 80 (D. Mass. 2009) (“Rosie D. II”). This judgment was never appealed.2
The court offered two reasons for adopting the remedial order proposed by Defendants, rather than Plaintiffs. First, citing Lewis v. Casey, 518 U.S. 343, 362 (1996), the court noted the importance of maintaining respect for the Commonwealth’s sovereignty by allowing state authorities to
2 The judgment is sometimes referred to below as the “remedial order” or the “judgment and remedial order.” The full text of this document is not contained in the reported decisions but appears on the docket as Dkt. 368.
3

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 4 of 45
craft their own remedy. Second, the court observed that “there is some force in being able to say to Defendants: you have endorsed this plan, now implement it.” (Dkt. 354 at 3.) “Undue delay or ineffective programming,” the court observed, would not be excused by complaints that Defendants were “being forced to implement a plan they never bought into.” (Id. at 3-4.)
After many years attempting to implement the remedial order, Defendants now seek to terminate court oversight, arguing that they are in substantial compliance. For the reasons set forth below, the court will deny this motion. While progress has been made in satisfying portions of the remedial order, one crucial provision, at a minimum, still awaits implementation. Defendants have failed, despite persistent prodding and numerous extensions, to comply with Section I(C), ¶¶ 20-30, of the remedial order, which requires Defendants to provide “Intensive Care Coordination and Treatment Planning” for the SED children. (Dkt. 368 at 11-14.) Defendants have so far failed to provide these clinical services to a large portion of the Plaintiff class with anything approaching “reasonable promptness.”
4

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 5 of 45
The test for reasonable promptness under the Medicaid
statute is simple: to comply, the applicable regulation
requires Defendants to provide an initial appointment for a
child seeking intensive care coordination (“ICC”) services within two weeks of the child’s request.3 The undisputed
facts of record confirm that for a very substantial portion
of the Plaintiff children, Defendants have for years
failed, and continue to fail, to satisfy this
straightforward requirement. Depending on the particular
month and year, between thirty and sixty percent of the
Plaintiff children seeking ICC services continue to wait
beyond the fourteen-day period for their first appointment,
often for much longer. These delays have grave potential
consequences for the health and welfare of these vulnerable children, as Plaintiffs’ evidence confirms.4
3 The original deadline in 2007, when the remedial order issued, was three days. The more generous deadline was adopted by the court in 2010 at the request of Defendants, over Plaintiffs’ objection, with the understanding that it would eliminate waiting lists. 4 As will be seen below, Defendants in recent years have begun to rely, or purport to rely, on other system components, specifically In-Home Therapy (“IHT”) and OutPatient therapy (“OP”), to provide intensive care coordination for the children. Where this tactic has been used, the evidence demonstrates that the care coordination has not been provided in a timely fashion for roughly the
5

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 6 of 45
Recent reports ominously suggest that the fail rate for providing timely ICC services is increasing, not diminishing. Moreover, and most frustratingly, Defendants in status conferences over the past eighteen months have offered no concrete plan to rectify this situation and have begun to profess themselves neither able nor obliged to take any specific steps to alleviate this glaring failure in compliance.
Plaintiffs contend that several other provisions of the judgment and remedial order, in addition to ICC, also remain unsatisfied, including sections relating to assessments (Section I(B)) and home-based services (Section I(D)). The manifest and easily quantified failure to comply with the “reasonable promptness” requirement of Section I(C), however, makes denial of Defendants’ motion to terminate oversight inevitable and discussion of these other issues for the time being unnecessary.5
same proportion, or an even greater proportion, of children needing ICC services. 5 Absence of discussion of Plaintiffs’ additional arguments, particularly deficiencies in the quality of services, should not be taken to imply either acceptance or rejection of them. They may be taken up, as needed, by the judge to whom this case will now be transferred.
6

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 7 of 45
The length of time needed to achieve reasonable compliance with the remedial order and terminate the court’s oversight is in the hands of Defendants. The twoweek deadline to initiate ICC services is not onerous. With sufficient effort, Defendants have the capacity to comply with it. Indeed, some agencies providing these services to class members regularly meet the deadline now. Even with Defendants’ clearly inadequate compliance with Section I(C), the Court Monitor has recently lowered her hours to half-time (with court approval and without objection from Plaintiffs) based on progress in other areas. Complete termination of monitoring and supervision at this time, however, would require the court to turn a blind eye to Defendants’ persistent, substantial violation of the remedial order –- a violation that continues to put many SED children at serious risk of harm. An overview of the order and the process of implementing it so far makes this clear.
II. THE JUDGMENT AND REMEDIAL ORDER The substantive elements of Defendants’ proposed remedial order, as substantially adopted by the court in 2007, took shape in five sections: (A) Education, Outreach,
7

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 8 of 45
and Screening; (B) Assessment and Diagnosis; (C) Intensive Care Coordination and Treatment Planning; (D) Covered Services; and (E) Implementation, including data collection and monitoring. (Dkt. 368.)
A. Education, Outreach, and Screening Pursuant to Section I(A) of the remedial plan, the first responsibility assumed by Defendants was to ensure that eligible SED children, their families, their care providers, and other interested parties were made aware of the enhanced EPSDT services. Notices and handbooks were to be prepared or updated, regulations amended, and public meetings held. Educational materials were to be drafted and distributed, and a web-based “Virtual Gateway” would be employed with access available to hospitals, community health centers, and other entities to assist children and families to enroll in the new and expanded services. (Id. at 3-7.) Defendants’ response to this part of the remedial order was robust and effective. Affirmative steps are now taken to make sure that all eligible SED children in Massachusetts, their families, and their care providers are aware of EPSDT services and Defendants’ commitment to
8

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 9 of 45
provide them promptly. Handbooks have been distributed, staff trained, a website has been created and regularly updated, and applicable regulations modified. Perhaps most importantly, virtually all children entering the medical system in Massachusetts now receive behavioral health screenings. As a result, a much greater proportion of SED children who need further assessment and referral to treatment are identified. Plaintiffs agree that Defendants are now in reasonable compliance with this first segment of the remedial order. No further oversight or monitoring is needed regarding this portion of the order.
B. Assessment and Diagnosis Section I(B) of the remedial order described the process whereby SED children would receive comprehensive assessments for possible treatment, typically commencing with the child’s clinical intake or when an eligible child was discharged from an inpatient facility or communitybased treatment setting. The results of these assessments were to be condensed into a well-established clinical format known as the Child and Adolescent Needs and Strengths (CANS) and then entered into a single database administered by the Commonwealth. (Dkt. 368 at 8-9.) This
9

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would ensure consistency in the assessments and permit the Commonwealth to keep track of the children being served.
While they acknowledge that progress has been made in this area, Plaintiffs do not agree that Defendants have reasonably complied with this portion of the remedial order, particularly the timely administration and quality of clinical assessments. Their observations have force, but as noted above the court does not need to address them here in order to rule on Defendants’ motion.
C. Intensive Care Coordination and Treatment Planning Under Section I(C) of the remedial order, once an eligible SED child was screened and assessed as having a need for EPSDT services, that child would be referred to ICC for treatment planning and referral to one or more care providers. The evidence at trial established, and the court’s liability ruling heavily underlined the fact, that the absence of adequate, timely intensive care coordination was a crippling deficiency in the Commonwealth’s system of care for SED children. Children with SED are particularly challenging to treat because of the severity of their needs and the number and intensity of services they require. The danger for these children, given their complex problems, is that they will not only receive insufficient services, but that a lack of coordination among the service providers
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will undermine the effectiveness of the treatment that they do receive. Comprehensive assessments and scrupulous service coordination are essential parts of the Commonwealth’s EPSDT responsibility to children with SED. Defendants’ provision of these services has been markedly lacking. Rosie D. I, 410 F. Supp. at 32. In response to these concerns, the provisions of the remedial order regarding care coordination are especially detailed and clear. A care manager is to coordinate services for the SED child; a care team is to be assembled, and this team is to work with the child, the parents, and the service providers. The development of an individualized care plan follows, setting forth, among other things, a description of the child’s strengths and needs, the child’s treatment goals with timetables for achieving them, and the necessary services to be provided. A key element of the coordination responsibility is the careful management of services when the child is receiving treatment from multiple providers simultaneously. (Dkt. 368 at 11-14.) Defendants agree that federal law requires a state Medicaid agency to establish time standards for provision of these services. 42 CFR § 441.56. It is undisputed that the Massachusetts standard now sets “an outside limit of .
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. . [fourteen] days between [the] time of request for ICC and the first meeting with ICC staff to establish enrollment.” (Defs.’ Status Report of January 13, 2012 at 2, Dkt. 562 (quoting the recommendation of the Board of the New England Council of Child and Adolescent Psychiatry (“NECCAP”), which the court permitted Defendants to adopt, over Plaintiffs’ objection).)6
Prior to 2010, the time limit between a request and a meeting for enrollment in ICC services had been three days. See n.3 supra. Very significantly, the NECCAP recommendation observed:
The current 3-day limit should be adhered to whenever possible, recognizing that there is evidence that engagement in services is most likely to occur if the response to a request can occur as soon as possible after the need is first expressed. Id. As will be seen, the review mechanisms in place to gauge compliance with this aspect of the remedial order reveal that this fourteen-day limit is regularly being violated, often grossly violated, for a substantial portion of Plaintiffs. Years into the implementation process, a
6 The original proposal from NECCAP was ten business days, but this was later modified to fourteen calendar days for simplicity. See id.
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third to more than half of eligible SED children still wait more than the fourteen days for their first meeting with an ICC provider, with some children waiting many weeks for their first appointment.
The failure, as noted, can have very serious consequences. If a Medicaid-eligible child had appendicitis, no one would suggest that a “reasonably prompt” response would be an appointment within two weeks of onset. SED children face crises –- albeit crises arising from their extreme functional impairments -- that can be analogously acute. Delays in treatment can lead, in fact have led, to violent physical outbursts, summoning of the police, removal from the home, and traumatizing unnecessary hospitalizations. Given the vulnerability of this population, fourteen days is a very generous interpretation of the Medicaid statute’s “reasonable promptness” requirement.7
7 Any suggestion that the remedial order requires Defendants to develop services, but not to deliver them with “reasonable promptness” because the remedial order does not contain the phrase “reasonable promptness” flies in the face of the explicit liability finding, the manifest import of the remedial order, and, most importantly, the clear language of the Medicaid statute itself and the law’s regulations. 42 U.S.C. § 1396a(a)(8) (assistance must be “furnished with reasonable promptness to all eligible
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Uncoordinated efforts to patch together services while an SED child awaits this first, critical ICC appointment are not an adequate response to the child’s clinical needs. Chronic, substantial delays in access to these services constitute a critical deficiency in the service system that the remedial order aimed to correct. In addition, serious concerns exist, with substantial objective verification, regarding the quality of some of the care coordination being provided. Finally, evidence suggests that thousands of SED children who are receiving treatment primarily through In-Home Therapy (“IHT”) or Out-Patient (“OP”) program components suffer the same delays in access to care coordination or fail to receive care coordination at all. Further discussion of these deficiencies is set forth below.
D. Covered Services Section I(D) of the remedial order spells out the services to be developed by Defendants to ensure compliance
individuals” (emphasis added)); 42 C.F.R. § 435.930 (2005) (state agencies must “[f]urnish Medicaid promptly to recipients without any delay caused by the agency’s administrative procedures"); and Rosie D. I, 410 F. Supp. 2d at 27-29 (discussing the “reasonable promptness” requirement).
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with the Medicaid statute’s EPSDT and timeliness provisions. These include crisis management through mobile crisis intervention, as well as identified home and community-based services, including In-Home Therapy (“IHT”). (Dkt. 368 at 15-18.)8
The central goal animating these covered services is the retention of the SED child in the home to the maximum extent possible. Placement of SED children in inappropriate clinical settings, such as emergency rooms or longer-term in-patient facilities due to the absence of responsive home-based services, can be extremely damaging to these fragile children and was a primary shortcoming of the pre-2006 system that the remedial order aimed to rectify.
Again, while recognizing that significant progress has been made in this area, Plaintiffs contend that more work remains to be done before Defendants may be said to have complied with the remedial order in this area. Plaintiffs
8 As implementation of the remedial order has evolved, Defendants have begun, in some cases, to fold the care coordination functions of the ICC program into the IHT service component. Unfortunately, as will be seen, access to IHT has been plagued by the same delays in access as ICC.
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point to shortcomings in the quality of care sometimes being offered by the service providers (referred to as Community Services Agencies or “CSAs”) as a particular concern. As with assessments, it is not necessary to address these arguments specifically to resolve Defendants’ motion, with one exception.
Provision of IHT services, which Defendants have identified as one service “hub” responsible for care coordination, regularly fails to comply with the fourteenday deadline adopted by Defendants. The well documented failure to provide timely care coordination either through the ICC or the IHT program components, makes denial of the Defendants’ motion to suspend court supervision inevitable.
E. Implementation The final substantive section of the remedial order, I(E), sets forth a timetable for development of the service enhancements, with implementation initially scheduled for completion at the end of June of 2009. (Dkt. 368 at 1828.) This was, all parties now acknowledge, an unrealistically optimistic deadline. Perhaps recognizing this, Section II of the remedial order confirmed that it was subject to modification for good cause upon application
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to the court or by the agreement of the parties. (Dkt. 368 at 28.) Apart from a timetable, the last section of the remedial order spelled out details of data collection, tracking, reporting, and monitoring. The final sentence noted that the reporting and monitoring provisions would terminate five years after entry of judgment, meaning (as originally contemplated) in July of 2012.
III. THE PROGRESS OF IMPLEMENTATION A month-by-month summary of the implementation process over the past decade would draw this discussion out unnecessarily. Neither party has requested an evidentiary hearing in connection with Defendants’ motion; the basic facts needed to provide a foundation for the court’s ruling are not in serious dispute. It deserves recognition that much of the implementation news is good. Due to the hard work of Defendants (through evolving iterations of responsible staff), the Plaintiffs, and the Court Monitor, a system of care for Medicaideligible SED children has emerged in the Commonwealth that bears little resemblance to the random, meager programming available when this lawsuit was filed. Families and caregivers are informed of EPSDT services, and screening
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and assessments identify a significant portion of eligible
SED children. Mobile crisis intervention services attempt
to minimize unnecessary separation of children from their
families. Intensive care coordination teams work with many
families both to develop care plans for SED children and to
refer them to responsive services, again with the goal of supporting families and keeping children in the home.9
Through these years, counsel have submitted numerous
progress reports, met frequently with the Court Monitor, and appeared in court regularly for status conferences.10
In general, the court’s approach during implementation has
been to allow the parties to work out disputes through
discussion and mutually agreed modifications of the
remedial order’s written terms, with the assistance of the
Court Monitor. These modifications have sometimes been in
writing, but more often implicit, reflecting a flexible and
9 These services come under various names for programs tailored to the child’s specific needs, including Family Partners, In-Home Therapy, Therapeutic Mentoring, and InHome Behavioral Services. 10 The court held status conferences with the parties approximately every three to six months for the subsequent ten years. (See Dkt. 370, 391, 403, 420, 450, 469, 478, 509, 537, 552, 560, 573, 579, 587, 604, 608, 618, 642, 655, 660, 671, 682, 724, 735, 747, 759, 802, 818, 840, and 845.) On February 26, 2018, Plaintiffs filed their thirty-fifth status report. (Dkt. 828.)
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informally negotiated process. While Defendants have resisted imposition of court orders extending beyond what they view as the explicit requirements of the judgment and remedial order, they have regularly taken voluntary steps to address Plaintiffs’ concerns and thereby render court intervention unnecessary.
An example of this approach occurred in July of 2008, when Plaintiffs moved for an order requiring Defendants to provide interim services to class members while the longerterm remedial efforts were under way. Defendants resisted formal imposition of any court order but made voluntary commitments that addressed the Plaintiffs’ and the court’s concerns. (See Dkt. 419 at 2-3.)
Another example of this flexible approach occurred in January of 2009, when Defendants filed a motion to modify the remedial order to postpone implementation of In-Home Behavioral and Therapy Services, Therapeutic Mentoring and Crisis Stabilization services for one year. (Dkt. 431.) After receiving submissions from Plaintiffs, the court eventually allowed this motion in part.
Keeping track of the development of this evolving system, which assists thousands of children, through
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hundreds of caregivers, providing a range of different services at scores of sites throughout Massachusetts, has not been simple. Early on, the parties developed a review mechanism that would give counsel and the court a picture of how the system was functioning through an agreed sample of different service modalities -- for example mobile crisis intervention, in-home therapy, and intensive care coordination. This review mechanism has been known by different acronyms over time, but it is now called the Massachusetts Practice Review (“MPR”). Along with other methods of keeping track of the system, including visits to programs and receipt of specific feedback, the MPR methodology has provided the parties and the court invaluable, accurate insight into the actual performance of the new system. As will be seen below, the MPR reports have identified critical ways in which the system at present falls short of satisfying the remedial order. These deficiencies have left unacceptably large numbers of SED children waiting too long for ICC and IHT services or with no services at all.
A critical point in the implementation process came on June 25, 2012, the five-year deadline set in the remedial
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order for termination of reporting and monitoring. Since Defendants’ current motion highlights this juncture, it is important to make clear exactly what happened at that time.
Prior to this conference, Defendants submitted a lengthy report outlining their efforts to comply with the remedial order. While suggesting that much had been accomplished, the conclusion of Defendants’ report conceded the existence of “open items identified in the preceding text” that had not at the time been “fully implemented.” (Defs.’ Status Report of May 16, 2012 at 111, Dkt. 575. See also Status Conference Tr. 7:8-10, June 25, 2012, Dkt. 579.) Plaintiffs, in their eighteenth status report, responded to the Defendants’ pre-conference report by agreeing with Defendants that “open items” indeed existed and by pointing out additional areas where, in their view, reasonable compliance had also not been achieved. (Dkt. 578.)
Faced with Defendants’ concession that more needed to be done before compliance with the remedial order would be complete, and Plaintiffs’ contention that even more remained unfinished than Defendants were acknowledging, the court proposed that the parties attempt to negotiate a
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“plan for disengagement.” (Dkt. 579 at 8.) Under this approach Defendants would develop their “own road map of what needs to be addressed and how it would be addressed with a view towards bringing an end to the court’s oversight.” (Id.) This “road map” would be shared with Plaintiffs and the Court Monitor; Plaintiffs would respond to it in writing; the parties would appear before the court for a conference or adversarial hearing; and the final outline for completion of compliance with the remedial order would emerge. This approach, as the court noted, would “give us a chance to sit down and roll up our sleeves and think about where the next phase will go and what it will take, what it will involve, and what the triggers will be.” (Id. at 9.)
Defendants embraced this approach. In fact, during the conference Defendants referred to a “debate we had internally” about submitting a motion asking the court to hold that they were “in compliance and that the monitoring period [should] end.” (Id. at 15.) They acknowledged that they “elected” not to do this and made a “conscious choice” not to formally seek a termination of oversight and monitoring. (Id.) At the June 25, 2012 conference, after
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further discussions with the court, and an off-the-record consultation between counsel, both parties agreed that in the weeks following the conference counsel would confer with the assistance of the Court Monitor and identify areas of agreement and disagreement. They would then submit a plan for the wind-down phase of monitoring that would either be agreeable to all parties or would narrow the issues to be addressed by the court. Counsel for Defendants agreed that this was “the next logical step” in the implementation process. (Id. at 17.)
While no formal action was taken by Defendants, Plaintiffs, or the court, this reasonable strategy constituted an obvious voluntary modification of the remedial order’s oversight and monitoring provision, as contemplated by Section II of the order. (Dkt. 368 at 28.) The parties and the court sensibly agreed that counsel would meet with the Court Monitor and negotiate an approach to the final phase of implementation satisfactory to both sides, or, failing that, return to court for argument and rulings on their differences. In the meantime, the parties agreed that court oversight and monitoring would continue,
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despite the remedial order’s suggestion that it would terminate after five years.
It is important to emphasize the narrow topic under discussion at the time of the June 25, 2012 conference, which was the eventual wrap-up of the reporting and monitoring requirements of the remedial order. Whatever happened, the court would retain jurisdiction over the process aimed at remediating the violations of the Medicaid statute, exercising “ongoing jurisdiction” to take action if Defendants failed to address the violations effectively. Rosie D. II, 474 F. Supp. 2d at 240. Significantly, at the conclusion of the June 25 hearing, Defendants confirmed that the Court Monitor’s budget had already been approved for an additional year, through June of 2013. (Dkt. 579 at 36.)11 In the years thereafter, the court issued ten additional uncontested orders extending the Court Monitor’s term.
11 To the extent that Defendants’ memorandum seems to suggest that their position in June 2012 was that they had substantially complied with the remedial order and that termination of oversight and monitoring was proper at that time (see e.g., Dkt. 858 at 6, n. 2), this contention constitutes a misrecollection of their actual position at the conference, as the transcript plainly reveals.
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What emerged from the June 2012 conference was a series of agreements provisionally defining measures that, when taken by Defendants, would lead to an agreed end of active court supervision and monitoring. Defendants’ position during this period was slightly ambiguous but clear in its basic import. At times, Defendants appeared to contend that they in fact had reasonably complied with the terms of the remedial order, but they were agreeing to take certain steps voluntarily to avoid formal litigation on this point. At all times, Defendants at a minimum made clear that, whatever issues might exist with compliance, their voluntary actions were not required by the remedial order. Plaintiffs consistently took the position that Defendants had not reached reasonable compliance with the remedial order and that the steps Defendants were committing to take were mandated by the remedial order.
The court’s position during these years was anchored on the rhetorical question: Why argue about whether certain steps were required by the judgment and remedial order if Defendants have agreed to take these steps anyway, albeit voluntarily? Once the steps were taken, whether mandated or voluntary, and the agreed milestones reached, the
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litigation could enter a phase where active oversight and monitoring could be terminated.
This has been the approach that the parties, the Court Monitor, and the court have adopted in the years since 2012. During this period two major efforts to concretize the progress toward agreement on remedial compliance have been attempted.
Following the court’s request that the parties negotiate a “road map” for termination of oversight and monitoring, Plaintiffs and Defendants developed and submitted to the court in June 2013 a joint disengagement document, which laid out four areas where Defendants would engage in data collection and analysis regarding access, utilization, effectiveness, and uniformity of services. (Dkt. 621-1.)
The process of acquiring the pertinent data and analyzing it, as it turned out, required more time than expected. In the end, it led to progress but also left significant disagreements between the parties regarding Defendants’ full compliance.
In response to this, in 2016 the parties negotiated specific numerical targets for year-over-year improvements
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in the remedy network. The baseline was to be Fiscal Year (“FY”) 2016, with seven specific projected commitments for improvement in various areas in FY 2017 and FY 2018. If these targets, called “disengagement measures,” were hit, the assumption was that both sides would agree to wind down court oversight and monitoring.
Five of the disengagement measures, numbered 2 through 6, set agreed goals for quality improvements in the ICC, IHT, and OP services, in assessments, and in clinical progress. (Dkt. 847-1.) The final disengagement measure, numbered 7, set forth Defendants’ commitment to draft a sustainability plan for review by Plaintiffs with the goal of submitting it to the court.
Disengagement measure number 1 set a goal for improvements in access to ICC and IHT services, the area that this memorandum is most concerned with. Counsel agreed that as of June 2016, only 63% of class members seeking ICC services were being offered initial appointments within the fourteen-day Medicaid standard, meaning obviously that Defendants were out of compliance regarding 37% of the children needing services. (Dkt. 7681 and 769-1.) The parties’ filings also confirmed that
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less than half of class members seeking IHT services, 48%, were receiving initial appointments within fourteen days. (Id.) Plaintiffs’ initial proposal contemplated a ten percent increase in this level of compliance by December 31, 2017, and a further ten percent by December 31, 2018. (Dkt. 762-1.) When Defendants balked at this, the court established a goal of a 7.5% improvement by December 31, 2017, with the further goal for December 31, 2018 to be decided once the 2017 performance was known. Even as to this lower goal, however, Defendants reserved “their right to object to this measure for purposes of disengagement.” (Dkt. 769 at 2, n.1.)
Unfortunately, Defendants failed to meet nearly all the disengagement targets for 2017. Most importantly, for purposes of this memorandum, only 58.7% of the SED children received initial appointments for ICC services, less than the 2016 baseline, and only 49.7% for IHT services during calendar year 2017. (Dkt. 847 at 3.) In other words, from 2016 to 2017 Defendants were doing worse with regard to reasonably prompt access to ICC services and were stalled regarding IHT services. Statistics for 2018 are not yet available, but preliminary discussions suggest that no
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significant improvements in complying with the Medicaid access standard for ICC and IHT will emerge for this year either.12
It is important to be clear about the significance of these numbers. The fact that they confirm a failure of Defendants to satisfy the disengagement measures is beyond dispute, but not central to the court’s current analysis. What is central is that these numbers make clear that Defendants have failed to comply with Section I(C) of the judgment, which requires Defendants to comply with the Medicaid statute’s “reasonable promptness” requirements in providing ICC and IHT services. As will be seen below, while courts obviously have the duty to ensure compliance with their orders in general, the responsibility is especially compelling when the order is designed to remedy an acknowledged violation of federal law.
During the first half of 2018, the court continued to prod Defendants to come up with a plan to address the failure to comply with the Medicaid standard regarding
12 The arithmetic used to calculate these percentages is extremely favorable to Defendants, since it is based on only nine of the twelve months in the year, with the three worst months, by agreement, disregarded.
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access to ICC and IHT services. At the status conference on January 16, 2018, for example, the court reminded Defendants that the ICC and IHT services were “right at the heart of the remedial order” and “they have to be provided promptly.” (Status Conference Tr. 6:11-14, January 16, 2018, Dkt. 824.) The court made clear that it was looking for “concrete steps that the defendants are taking that have a realistic possibility of making a substantial difference in terms of access.” (Id. at 6:25-7:2.) Defendants’ status report filed prior to the January 16 conference had mentioned putting the access issue on the agenda of a meeting of its behavioral health directors. (Dkt. 820 at 2.) At the status conference, the court questioned Defendants:
Well, that’s great. Was it on the agenda? What was discussed and what did you decide to do? That’s what I want to know. Putting something on an agenda is nice. I could do that for you. But who was there, what was discussed, and what did you decide to do? Can somebody tell me that? (Id. at 7:25-8:5.) No satisfactory answer was offered. At the next status conference on April 26, 2018, the court pursued the same issue, asking: “What is the plan?” (Status Conference Tr. 23:24-25, April 26, 2018, Dkt. 840.) By the end of the conference, the court concluded that it
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had “no confidence that we have a plan to deal with the access issue.” (Id. at 32:6-7.)
At the conference on June 13, 2018, counsel continued to disagree about the status of Defendants’ compliance with the access requirements of the judgment and remedial order. (See Dkt. 845.) Defendants’ counsel argued, first, that Defendants were not required to satisfy the disengagement criteria in order to comply with the remedial order and, second, that they had in fact substantially complied with the judgment and remedial order itself. Further, Defendants contended that, if Plaintiffs took the position that they remained out of compliance, it was Plaintiffs’ obligation to file a motion for contempt and carry the burden of demonstrating this lack of compliance.
Plaintiffs, for their part, argued that Defendants were not in compliance. They contended that the court should amend the remedial order to incorporate the previously negotiated disengagement targets and require Defendants to satisfy them before it terminated monitoring and oversight. It was Defendants, according to Plaintiffs, who bore the burden of demonstrating compliance before monitoring could end.
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In response to this dispute the court decided to bring the matter to a head and ordered Defendants to file the current Motion Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision (Dkt. 848) and Plaintiffs to file their corresponding Motion to Approve and Order Disengagement Measures. (Dkt. 847.)13
IV. DISCUSSION Before addressing the central issue in this case -– whether Defendants have achieved reasonable compliance with the judgment and remedial order -- two preliminary distractions need to be brushed aside. First, the court need not, and will not, address the issue of whether Defendants must comply with the negotiated disengagement measures in order to achieve compliance with the judgment and remedial order. It is not necessary to do this. Defendants’ failure to comply with the judgment and remedial order itself, without reference to the parties’ agreed-upon disengagement measures, is glaring. For approximately half the Plaintiff children, the evidence is undisputed that Defendants have failed to comply with their
13 Plaintiffs’ motion will be addressed in a separate memorandum.
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own Medicaid access standard. Worse, they have no plan to eliminate, or even substantially to ameliorate, this failure of compliance.
Second, it is not necessary for the court to resolve the parties’ dispute about who has the burden of proof in determining when court oversight and monitoring should terminate. The principle that a court has the authority, and responsibility, to enforce its own orders is so embedded in the law that it scarcely requires a citation. An apt example of the impact of this axiom is the Supreme Court’s decision in Frew v. Hawkins, 540 U.S. 431 (2004), which also involved the EPSDT provisions of the Medicaid statute. In that case, a successful lawsuit to enforce the Medicaid Act led to a consent decree with specific provisions aimed at remediation of the conceded statutory violations. When Defendants failed to comply with the court’s remedial order, the district court required the parties to submit proposals for possible steps to bring Defendants into compliance. Defendants appealed, contending that under the Eleventh Amendment the court had no power to order it to take specific measures aimed at
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satisfying the consent decree, and the Fifth Circuit agreed, reversing the district judge.
In a blessedly short, emphatic, and unanimous opinion, the Supreme Court reversed the Fifth Circuit and upheld the district court’s power to enforce its own orders. As Justice Kennedy pointed out, “federal courts are not reduced to issuing injunctions against state officers and hoping for compliance.” Id. at 440. Here Defendants’ failure to comply with the judgment and remedial order is obvious, and the court’s exercise of authority stands on even firmer footing than the district court enjoyed in Frew.
First, the remedial order in this case arose from an explicit finding of a violation of federal law, anchored on evidence presented in a multi-week trial, and never appealed. This case does not involve a consent decree. The court found that Defendants failed to comply with the “reasonable promptness” provision of the Medicaid statute in providing EPSDT services. To date, Defendants are still failing to comply with federal law by consistently violating their own Medicaid standard with regard to onethird to more than one-half the Plaintiff children.
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Second, the court adopted its remedial order almost verbatim from what Defendants proposed. Plaintiffs did not consent to this form of the order but have worked to implement the order nonetheless.
Third, unlike the district judge in Frew, this court is not asserting its power to supervise and monitor Defendants in order to enforce some implementing detail of the remedial order. Rather, it is acting to ensure that the core violation of the “reasonable promptness” provision of the federal Medicaid statute is itself remedied. In this respect, the court’s position is a classic example of an exercise of authority under Ex Parte Young, 209 U.S. 123 (1908), i.e., an enforcement of prospective injunctive relief for a specific violation of federal law.
Put differently, this is not a case where it could be argued that Defendants’ performance was “good enough to comply with the mandates of federal law,” but merely failed in complying with some detail of a consent decree, as the Fifth Circuit apparently found in Frew. 540 U.S. at 436. Rather, the issue here is enforcement of federal law, which requires provision of EPSDT services with “reasonable promptness.”
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Defendants’ efforts to counter Plaintiffs’ evidence regarding their failure of compliance have no traction. Their description of the general growth of the system and the number of children now participating is of course encouraging. It is true that progress has been made and that the improvement in the care system for the Plaintiff children is to Defendants’ credit. But Defendants’ lengthy description of progress fails to address the specific timeliness deficiency relating to access.
Defendants’ own statement of material facts acknowledges that since 2010 over twenty percent of class members have not received initial ICC appointments within the required fourteen days. (Dkt. 854 at 31.) This general statistic, as disappointing as it is, glosses over the undisputed fact that the failure rate in the past three years has been much higher and continues to grow. Defendants’ own status report submitted on September 13, 2017 concedes that in the seven months from January to July 2017, their rate of compliance with the fourteen-day deadline for the initial ICC appointment never exceeded 64.06% (February 2017) and fell as low as 49.18% (June 2017). (Dkt. 813-1.) Rates for IHT were similarly
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abysmal. (Id.) The failure of Defendants to improve access to ICC and IHT services was acknowledged in the next status report¸ dated November 17, 2017. (Dkt. 820.)
While some elasticity may exist in the notion of what constitutes “reasonable promptness,” Defendants are far outside its boundary, wherever it may lie. A helpful case on this point is Fortin v. Massachusetts Department of Public Welfare, 692 F.2d 790 (1st Cir. 1982). In that case, the issue was the thirty-day time limit for eligibility determinations for applicants seeking Aid to Families with Dependent Children (“AFDC”) benefits and the two-week time limit for applicants for General Relief. At the time of the lawsuit, the defendant was hitting the deadline for only 66.8% of AFDC applicants and for only 52.5% of applicants for general relief. When, following issuance of a consent decree, the compliance rate stalled at roughly 87%, United States District Judge Robert E. Keeton held the defendant Commissioner in contempt and imposed a fine of $100 per applicant for delays above thirty days and another $100 for each sixty-day period thereafter. The defendants appealed, and the First Circuit affirmed, holding that the defendants had failed to
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demonstrate substantial compliance with the decree. The court observed that “no particular percentage of compliance can be a safe-harbor figure,” adding that “‘substantiality’ must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.” Id. at 795 (citation omitted).
As in Fortin, the vulnerability of Plaintiffs here makes “the consequences of failure to comply quite serious.” Id. The evidence demonstrates not only that delays in initiation of services can lead to grave injuries to the children, but that a long wait list can persuade families in crisis to give up seeking services.
A final point regarding deficiencies in provision of care coordination services must be inserted here, regarding Defendants’ decision to use the Out-Patient service component as a “hub,” or alternate method, to provide ICC services. Plaintiffs have for years expressed skepticism about this strategy, but the court has allowed Defendants to move forward with it, provided that the care coordination services provided through OP complied with the judgment and remedial order with regard both to timeliness
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and quality. As of this time, the court has received no assurance that the OP service component is actually functioning as a hub to provide care coordination. A longoverdue report on this subject is still being awaited. Defendants obviously cannot duck their obligation to provide care coordination simply by shunting the Plaintiff children into another service with a different acronym. Monitoring and oversight are still needed to ensure that, if Defendants wish to use the OP service component to provide care coordination, proper coordination is in fact taking place.
Defendants’ criticism of the MPR reports as employing too small a sample ring hollow, since both Defendants and Plaintiffs have been relying on these reports to draw general conclusions about the system for years. Equally importantly, Defendants, who have much more access to the pertinent data than either Plaintiffs or the court, have offered no data suggesting that the rates of access to ICC and IHT services are in fact significantly better than what the MPR reports suggest. In the end, no dispute exists as to the fundamental fact that, after years of outcry from Plaintiffs and persistent prodding by the court, in any
39

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 40 of 45
given month Defendants are violating the Medicaid standard -- the standard that they themselves adopted -- for onethird to one-half of the SED children needing services.
Defendants’ primary response to this failure to comply is to suggest that “the current wait lists are a reflection of largely external factors beyond the control of Defendants, factors which show little likelihood of changing in the near future.” (Dkt. 820 at 5.) This contention has at least three defects.
First, Defendants offer no specifics about what these “external factors” are beyond attorney proffer regarding difficulties in hiring, training, and retaining staff. These staffing problems, however, are the bread-and-butter challenges of any social service. Agencies typically plan for them, and Defendants have offered no plan here. It would be an abdication of the court’s power to permit Defendants to flout federal law with such a flimsy justification.14
14 Of course, if Defendants wish to take the position that compliance with the remedial order is impossible and therefore “no longer equitable” they may seek a remedy under Fed. R. Civ. P. 60(b)(5), as Frew notes. 540 U.S. at 441. This would be a difficult argument to make, since the Medicaid statute itself imposes the obligation Defendants would be seeking to avoid, and the evidence is that
40

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 41 of 45
Second, Defendants’ argument overlooks the fact that,
as noted above, some CSAs regularly succeed in meeting the
Medicaid deadline. Defendants have offered no analysis of
why these differences in performance exist. Certain
outlier CSAs in fact consistently fall far short of
compliance with the access mandate, causing children to
wait inordinate lengths of time prior to an appointment.
No strategy has been offered to address the problem of
these under-performing CSAs or to draw helpful lessons from
those that perform well.
Third, there is evidence of a number of measures
Defendants could take that might well lead to improvement
in compliance. Defendants, particularly recently, have
tended to resist any efforts by the court or by Plaintiffs
to identify possible strategies to address the access problem.15
compliance is clearly within Defendants’ power with reasonable effort. Procedurally, however, Rule 60 offers Defendants the opportunity at least to make their case for impossibility to comply if they wish to do so. 15 Indeed, there is evidence that Defendants’ attitude toward compliance has become alarmingly lax. Paragraph 47 of the judgment, for example, specifically requires Defendants to identify a Compliance Coordinator to head efforts to comply with the judgment and remedial order. (Dkt. 368 at 26.) As of the September 2018 hearing, that position had remained open for several months following the
41

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 42 of 45
Defendants have resisted suggestions that they might exercise stricter oversight of underperforming agencies, for example by requiring corrective plans. Advice that capacity in high-functioning agencies might be increased to accommodate SED children more quickly has been dodged, even when these agencies are being taxed to the maximum and could accommodate more children if they had modestly increased resources. No initiatives to enhance training to assist in addressing the access problem have been offered to the court. Specific proposed actions described by Plaintiffs do not appear to have been seriously considered. (See Dkt. 847-2.)
A recitation of potential tactics for addressing the access problem should not be interpreted as an attempt to dictate how Defendants should operate their system of care. The point is only to note that these tactics, and no doubt others, exist in Defendants’ remedial arsenal. Something effective must be done, some credible plan adopted,
resignation of the prior coordinator, with the slot being filled on an “acting” basis by an administrator with other responsibilities. The Court Monitor has confirmed that the active Compliance Coordinator position has still not been backfilled as of the date of this memorandum. As a result, Defendants’ compliance efforts lack leadership.
42

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 43 of 45
something other than vague excuses must be offered, before court monitoring and oversight can be terminated.
As noted, no dispute exists that the court retains core jurisdiction until implementation of the judgment and remedial order is completed. Further assistance from the Court Monitor is essential, on a reduced level, to exercise this authority. Without this minimal help, the court would be blind -- unable to discern, let alone rectify, failure to comply. For almost seven years, Defendants have tacitly agreed to the extension of the monitoring function. They have failed to show that it must end now.
V. CONCLUSION It bears repeating that the class members here, Medicaid-eligible SED children suffering extreme functional impairment, are profoundly vulnerable. The overview of the named Plaintiffs set forth in the court’s liability decision revealed children who suffered regular, sometimes violent, crisis episodes, repeated hospitalizations, and devastating setbacks resulting from lack of timely responsive services. The testimony at trial underlined the critical importance of prompt, well-coordinated, and
43

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 44 of 45
appropriate treatment. Rosie D. I, 410 F. Supp. 2d at 45– 50.
It is not necessary to speculate about what can happen to children with these disabilities who do not receive proper clinical services. We know what happens. They frequently end up living isolated, stunted lives, in and out of emergency rooms, housed in inappropriate residential facilities with adults, vulnerable to abuse, or in penal institutions. Reasonably competent services for these children make the difference between a life and a living death, or sometimes a literal death.
The heart of the court’s logic in denying Defendants’ motion can be summarized in four points.
1. Federal law and Section I(C) of the judgment require Defendants to provide care coordination services for the class members “with reasonable promptness.”
2. The definition of reasonable promptness is clear and generous: fourteen days to offer an initial appointment after contact.
3. Despite persistent prodding from the court, Defendants are still grossly failing to comply with this “reasonable promptness” requirement in the provision of
44

Case 3:01-cv-30199-MAP Document 877 Filed 02/07/19 Page 45 of 45
care coordination services for a substantial portion of Plaintiffs.
4. Defendants have failed to demonstrate that they lack the ability to bring themselves into compliance. Defendants’ recent efforts at compliance have flagged, leadership is halfhearted, and no specific plan has been offered, despite the existence of identified measures that might improve performance.
Under these circumstances, the court retains the power and the responsibility to continue its supervision and monitoring, with the essential assistance of the Court Monitor, until reasonable compliance is achieved. Based on the foregoing, Defendants’ Motion Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision (Dkt. 848) is hereby DENIED.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U.S. District Judge
45

 
 Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ROSIE D. ET AL., Plaintiffs,
CHARLIE BAKER ET AL.,
Defendants

C.A. No. 01-CV-30199-MAP

MEMORANDUM AND ORDER RE: PLAINTIFFS^ MOTION FOR ORDER TO IMPROVE ACCESS TO
SERVICES, AND MOTION TO APPROVE AND ORDER DISENGAGEMENT MEASURES, ACTIONS TO IMPROVE ACCESS TO REMEDIAL SERVICES,
AND PROVISIONS ON OUTPATIENT SERVICES
(Dkt. 835 and 847)
March 13, 2019
PONSOR, U.S.D.J.
Introduction
Twp motions remain before the court for ruling:
Plaintiffs' Motion for Order to Improve Access to Services
(Dkt. 835) and Plaintiffs' Motion to Approve and Order Disengagement Measures, Actions to Improve Access to Remedial Service, and Provisions on Outpatient Services (Dkt. 847). The court was on the point of issuing rulings
on these two motions, when Defendants filed their Notice of
Appeal of the court's ruling denying their Motion Regarding

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 2 of 8
Substantial Compliance and to Terminate Monitoring and Court Supervision (Dkt. 878). In light of the general rule that, with certain exceptions, the filing of an appeal deprives a district court of the power to act substantively in a case until proceedings on appeal conclude, the two motions will be denied without prejudice. The discussion below will lay out the court's reasoning.
II. Discussion
In January 2006, the court entered judgment in this class action, finding that Defendants had violated the Medicaid statute by failing to provide — with reasonable promptness — early and periodic screening, diagnostic, and treatment (^*EPSDT") services to low-income children suffering from serious emotional disturbances (^^SED") . Rosie D. V. Romney, 410 F.Supp.2d 18 (D. Mass. 2006).
In July 2007, the court adopted Defendants' proposal
for a judgment and remedial order that would address the violations and provide timely, mandated services. (Dkt. 367.) As part of this order, Defendants took on the responsibility to make available to the Plaintiff children a system of intensive care coordination ("ICC") services
that would oversee their treatment. (Dkt. 368, at 11-14.)

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 3 of 8
A summary of Defendants' progress in implementing the judgment and remedial order, including the ICC services, appears in the court's recent Memorandum and Order Re: Defendants' Motion Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision. (Dkt. 877.) As that memorandum makes clear, despite improvements in the care system Defendants have continued to fail in their efforts to provide mandated ICC services with reasonable promptness. This critical Medicaid violation remains unremedied and leaves Defendants out of compliance with the remedial order they themselves proposed. Based on this, the court has denied Defendants' motion. As noted, that ruling is now under appeal.
Simultaneous with Defendants' motion, Plaintiffs filed their own flip-side Motion to Approve and Order Joint Disengagement Measures, Actions to In^rove Access to Remedial Services, and Provision on Outpatient Services. (Dkt. 847.) Their motion seeks to obtain from the court an order requiring Defendants to take specific steps to cure the ongoing violation of the ICC provisions of the judgment, as well as other provisions. Plaintiffs' motion reprises two earlier motions submitted by Plaintiffs (Dkt.

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 4 of 8
776 and 777), which the court denied without prejudice at a time, roughly a year and a half ago, when Defendants' progress in compliance appeared, at least in several areas, to be encouraging. (Dkt. 815 at 2.) Plaintiffs' current motion also offers in substance arguments presented in Plaintiffs' still-pending Motion to Improve Access to
Services. (Dkt. 835.)
With this background, here is how things now stand. Defendants have argued that they are in compliance with the judgment and remedial order and therefore should be freed from court oversight. Their motion to terminate court supervision has been denied and is now under appeal. Plaintiffs have argued repeatedly, and now argue again, that the court should mandate additional specific steps by Defendants to bring them into compliance with the remedial
order.
While the court will be denying Plaintiffs' motions without prejudice in light of the appeal, it should be noted that they offer strong arguments. A review of the record makes it obvious that Defendants are, at a minimum, still failing to provide ICC services to Plaintiff class members with reasonable promptness, as they promised and as

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 5 of 8
the Medicaid statute requires. One-third to one-half of the Plaintiff class members, severely disabled children, still suffer extended waiting periods for care coordination appointments — periods that exceed, sometimes grossly exceed, the fourteen-day Medicaid standard that Defendants themselves adopted.
Disturbingly, Defendants' efforts to address the problem have flagged recently, with the result that the timeliness violations have gotten worse, meaning that even more children are waiting even longer for services. Certain developments appear to evidence Defendants' diminished commitment. For example, 147 of the remedial order requires Defendants to designate a Compliance Coordinator with ^^the necessary authority to review, evaluate, design, and implement strategies to facilitate
compliance with this Judgment by the Defendants, their agencies, agents, and employees." (Dkt. 368 at 26.) Yet, for months now, this position has remained filled only on an interim or ^^acting" basis by an official with other substantial duties. Reports are overdue, and unconvincing excuses are being offered for the lack of progress and
backsliding.

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 6 of 8
Under these circumstances, the suggestions offered by Plaintiffs for action have force. Depending on the outcome of the pending appeal, the actions proposed may be found to be appropriate. If Defendants' appeal is unsuccessful, the court may want to consider, for example, setting deadlines for Defendants to (a) appoint a full-time compliance coordinator whose primary responsibility will be to provide leadership to Defendants' compliance efforts; (b) to submit Defendants' long overdue report on Out-Patient services, and (c) to provide the Court Monitor any remaining Massachusetts Practice Review reports covering the year 2018 and, if appropriate, succeeding years. Most
importantly, the court may want to consider req[uiring Defendants to submit a concrete plan to improve access to ICG services substantially and promptly. Defendants' failure to offer any such action plan, despite repeated requests, has confounded efforts to make progress in this
area for more than a year now. Nothing in this memorandum, or in the pendency of the
appeal, should be construed as relieving Defendants of their obligation to comply fully with the remedial order they proposed and agreed to. Indeed, in their papers

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 7 of 8
Defendants have acknowledged their obligation to comply with the order and challenge only the need for ongoing monitoring and court oversight. The remedial order makes clear that it is "subject to the Court's exercise of ongoing jurisdiction to insure inqplementation." (Dkt. 368, at 29.) Defendants' appeal does not appear to challenge this provision of the order, though it does seem to suggest that the court can exercise its ongoing responsibility to insure implementation without monitoring and oversight.
Finally, it should be noted that the half-time term of the Court Monitor has been extended until June 30, 2019 and may well be extended beyond that. It is the court's assumption that she will continue her work, to insure that the judge who inherits this case will be informed of the status of con^liance efforts during the pendency of the appeal.
Ill. Conclusion
For the reasons set forth above. Plaintiffs' Motion to Improve Access to Remedial Services (Dkt. 835) and Motion to Approve and Order Disengagement Measures, Actions to Improve Access to Remedial Services, and Provisions on

Case 3:01-cv-30199-RGS Document 881 Filed 03/13/19 Page 8 of 8 Outpatient Services (Dkt. 847) are hereby DENIED, without prejudice.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U.S. District Judge
8

 
 Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t1894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 1 ofE4n2try ID: 6336251
United States Court of Appeals
For the First Circuit
Nos. 19-1262 19-1767
ROSIE D., by her parents John and Debra D.; TYRIEK H., by his mother Christine H.; JOSHUA D., by his mother Emelie D.; SHEENA
M., by her mother Deborah D.; DEVIN E., by his grandmother Barbara E.; ANTON B., by his mother Lisa A.; SHAUN E., by his grandmother Jacquelyn E.; JERRY N., by his mother Susan P. on
behalf of themselves and all others similarly situated,
Plaintiffs, Appellees,
NATHAN F., by his mother Tracey F.; SAMUEL L.; JOSE M.; TERRENCE M.; MARC ST. L.; NATISHA M.; SARAH B.; FORREST W.; JASON S.; SHENTELLE G.; CHRISTINE Q.; KRISTIN P.; CHRIS T.; CHELSEA T.; RALPH B.; TEVIN W.; DANIELLE H.; JANICE B.; KRISTIN H.,
Plaintiffs,
v.
CHARLES D. BAKER, Governor of Massachusetts; MARYLOU SUDDERS, Secretary of the Executive Office of Health and Human Services;
MICHAEL HEFFERNAN, Secretary of the Executive Office of Administration and Finance; DANIEL TSAI, Assistant Secretary for
MassHealth,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t2894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 2 ofE4n2try ID: 6336251
Daniel J. Hammond, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, and Douglas S. Martland, Assistant Attorney General, were on brief, for appellants.
Steven J. Schwartz, with whom Cathy E. Costanzo, Kathryn Rucker, Center for Public Representation, Daniel W. Halston, Wilmer Hale, LLP, and Frank Laski were on brief, for appellees.
Martha Jane Perkins and National Health Law Program on brief for National Health Law Program, American Academy of Pediatrics, Massachusetts Chapter of the American Academy of Pediatrics, Judge David L. Bazelon Center, and National Center for Youth Law, amici curiae.
May 4, 2020

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t3894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 3 ofE4n2try ID: 6336251
LYNCH, Circuit Judge. We issue this narrow opinion in response to an appeal from the denial of the "Motion Regarding Substantial Compliance and To Terminate Monitoring and Court Supervision" filed by the Commonwealth Defendants in long-running class-action litigation. The underlying suit concerns the Commonwealth's compliance with federal statutory requirements for provision of services to a plaintiff class of Medicaid-eligible children with serious emotional disturbances. See 42 U.S.C. §§ 1396a(a)(8), -(a)(10)(A), -(a)(43), 1396d(a)(4)(B), -(r)(5). For the reasons that follow, we reverse the district court's order denying Defendants' motion and remand for further proceedings.
Plaintiffs first sued the Commonwealth in 2001. In 2006, the district court held a non-jury trial and issued an opinion finding the Commonwealth liable for violating Medicaid provisions as to "reasonable promptness" and "early and periodic screening, diagnosis, and treatment" ("EPSDT") services. See Rosie D. v. Romney, 410 F. Supp. 2d 18 (D. Mass. 2006).
The court sought filings from the parties as to appropriate remedial orders. In 2007, the district court issued a final judgment, in the form of an injunction, largely adopting the Commonwealth's proposed remedial plan. Part I of the Judgment was broken down into sections A ("Education and Outreach and Screening"), B ("Assessment and Diagnosis"), C ("Intensive Care Coordination and Treatment Planning"), D ("Covered Services"), and
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t4894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 4 ofE4n2try ID: 6336251
E ("Implementation," including data collection and monitoring as to the Commonwealth's compliance with the Judgment). The reporting and monitoring obligations set forth in sub-section I.E.31 were set to "terminate five years after the date of entry of this Judgment," or in approximately July 2012. A court monitor was appointed in April 2007 and has continued. The Judgment included a provision for its own modification, which can be ordered "for good cause upon application to the Court by either party; or . . . by agreement of the parties."
At the end of June 2012, the district court proposed that the sub-section I.E.3 reporting and monitoring requirements continue while the parties negotiated a "plan for disengagement." The parties agreed and submitted a joint disengagement plan in June 2013. By agreement of the parties, the court extended the Court Monitor's tenure for discrete six-month periods ten times. Each of these extensions constituted a modification of the Judgment by the agreement of the parties.
The period of agreed upon extensions ended on December 31, 2018.2 On September 27, 2018, at the district court's
1 These obligations include designating a compliance coordinator, holding quarterly compliance meetings, submitting semi-annual compliance reports, and appointing a court monitor.
2 The district court has extended the Court Monitor's tenure two more times over the Commonwealth's objection: once until June 30, 2019 while the motion was pending, and once while this
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t5894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 5 ofE4n2try ID: 6336251
direction, the Commonwealth filed the motion at issue. The
Commonwealth's motion asked that the court "terminat[e] all
monitoring and reporting requirements set forth in the Judgment."
This was not a request to modify the Judgment to end the monitoring
and reporting requirements early, before the final agreed upon
extension of the Court Monitor's term expired on December 31, 2018.
The Commonwealth was clear that it was "not asking to modify or
terminate the Judgment in this case."3
The Commonwealth's motion presented three arguments:
First, the Judgment expressly provided that the monitoring and reporting requirements would "terminated" [sic] in 2012, and the Court should now, based on the substantial compliance showing, give effect to that mandate. Second, where, as here, the state government defendants have substantially complied with a remedial judgment, there is no basis for ongoing court oversight. See Milliken v. Bradley, 433 U.S. 267, 282 (1977); Horne v. Flores, 557 U.S. 433 (2009). Finally, there has been no proven noncompliance through any motion for or finding of contempt against the Defendants.

appeal is pending, "unless and until the Court of Appeals orders differently."

3 The dissent mischaracterizes the case before the

district court and before us in several ways, including when it

characterizes this appeal as about "two competing requests for

modifications of the judgment."

Regardless of how the

Commonwealth's motion is styled, the district court's decision

went beyond declining to terminate monitoring requirements early

and instead modified the Judgment to extend the monitoring

requirements. Our task is to review that decision.

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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t6894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 6 ofE4n2try ID: 6336251
The Commonwealth's motion does not ask to vacate the entire injunction. At oral argument, the Commonwealth was explicit that it agrees that the district court should retain jurisdiction over the case and that Plaintiffs remain free to pursue claims of violation of the express terms of the injunction.
In their response to the motion, Plaintiffs agreed that the Commonwealth was in substantial compliance with sections I.A and I.E of the Judgment but argued that the Commonwealth was not in compliance with large parts of the Judgment, especially provisions in sections I.B, I.C, and I.D. The Plaintiffs agreed the court could "terminate monitoring and reporting, and relinquish active supervision over paragraphs 2-11, 36, and 3945." The Plaintiffs argued the court needed to continue monitoring for "all other sections of the Judgment."
The district court denied the Commonwealth's motion in its entirety,4 even though it only based its denial on and only analyzed the Commonwealth's compliance with section I.C. The court specifically declined to address the Plaintiffs' arguments about sections I.B or I.D of the Judgment. It held that the Commonwealth was out of compliance as to section I.C of the Judgment with respect to "reasonable promptness." It concluded as to "reasonable
4 The court denied the entire motion after it noted that "[n]o further oversight or monitoring is needed" for section I.A of the Judgment.
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t7894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 7 ofE4n2try ID: 6336251
promptness" that the Judgment incorporates a requirement that services be provided to class members within fourteen days. It also said the fourteen-day requirement was itself imposed by regulation. In denying the motion, the district court stated that it "retain[ed] the power and the responsibility to continue its supervision and monitoring, with the essential assistance of the Court Monitor, until reasonable compliance is achieved," presumably as measured relative to the fourteen-day standard.5
The district court's analysis was flawed from the outset. While it declined to decide who bore the burden of proof, it treated indefinite continuation of the monitoring as the baseline from which it would depart only if the Commonwealth demonstrated (or the Plaintiffs demonstrated lack of) substantial compliance with the Judgment. To that end, the district court concluded its analysis by stating, "For almost seven years, Defendants have tacitly agreed to the extension of the monitoring function. They have failed to show that it must end now." But the extensions of the monitoring period agreed to by the parties
5 Since the monitoring provisions were set to expire in 2012 and only continued until the end of 2018 with the consent of both parties, the district court's statement constitutes a continuation of the Judgment, which gives us jurisdiction to hear this appeal under 28 U.S.C. § 1292(a)(1). See Sierra Club v. Marsh, 907 F.2d 210, 212-13 (1st Cir. 1990).
The Commonwealth also appealed the district court's decision to extend the tenure of the Court Monitor while this appeal is pending. The analysis as to this appeal is the same.
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t8894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 8 ofE4n2try ID: 6336251

were set to terminate automatically on December 31, 2018. It was

a further extension of the monitoring period, not its termination,

that constituted a modification of the Judgment, which, without an

agreement of the parties, could only be accomplished "for good

cause upon application to the Court by either party." Neither

that "good cause" standard nor any examination of it appear

anywhere in the district court's analysis.6

A judgment may be modified if "the judgment has been

satisfied, released, or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or . . . any other reason

that justifies relief."

Fed. R. Civ. P. 60(b)(5)-(6).

Interpreting Fed. R. Civ. P. 60(b) in the analogous context of a

consent decree arising, like this Judgment, in a litigation

demanding institutional reform, the Supreme Court found that the

"party seeking modification of a consent decree bears the burden

of establishing that a significant change in circumstances

warrants revision of the decree." Rufo v. Inmates of Suffolk Cty.

Jail, 502 U.S. 367, 383 (1992); see also Quinn v. City of Bos.,

325 F.3d 18, 45 (1st Cir. 2003) (Lipez, J., dissenting) ("While a

6 We note as well that the district court undertook this analysis in the context of the Commonwealth's motion, not in response to any motion from the Plaintiffs requesting modification. And it never entered anything into the docket suggesting the Judgment had been modified, as it had done previously.

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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t9894 DFaitleedF0ile5d/0:40/52/004/P2a0g2e0 9 ofE4n2try ID: 6336251
modification of a consent decree is warranted if there is 'a significant change either in factual conditions or in law,' 'a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.'" (citation omitted) (quoting Rufo, 502 U.S. at 383-84)). Elaborating on that standard, the Court set forth circumstances in which changed facts warrant modifying a decree, including "when changed factual conditions make compliance with the decree substantially more onerous[,] . . . when a decree proves to be unworkable because of unforeseen obstacles[,] . . . or when enforcement of the decree without modification would be detrimental to the public interest." Rufo, 502 U.S. at 384. Finally, the Court clarified that modification should "ordinarily . . . not be granted" if the changed facts "actually were anticipated" at the time of the initial decree, and that, where changed circumstances do warrant a modification, the "court should consider whether the proposed modification is suitably tailored to the changed circumstance." Id. at 383-85.
The district court failed to apply anything resembling Rufo's standard in examining whether it was appropriate to modify the Judgment to extend the monitoring requirements. Instead, it focused on whether the Commonwealth had achieved substantial compliance, an inquiry that would have been appropriate if the Commonwealth was seeking to modify the Judgment. That failure is
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18094 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2010 ofE4n2try ID: 6336251
not academic. The power of federal courts to interfere with the policy prerogatives of a state's democratically elected government is limited "to reasonable and necessary implementations of federal law." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441 (2004) (expressing concern that overly broad enforcement against states "may improperly deprive future officials of their designated legislative and executive powers" or "lead to federal-court oversight of state programs for long periods of time even absent an ongoing violation of federal law"). The precarious balance between protecting state sovereignty and implementing the supremacy of federal law undergirds the practical enforcement of our federal system. See U.S. Const. amend. XI (restricting the ability of federal courts to hear suits against states); Ex parte Young, 209 U.S. 123 (1908).
Furthermore, any such modification cannot be used to sidestep the demanding requirement needed to get an injunction in the first place. See Salazar v. District of Columbia, 896 F.3d 489 (D.C. Cir. 2018); see also Fed. R. Civ. P. 65(d) (requiring that an order granting an injunction "state its terms specifically" and "describe in reasonable detail" the "acts restrained or required").
The district court's denial of the Commonwealth's motion also is not justified as a way to "enforce its own orders." "A court's power to enforce a judgment is confined to the four corners
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Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18194 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2011 ofE4n2try ID: 6336251
of the judgment itself." Harvey v. Johanns, 494 F.3d 237, 244 (1st Cir. 2007). This is to make sure the parties do not "shortcircuit the usual adjudicative processes" and violate the principles of fair notice. Id. Nothing gave the Commonwealth fair notice that the fourteen-day standard would be treated as an independently enforceable provision of the Judgment by which the Commonwealth would be in noncompliance with the Judgment if its contractors did not consistently meet the fourteen-day standard.
In addition to the district court's failure to apply the proper standard, the Commonwealth also argues that its substantive holdings were in error. We agree that it was error for the district court to conclude, at least without proper analysis, that the fourteen-day standard was required by federal law and that the Judgment set forth an obligation by the Commonwealth to see that its contractors provided services within fourteen days.7
The fourteen-day standard crucial to the district court's conclusion does not appear in the underlying Medicaid statute or regulation. Federal Medicaid law requires that states must provide medical assistance with "reasonable promptness," 42 U.S.C. § 1396a(a)(8), and must create "reasonable standards . . .
7 The dissent is incorrect that the district court treated the failure of the Commonwealth's contractors to universally meet the fourteen-day standard as mere "evidence that the processes employed by the Commonwealth were not sufficient to satisfy the regulation." The fourteen-day standard was the sole benchmark employed by the court.
- 11 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18294 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2012 ofE4n2try ID: 6336251
for determining eligibility for and the extent of medical assistance under the plan," id. § 1396a(a)(17). To implement both requirements, federal Medicaid regulation, 42 C.F.R. § 441.56(e), requires the following:
[T]he [Commonwealth] must set standards for the timely provision of EPSDT services which meet reasonable standards of medical and dental practice, as determined by the [Commonwealth] after consultation with recognized medical and dental organizations involved in child health care, and must employ processes to ensure timely initiation of treatment, if required, generally within an outer limit of 6 months after the request for screening services. Neither the statute nor the regulation specifies a time for "reasonable promptness," much less fourteen days. The federal Medicaid regulation at 42 C.F.R. § 441.56(e) requires that states establish standards in consultation with medical professionals, generally within six months after the request for screening services. The Commonwealth has done that and set standards for compliance for its contracted service providers who actually provide these services to the Plaintiff class. The crux of the Plaintiffs' argument is not that the Commonwealth has failed to set standards, but that it has violated the Judgment if the contractors who are obligated to meet those standards fail to achieve the initiation of services within fourteen days. The plain text of the statute and regulation do not compel the Plaintiffs' conclusion. True, the regulation
- 12 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18394 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2013 ofE4n2try ID: 6336251
requires the Commonwealth to "employ processes to ensure timely initiation of treatment," but there is no dispute that it has employed at least some processes to ensure compliance. A requirement to "employ processes" to meet a goal is not the same as a requirement that the goal be met in all cases. It is possible that the processes that have been employed by the Commonwealth are not sufficient to satisfy the regulation, or that the Commonwealth's actual performance on timeliness still falls outside 42 U.S.C. § 1396a(a)(8)'s "reasonable promptness" requirement. But it was error for the district court to conclude with such little formal analysis that the Commonwealth's failure to achieve universal compliance within the fourteen-day standard was, by itself, a violation of federal law. See Jeffrey Chen, Note, In the Nick of Time: Using the Reasonable Promptness Provision to Challenge Medicaid Spending Cutbacks, 15 Yale J. Health Pol'y L. & Ethics 349, 374 ("[T]he regulations and case law related to the Reasonable Promptness Provision do not provide a clear answer to the question of what constitutes a violation of reasonable promptness.").
Nor has anything in the text of the Judgment at any time imposed an obligation on the Commonwealth to see that its providers initiated services within a fourteen-day period. The Judgment was only formally amended once, in 2009, in ways not relevant to this appeal. We reject the Plaintiffs' argument that the Judgment,
- 13 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18494 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2014 ofE4n2try ID: 6336251
despite its plain text, was so modified. In 2012, the Commonwealth
notified the court in a letter that it had adopted a standard for
its contractors to provide services. A March 20, 2012, district
court order approved the Commonwealth's submission that it wished
to use a fourteen-day standard for its contractors. That approval
order was not a modification of the Judgment. See Fed. R. Civ. P.
60 (describing the grounds and procedure for modifying a judgment);
Rufo, 502 U.S. at 383-85 (interpreting Fed. R. Civ. P. 60 to set
standards for modification of a consent decree in a similar context
to that of the Judgment at issue here). Nor was it an agreement
by the Commonwealth that the fourteen-day standard for its
contractors could be entered into the Judgment or was a standard
to which it could be held in violation of the Judgment. No order
modified the Judgment to incorporate the fourteen-day standard.8
8 The dissent improperly attempts to recharacterize the Commonwealth's positions and arguments related to its initial adoption of the fourteen-day standard in 2012.
In 2012, the Commonwealth consulted with medical professionals to establish a fourteen-day access standard, in line with its obligations under the Medicaid regulations. See 42 C.F.R. § 441.56(e). It had previously used a three-day standard, but that standard was never officially adopted for purposes of the Medicaid regulation.
On February 28, 2012, the Commonwealth notified the court in a letter that it intended to formally adopt the fourteenday standard despite the Plaintiffs' disagreement: "This letter, then, serves not to argue the merits of the dispute, but merely to clarify the defendant's understanding of the mechanics of this process . . . ."
Although the district court said it "approved" this standard and notified the parties that it would "be monitoring
- 14 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18594 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2015 ofE4n2try ID: 6336251
The Commonwealth also did not waive any right to file the instant motion when it agreed to extend the monitoring provisions from July 2012 while it worked with the Plaintiffs towards a negotiated end to the injunction. That agreement ended as of December 31, 2018.
The issue is not whether the Judgment contained a "reasonable promptness" requirement that the Commonwealth was obligated to meet. The issue is whether the Judgment ever required the Commonwealth to meet a fourteen-day standard for its contractors to deliver services. It did not. The Plaintiffs have never proven a case that failing to meet a fourteen-day standard is a violation of federal law, nor have they attempted to, and the Commonwealth has never agreed failure to comply with the fourteenday standard would violate federal law. The fourteen-day standard is not a term in the Judgment.
On remand, the judge assigned to the case,9 on proper application, may examine whether the Plaintiffs have demonstrated
data regarding access carefully," it did so only after the Commonwealth assured it at a hearing that it did not "have any problem reporting to the Court and the plaintiffs as to how that's going."
As the Commonwealth argues to us, this "sua sponte" "purpot[ed]" approval was never part of a "litigated dispute" over the timeliness standard, as the dissent claims.
9 Judge Ponsor, who issued the order on appeal, is no longer assigned to this case. See Rosie D. v. Baker, 362 F. Supp. 3d 46, 49 n.5 (D. Mass. 2019) ("Plaintiffs' additional arguments
- 15 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18694 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2016 ofE4n2try ID: 6336251
good cause to modify the Judgment to extend the monitoring requirements under the framework provided by Rufo. It may also address the Plaintiffs' arguments about sections I.B and I.D of the Judgment and any other arguments about the Medicaid reasonable promptness requirements, and the Defendants' arguments concerning its other grounds for the motion, including the effects of Milliken v. Bradley, 418 U.S. 717 (1974), and Horne v. Flores, 557 U.S. 433 (2009), on the Commonwealth's motion. As the Commonwealth concedes, the Plaintiffs are free to pursue claims of violation of the express terms of the Judgment, including that the Commonwealth is in violation of the Judgment because a fourteen-day standard is required by federal law. We do not decide whether the Plaintiffs are prevented on remand from moving, under the Rules, for the district court to incorporate a timeliness standard for the provision of ICC services into the Judgment.
The denial by the district court is reversed and the case is remanded for further proceedings. No costs are awarded.
-Dissenting Opinion Follows-
. . . may be taken up, as needed, by the judge to whom this case will now be transferred."). It has been reassigned to Judge Stearns. Order Transferring Case Pursuant to Local Rule 40.1(I), Rosie D., 362 F. Supp. 3d 46 (D. Mass. 2019) (ECF No. 882).
- 16 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18794 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2017 ofE4n2try ID: 6336251
LIPEZ, Circuit Judge, dissenting. The majority's analysis reveals a misunderstanding of the district court's decision, a failure to grasp the history of this case, and a disregard for the district court's careful attention to this case over many years. As a result, the majority reaches two erroneous conclusions: (1) that the district court's detailed, forty-five page analysis of the Commonwealth's non-compliance with the judgment and federal law was somehow insufficiently "formal" to justify its decision to modify the judgment to extend the period for compliance monitoring, and (2) that the district court could not consider the Commonwealth's non-compliance with its own fourteen-day reasonable promptness standard as evidence of good cause for that modification. Both conclusions reflect the triumph of form over substance. We should affirm the district court's decision, solidly grounded as it is in the law and the facts of a lengthy dispute so consequential for thousands of children in Massachusetts.
I. My colleagues fail to adequately describe either the posture of the case at the time the district court denied the Commonwealth's request to terminate compliance monitoring or the extensive litigation and negotiation that preceded the Commonwealth's adoption of the fourteen-day reasonable promptness standard. Hence, before setting forth my analysis, I must
- 17 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18894 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2018 ofE4n2try ID: 6336251
supplement the majority's abbreviated and misleading recitation of the facts.
This case was first filed nearly twenty years ago by a class of Medicaid-eligible children suffering from serious emotional disturbances ("SED") and their parents. After a lengthy bench trial, the district court ruled that the Commonwealth had violated federal Medicaid provisions mandating EPSDT services, as well as the statute's "reasonable promptness" requirements for providing those services to children suffering from SED. Rosie D. v. Romney, 410 F. Supp. 2d 18, 54 (D. Mass. 2006).
In 2007, in the aftermath of that liability determination, the district court entered a detailed judgment to remedy the federal law violations found in its liability opinion, including the Medicaid Act's "reasonable promptness" provision, 42 U.S.C. § 1396a(a)(8). Three aspects of that judgment are particularly relevant here. First, the judgment set reporting and monitoring requirements for the Commonwealth, including the appointment of a Court Monitor, that "will terminate five years after the date of entry of this Judgment," or in approximately July 2012. Second, it stated that its terms and deadlines were subject to modification "for good cause upon application to the court by either party," or "by agreement of the parties." Third, the judgment required that the Commonwealth create an Intensive Care Coordination ("ICC") service, available upon request to
- 18 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t18994 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2019 ofE4n2try ID: 6336251
eligible children, to coordinate across multiple service providers and create a coherent treatment plan tailored to each child's individualized needs. At the time, no such program was widely available for Medicaid-enrolled children in Massachusetts. See id. at 33, 38, 52-53.
In accordance with the deadlines set forth in the judgment, ICC services became available to eligible children in the summer of 2009. The Commonwealth also developed ICC program specifications. The original program specifications required providers to make telephone contact with family members within twenty-four hours of referral to the ICC service, and required providers "to offer a face-to-face interview with the family, which shall occur within three (3) calendar days to assess their interest in participation and gain consent for service."
In early 2010, the plaintiffs and the Court Monitor reported lengthy waiting lists for ICC. The plaintiffs filed a motion asking the court to order the Commonwealth to reduce wait times for ICC and other services, in order to comply with the "reasonable promptness" requirement of federal law and the judgment. The court reserved ruling on the motion and ordered the parties to collect, analyze, and report more data on timely access to ICC.
In a subsequent filing, the Commonwealth stated that new research on the timeliness standards in other states' analogous
- 19 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28094 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2020 ofE4n2try ID: 6336251

programs, as well as consultations with experienced medical

professionals, suggested the need to revisit the three-day access

requirement. Importantly, the Commonwealth never stated that its

obligation to provide ICC with reasonable promptness, measured by

its own timeliness standard, was beyond the scope of federal law,

the judgment, or the court's authority to enforce.

In November 2011, the court granted the plaintiffs'

motion in part, directing the parties to meet with the Court

Monitor, discuss the Commonwealth's proposal for a new reasonable

promptness standard, and report back to the court. In January

2012, the Commonwealth reported that it intended to adopt a

modified ICC access standard of fourteen days following the initial

contact with a provider.

Although the plaintiffs initially objected to the new

fourteen-day standard as too lengthy and not clinically supported,

they reluctantly agreed to its implementation. The district court

approved the fourteen-day access standard during a status

conference. It then memorialized the approval in an order dated

March 20, 2012. The order stated:

The court approved a fourteen-day access

standard for Intensive Care Coordination

("ICC") access. This means that no more than

fourteen days will elapse between the initial

contact with the ICC provider and the first

offered date for a face-to-face meeting. The

court approved this standard with the

understanding

that

the

contractual

obligations of the ICC providers as contained

- 20 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28194 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2021 ofE4n2try ID: 6336251
in their performance specifications would require that the period be three days for at least 50% of the clients, ten days for 75% of the clients, and no more than fourteen days for 100% of the clients. The court will be monitoring data regarding access carefully to [e]nsure that the approval of the more generous standard does not result in longer delays. Defendants will copy the court, Plaintiffs, and the court monitor with the monthly data reports on this issue. The order did not modify the language of the judgment; rather, it expressed the court's approval of the Commonwealth's new reasonable promptness standard for measuring compliance in conformity with the extant portion of the judgment mandating the ICC service. At the end of June 2012, at the court's prompting, the parties agreed to negotiate a "plan for disengagement." The plan included various criteria, developed jointly by the parties, which the Commonwealth would endeavor to meet to ensure that all aspects of the judgment had been satisfied in advance of the wind-down of the court's oversight. During this disengagement phase, the Commonwealth consented to approximately ten extensions of the Court Monitor's term, typically for six months at a time. Each of these extensions constituted a modification of the judgment by agreement of the parties, extending its five-year sunset provision for reporting and monitoring. The final consented-to order extending the Court Monitor's appointment was entered on April 7, 2017, and stated that, "per agreement of the parties," the
- 21 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28294 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2022 ofE4n2try ID: 6336251
Monitor's appointment would be extended "through and including December 31, 2018."
In May 2018, after the plaintiffs reported that approximately two thirds of the Commonwealth's providers were regularly failing to offer initial ICC appointments within fourteen days, the plaintiffs filed a motion styled, "Motion to Improve Access to Remedial Services." The motion requested that the court enter an order "setting 2018 goals for access to ICC." At a hearing in June 2018, rather than ruling on the plaintiffs' motion, the court decided to "bring the matter to a head" and ordered the Commonwealth to file a motion regarding its substantial compliance with the judgment and the plaintiffs to file a corresponding motion to incorporate various disengagement criteria10 as an order of the court. See Rosie D. v. Baker, 362 F. Supp. 3d 46, 57 (D. Mass. 2019). Both motions were filed in August 2018. The Commonwealth's motion was titled, "Motion Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision." It asked the court to "terminat[e] all monitoring and reporting requirements set forth in the Judgment." The plaintiffs vigorously opposed the motion with respect to the ICC service and requested that the court extend the timeframe for
10 Notably, one of the disengagement measures that the plaintiffs asked the court to order was that "[b]y December 31, 2018, at least 70% of youth seeking ICC services will be offered an initial appointment within 14 days."
- 22 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28394 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2023 ofE4n2try ID: 6336251
monitoring compliance with that portion of the judgment, due to the Commonwealth's failure to provide the ICC service with "reasonable promptness."
With the December 31, 2018 deadline for the end of the Court Monitor's appointment rapidly approaching, the court, over the Commonwealth's objection, issued an order extending the Court Monitor's appointment to June 30, 2019 to maintain the status quo while it considered the motions. The district court denied the Commonwealth's motion to terminate monitoring on February 7, 2019, and the Commonwealth promptly appealed.11 See id. at 61-62. Monitoring remains ongoing at this time because the district court entered an order on July 1, 2019 extending the appointment of the Court Monitor during the pendency of this appeal.12
II. The above history of the case captures its present procedural posture: essentially, two competing requests for modifications of the judgment, previously modified by consent of the parties to terminate monitoring on December 31, 2018. The
11 Because the Commonwealth noticed its appeal before the district court ruled on the plaintiffs' motion to enter the disengagement criteria as an order of the court, the district court denied plaintiffs' motion without prejudice, explaining that, by appealing, the Commonwealth had deprived the district court of "the power to act substantively . . . until proceedings on appeal conclude."
12 The Commonwealth also appealed this second order, and the two appeals were consolidated.
- 23 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28494 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2024 ofE4n2try ID: 6336251
Commonwealth's motion, filed at the direction of the district court approximately four months prior to that date, sought to end monitoring early based on its purported demonstration of substantial compliance with the judgment. The plaintiffs, in opposing that motion, asked the court to extend the period for compliance monitoring beyond the existing December 31, 2018 deadline.13
Because the data regarding the Commonwealth's compliance (or lack thereof) with the judgment was undisputed, and both parties sought modifications of the same deadline in the judgment, the court determined that it was not necessary to assign the burden of proof. See Rosie D., 362 F. Supp. 3d at 57. In other words, because both parties bore the burden of proof for their own requested modifications, see Horne v. Flores, 557 U.S. 433, 447 (2009) (holding that the party seeking modification of a judgment bears the burden of proof), and those modifications were squarely at odds with one another, the district court conducted an
13 To the extent that the majority suggests that the plaintiffs' request to extend monitoring was not a "proper application" for modification of the judgment because it was not presented as a separate motion, that position elevates form over substance. The majority cites no rule or language in the judgment requiring a formal motion for modification. In any event, as I have described, the district court effectively treated the plaintiffs' opposition as a motion -- it assessed whether the plaintiffs had carried their burden to demonstrate good cause for an extension of monitoring, or whether the Commonwealth had carried its burden to demonstrate good cause for a termination of monitoring.
- 24 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28594 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2025 ofE4n2try ID: 6336251
independent analysis of the uncontested evidence submitted by the parties to assess whether the Commonwealth had met its burden to show substantial compliance with the judgment, or whether the plaintiffs had met their burden to show a lack of substantial compliance with the judgment, see Rosie D., 362 F. Supp. 3d at 5761.
The majority concedes that an inquiry into the Commonwealth's substantial compliance with the judgment "would have been appropriate if the Commonwealth was seeking to modify the judgment." That statement reveals a misunderstanding of the posture of this case: the Commonwealth did seek a modification of the judgment. So did the plaintiffs. Based on its assessment of the parties' evidentiary submissions, the district court determined that the Commonwealth had not met its burden to demonstrate good cause and that the plaintiffs had.
Yet, remarkably, the majority declares that "[n]either th[e] 'good cause' standard nor any examination of it appear anywhere in the district court's analysis." The district court's entire decision is a good-cause analysis. The determination that good cause existed to modify the judgment by extending monitoring was premised on the district court's finding that the Commonwealth did not substantially comply with the judgment and federal law. Put differently, the district court's finding that the Commonwealth failed to employ adequate processes to ensure
- 25 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28694 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2026 ofE4n2try ID: 6336251

compliance with the fourteen-day reasonable promptness standard

constituted "good cause" to extend the period for compliance

monitoring.

A close examination of the district court's order

demonstrates the error in the majority's assertion that the

district court never made a good cause finding. The court

repeatedly stated that the undisputed evidence submitted by the

parties revealed that the Commonwealth was not in compliance with

the reasonable promptness requirement of the judgment and federal

law, leading to "grave potential consequences for the health and

welfare of [] vulnerable children." Rosie D., 362 F. Supp. 3d at

48. It called the Commonwealth's failure to provide the ICC

service with reasonable promptness a "manifest and easily

quantified failure" to comply with the judgment and federal law

that "makes denial of Defendants' motion to terminate oversight

inevitable." Id. at 48-49. The court explained:

The undisputed facts of record confirm that

for a very substantial portion of the

Plaintiff children, Defendants have for years

failed, and continue to fail, to satisfy [the

reasonable

promptness]

requirement.

Depending on the particular month and year,

between thirty and sixty percent of the

Plaintiff children seeking ICC services

continue to wait beyond the fourteen-day

period for their first appointment, often for

much longer. . . . Recent reports ominously

suggest that the fail rate for providing

timely ICC services is increasing, not

diminishing.

Moreover, and most

frustratingly, Defendants in status

- 26 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28794 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2027 ofE4n2try ID: 6336251
conferences over the past eighteen months have offered no concrete plan to rectify this situation and have begun to profess themselves neither able nor obliged to take any specific steps to alleviate this glaring failure in compliance.
Id. at 48.
Later in its analysis, the district court revealed that
the Commonwealth's own evidentiary submissions -- not just the
plaintiffs' -- demonstrated its failure to provide the ICC service
with reasonable promptness. The court explained that "Defendants'
own statement of material facts acknowledges that since 2010 over
twenty percent of class members have not received initial ICC
appointments within the required fourteen days."14 Id. at 58-59.
In the end, the court concluded:
[N]o dispute exists as to the fundamental fact that, after years of outcry from Plaintiffs and persistent prodding by the court, in any given month Defendants are violating the Medicaid standard -- the standard that they themselves adopted -- for one-third to onehalf of the SED children needing services.
14 As noted, the district court's March 2012 order approving the fourteen-day access standard explained that "[t]his means that no more than fourteen days will elapse between the initial contact with the ICC provider and the first offered date for a face-toface meeting." The order also stated that it approved the new standard "with the understanding that the contractual obligations of the ICC providers as contained in their performance specifications would require that the period be three days for at least 50% of the clients, ten days for 75% of the clients, and no more than fourteen days for 100% of the clients."
- 27 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28894 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2028 ofE4n2try ID: 6336251
Id. at 60. Indeed, no factual dispute did exist, nor does one exist now: neither party requested an evidentiary hearing before the district court, id. at 52, and the Commonwealth does not challenge on appeal the factual basis for the district court's decision.15
As the majority acknowledges, federal Medicaid law requires that states provide medical assistance with "reasonable promptness," 42 U.S.C. § 1396a(a)(8), and create "reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan," id. § 1396a(a)(17). The Department of Health and Human Services' regulations implement these requirements by mandating that a state Medicaid agency
must set standards for the timely provision of EPSDT services which meet reasonable standards of medical and dental practice, as determined by the agency after consultation with recognized medical and dental organizations involved in child health care, and must employ processes to ensure timely initiation of treatment, if required, generally within an outer limit of 6 months after the request for screening services. 42 C.F.R. § 441.56(e) (emphasis added).
15 At oral argument, counsel for the Commonwealth explained that "we do have a quarrel with which numbers the court decided to frontline, but this is not a factual dispute. This is a pure legal question as to whether the court . . . could use a term not in the four corners of the judgment as a basis for denying our motion."
- 28 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t28994 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2029 ofE4n2try ID: 6336251
Contrary to the majority's insinuation, the district court's order does not suggest, with "little formal analysis," that "[a] requirement to 'employ processes' to meet a goal is [] the same as a requirement that the goal be met in all cases."16 Rather, quite logically, the district court concluded that the Commonwealth's providers' frequent failure to meet the fourteenday standard for access to the ICC service was evidence that the processes employed by the Commonwealth were not sufficient to satisfy the regulation. Indeed, the district court's order is laden with examples of not just the Commonwealth's demonstrated failure to provide the ICC service with reasonable promptness, but also its reluctance to undertake any concrete steps to remedy that failure.
For example, the district court explained that the Commonwealth presented no plan to address its staffing problems and "resist[ed] any efforts by the court or by Plaintiffs to identify possible strategies to address the access problem." See Rosie D., 362 F. Supp. 3d at 60. The court concluded that it had "no confidence that we have a plan to deal with the access issue." Id. at 57. That conclusion, based on a "formal analysis" by any
16 The district court's order states no fewer than six times that it found a lack of "substantial compliance" with the judgment. See Rosie D., 362 F. Supp. 3d at 48, 49, 51, 57, 61. The use of the term "substantial compliance" belies the notion that the district court required the Commonwealth to meet the fourteen-day standard in every instance.
- 29 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38094 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2030 ofE4n2try ID: 6336251
measure, clearly reflects the court's considered judgment that the Commonwealth was failing to employ adequate processes "to ensure timely initiation of treatment." 42 C.F.R. § 441.56(e).
In a further misguided critique of the district court's order, the majority declares without elaboration that the district court "failed to apply anything approaching [the] standard [in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)] in examining whether it was appropriate to modify the Judgment to extend the monitoring requirements." But the district court's good-cause analysis aligns with the analysis prescribed by Rufo, even if the court did not explicitly cite to that case. The majority's insistence on some formalistic invocation of Rufo again elevates form over substance and neglects Rufo's central holding that the inquiry into modification of a judgment should be flexible and compatible with the court's inherent equitable authority.
Rufo involved a consent decree governing the institutional reform of a county jail. 502 U.S. at 371. The defendant-petitioners sought to modify the decree pursuant to Federal Rule of Civil Procedure 60(b)(5) to allow double-bunking in the jail, in order to increase the capacity of the facility due to an allegedly unanticipated increase in the number of pretrial detainees. Id. at 376. At the time, Rule 60(b) read, in relevant part:
- 30 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38194 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2031 ofE4n2try ID: 6336251

On motion and upon such terms as are just, the

court may relieve a party or a party's legal

representative from a final judgment, order,

or

proceeding

for

the

following

reasons: . . . (5) the judgment has been

satisfied, released, or discharged, or a prior

judgment upon which it is based has been

reversed or otherwise vacated, or it is no

longer equitable that the judgment should have

prospective application; . . .

Id. at 378 (quoting Fed. R. Civ. P. 60(b) (1988)).17

The Supreme Court concluded that the district court and

Court of Appeals had erred by holding that Rule 60(b)(5) codified

the "grievous wrong" standard from United States v. Swift & Co.,

286 U.S. 106, 119 (1932), which required "[n]othing less than a

clear showing of grievous wrong evoked by new and unforeseen

conditions" for modification of the judgment. See Rufo, 502 U.S.

at 380. Instead, the Court interpreted Rule 60(b), in the context

of institutional reform litigation, to adopt a more "flexible

approach," noting that such flexibility "is often essential to

achieving the goals of reform litigation." Id. at 381.

The Court provided some guidance to lower courts on how

to conduct that flexible inquiry. It stated that the "party

17 The current version of Rule 60(b) is substantively identical. The analogous portion reads: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; . . ."
- 31 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38294 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2032 ofE4n2try ID: 6336251
seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree." Id. at 383. The Court chose not to explicitly define the concept of "a significant change in circumstances." Rather, it described, in an open-ended fashion, some circumstances that might permit modification of a judgment. Accord United States v. W. Elec. Co., 46 F.3d 1198, 1203–04 (D.C. Cir. 1995) ("[T]he Court in Rufo . . . describe[d] circumstances that might warrant revision of consent decrees. We stress the 'might' because the Court, having first pronounced Rule 60(b)(5) 'flexible,' was careful not to reintroduce rigidity."). One of those potential circumstances was "when enforcement of the decree without modification would be detrimental to the public interest." Rufo, 502 U.S. at 384.
In this case, the district court found that unanticipated circumstances required a modification of the judgment in order to serve the public interest. Those circumstances, of course, were the Commonwealth's failure to achieve substantial compliance with the judgment by the deadline originally set forth in the judgment. The district court's order extending monitoring reflected its realization that the judgment's original deadline was "unrealistically optimistic." See Rosie D., 362 F. Supp. 3d at 52. Moreover, the court determined that an extension of monitoring, in order to assess the Commonwealth's
- 32 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38394 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2033 ofE4n2try ID: 6336251
ongoing efforts to achieve compliance with the judgment, served the public interest. As detailed above, the court determined that the Commonwealth's non-compliance with the reasonable promptness requirement of federal law put vulnerable children at risk for crises that could be "analogously acute [to appendicitis]," requiring emergency intervention to the detriment of those children, their families, and the public health system. Id. at 51. Thus, there was good cause to modify the judgment to extend monitoring. The district court's robust good-cause analysis was consistent with Rufo.
Finally, citing to Rufo, the majority accuses the district court of "interfer[ing] with the policy prerogatives of a state's democratically elected government" by extending the timeframe for monitoring. But the district court has demonstrated meticulous sensitivity to the sovereignty of the Commonwealth since the start of this case, repeatedly looking to the Commonwealth to generate specific plans and criteria to bring itself into compliance with federal law. In 2007, after the district court entered its liability decision and asked the parties to submit proposed remedial plans, it adopted -- nearly in its entirety -- the Commonwealth's proposed plan, rather than the plaintiffs'. See Rosie D. ex rel. John D. v. Romney, 474 F. Supp. 2d 238, 239 (D. Mass. 2007). Likewise, as detailed infra Section III, consistent with federal law, the court declined to dictate a
- 33 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38494 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2034 ofE4n2try ID: 6336251
timeliness standard for the ICC service. Rather, it allowed the Commonwealth to adopt its own standard, and later, over the objection of the plaintiffs, permitted it to modify that standard once it determined that the new standard was medically reasonable.
In sum, by allowing the Commonwealth to craft a remedy, develop its own timeliness standard, and modify that standard when its own data indicated compliance was challenging, the district court demonstrated respect for the principles of federalism. The court's refusal, however, to disregard the Commonwealth's violation of federal law was also consistent with those principles. See Horne, 557 U.S. at 450 (explaining that, despite the importance of respect for state sovereignty, "[i]t goes without saying that federal courts must vigilantly enforce federal law").
III. The majority concludes that the district court should not have used the fourteen-day standard as a metric for assessing "reasonable promptness" because neither federal law nor the judgment expressly states that timeframe. That conclusion reflects a flawed interpretation of federal law and misconstrues both the nature of the judgment entered in this case and the doctrine limiting enforcement of a judgment to its four corners. Again, I return to the text of the EPSDT implementing regulation, which says that a state Medicaid agency
- 34 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38594 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2035 ofE4n2try ID: 6336251
must set standards for the timely provision of EPSDT services which meet reasonable standards of medical and dental practice, as determined by the agency after consultation with recognized medical and dental organizations involved in child health care, and must employ processes to ensure timely initiation of treatment, if required, generally within an outer limit of 6 months after the request for screening services. 42 C.F.R. § 441.56(e). The regulation explicitly requires states to consult with medical professionals to develop standards for the timely provision of care. It defies logic that those carefully crafted, medically supported standards are unenforceable once adopted by a state, and that only the backstop timeframe of six months may be used as a metric to assess reasonable promptness. As quoted above, federal law gives states, not federal courts, the initial responsibility of developing a timeliness standard. See id. In the event of a litigated dispute about this timeliness requirement, the court has two roles. First, it must ensure that the standard that a state adopts is "reasonable" based on evidentiary submissions by the state. This is the process the court undertook in 2012 when the Commonwealth sought to change the ICC access standard from three days to fourteen days, over the plaintiffs' initial objection. Second, after the court determines that a state's timeliness standard meets "reasonable standards of medical and dental practice" and enters an order to that effect, the court has continuing authority to ensure that the state's
- 35 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38694 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2036 ofE4n2try ID: 6336251
providers meet the timeliness standard. See id. That continuing authority was specified in the court's 2007 judgment which set forth a monitoring procedure and timeframe. In the exercise of that authority, the court rejected the Commonwealth's request to end monitoring in 2018, based on the Commonwealth's undisputed failure to employ adequate processes to implement the fourteenday requirement.
That the judgment implemented these elements of federal law, and the Commonwealth understood it to do so, is beyond dispute. The judgment explicitly stated that its purpose was to remedy the federal law violations found in its liability opinion, including the Medicaid Act's "reasonable promptness" provision, 42 U.S.C. § 1396a(a)(8). It also expressly required the Commonwealth to both "establish standards for [providers] that will include . . . service delivery standards" and "amend its managed care behavioral health contract to require the behavioral health contractor to procure a network of [providers] that meet the standards established by [the Commonwealth]," echoing the commands of federal law.
The Commonwealth itself described this scheme in multiple submissions to the court urging the court's approval of the fourteen-day access standard back in 2012. In a letter addressed to the court, the Commonwealth explained:
- 36 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38794 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2037 ofE4n2try ID: 6336251
EOHHS18 wishes to make clear its understanding of the mechanics by which a state Medicaid agency sets timeliness standards for EPSDT services. The controlling regulation, 42 C.F.R. § 441.56(e), mandates that a state agency "set standards for the timely provision of EPSDT services which meet reasonable standards of medical and dental practice . . . ." The regulation goes on to state that such standards shall be "determined by the agency after consultation with recognized medical and dental organizations involved in child health care . . . ." The Judgment in this case implicitly adopts that requirement, insofar as it directs the defendants to "establish standards for CSAs" that "will include," among other things, "service delivery standards." Judgment at ¶ 38(b).
The Commonwealth also submitted to the court a copy of
a memorandum that it had sent to the president of the New England
Council of Child and Adolescent Psychiatry ("NECCAP"), seeking
guidance from NECCAP on an appropriate reasonable promptness
standard for the ICC service. The memorandum began:
Federal law requires a state to set standards for the timely provision of EPSDT services, which must meet reasonable standards of medical practice. To that end, we are consulting with medical professionals familiar with high fidelity Wrap-around to determine what time standard is medically reasonable. We seek your guidance as to an appropriate outside limit beyond which no member eligible for ICC should wait to obtain ICC -- a time period that you would consider to be reasonably prompt.
18 "EOHHS" stands for "Executive Office of Health and Human Services," the Massachusetts agency in charge of administering the Commonwealth's Medicaid program.
- 37 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38894 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2038 ofE4n2try ID: 6336251
These submissions unambiguously reflect the Commonwealth's understanding that federal law and the judgment entered by the district court grant the Commonwealth the initial opportunity to develop a standard for reasonably prompt access to the ICC service, which is then subject to the court's approval and subsequent monitoring to ensure compliance with that standard -the so-called "outside limit." Thus, the fact that the judgment itself does not explicitly dictate a timeliness standard is beside the point. Given that the judgment incorporates the federal mandate to ensure compliance with the standard adopted by the Commonwealth, the fourteen-day obligation necessarily became part of the judgment when it was approved by the court as medically reasonable under federal law.
Moreover, to the extent that there was ever any doubt that the court would affirmatively monitor compliance with the Commonwealth's own fourteen-day reasonable promptness standard, the March 2012 order put that doubt to rest. After stating the court's approval of the fourteen-day standard, the order dictated that:
The court will be monitoring data regarding access carefully to [e]nsure that the approval of the more generous standard does not result in longer delays. Defendants will copy the court, Plaintiffs, and the court monitor with the monthly data reports on this issue.
- 38 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t38994 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2039 ofE4n2try ID: 6336251
The Commonwealth never appealed that order; for the past eight years, the fourteen-day standard has governed the Commonwealth's conduct.
The need to limit enforcement of a judgment to its text is grounded in principles of fair notice and preventing plaintiffs from "short-circuit[ing] the usual adjudicative processes." Harvey v. Johanns, 494 F.3d 237, 245 (1st Cir. 2007). For the reasons described above, there is no question that the Commonwealth has been on notice of the enforceability of the fourteen-day standard since it was adopted. The fourteen-day standard was extensively discussed between the parties and the court in postjudgment proceedings and adopted over the initial objection of the plaintiffs. Consistent with the language in the 2007 judgment incorporating the "reasonable promptness" requirement of the Medicaid Act, the court's March 2012 order reiterated that the fourteen-day reasonable promptness standard for ICC was more than aspirational -- it was an obligation enforceable against the Commonwealth. Thus, the majority's assertion that the judgment did not give the Commonwealth fair notice that it was required to take adequate steps to ensure that its providers comply with the fourteen-day access standard is implausible.
IV. The majority calls its opinion "narrow" and minimal in its impact because the plaintiffs remain "free to pursue claims of
- 39 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t48094 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2040 ofE4n2try ID: 6336251
violation of the express terms of the Judgment, including that the Commonwealth is in violation of the Judgment because a fourteenday standard is required by federal law." The majority's decision is not remotely narrow or minimal in its impact. Most fundamentally, given the undisputed findings of the district court, its decision will delay even further delivery of essential services to vulnerable children with SED in the Commonwealth. Inevitably, given this reality, the plaintiffs will follow the majority's instruction and seek to establish a violation of the fourteen-day standard by largely duplicating the case that they have already made to the district court in support of their request to extend monitoring. The Commonwealth will undoubtedly respond with much of the same evidence that it has already submitted to the district court in support of its substantial compliance motion. Hence, the proceedings envisioned by the majority will largely duplicate the proceedings that have already taken place before the district court, wasting everyone's time, energy, and resources.
The majority's decision may also have a disruptive effect on the Commonwealth. The Court Monitor's appointment, which requires state funding and significant advance coordination, will lapse. If the court later determines, for the exact same reasons detailed in its order at issue here, that monitoring must continue, the Commonwealth will have to reallocate the funds and reorganize its staff to meet that obligation.
- 40 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t48194 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2041 ofE4n2try ID: 6336251
Moreover, the majority's unwarranted criticism of the district court belies the court's laudable effort to foster a collaborative spirit between the parties for nearly fifteen years, often acting as a mediator in the status conferences it held with them every three to six months. See Rosie D., 362 F. Supp. 3d at 53 n.10. These efforts have been productive: "[d]ue to the hard work of [the Commonwealth], the Plaintiffs, and the Court Monitor, a system of care for Medicaid-eligible SED children has emerged in the Commonwealth that bears little resemblance to the random, meager programming available when this lawsuit was filed." Id. at 52. Vulnerable children with SED throughout the Commonwealth have benefited from the district court's sound judgment and ability to facilitate voluntary compliance from all parties.
Still, despite that progress, there remains the Commonwealth's critical failure related to the ICC service. Hence, the district court properly found that the judgment and federal law require the Commonwealth to take adequate steps to ensure reasonably prompt access to the ICC service as measured by the fourteen-day standard. As I have explained, the district court committed no legal error in making that determination. Instead, there are only the unchallenged factual findings of the district court and the exercise of its discretion, based on those factual findings, in concluding that there was good cause to decline to end monitoring early and to modify the judgment to extend
- 41 -

Case: 19-1767CasDeo3c:u0m1-ecnvt-:3000119197-5R8G4S686DocPumageen:t48294 FDialetde 0F5ile/0d4:/0250/04P/a2g0e2042 ofE4n2try ID: 6336251
monitoring. See Fortin v. Comm'r of Mass. Dep't of Pub. Welfare, 692 F.2d 790, 798 (1st Cir. 1982) (holding that a district court's decision to modify a judgment is "reviewable only for abuse of discretion").
That exercise of discretion should not be disturbed. We owe special deference to the district court's nearly twenty years of experience with this case. See, e.g., Rufo, 502 U.S. at 394 (O'Connor, J., concurring in the judgment) ("Our deference to the District Court's exercise of its discretion is heightened where, as in this litigation, the District Court has effectively been overseeing a large public institution over a long period of time"); Hutto v. Finney, 437 U.S. 678, 688 (1978) (holding that, in the context of institutional reform litigation, the district court's "exercise of discretion . . . is entitled to special deference because of the trial judge's years of experience with the problem at hand"). The majority's opinion reflects an unjustified refusal to respect, understand, and defer to the district court's discretion in this matter, with profound consequences for thousands of needy children in the Commonwealth.
I respectfully dissent.
- 42 -

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

________________________________________

ROSIE D. et al.,

Plaintiffs,

v.

01-CV-30199-MAP

JANE M. SWIFT et al.,

Defendants.

_________________________________________

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Preliminary Statement

The complaint presents this case as a dispute over the interpretation of federal Medicaid

law, but it is really an argument between two different paradigms of how mental health services

should be delivered to persons who need them, in this case children. The traditional paradigm,

which describes not just the Massachusetts Medicaid program but the delivery of such services

generally in this country to the privately insured as well as to Medicaid recipients, is that

delivery of mental health services is organized around the providers; that is, persons who need

such services visit mental health clinicians and other community care providers, including

hospitals and other institutions when the need is acute. Plaintiffs’ basic claim in this case is that

Medicaid law requires the Massachusetts Medicaid program to replace that traditional approach

with a new paradigm for the delivery of mental health services: a system of “intensive home-

based mental health services” that would allow them to receive mental health services at home

1

and thereby avoid hospitalization. Plaintiffs are nine children ranging in age from five to seventeen, each of whom is
alleged to be Medicaid eligible and to have been diagnosed with two or more psychiatric, behavioral or emotional disorders. The complaint establishes that each plaintiff (with one possible exception) has received services to treat his or her condition in a manner consistent with the traditional paradigm just mentioned, including repeated hospitalizations of varying duration. Plaintiffs contend, however, that federal Medicaid law mandates that they be provided with treatment and other services in their homes rather than in any other setting, such as a hospital. More specifically, plaintiffs allege that their conditions require “intensive home-based mental health services,” which they define as “behavioral support services, psychiatric and other clinical services, professionally acceptable assessments, crisis services, and case management.” Recognizing that the Medicaid statute contains no reference to “intensive home-based mental health services,” plaintiffs further contend that such services fall within the Medicaid program’s general definition of Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) services set forth in 42 U.S.C. §§ 1396a(a)(43) and 1396d(r). They conclude that the Commonwealth must pay for “intensive home-based mental health services” for themselves and a class of Medicaid eligible children under the age of 21 who have or may have behavioral, emotional, or psychiatric disabilities or impairments.
The idea of providing children such as plaintiffs with mental health services in their homes has much to be said for it. Indeed, as the complaint itself establishes, the Commonwealth pays for some behavioral health services for Medicaid eligible children in their homes in the form of Family Stabilization Teams and Community Support Programs, and has been testing a
2

pilot program to pay for further home-based services on a limited basis (Complaint ¶¶ 52-53, 64). However – and this is the heart of defendants’ position in this case – federal Medicaid law does not require the Commonwealth to pay for home-based services to the unlimited extent sought by plaintiffs. To the contrary, federal Medicaid law allows states to choose, within general federal parameters, how to deliver services, and gives states discretion to limit the extent of services for which they will pay. Defendants (the Commonwealth’s Governor, Secretaries of the Executive Offices of Health and Human Services and of Administration and Finance, and Commissioner of the Division of Medical Assistance) therefore move to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim, pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, on three grounds: (1) that federal Medicaid law does not require states to adopt the paradigm of “intensive home-based mental health services” advocated by plaintiffs but instead vests them with discretion to choose the extent of services for which they will pay and how those services will be delivered; (2) that plaintiffs possess no legal right to compel the Commonwealth to adopt the paradigm they favor; and (3) that this Court lacks jurisdiction over plaintiffs’ effort to force their choice upon the Commonwealth.
To take the jurisdictional point first, plaintiffs’ claims are barred by the Commonwealth’s Eleventh Amendment sovereign immunity (Point I of this memorandum). Even though the Ex Parte Young doctrine allows suit in some circumstances against state officers for prospective injunctive relief notwithstanding the Eleventh Amendment, the Supreme Court has held that the legal fiction recognized in Ex Parte Young is unavailable when Congress has prescribed a detailed remedial scheme that allows plaintiffs to enforce a statutorily created right by some means other than an Ex Parte Young claim. A detailed remedial scheme exists regarding those
3

aspects of the Commonwealth’s Medicaid program that are the basis for plaintiffs’ claim, and thus this Court lacks subject matter jurisdiction by application of the Eleventh Amendment.
Second, the EPSDT provisions of federal Medicaid law on which plaintiffs base their claim of entitlement to “intensive home-based mental health services” do not provide a judicially enforceable right to relief either directly or through 42 U.S.C. § 1983. The Supreme Court held in Blessing v Freestone, 520 U.S. 329, 340 (1997), that to seek redress through § 1983 a plaintiff “must assert the violation of a federal right, not merely a violation of federal law.” The Court further indicated that an asserted right is not federally enforceable when it is “so ‘vague and amorphous’ that its enforcement would strain judicial competence” or when the federal statute alleged to give rise to the right imposes no binding obligation on the state. 520 U.S. at 340-341. Plaintiffs’ claim suffers from both defects. The right they purport to assert, which amounts to a claim that the EPSDT provisions guarantee each Medicaid recipient a round-the-clock staff of clinicians and personal attendants ready to handle any need the recipient may assert, is so vague as to be practically limitless. Moreover, the EPSDT provisions do not impose a mandatory obligation on the states to pay for “intensive home-based mental health services.” Plaintiffs therefore have no judicially enforceable right to relief (Point II of this memorandum).
Finally, even if plaintiffs had an enforceable right to relief under the EPSDT provisions of federal Medicaid law and this Court had jurisdiction to hear such a claim, the complaint would still fail to state a claim for relief. Federal Medicaid law requires states to pay for various categories of care for Medicaid recipients, but “intensive home-based mental health services” is not one of the required categories. While federal Medicaid law does establish some categories of care that include care provided in the home, it gives states discretion to limit the extent of
4

services they will pay for within those general categories, and it nowhere requires unlimited inhome services as sought by plaintiffs. Here, the Commonwealth has made an appropriate choice regarding the delivery of mental health services that lies squarely within the discretion afforded it under the federal Medicaid program. Furthermore, the complaint contains no allegation that specific services (in the home or otherwise) are medically necessary to any plaintiff – a prerequisite to Medicaid entitlement. For these reasons the complaint should be dismissed for failure to state a claim for relief (Point III of this memorandum).
Summary of Plaintiffs’ Allegations For purposes of this motion only defendants do not contradict plaintiffs’ factual allegations. Plaintiff Rosie D. is a thirteen year old girl with post traumatic stress disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder (Complaint ¶¶ 67, 70). Tyriek H. is an eight year old boy with psychosis or a psychotic condition, attention deficit disorder, oppositional defiant disorder, and bipolar disorder (Complaint ¶¶ 72, 74). Joshua D. is a twelve year old boy with a non-verbal learning disability, dysthymia disorder, anxiety disorder, oppositional defiant disorder, and pervasive developmental disorder (Complaint ¶ 78). Sheena M. is a sixteen year old girl with attention deficit hyperactivity disorder and mild mental retardation (Complaint ¶ 83). Devin E. is an eight year old boy with pervasive developmental delay, significant speech and language delays, global development delay, post traumatic stress disorder, reactive attachment disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and autism (Complaint ¶¶ 88, 91). Anton B. is an eight year old boy with attention deficit and hyperactivity disorder and bipolar disorder (Complaint ¶ 93). Nathan F. is a fifteen year old boy with attention deficit and hyperactivity disorder and a bipolar thought
5

disorder (Complaint ¶ 98). Shaun E. is a five year old boy with attention deficit and hyperactivity disorder, post traumatic stress disorder, and bipolar disorder (Complaint ¶¶ 106, 109). Jerry N. is a seventeen year old boy with a chromosome disorder, mild mental retardation, and attention deficit and hyperactivity disorder (Complaint ¶¶ 111, 114).
Even though all of the plaintiffs are generally alleged to require “intensive home-based mental health services” (Complaint ¶¶ 69, 76-77, 82, 87, 92, 97, 105, 110, 115), the complaint does not specify what services are needed by any particular plaintiff. The complaint does not allege that any clinician has diagnosed any particular service as medically necessary for any particular plaintiff. These omissions are significant because the Medicaid program is limited to paying for care that has been determined to be medically necessary on an individualized basis, 42 U.S.C. §§ 1396a(a)(30)(A) and 1396a(a)(33), 42 C.F.R. § 440.230(d), and that limitation is explicitly incorporated in the definitions of all EPSDT services, 42 C.F.R. § 1396d(r)(5).
The complaint fails to specify exactly what services are claimed to be medically necessary for each plaintiff; however, it does allege that all of the plaintiffs have received mental health services to treat or help alleviate their conditions, and it is apparent that those services are being (or were) provided according to the traditional delivery paradigm described above. There is no allegation that those services were improperly provided, or that Medicaid has failed to pay for them. With the exception of Shaun E., all are alleged to have been hospitalized or treated at Crisis Stabilization Units at various times when their behavior was otherwise uncontrollable (Complaint ¶¶ 68-69, 73-75, 78, 83-84, 91, 94-96, 101-103). Four of the plaintiffs (Rosie D., Tyriek H., Sheena M., and Nathan F.) currently have residential placements. Rosie D. lives at Children’s House, a Department of Mental Health (“DMH”) facility (Complaint ¶ 70). Tyriek
6

H., who presently requires hospitalization, has lived at Three Rivers residential facility since November 2000 (Complaint ¶¶ 74, 76). Sheena M. has lived at Howard House, a six-bed DMH funded residential facility, since August 1, 2001 (Complaint ¶ 86). Nathan F. lives at Granite House, a mental health residential program, but allegedly has been told that he could be discharged any day (Complaint ¶ 86).
The other five plaintiffs (Joshua D., Devin E., Anton B., Shaun E. and Jerry N.) live at home (Complaint ¶¶ 78, 91, 93, 106, 114). They, too, have received various services to treat their conditions, some clinical and some other services (such as Head Start and other educational programs). Joshua D. attended school last spring with a full-time aide (the complaint does not indicate whether he presently attends school), and he has seen numerous physicians, therapists and social workers and is presently receiving therapy (Complaint ¶¶ 78, 80, 81). Devin E. has participated in Early Intervention and school programs in the past and was hospitalized from February through May 2001; the complaint does not indicate what treatment he is presently receiving (Complaint ¶¶ 90-91). Anton B. has been receiving visits from a DMH paraprofessional for four hours per week but that contact is expected to end (Complaint ¶ 96). Shaun E. is enrolled in Head Start and sees numerous physicians, psychiatrists and social workers (Complaint ¶¶ 107, 109). Jerry N. attends the Cardinal Cushing School and Training Center and is also apparently in a day program for some portion of the day (Complaint ¶¶ 113, 114).
Consistent with plaintiffs’ failure to allege that any specific service is medically necessary to any of them, the complaint contains no allegation that any particular plaintiff has requested that the Division of Medical Assistance pay for any particular service on the ground
7

that it is medically necessary, or that any particular plaintiff has been denied payment for any specific medically necessary service. The complaint also contains no allegation that any of the plaintiffs has at any point sought a fair hearing to challenge the denial of payment for any medically necessary service.
Summary of Plaintiffs’ Claims Plaintiffs’ essential position is that federal Medicaid law requires the Commonwealth, through the Medicaid program, to pay for “intensive home-based mental health services” in their homes rather than in any other setting. Federal Medicaid law nowhere refers to “intensive homebased mental health services” as a type of service for which states must pay. Because of this, plaintiffs assert four causes of action referencing a plethora of different sections of the federal Medicaid statutes and its implementing regulations that they contend support their claim of entitlement to “intensive home-based mental health services,” but none of which by their express terms contain such a requirement. Plaintiffs’ first cause of action (Complaint ¶¶ 132-137) asserts that “intensive homebased mental health services” are required (1) by 42 U.S.C. § 1396a(a)(10)(A), which is the section of the Medicaid statute that defines the persons eligible for Medicaid; (2) by 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r)(5), which are the sections of the Medicaid statute that define the EPSDT program; and (3) by 42 C.F.R. §§ 441.50, 441.56(a), and 441.61(b), which are federal regulations implementing the EPSDT program. Plaintiffs’ second cause of action (Complaint ¶¶ 138-142) presupposes that the Commonwealth must pay for “intensive home-based mental health services” based upon those sections referenced in their first cause of action, and then asserts that they are not being afforded
8

those services with reasonable promptness, in purported violation of 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a).
Plaintiffs’ third cause of action (Complaint ¶¶ 143-145) likewise presupposes that the Commonwealth must pay for “intensive home-based mental health services” based upon those statutes referenced in their first cause of action, and then asserts that the Commonwealth is not administering the Medicaid program so as to ensure a sufficient supply of providers of “intensive home-based mental health services,” in purported violation of 42 U.S.C. § 1396a(30)(A).1
Finally, plaintiffs’ fourth cause of action (Complaint ¶¶ 146-148) again presupposes that the Commonwealth must pay for “intensive home-based mental health services” based upon those statutes referenced in their first cause of action, and then asserts that the Commonwealth has failed to ensure that the managed care entity providing mental health services to Massachusetts Medicaid recipients, the Massachusetts Behavioral Health Partnership (Complaint ¶ 47), maintains sufficient capacity to offer “intensive home-based mental health services,” in purported violation of 42 U.S.C. § 1396u-2(b)(5). Obviously, as shown below, plaintiffs’ second, third, and four causes of action fail upon the demonstration that their first cause of action – that federal Medicaid law requires the Commonwealth to pay for “intensive home-based mental health services” – is without legal basis.
Plaintiffs seek certification of a class defined as “all current or future Medicaid-eligible residents of Massachusetts under the age of twenty-one who have or may have a behavioral, emotional, or psychiatric disability or impairment and who need or may need intensive home-
1So in complaint – believed to be a typographical error for 1396a(a)(30)(A).
9

based services, including professionally acceptable assessments, special therapeutic aides, crisis intervention, and case management services, in order to treat or ameliorate their disability or impairment” (Complaint ¶ 22). Plaintiffs seek declaratory and injunctive relief requiring defendants to pay for “intensive home-based mental health services” and request that the Court retain jurisdiction over this case for an undefined period to monitor the Commonwealth’s efforts in that respect.
The Medicaid Program The Medicaid program was created in 1965 when Congress added Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq., for the purpose of providing federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons. The Act creates a cooperative federal-state program entitled “Grants to States for Medical Assistance Programs” that pays for statutorily-authorized health care services to economically disadvantaged individuals. A state that chooses to participate in the Medicaid program must develop a plan describing the scope of its medical assistance program and submit that plan to the Secretary of the United States Department of Health and Human Services (“HHS”) for approval. Upon approval of a state’s plan, HHS allocates financial grants to help the state defray its cost. 42 U.S.C. § 1396b. While participation in the Medicaid program is optional, states that choose to participate are required to comply with the requirements of Title XIX. A state’s plan must provide assurance that it will be administered in conformity with federal law. 42 C.F.R. § 430.10. Massachusetts has chosen to participate in the Medicaid program, and its Division of Medical Assistance (“DMA”) is the state agency responsible for administration and regulation of the
10

Medicaid program in conformity with Title XIX. Mass. G.L. c. 118E, §§ 1 and 9. The Medicaid statute contains no provision permitting Medicaid eligible persons to bring
suit against states that fail to comply with Medicaid law. Instead, the Medicaid statute provides two other means by which Medicaid law may be enforced against non-compliant states. First, the Secretary of HHS retains the authority to monitor each participating state’s performance and to limit or terminate payments to any state if he finds less than substantial compliance with any plan provision. 42 U.S.C. § 1396c. Section 1396c specifically authorizes the Secretary to exercise this authority both as to entire state plans and as to non-complying categories or parts of such plans, and further authorizes him to continue to limit or withhold payments until he is “satisfied that there will no longer be any such failure to comply.”
Medicaid law also allows an individual who believes that a state Medicaid program has wrongly declined to pay for medically necessary care to challenge such a decision. It does so not by creating a private cause of action in federal court – there is no such provision in the Medicaid statute – but rather by requiring states that participate in Medicaid to grant hearings to individuals who believe that they have been wrongfully denied payment for care. State Medicaid plans must provide an opportunity for a fair hearing “to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3). Massachusetts has a fair hearing procedure, 130 C.M.R. §§ 610.001 et seq., and an individual who remains dissatisfied after that process can exercise a further right to judicial review in state court in accordance with Mass. G.L. c. 30A, 130 C.M.R. § 610.092.
The general structure of the Medicaid program is that federal law defines two categories of services – those for which states must pay for all Medicaid recipients and those for which
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states may choose to pay – and leaves it to each state to determine how to deliver those services within general federal parameters such as the requirement that medical assistance be provided with reasonable promptness, 42 U.S.C. § 1396a(a)(8), and that the state administer its program so as to maintain availability of services, 42 U.S.C. § 1396a(a)(30)(A). The list of required and optional services under the Medicaid program is set forth as part of the definition of “medical assistance” in 42 U.S.C. § 1396d(a), which sets out twenty-seven categories of services. Pursuant to § 1396a(a)(10)(A), seven of those categories (those described in paragraphs 1-5, 17, and 21 of the statute) are mandatory for all Medicaid recipients, while states may choose whether to pay for the remaining twenty. Massachusetts has chosen to pay for the optional as well as the mandatory categories.
One category of services for which states must pay is early and periodic screening, diagnostic and treatment (“EPSDT”) services for Medicaid eligible children under the age of 21. 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B). Five categories of EPSDT services are defined by 42 U.S.C. § 1396d(r): screening, vision, dental, and hearing services, and a fifth category consisting of “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section 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). The fifth category thus refers back to § 1396d(a) and incorporates the twenty seven categories of services listed in that statute.
States’ duties with respect to EPSDT services are further spelled out in federal regulations, 42 C.F.R. §§ 441.50-441.62. Section 441.56 of 42 C.F.R. specifies that the EPSDT
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program requires states to engage in five types of required activities: informing, screening, providing diagnosis and treatment, maintaining records to ensure accountability, and setting standards to ensure timely provision of services. With respect to the nature of the diagnosis and treatment that states must provide pursuant to the EPSDT program, § 441.56 provides as follows:
(c) Diagnosis and treatment. In addition to any diagnostic and treatment services included in the plan, the agency must provide to eligible EPSDT recipients, the following services, the need for which is indicated by screening, even if the services are not included in the plan – (1) Diagnosis and treatment for defects in vision and hearing, including eyeglasses and hearing aids; (2) Dental care, at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health; and (3) Appropriate immunizations. (If it is determined at the time of screening that immunization is needed and appropriate to provide at the time of screening, then immunization must be provided at that time.) Pursuant to 42 C.F.R. § 441.57, it is discretionary with states whether to pay for any other treatment in addition to that specified above: “Under the EPSDT program, the agency may provide for any other medical or remedial care specified in part 440 of this subchapter, even if the agency does not otherwise provide for these services to other recipients or provides for them in a lesser amount, duration, or scope.”2 The federal regulations implementing the EPSDT program thus make no reference to “intensive home-based mental health services” as a category of services for which states must
2While § 441.57 might arguably be read as authorizing states to provide less than § 1396d(r) guarantees, Massachusetts pays for all the categories of services set forth in § 1396d(a) for Medicaid eligible children.
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pay, nor do they require payment for any services in recipients’ homes. To the contrary, the federal regulations expressly contemplate that EPSDT services may not be provided in recipients’ homes, as reflected in their requirement that states to offer the recipient (or her family) assistance with transportation to and from providers. 42 C.F.R. § 441.62, 431.53.
Massachusetts pays for EPSDT services through its Medicaid plan. 130 C.M.R. §§ 450.140-450.149. The Massachusetts EPSDT program pays for both periodic and interperiodic visits to health care providers by recipients. Periodic visits, which take place according to a schedule established by DMA in consultation with the Massachusetts Chapter of the American Academy of Pediatrics, Massachusetts Department of Public Health, dental professionals, the Massachusetts Health Quality Partners, and other organizations concerned with children’s health, are for the purpose of performing exams, assessments, screening, and laboratory work, 130 C.M.R. §§ 450.141, 450.143(B). Interperiodic visits are any visits for screening or treatment in addition to those required by the schedule, 130 C.M.R. §§ 450.141, 450.143(C). Under the Massachusetts program, EPSDT diagnosis and treatment services consist of “all medically necessary services” listed in 42 U.S.C. §§ 1396d(a) and (r) that are “required to correct or improve conditions discovered as a result of a medical screening,” and “reimbursable for MassHealth Standard members under age 21 years, if the service is determined by the Division to be medically necessary.” 130 C.M.R. § 450.144(A). There is no limit to the number of medically necessary interperiodic visits that a recipient may make. 130 C.M.R. § 450.145(C)(1).
ARGUMENT I. PLAINTIFFS’ CLAIMS ARE BARRED BY SOVEREIGN IMMUNITY.
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The Eleventh Amendment to the United States Constitution confirms principles of state sovereign immunity by barring citizens from bringing suits in federal court against their own states. Board of Trustees v. Garrett, 121 S. Ct. 955, 962 (2001); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 669-670 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). This immunity also bars suits in which state officers are the named defendants when “the State is the real, substantial party in interest.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 (1984). The Supreme Court has recognized an exception to Eleventh Amendment immunity for certain suits seeking declaratory and injunctive relief against state officers in their individual capacities designed to remedy ongoing violations of federal law. Idaho v. Coeur D’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997), citing Ex parte Young, 209 U.S. 123 (1908). “Ex parte Young allows a way around the bar to federal jurisdiction erected by the Supreme Court’s Eleventh Amendment jurisprudence only in cases where prospective declaratory or injunctive relief is sought under federal law.” Mills v. State of Maine, 118 F.3d 37, 54 (1st Cir. 1997). This case is barred by the Eleventh Amendment unless it is deemed to be within the Ex parte Young exception.
The Ex parte Young doctrine is premised upon what the Supreme Court has described as a “fiction”: the notion that when a state officer violates federal law, he is stripped of his official character, thus losing the “cloak” of sovereign immunity. Idaho v. Coeur D’Alene Tribe of Idaho, supra, 521 U.S. at 281, 288; Pennhurst, supra, 465 U.S. at 104. While authorizing the use of this “fiction” to permit vindication of federal rights, Pennhurst, supra, 465 U.S. at 105, the Supreme Court has recognized the reality that a state will have a continuing interest in litigation whenever state policies or procedures are at stake, regardless of whether it or its officers are the
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nominal defendants. Idaho v. Coeur D’Alene Tribe of Idaho, supra, 521 U.S. at 269. Acknowledging that “the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States,” the Supreme Court has therefore strictly limited the relief available in a case premised upon the Ex parte Young doctrine. Pennhurst, supra, 465 U.S. at 105-106.
The Pennhurst decision itself establishes two important limitations on the Ex parte Young doctrine: (1) that it is not available to support a claim against state officers for retroactive relief, and (2) that it is likewise inapplicable in a suit against state officers in federal court alleging the violation of state law. Id. at 105-106. In subsequent cases the Supreme Court has imposed other limitations upon use of Ex parte Young. The limitation relevant here involves the available remedial scheme in federal Medicaid law that precludes application of Ex parte Young: “where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.” Seminole Tribe of Florida v. Florida, supra, 517 U.S. at 74.
In the Seminole case, the Supreme Court contrasted the limited remedial provisions available in the event of violations by states of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., with the more complete relief that an Ex parte Young action would afford. The Court noted that IGRA (which provides for negotiation between states and Indian tribes of compacts governing gambling) afforded Indian tribes aggrieved by a state’s failure to negotiate in good faith only a “quite modest set of sanctions,” none of which could ultimately bind the state, and contrasted that limited remedy with “the full remedial powers of a federal court,
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including, presumably, contempt sanctions” that would be available in an action under Ex parte Young. The Court concluded that “the fact that Congress chose to impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter,” and thus Ex parte Young was inapplicable. 517 U.S. at 74-76.
Since Seminole, federal courts have found Ex parte Young claims for injunctive relief under a variety of federal statutes barred by the Eleventh Amendment because those federal statutes provided for relief more limited than would be available in an Ex parte Young action. Joseph A. v. Ingram, 262 F.3d 1113, (10th Cir. 2001) (comprehensive statutory and regulatory provisions governing Titles IV and XX of the Social Security Act establish that Congress meant to preclude reliance on the broad provisions of an Ex parte Young suit to enforce the federal standards governing state child adoption and welfare services); Bragg v. West Virginia Coal Ass’n, 248 F.3d 275, 297 (4th Cir. 2001) (existence of state court remedy enacted in conformity with Surface Mining Control and Reclamation Act made Ex parte Young remedy unnecessary); Bell Atlantic MD, Inc. v. MCI Worldcom, Inc., 240 F.3d 279, 297-298 (4th Cir.), cert. granted in part, 121 S. Ct. 2548 (2001) (limited federal remedy provided by Congress for violations of the Telecommunications Act of 1996 rendered Ex parte Young fiction unavailable); ANR Pipeline Co. v. LaFaver, 150 F.3d 1178, 1191 (10th Cir.), cert. denied, 525 U.S. 1122 (1999) (limited relief available under Tax Injunction Act renders Ex parte Young suit unavailable).
Significantly, in addition to the above illustrative cases, the reasoning of Seminole has been applied to the provisions of federal Medicaid law that govern the EPSDT program and are at issue here, 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r). Westside Mothers v.
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Haveman, 133 F.Supp.2d 549, 574-575 (E.D. Mich. 2001). As required by Seminole, the Court in Westside Mothers examined the remedial scheme prescribed by Congress to permit enforcement against a state of rights created by the Medicaid statute. The Court noted that “the Medicaid statute contains a specific, limited remedy that may be used against non-compliant States: the HHS secretary may withhold funds from those States that she believes are not meeting their contractual responsibilities under the federal-state cooperative agreement,” a remedy “far more limited than that which this court might order under Ex parte Young.” The Court concluded that “the existence of a limited remedy in the Medicaid statute precludes the use of Ex parte Young to enforce the statutory scheme by other means.” 133 F. Supp.2d at 575.
Westside Mothers correctly applied the analysis required under Seminole and other Supreme Court decisions (including Board of Trustees v. Garrett, supra, 121 S. Ct. at 962, Kimel v. Florida Board of Regents, 528 U.S. 62, 72-73 [2000], and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, supra, 527 U.S. at 669-670) which emphasize that the Eleventh Amendment is no dead letter but a fundamental principle of federal constitutional law. The Medicaid statute contains no statutory right of action to force a state to provide benefits, nor do plaintiffs contend to the contrary. Rather, plaintiffs rely upon 42 U.S.C. § 1983 as the procedural vehicle by which to assert their claims (Complaint ¶¶ 6-7). As noted in Westside Mothers, the only remedies the Medicaid statute provides are (1) the withholding of money from a recalcitrant state and (2) fair hearings with the possibility that state law may afford judicial review of hearing results (as does Massachusetts). 133 F. Supp.2d at 554, 575. These remedies are clearly less comprehensive than those that would be available in an Ex parte Young action.
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In short, an Ex parte Young analysis of the Medicaid statute – Westside Mothers, supra – demonstrates that this Court should decline to apply the Ex parte Young exception to the Eleventh Amendment jurisdictional bar. The limited nature of the remedies Congress has chosen to provide for violations of the Medicaid statute means that this case rests squarely within the holding in Seminole – “the fact that Congress chose to impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter,” 517 U.S. at 75-76. Accord: Joseph A. v. Ingram, supra, 262 F.3d at 1122-1123 (provisions of Social Security Act providing for withholding of federal funds from recalcitrant states is a limited remedy that precludes Ex parte Young relief). Since the Ex parte Young exception is inapplicable here, this Court lacks subject matter jurisdiction over plaintiffs’ claims. II. THE EPSDT PROVISIONS OF FEDERAL MEDICAID LAW CREATE NO INDIVIDUAL RIGHTS ENFORCEABLE PURSUANT TO 42 U.S.C. § 1983.
Because the Medicaid statute contains no provision authorizing an action such as this, plaintiffs invoke 42 U.S.C. § 1983 as the procedural vehicle asserting their claim that the EPSDT provisions of federal Medicaid law entitle them to “intensive home-based mental health services.” Complaint ¶¶ 6, 7. However, that plaintiffs rely upon federal law as the basis for their claims does not necessarily mean that they have a cause of action under § 1983. To the contrary, as the Supreme Court held in Blessing v. Freestone, 520 U.S. 329, 340 (1997), “[i]n order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” (emphasis in original)
The first step in determining whether a complaint asserts an enforceable federal right is to break the complaint down into “manageable analytic bites.” Blessing, 520 U.S. at 342. Here,
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while plaintiffs invoke a host of different sections of the Medicaid statute, their claim of entitlement to “intensive home-based mental health services” turns on the three sections that define the EPSDT program and comprise the “support” for their first cause of action: §§ 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r)(5). The Medicaid sections that plaintiffs invoke in their other three causes of action govern only how services must be provided, not what services must be provided. For example, plaintiffs’ second cause of action, which asserts a right to receive “intensive home-based mental health services” with reasonable promptness as purportedly required by 42 U.S.C. §§ 1396a(a)(8), is illusory unless plaintiffs are correct in their assertion that the EPSDT provisions afford them a right to “intensive home-based mental health services” in the first place. Whether plaintiffs in fact have an enforceable right to “intensive home-based mental health services” therefore requires application of the analysis set forth in Blessing to the three EPSDT provisions, §§ 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r).
Under Blessing, three factors determine whether a particular statutory provision gives rise to an enforceable federal right: (1) whether Congress intended that the provision in question benefit the plaintiff; (2) whether the right assertedly protected by the statute is so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute unambiguously imposes a binding obligation on the states. 520 U.S. at 340-341. This Court is familiar with the required analysis. Andrew S. ex rel. Margaret S. v. School Committee, 59 F. Supp.2d 237, 241-246 (D.Mass. 1999) (Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., does not create an enforceable right); National Telecommunication Advisors, Inc. v City of Chicopee, 16 F. Supp.2d 117, 120-121 (D.Mass. 1998) (Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., creates enforceable right). Here, plaintiffs lack an enforceable
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right because their claims fail to satisfy the second and third requirements set forth in Blessing. In a case very similar to this one, another federal district court recently considered
whether rights assertedly created by the EPSDT provisions were sufficiently specific to be enforceable in federal court, as required by the second Blessing factor, and concluded that they were not. Charlie H. v. Whitman, 83 F. Supp.2d 476, 497-499 (D.N.J. 2000).3 Noting that the plaintiffs in that case asserted a right “to receive any and all treatments deemed necessary by a qualified medical professional conducting any of the . . . periodic examinations,” the Court found the asserted right “not unlike the claim examined in Blessing wherein the plaintiffs urged that Title IV-D of the Social Security Act granted them ‘individual rights to all mandated services delivered in substantial compliance with Title IV-D and its implementing regulations.’” Id. It concluded that the asserted right was “too vague and amorphous to lend itself to proper judicial administration,” because “to allow such a right would improperly require this Court to oversee the entire State plan developed pursuant to 42 U.S.C. § 1396a.” Charlie H., 83 F. Supp.2d at 498-499.
Here, the right that plaintiffs assert is protected by the EPSDT provisions is their right to receive “intensive home-based mental health services,” Complaint ¶ 1. That claimed right is even more vague and amorphous than the right asserted in Charlie H., since the plaintiffs’ asserted right apparently includes, for each recipient of services, a squad of care providers standing ready around-the-clock to “support the child in her natural or foster home, and in any
3The Court in Westside Mothers v. Haveman, supra, 133 F. Supp.2d at 575-585, reached the same conclusion following a different analysis.
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other educational, after-school, or treatment setting where the child spends part of her day,” as well as to “assist the child at home, in school, after school, and at other times” with “discrete clinical and other daily living issues.” This amorphous right also purportedly includes “certain other supports to achieve desired outcomes” including “professionally adequate assessments,” “crisis services,” and “case management.” Complaint ¶¶ 49-51. In short, the claim is that the EPSDT provisions guarantee each Medicaid recipient a personal staff ready to handle at home any need the recipient may assert. It is impossible to imagine a more vague and amorphous demand.
Just as in Charlie H., enforcement of the plaintiffs’ envisioned right would require constant judicial intervention – a point plaintiffs explicitly recognize, as reflected in their demand that this Court “monitor compliance with the Court’s injunction and with the requirements of the Medicaid program” for an unstated period (Complaint p. 46, ¶ 3). This case exemplifies the assertion of a right so vague and amorphous that its enforcement would “strain judicial competence” as that term is used in Blessing, 520 U.S. at 340-341. The “right” plaintiffs seek to assert is simply not enforceable under § 1983.
Although there are other federal decisions finding that the EPSDT provisions create enforceable federal rights, those decisions are distinguishable from the plaintiffs’ claims here. Several of them predate the Supreme Court’s decision in Blessing and therefore are not persuasive authority regarding the application of Blessing to the EPSDT provisions. Miller by Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir. 1993) and Wellington v District of Columbia, 851 F. Supp. 1, 5-6 (D.D.C. 1994). Others are distinguishable because the claimed right protected by the EPSDT provisions was neither vague nor amorphous, but concrete and specific.
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Memisovski v. Patla, 2001 W.L. 1249615 (N.D.Ill. 2001) (right to pediatrician visits); Dajour B. v. City of New York, 2001 W.L. 830674 * 10 (S.D.N.Y. 2001) (right to screening and treatment for asthma); Antrican v. Buell, 158 F. Supp.2d 663, 672-673 (E.D.N.C. 2001) (right to dental screening and treatment).
Unlike the rights recognized in Memisovski and the other cases just cited, the plaintiffs’ asserted right to “intensive home-based mental health services” is so vague as to be practically without limits. Enforcement of such a right would require this Court to determine what specific services are medically necessary for every member of the proposed plaintiff class. Oversight by this Court regarding just the nine named plaintiffs -- whose ages range from five to seventeen and whose conditions vary from post traumatic stress disorder as a sequel to physical and sexual abuse, to psychosis, to attention deficit hyperactivity disorder with mild mental retardation – raises a serious question under Blessing. An even more significant “strain on judicial competence” is implicated when this vagueness is multiplied by the proposed plaintiff class, which plaintiffs have not even attempted to number but merely assert is “numerous,” Complaint ¶ 23. In short, under Blessing, plaintiffs’ purported right is not federally enforceable pursuant to § 1983.
Plaintiffs’ asserted right to “intensive home-based mental health services” is also not federally enforceable because the EPSDT provisions do not “unambiguously impose a binding obligation on the States” to provide “intensive home-based mental health services” as required by Blessing, 520 U.S. at 341. To the contrary, federal Medicaid law creates no general category of “intensive home-based mental health services” that are a required element of the EPSDT program.
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As described earlier in this memorandum at pages 11-12, the definition of EPSDT services set forth in 42 U.S.C. § 1396d(r) requires states to provide five categories of EPSDT services: screening, vision, dental, and hearing services, plus a fifth category consisting of “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section 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). The fifth category of EPSDT thus incorporates all twenty seven of the categories of services set forth in 42 U.S.C. § 1396d(a).
“Intensive home-based mental health services” is not one of the five categories of services set forth in § 1396d(r), nor is it one of the twenty seven categories of services set forth in § 1396d(a). Federal regulations implementing the EPSDT program likewise do not require “intensive home-based mental health services,” 42 C.F.R. §§ 441.56(c), 441.57, and they in fact expressly contemplate that such services will generally be provided elsewhere than in the patient’s home, as shown by the provision for transportation assistance to recipients and their families, 42 C.F.R. § 441.62 – assistance that would be unnecessary if, as plaintiffs assert, there were a general presumption in favor of having clinicians and other service providers visit the recipient at home.
In sum, while the Commonwealth pays for an array of mental health services for Medicaid eligible children, it has no duty at all to pay for “intensive home-based mental health services.” Thus, plaintiffs’ claim of an enforceable right to such services under § 1983 fails and the complaint should be dismissed. III. THE COMPLAINT FAILS TO STATE A COGNIZABLE CLAIM UNDER FEDERAL MEDICAID LAW.
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As shown above, both the Eleventh Amendment and the absence of an enforceable federal right under § 1983 should bar plaintiffs from attempting to assert their claim of Medicaid entitlement to “intensive home-based mental health services.” However, even absent those two impediments, either of which provides sufficient ground for dismissing this action as a matter of law, the complaint would still fail to state a claim for relief, for two reasons. First, Medicaid law does not require the Commonwealth to pay for unlimited in-home services as sought by plaintiffs. Second, plaintiffs have not alleged that any services, in-home or otherwise, are medically necessary to them, which is a prerequisite to any claim of entitlement to Medicaid benefits. For both these reasons the complaint fails to state a claim for relief and should be dismissed.
This memorandum has already explained (above at pp. 23-24) that federal Medicaid law creates no general category of “intensive home-based mental health services” as part of the EPSDT program. However, some of the categories of services that are created by federal medicaid law can be provided in recipients’ homes, including physician house calls (§ 1396d[a][5][A]), home health care services (§ 1396d[a][7] and 42 C.F.R. § 440.70[a][1]), private duty nursing services (§ 1396d[a][8] and 42 C.F.R. § 440.80[c][1]), “other diagnostic, screening, preventive, and rehabilitative services,” (§ 1396d[a][13]), and personal care services (§ 1396d[a][24]). While these services are optional under the Medicaid statute, Massachusetts has chosen to pay for them. Plaintiffs invoke several of these provisions in support of their claim of entitlement to unlimited in-home services, and appear to contend that because “other states” unnamed in the complaint allegedly pay for such services without limitation and on a round-theclock basis, the Commonwealth must do so too (Complaint ¶¶ 39, 49-51).
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Contrary to plaintiffs’ claim, Medicaid law confers on the Commonwealth discretion to limit the extent of services for which it will pay. The Supreme Court has expressly held that such discretion is conferred by 42 U.S.C. § 1396a(a)(17), which requires state Medicaid plans to include “reasonable standards” for determining “the extent of medical assistance under the plan” in Beal v. Doe, 432 U.S. 438, 444 (1977). In Beal, the Supreme Court interpreted that language as conferring “broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be ‘reasonable’ and ‘consistent with the objectives’ of the Act.” Id. The Commonwealth, in other words, has broad discretion to determine the extent of the services for which it will pay within the general categories set forth in the Medicaid statute. That interpretation is confirmed 42 U.S.C. § 1396, which provides that the federal government will appropriate money to enable states to furnish medical assistance “as far as practicable under the conditions in such State.” It is also confirmed by federal regulations, which provide that the Commonwealth has discretion to determine the extent of the services for which it will pay and may “place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures,” 42 C.F.R. § 440.230(d).
Plaintiffs’ assertion that the Commonwealth pays for limited in-home mental health services to Medicaid recipient children through Family Stabilization Teams and Community Support Programs rather than the unlimited in-home services that plaintiffs allege are paid for by other, unnamed states (Complaint ¶¶ 49-54) thus states no violation of federal Medicaid law. To the contrary, federal Medicaid law expressly gives the Commonwealth discretion to limit the services for which it will pay. That other states may have made a different choice about the extent of services for which they will pay in no way compels the Commonwealth to march in
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lock-step. To the contrary, Medicaid law expressly contemplates that state Medicaid programs will vary, as different states make different choices about the level of service they can afford, see 42 U.S.C. § 1396 (federal government will appropriate money to assist states in affording medical assistance “as far as practicable under the conditions in such State.”). Plaintiffs’ allegations therefore fail to state a claim for violation of the Medicaid law.
Plaintiffs’ allegations also fail to state a claim for relief on an additional ground as well. One of the limitations that federal law expressly authorizes states to place upon the services for which they will pay is that such services be medically necessary. States are generally required to set up their Medicaid plans so as to “safeguard against unnecessary utilization of such care and services,” 42 U.S.C. § 1396a(a)(30)(A), and to provide for review of the “appropriateness” of care, 42 U.S.C. § 1396a(a)(33), and may limit services based on medical necessity, 42 C.F.R. § 440.230(d). EPSDT services are explicitly limited to those that are medically necessary. 42 C.F.R. § 1396d(r)(1) through (5). Massachusetts EPSDT diagnosis and treatment services are limited to medically necessary services. Mass. G.L. c. 118E § 15; 130 C.M.R. § 450.144(A).
Here, the complaint contains no allegation that any service, including any in-home services, is medically necessary for any of the plaintiffs. Since medical necessity is a prerequisite to any claim of entitlement to Medicaid services under the statutes and regulations just cited, the absence of any such allegation means that plaintiffs simply have no claim of entitlement to any services. On this ground as well, therefore, the complaint should therefore be dismissed for failure to state a claim. IV. DISCLOSURE AND DISCOVERY SHOULD BE STAYED PENDING A DECISION ON THIS MOTION.
The Supreme Court has held that the state sovereign immunity protected by the Eleventh
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Amendment is an immunity from suit rather than a mere defense from liability, “and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Puerto
Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 144 (1993). It has also
held that qualified immunity from suit “includes protection from the burdens of discovery.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Hegarty v. Somerset County, 25 F.3d 17, 18 (1st Cir. 1994). The same should be equally true of Eleventh Amendment immunity, and
for that reason disclosure and discovery in this case should be stayed while defendants’ motion
to dismiss on Eleventh Amendment grounds is pending. See Abril v Commonwealth of Virginia, 145 F.3d 182, 191 (4th Cir. 1998) (no abuse of discretion in denying discovery absent waiver of
Eleventh Amendment immunity).
CONCLUSION
Disclosure and discovery should be stayed pending a decision on defendants’ motion to
dismiss, and the complaint should be dismissed.
Respectfully submitted, THOMAS F. REILLY ATTORNEY GENERAL Attorney for Defendants
_____________________________ Stephanie Lovell, BBO # 546184 Daniel J. Hammond, BBO # 559475 Timothy M. Jones, BBO # 618656 Bart Q. Hollander, BBO # 646661 Deirdre Roney, BBO # 652886 Assistant Attorneys General Government Bureau One Ashburton Place, Room 2019 Boston, MA 02108 (617) 727-2200 Ext. 2093 (Roney)
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December 18, 2001 29

 
 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
310 F.3d 230 (Cite as: 310 F.3d 230)
United States Court of Appeals, First Circuit
ROSIE D., by her parents, JOHN and Debra D., et al., Plaintiffs, Appellees, v.
Jane M. SWIFT, acting Governor, et al., Defendants, Appellants.
No. 02-1604.
Heard Sept. 11, 2002. Decided Nov. 7, 2002.
Medicaid-eligible children brought putative class action against state officials pursuant to § 1983, seeking prospective injunctive relief requiring state to provide class members with home-based mental health services as allegedly required under federal Medicaid laws. Officials moved to dismiss on several grounds, including Eleventh Amendment immunity. The United States District Court for the District of Massachusetts, Michael A. Ponsor, J., denied motion, and officials brought interlocutory appeal. The Court of Appeals, Selya, Circuit Judge, held that Eleventh Amendment did not prevent Medicaid beneficiaries from seeking prospective injunctive relief against state officials in federal court.
Affirmed.
*231 Deirdre Roney, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellants.
Steven J. Schwartz, with whom Cathy E. Costanzo, Center for Public Representation, James C. Burling, Sara J. Shanahan, John S. Rhee, Hale and Dorr, LLP, Frank Laski, and Mental Health Legal Advisors were on brief, for appellees.
Steven A. Hitov and Victoria Pulos on brief for National Health Law Program, National Alliance for the Mentally Ill, National Mental Health Ass'n, National Ass'n of Protection and Advocacy Systems, Mass. Law Reform Institute, Western Mass. Legal Services, and the Judge David L. Bazelon Center for Mental Health Law, amici curiae.
Before SELYA, Circuit Judge, COFFIN and B. FLETCHER, [FN*] Senior Circuit Judges.
FN* Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by designation.
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SELYA, Circuit Judge.
In recent years, the Supreme Court has redefined the calculus of federalism, tilting the scales more and more toward states' rights. This appeal represents an attempt by the named defendants--a complement of Massachusetts officials, including the governor, two cabinet officers, and the Commissioner of the Division of Medical *232 Assistance--to capitalize upon that trend. As we explain below, they seek to push the envelope too far.
We begin with basics. In this class action, the plaintiffs seek prospective injunctive relief to vindicate their view that the federal Medicaid Act requires Massachusetts to provide home-based mental health services to Medicaid-eligible children. The defendants resist the plaintiffs' interpretation of the Medicaid Act. As a preliminary matter, however, they claim that the Eleventh Amendment bars the prosecution of the plaintiffs' action in a federal court (and, thus, obviates any need to address the substantive question).
The district court rejected the defendants' Eleventh Amendment sortie, and the defendants thereupon filed this interlocutory appeal. We affirm the district court's ruling. While recent Supreme Court decisions have made some inroads on the venerable doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), they have not eviscerated that doctrine, and only very narrow exceptions infringe on the well established right to ask for prospective injunctive relief against state officials in a federal forum. Consequently, the Eleventh Amendment does not preclude the maintenance of this action.
I. BACKGROUND
Congress created the Medicaid program, 42 U.S.C. §§ 1396-1396v, in 1965. Over time, it augmented the program's coverage to provide early and periodic screening, diagnosis and treatment (EPSDT) services to Medicaid- eligible children. See id. §§ 1396a(a)(10), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5). Congress intended that these revisions would give children access to preventive health care (e.g., vision, hearing, and dental services), preempt the onset of childhood illness, and identify children with disabilities in need of early attention. See, e.g., H.R.Rep. No. 101-247, at §§ 395-401 (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 2121- 2127; S.Rep. No. 90-744, at § II-G (1967), reprinted in 1967 U.S.C.C.A.N. 2834, 2869-2871. The EPSDT reforms enacted by Congress in 1989 (as part of the Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106) were particularly noteworthy in two pertinent respects. First, Congress obligated participating states to provide a comprehensive package of preventive services that met reasonable standards of medical necessity. 42 U.S.C. §§ 1396a(a)(43), 1396d(r). Second, Congress expanded EPSDT services to include "[s]uch other necessary health care, diagnostic services, treatment, and other measures described [as medical assistance] 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." Id. § 1396d(r)(5). In effect, these amendments required states to provide Medicaid coverage for any service "identified as medically necessary through the EPSDT program." 135 Cong. Rec. S6899, 6900 (daily ed. June 19, 1989) (statement of
2

Sen. Chafee).
The case before us arises out of a dispute over the Commonwealth's obligations under sections 1396a(a)(43) and 1396d(r)(5). The plaintiffs are nine Medicaid-eligible children, acting through their parents or guardians, who seek to compel the Commonwealth to furnish them with home-based mental health services. Although their particular ailments vary, each plaintiff has been diagnosed with a severe psychiatric or behavioral disorder. These debilitating conditions have led to a wide array of unhappy results, including expulsions from schools, cyclical transfers between treating facilities, repeated hospitalizations, *233 and years spent away from family members at crisis stabilization units.
In the plaintiffs' view, the Massachusetts Medicaid program, as presently administered, relies almost exclusively on institution-based psychiatric care. The plaintiffs allege that such a narrowly focused treatment regime cannot rehabilitate (and, indeed, may exacerbate) their conditions; that home-based psychiatric care is medically necessary for effective treatment; that the Commonwealth, notwithstanding its clear statutory obligation to provide such services, has taken no action; and that its lethargy flies in the face of the EPSDT mandates.
To right these perceived wrongs, the plaintiffs invoked 42 U.S.C. § 1983 and brought suit in federal district court. [FN1] They claim to represent thousands of Medicaid-eligible children, resident in Massachusetts, who suffer from similarly severe behavioral, emotional, and psychiatric disorders and who require home-based care. The gravamen of their complaint is that the Medicaid statute entitles the members of the putative class to, and obligates the Commonwealth to provide, intensive home-based mental health services. They further allege that the defendants' persistent denial of such medically necessary treatment has created a "mental health crisis" within Massachusetts. On this basis, they ask the district court to order the defendants to reform the Massachusetts Medicaid program to include the home-based mental health care that the EPSDT provisions allegedly require.
FN1. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983.
The defendants moved to dismiss the action on three grounds. First, they claim that the Commonwealth's sovereign immunity, enshrined in the Eleventh Amendment of the United States Constitution, bars the suit. [FN2] Second, they assert that the EPSDT provisions of the Medicaid Act do not create private rights enforceable under section 1983. Third, they posit that the plaintiffs' complaint fails to state an actionable claim. The plaintiffs opposed this motion and the district court, ruling ore sponte, denied it.
3

FN2. The amendment reads: The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. Despite its phrasing, the amendment consistently has been read to render a state immune from suits brought in federal courts both by its own citizens and by citizens of other states. E.g., Employees of Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Fred v. Aponte Roque, 916 F.2d 37, 38 (1st Cir.1990) (per curiam).
[1][2] The defendants responded by filing this interlocutory appeal. The appeal is proper as to the Eleventh Amendment issue, as pretrial orders granting or denying Eleventh Amendment immunity are immediately appealable. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). We affirm the district court's ruling as it pertains to the issue of Eleventh Amendment immunity. The other facets of the order denying the motion *234 to dismiss are not ripe for review, and we express no opinion as to those issues.
II. ANALYSIS
[3][4] As a general matter, the Eleventh Amendment bars suits in federal courts against unconsenting states (including "official capacity" suits against state hierarchs). De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir.1991) (collecting cases). This proscription is subject to a well recognized exception memorialized in Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441. The exception allows federal courts, "notwithstanding the absence of consent, waiver or evidence of congressional assertion of national hegemony, [to] enjoin state officials to conform future conduct to the requirements of federal law." Lane v. First Nat'l Bank, 871 F.2d 166, 172 n. 5 (1st Cir.1989) (quoting Ramirez v. P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir.1983)).
For nearly a century, the doctrine of Ex parte Young flourished and suits against state officials seeking prospective injunctive relief were commonplace. E.g., Quern v. Jordan, 440 U.S. 332, 346-47, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Ramirez, 715 F.2d at 697; Coalition for Basic Human Needs v. King, 654 F.2d 838, 842 (1st Cir.1981) (per curiam). Lately, however, the Supreme Court has fashioned an exception to the exception, applicable to certain cases in which "Congress has created a remedial scheme for the enforcement of a particular federal right." Seminole Tribe v. Florida, 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Since the plaintiffs here sue only for prospective injunctive relief, and do so under the imprimatur of Ex parte Young, this case requires us to evaluate, for the first time, the extent to which Seminole Tribe has narrowed the Ex parte Young exception.
The litigants sketch the suggested contours of this new limitation in very different ways. The plaintiffs (and the amici) view Seminole Tribe as a rara avis, asserting that it relates only to those few federal statutes that contain comprehensive remedial schemes, and otherwise leaves the doctrine
4

of Ex parte Young alive and well. The defendants contend that the Seminole Tribe constraint applies much more broadly. They tell us that, under Seminole Tribe, the inquiry into the applicability of Ex parte Young in any given case turns upon a comparison between the remedies conferred by the statute governing the dispute and the judicial remedies available under Ex parte Young; whenever the statute provides anodynes that are more limited than those allowed under Ex parte Young, a complainant's redress is restricted to the former (and, accordingly, Ex parte Young becomes a dead letter).
For purposes of analysis, we turn directly to the defendants' argument. The defendants base their assessment of the diminished efficacy of the Ex parte Young exception on their reading of two recent Supreme Court cases. They asseverate that, in Seminole Tribe, the Court examined the remedial provisions created by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721, and asked whether those remedies were more circumscribed than the relief available under Ex parte Young. Seminole Tribe, 517 U.S. at 74- 75, 116 S.Ct. 1114. The defendants also contend that in a subsequent case, Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 122 S.Ct. 1753, 1761, 152 L.Ed.2d 871 (2002), the Court undertook a similar inquiry with respect to the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (codified, as amended, in scattered sections, chiefly in 47 U.S.C. §§ 151- 615). Building on this foundation, the defendants argue that Ex parte Young remains ascendant only when *235 the applicable statute authorizes a set of remedies more far-reaching than prospective injunctive relief.
Clinging to this approach, the defendants visualize the case at hand through the prism of the "fair hearing" requirement of the Medicaid statute, 42 U.S.C. § 1396a(a)(3). That provision, nestled among a long list of requirements imposed on state plans, [FN3] declares tersely that "[a] State plan for medical assistance must ... provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness." According to the defendants, this language supplies a remedy (a fair hearing) more limited than that available under Ex parte Young (prospective injunctive relief), and, thus, precludes the use of Ex parte Young as an instrument for piercing the shield of the Commonwealth's Eleventh Amendment immunity. [FN4]
FN3. One commentator suggests that "Section 1396a is generally regarded to be the longest sentence in the English language." Barry R. Furrow et al., Health Law § 12-1, at 2 n.2 (2d ed.2000).
FN4. We assume, without deciding, that the defendants are correct in their assertion that section 1396a(a)(3) offers remedies that are narrower than the prospective injunctive relief available under Ex parte Young. It is unsettling, however, that the defendants base this assertion in large measure on the regulations that implement the statute--42 C.F.R. §§ 431.200-250--rather than on the statutory text. In both Seminole Tribe and Verizon, the Court looked only at the statutory language, not at any accompanying regulations. That may well be significant, as regulatory language is not invariably a reliable guide to congressional intent.
5

To be sure, recent Supreme Court decisions have redefined Eleventh Amendment jurisprudence in a variety of ways. E.g., Alden v. Maine, 527 U.S. 706, 712-15, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 635-36, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267-70, 281-82, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). We have termed this movement a "sea change" in constitutional doctrine. Jusino Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34, 38 (1st Cir.2000). But even sea changes have limited (albeit significant) effects--and the Supreme Court has not yet signaled a willingness to curtail the Ex parte Young exception as drastically as the defendants suggest.
The fatal flaw in the defendants' argument lies in their misreading of Seminole Tribe. The Supreme Court did not, as the defendants would have it, place primacy on the presence of statutory limitations on remedies. Rather, the Court read the remedial limitations imposed by the IGRA merely as a clue from which to deduce congressional intent. See Seminole Tribe, 517 U.S. at 75-76, 116 S.Ct. 1114 (explaining that Congress's decision "to impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter"). Thus, the nature and scope of the IGRA's remedial scheme was instrumental in the Court's ruling only to the extent that those attributes spoke to congressional intent. And in terms of that intent, the key factors in Seminole Tribe were the intricacy and detail of the statute's remedial scheme. Id. at 74. In other words, it was the comprehensiveness of the remedial scheme that suggested an intention to pretermit Ex parte Young relief. See id.
Perscrutation of the Court's decision in Verizon reinforces this point. The Verizon *236 Court emphasized the centrality of congressional intent, basing its decision on whether "the 1996 [Telecommunications] Act display[ed] any intent to foreclose jurisdiction under Ex parte Young." 535 U.S. at ----, 122 S.Ct. at 1761. The Court's passing mention of limited remedies served only to highlight Congress's apparent motive.
Properly read, Seminole Tribe and Verizon provide clear guideposts as to how lower courts should approach the inquiry into congressional intent. In each instance, the Court placed great emphasis on the detail and intricacy of the underlying statute's remedial scheme as indicators of congressional intent. Following this train of thought, the Seminole Tribe Court concluded that "the intricate procedures set forth in [the IGRA] show that Congress intended therein not only to define, but also to limit significantly, the [available remedies]." 517 U.S. at 74, 116 S.Ct. 1114. The Court similarly keyed the more general proposition on statutory detail: "where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Id. So too Verizon, 535 U.S. at ----, 122 S.Ct. at 1761, in which the Court compared the level of detail and intricacy of the IGRA with the 1996 Telecommunications Act and found the latter insufficient to betoken an intent to foreclose Ex parte Young relief.
[5] The short of it is that, as the defendants suggest, Seminole Tribe and Verizon provide a roadmap
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for testing the continued vitality of the Ex parte Young exception on any given set of facts. But contrary to the defendants' importunings, [FN5] that roadmap directs us to pay particular attention to comprehensiveness, that is, statutory detail and intricacy, as one indication of congressional intent as it pertains to the Ex parte Young exception. Applying this mode of analysis to the case at bar yields a straightforward result.
FN5. We note at this juncture that the defendants' reading of Seminole Tribe is in direct conflict with the Court's statement there that "we do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme." 517 U.S. at 75 n. 17 (emphasis in original).
[6] The Medicaid Act contains no comprehensive set of remedies. The single artifact relied upon by the defendants--the fair hearing provision--does not approach the standard of comprehensiveness required under Seminole Tribe and Verizon as a basis for trumping Ex parte Young. Rather, section 1396a(a)(3) merely guarantees a fair hearing to Medicaid beneficiaries. It neither offers any detail as to how states must conduct such hearings nor erects any ancillary remedial structures. This lies in sharp contrast to the IGRA, 25 U.S.C. § 2710(d)(3), a statute setting forth a web of procedures "prescrib[ing] that a court could issue an order directing the State to negotiate, that it could require the State to submit to mediation, and that it could order that the Secretary of the Interior be notified." Verizon, 535 U.S. at ----, 122 S.Ct. at 1761 (discussing the IGRA). Indeed, the pertinent provisions of the Telecommunications Act, 47 U.S.C. § 252(e)(6), which the Verizon Court found lacking in comprehensiveness (and, thus, inadequate to supplant an Ex parte Young action), 535 U.S. at ----, 122 S.Ct. at 1761, afforded far more intricacy and detail than the Medicaid provision at issue here. Whereas section 252(e)(6) is tailored to apply specific sections of the Telecommunications Act to certain disputes, the Medicaid fair hearing reference is a standardless *237 generality, open to interpretation by the states.
We add, moreover, that even aside from its lack of comprehensiveness, section 1396a(a)(3) offers no intimation of a congressional intent to foreclose other remedies. The provision merely requires states to provide Medicaid beneficiaries with a fair hearing to contest an agency decision (something that the Due Process Clause might require in any case).
For these reasons, we hold that the Eleventh Amendment does not prevent Medicaid beneficiaries from seeking prospective injunctive relief against state officials in a federal court. In so holding, we preserve three decades of case law refusing to construe the Eleventh Amendment to prohibit suits for prospective injunctive relief involving Title XIX of the Social Security Act. E.g., Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 521-22, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (permitting suit against state Medicare intermediaries in connection with hospital reimbursement); Maine v. Thiboutot, 448 U.S. 1, 5- 6, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (permitting suit against officials distributing AFDC payments); Rosado v. Wyman, 397 U.S. 397, 405-06, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) (permitting suit by welfare recipients against state welfare administrators); Visiting Nurse Ass'n of N. Shore, Inc. v. Bullen, 93 F.3d 997, 1002-05 (1st Cir.1996) (permitting suit by health care providers against Medicaid program officials over reimbursement rates); Mass. Ass'n of Older Ams.
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v. Sharp, 700 F.2d 749, 750-52 (1st Cir.1983) (permitting suit by families to prevent termination of Medicaid benefits vis-a-vis stepchildren). That jurisprudence includes several cases holding that the Eleventh Amendment does not bar suits seeking prospective injunctive relief against state actors relative to EPSDT benefits. E.g., Mitchell v. Johnston, 701 F.2d 337, 344 (5th Cir.1983); Stanton v. Bond, 504 F.2d 1246, 1251 (7th Cir.1974). This line of cases seems solidly embedded in constitutional terrain left undisturbed by Seminole Tribe. Reversing these precedents would require a dramatic--and unwarranted--departure from both the common understanding of Ex parte Young and its historic role in administering the Social Security Act. [FN6]
FN6. Although the defendants seek support for such a departure in a recent decision of this court, see Greenless v. Almond, 277 F.3d 601 (1st Cir.2002), that case offers them no succor. There, we dismissed a private claim under the Medicaid statute on the basis of statutory interpretation. Id. at 608-09. We explicitly refrained from ruling on the question of sovereign immunity. Id. at 606-07.
We note, too, that our holding today aligns us with a broad coalition of other courts which, subsequent to Seminole Tribe, have rejected similar arguments aimed at barring suits for prospective injunctive relief commenced by Medicaid beneficiaries against state actors. See, e.g., Frazar v. Gilbert, 300 F.3d 530, 550-51 & n. 109 (5th Cir.2002) (concluding that the Medicaid Act does not possess an intricate remedial scheme regulating noncompliance by states and permitting Ex parte Young action on behalf of Medicaid beneficiaries to secure EPSDT benefits); Mo. Child Care Ass'n v. Cross, 294 F.3d 1034, 1038 (8th Cir.2002) (concluding "that the [Child Welfare Act of 1980, Title IV-E of the Social Security Act] does not reflect any intent to limit Ex parte Young actions"); Antrican v. Odom, 290 F.3d 178, 190 (4th Cir.2002) (holding that "the Medicaid Act does not provide the type of detailed remedial scheme that would supplant an Ex parte Young action"); Westside Mothers v. Haveman, 289 F.3d 852, 862 (6th Cir.2002) (holding that the Medicaid Act provision allowing reduction of *238 funds to noncompliant states "is not a detailed 'remedial' scheme sufficient to show Congress's intent to preempt an action under Ex parte Young "); Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1264 (10th Cir.2002) (explaining that neither the Adoption and Safe Families Act nor the Adoption Assistance and Child Welfare Act "provide remedial schemes sufficient to foreclose Ex parte Young jurisdiction").
III. CONCLUSION
[7] We need go no further. To recapitulate, we conclude that in determining whether a statute's remedial provisions preclude prospective injunctive relief under the doctrine of Ex parte Young, the proper test involves an inquiry into Congress's intent. Here, that inquiry centers on determining whether the remedial scheme is sufficiently comprehensive to indicate that Congress intended to foreclose such relief. The fair hearing requirement set forth in 42 U.S.C. § 1396a(a)(3) falls well short of this benchmark. Consequently, Ex parte Young controls. We conclude, therefore, that the buckler of Eleventh Amendment immunity does not protect state officials from federal court suits for prospective injunctive relief under the Medicaid Act. The plaintiffs thus may proceed with the prosecution of the instant action.
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Affirmed. 310 F.3d 230
9

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS (Western Division)

_____________________________________

)

ROSIE D., et al.,

)

)

Plaintiffs, )

)

v.

)

)

MITT ROMNEY, et al.,

)

)

Defendants. )

_____________________________________)

Civil Action No. 01-30199-MAP

JOINT MOTION TO AMEND PROTECTIVE ORDER

The parties in the above-captioned matter hereby move jointly for an amendment

to the Protective Order dated January 9, 2002 and the Amended Protective Order dated

October 3, 2003, subject to the Supplemental Judicial Findings approved by the Court on

July 30, 2003. A proposed form for the requested amended protective order is attached

as Exhibit A hereto. As grounds for this motion, the parties state as follows:

1. On January 9, 2002, the Court entered the original protective order in this

matter as a means of protecting the privacy and identities of the named plaintiffs and

class members during the course of discovery and trial. The plaintiffs and members of

the class are children with behavioral health disorders who are Medicaid recipients. As

amended on October 3, 2003, the order also protects these individuals’ families.

2. On November 14, 2003, the Court (Neiman, U.S.M.J.) ordered the

defendants to respond to certain interrogatories propounded by the plaintiffs. Those

interrogatories called for the production of information on behalf five health maintenance

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or managed care organizations (“MCOs”) that contract with the defendants to provide behavioral health services to the named plaintiffs and the class. Among other things, the interrogatories called for the production of rate and cost information from the MCOs. The MCOs consider this rate and cost information to be proprietary commercial information and requested that the existing protective order be amended to protect unnecessary public disclosure of this rate information.
3. In response to the MCOs’ request, the parties negotiated the form of amended protective order attached hereto as Exhibit A, which is narrowly tailored to meet the concerns of the MCOs but avoid unnecessary restriction of non-proprietary information produced by the MCOs.
WHEREFORE, the parties respectfully request that the Court enter an amended protective order in the form of Exhibit A attached hereto.

The State Officials, By their Attorney,
THOMAS F. REILLY ATTORNEY GENERAL
Adam Simms (BBO #632617) Assistant Attorney General Gvoernment Bureau One Ashburton Place – Room 2019 Boston, Massachusetts 02108 *617) 727-2200, Ext. 2052

Rosie D., et al., By their attorneys,
__________________________________ James C. Burling (BBO#065960) James W. Prendergast (BBO#553073) John S. Rhee (BBO#650139) Hale and Dorr, LLP 60 State Street Boston, MA 02109 (617) 526-6000
Steven J. Schwartz (BBO#448440) Cathy E. Costanzo (BBO#553813) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

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Dated: December __, 2003

Frank Laski (BBO#287560) Mental Health Legal Advisors Committee 294 Washington Street Boston, MA 01208 (617) 338-2345

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS WESTERN SECTION

EXHIBIT 1

ROSIE D., et al., Plaintiffs
v. MITT ROMNEY, et al.,
Defendants

Civil Action No. 01-30199-MAP

(Proposed ) AMENDED PROTECTIVE ORDER After due consideration of the request by the parties and third-party managed care organizations (“MCOs”), from whom materials are being produced by the defendants in this matter, for a protective order to govern the disclosure and access to confidential documents as well as the treatment and maintenance of confidential documents by any party or third party, the Protective Order dated January 9, 2002 and the Amended Protective Order dated October 3, 2003 are hereby amended and it is hereby Ordered and Adjudged, subject to the Supplemental Judicial Findings approved by the Court on July 30, 2003: 1. The following documents and information shall be deemed "Confidential Information" and be governed by this Protective Order: all documents and records which include the full actual names (but not initials) and all photographs and videotapes which depict the faces of the individual plaintiffs, members of the plaintiff class, their families,

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or any non-class member, or other personally-identifiable information about the plaintiffs, class members, their family members, or non-class members.
2. In all pleadings filed with the Court, the parties will refer to the plaintiffs and the parents or guardians of the plaintiffs, by their first name and last initial. The parties shall ensure that only the first name and last initial of any plaintiff, or parent or guardian of a plaintiff, are readable in any document filed with the Court. Separate provision may be made for lengthy documents submitted in an evidentiary hearing.
3. Subject to the rules of evidence, the terms and conditions of this protective order, and any other orders of the Court, “Confidential Information” may be used in a pleading, filing, hearing, trial, or other proceeding in the matter of Rosie D. et al. v. Romney, et al., C.A. No. 0130199-MAP, without being sealed. However, the party who produced the Confidential Information may at the time of such proposed submission request that the material be sealed by the Court. The person, who is the subject of such confidential material, or that person's legal guardian, may authorize its use for any other purpose. Any Confidential Information used in any court document or proceeding shall not lose its confidential status through such use, unless the Court orders otherwise.
4. Rate information contained in documents or other materials produced by a MCO via the defendants that have been marked or may be marked as “Highly Confidential” by the producing party shall be deemed hereunder as “Proprietary Information.” Non-rate information contained in such documents and materials shall not be deemed to be Proprietary Information.

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5. Subject to the rules of evidence, this protective order, and any other orders of the Court, the parties shall use Proprietary Information in potentially public proceedings and filings only as follows:
(a) Proprietary Information may not be used in a pleading, filing, hearing, trial, or other proceeding in the matter of Rosie D. et al. v. Romney, et al., C.A. No. 0130199-MAP, without providing the producing party with seven business days written notice, by both facsimile and electronic means to the identified counsel of the producing party, of such intended use.
(b) The producing party shall then have two business days to request in writing that the notifying party submit such Proprietary Information only under seal.
(c) If the notifying party does not agree within 2 business days to submit such information under seal, the producing party shall be entitled to petition the Court for an order that such materials be sealed.
(d) While any petition to the Court for such an order is pending, any Proprietary Information that would be subject to such an order shall not be used in any fashion that would identify the MCO providing such information and, if to be contained in a document to be filed publicly, such information shall be redacted from any such document.
6. All Confidential Information and Proprietary Information shall be controlled and maintained in a manner that precludes access by any person not entitled to access under this Order. Confidential Information and Proprietary Information shall be disclosed only to the following persons:

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(a) counsel, including paralegal, investigative, secretarial, and clerical personnel who are engaged in assisting such counsel in the above-entitled action;
(b) any independent outside expert or consultant, and employees and assistants under the control of such an expert or consultant, who is engaged by counsel in this litigation, whether or not such expert is paid directly by a party;
(c) any employee of a party who is requested by counsel for such party to work directly on the above-entitled action;
(d) any deposition or trial witness; (e) any person who authored or received the particular confidential material
sought to be disclosed to that person; (f) any court or other reporter or typist recording or transcribing testimony; (g) the Court; or (h) managed care organizations or other MassHealth contractors that maintain
records concerning members of the proposed plaintiff class, including the Massachusetts Behavioral Health Partnership and its employees, and other MassHealth-contracted managed care organizations and their employees, except that Proprietary Information shall not be disclosed to such persons. Confidential Information and Proprietary Information shall not be disclosed to persons described in paragraphs 5(b), (c), (d), or (h) until such persons have been provided with a copy of this Order and have agreed to abide by and comply with the terms and provisions therein. Such agreement shall be in writing with respect to any Proprietary Information.

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Should such person not agree to these conditions, the producing party and the party seeking to use such information may agree to an alternative method for preserving the confidential or proprietary nature of such information or may petition the court for an alternative method of protection.
7. This Order shall not prevent a party from applying to the Court for relief therefrom, or from applying to the Court for further or additional protective orders, or from agreeing to modification of this Order.
8. Upon conclusion of the above-entitled action, the provisions of this Order shall continue to be binding, and all Proprietary Information shall be returned to the MCO producing such information or destroyed in an appropriate manner with a certification to that effect to be provided to the MCO. This Order shall remain in force and effect until modified, superseded, or terminated by consent of the parties or by Order of this Court.

By the Court:

Dated: December __, 2003

___________________________

BOSTON 1807675v1

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CERTIFICATE OF SERVICE I hereby certify that a true copy of the above d Joint Motion to Amend Protective Order was served upon all counsel of record by first-class mail on December ___, 2003.
_______________________

BOSTON 1807675v1

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 Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
I. Introduction and Principles
This document presents the Commonwealth’s Remedial Plan (the Plan) to address the needed programmatic and operational improvements required by the Court’s January 26, 2006 Memorandum of Decision. It describes how the Commonwealth will meet its obligations under the Early and Periodic Screening, Diagnostic, and Treatment services (EPSDT) and reasonable promptness provisions of the federal Medicaid Act, as they pertain to the class of children eligible for EPSDT with serious emotional disturbance (SED).1 In particular, the Plan recognizes and provides for medically necessary comprehensive assessments, service coordination, and in-home supports for children with SED.
The actions proposed in this Plan will be taken as the result of the Court’s January 26, 2006 ruling against the Commonwealth on liability. While defendants appreciate having been given the opportunity to propose a remedy to cure the deficiencies found by the Court, the actions proposed herein are compelled by the Court’s adverse ruling on liability rather than voluntary. Defendants’ proposal of this Plan is not an expression of consent to this Plan, and this plan is not a consent decree, settlement agreement, or other contractually negotiated agreement. Defendants respectfully request an opportunity to submit a proposed form of judgment consistent with this Plan.
Fundamentally, the goal of this Plan is to assure that the Commonwealth’s Medicaid Program (MassHealth) pays for medical services that fall within the scope of medical assistance as defined in federal law and that are medically necessary services for individual members of the class. The Plan describes the efforts the Commonwealth will make to establish or strengthen processes by which children with SED are screened, assessed, and appropriately referred to a network of service providers that will provide intensive care coordination and intensive home-based services, where those services are medically necessary. The Plan also recognizes that many MassHealth-eligible children with SED are served by state and local health, human services, and education agencies in addition to MassHealth. In particular, the constituent agencies of the Executive Office of Health and Human Services (EOHHS) that provide services to children with SED have independent state and federal responsibilities and mandates, which should be provided in a manner that is coordinated with MassHealth services. The Plan also recognizes the importance of family and community involvement in the appropriate treatment of children with SED, and ensures that responsible family members or other caretakers will be involved in the service planning and care coordination process.
1 Depending on applicable eligibility criteria, MassHealth Members are determined eligible for one of seven different benefit plans or “coverage types” including: MassHealth Standard, CommonHealth, Family Assistance, Basic, Essential, Prenatal, and Limited. MassHealth Standard and CommonHealth Members are eligible for EPSDT. See MassHealth Special Terms and Conditions, MassHealth Medicaid Section 1115 Demonstration Waiver (11-W-00030/1) Attachment D —§§ 3.1.1.2 and 3.1.4.2.

Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal Under this Plan, MassHealth will make improvements to methods of notifying Medicaid Members, Medicaid providers, child-serving agencies, and other interested parties of the availability of behavioral health services, including remedy-related services and behavioral health screenings in primary care settings (Section II). The Plan ensures that EPSDT services include a standardized clinical assessment process for eligible children who may need behavioral health services, and describes the method for connecting those assessments to a treatment planning process (Section III). The Plan provides a detailed description of intensive care coordination and an individualized planning team for children with intensive needs (Section IV). The Plan describes the remedy-related services that MassHealth will cover when medically necessary (Section V). Finally, the Plan describes a systematic approach to the execution of the program improvements described in this proposal, including a defined scheme for monitoring success (Section VI). Appendix A is a visual representation of the programmatic aspects of the Plan and demonstrates the progress of a child through the Medicaid primary care and behavioral health care system. Appendices B and C provide further information regarding the legal authority of other child-serving EOHHS agencies with respect to Medicaid-eligible children.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
II. Informing Families, Providers, and Others of EPSDT Services for SED Children -- Education and Outreach and Screening
A. Education and Outreach
The Plan recognizes that effective informing of families about the availability of EPSDT services for SED children (as for all EPSDT-eligible children) begins as soon as a Member is enrolled in MassHealth. This section of the Plan describes proactive efforts to inform MassHealth enrollees and their families about the availability of EPSDT services, particularly focused on the needs of children with SED, and about the enhanced availability of screening, intensive care coordination, and services.
The Commonwealth will take steps to ensure that the program improvements described in this Plan are publicized to providers, eligible Medicaid Members (including newly eligible Medicaid Members), and the general public. As part of this effort, Defendants will prepare materials listed below for public distribution describing those improvements. Defendants will also provide intensive training to MassHealth customer service representatives, including updating scripts used by such representatives to facilitate timely and accurate responses to inquiries about the program improvements described in this Plan.
1. MassHealth Members
For purposes of educating MassHealth Members about the program improvements described in the Plan, the Commonwealth will actively communicate with Members. Defendants will take the following actions to educate Members about these program improvements:
1) Updating and distributing EPSDT notices to specifically refer to the availability of behavioral health screening and services and to describe other program improvements set forth in this Plan.
2) Updating and distributing Member education materials, including Member handbooks created by MassHealth and MassHealth’s contracted managed care entities to include description of these improvements, and how to access behavioral health screenings and services including home based services. Defendants anticipate that these updated materials will be distributed to Members in the normal course of communications with Members.
3) Amending Member regulations, as necessary, to describe new services and other program improvements.
4) Participating in public programs, panels, and meetings with public agencies and with private advocacy organizations, such as PAL, the Federation for Parents of Children with Special Needs and others, whose membership includes Medicaideligible children and families.2
2. Medicaid Providers
2 See 42 C.F.R. § 441.45; Medicaid Manual, §5121.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
For purposes of educating providers about the program improvements described in the Plan, the Plan provides for communicating these improvements by amending provider regulations, as necessary, and by drafting and distributing provider bulletins, other updates, and provider education materials. The Defendants will take the following actions to educate providers about these program improvements:
1) Updating EPSDT regulations to reflect the program improvements described in this Plan.
2) Updating Appendix W of the MassHealth Provider Manual, which describes medical protocols and periodicity schedules for EPSDT services, to reflect the program improvements described in this Plan.
3) Drafting and distributing special provider communications related to the program improvements described in this Plan, including how to assist Members to access home-based services.
4) Updating and distributing existing provider education materials to reflect the program improvements described in this Plan.
5) Expanding distribution points of existing materials regarding EPSDT generally, including the program improvements described in this Plan.
6) Implementing any other operational changes required to implement the program improvements described in this Plan.
7) Holding special forums for providers to encourage clinical performance activities consistent with the principles and goals of the Plan.
8) Amending MassHealth’s managed care contracts to assure that all such entities educate the providers in their network about the program improvements described in the Plan as described in paragraphs 1-7 above.
9) Coordinating these efforts with the “Virtual Gateway,” which is the EOHHS system for web-based, on-line access to programs, including MassHealth and related benefit programs such as food stamps, and which allows a wide array of hospitals, community health centers, health and human services providers, and other entities to assist children and families in enrolling in MassHealth.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
3. Child-Serving Agencies, the Executive and Legislature; Public Education and Outreach
To improve public information about the program improvements described in this Plan, the Plan will also be presented to public and private agencies that serve children and families, as follows:
1) Presenting the Plan to appropriate officials in the Executive Branch and the Legislature.
2) Creating new pamphlets, informational booklets, fact sheets, and other outreach materials describing these improvements.
3) Developing and implementing training programs for line staff at the Departments of Mental Health, Social Services, Youth Services, Mental Retardation, Transitional Assistance, and the Office for Refugees and Immigrants on how to access MassHealth Services for children with SED.
4) Distributing outreach materials in primary care settings, community health centers, and community mental health centers and posting electronic materials on the EOHHS Virtual Gateway that are designed to provide information to MassHealth Members and to public and private agencies that come in contact with or serve children with SED or their families.
5) Working with the Department of Early Education and Care to educate preschools, childcare centers and Head Start Programs on how to access MassHealth services for children with SED.
6) Working with the Department of Education, the Department of Public Health and Public School Districts to educate school nurses and other school personnel on how to access MassHealth services for children with SED.
B. Screening for Behavioral Health
MassHealth is required to cover EPSDT screenings for eligible children, which include a comprehensive health and developmental history, a comprehensive unclothed physical exam, immunizations, laboratory tests and health education.3 The purpose of the screenings is to identify the need for further corrective treatment including “necessary health care, diagnostic services, treatment and other measures described in [42 U.S.C. § 1396d(a) of the Medicaid Act] … needed to correct or ameliorate defects and physical and mental illnesses and conditions ….”4 MassHealth relies principally on the primary care system to identify children -- through periodic and medically necessary interperiodic screening -- who are in need of further diagnosis and treatment with respect to all their various health needs, including children with SED who need behavioral health services. Emphasizing primary care settings for EPSDT screenings assures that appropriate clinical judgment is used to evaluate the screening results and that all the child’s medical and behavioral needs are identified and addressed, and allows MassHealth to better track and monitor screenings. At the same time, MassHealth allows “open” access to all behavioral
3 See 42 U.S.C. §1396d(r)(1). 4 Medicaid Manual, §5122; 42 U.S.C. §§ 1396d(r)(1)(B) and (5); 42 U.S.C. § 1396a(a)(43); 42 U.S.C. §1396d(r)(B).
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
health services. MassHealth does not require Members to obtain an EPSDT screening as a prerequisite to accessing medically necessary behavioral health services.
The goal of improving EPSDT behavioral health screening is to increase the likelihood that administered screenings identify children in need of behavioral health services. Therefore, the Plan requires that primary care providers select from a menu of standardized behavioral health screening tools. The menu of standardized tools will include, but not be limited to, the Pediatric Symptom Checklist (PSC) and the Parents’ Evaluation of Developmental Status (PEDS)5. Where additional screening tools may be needed, for instance to screen for autistic conditions, depression or substance abuse, it is MassHealth’s expectation that primary care providers will use their best clinical judgment to determine which of the approved tools are appropriate for use.
MassHealth’s provider agreements with Primary Care Clinicians (PCCs) expressly require PCCs to provide periodic and inter-periodic EPSDT screens. MassHealth’s managed care organization (MCO) contracts also require the MCOs to impose this requirement on their primary care physicians. Under this Plan, the Defendants will amend MassHealth provider regulations to clarify that this existing requirement applies to all primary care providers, whether they are paid through the managed care or the fee-forservice system. There will be a renewed emphasis on screening, combined with on-going training opportunities for providers and quality improvement initiatives directed at informing primary care providers about the most effective use of approved screening tools, how to evaluate behavioral health information gathered in the screening, and most particularly how and where to make referrals for follow-up behavioral health clinical assessment 6. Additional quality improvement initiatives will include improved tracking of delivered screenings, and of utilization of services delivered by pediatricians or other medical providers or behavioral health providers following a screening; and using data collected to help improve delivery of EPSDT screening, including assuring that providers offer behavioral health screenings according to the State’s periodicity schedule and more often as requested (described in Section VI).
5 See Medicaid Manual, §5123.2.b (No list of specified tests and instruments is prescribed for identifying developmental problems because of the large number of such instruments, development of new approaches, the number of children and the complexity of developmental problems which occur, and to avoid any connotation that only certain tests or instruments satisfy Federal requirements.) 6 In this regard, it is important to note that the Medicaid Manual cautions against labeling or premature diagnosis of a child. “Providers should report only that a condition was referred or that a type of diagnosis or treatment service is needed.” Medicaid Manual, §5123.2.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal C. Identification of Behavioral Health Needs – The Role of Other EOHHS Agencies, and other Public and Private Agencies
Even with an effective plan for screening EPSDT-eligible children for behavioral health needs through primary care, the Plan recognizes and addresses the need for multiple “entry points” for MassHealth behavioral health services. MassHealth-eligible children with SED come in contact with other EOHHS agencies, state agencies, public schools, community health centers, hospitals and community mental health providers. These contacts may be the first event that leads a child to be identified as being in need of mental health care. For this reason, a primary care visit or EPSDT screening is not a prerequisite for an eligible child to receive MassHealth behavioral health services. MassHealth-eligible children and eligible family members can be referred for Medicaid services by these other entities at any time. While families play the central role in identifying and requesting Medicaid services for their children, state and local agencies and providers are partners, working with families to assist eligible children to gain access to needed services.
For this reason, the Plan provides for information, outreach and training activities, focused on these agencies and providers. In addition, EOHHS will develop and distribute written guidance that establishes protocols for referrals for behavioral health EPSDT screenings, assessments, and services, including home-based services, and will work with EOHHS agencies and other providers to enhance the capacity of their staff to connect children with SED and their families to behavioral health EPSDT screenings, assessments and medically necessary services.
This is particularly important in those instances when EOHHS agencies assume responsibility for the care or custody of children. Appendix B sets out in detail the legal authorities and roles of the Departments of Social Services, Youth Services, Mental Health, and Mental Retardation with respect to referrals, describes the manner in which they work with families on medical decision-making, and identifies those situations where an agency providing substitute care may make medical decisions in the best interests of a child.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
III. Assessment and Diagnosis
The Plan seeks to improve the consistency and quality of clinical assessments that are provided to eligible children with SED, recognizing that comprehensive assessment is crucial to appropriate treatment. Under this Plan, the Defendants will require a clinical behavioral health assessment in the circumstances described below by licensed clinicians and other appropriately trained and credentialed professionals. In addition to the clinical assessment, the standardized clinical information collection tool known as the Child and Adolescent Needs and Strengths (CANS) will be used as an information integration and decision support tool which can be used by clinicians and other staff in collaboration with families to help identify and assess a child’s behavioral health needs. Information obtained through the CANS process provides a profile of the child which is used in conjunction with the clinical judgment and expertise of the trained clinician to inform treatment planning and to ensure that treatment addresses identified needs.
A. The Assessment Process
1) In most instances, the assessment process will be initiated when a child presents for treatment to a MassHealth behavioral health clinician following a referral by the child’s primary care physician based on the results of a behavioral health screening. However, there are other ways for children to be referred for mental health services. A parent may make a request for mental health services and assessment directly to a MassHealth-enrolled mental health provider, with or without a referral. A child may also be referred for assessment and services by a provider, a state agency, or a school that comes into contact with a child and identifies a potential behavioral health need.
2) Assessment typically commences with a clinical intake process. As noted, Defendants will require MassHealth providers to use the CANS as a standardized tool to organize information gathered during the assessment process. Defendants will require trained MassHealth behavioral health providers to offer a clinical assessment to each child who appears for treatment, including a diagnostic evaluation from a licensed clinician.
3) The assessment process leads to a clinical diagnosis and the commencement of treatment planning. During the assessment process, medically necessary services are available to the child, including, but not limited to, crisis services and shortterm home based services, pending completion of the assessment and the development of the treatment plan.
4) As described in more detail in Section IV below, the Plan envisions that, upon referral to the intensive care coordination process, an intensive, home-based assessment and treatment planning process will take place, organized by a care manager and with the involvement of the child’s family and other community supports. Because the intensive care coordination process is a linchpin of the
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Plan, the Plan specifically enumerates the clinical eligibility standards for accessing intensive care coordination.7
The Plan’s emphasis on consistent assessment procedures is intended to ensure the consistent identification of children with SED who may suffer from a chronic disabling condition and a complex set of problems that require coordination among service providers to assure effective treatment. Defendants also recognize that members in certain settings may be more likely to need intensive services. For this reason, the assessment process described here, including the use of the CANS where appropriate, and in all cases designed to assess a child’s need for the services described in this Plan, will be required as part of discharge planning for children who have been identified as having behavioral health problems who are being discharged from acute inpatient hospitals, community based acute treatment settings (CBATS), from Department of Mental Health (DMH) intensive residential settings, and DMH continuing care programs, with the goal of identifying children for whom intensive care coordination services may be appropriate. For those identified children, a referral for those services will be a component of a discharge treatment plan.
B. Clinical Criteria for Intensive Care Coordination
The Plan establishes clinical criteria that will serve as a guide to determine whether referral to intensive care coordination is medically necessary for the child. The clinical criteria are intended to assure that this remedial Plan is appropriately focused on children who are diagnosed with serious emotional disturbance that is causing substantial functional impairment whose condition is, or is at risk of becoming, chronic.
1) Presence of a DSM IV Diagnosis: Individuals who currently have or at any time during the past year have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria specified within the Axis 1 of the DSM IV, other than “V” codes, substance abuse disorders, or developmental disorders (including mental retardation) which are excluded unless they co-occur with another diagnosable serious emotional disturbance, and
2) Functional Impairment: The disorder directly results in functional impairment that substantially interferes with the child’s role or functioning, as described below, and
3) Duration: The duration of the disability is expected to persist for a year or longer, and
4) Appropriate Level of Intervention: As determined by the clinical assessment, less intensive levels of intervention, such as outpatient treatment, or more intensive levels of intervention, such as inpatient treatment, are inappropriate to address the child’s behavioral health needs.
7 Some System of Care models, and the Plaintiffs’ proposal, envision first a preliminary assessment, followed by a second comprehensive assessment for home-based services in advance of determining eligibility for care management.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal In this context, Functional Impairment describes difficulties that substantially interfere with the child’s role or functioning. Children who would have met functional impairment criteria, but for the fact that they were already receiving intensive treatment or support services, are included in this definition. Functional impairments of episodic, recurrent, or continuous duration are included unless they are temporary and expected responses to stressful events in the environment. Functional Impairment must be present in at least two of the following three environments: 1) Family; 2) School; and 3) Community. The Functional Impairment must also be present in at least one of the following capacities: 1) Self care. Impairment in self care is manifested by a person’s consistent inability to take age appropriate care of personal grooming, hygiene, clothes and/or meeting of nutritional needs. 2) Interpersonal relationships. Impairment in interpersonal relationships is manifested by the consistent inability to develop and maintain satisfactory relationships with family, peers, and other adults. 3) Learning. Impairment in learning is manifested by the consistent inability to achieve academic and social educational goals in an expected timeframe despite appropriate instructional strategies or support services.
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IV. Intensive Care Coordination and Treatment Planning
Children who qualify for Intensive Care Coordination, based on the criteria set forth in Section III, will have the option of having services coordinated through a Care Manager. The Intensive Care Coordination service and process is described in detail in this section. The Care Manager will be responsible for coordinating the care planning process and for facilitating the child-centered, family focused care planning team.
A. The Care Manager
The role of the Care Manager is to coordinate multiple services that are delivered in a therapeutic manner, allowing the child to receive services in accordance with his or her changing needs. Additionally, the Care Manager is responsible for promoting integrated services, with links between child-serving agencies and programs and mechanisms for planning, developing, and coordinating services.
The basic responsibilities of Care Managers are: (1) assisting in the identification of other members of the care planning team; (2) facilitating the care planning team in identifying the strengths of the child and family, as well as any community supports and other resources; (3) convening, coordinating, and communicating with the care planning team; (4) working directly with the child and family; (5) collecting background information and plans from other agencies, subject to the need to obtained informed consent; (6) preparing, monitoring, and modifying the individualized care plan in concert with the care planning team; (7) coordinating the delivery of available services; (8) collaborating with other caregivers on the child and family’s behalf; and (9) facilitating transition planning, including planning for aftercare or alternative supports when in-home support services are no longer needed.
The Care Manager will either be a licensed mental health professional or will provide care management under the supervision of a licensed mental health professional. S/he will be trained in the “wraparound” process for providing care within a System of Care. The “wraparound process” refers to a planning process involving the child and family that results in a unique set of community services and natural supports individualized for that child to achieve a positive set of outcomes. The System of Care is a cross-system coordinated network of services and supports organized to address the complex and changing needs of the child. This process will be consistent with the principles and values of the Child-Adolescent Services System Program (CASSP) which encourages care provision to be strength based, individualized, child centered, family focused, community based, multi-system, and culturally competent.
B. The Care Planning Team
The care planning team will be family-centered and include a variety of interested persons and entities, as appropriate, such as family members (defined as any biological, kinship, foster and/or adoptive family member responsible for the care of the child),
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providers, case managers from other state agencies when a child has such involvement, and natural supports such as neighbors, friends, and clergy.
The care planning team will use multiple tools, including a CANS standardized instrument, in conjunction with a comprehensive psychosocial assessment, as well as other clinical diagnosis, to organize and guide the development of an individualized plan of care that most effectively meets the child’s needs. This plan of care will be reviewed periodically and will be updated, as needed, to reflect the changing needs of the child. As part of this process, further assessments, including re-assessments using the CANS or other tools, may be conducted so that the changing needs of the child can be identified.
The care planning team will exercise the authority to identify and arrange for all medically-necessary services needed by the eligible child with SED, consistent with the overall authority of MassHealth to establish reasonable medical necessity criteria, set reasonable standards for prior authorization, and conduct other utilization management activities authorized under the Medicaid Act8, and the obligation of all direct service providers to assure that the services they deliver are medically necessary.
C. Individualized Care Plan
The findings of the care planning team will be used to guide the treatment planning process. The individualized care plan is the primary coordinating tool for therapeutic interventions and service planning. The care planning team, facilitated by the Care Manager, will be responsible for developing and updating, as needed, the individualized care plan that supports the strengths, needs and goals of the child and family and incorporating information collected through initial and subsequent assessment. The individualized care plan will also include transition or discharge plans specific to the child’s needs.
The care and treatment planning process will be undertaken pursuant to guidelines and standards developed by EOHHS, which will ensure that the process is methodologically consistent and appropriately individualized to meet the needs of the child and family. EOHHS, in consultation with DMH, will develop an operational manual that includes these guidelines and standards for the use of the care planning teams.
Each individualized care plan will: (1) describe the child’s strengths and needs; (2) propose treatment goals, objectives, and timetables for achieving these objectives, including moving to less intensive levels of services; (3) set forth the specific services that will be provided to the child, including the frequency and intensity of each service; (4) incorporate the child and family’s crisis plan; and (5) identify the providers of services.
8 See 42 U.S.C. §1396a(a)(30)(A); 42 C.F.R. § 440.230; Medicaid Manual, § 5123. See also 130 C.M.R. § 450.204.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal Individualized care plans will be reviewed as needed, but at least monthly by the Care Manager and quarterly by the care planning team. In addition, such review will be undertaken when there is a change in another EOHHS agency’s plan for the child. D. Intensive Care Coordination for Children with Multiple EOHHS Agency Involvement The Plan recognizes that intensive care coordination services are particularly critical for children who are receiving services from EOHHS agencies in addition to MassHealth. In order to assure the success of the care planning team process and the individualized care plan for a child with multiple agency involvement, EOHHS will ensure a representative of each such EOHHS agency will be a part of the child’s care planning team. Operating pursuant to protocols developed by EOHHS, EOHHS agency representatives will coordinate any agency-specific planning process or the content of an agency-specific treatment plan as members of the care planning team.9 EOHHS will develop a conflict resolution process for resolving disagreements amongst members of the team.
9 All EOHHS agencies will retain authority to determine eligibility for agency services, including eligibility for participation in special agency programs or collaborations and to determine the amount, frequency and duration of non-Medicaid services provided by the agency. Appendix C is a list of circumstances in which the Departments of Social Services and Youth Services retain sole and exclusive authority. The list is not intended to inhibit the centrality or the decision-making authority of the care planning team, but rather to ensure that all members of the team are clearly informed about the decisions over which certain state agencies, based on their mission and statutory obligations, must exercise control.
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V. Covered Services
A. In General
The Plan recognizes that Medicaid-eligible children with SED are entitled only to those medically-necessary services “. . . to correct or ameliorate …. physical or mental illnesses or conditions,” for which federal financial participation (FFP) is available under 42 U.S.C. § 1396d(a). This section provides service descriptions in two general categories of services that will be offered under the Plan, subject to the availability of FFP under Section 1396d(a). This list of covered services is not intended to be a comprehensive description of all the services that will be available to MassHealth-eligible children once the Plan is implemented. Rather, the list is an elaboration of two service categories, crisis management and home and community-based services, which the Court found were insufficient and which Defendants intend to cover for children with SED when the services are medically necessary. The components of two other service categories, clinical assessments and intensive care coordination, and the processes through which those services are covered, are outlined in Section III and IV above.
Because of uncertainty about whether certain of the proposed covered services fall outside the scope of Section 1396d(a), Defendants will submit a list of proposed covered services to the CMS for its review. More detailed service descriptions will be developed later to assist in establishing billing codes, procedures and rates, and may be necessary or advisable for the process of seeking CMS approval of these services. EOHHS and DMH will collaborate with interested stakeholders (including clinical experts, child and family advocates, and managed care partners) in the development of clinical criteria for each of the covered services below. Pending the results of that process, the following covered services are expected to be provided to children with SED under this Plan, but this depends on the availability of FFP and all required federal approvals.
B. Crisis Management
The components of this service category will include Mobile Crisis Intervention and Crisis Stabilization:
Mobile Crisis Intervention
A mobile, on-site, face-to-face therapeutic response to a child experiencing a mental health crisis for the purpose of identifying, assessing, treating, and stabilizing the situation in community settings (including the child’s home) and reducing the immediate risk of danger to the child or others. Mobile crisis services may be provided by a single professional crisis worker or by a team of professionals trained in crisis intervention. Services are available 24-hours a day, seven days a week. Phone contact and consultation may be provided as part of the intervention. Providers are qualified,
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licensed clinicians or, in limited circumstances, qualified paraprofessionals supervised by qualified, licensed clinicians. 10
Crisis Stabilization
Services designed to prevent or ameliorate a crisis that may otherwise result in a child being hospitalized or placed outside the home as a result of the acuity of the child’s mental health condition. Crisis stabilization staff observe, monitor, and treat the child, as well as teach, support, and assist the parent or care taker to better understand and manage behavior that has resulted in current or previous crisis situations. Crisis stabilization staff can observe and treat a child in his/her natural setting or in another community setting that provides crisis services, usually for 24-72 hours but up to seven days. Crisis stabilization staff are qualified, licensed clinicians and qualified paraprofessionals supervised by qualified, licensed clinicians. Crisis stabilization in a community setting is provided by crisis stabilization staff in a setting other than a hospital or a Psychiatric Residential Treatment Facility (PRTF) and includes room and board costs.
C. Home and Community-based Services
The components of this service category are In-Home Behavioral Services (including behavior management therapy and behavior management monitoring), In-Home Therapy Services (including a therapeutic clinical intervention and ongoing training and therapeutic support), and Mentor Services (including independent living skills mentors and child/family support mentors). While the services in this category may be provided where clinically appropriate, it is intended that they be provided in any setting where the child is naturally located, including, but not limited to, the home (including foster homes and therapeutic foster homes), child care centers, respite settings, and other community settings. These services may be provided as a bundled service by a team or as a discrete clinical intervention depending upon the service needs of the child.
10 Where provider qualifications appear in the descriptions of the remedy-related services in this section of the Plan, the following applies:
As used in this plan, the terms “qualified, licensed clinician” and “qualified paraprofessional” refer to individuals with specific licensure, education, training, and/or experience, as will be set forth in standards to be established by the Defendants. Such individuals will be authorized to provide specific services referred to herein.
A licensed clinician is an individual licensed by the Commonwealth to provide clinical services within a particular scope as defined by the applicable licensing authority or statute, including, but not necessarily limited to, physicians, psychiatrists, licensed clinical psychologists, licensed independent clinical social workers, licensed clinical social workers, and licensed mental health counselors.
A paraprofessional is an individual who, by virtue of certification, education, training, or experience is qualified to provide therapeutic services under the supervision of a licensed clinician.
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In-home Behavioral Services
Behavioral services usually include a combination of behavior management therapy and behavior management monitoring, as follows:
(1) Behavior management therapy is provided by a trained professional, who assesses, treats, supervises, and coordinates interventions to address specific behavioral objectives or performance. Behavior management therapy addresses challenging behaviors which interfere with the child’s successful functioning. The therapist develops and monitors specific behavioral objectives and interventions, including a crisis response strategy, that are incorporated into the child’s treatment plan. The therapist may also provide short-term counseling and assistance, depending on the child's performance and the level of intervention required. Behavior management therapy is provided by qualified, licensed clinicians.
(2) Behavior management monitoring is provided by a trained behavioral aide, who implements and monitors specific behavioral objectives and interventions developed by the behavior management therapist. The aide may also monitor the child’s behavior and compliance with therapeutic expectations of the treatment plan. The aide assists the therapist to teach the child appropriate behaviors, monitors behavior and related activities, and provides informal counseling or other assistance, either by phone or in person. Behavior management monitoring is provided by qualified paraprofessionals supervised by qualified, licensed clinicians.
In-home Therapy Services
Therapy services include a therapeutic clinical intervention and ongoing training and therapeutic support, as follows:
(1) A structured, consistent, therapeutic relationship between a licensed clinician and the family and/or child for the purpose of meeting specific emotional or social relationship issues. The licensed clinician, in conjunction with the care planning team, develops and implements therapy goals and objectives which are incorporated into the child’s treatment plan. Clinical services are provided by a qualified, licensed clinician who will often work in a team that includes a qualified paraprofessional who is supervised by the qualified, licensed clinician.
(2) Ongoing therapeutic training and support to the child/adolescent to enhance social and communication skills in a variety of community settings, including the home, school, recreational, and vocational environments. All services must be directly related to the client’s treatment plan and address the child’s emotional/social needs, including family issues related to the promotion of healthy functioning and feedback to the family. This service is provided by a qualified paraprofessional who is supervised by the qualified, licensed clinician. This paraprofessional may also provide behavior monitoring as described above.
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Mentor Services

Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal

Independent Living Skills Mentors provide a structured, one-to-one relationship with an adolescent for the purpose of addressing daily living, social, and communication needs. Each adolescent who utilizes an Independent Living Skills Mentor will have independent living goals and objectives developed by the adolescent and his/her treatment team. These goals and objectives will be incorporated into the adolescent’s treatment plan. Mentors are qualified paraprofessionals and are supervised by a qualified, licensed clinician.

Child/Family Support Mentors provides a structured, one-to-one relationship with a parent(s) for the purpose of addressing issues directly related to the child’s emotional and behavioral functioning. Services may include education, support, and training for the parent(s) to address the treatment plan’s behavioral health goals and objectives for the child. Areas of need may include parent training on the development and implementation of behavioral plans. Child/Family mentors are qualified paraprofessionals and are supervised by a licensed, qualified clinician.

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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
VI. Implementation
A. Implementation Considerations
The Court correctly noted in its January 26, 2006 Memorandum of Decision that States “retain substantial discretion in implementing their [Medicaid] plans,” 410 F. Supp.2d 18, 24 (D. Mass. 2006). The Medicaid Act does not dictate the manner in which EOHHS organizes the delivery of Medicaid services, so long as those services are delivered in a manner that comports with its obligations under EPSDT to assure that Medicaid-eligible children with SED receive medically necessary services. For that reason, the description below of Defendants’ preliminary plans for implementing this Plan is a statement of Defendants’ present intention, but is subject to change over the course of implementation of the Plan in accordance with Section VI, Subsections E and F of the Plan. By providing this description of implementation projects and details of a possible delivery system, Defendants do not in any way cede their responsibility and discretion to make changes to the implementation projects, including the possible delivery system, that they determine are necessary or appropriate during the course of implementation.
B. Implementation Project Planning
A full and successful implementation of a program of the scope and complexity described in this Plan will, of necessity, need to take place over a number of years. The Plan anticipates a dynamic process involving multiple concurrent work efforts. Those efforts will be organized into four main projects, described below, which encompass all aspects of the program improvements contained in this Plan.
It is important to note that there are significant interdependencies between components of each of these four projects. Moreover, certain elements of each project are subject to external factors that are not fully within the control of EOHHS. To put it simply, this is a complicated endeavor, and no organizational structure, timetable, or task list can make it otherwise. Defendants are nevertheless dedicated to a successful implementation.
1. Project 1: Behavioral Health Screening, Informing, and Noticing Improvements
Project Purpose: Implementation of improvements to behavioral health screening and clear communication of new requirements about the use of standardized screening tools:
Tasks performed will include:
1) Developing and announcing a standardized list of behavioral health screening tools
2) Drafting managed care or provider contract amendments and regulatory changes to conform with the new requirements
3) Improving EPSDT Member notices concerning the availability of behavioral health and other EPSDT screening, and the availability of behavioral health services
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
Expected Timeframe: 6-12 months
2. Project 2: CANS Development, Training and Deployment
Project Purpose: To design a statewide common assessment information gathering tool, the CANS, for statewide use, and to train behavioral health providers in its appropriate use.
Tasks performed will include:
1) Developing a Massachusetts-specific short and long form CANS in conjunction with Developer John Lyons
2) Training behavioral health providers to complete and use the CANS tool, including EOHHS-required data gathering techniques
3) Drafting managed care and provider contract amendments and regulatory changes to conform with the new requirements
Timeframe: 12-24 months for initial phase; full implementation more than 36 months
Note: Because of the number of behavioral health providers who perform assessments, deploying the CANS statewide is necessarily a long-range project. It will be most successful if done in phases, defined geographically or by provider type.
3. Project 3: Development of a Service Delivery Network
Project Purpose: Plan, design, and contract for a service delivery network to deliver the services described in this Plan.
Defendants recognize that the basic goal of network development is to ensure access to the medically necessary services Members require. It is also important to devise a network arrangement that encourages a coordinated service planning approach. Specifically, Defendants recognize the need to minimize the risk of fragmentation in service delivery, and that provider-level coordination is critical to successful outcomes for children in need of intensive care coordination. An appropriate solution, in Defendants’ view, is a process of network design and development that is directed and managed by EOHHS and DMH with the goal of establishing a statewide network of community service agencies (“CSAs”), common across all MassHealth payers, to the extent feasible, and responsible for coordinating and providing or arranging for medically necessary home-based services.
Although a number of mechanisms are available to EOHHS and DMH to design and approve this system, the initial, phased network development process will be implemented through the existing Medicaid managed care behavioral health contractor under the direction of EOHHS and DMH. EOHHS and DMH will establish standards for
19

Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
CSAs that will include provider qualifications, service delivery standards, training requirements, documentation requirements, utilization management standards, and performance measures. EOHHS will amend its managed care behavioral health contract to require the behavioral health contractor to procure a network of CSAs that meets the standards established by EOHHS and DMH.
CSAs will be providers included in the networks of MassHealth’s contracted managed care entities and its fee-for-service network. All MassHealth payers, including MCOs and the managed care behavioral health contractor, will offer to contract with the same entities as CSAs, subject to successful negotiations and EOHHS’s determination that such entities have the capacity to serve the managed care entities’ expected MassHealth enrollment.11 Defendants’ current expectation is that the Medicaid fee-for-service population will have access to the same providers as the Medicaid managed care population, but that assumption will need to be tested.12
CSAs will operate in service areas that will be defined by EOHHS and DMH with the following objectives in mind: that CSA service areas be generally consistent with DMH sites; that they promote consistency with DSS Family Networks provider areas; that they promote consistency, capacity, and efficiency; that they reflect linguistic or cultural characteristics, as appropriate; and that they reflect natural service areas. Defendants anticipate that there will be one CSA in each area so defined, and that in total there will be no less than 15, and may be as many as 30, CSA service areas. Defendants will also consider defining regions for certain functions.
CSAs may deliver the clinical assessment services described above in Section III of this Plan and the intensive care coordination services described above in Section IV of this Plan. CSAs will either deliver or, as a component of intensive care coordination, assist Members to access the services described above in section V of this Plan. CSAs will be responsible for assisting Members to access to all Plan services that they do not themselves provide.
Tasks performed to establish the service delivery network will include:
11 42 U.S.C. §1396u-2 (“each Medicaid managed care organization must provide the State and the Secretary with adequate assurances…. That the organization … has the capacity to serve the expected enrollment in the service area”).
12 Unlike MassHealth-contracted managed care entities, which are permitted under federal law to selectively contract for their provider networks, MassHealth is permitted to establish reasonable provider qualifications but is required to contract with all willing providers who are qualified. Accordingly, fee-forservice providers could be different from managed care-contracted providers, depending on the number (more or less) of qualified providers who are willing to participate. See 42 U.S.C. §1396a(a)(23) (“[The State Plan must] provide that any individual eligible for medical assistance may obtain such assistance from any, institution, agency, … or person, qualified to perform the service or services required … who undertakes to provide him such services”).
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
1) Designing delivery system approaches that maximize access to services, taking into consideration the availability and willingness of providers to provide the services
2) Engaging in a public process to involve stakeholders in the development of the network and services
3) Planning concerning anticipated need and provider availability 4) Working with CMS to obtain approval of services to be offered and of managed
care contracting documents 5) Defining CSA Service Areas 6) Defining standards with respect to provider qualifications, service delivery
standards, training requirements, documentation requirements, utilization management standards, and performance measures 7) For each Plan service, defining the following: clinical criteria (including admission criteria, exclusion criteria, continuing stay criteria, and discharge criteria); performance specifications (including service definition and philosophy, structural requirements, staffing requirements, service, community and collateral linkages, quality management, and process specifications), credentialing criteria (for licensed clinicians and paraprofessionals), and utilization management standards (prospective and retrospective) 8) Drafting contract and procurement documents, including the production of a detailed data set for contractors and the creation of detailed performance standards for contractors and providers 9) Negotiating contracts, setting rates for new services, and arranging for appropriate federal claiming protocols 10) Performing reviews of new service providers to assure readiness to perform contract requirements 11) Designing strategies to educate providers, Members, and the general public about the new services offered 12) Designing a system of contract management for managed care contracts that includes performance standards or incentives, required reports, required quality improvement projects, and utilization management review, administrative services, and claims payment protocols
Timeframe: 24 months for initial phase; full implementation more than 36 months
Note: Like Project 2, Defendants anticipate a phased-in implementation of the service delivery system. Design decisions about those phases must be coordinated with implementation phases in Project 2.
4. Project 4: Information Technology System Design and Development
Project Purpose: The design and development of a web-based application to facilitate identification and monitoring of behavioral health service delivery to children with serious emotional disturbance.
Tasks performed will include:
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
1) Defining existing system capacities 2) Gathering requirements for new functionality, including assessing whether
development should be in-house or outsourced 3) Obtaining legislative authorization and funding 4) Drafting contract and procurement documents, including detailed architectural
standards, privacy standards, and performance standards 5) Working with CMS to obtain necessary federal approvals of contracting
documents 6) Issuing an RFR, reviewing responses, and selecting bidder(s) 7) Negotiating contract(s) 8) Confirming business requirements and technical specifications 9) Performing construction, testing, and provider training
Timeframe: 24 months from legislative authorization and funding approval
C. Data Collection
1. Background
There are multiple sources of data available to the Medicaid agency and multiple methods for data collection. This Plan outlines a basic data set that, based on sound principles of program management, will ultimately provide very useful data that will support the agency’s ability to track, monitor and evaluate a system of behavioral health care for children with serious emotional disturbance. Some of the data points outlined here are presently available or easily accessible, while others are not.
The primary source for Medicaid data is MassHealth’s claims payment system, known as the Medicaid Management Information System (MMIS). While MMIS can collect claims level data on utilization and spending, it is not a good source for much of the data required to evaluate the implementation of this Plan, as detailed below. Notably, MMIS does not ordinarily collect information beyond that otherwise necessary for providers to claim reimbursement from MassHealth. EOHHS is currently part way through a major multi-year project to develop a replacement MMIS (NewMMIS), currently anticipated for implementation in August 2007.
A secondary means of collecting data commonly used in MassHealth program management originates from contract requirements, typically of managed care entities. MassHealth often requires managed care entities to collect data or report information in a particular form as an obligation of the contract. This method of collecting data is not limited by the capacities of the MassHealth claims payment system, but may be hampered by the managed care entities’ own system limitations. Any business requirements placed on contractors generally require time to make business process changes and systems modifications as well as some form of reimbursement of costs.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
For detailed clinical and provider performance data, MassHealth’s clinical staff and contracted reviewers undertake clinical record reviews. This method of collecting data is appropriate in very limited circumstances and is time-intensive and costly.
For collecting and managing all of the data points associated with this Plan, EOHHS will need to develop a new information technology (IT) application. Although none of this data collection is required by the Federal Medicaid Act, EOHHS believes that the data will assist us to assess our performance of the requirements of the Plan and to reassure the Court of our success. However, an IT systems development project is a significant undertaking. The Defendants will need specific legislative authorization and appropriation in order to proceed with an IT project of the size contemplated below, since it would involve a capital appropriation and expenditure authorization. Following that, the Defendants can engage one or more vendors through a competitive procurement process; design business specifications with input from the MassHealth provider community; allow time for the vendor to build and test the data collection and management system(s); amend provider agreements and contracts, as necessary; and train providers to report required information using the new IT application. Timetables for such large-scale IT projects usually range from 18 to 24 months from the time that legislative authorization and appropriation is received, and often include multiple rollouts of advancing sophistication and breadth to assure that providers can successfully use the application and that the data collected is accurate and timely.
With these considerations in mind, the Plan proposes the following as a preliminary data collection strategy to assess Member access to and utilization of EPSDT behavioral health screenings, clinical intake assessments, intensive care coordination comprehensive assessments, and intensive home-based services. Data points described below that are not available from MMIS are conceptual and subject to a complete inventory of the business requirements and data elements necessary for creating an appropriate tracking system or systems. Defendants also propose collecting data with regard to children’s behavioral health outcomes and Member satisfaction.
2. Potential Tracking Measures
a. EPSDT Behavioral Health Screening
1) Number of EPSDT visits or well-child visits and other primary care visits. 2) Number of EPSDT behavioral health screens provided. An EPSDT behavioral
health screen is defined as a screen delivered by a qualified MassHealth primary care provider. 3) Number of positive EPSDT behavioral health screens. A positive screen is defined as one in which the provider administering the screen, in their professional judgment, identifies a child with a potential behavioral health services need.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
b. Clinical Assessment
1) Number of MassHealth clinical assessments performed. A MassHealth clinical assessment is defined as any diagnostic, evaluative process performed by a qualified MassHealth behavioral health provider that collects information on the mental health condition of an EPSDT Member for the purposes of determining a behavioral health diagnosis and the need for treatment.
2) Number of clinical assessments that meet SED clinical criteria and indicate that the Member could benefit from intensive care coordination services.
c. Intensive Care Coordination Services and Intensive –Home-Based Assessment
1) Number of intensive home-based assessments performed as the first step in intensive care coordination. Such assessment processes shall result in the completion of a standardized data collection instrument (i.e. the CANS tool). As part of the treatment planning process, that standardized tool will be used, and the resulting data collected on a Member level at regular intervals.
2) Number of Members who receive ongoing intensive care coordination services.
d. Intensive Home-Based Services Treatment
1) Member-level utilization of services as prescribed under an individualized care plan, including the type, duration, frequency, and intensity of home-based services.
2) Provider- and system-level utilization and cost trends of intensive home-based services.
e. Child and System Outcome Measures
Member-level outcome measures will be established to track the behavioral health of an EPSDT Member with SED who has been identified as needing intensive care coordination services over time. Defendants will consult with providers and the academic literature and develop methods and strategies for evaluating Member-level outcomes as well as overall outcomes of the Plan.
Member-level outcome measures would be tracked solely for the purpose of program improvement and would not be useable as a basis for arguing that Defendants are not complying with any order of the Court.
f. Member Satisfaction Measures
Defendants will develop sampling methods and tools to measure Member satisfaction of services covered under this Plan. Member satisfaction would be measured solely for the purpose of program improvement and would not be useable as a basis for arguing that Defendants are not complying with any order of the Court.
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
3. Current State & Feasibility
As noted, considerable thought should be put into implementing a tracking system or systems of the size and scope described herein. Certain data collection elements and reports can occur on a shorter timeframe while other data elements will take longer to collect due to systems limitations.
a. Claims Data: Utilization and Spending
The Commonwealth’s MMIS is able to track Member-level utilization and spending data. Reports can be generated that measure any “billable” event, including numbers of screenings, numbers of assessments and unduplicated Member utilization of home-based services including the duration and type of service.
b. Other Data: Screening Results, Assessment Scores, and Outcome Measures
MMIS is a claims-based system and is not equipped for producing all of the data elements contemplated. For example, MMIS is not built to track the results of EPSDT screens or clinical assessments. It is likely that a separate IT system would need to be developed that collects Member-level data regarding screening results, standardized assessment scores, and child outcomes. A successful system would likely be web-based and simple to use, but Defendants intend to proceed cautiously with this effort, in part based on concerns that efforts to require additional data entry from MassHealth providers will discourage provider program participation.
c. Member Satisfaction Measures
Currently, certain MassHealth providers and managed care plans conduct Member satisfaction surveys regarding various levels of care (e.g. inpatient, outpatient, day treatment). Defendants will need time to review current provider practices, assess industry standards, and determine what appropriate satisfaction measures need to be collected. Defendants will need to develop contract amendments with their providers such that providers collect and report uniform satisfaction measures.
4. Quality Improvement
Defendants will use the data collected as described above to improve the quality of Medicaid behavioral health services for children.
D. Reporting and Monitoring
1. Compliance Coordinator
The Defendants shall designate an individual to serve as their Compliance Coordinator. The Coordinator shall have the necessary authority to review, evaluate, and design and implement strategies to facilitate compliance with this Plan by the Defendants, their
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal
agencies, agents, and employees. The Coordinator shall identify any obstacles to timely compliance and have the authority to implement actions that effectively address such obstacles.
A. Compliance Meetings
The Plaintiffs will meet quarterly with the Defendants and Defendants’ Compliance Coordinator to discuss the implementation of this Plan and any obstacles to its full and timely implementation for at least 18 months from the date of approval of a remedial plan.
B. Compliance Reports
The Compliance Coordinator shall develop semi-annual reports that describe the Defendants’ actions to address each provision or section of this Plan. The report also shall identify any obstacles that have impeded compliance with these provisions.
2. Court Monitor
The Court shall appoint a Monitor acceptable to both Defendants and Plaintiffs to oversee the implementation of this Plan. The Monitor shall serve at the discretion of the Court, and shall undertake those tasks described herein.
The Monitor shall have the authority to: (1) receive information relevant to the Defendants’ obligations under this Plan; (2) coordinate and facilitate meetings between the parties; (3) independently review the Defendants’ compliance with this Plan; (4) respond to complaints concerning compliance or other actions of the Defendants; (5) recommend corrective or further actions necessary to redress any problems identified in implementing this Plan; (6) mediate disputes between the parties; and (7) take whatever actions are useful to facilitate the timely implementation of this Plan.
The Monitor shall have relevant expertise in behavioral health, health care or Medicaid program administration.
The Monitor shall have access to all data, reports, records or related documentation in the possession of the Defendants, their agents, contractors, evaluators, and providers that is necessary to perform the above functions.
The Monitor shall be compensated by the Defendants at a rate established by the Court. The Monitor shall prepare an annual budget for approval by the Court. The parties shall be afforded an opportunity to review and comment on the budget prior to its submission to the Court.
The Plaintiffs and Defendants shall attempt to agree on a Monitor with relevant experience; in the event that they are unable to reach agreement, they will attempt to agree on candidates for Monitor and shall submit the list of candidates to the Court for
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Rosie D. v. Romney Defendants’ 8/29/06 Remedial Plan Proposal selection. In the event that the Monitor resigns or otherwise is unable to continue to serve, the same process shall be used to select a replacement.
E. Modifications to the Plan
Nothing shall require the Defendants to perform any aspect of this Plan that is not a requirement of the EPSDT or reasonable promptness provisions of the Federal Medicaid Act. The applicable provisions are: 42 U.S.C. §§1396a(a)(10)(A), 1396a(a)(10) (B)(4), 1396d(a), 1396d(r), 1396a(a)(43), and 1396a(a)(8). Nothing contained in this Plan shall require the Defendants to take any action or pay for any service or otherwise perform any aspect of this Plan unless Federal Financial Participation is available in accordance with all applicable federal requirements.
F. Modifications to Actions Taken to Implement Plan
Implementation of this Plan, as described in Section VI, depends on the availability of FFP and all required federal approvals, obtaining all required Massachusetts legislative authorization and funding, compliance with all applicable state and federal laws, Defendants’ determination that the proposed approach to the delivery of services maximizes access to services for Members given the availability in the Commonwealth of willing, trained, qualified providers of remedy-related services, and successful negotiation with managed care entities as required. Nothing contained in this Plan shall preclude Defendants from modifying actions that they have taken or may take to implement this Plan. This provision will not relieve Defendants of their obligations under the Medicaid Act and the Court’s January 26, 2006 decision.
G. Resolution of Disputes Between the Parties
The preferred mechanism for resolution of disputes between the parties is by complaint to the Court Monitor, mediation of the dispute by the Monitor, and a recommendation by the Monitor with respect to such dispute as set forth in Section VI (D)(2) of this Plan. If either party is dissatisfied with the Monitor’s recommended solution of the dispute it may bring the matter to the Court’s attention by motion for review of the Monitor’s recommended solution.
H. Completion of Implementation and Conclusion of Reporting and Monitoring
The Reporting and Monitoring requirements set forth above will terminate five years after the date of the order approving this Plan.
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APPENDIX A: EPSDT Behavioral Health Decision Tree

Massachusetts Children Under 21
MassHealth Eligible
Request for EPSDT screen
EPSDT Behavioral Health Screen
• Administered by
MassHealth primary care provider using one of the standardized tools

Education and Outreach
• Outreach efforts to providers, clinicians, state
agencies, and other stakeholders regarding availability of EPSDT services to Medicaid eligible kids Member outreach & noticing
• Regular noticing and updated member
handbooks regarding all EPSDT covered services (including home-based services), where services can be attained, and appeals process.
Parent requests BH Service from MH BH provider, or provider, state
agency or school identifies a BH

Positive EPSDT BH screen results in referral for Clinical
Assessment

The Assessment Process
• Commences with clinical intake
process including a diagnostic

Assessment indicates no BH condition.

No BH medical services prescribed.

evaluation

• Assessment yields a clinical diagnosis

and the treatment planning process begins
• Assessment process required as part
of discharge planning from hospitals

Assessment indicates BH impairment that does not
require intensive care

and DMH residential treatment

settings

• All medically necessary services,

including crisis services and short-

term in-home services are available

during assessment

Child receives treatment, which may include one or

• Information collected through a CANS

more of the following:

to inform treatment planning that addresses identified needs

• Intensive Home Based Services • Medication

• Other treatment, including traditional care

Assessment indicates a medical

management services

necessity for intensive care coordination and services of care

• Reevaluation

manager are offered.

Intensive Care Coordination (ICC) and Treatment Planning Process
• Intensive care home-based assessment and
treatment planning process is performed with the care manager and the involvement of the child’s family and other community supports
• Performed by licensed independent mental health
clinician who meets MH provider credentialing and clinical criteria
• Care Manager assists in forming and facilitates
the care planning team and coordinates the delivery of all available and appropriate services
• Care Planning Team develops an Individualized
Treatment Plan for each child

APPENDIX B – LEGAL AUTHORITY OF STATE HUMAN SERVICES AGENCIES WITH RESPECT TO MEDICAID ELIGIBLE CHILDREN
This subsection is intended to clarify the authority of EOHHS agencies with respect to their clients who are also Medicaid-eligible.
a. DSS: DSS is both a voluntary and an involuntary agency, depending on the circumstances. Children are referred to DSS in several ways: (1) a report of abuse or neglect (a “51A”) is filed on behalf of a child; (2) a family or child is referred by the court through a Child in Need of Services (CHINS) proceeding, either through a voluntary application for services or by a child being placed in DSS custody; (3) a family applies for voluntary services with DSS.
DSS knows the MassHealth enrollment status of children in its care and custody. For those not in its care or custody DSS may ask the child/family to self identify their MassHealth enrollment, but does not always do so.
In all cases where DSS has custody of a MassHealth child and places the child out of the home, DSS assures that the child is seen by a MassHealth enrolled provider for EPSDT screenings and all other necessary medical or behavioral health services. In cases where the child is in the care of DSS through a voluntary placement agreement or CHINS custody, DSS assists the parents of Medicaid eligible children to identify the child’s medical or behavioral health needs and works with the parents to assure that the child is seen by a MassHealth enrolled provider for EPSDT screenings and all other necessary medical or behavioral health services. If the parent is unable or unwilling, DSS will assure the eligible child is seen by a MassHealth enrolled provider for EPSDT screenings and all other necessary medical or behavioral health services. For children who are not in the care or custody of DSS, DSS can, with the consent of the parent, refer a Medicaid eligible child for an EPSDT screening and all other necessary medical or behavioral health services.
DSS’ authority to make medical decisions depends on its legal relationship to the child. When DSS has court ordered custody (non-CHINS) it can make most, but not all, medical decisions. For cases where the child is not in DSS care or custody, the parent is required to sign a release of information that allows DSS to provide the parents with assistance to assure that the child’s medical or behavioral health needs are identified and treated by a MassHealth enrolled provider. In voluntary placement cases, DSS and the parent enter into a written agreement that describes the role of DSS and the role of the parent in the child’s medical care. When the child is referred to DSS through a CHINS petition and the child is in DSS custody, DSS has the authority to make routine medical decisions, but it involves the parents in the medical care. Many other medical decisions remain with the parent and DSS works with the parent to assist them to obtain services needed for the child and helps the parent to identify the services that might be needed. (See 110 CMR 12.00, et. seq.)

In any case where DSS has the legal authority to do so, DSS assures that the child receives EPSDT screenings and all other necessary medical or behavioral health services and can provide any assessments or other records in its possession to MassHealth or a MassHealth provider. In cases where DSS does not have such legal authority, it can refer Medicaid eligible children to MassHealth services and can provide any assessments or other records in its possession to MassHealth or a MassHealth provider at the direction of the child’s parent or guardian.
b. The Department of Youth Services (DYS): DYS is not a voluntary agency. Juveniles generally enter the DYS system when they are held in pre-trial detention for lack of bail or are committed to DYS by the juvenile court after an adjudication of delinquency on criminal charges. DYS does not have legal custody of juveniles, although it does have physical custody in the two situations described above.
DYS cannot make medical decisions for juveniles absent parental involvement and consent, except in an emergency. Medical decisions are made by families, guardians, court order and in certain situations by the consent of the juvenile. When juveniles are in DYS detention or secure facilities, they are considered to be inmates of public institutions and not eligible for Medicaid (even though their families may be Medicaid Members at the time). When a Medicaid eligible juvenile is moved into a DYS community placement, DYS can refer the juvenile for EPSDT screening by a provider and all other necessary medical or behavioral health services.
c. The Department of Mental Health (DMH): DMH is a voluntary agency. Requests for DMH services come from parents or guardians. DMH does not take legal custody of children and cannot make medical decisions for children. DMH is a “payor blind” agency and as such it does not independently determine whether children who are applying for DMH services are Medicaid eligible. DMH does ask children to self identify available third-party payors, including Medicaid, at the time of the application for DMH services. DMH can refer children who self identify as Medicaid eligible for EPSDT screenings and all other necessary medical or behavioral health services.
c. The Department of Mental Retardation (DMR): DMR is a voluntary agency. Requests for DMR services come from parents or guardians. DMR does not take legal custody of children and cannot make medical decisions for children. DMR is a “payor blind” agency and as such it does not independently determine whether children who are applying for DMR services are Medicaid eligible. DMR does ask children to self identify available third-party payors, including Medicaid at the time of the application for DMR services. DMR can refer children who self identify as Medicaid eligible for EPSDT screening and all other necessary medical or behavioral health services.
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APPENDIX C – LEGAL AUTHORITY OF DSS AND DYS IN NON-MEDICAL DECISIONS
DSS: DSS retains the following decisions for children in its care or custody involved in Intensive Care Coordination: 1) The nature and extent of visitation and contact, including whether visitation must be supervised, its frequency and location; 2) short-term trial placements for the purpose of transitioning to a permanent family; 3) the provider, level of care, location and duration of all out of home placements made pursuant to its authority; and 4) The type, level and scope of advocacy on behalf of the child’s educational needs to the extent that the educational needs are not MassHealth covered services provided pursuant to a MassHealth Municipal Medicaid contract.
DYS: DYS retains the following decisions for children involved in Intensive Care Coordination: 1) Whether to grant conditional liberty to allow the client to be in the community; 2) The revocation of the grant of conditional liberty; 3) The authority to issue a warrant to apprehend the client in the community; 4) The authority to return the client to a secure setting; 5) All security issues regarding the client; 6) The authority to search the client; 7) The authority to conduct random urine tests; 8) The authority to require electronic monitoring and reporting; 9) The authority to make all placement decisions that are a part of DYS-mandated condition of the client’s liberty; 10) To determine all behavioral management issues, including the nature and type of counseling such as substance abuse, sex offender, anger management, etc., that are a part of a DYS-mandated condition of the client’s liberty; 11) To set the frequency of DYS contact with the client; 12) To determine the conditions under which the client is at liberty; and 13) To decide whether as a condition of the client’s liberty the client must be in school or employed.

 
 ROSIE D. V. ROMNEY
PLAINTIFFS’ FINAL REMEDIAL PLAN
August 18, 2006

TABLE OF CONTENTS

SECTION 1: SCOPE AND PRINCIPLES

1

1. Purpose and Scope of Plan

1

A. Purpose and Goals of the Plan

1

B. Scope of the Plan

1

II. Principles

2

SECTION 2: THE PATHWAY TO IN-HOME SUPPORT SERVICES

5

III. Entry Points

5

IV. Screening

6

A. EPSDT Screening by Health Care Professionals

6

B. Screening Responsibilities of Publicly-Funded Entities

7

C. Other Methods to Identify a Mental Health Condition

7

V. Preliminary Assessment

7

A. Children Who Need a Preliminary Assessment

7

B. Preliminary Assessment Process

8

SECTION 3: THE CORE COMPONENTS OF IN-HOME SUPPORT

SERVICES

9

VI. Comprehensive Assessments

9

A. Standard for a Comprehensive Assessment

9

B. Automatic Referral for a Comprehensive Assessment

9

C. Request for a Comprehensive Assessment

10

D. Coordination of the Comprehensive Assessment

10

i

E. Instruments for Conducting the Comprehensive Assessment

10

F. Findings of the Comprehensive Assessment

10

VII. Unified Care Management

11

A. Assignment of the Care Manager

11

B. Levels of Care Management

11

C. Responsibilities of the Care Manager

12

D. Qualifications and Training of the Care Manager

12

E. Affiliation of the Care Manager

12

VIII. Single Child and Family Team

13

A. Composition of the Child and Family Team

13

B. Functions of the Child and Family Team

13

C. Decisions of the Child and Family Team

14

D. Affiliation of the Child and Family Team

14

IX. Single Treatment Plan: The Individual Services Plan (ISP)

15

A. Elements of the ISP

15

B. The ISP Process

15

C. Coordination and Review of the ISP

15

X. Interim Services

15

SECTION 4: COVERED SERVICES

16

XI. Medicaid Covered In-Home Support Services

16

A. Provision of Medically Necessary EPSDT Services

16

B. Covered Services Described in the Plan

16

C. Qualifications of Professional and Paraprofessional Providers 17

ii

D. Covered Services

17

SECTION 5: THE METHOD FOR PROVIDING IN-HOME SUPPORT

SERVICES

22

XII. Community Services Agencies

22

A. Designation of Service Areas

22

B. Selection of Community Services Agency

22

C. Roles and Responsibilities of Community Services Agencies

23

D. Services Provided by Community Services Agencies

24

E. Relationship between the Community Services Agency and

Alternative Home-based Services Provider and the Managed

Care Organization

25

F. Qualifications and Standards for the Community Services

Agency

26

G. Contract with the Community Services Agency

27

H. Performance Measures

27

I. Training

28

XIII. Service Delivery Policies, Procedures, and Performance Measures for

Affiliated Service Providers

28

A. Affiliated Providers

28

B. Service Delivery Policies and Procedures

28

C. Performance Measures

28

XIV. Service Codes, Rates and Billing Procedures

29

A. Service Codes and Rates

29

B. Billing Procedures

29

XV. Roles and Responsibilities of State Agencies

29

iii

SECTION 6: INFORMING, OUTREACH, AND EDUCATION

31

XVI. Informing

31

A. Notices and Brochures for Families

31

B. Communications with Families

32

C. Provider Manuals and Alerts

32

XVII. Outreach and Education

33

A. Outreach

33

B. Education

34

SECTION 7: DATA COLLECTION, EVALUATION, AND

MONITORING

36

XVIII. Data Collection and Evaluation Program

36

A. Purpose and Function of Data Collection

36

B. Data Collection and Evaluation of Screening Requirements

37

C. Data Collection and Evaluation of Preliminary Assessment

Requirements

37

D. Data Collection and Evaluation of Child Service Requirements 38

E. Data Collection and Evaluation of Provider Requirements

39

F. Data Collection and Evaluation of System Requirements

40

XIX. Reporting and Corrective Actions

40

A. Reports

40

B. Corrective Actions

40

XX. Monitoring, Dispute Resolution, and Modification

41

A. Compliance Coordinator

41

B. Compliance Meetings

42

iv

C. Court Monitor

42

D. Dispute Resolution Procedure

43

E. Modifications of the Plan

43

v

SECTION 1: SCOPE AND PRINCIPLES
I. Purpose and Scope of the Plan
A. Purpose and Goals of the Plan
This Remedial Plan (the Plan) describes the needed programmatic and operational improvements set forth in the Court’s January 26, 2006 Memorandum of Decision, including the in-home support services and a method for accessing, providing, and evaluating those services, as required by that Decision. The purpose of the Plan is to describe in detail how the Commonwealth will meet its responsibilities under the EPSDT provisions of the federal Medicaid Act for the class of Medicaid eligible children with serious emotional disturbance (SED) under the age of 21 who need in-home support services. In particular, the Plan recognizes and provides for comprehensive assessments, service coordination, in-home supports, and all medically necessary services. These services will be developed with the involvement of families, and delivered through an integrated treatment planning process that includes all relevant state and local agency representatives.
The goal of this Plan is to assure that medically necessary in-home support services are available both to assist children with SED to remain in their home, in school, and in the community, as well as to reduce, to the extent reasonably possible, the likelihood that such children will be removed from their homes and home communities because of their mental health needs. The Plan also recognizes that many Medicaideligible children with SED are served by state and local health, human services and education agencies in addition to Medicaid, and is designed to coordinate the roles and resources of these agencies, to the extent permissible by law, in a manner that assures that medically necessary EPSDT services are available to eligible children with SED.
B. Scope of the Plan
The Court certified a plaintiff class in this case that includes: “all current or future Medicaid-eligible residents of Massachusetts under the age of twenty-one who are or may be eligible for, but are not receiving, intensive home-based services, including professionally acceptable assessments, special therapeutic aides, crisis intervention, and case management services."
Throughout the Court’s January 26, 2006 Memorandum Decision, it consistently refers to the children in this case as “children with SED.” Memorandum at 5. It specifically notes that these children include individuals with various DSM IV diagnoses, including autism. Memorandum at 31-32. Therefore, this Plan focuses on Medicaideligible children with serious emotional disturbance (SED), as defined in federal law, including autism and other pervasive developmental disorders (PDD). SED children have a mental health diagnosis that is contained in the Diagnostic and Statistical Manual, Version IV (DSM IV), and a functional impairment that substantially interferes or limits a child’s role in the family, school, social relationships, or community, or that
1

substantially interferes with or limits a child or adolescent from achieving or maintaining developmentally appropriate social, behavioral, cognitive, communicative, or adaptive skills. In-home support services, as referenced by the Court, are necessary and appropriate for children with SED who need more than outpatient services to treat their conditions. Memorandum at 23.
The Governor, as the lead defendant and chief state official for the Commonwealth, is ultimately responsible for implementing this Plan. EOHHS, as the single state Medicaid agency, is primarily responsible for taking the actions necessary to implement this Plan. DMH, as the state agency responsible for providing mental health services to citizens of the Commonwealth, is the lead agency within EOHHS responsible for implementing this Plan.
The Plan shall be implemented and interpreted consistent with the requirements of the Medicaid Act, 42 U.S.C. § 1396a.
II. Principles
The development, implementation, and evaluation of the system of in-home support services described in this Plan will be consistent with the following principles1:
1. Collaboration with the child and family: Respect for and active collaboration with the child and parents is the cornerstone to achieving positive behavioral health outcomes. Parents and children are treated as partners in the assessment process and in the planning, delivery and evaluation of in-home support services.
2. Functional outcomes: In-home support services are designed and implemented to aid children to achieve success in school, to remain with their families, to avoid delinquency, and to become stable and productive adults. Implementation of the Individual Service Plan (ISP) stabilizes the child=s condition and minimizes safety risks.
3. Collaboration with others: When children have multi-agency, multisystem involvement, a comprehensive assessment is developed and an ISP is collaboratively implemented. The Child and Family team plans and delivers needed services. Each child=s team includes the child and parents and any foster parents, and any individual important in the child=s life who is invited to participate by the child or parents. The team also includes all other persons needed to develop an effective plan, including, as appropriate, relevant service providers, the child=s teacher, the child=s DSS, DYS, DMH, or DMR case manager or worker, the child=s probation officer. The team develops an ISP, monitors implementation of the plan, and makes adjustments in the plan if it is not succeeding.
1 These principles are incorporated in the court-approved settlement in a similar EPSDT lawsuit, J.K. v. Eden.
2

4. Accessible services: Children have access to a comprehensive array of inhome support and other behavioral health services, sufficient to ensure that they receive medically necessary treatment. Care management is provided for all SED children who have a pattern of need for more than clinic-based outpatient treatment. The ISP identifies transportation the parents and child need to access in-home support services and how transportation assistance will be provided. In-home support services are adapted or created when they are needed but not available.
5. Best practices: In-home support services are provided by competent individuals who are adequately trained and supervised. In-home support services are delivered in accordance with guidelines that incorporate evidence-based Abest practice.@ The ISP identifies and appropriately addresses behavioral symptoms that are reactions to death of a family member, abuse or neglect, learning disorders and other similar traumatic or frightening circumstances. The ISP also addresses mental health conditions, substance abuse problems, the specialized behavioral health needs of children who are developmentally disabled or who have maladaptive sexual behavior, including abusive conduct and risky behavior, and the need for stability and the promotion of permanency in the child’s life, especially for children in foster care. In-home support services are continuously evaluated and modified if ineffective in achieving desired outcomes.
6. Most appropriate setting: Children are provided in-home support and other behavioral health services in their home and community to the extent possible. Inhome support and other behavioral health services are provided in the most integrated setting appropriate to the child=s needs. When provided in a residential setting, the setting is the most integrated and most home-like setting that is appropriate to the child=s needs. Levels of restrictiveness should be reviewed regularly to ensure that they are clinically necessary and appropriate.
7. Timeliness: Children identified as needing in-home support services are assessed and served promptly.
8. Services tailored to the child and family: The unique strengths and needs of children and their families dictate the type, mix, and intensity of in-home support and other behavioral health services provided. Parents and children are encouraged and assisted to articulate their own strengths and needs, the goals they are seeking, and the services they believe are required to meet these goals.
9. Stability: The Child and Family team uses the ISP to minimize multiple placements. Service plans identify whether a class member is at risk of experiencing a placement disruption and, if so, identify the steps to be taken to minimize or eliminate the risk. The Child and Family team anticipates crises that might develop and include specific strategies and services that will be employed if a crisis develops. In responding to crises, the ISP incorporates all appropriate in-home support and other behavioral health services to help the child remain at home, minimize placement disruptions, and avoid the inappropriate use of the police and the criminal justice system. The ISP anticipates and
3

appropriately plans for transitions in children=s lives, including transitions to new schools and new placements, and transitions to adult services.
10. Respect for the child and family=s unique cultural heritage: In-home support services are provided in a manner that respects the cultural tradition and heritage of the child and family. Services are provided in Spanish to children and parents whose primary language is Spanish.
11. Independence: In-home support services include support and training for parents in meeting their child=s behavioral health needs and support and training for children in self-management. The ISP identifies parents= and children=s need for training and support to participate as partners in the assessment process, and in the planning, delivery and evaluation of services, and provides that training and support, including transportation assistance and assistance in understanding written materials.
12. Connection to natural supports: The ISP identifies and appropriately utilizes natural supports available from the child and parents= own network of associates, including friends and neighbors, and from community organizations, including service and religious organizations.
4

SECTION 2: THE PATHWAY TO IN-HOME SUPPORT SERVICES
III. Entry Points
There are multiple entry points to the pathway to in-home support services. These portals reflect both the different agencies and systems that serve children, as well as the different conditions and reasons why children enter those systems. At a minimum, these entry points include:
1. Mental health
a. DMH eligibility and ISP process b. DMH facilities and inpatient units c. DMH community programs d. DMH Area Offices e. DMH crisis programs f. Community mental health practitioners g. Community mental health centers and clinics h. Private psychiatric hospitals or psychiatric units in general
hospitals
2. Mental retardation
a. DMR eligibility and ISP process b. DMR facilities c. DMR community programs d. DMR local service centers and Area Offices
3. Child welfare
a. DSS assessment and service planning process b. DSS inpatient (BIRT) units c. DSS community programs d. DSS lead agencies and staff e. DSS Area Offices and social workers
4. Juvenile justice
a. Juvenile court clinics b. Juvenile detention facilities c. Juvenile residential and community treatment programs d. Probation and parole officers e. DYS offices and staff
5

5. Health/MassHealth
a. Emergency rooms b. Pediatric and psychiatric units c. Community health centers d. Pediatricians e. Family practitioners f. HMO/MBHP care managers g. HMO/MBHP mental health programs (FST, CSP, ART, CBAT) h. Early intervention programs and staff
6. Child care
a. Day care centers and professional staff b. OCCS lead agencies and staff
7. Education
a. school nurses, counselors, social workers, and psychologists b. IEP process
8. Family and Community Supports
IV. Screening
A. EPSDT Screening by Health Care Professionals
MassHealth is required to provide for EPSDT screenings to eligible children. The purpose of the screenings is to identify the need for further corrective treatment including “necessary health care, diagnostic services, treatment and other measures described in 42 USC [1396d]a [of the Medicaid Act] … needed to correct or ameliorate defects and physical and mental illnesses and conditions….”2 The goal of improving EPSDT behavioral health and developmental screening is to increase the likelihood that administered screenings identify children in need of Medicaid mental health services. To achieve this goal, there must be enhanced emphasis on screening, combined with outreach and education efforts directed at informing health care professionals about the approved screening tools, how to evaluate behavioral health information gathered in the screening, and how and where to make referrals for follow-up behavioral health assessment.
As part of a periodic and any other interperiodic EPSDT behavioral health screening, all Medicaid-eligible children routinely examined by a pediatrician, family practitioner, or other health care professional will be formally screened for behavioral health conditions using the Pediatric Symptom Checklist (PSC), M-CHAT for autistic
2 Medicaid Manual at §5122; 42 USC 1396d(r)(1)(B) and (5); 42 USC 1396a(a)(43); 42 USC 1396d(r)(B).
6

conditions, CRAFFT for adolescents, and PEDS for children under five years of age, unless the parent or guardian objects.
B. Screening Responsibilities of Publicly-Funded Entities
Children in the care and custody of DSS or DYS, or children who are evaluated at any other state agency, educational, or publicly-funded entry point, will be referred for a formal screen from a medical provider or other health care professional, using the PSC, CRAFFT, M-CHAT, or PEDS, unless the child already is known to have a behavioral health condition. DMH, DMR, DSS and DYS are responsible for promptly referring the child to an appropriate medical provider and making reasonable efforts, including tracking, outreach, and assistance, to ensure that the screen is completed in a timely manner.
C. Other Methods to Identify a Mental Health Condition
As part of its regular intake and evaluation process, state agencies, schools, and child care centers are often required to assess children, and identify children who have a behavioral health condition or concern. If this assessment is undertaken by a health care professional, it constitutes an EPSDT interperiodic screen. If it is done by someone who is not a health care professional, then it is considered an identification or assessment of a mental health condition.
EOHHS and DMH will develop assessment, referral, and treatment coordination protocols with its agencies and other publicly funded entities and agencies to enhance the capacity of their staff to identify children with SED and to refer these children and their families to a preliminary assessment and medically necessary services.
V. Preliminary Assessment
A. Children Who Need a Preliminary Assessment
If the screening process indicates that the child has an emotional disturbance or mental health condition or is at risk of developing such a condition (positive score on the PSC, M-CHAT, CRAFFT, or PEDS), the child is referred to, and promptly receives, a preliminary assessment by a qualified mental health provider, clinician, or other trained evaluator, unless the parent or guardian objects. With the guardian’s consent, the medical provider should provide, or arrange for, any appropriate mental health treatment pending this assessment.
Children who request or receive mental health care, on a routine or emergency basis, including all children served by DMH and those served by DMR who have a mental health condition, do not require formal mental health screening by a health care professional and shall promptly receive a preliminary assessment, unless the parent or guardian object. Children in the care or custody of DSS or DYS who are known to have, or at serious risk of developing, a mental health condition (DSM IV diagnosis) do not
7

require further screening and shall receive a preliminary assessment. If, as part of an intake assessment or evaluation by a state agency, educational agency, or other publiclyfunded entity, including routine evaluations by DSS, DYS, DMR, local schools, or child care centers, a child is identified as having an emotional disturbance or mental health condition, the child will be referred for, and promptly receive, a preliminary assessment, unless the parent or guardian object.
B. Preliminary Assessment Process The preliminary assessment will be done using a standardized, validated assessment instrument. The short form or a modified form of the Child and Adolescent Needs and Strengths Tool (CANS-MH) will be used, together with other relevant information concerning the child to guide the determination of whether the child needs a comprehensive assessment for in-home support services. A copy of the CANS-MH is attached is Appendix 1. When a modified form of the CANS is developed for Massachusetts, it will be substituted for the generic instrument in Appendix 1.
8

SECTION 3: THE CORE COMPONENTS OF IN-HOME SUPPORT SERVICES
The core components of in-home support services include a comprehensive assessment, a care manager, a single Child and Family team, an integrated treatment plan (the Individual Services Plan or ISP), which are provided through a Community Services Agency or the home-based provider for the area where the child lives.3 These components have been well developed in MHSPY and similar programs, and can be replicated or adopted here.
VI. Comprehensive Assessments
A. Standard for a Comprehensive Assessment
If the preliminary assessment indicates that the child’s mental health needs can be addressed adequately through clinic-based outpatient services, then the child is provided outpatient services with ongoing behavior monitoring from a mental health agency/ provider/clinician. An algorithm, developed by the author of the CANS-MH, will be used to determine if a child has a pattern of need that can be addressed by outpatient services. A copy of that algorithm is attached as Appendix 2. If the algorithm is revised in light of modifications to the CANS, the revised algorithm will be substituted in Appendix 2.
If the preliminary assessment with the CANS indicates that the child has a pattern of need requiring more than outpatient services, then the child is provided a comprehensive assessment from the Community Services Agency or home-based provider that serves the community where the child resides. If the child has had a preliminary assessment within the past six months that can reliable determine if the child has a pattern of need for more than outpatient services, no further assessment is required at that time. Periodic assessments using the CANS-MH should be completed when indicated.
B. Automatic Referral for a Comprehensive Assessment
If the child is hospitalized in a public or private mental health facility or a psychiatric unit of a general hospital for more than two weeks, or is at imminent risk of a second hospitalization in a year, then the child will automatically receive a comprehensive assessment without the need for a preliminary assessment. Similarly, if a child is in an acute residential setting funded or operated by DMH, DSS, DYS, MBHP, other behavioral health carve out entity, or MCO, or is at imminent risk of such residential placement, the child will automatically receive a comprehensive assessment without the need for any further preliminary assessment.
3 The term “Community Services Agency” (CSA) is used by the Commonwealth in its remedial plan to describe the lead home-based services provider for a specific geographical area. It is adopted herein to avoid confusion and promote consistency. The authority, role, qualifications, and standards for the Community Services Agency are described in detail in Section 5 of this Plan.
9

C. Request for a Comprehensive Assessment
Any child or family can request a comprehensive assessment based upon a determination from a mental health provider that such an assessment is medically necessary. There is no separate eligibility requirement for a comprehensive assessment. The preliminary assessment determination or prior history of hospitalization or residential placement constitutes a finding of medical necessity for a comprehensive assessment.
D. Coordination of the Comprehensive Assessment
Comprehensive assessments are coordinated by a qualified mental health professional who is employed by, or affiliated with, the Community Services Agency for the community where the child resides. Assessments include a home visit, often include a school visit, are based upon information collected from relevant providers and other involved entities such as state agencies or community organizations, and must be done in a culturally competent manner. Assessments focus on the multiple domains of the child, including emotional and behavioral health, physical health, family stability, safety, education, vocational, housing, social, and recreational. Assessments include a complete treatment history, a diagnostic assessment by a qualified mental health professional if the child does not already have a current mental health diagnosis, and available information on the child’s strengths, skills, and challenges.
E. Instruments for Conducting the Comprehensive Assessment
There are a variety of instruments and processes that may assist the clinician or clinical team in conducting comprehensive assessments. The process and instruments used by MHSPY and CFFC provide useful models that should be adopted.
F. Findings of the Comprehensive Assessment
The findings of the comprehensive assessment are used to guide the treatment planning process, and include a determination of whether the child has a serious emotional disturbance (SED) and needs in-home support services. SED children have a mental health diagnosis that is contained in the Diagnostic and Statistical Manual, Version IV (DSM IV), and a functional impairment that substantially interferes or limits a child’s role in the family, school, social relationships, or community, or that substantially interferes with or limits a child or adolescent from achieving or maintaining developmentally appropriate social, behavioral, cognitive, communicative, or adaptive skills.
If during the assessment process, it appears that the child is in crisis or in urgent need of specific in-home support services, such services will be deemed medically necessary and will be provided promptly, unless the parent or guardian objects.
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VII. Unified Care Management
A. Assignment of the Care Manager
If the comprehensive assessment indicates that the child needs in-home support services beyond traditional outpatient services, s/he is promptly assigned a care manager. Each child has one care manager with the overall responsibility for the child’s treatment.
B. Levels of Care Management
There are two basic levels of care management services: care management and intensive care management. Since a child’s need for a particular level of care management may vary over time, the Child and Family team has the responsibility and authority to modify the ISP, and the level of care management incorporated in the ISP, to reflect those changing needs. In determining the level of care management, the team will consider the child’s needs, available supports including the family, the involvement of state agencies, and other factors relevant to the individual child. The team should review the level of care management at least every six months. A change in the level of care management does not require nor necessarily result in a change in the care manager. The team’s decision concerning the level of care management constitutes a medical necessity determination with respect to both those services and that level of intensity, after review by a psychologist or psychiatrist.
1. Care Management primarily is for children with SED who have a functional impairment that requires treatment that is beyond the scope of clinic-based outpatient services. They are assigned a care manager who has a caseload of approximately 16-20, and who visits the child and family at least bi-weekly. An initial Individual Services Plan (ISP) is completed within thirty days, and reviewed at least every ninety days. The child is eligible for all covered in-home support services and is provided those in-home support services identified in the ISP.
2. Intensive Care Management primarily is for children with SED who are experiencing serious mental health and/or behavioral issues and have a significant functional impairment. These children meet the criteria for in-home support services, but also have significant functional impairments at home, school, or in the community that usually result in involvement with two or more services systems and that may place them at serious risk of institutionalization in a residential treatment center, correctional facility, or psychiatric hospital. They are assigned a care manager who has a caseload of approximately 8-10, and who visits the child and family at least weekly. Services are available promptly (usually within days of referral), but at least within thirty days of the assignment of a care manager. These children are eligible for all covered in-home support services, but generally require a greater intensity of services as determined by the Child and Family team. The team meets every thirty days for the first six months after developing the ISP, and then every sixty days thereafter to review the plan, unless the team determines that more frequent meetings are appropriate for the child.
11

C. Responsibilities of the Care Manager
The role of the care manager is to coordinate services and allow the child to receive services in accordance with his or her changing needs. Additionally, the care manager is responsible for promoting integrated services, with links between childserving agencies and programs and mechanisms for planning, developing, and coordinating services. The care manager is the single point of accountability for developing and implementing in-home support services for the child. While there may be other individuals from state agencies that have specific statutory responsibilities, like DSS social workers or DYS workers, these other individuals fulfill their responsibilities under the auspices of the single Child and Family team and through the single care manager with respect to all aspects of the in-home support services program.
Regardless of the level of in-home support services, care managers perform the same basic responsibilities, including: (1) identifying the members of the interdisciplinary Child and Family team; (2) identifying the strengths of the child and family, as well as any community supports; (3) collecting background information and plans from other agencies; (4) convening, coordinating, and communicating with the team; (5) preparing, monitoring, and modifying the ISP, as directed by the team; (6) accessing the specific in-home support and other services identified in the ISP; (7) working directly with the child and family; (8) collaborating with other caregivers on the child and family’s behalf; and (9) planning for aftercare or alternative supports when inhome support services are no longer needed. Care managers are not responsible for active 51A investigations of the Department of Social Services nor for the other statutory responsibilities of DSS or DYS workers.
D. Qualifications and Training of the Care Manager
The care manager will either be a licensed mental health professional or will provide care management under the supervision of a licensed mental health professional. S/he will be trained in the “wraparound” process for providing care within a System of Care. The “wraparound process” refers to a planning process involving the child and family that results in a unique set of community services and natural supports individualized for that child to achieve a positive set of outcomes. The System of Care is a cross-system coordinated network of services and supports organized to address the complex and changing needs of the child. This process will be consistent with the principles and values of the Child-Adolescent Services System Program (CASSP) which encourages care provision to be strength based, individualized, child centered, family focused, community based, multi-system and culturally competent.
E. Affiliation of the Care Manager
Care managers are employed by, or affiliated with, the Community Services Agency or home-based provider for the community where the child lives.
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VIII. Single Child and Family Team
A. Composition of the Child and Family Team
The care manager convenes a single Child and Family team that is responsible for developing, coordinating, monitoring, and modifying the overall treatment plan (ISP) that directs the child’s mental health care, as well as for identifying and providing the services set forth in the ISP. The team is comprised of the family and child, existing or prospective mental health professionals and home-based services providers, representatives of involved state or local (school) agencies, and other natural supports including neighbors, friends, or extended family members.
While involved state agencies workers may have specific statutory duties that cannot be compromised, they undertake these responsibilities through the team process. The Child and Family team endeavors to reach consensus on all central issues, and specifically on the content and implementation of the ISP. There is a conflict resolution process for resolving disagreements amongst members of the team. While the procedure does not obviate the statutory duties of team members, it does provide a mechanism for allowing state agency staff to fulfill those duties in concert with team members, in so far as possible.
The Child and Family team is responsible for implementing the ISP, but not any separate agency or school plans.
B. Functions of the Child and Family Team
The clinical, operational, and administrative functions of the Child and Family team include, at a minimum:
1. Ongoing engagement of the person, family and others who are significant in meeting the behavioral health needs of the child, including active participation in the decision-making process:
2. Use of the comprehensive assessment performed to elicit strengths, needs and goals of the child and his/her family, and identification of the need for further or specialty evaluations that support development of a service plan which effectively meets the child’s needs and results in improved health outcomes;
3. Continuous evaluation of the effectiveness of treatment through the ongoing assessment of the child and input from the person and his/her team resulting in modification to the Individual Service Plan, if necessary;
4. Provision of all Medicaid covered services as identified in the Individual Service Plan, including referral to community resources as appropriate;
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5. Ongoing collaboration, including the communication of appropriate clinical information, with other individuals and/or entities with whom delivery and coordination of covered services is important to achieving positive outcomes, (e.g., primary care providers, school, child welfare, juvenile or adult probations, other involved service providers);
6. Leadership of the team by the assigned care manager to provide oversight and consistency of the assessment and service planning processes;
7. Oversight to ensure continuity of care by taking the necessary steps (e.g., clinical oversight, development of facility discharge plans, or after-care plans, transfer of relevant documents) to assist children who are moving to a different treatment program, (e.g., inpatient to outpatient setting), changing behavioral health providers and/or transferring to another service delivery system; and
8. Development and implementation of transition plans prior to discontinuation of in-home support services.
C. Decisions of the Child and Family Team
The Child and Family team will exercise the authority to identify and arrange for all medically-necessary services needed by the eligible child with SED. The team’s decision is reviewed and approved by a psychiatrist or psychologist who is affiliated with the team, consistent with outlier standards for certain covered services. The team’s decision concerning the in-home support and other services that are needed by the child constitutes a medical necessity determination with respect to such services.
EOHHS, in conjunction with DMH, will establish utilization parameters for certain in-home support services. These parameters will establish an outlier standard for the intensity and duration of certain in-home support services. The outlier standard for a particular service will be set at a level that is greater than the utilization of that service by at least 90% of children served by CFFC, MHSPY, and WCC during the past year. The team’s medical necessity determination for services below the outlier standard is only subject to retrospective review by the managed care organization or behavioral health carve-out. Team recommendations that exceed the outlier standard may be subject to further review by the Community Service Agency.
D. Affiliation of the Child and Family Team
The team operates within the CSA or home-based provider for the community where the child lives, which is ultimately responsible for the structure and functioning of the teams, including the implementation of the team’s decisions and the resolution of conflicts amongst team members.
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IX. Single Treatment Plan: The Individual Services Plan (ISP)
A. Elements of the ISP
Each child who needs in-home support services has an Individual Service Plan (ISP) that: (1) describes the child’s strengths and needs; (2) proposes treatment goals, objectives, and timetables for achieving these objectives; (3) sets forth the specific inhome support services and other supports that will be provided to the child, including the frequency and intensity of each service or activity; (4) incorporates the child and family’s crisis/safety plans; and (5) identifies professional and generic providers, including natural supports, for each service or activity. Where other agencies are required to develop separate plans on specific issues (DSS reunification plans or a LEA’s Individual Education Plan), these plans are integrated into, and consistent with, the ISP.
B. The ISP Process
There are nine essential steps in the ISP process that will be described in detail in an ISP manual. These steps include: (1) engagement of the child and family; (2) immediate crisis stabilization; (3) identifying the child and family strengths, needs, culture and vision; (4) forming the Child and Family team; (5) developing the ISP; (6) implementing the ISP; (7) ongoing crisis and safety planning; (8) monitoring and modifying the ISP; and (9) transition planning and implementation.
C. Coordination and Review of the ISP
Individual Service Plans are coordinated and monitored by the care manager at least monthly, and often weekly for children requiring the most intensive level of inhome support services, by the care manager. Plans should be reviewed by the Child and Family team at least every sixty for children with intensive care management and ninety days for all other children, and modified as necessary by the team.
X. Interim Services
If the CSA or home-based services provider determines, based upon the preliminary assessment or during the comprehensive assessment, that the child needs inhome support services, it refers the child for interim in-home services. This referral constitutes a medical necessity determination that interim in-home services are medically necessary. The qualified mental health professional or care manager is responsible for arranging these interim services immediately. A Child and Family team meets shortly thereafter to review these services and develop a plan for ongoing treatment.
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SECTION 4: COVERED SERVICES
XI. Medicaid Covered In-Home Support Services
A. Provision of Medically Necessary EPSDT Services
Consistent with the requirements of the Medicaid Act, EOHHS shall provide children with SED with all diagnostic, preventative, and rehabilitative services, including any remedial services, for the maximum reduction of mental disability and the restoration of the child to the best possible functional level, regardless of whether the service is on the list of covered services in this Plan.
The provision of in-home support services are based upon the child’s individual needs. All children who need in-home support services will have access to the same Medicaid-covered services, although the intensity, frequency, and duration of each service may vary according to the needs of the individual child. Each covered service shall be provided promptly, once be approved by the Child and Family team, but without prior authorization by the Community Service Agency, MBHP, other behavioral health carve out, MCO, or MassHealth, unless the intensity or duration of services exceeds an outlier standard. In-home support services are provided as long as necessary to meet the child’s individual needs.
B. Covered Services Described in the Plan
This covered services described in this Plan include those medically necessary, inhome support services that a child needs to remain in his home and home community, as determined by his/her treating clinician.4 Services provided outside of the home or community, such as those inpatient, outpatient, and residential services currently funded or provided by DMH, DMR, DSS, DYS, MBHP, other behavioral health carve out, or MCO are not included in this Plan,5 but, if otherwise covered under the Medicaid Act, shall be provided when medically necessary. Thus, children who are determined to need in-home support services will have access to at least the covered services described below, plus existing Medicaid covered inpatient, outpatient, and residential support services.
The covered services in this Plan are divided into three categories: Crisis Management Services, Home-Based Services, and Coordination of Care. While
4 Several States and home-based programs throughout the country have developed a list of covered services that reflect a broad range of children and mental health treatment needs, their experience in providing and funding in-home support services, and approval from CMS for specific services and service descriptions. The list of covered services borrows from and incorporates the services of several nationallyacclaimed programs as well as those mental health services mandated by the recent court decision in Katie A. v. Bonta in California.
5 MassHealth will continue to fund substantially the same inpatient and outpatient services described in the 2001 PCC Behavioral Health contract with the Massachusetts Behavioral Health Partnership, Appendix A, sections A, C, and D(1)-(3).
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Community Service Agencies or home-based providers may also arrange and coordinate residential, outpatient, and inpatient services for children enrolled in its program, these facility-based services are not considered in-home support services, and, therefore, are not included in this Plan. Nevertheless, children in certain out of home settings may need and benefit from the in-home support services on this list, both to treat their psychiatric, behavioral, and emotional conditions, and to facilitate their return to the community.
The covered services described below include only services that are covered by Medicaid and eligible for FFP, unless the Commonwealth determines to include additional services. These covered services shall be available throughout the Commonwealth and shall be consistent within each Community Service Agency, MBHP, other behavioral health carve-out, or MCO.
Each covered service includes a service description and, where appropriate, the qualifications of the staff who provide the service. Rates shall be established for each service.
C. Qualifications of Professional and Paraprofessional Providers
The following definitions apply to the provider qualifications that appear in the descriptions of the covered services in this Plan:
“Qualified, licensed clinician” and “qualified paraprofessional” refer to individuals with specific licensure, education, training, and/or experience, as will be set forth in standards to be established by EOHHS and DMH, with the assistance of local experts. Such individuals will be authorized to provide specific services referred to herein.
A licensed clinician is an individual licensed by the Commonwealth to provide clinical services within a particular scope as defined by the applicable licensing authority or statute, including, but not necessarily limited to, physicians, psychiatrists, licensed clinical psychologists, licensed independent clinical social workers, licensed clinical social workers and licensed mental health counselors.
A paraprofessional is an individual who, by virtue of certification, education, training or experience is qualified to provide therapeutic support services under the supervision of a licensed clinician.
D. Covered Services
1. Crisis Management Services
Mobile Crisis Intervention
A mobile, on-site, face-to-face therapeutic response to a child experiencing a mental health crisis for the purpose of identifying, assessing, treating, and stabilizing the
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situation in community settings (including the child’s home) and reducing the immediate risk of danger to the child or others. Mobile crisis services may be provided by a single professional crisis worker or by a team of professionals trained in crisis intervention. Services are available 24-hours a day, seven days a week. Phone contact and consultation may be provided as part of the intervention. Providers are qualified, licensed clinicians or in limited circumstances qualified paraprofessionals supervised by qualified, licensed clinicians.
Crisis Stabilization
Services designed to prevent or ameliorate a crisis that may otherwise result in a child being hospitalized or placed outside the home. Crisis stabilization staff observe, monitor, and treat the child, as well as teach, support and assist the parent or care taker to better understand and manage behavior that has resulted in current or previous crisis situations. Crisis stabilization staff can observe and treat a child in his/her natural setting or in another community setting that provides crisis services, usually for 24-72 hours but up to seven days. Crisis stabilization staff are qualified, licensed clinicians and qualified paraprofessionals supervised by qualified, licensed clinicians. Crisis stabilization in a community setting is provided by crisis stabilization staff in a setting other than a hospital or a Psychiatric Residential Treatment Facility (PRTF) and includes room and board costs.
2. Home and Community-Based Services
These services may be provided in any setting where the child is naturally located, including, but not limited to, the home including foster homes and therapeutic foster homes, child care centers, respite settings, and other community settings. These services may be provided as a bundled service by a team or as a discrete clinical intervention depending upon the service needs of the child.
In-home Behavioral Services
Behavioral services usually include a combination of behavior management therapy and behavior management monitoring, as follows:
(1) Behavior management therapy is provided by a trained professional, who assesses, treats, supervises, and coordinates interventions to address specific behavioral objectives or performance. Behavior management therapy addresses challenging behaviors which interfere with the child’s successful functioning. The therapist develops and monitors specific behavioral objectives and interventions including a crisis response strategy that are incorporated into the child’s treatment plan. The therapist may also provide short-term counseling and assistance, depending on the child's performance and the level of intervention required. Behavior management therapy is provided by qualified, licensed clinicians.
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(2) Behavior management monitoring is provided by a trained behavioral aide, who implements and monitors specific behavioral objectives and interventions developed by the behavior management therapist. The aide may also monitor the child’s behavior and compliance with therapeutic expectations of the treatment plan. The aide assists the therapist to teach the child appropriate behaviors, monitors behavior and related activities, and provides informal counseling or other assistance, either by phone or in person. Behavior management monitoring is provided by qualified paraprofessionals supervised by qualified, licensed clinicians.
In-home Therapy Services
Therapy services include a therapeutic clinical intervention and ongoing training and therapeutic support, as follows:
(1) A structured, consistent, therapeutic relationship between a licensed clinician and the family and/or child for the purpose of meeting specific emotional or social relationship issues. The licensed clinician, in conjunction with the Child and Family team, develops and implements therapy goals and objectives which are incorporated into the child’s treatment plan. Clinical services are provided by a qualified, licensed clinician who will often work in a team that includes a qualified paraprofessional who is supervised by the qualified, licensed clinician.
(2) Ongoing therapeutic training and support to the child / adolescent to enhance social and communication skills in a variety of community settings, including the home, school, recreational, and vocational environments. All services must be directly related to the client’s treatment plan and address the child’s emotional/ social needs, including family issues related to the promotion of healthy functioning and feedback to the family. This service is provided by a qualified paraprofessional who is supervised by the qualified, licensed clinician. This paraprofessional may also provide behavior monitoring as described above.
Mentor Services
Independent Living Skills Mentors provide a structured, one-to-one relationship with an adolescent for the purpose of addressing daily living, social, and communication needs. Each adolescent who utilizes an Independent Living Skills Mentor will have independent living goals and objectives developed by the adolescent and his/her treatment team. These goals and objectives will be incorporated into the adolescent’s treatment plan. Mentors are qualified paraprofessionals and are supervised by a qualified, licensed clinician.
Child/Family Support Mentors provides a structured, one-to-one relationship with a parent(s) for the purpose of addressing issues directly related to the child’s emotional and behavioral functioning. Services may include education, support and training for the parent(s) to address the treatment plan’s behavioral health goals and objectives for the child. Areas of need may include parent training on the development and implementation of
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behavioral plans. Child/Family mentors are qualified paraprofessionals and are supervised by a licensed, qualified clinician.
Child/Family Support Trainings
Parenting classes or other structured group activities designed to enhance the parentchild relationship. Training normally involves a curriculum or defined set of experiences that promote usable learning and skill development to promote the child’s behavioral health and functioning. Providers are licensed or Master level clinicians.
Multi-Systemic Therapy
An evidence based practice that integrates family-focused, strength-based wraparound services primarily for children involved in juvenile justice system. Services are provided by a professional and paraprofessional supervised by a licensed clinician.
Therapeutic After School Services
Services include individual and related therapies and counseling in a therapeutic setting with an emphasis on skill building, psychosocial skills, occupational training, and relationship problem-solving. Staff are qualified and trained professionals, with assistance from supervised paraprofessionals.
Special Therapies
Occupational, physical, and speech therapies, including physical and sensory integration techniques, provided to children in home, school and community settings. Providers will possess related educational experience and certification. Documentation includes diagnostic impressions and progress toward identified outcomes.
Interpreters
Interpretive services (sign language or oral (non-English) interpretation to allow the child and family to participate in treatment planning and treatment services.
3. Coordination of Care
Comprehensive Assessment
Services include face-to-face contact for the purpose of assessing the family’s and child’s strengths and needs; an evaluation of the child’s current living situation, relationship, and family functioning; and a review of information regarding the child’s clinical, educational, social, behavioral health, and criminal justice history. Assessments should be completed in the family home whenever possible and support the cultural context of the family. Providers are Master level or above clinicians with appropriate certification. Comprehensive assessments also include a face-to-face clinical assessment of the child and
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family by a Psychiatrist (MD), Psychologist, Master Level Social Worker or Clinical Nurse Specialist that includes clinical impressions, DSM IV Axis Diagnosis, and recommendations for treatment planning.
Care Management and Intensive Care Management
As described in Section VII of the Plan, Care Management and Intensive Care Management are outcome-focused, strength-based services that assist families and children by locating, accessing, coordinating and monitoring mental health, social services, educational and other services. Care Management and Intensive Care Management services include assembling and coordinating the Child and Family team, coordinating the development of the ISP, arranging and monitoring services described in the ISP, regularly reviewing the ISP, facilitating collaborative communication and decision-making across child welfare, juvenile justice, mental health, corrections, and educational systems; and assisting in emergency or crisis situations. Care Management and Intensive Care Management also include face-to-face activities or collateral contacts that directly benefit the child and family. Services may be provided by licensed or Master level clinicians.
Care Management primarily is for children with SED who have a functional impairment that requires treatment which is beyond the scope of clinic-based outpatient services. A care manager has a caseload of approximately 16-20, and visits the child and family at least bi-weekly.
Intensive Care Management is for children with SED who are experiencing serious mental health and/or behavioral issues and have a significant functional impairment. An intensive care manager has a caseload of approximately 8-10 and visits the child and family approximately weekly.
Case Consultation
In-person or telephone meeting between the care manager, treating providers, physician, and other health care professionals or paraprofessionals involved in the child’s care to develop, monitor, or modify a comprehensive assessment or Individual Service Plan, or to review services and progress towards objectives in the ISP, including their attendance or participation in Child and Family team meetings or educational case conferences.
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SECTION 5: THE METHOD FOR PROVIDING IN-HOME SUPPORT SERVICES
XII. Community Services Agencies
A. Designation of Service Areas
Each service area or relevant community in the Commonwealth will have a Community Services Agency. There may be a separate Community Service Agency for a portion of a city (Boston), in order to reflect cultural and linguistic characteristics, or the same Community Service Agency may serve several counties (Franklin and Hampshire). The determination of relevant service areas generally will reflect DMH areas.
Within three months of the approval of this Plan, EOHHS and DMH will determine the number and geographical boundaries of the service areas for in-home support services. Although the service areas will generally mirror DMH catchment areas, areas may be consolidated in order to promote consistency, quality, and efficiency. However, in order to ensure community connectedness and involvement, as well as cultural and ethnic diversity, in no event will there be less than fifteen or more than thirty areas.
As described in the Core Components portion of this Plan (Section 3), there will be a Community Services Agency provider for each service area that is responsible for conducting comprehensive assessments, providing care management, coordinating and overseeing Child and Family teams and Individual Service Plans, developing clinical partnerships and affiliation agreements with direct care service providers, and providing or arranging all in-home support services, either directly or through its partnership. Other agencies (“alternative home-based services providers”) may also provide these functions in the same area.
B. Selection of Community Services Agency
The Community Services Agency provider must be an agency that is responsive to the needs and strengths of the local community, that operates in collaboration with public agencies including DMH, DSS, DYS, DMR and local educational authorities, and that is committed to the CASSP values and principles for providing home-based services. EOHHS, in conjunction with DMH, and after consultation with DSS, DYS, DMR, local experts, and the plaintiffs, will establish rigorous qualifications and operational standards for a Community Services Agency.
The Community Services Agency provider will be selected by a competitive bid process pursuant to these criteria. EOHHS and DMH, in conjunction with DSS, DYS, DMR, community leaders, and local experts, will select the Community Services Agency provider for each community.
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Within nine months of the approval of this Plan, EOHHS and DMH, after consultation with other EOHHS agencies, families, and local system of care experts, will select and contract with Community Services Agencies for one-third of the service areas. EOHHS and DMH, using the same process, will select and contract with Community Services Agencies for an additional one-third of the service areas within eighteen months and for the remainder of the services areas within twenty-four months of the approval of this Plan.
C. Roles and Responsibilities of Community Services Agencies
All Medicaid-eligible children in the same community, regardless of their health plan, will have access to the same Community Services Agency. If there is another qualified alternative home-based services provider that offers all of the core components of in-home support services for that community, children may elect that alternative home-based services provider.6 If in-home support services are offered to Medicaid recipients who are not part of a managed care plan, they may access these services through the Community Services Agency for their community or alternative home-based services provider in their community. Children and families will not be required to enroll in a specific health plan (MCO or PCC) to obtain in-home support services or disrupt existing relationships with medical care providers in order to access in-home support services.
The Community Services Agency and alternative home-based services provider are required to:
1. serve all Medicaid-eligible enrolled children in their relevant community who need a comprehensive assessment and in-home support services;
2. provide certain core services and ensure prompt access to all other covered services;
3. develop clinical partnerships and affiliations with qualified providers of in-home support services, determine the providers which will offer specific services to an individual child as set forth in the ISP, and monitor the services provided by these providers to ensure consistency, quality, efficiency, and effectiveness;
4. operate pursuant to statewide policies and procedures for conducting assessments, providing care management, making medical necessity determinations concerning needed services, and accessing and providing in-home support services;
6 It is unclear whether there will be alternative home-based services providers, or where they will be located. This alternative would offer a choice to families, as well as comply with provisions of the Medicaid Act concerning qualified providers.
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5. meet statewide performance standards and outcome measures; and
6. collect and disseminate performance and outcome data.
In order to ensure consistency and quality, Community Services Agencies and alternative home-based services providers will be rigorously monitored by EOHHS.
D. Services Provided by Community Services Agencies
1. Core Services
The Community Services Agency and alternative home-based services provider are responsible for conducting assessments, providing care management, coordinating and overseeing the Child and Family team, and approving the Individual Service Plan. They are also responsible for providing, or ensuring immediate access to, certain core mental health services, including crisis and respite services.
The Community Services Agency and alternative home-based services provider must have qualified and trained staff and supervisors who conduct comprehensive assessments for all referred children, and complete all relevant intake activities. They must have a sufficient number of qualified and trained care managers and clinical supervisors to satisfy the caseload ratios for the level of care management that is needed by the children they serve. A psychiatrist or psychologist employed by the Community Services Agency and alternative home-based services provider will approve all Individual Service Plans and confirm the medical necessity of all services incorporated in the ISP.
The Community Services Agency and alternative home-based services provider are responsible for the functioning of the treatment teams that serve children in its community. They must have relationships and agreements with state and local educational agencies in its communities. They must have policies and procedures for the structuring, functioning, and monitoring of these treatment teams, and have effective procedures to ensure that conflicts amongst members of the team are efficiently resolved.
The Community Services Agency and alternative home-based services provider must provide, or ensure immediate access to, specialized mobile crisis and emergency services for children, either through their own staff or through contracts with other agencies, to serve the children in its community. The Community Services Agency and alternative home-based services provider’s crisis program must have the capacity to evaluate the child in the home, and provide direct clinical interventions in the home for up to three days, through crisis workers or specialists. The crisis program must operate a crisis shelter or community living arrangement where a child may remain for up to seven days and receive intensive crisis services from qualified mental health professional and crisis workers. If the child is in a crisis at any entry point along the pathway to in-home support services, or if a state agency or mental health provider determines that the child is in, or imminently at risk of, a crisis, then the child should be evaluated in the child’s
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home by a mobile crisis/emergency services program, whenever possible, unless clinically inappropriate.

2.

Other In-home Support Services

The Community Services Agency and alternative home-based services provider must promptly provide the array of covered services, either through its own staff or through clinical partnerships and affiliation agreements with other agencies, to serve all of the children in its community who need in-home support services. They must use other affiliated providers in the relevant community to offer at least some in-home support services, in order to promote choice for families, afford timely access particularly in large geographical communities, ensure cultural competency, and promote community involvement.

If in-home support services are provided through other agencies, then the Community Services Agency and alternative home-based services provider must develop clinical partnerships and affiliation agreements with these providers; approve, coordinate, and monitor these affiliated providers; ensure timely access to clinical services; be accountable for the performance of the affiliated providers; and ensure that all services are provided in an integrated, coordinated, and consistent manner.

3. Administrative Services

The fiscal and administrative services necessary to operate and support the Community Services Agency’s and alternative home-based services provider’s clinical partnership, including information technology, data management, claims processing, and payment will be the responsibility of the managed care organization or behavioral health carve-out.

E. Relationship between the Community Services Agency and Alternative Home-based Services provider and the Managed Care Organization

In order to ensure access, consistency, and quality, each managed care organization and the behavioral health carve-out will contract with the same Community Services Agency for the relevant community, using a standard contract. The standard contract will describe the same roles and responsibilities; cover the same services; establish the same utilization procedures, performance measures, outcomes, and data collection obligations; and reimburse providers at the same rates for in-home support services.

In appropriate circumstances, where the criteria for the Community Services Agency are met by an existing in-home support services entity or program operating within a managed care organization, or where in-home services and other medical services are to be provided through an integrated network, the Community Services Agency may be the entity or program within the managed care organization. That Community Services Agency may also become the Community Services Agency or

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alternative home-based services provider for other communities or areas. In that case, the same requirements, roles, responsibilities, policies, procedures, covered services, performance measures, and outcomes would apply to the managed care organization’s Community Services Agency, although there may not be a separate contract between the MCO and Community Services Agency.
F. Qualifications and Standards for the Community Service Agency
The Community Services Agency and alternative home-based services provider will operate pursuant to statewide standards an procedures for conducting comprehensive assessments; for assigning care managers; for creating and overseeing treatment teams; for developing, reviewing, modifying, and implementing treatment plans; for providing timely in-home support services; for receiving and responding to consumer complaints and appeals; and for collecting and reporting relevant outcome data that is regularly reviewed and assessed to determine if appropriate quality services are being provided to the children.
Within six months of the approval of this Plan, EOHHS and DMH will develop qualifications and standards for a Community Services Agency and alternative homebased services provider. The qualifications and standards will include, among others:
1. standards to ensure clinical staffing, competency, and supervision of the Child and Family teams;
2. standards to determine that care managers are properly trained and competent to coordinate assessments, develop ISPs, and lead Child and Family teams;
3. standards for the clinical supervision of care managers;
4. standards for the format and timely completion of comprehensive assessments and Individual Service Plans;
5. standard checklists to ensure that all components of the comprehensive assessment and Individual Service Plan are completed;
6. standard instruments to assess whether ISPs are adequate and consistent with the quality criteria used in the Child Service Review, as described in the Compliance Evaluation section of this Plan;
7. outlier standards for certain in-home support services;
8. protocols for the review and approval by the provider’s psychiatrist, psychologist, or other appropriate health care professional of the medical necessity determinations of the Child and Family teams, including the intensity, duration, and frequency of services;
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9. protocols for review by MassHealth or its managed care organizations of the medical necessity of the determinations of the Child and Family teams that exceed outlier standards for certain services;
10. standards for the timely implementation of interim and other in-home support services;
11. standards for the development and oversight of the clinical partnership and affiliated providers that are offering in-home support services;
12. standards for the type and array of in-home support services that must be provided or arranged, in partnership with the affiliated providers, by the Community Services Agency and alternative home-based services provider;
13. standards for the type and array of all other Medicaid covered behavioral health services that must be provided or arranged by the Community Services Agency and alternative home-based services provider;
14. standards to prevent conflicts of interest or undue concentration of direct services by the Community Services Agency and alternative home-based services provider;
15. standards for the efficient management and operation of the Community Services Agency or alternative home-based services provider, including utilization management and review;
16. standards for the collection and maintenance of data and other information for quality improvement and for EOHHS and DMH to measure outcomes on the child and family, program, and system levels.
G. Contract with the Community Services Agency
Within eight months of the approval of this Plan, EOHHS and DMH will develop a standard contract and rates for Community Services Agency and alternative homebased services providers. The standard contract will be used by all MassHealth managed care organizations that offer in-home support services through either a Community Services Agency or alternative home-based services provider.
H. Performance Measures
Within nine months of the approval of this Plan, EOHHS and DMH, in conjunction with other EOHHS agencies, families, and local experts in system of care performance measurement, will develop specific performance measures for the Community Services Agency and alternative home-based services provider that reflect
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the relevant standards set forth above. These performances measures will be used to evaluate compliance at the provider/program level, as described in the Evaluation section of the Plan.
I. Training
Community Services Agencies and alternative home-based services providers will ensure that their clinicians and care managers are adequately trained in the wraparound process and System of Care values and principles, in strength-based assessments, in the role and model of Child and Family teams, in the treatment planning process, and in the performance expectations of in-home support services. Training materials and modules used by MHSPY and CFFC will serve as models for this educational program and will be provided by the Department of Mental Health.
XIII. Service Delivery Policies, Procedures, and Performance Measures for Affiliated Service Providers
A. Affiliated Providers
Within three months of selection, each Community Services Agency and alternative home-based services provider shall establish clinical partnerships and affiliation agreements with providers that will ensure the full array of in-home support and related services in the designated service areas. The Community Services Agency and alternative home-based services provider will utilize a standard contract for each affiliated provider that incorporates the relevant EOHHS standards for the Community Services Agency and the relevant standards for affiliated providers.
B. Service Delivery Policies and Procedures
Within three months of selection, the Community Services Agency and alternative home-based services provider shall develop service policies and procedures for their programs and for affiliated providers that are consistent with the standards established by EOHHS and DMH. The procedures shall include the basic values, competencies, and access and service requirements for providing in-home support services consistent with each child’s ISP, as well as the data collection needed to measure outcomes on the child and family, program, and system levels.
C. Performance Measures
Within twelve months of the approval of this Plan, EOHHS and DMH, in conjunction with other EOHHS agencies, the Community Services Agencies, families, and local experts, will develop performance measures for affiliated providers. These performances measures will be used to measure outcomes at the provider/program level, as described in the Evaluation section of the Plan.
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XIV. Service Codes, Rates and Billing Procedures
A. Service Codes and Rates
Within six months of the approval of this Plan, EOHHS will increase its reimbursement rate to reasonably and fairly compensate medical providers and other health care professionals for conducting formal screens and reporting their findings from these screens. At the same time, EOHHS will establish a reasonable reimbursement rate to reasonably and fairly compensate mental health care providers for conducting preliminary assessments with the CANS and reporting their findings from these assessments.
Within six months of the approval of this Plan, EOHHS and DMH, in conjunction with other EOHHS agencies, will establish billing codes and rates for in-home support services that are reasonably calculated to ensure effective treatment, to attract a range of qualified providers, and to promote timely access to in-home support services throughout the Commonwealth. The rates will be consistent with community standards for each service. If capitation rates for managed care organizations are used to reimburse providers who serve children with SED who receive in-home support services, then a specialty plan or carve-out should be established that reflects the actual costs of these services for SED children.
B. Billing Procedures
Within nine months of the approval of this Plan, EOHHS, as the single state agency, will establish billing procedures that are reasonably calculated to promote timely payment for in-home support services and efficiency of administration. Within the same timeframe, it will develop guidelines, reporting methods, and billing procedures for conducting behavioral health screens and preliminary assessments.
XV. Roles and Responsibilities of State Agencies
EOHHS recognizes that in-home support services are more effective and efficient if the planning and delivery of these services reflects a collaborative effort of all involved child serving state agencies. Therefore, EOHHS will ensure that its agencies cooperate and collaborate in the design and delivery of in-home support services. It will appoint DMH as the lead state agency under this Plan, with the responsibility for overseeing the design, development, and delivery of in-home support services.
In addition, the Governor and EOHHS will direct each child-serving agency, and invite local educational agencies, to participate on Child and Family teams that serve children in its care or custody. EOHHS will ensure that the Community Services Agency and alternative home-based services provider has conflict resolution policies to address service planning barriers and disagreements amongst members of the team, including representatives of child serving state agencies.
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EOHHS will direct each of its child serving agencies to assist in fulfilling the provisions of this Plan, in addressing interagency service planning barriers, and in undertaking the specific tasks for which the agency is responsible under this Plan and under the laws of the Commonwealth.
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SECTION 6: INFORMING, OUTREACH, AND EDUCATION
XVI. Informing
EOHHS shall undertake multiple methods for effectively informing Medicaideligible children, their families, clinicians, providers, and state and local agencies about the purpose, benefit, scope, and coverage of in-home services and shall develop and implement strategies for measurably improving access to these services.
A. Notices and Brochures for Families
Within sixty days of approval of this Plan, EOHHS shall revise its EPSDT notices to effectively inform children and families about the Commonwealth’s obligation under EPSDT to provide screening, assessment, and all behavioral health services to children, including in-home support services, that are deemed medically necessary by the child’s clinician. All notices shall be translated into the relevant languages of the Massachusetts Medicaid population, as well as into accessible formats for children and families with disabilities. The revised notices will be shared with the plaintiffs for comment prior to distribution to Medicaid recipients.
Within sixty days of approval of this Plan, EOHHS also shall prepare a special notice, in understandable language, explaining in detail how children and families can obtain medically necessary services that are not covered by contracts with managed care organizations, including the documentation necessary to support requests for services, the timetable and actions for each step of the process, and the method for obtaining the services.
Within ninety days of approval of this Plan, EOHHS and DMH shall develop a special information booklet about in-home support services that describes, in understandable language: (1) what in-home support services are, and how they differ from existing behavioral health services for children; (2) the purpose and benefits of inhome services; (3) where and how to access these services; (4) the screening and assessment process for these services; (5) referrals by primary care clinicians and other health care professionals for these services; (6) the eligibility criteria for these services; (7) the pathway for obtaining these services; (8) the role and responsibilities of the Community Services Agency and any alternative home-based services provider; (9) the range of covered services available; and (10) the methods for appealing denials, modifications, and termination of services. The booklet shall contact a chart comparing current services with in-home support services, and include a list of locations and contact information for all Community Services Agencies and alternative home-based services providers. The booklet shall be submitted to the plaintiffs for comment and approval, and revised as additional Community Services Agencies are developed.
EOHHS shall require each managed care organization to revise its member handbooks within 180 days of approval of this Plan to effectively inform parents, children, and providers about the scope, screening and assessment process, eligibility
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criteria, pathway, covered services, the Community Services Agency, and procedures for obtaining in-home support services. EOHHS shall revise the member handbook for the primary care clinician program. The revised handbooks shall include the special notice concerning non-covered services and the information booklet on in-home support services.
B. Communications with Families
EOHHS shall ensure that the Office of Medicaid, through its state agency staff, consumer service representatives and consumer representatives of its managed care organizations, effectively inform families using a combination of oral communications and face to face meetings. EOHHS, either directly or through its managed care organizations, shall develop public service announcements, a public awareness campaign, central telephone information resources, and other means to inform families about the Commonwealth’s obligation under EPSDT to provide all behavioral health services to children that are deemed medically necessary by the child’s clinician, and specifically about the benefits and availability of in-home support services.
C. Provider Manuals and Alerts
EOHHS shall require each managed care organization to revise its provider manuals within 180 days of approval of this Plan to effectively inform providers about the scope, screening and assessment process, eligibility criteria, pathway, covered services, Community Services Agency, and procedures for obtaining in-home support services. The managed care organizations shall use a variety of provider and program alerts, brochures, educational forums, electronic and other methods to inform providers about the availability of in-home services, the billing codes and rates for these services, the procedures for referring and obtaining these services for children, and the process for seeking approval of an outlier level of services. EOHHS shall use similar methods to inform primary care clinicians and other fee for service providers about these services and processes, and ensure that similar modifications are made to the PCC program manuals and alerts.
In addition, EOHHS shall:
1. Update its EPSDT regulations to reflect the program improvements described in this Plan;
2. Update Appendix W of the MassHealth Provider Manual, which describes medical protocols and periodicity schedules for EPSDT services, to reflect the program improvements described in this Plan;
3. Draft and distribute special provider communications related to the program improvements described in this Plan;
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4. Update and distribute existing provider education materials to reflect the program improvements described in this Plan;
5. Expand the distribution points of existing materials regarding EPSDT generally, including the program improvements described in this Plan;
6. Implement any other operational changes required to implement the program improvements described in this Plan;
7. Hold special forums for providers to encourage clinical performance activities consistent with the principals and goals of the Plan; and
8. Coordinate these efforts with the “Virtual Gateway,” which is the EOHHS system for web-based, on-line access to programs, including MassHealth and related benefit programs such as food stamps, and which allows a wide array of hospitals, community health centers, health and human services providers, and other entities to assist children and families in enrolling in MassHealth.
XVII. Outreach and Education
A. Outreach
EOHHS will promptly develop a statewide outreach initiative for families to introduce them to the purpose, benefits, and scope of in-home support services and to engage them in the development and implementation of the new program. The plaintiffs and relevant family organizations will be invited to assist in developing this initiative. Within three months of the approval of this Plan, EOHHS will implement the initiative to inform families about the pathway to in-home support services as well as the scope and availability of covered services. The initiative will include separate outreach efforts to families, adolescents and teenage children, and all entry points concerning in-home support services.
In developing and implementing this outreach initiative, EOHHS will collaborate with existing family advocacy organizations, including the Parent/Professional Advocacy League (PAL), the Federation for Children with Special Needs, Massachusetts Family Voices, the Massachusetts Chapter of the National Alliance for the Mentally Ill (NAMI), the Association for Retarded Citizens (Arc-MA), the Massachusetts Association for Mental Health (MAMH), the Massachusetts Association of Foster Families (MAFF), and the Children’s League. EOHHS shall contract with a qualified family organization, jointly selected by the parties, to assist it developing and implementing its outreach initiative.
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B. Education
EOHHS shall sponsor special orientation and educational meetings throughout the Commonwealth to introduce families, clinicians, providers, primary care clinicians, school officials, and community organizations to the purpose, benefits, and scope of inhome support services and the processes for accessing these services.
Within six months of approval of this Plan, EOHHS will develop and implement ongoing educational programs for families, health care professionals, state agency workers, child care center staff, school employees, mental health professionals and other relevant parties concerning the requirements of this Plan and federal law with respect to periodic and interperiodic screening, preliminary assessments, the purpose, benefit, and scope of in-home support services, the pathway to in-home support services, covered services, and methods for accessing medically necessary mental health services for children with SED.
EOHHS will provide targeted training, education and outreach to medical and other health care professional concerning formal behavioral health screening. It will provide targeted training, education and outreach to mental health and other health care providers concerning preliminary assessments.
EOHHS shall ensure that its MassHealth managed care organizations and primary care providers, Community Services Agency and alternative home-based services providers, and network providers are trained in the requirements of this Plan and federal law with respect to periodic and interperiodic screening, preliminaryassessments, the pathway to in-home support services, covered services, and the process for accessing medically necessary services for children with SED.
In addition, EOHHS will:
1. Develop and implement training programs for line staff of Departments of Mental Health, Social Services, Youth Services, Mental Retardation, Transitional Assistance, and the Office for Refugees and Immigrants on how to access preliminaryassessments, comprehensive assessments, and in-home support services for children with SED;
2. Together with the Department of Early Education and Care, educate preschools, childcare centers and Head Start Programs on how to access preliminaryassessments, comprehensive assessments, and in-home support services for children with SED;
3. Together with the Department of Education, provide the most up-to-date information for Public School Districts for use as part of their special education evaluations and other health efforts on how to access preliminaryassessments, comprehensive assessmens, and Medicaid inhome support services for children with SED; and
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4. Together with the state Department of Public Health’s School Health Program, educate school nurses on how to access preliminaryassessments, comprehensive assessments, and in-home support services for children with SED.
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SECTION 7: DATA COLLECTION, EVALUATION, AND MONITORING

XVIII.

Data Collection and Evaluation Program

A. Purpose and Function of Data Collection

There are four primary goals of this Plan: (1) to improve screening, diagnosis, and mental health treatment for SED children; (2) to establish an accessible and efficient system for providing in-home support and related behavioral health services to SED children; (3) to increase the type and availability of in-home support services for children with SED; and (4) to increase the effectiveness of care for children who receive in-home and other behavioral health services in the Commonwealth. With respect to the last goal, the primary emphasis is on measures of child functioning rather than just symptom reduction. This is consistent with the Court’s ruling and Medicaid’s emphasis on improving overall functioning. It is also consistent with the recommendations of the President’s New Freedom Commission on Mental Health. There must be specific data collected on the key elements of each goal, and a method for evaluating the data that informs the parties, the Court, and the beneficiaries of this Plan.

Evaluation of data is an essential element of achieving the goals of this Plan and the implementation of the Court’s ruling. Current data collection and monitoring capacities will be expanded to include activities that reflect the requirements of the Plan at three distinct levels: (1) the child and family level; (2) the agency or provider level; and (3) the system level.

Collecting relevant data, evaluating this information, and taking corrective actions are necessary to ensure that the Plan achieves its specified goals. Data should be used to highlight meaningful progress and areas for improvement at the agency and system levels, as well as a means of monitoring the progress of individual children and families. This is particularly important given the Court’s expectation that the results of the Plan’s evaluation and monitoring mechanisms will be public and scrutinized by federal and state officials, as well as families and advocates.

The following guidelines will be used for collecting data to evaluate service and system requirements:

1. Data should be collected and Plan requirements should be evaluated at all three levels of the child mental health service system;

2. There should be transparency and public presentations of findings, regular and frequent review by key decisionmakers, feedback to those who have provided the data, and culturally and linguistically competent measures and data collection procedures;

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3. The major focus of the evaluation process should be the degree of progress and success in achieving the goals of the Plan: improved screening and diagnosis; an efficient delivery system; increased access to care in a timely manner; and increased effectiveness of care that produces better functioning in the community;
4. It is also essential to collect data on a regular basis on the team planning process, plan implementation, and service utilization, with a focus on those elements that are required by the Plan.
EOHHS shall establish a data collection and evaluation program to measure the screening, assessment, and service requirements of this Plan. EOHHS shall coordinate this program, shall ensure that its agencies, including at least DMH, DMR, DSS, DYS, and the Office of Medicaid, participate in this program and share information with families and local stakeholders, and shall take the necessary actions so that these agencies engage in consistent practices to implement this program and this Plan.
B. Data Collection and Evaluation of Screening Requirements
The pathway to in-home support services includes screening, diagnosis, and assessment processes. These stages must be accurate and reliable if the children who need in-home support services actually receive them.
EOHHS will develop a data collection program that tracks whether and when a well-child visit occurred, when an interperiodic screening visit occurred, whether a formal behavioral health screen was completed during the visit using one of the approved instruments, whether the parent or guardian refused to participate in the screen, whether the screen indicated that the child had a mental health condition, whether the child was already engaged in mental health treatment, and whether a referral for a preliminary assessment was made.
EOHHS, in conjunction with DMH and families, shall establish a method for evaluating psychiatric medication management by pediatricians and primary care providers provided to children with SED, in order to ensure that such treatment is appropriate.
C. Data Collection and Evaluation of Preliminary Assessment Requirements
EOHHS will develop a data collection program that tracks which children who have been referred for a preliminary assessment; whether that referral was made by a medical provider or other health care professional pursuant to a formal EPSDT screen, by a publicly-funded entity as part of its intake and evaluation process, or by other means; whether the assessment was completed; whether the preliminary assessment concluded that the child needed a comprehensive assessment; and whether the parent or guardian refused to participate in the assessment.
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EOHHS will collect data on the timeliness of the assessment processes, its adherence to professional and other standards, and its role in providing access to care for children with SED.
D. Data Collection and Evaluation of Child Service Requirements
Data must be collected with respect to the accuracy and reliability of comprehensive assessments, the appropriateness and fidelity of the treatment planning process, the consistency or “fit” between the child’s identified needs and the services described in the Individual Service Plan, and the actual provision of the planned services, including the type, intensity, frequency, duration, and sequencing of each service, as well as the level of engagement of the child and family.
1. Child Service Reviews
The central approach to evaluating in-home support services, the functioning of the Child and Family teams, and the overall effectiveness of the treatment planning process is through an individualized review of a sample of children with SED who are receiving these services. EOHHS shall conduct an annual Child Service Review, using the Child and Family Team Practice Improvement Review adopted by the Arizona for its evaluation of EPSDT in-home support services or another established and validated review protocol agreed to by the parties. The Arizona review protocol is attached as Appendix 3. If the protocol is modified for use in Massachusetts, the revised form shall be substituted in Appendix 3.
The review will be conducted by qualified and trained reviewers, based upon a random sample of children who are receiving in-home support services through Community Services Agency providers. The review will be undertaken pursuant to established protocols described in a reviewer’s guide or training materials. The reviewers will conduct interviews with the child, family, and treating clinician, will have access to records and other client specific information necessary to conduct the review, and will complete a review instrument, such as the Arizona Child and Family Team Practice Improvement Review Tool, which is attached as Appendix 4. If the tool is modified for use in Massachusetts, the revised form shall be substituted in Appendix 4. The review sample should be sufficiently large to generate reliable conclusions about all similarlysituated children, with a +/- 5% margin of error. Alternatively, the review can be based upon a smaller sample if the parties agree that its results are valid and reliable for all children receiving in-home support services.
EOHHS, in conjunction with its agencies, families, and local experts, shall establish a process for conducting Child Service Reviews, consistent with accepted standards of practice and the procedures utilized by other States such as Arizona and Hawaii. It shall enter into a separate contract with another qualified evaluation or research entity, agreed to by the parties, to undertake these activities and generate annual reports on Child Service Reviews.
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2. Child functioning
Based upon the experience of home-based and wraparound programs in Massachusetts and elsewhere, as well as the professional literature, in-home support services that are provided consistent with the CASSP principles and within the context of coordinated care should reliably result in a significant improvement in the emotional condition, behavior, and functioning of most children who receive these services. This improvement is expressed as specific scores on various functional scales or measurements. The most important domains for evaluating a child’s functioning in the community are behavioral and emotional problems, clinical functioning, school attendance and performance, law enforcement contacts, residential stability, and use of restrictive services and out of home placements. The CAFAS and the CANS-MH are among the most reliable instruments to evaluate improvements in child functioning.
EOHHS, in conjunction with its agencies, families, and local experts, shall establish a consistent procedure for collecting, reviewing, and analyzing information on child functioning, using the CANS-MH or the CAFAS, with the overall data also being disaggregated to determine the degree of change for children with different constellations of problems and different backgrounds. Unless the defendants have the internal capacity to collect, analyze, evaluate, and disseminate data on child functioning, it shall enter into a contract with a qualified evaluation or research entity or entities, agreed to by the parties, to undertake these activities and generate annual reports on outcomes.
3. Service planning and implementation
The Wraparound Fidelity Index or the Wraparound Observation Form (Second Version) are the most reliable instruments to evaluate the treatment team process and will be one key measure of the adequacy of the Child and Family teams. EOHHS, in conjunction with its agencies, families, and local experts, shall establish methods to evaluate the functioning and operation of Child and Family teams, which may be through the Child Service Review process.
E. Data Collection and Evaluation of Provider Requirements
Data must be collected on the accessibility, quality, and integration of the core components of in-home support services that are the responsibility of the Community Services Agency and alternative home-based services provider. Similarly, information about the accessibility, quality, and operations of the network providers must be collected. For all providers, data about the timeliness, cost, and availability (wait lists) of services is essential. EOHHS and its agencies will collect this information as well as data relevant to evaluate the performance of Community Services Agency, alternative homebased services providers, and affiliated providers with the measures established for each of these entities.
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F. Data Collection and Evaluation of System Requirements
Data necessary to evaluate service system requirements include child and family characteristics, child functioning and family satisfaction, treatment and support planning, provider performance, and service utilization, including the frequency, duration, and intensity of services. EOHHS and its agencies will collect this information and use it to inform their judgments about the adequacy of actions to establish an effective and efficient service delivery system.
EOHHS will collect data on the utilization and the cost of covered services by children with SED. This data also will include information about the request for, and approval of, services that exceed outlier standards.
EOHHS, in conjunction with its agencies, families, and local experts, shall establish a process and collect data to evaluate system requirements across all child service agencies, such as number and percentage of children being served in out-of-home care, and percentage of children in need who are receiving in-home support services.
XIX. Reporting and Corrective Actions
A. Reports
EOHHS will generate quarterly reports on EPSDT periodic and interperiodic screens, preliminary assessments, comprehensive assessments, service recommendations, and the utilization of covered services that include all of the data and information described in this Plan.
EOHHS’ contractors shall generate annual reports on the findings of their Child and Family team evaluations, child functioning evaluations, and Child Service Reviews, including systemic and individual findings, conclusions, and recommendations for improvement.
B. Corrective Actions
EOHHS, in conjunction with its agencies, families, and local experts, will develop and implement corrective actions to address problems identified with the rate, referrals, or results of periodic and interperiodic screening and preliminary assessments. EOHHS will review the data on EPSDT periodic and interperiodic screens to determine if all children are receiving appropriate and timely behavioral health screens and whether the findings of the screening process properly result in referrals for preliminary assessments. If the data indicate problems in the rate, referrals, or outcomes of the EPSDT screens, EOHHS will take adequate and effective actions to correct these problems in a timely manner.
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EOHHS, in conjunction with DMH and families, will develop and implement corrective actions to address problems identified with the treatment of children with SED by pediatricians or family practitioners.
EOHHS will review the data on preliminary assessments to determine if all children who are referred for these assessments receive them and whether the findings of the assessment process properly result in referrals for comprehensive assessments. If the data indicate problems in the rate or outcomes of the preliminary assessments, and specifically any discrepancy between referrals for, and completion of, preliminary assessments, EOHHS will take adequate and effective actions to correct these problems in a timely manner.
EOHHS, in conjunction with its agencies, families and local experts, will develop and implement corrective actions to address problems identified in the functioning and operation of Child and Family teams.
EOHHS, in conjunction with its agencies, families, and local experts, will develop and implement corrective actions to address problems identified with the utilization of covered services, the review of outlier requests, and the consistent implementation of Individual Service Plans.
If the desired outcomes are not achieved or if problems are identified in the Child Service Reviews, then EOHHS, in conjunction with its agencies, families, and local experts, shall take all necessary actions to review the performance of the Community Services Agency and alternative home-based services provider and the affiliated providers of in-home support services; the functioning of the Child and Family teams; the actions of state and other agencies involved in the planning, funding, or delivery of inhome support services; and the policies, procedures, and processes that have been established to guide the provision of in-home support services across all child-serving agencies. As a result of this review, EOHHS shall take appropriate corrective action designed to improve the outcomes for children with SED.
EOHHS will consider the recommendations for improvement set forth in the annual reports on Child and Family teams, child functioning evaluations, and the Child Service Reviews, and, in conjunction with its agencies, families, and local experts, will develop and implement strategies or corrective actions to address these recommendations.
XX. Monitoring, Dispute Resolution, and Modification
A. Compliance Coordinator
The defendants shall designate an individual to serve as its Compliance Coordinator. The Coordinator shall have the necessary authority to review, evaluate, and design and implement strategies to facilitate compliance with this Plan and the Court’s orders by the defendants, their agencies, agents, and employees. The Coordinator shall
41

identify any obstacles to timely compliance and have the authority to implement actions that effectively address such obstacles.
The Compliance Coordinator shall develop semi-annual reports that describe the defendants’ actions to address each provision or section of this Plan and any remedial orders of the Court. The report also shall identify any obstacles that have impeded compliance with these provisions.
The defendants shall establish a Compliance Committee comprised of representatives of EOHHS, DMH, DMR, DSS, DYS, the Office of Medicaid, EOAF, and the Governor’s Office to oversee compliance with this Plan. The Committee will be staffed by the Compliance Coordinator.
B. Compliance Meetings
The plaintiffs, Compliance Coordinator, and the Compliance Committee will meet quarterly to discuss the implementation of this Plan and any obstacles to its full and timely implementation. The meetings will be facilitated by the Court Monitor.
C. Court Monitor
1. Appointment
The Court shall appoint a Monitor to oversee the implementation of its remedial order and this Plan. The Monitor shall serve at the discretion of the Court, and shall undertake those tasks described in the Court’s orders.
The plaintiffs and defendants shall propose two qualified candidates to serve as the Monitor. If the parties cannot agree on a person to serve as the Monitor, the Court shall select the Monitor. In the event that the Monitor resigns or otherwise is unable to continue to serve, the same process shall be used to select a replacement.
The Monitor shall be compensated by the defendants at a rate established by the Court. The Monitor shall prepare an annual budget for approval by the Court. The parties shall be afforded an opportunity to review and comment on the budget prior to its submission to the Court.
2. Authority
The Monitor shall have the authority to: (1) collect information relevant to the defendants’ obligations under the Court’s orders and this Plan; (2) coordinate and facilitate meetings between the parties; (3) independently review the defendants’ compliance with the Court’s orders and this Plan; (4) respond to complaints concerning compliance or other actions of the defendants; (5) recommend corrective or further actions necessary to redress any problems identified in implementing the Court’s orders
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or this Plan; (6) mediate disputes between the parties; and (7) take whatever actions are useful to facilitate the timely implementation of the Court’s orders and this Plan.
The Monitor shall have access to all information, data, reports, records or related documentation in the possession of the defendants, their agents, contractors, evaluators, and providers that is necessary to perform the above functions.
3. Termination
The reporting and monitoring requirements of this section will terminate two years after the system of in-home supports is fully developed and all other provisions of the Plan have been implemented.
D. Dispute Resolution Procedure
Any party may present a dispute concerning any aspect of the Plan to the Monitor for resolution. Any party may appeal of a decision of the Monitor to the Court for final resolution. The Monitor shall establish a dispute resolution process to address disagreements or issues concerning the Plan.
Except in cases of an emergency, thirty days prior to filing a motion with the Court, a party shall give the other parties and the Monitor written notice of the substance of the motion and be available to meet to discuss the matter. With the assistance of the Monitor, the parties shall make good faith efforts to resolve the matter, but may file the motion without further delay if these efforts are unsuccessful.
E. Modifications of the Plan
It is understood that provisions of the Plan may need to be modified based upon new information, experience, and legal requirements. Any modification must be consistent with the goals and purposes of the Plan, the orders of the Court, and federal Medicaid law.
1. Standards for Modification
A party may seek to modify a provision of the Plan if one of the following criteria are satisfied:
1. Evolving professional standards, emerging best practices, or new information indicates that the requirement is no longer consistent with those standards and practices;
2. A change in law has made compliance with a provision illegal or impractical;
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3. Evidence demonstrates that the requirement is inefficient or ineffective at promoting the purpose of that provision;
4. CMS has communicated in writing that FFP is not available for a specific service or activity; or
5. Unforeseen circumstances render compliance with that requirement impossible or excessively burdensome. 2. Procedures for Modification
Any provision of the Plan that vests the defendants with the discretion to implement a requirement based upon the agencies’ judgment and experience can be modified in the discretion of that agency, provided that the modification is consistent with one of the five standards set forth above. The defendants shall inform the plaintiffs of the modification. If the plaintiffs believe the matter is not entrusted to the discretion of the defendants pursuant to the Plan, the plaintiffs may invoke dispute resolution process.
All other provisions of the Plan may be modified only after prior notice and the opportunity to object. If a party objects to the modification, the Monitor shall determine if the proposed modification is consistent with the goals and purposes of the Plan and the Court’s orders, is consistent with one of the five standards set forth above, and appropriate in light of new information and evolving professional standards. Any party dissatisfied with the Monitor’s decision may present the proposed modification to the Court pursuant to Fed. R. Civ. P. 60.
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 Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 1 of 102
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:01−cv−30199−RGS

ADVISE

Rosie D, et al v. Romney, et al Assigned to: Judge Richard G. Stearns Demand: $0 related Case: 1:10−cv−30073−WGY
Case in other court: USCA − First Circuit, 19−01262
USCA − First Circuit, 19−01767 Cause: 42:1396 − Tort Negligence
Plaintiff

Date Filed: 10/31/2001 Date Terminated: 07/16/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Rosie D. By her parents John and Debra D.

represented by Cathy E. Costanzo Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: ccostanzo@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski Law Office of Frank J. Laski 154 Oliver Road Newton, MA 02468 (617) 508−6548 Email: fjlaski@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote 200 Riverside Blvd. New York, NY 10069 617−742−9100 Fax: N/A TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling 570 Lexington Road Concord, MA 01742 617−312−4985 Email: jburling570@gmail.com TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker Center for Public Representation 246 Walnut Street Suite 202 Newton, MA 02460 617/965−0776 Fax: 617/928−0971 Email: krucker@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 2 of 102
Samantha J. Morton Hale & Dorr, LLP 60 State Street Boston, MA 02109 617−526−6000 Fax: 617−526−5000 Email: samantha.morton@haledorr.com TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Jane Shanahan Sherin and Lodgen LLP 101 Federal Street Boston, MA 02110 617−646−2000 Fax: 617−646−2222 Email: sjshanahan@sherin.com TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: sschwartz@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel W. Halston Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6654 Fax: 617−526−5000 Email: daniel.halston@wilmerhale.com ATTORNEY TO BE NOTICED
James W. Prendergast Wilmer Hale LLP 60 State Street Boston, MA 02109 6177214092 Email: jimprenderg@gmail.com TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee 2719C Laniloa Road Honolulu, HI 96813 808−441−6170 TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
Kevin R. Palmer Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6661 Email: kevin.palmer@wilmerhale.com ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 3 of 102

Plaintiff Tyriek H. by his mother Christine H.
Plaintiff Joshua D. by his mother Emelie D.

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 4 of 102

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff
Sheena M. by her mother, Deborah D.

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 5 of 102

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff
Devin E. by his grandmother Barbara E.

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 6 of 102

ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff
Anton B. by his mother Lisa A.

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 7 of 102

(See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff
Nathan F. by his mother Tracey F. TERMINATED: 11/23/2004

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 8 of 102

Plaintiff Shaun E. by his grandmother Jacquelyn E.
Plaintiff Jerry N. by his mother Susan P. On behalf of themselves and all others similarly situated

represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Cathy E. Costanzo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank J. Laski (See above for address)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 9 of 102

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabrielle E. Foote (See above for address) TERMINATED: 05/18/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Burling (See above for address) TERMINATED: 12/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samantha J. Morton (See above for address) TERMINATED: 05/13/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jane Shanahan (See above for address) TERMINATED: 12/23/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Samuel L.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 10 of 102

Jose M.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Terrence M.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Marc St. L.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Natisha M.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 11 of 102

Plaintiff Sarah B.
Plaintiff Forrest W.
Plaintiff Jason S.
Plaintiff Shentelle G.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
John Sup Rhee (See above for address) TERMINATED: 07/02/2008

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 12 of 102

ATTORNEY TO BE NOTICED

Plaintiff Christine Q.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Kristin P.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Chris T.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Chelsea T.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 13 of 102

(See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Ralph B.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Tevin W.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

Plaintiff Danielle H.

represented by Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Prendergast (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED

John Sup Rhee (See above for address) TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED

V. Petitioner Kristin H.

V. Defendant

represented by

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 14 of 102

Jane M. Swift Acting Governor TERMINATED: 04/26/2005

Adam Simms Pierce Davis & Perritano LLP Suite 1100 10 Post Office Square Boston, MA 02109−4603 617−350−0950 Fax: 617−350−7760 Email: asimms@piercedavis.com TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bart Q. Hollander Attorney General's Office Western Mass. Division 1441 Main Street, Suite 1200 Springfield, MA 01103 413−784−1240, X7704 Fax: 413−784−1244 Email: bart.hollander@state.ma.us TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond Attorney General's Office One Ashburton Place Room 2019 Boston, MA 02108−1698 617−727−2200 Fax: 617−727−5785 Email: dan.hammond@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney State Ethics Commission One Ashburton Place Room 619 Boston, MA 02108−1698 617−371−9509 Fax: 617−723−5851 Email: droney@eth.state.ma.us TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie S. Lovell Blue Cross/Blue Shield of Massachusetts Suite 1300 101 Huntington Avenue Boston, MA 02199 617−246−3333 TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Jones Mass. Attorney General's Office 4th Floor 1350 Main Street Springfield, MA 01103 413/784−1240 ext.105 Fax: 413/784−1244 TERMINATED: 02/15/2008

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 15 of 102

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliana deHaan Rice Office of the Attorney General Government Bureau One Ashburton Place Boston, MA 02108 617−963−2583 Fax: 617−727−5785 Email: juliana.rice@state.ma.us TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED

Ronald F. Kehoe Attorney General's Office Room 1813 One Ashburton Place Boston, MA 02108−1598 617−727−2200 ext. 2619 Fax: 617−727−3076 ATTORNEY TO BE NOTICED

John R. Hitt Drohan, Hitt & Hadas, LLC Suite 208 50 Federal Street Boston, MA 02110 857−244−0724 Email: jhitt@drohanhitt.com TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Defendant
Robert Gittens Secretary of the Executive Office of Health and Human Services

represented by Bart Q. Hollander (See above for address) TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie S. Lovell (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Jones (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliana deHaan Rice

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 16 of 102

(See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED

Kenneth W. Salinger 18 Putnam Rd Arlington, MA 02474 781.643.9403 Email: salinger@verizon.net TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

John R. Hitt (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Defendant
Stephen P. Crosby Secretary of the Executive Office of Administration and Finance

represented by Bart Q. Hollander (See above for address) TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie S. Lovell (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Jones (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 17 of 102

Defendant Wendy E. Warring Commissioner of the Division of Medical Assistance
Defendant EOHHS the Executive Office of Health and Human Services

John R. Hitt (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED
represented by Bart Q. Hollander (See above for address) TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie S. Lovell (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy M. Jones (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED
Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED
John R. Hitt (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED
represented by Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 18 of 102

ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Adam Simms (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 ATTORNEY TO BE NOTICED

John R. Hitt (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Defendant Eric Kriss

represented by Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Adam Simms (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 ATTORNEY TO BE NOTICED

John R. Hitt (See above for address) TERMINATED: 11/26/2007 ATTORNEY TO BE NOTICED

Defendant Janice B.

represented by Deirdre Roney (See above for address) TERMINATED: 06/10/2008 ATTORNEY TO BE NOTICED

Juliana deHaan Rice (See above for address)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 19 of 102

TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Defendant Governor Mitt Romney

represented by Adam Simms (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bart Q. Hollander (See above for address) TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R. Hitt (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie S. Lovell (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Jones (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas S. Martland Attorney General's Office 18th Floor One Ashburton Place

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 20 of 102

Boston, MA 02108 617−963−2062 Email: douglas.martland@state.ma.us ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ronald Preston Secretary of Health and Human Services

represented by Adam Simms (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bart Q. Hollander (See above for address) TERMINATED: 11/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R. Hitt (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliana deHaan Rice (See above for address) TERMINATED: 07/18/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie S. Lovell (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Jones (See above for address) TERMINATED: 02/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 21 of 102

TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Guardian ad Litem Robert H. Weber

represented by Robert H. Weber 51 Winchester Street, #205 Newton Highlands, MA 02461−1704 617−225−2131 PRO SE

Interested Party
MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA")

represented by Adam Simms (See above for address) TERMINATED: 11/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deirdre Roney (See above for address) TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth W. Salinger (See above for address) TERMINATED: 11/09/2011 ATTORNEY TO BE NOTICED

Ronald F. Kehoe (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/31/2001
10/31/2001 10/31/2001 10/31/2001
10/31/2001
11/02/2001

# Docket Text
1 Complaint filed. Case assigned to Judge: Michael A. Ponsor. Receipt #: 304684. Amount: $150.00. Filing Fee: Paid. CF, LR 4.1, notice of lawsuit and waiver of service of summons to Counsel. (mef) (Entered: 10/31/2001)
Summons issued for Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring (mef) (Entered: 10/31/2001)
2 Motion by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to proceed by pseudonym filed. (mef) (Entered: 10/31/2001)
3 Memorandum by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. in support of [2−1] motion to proceed by pseudonym , filed. (mef) (Entered: 10/31/2001)
4 Exhibits by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. [2−1] motion to proceed by pseudonym (mef) (Entered: 10/31/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting [2−1] motion to proceed by pseudonym . [EOD Date 11/2/01] cc/cl (mgl) (Entered: 11/02/2001)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 22 of 102

11/13/2001
11/13/2001 12/10/2001 12/10/2001 12/13/2001
12/13/2001 12/13/2001 12/19/2001
12/19/2001
12/19/2001 12/21/2001 12/21/2001 01/04/2002 01/09/2002 01/09/2002 01/09/2002 01/18/2002
01/18/2002 01/18/2002 01/22/2002
01/25/2002

5 Return of service executed as to Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring w/s/o 11/5/2001 filed. Answer due on 11/25/01 for Wendy E. Warring, Stephen P. Crosby, Robert Gittens, Jane M. Swift (mef) (Entered: 11/13/2001)
6 Ps' Consent to Trial by Magistrate filed. (mef) (Entered: 11/13/2001)
7 Joint motion by Rosie D., et al., and Jane M. Swift, et al., for a scheduling order , filed. . c/s (mgl) (Entered: 12/10/2001)
8 Joint motion by Rosie D., et al., and Jane M. Swift, et al., to adopt protective order , filed. . c/s (mgl) (Entered: 12/10/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting in part [7−1] joint motion for a scheduling order, Reply memoes will be filed by 1/25/02, A pretrial conference and oral argument on the motions to dismiss and certify will be 1/30/02 at 2:30 PM. . [EOD Date 12/13/01] cc/cl (mgl) (Entered: 12/13/2001)
Judge Michael A. Ponsor . Endorsed Order entered granting [8−1] joint motion to adopt protective order . [EOD Date 12/13/01] cc/cl (mgl) (Entered: 12/13/2001)
9 Judge Michael A. Ponsor . Protective Order entered. See order for details. [EOD Date 12/13/01] cc/cl (mgl) (Entered: 12/13/2001)
10 Notice of appearance of attorney for Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring by Stephanie S. Lovell, Daniel J. Hammond, timothy M Jones, Bart Q. Hollander, Deirdre Roney, filed. (mgl) (Entered: 12/19/2001)
11 Motion by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring to dismiss , and to stay disclosure and discovery and certificate of compliance with local rule 7.1(A)(2) , filed. c/s (mgl) (Entered: 12/19/2001)
12 Motion by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring for leave to file oversize memorandum of law , filed. c/s (mgl) (Entered: 12/19/2001)
13 Pltfs' Motion to certify class action , filed. (jcs) (Entered: 12/21/2001)
14 Memorandum in support of [13−1] motion to certify class action , filed. (jcs) (Entered: 12/21/2001)
15 Joint motion by Rosie D., Jane M. Swift to adopt amended protective order , filed. . (mgl) (Entered: 01/04/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [15−1] joint motion to adopt amended protective order . [Date 1/9/02] cc/cl (mgl) (Entered: 01/09/2002)
16 Judge Michael A. Ponsor . Protective Order entered . See order for details, [EOD Date 1/9/02] cc/cl (mgl) (Entered: 01/09/2002)
17 Notice of change of address filed by timothy M Jones by Jane M. Swift . c/s (mgl) (Entered: 01/09/2002)
18 Memorandum by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring in opposition to [13−1] motion to certify class action, filed. c/s (mgl) (Entered: 01/18/2002)
19 Assented to Motion by Rosie D., et al., for leave to file memorandum in excess of twenty pages , filed. c/s (mgl) Modified on 01/22/2002 (Entered: 01/22/2002)
20 Response by Rosie D. in opposition to [11−1] motion to dismiss , filed. c/s (mgl) Modified on 01/22/2002 (Entered: 01/22/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [19−1] motion for leave to file memorandum in excess of twenty pages. [EOD Date 1/22/02] cc/cl (mgl) (Entered: 01/22/2002)
21 Judge Michael A. Ponsor . Notice of Hearing/conference: Motion hearing before Judge Michael A. Ponsor set for 2:30 3/29/02 for [13−1] motion to certify class action, [11−1] motion to dismiss , reset pretrial conference for 2:30 3/29/02 before Judge Michael A. Ponsor . (laf) (Entered: 01/25/2002)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 23 of 102

01/25/2002 01/25/2002 01/25/2002 02/15/2002 03/28/2002 03/28/2002 03/28/2002 03/29/2002
03/29/2002 03/29/2002 03/29/2002 04/01/2002
04/01/2002 04/29/2002 04/29/2002
04/29/2002
04/29/2002 05/01/2002 05/02/2002

22 Joint statement by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N., Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring for scheduling conference . (bah) (Entered: 01/25/2002)
23 Reply Memorandum of law by Jane M. Swift in support of [11−1] motion to dismiss , filed. c/s (mgl) (Entered: 01/25/2002)
24 Reply by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to response to [13−1] motion to certify class action, filed, c/s. (bah) (Entered: 01/29/2002)
25 Nine Pltf's Rule 16.1 Certifications filed . (jcs) (Entered: 02/15/2002)
26 Rule 16.1 Certification filed by Jane M. Swift . (mgl) (Entered: 03/28/2002)
27 Rule 16.1 Certification of Kevin Sullivan. filed. (mgl) (Entered: 03/28/2002)
28 Rule 16.1 Certification filed by Wendy E. Warring . (mgl) (Entered: 03/28/2002)
Judge Michael A. Ponsor. Endorsed Order entered denying [11−1] motion to dismiss, and denying [11−2] motion to stay disclosure. DENIED. The arguments regarding 11th amendment immunity 1983 are contrary to the weight of persuasive authority. The rule 12(b)(6) arguments can be raised more effectively following discovery and may be addressed then, if appropriate. Note: motion to stay is DENIED as moot. [EOD Date 4/1/02] cc/cl (mgl) (Entered: 04/01/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [13−1] motion to certify class action . [EOD Date 4/1/02] cc/cl (mgl) (Entered: 04/01/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [12−1] motion for leave to file oversize memorandum of law [EOD Date 4/1/02] cc/cl (mgl) (Entered: 04/01/2002)
29 Memorandum by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring in support of [11−1] motion to dismiss, filed. c/s (mgl) (Entered: 04/01/2002)
30 Judge Michael A. Ponsor . Pretrial Scheduling Order entered as follows: Assuming that dft's decide not to proceed with an interlocutory appeal, all non−expert discovery due 1/31/03, on or before 2/28/03 each side will convey to the other their rule 26 report, all expert deposition due 3/31//03, a final Pretrial conference is set for 2:00 P.M. on 4/11/03, in the event dft's decide to file an interlocutory appeal, a motion for stay pending appeal will be filed by 4/30/02, and opposition due on 5/17/02 [EOD Date 4/1/02] cc/cl (mgl) (Entered: 04/01/2002)
31 Judge Michael A. Ponsor. Procedural Order entered re: Pretrial on 4/11/03/Trial; . [EOD Date 4/1/02] c/s (mgl) (Entered: 04/01/2002)
32 Notice of appeal by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring filed. Fee Status: pd Fee Amount: $ 105.00 Receipt #: 304865 Appealing: [0−0] endorsed order. Appeal record due on 5/14/02 (mgl) (Entered: 04/29/2002)
33 Motion by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2) , filed. c/s (mgl) (Entered: 04/29/2002)
34 Memorandum of law by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring in support of [33−1] motion to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2) , filed. c/s (mgl) (Entered: 04/29/2002)
35 Certificate of Consultation re: [33−1] motion to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2) , filed. (mgl) (Entered: 04/29/2002)
36 Rule 16.1 Certification filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring . (mef) (Entered: 05/01/2002)
37 Volume I of Transcript of Hearing held on proceeding date: 3/29/2002 at 2:30 P.M. before Judge: Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. (mef)

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05/02/2002 05/09/2002 05/09/2002 05/20/2002 05/23/2002 05/23/2002
05/28/2002 05/28/2002 05/29/2002
06/06/2002 06/07/2002 07/15/2002
07/22/2002
07/22/2002
07/22/2002 07/22/2002

(Entered: 05/02/2002)
Transcript of 3/29/2002 motion hearing forwarded to the Appeals Clerk − [37−1]. (mef) (Entered: 05/02/2002)
Transcript Order Form returned to the Court for [32−1] appeal...Transcript of 3/29/2002 motion hearing and decision by Judge Ponsor ordered. (mef) (Entered: 05/09/2002)
Transcript Order Form forwarded to the Appeals Clerk. (mef) (Entered: 05/09/2002)
38 Motion to extend time to 5/28/02 to file opposition to motion to stay disclosure and discovery pending appeal , filed.(assented to) (jcs) (Entered: 05/20/2002)
Original file and docket sheet forwarded to the Appeals Clerk. (mef) (Entered: 05/23/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [38−1] motion to extend time to 5/28/02 to file opposition to motion to stay disclosure and discovery pending appeal, Response to motion reset to 5/28/02 for [33−1] motion to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2) . [EOD Date 5/24/02] (laf) (Entered: 05/24/2002)
39 Ps' Partial resp. in opposition to [33−1] motion to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2) , filed. (mef) (Entered: 05/28/2002)
Certified copy of docket and record on appeal forwarded to U.S. Court of Appeals re: [32−1] appeal. (jr) (Entered: 05/28/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [33−1] motion to stay disclosure and discovery pending appeal of eleventh amendment ruling and certificate of compliance with local rule 7.1(A)(2). ALLOWED, with the limitations and upon the conditions set forth in the conclusion of plaintiff's partial opposition. Dkt. 39 at 6−7. [EOD Date 5/29/02] cc/cl (mgl) (Entered: 05/29/2002)
US Court of Appeals Case Number assigned to [32−1] appeal: USCA NUMBER: 02−1604. (jr) (Entered: 06/06/2002)
Transmitted supplemental record on appeal: re: [32−1] appeal Document numbers: 37 (jr) (Entered: 06/07/2002)
40 Certified Copy of Order of the US Court of Appeals dated re: [32−1] appeal. Under the circumstances, we think it preferable to temporarily stay the disclosure requirement in order to permit Defts. to raise thier concerns anent this requirement in the District Court. The disclosure requirement will be stayed for a period of ten days in order to permit the Govt. to file a motion for reconsideration in the District Court. If the Govt. files such a motion in a timely fashion, the disclosure requirement will be further stayed pending order of the District Court or this Court. If either side is dissatisfied with the District Court's ruling, it may seek further relief from this Court. (mef) Modified on 07/16/2002 (Entered: 07/15/2002)
41 Ds' Motion for partial reconsideration of 5/29/2002 [0−0] endorsed order re: Order requiring the Ds' to disclose names and addresses of Medicaid recipient children and upon reconsideration the Court deny Ps' req. for such an Order filed. (mef) (Entered: 07/22/2002)
42 Ds' Memorandum in support of [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order re: Order requiring the Ds' to disclose names and addresses of Medicaid recipient children and upon reconsideration the Court deny Ps' req. for such an Order , filed. (mef) (Entered: 07/22/2002)
43 Ds' Affidavit of Laurie Ansorge Ball in support of [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order filed. (mef) (Entered: 07/22/2002)
44 Ds' Affidavit of Joan Mikula in support of [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order filed. (mef) (Entered: 07/22/2002)

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07/22/2002 07/22/2002 08/02/2002
08/02/2002 08/07/2002
11/12/2002 11/12/2002 12/05/2002 12/05/2002 12/16/2002
12/18/2002 12/18/2002 12/23/2002
12/23/2002 02/26/2003 03/05/2003 03/05/2003

45 Ds' Affidavit of Mary Ellen Bennard in support of [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order filed. (mef) (Entered: 07/22/2002)
46 Ds' Affidavit of Deirdre Roney in support of [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order filed. (mef) (Entered: 07/22/2002)
47 PLaintiffs' Response in opposition to [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order re: Order requiring the Ds' to disclose names and addresses of Medicaid recipient children and upon reconsideration the Court deny Ps' req. for such an Order , filed. (jcs) (Entered: 08/02/2002)
48 Affidavit of Cathy E. Costanzo , re: [47−1] opposition response , filed. (jcs) (Entered: 08/02/2002)
Judge Michael A. Ponsor . Endorsed Order entered granting [41−1] motion for partial reconsideration of 5/29/2002 [0−0] endorsed order re: Order requiring the Ds' to disclose names and addresses of Medicaid recipient children and upon reconsideration the Court deny Ps' req. for such an Order. The discovery need not be provided during the pendency of the expedited appeal. Concern about maintaining the status quo is at present speculative. Pltfs. may move for specific discovery if concrete evidence of likely harm to the class emerges; cc/cl. [EOD Date 8/7/02] (mef) (Entered: 08/07/2002)
49 Order of the US Court of Appeals re: [32−1] appeal...the Judgment of the District Court is AFFIRMED. (mef) (Entered: 11/12/2002)
50 Opinion of the Court of Appeals re: [32−1] appeal entered. AFFIRMED. (mef) (Entered: 11/12/2002)
51 Mandate of US Court of Appeals re: [32−1] appeal affirming the judgment of the district court. (jr) (Entered: 12/05/2002)
Record on appeal returned from U.S. Court of Appeals, re: [32−1] appeal. (jr) (Entered: 12/05/2002)
52 Joint motion by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N., Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring to amend [30−1] pretrial Scheduling order , filed. . (mgl) (Entered: 12/16/2002)
53 Judge Michael A. Ponsor . Pretrial Scheduling Order entered setting Discovery cutoff 10/31/03 Expert witness list due on 12/31/03 Pretrial conference at 3:00 P.M. on 1/8/04 . [EOD Date 12/19/02] cc/cl (mgl) (Entered: 12/19/2002)
54 Judge Michael A. Ponsor . Procedural Order entered re: Pretrial/Trial; . [EOD Date 12/19/02] cc/cl (mgl) (Entered: 12/19/2002)
55 Notice of withdrawal of counsel by attorney Sara Jane Shanahan for Jerry N., attorney Sara Jane Shanahan for Shaun E., attorney Sara Jane Shanahan for Nathan F., attorney Sara Jane Shanahan for Anton B., attorney Sara Jane Shanahan for Devin E., attorney Sara Jane Shanahan for Sheena M. filed. c/s (mgl) (Entered: 12/23/2002)
55 Notice of withdrawal of counsel by attorney Sara Jane Shanahan for Joshua D., attorney Sara Jane Shanahan for Tyriek H., attorney Sara Jane Shanahan for Rosie D. filed. (mgl) (Entered: 12/23/2002)
56 Notice of appearance of attorney for Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. by Samantha J. Morton, filed. (mgl) (Entered: 02/26/2003)
57 Motion by Rosie D., et, al., to compel responses to document requests involving client confidential information and reqests for oral argument , filed. c/s (mgl) (Entered: 03/05/2003)
58 Memorandum by Rosie D., et al., in support of their [57−1] motion to compel responses to document requests involving client confidential information and reqests for oral argument, filed. c/s (mgl) (Entered: 03/05/2003)

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03/05/2003 03/05/2003 03/05/2003 03/07/2003 03/19/2003 03/19/2003 03/20/2003
03/24/2003 03/24/2003
03/31/2003 04/14/2003 04/14/2003 04/28/2003 05/13/2003
05/15/2003 05/15/2003 05/20/2003 05/20/2003 06/02/2003 06/02/2003

59 Motion by Rosie D., et al., to compel production of documents within DMA'S control , filed. c/s (mgl) (Entered: 03/05/2003)
60 Memorandum of law by Rosie D., et al., in support of their [59−1] motion to compel production of documents within DMA'S control , filed. c/s (mgl) (Entered: 03/05/2003)
61 (Assented to) Motion by Rosie D., et al., and Jane M. Swift, et al., to proposed scheduling dates , filed. c/s (mgl) (Entered: 03/05/2003)
Judge Michael A. Ponsor . Endorsed Order entered granting [61−1] motion to set a schedule re: motion to compel. Hearing, if necessary, to be scheduled once all filings have have been made; cc/cl.[EOD Date 3/7/03] (mef) (Entered: 03/07/2003)
62 Dft's and non−party agencies Response by Mass Division of DMA in opposition to [57−1] motion to compel responses to document requests involving client confidential information, filed. c/s (mgl) (Entered: 03/19/2003)
63 Response by Mass Division of DMA in opposition to [59−1] motion to compel production of documents within DMA'S control, filed. c/s (mgl) (Entered: 03/19/2003)
64 Judge Michael A. Ponsor . ORDER entered: referral to Mag. Judge Kenneth P. Neiman . : [59−1] motion to compel production of documents within DMA'S control, [57−1] motion to compel responses to document requests involving client confidential information and reqests for oral argument, [52−1] joint motion to amend [30−1] pretrial Scheduling order . Purpose: Ruling Special Instructions: None . (laf) (Entered: 03/20/2003)
65 Plaintiff's Reply brief by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. in support of [59−1] motion to compel production of documents within control, filed. c/s (mgl) (Entered: 03/24/2003)
66 Plaintiff's Reply brief by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. in support of [57−1] motion to compel responses to document requests involving client confidential information and reqests for oral argument, filed. c/s (mgl) (Entered: 03/24/2003)
Terminated document: [52−1] joint motion to amend [30−1] pretrial Scheduling order. (bah) (Entered: 03/31/2003)
67 Mag. Judge Kenneth P. Neiman . Memorandum and Order entered. The Pltfs' motions to compel − [59−1], [57−1] are ALLOWED. Defts., are to produce the requested docs. forthwith; cc/cl. [EOD] Date 4/14/03] (mef) (Entered: 04/14/2003)
CASE NO LONGER REFERRED TO Mag. Judge Kenneth P. Neiman . (sealed) (Entered: 04/17/2003)
68 Notice of appearance of attorney for Jane M. Swift by Adam Simms, filed. c/s (mgl) (Entered: 04/28/2003)
69 Notice of withdrawal of counsel by attorney Samantha J. Morton for Jerry N., attorney Samantha J. Morton for Shaun E., attorney Samantha J. Morton for Nathan F., attorney Samantha J. Morton for Anton B., attorney Samantha J. Morton for Devin E., attorney Samantha J. Morton for Sheena M. filed. (mgl) (Entered: 05/13/2003)
Text not available. (Entered: 05/15/2003)
70 Answer by Mass Division of DMA to complaint , filed. (mgl) (Entered: 05/15/2003)
71 ANSWER to Complaint by (EOHHS)the Executive Office of Health and Human Services.(Lindsay, Maurice) (Entered: 05/20/2003)
72 ANSWER to Complaint by Eric Kriss.(Stuckenbruck, John) (Entered: 05/20/2003)
73 MOTION for establishment of deadlines for discovery, responses and production and for a scheduling conf. filed by the Pltfs.(Finn, Mary) (Entered: 06/02/2003)
74 MEMORANDUM in Support re 73 Ps' motion for establishment of deadlines for discovery, responses and production and for a scheduling conf. filed.(Finn, Mary) (Entered: 06/02/2003)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 27 of 102

06/02/2003
06/03/2003 06/05/2003 06/06/2003 07/08/2003
07/10/2003 07/10/2003
07/11/2003
07/30/2003 07/30/2003 07/31/2003 07/31/2003 07/31/2003 07/31/2003 07/31/2003 07/31/2003 08/15/2003

75 EXHIBIT re 74 Memorandum in Support of Motion filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Sheena M., Jerry N.. (Lindsay, Maurice) (Entered: 06/02/2003)
76 ANSWER to Complaint by Jane M. Swift./Mitt Romney deemed substituted as Dft. for former Governer Jane Swift. (Lindsay, Maurice) (Entered: 06/04/2003)
77 Judge Michael A Ponsor : ORDER entered REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: Scheduling Conf(French, Elizabeth) (Entered: 06/05/2003)
78 NOTICE of Scheduling Conference, ISSUED, cc:cl. Scheduling Conference set for 7/10/2003 at 10:30 AM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 06/06/2003)
79 JOINT SUBMISSION pursuant to Local Rule 116.5(C) by Anton B., Stephen P. Crosby, Joshua D., Rosie D., Devin E., Shaun E., EOHHS, Nathan F., Robert Gittens, Tyriek H., Eric Kriss, Sheena M., Jerry N., Jane M. Swift, Wendy E. Warring filed.(Finn, Mary) (Entered: 07/08/2003)
Electronic Clerk's Notes for proceedings held before Judge Kenneth P. Neiman : Case Management Conference held on 7/10/2003. (Tape #03−79.) (Stuckenbruck, John) (Entered: 07/10/2003)
Judge Kenneth P. Neiman : electronic ORDER entered granting 73 Motion for Establishment of Deadlines for Discovery Responses and Production as follows: Defendants and the non−party agencies and entities shall provide the discovery described in paragraphs two (2) through six (6) of the motion by July 31, 2003; failing that, such parties and non−parties shall file motions for protective orders by that same date. So ordered. (Neiman, Kenneth) (Entered: 07/10/2003)
80 Magistrate Judge Kenneth P. Neiman. SCHEDULING ORDER:non−expert discl. compl. by 2/27/04; (disc events ltd for each side to 25 non−epxert depos, 75 ints., 50 requests for adm., and 3 sep. sets for requests for prod.); expert reports should be exchanged by 5/28/04; expert depos. by 6/30/04; all disc. compl. by 6/30/04; final pretrial conf. 7/8/04 at 3:00 p.m. before D/J Michael A. Ponsor, ENTERED, cc:cl.(Healy, Bethaney) (Entered: 07/11/2003)
81 Joint MOTION for suppemental judicial findings by Rosie D., et al., and Jane M. Swift, et al.(Lindsay, Maurice) (Entered: 07/30/2003)
Judge Kenneth P. Neiman : electronic ORDER entered granting 81 Joint Motion For Supplemental Judicial Findings. The court hereby makes the supplemental findings set forth in the motion. SO ORDERED. (Neiman, Kenneth) (Entered: 07/30/2003)
82 State Officials MOTION for Protective Order limiting the scope of Ptf's discovery demands by Jane M. Swift.(Lindsay, Maurice) (Entered: 07/31/2003)
83 MEMORANDUM in Support of the state officials 82 MOTION for Protective Order limiting the scope of ptf's request for documents filed by Jane M. Swift. (Lindsay, Maurice) (Entered: 07/31/2003)
84 AFFIDAVIT of Janet L. George, Ed.D re 82 MOTION for Protective Order. (Lindsay, Maurice) (Entered: 07/31/2003)
85 AFFIDAVIT of Michael E. O'Neill re 82 MOTION for Protective Order. (Lindsay, Maurice) (Entered: 07/31/2003)
86 AFFIRMATION of Susan Getman re 82 MOTION for Protective Order. (Lindsay, Maurice) (Entered: 07/31/2003)
87 AFFIDAVIT of Paul Jeffrey re 82 MOTION for Protective Order. (Lindsay, Maurice) (Entered: 07/31/2003)
88 RESPONSE to Motion re 82 MOTION for Protective Order filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Sheena M., Jerry N.. (Stuckenbruck, John) (Entered: 08/15/2003)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 28 of 102

08/26/2003
08/26/2003 09/18/2003 09/22/2003 09/22/2003 09/24/2003 09/30/2003 10/01/2003 10/03/2003 10/03/2003 10/09/2003 10/15/2003
10/17/2003 10/27/2003 10/27/2003 10/29/2003 11/13/2003
11/14/2003

89 TRANSCRIPT of Case Management Conf. held on July 10, 2003 before Magistrate Judge Kenneth P. Neiman filed. Court Reporter: Tape. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 08/26/2003)
90 Judge Michael A Ponsor : ORDER entered REFERRING MOTION: 82 MOTION for Protective Order Limiting the Scope of Ps' discovery demands filed by Jane M. Swift(Finn, Mary) (Entered: 08/26/2003)
91 Judge Kenneth P. Neiman : MEMORANDUM AND ORDER entered. D's motion for Protective Order limiting the scope of Ps' discovery demands 82 is ALLOWED in PART and DENIED IN PART; cc/cl. (Finn, Mary) (Entered: 09/18/2003)
92 Ps' Motion to compel ans. to Ints. from the Deft. Executive Office of the Health and Human Services and the Division of Medical Assistance filed.(Finn, Mary) (Entered: 09/23/2003)
93 P's MEMORANDUM in Support of its 92 motion to compel ans. to ints. from Defts. EOHHS and DMA filed. (Finn, Mary) (Entered: 09/23/2003)
Mail sent to Gabrielle E. Foote returned and remailed this date. (Finn, Mary) (Entered: 09/24/2003)
Mail Returned as Undeliverable. Mail sent to Gabrielle E. Foote (Finn, Mary) (Entered: 09/30/2003)
94 MOTION to Amend 16 Protective Order by Dft's Stephen P. Crosby, Robert Gittens, Eric Kriss, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Jane M. Swift, Wendy E. Warring.(Lindsay, Maurice) (Entered: 10/01/2003)
95 Ptf's Partial OPPOSITION to Dft's 94 MOTION to Amend 16 Protective Order filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F.. (Lindsay, Maurice) (Entered: 10/03/2003)
96 Judge Kenneth P. Neiman : AMENDEDPROTECTIVE ORDER re: confidential documents entered; cc/cl.(Finn, Mary) (Entered: 10/06/2003)
97 Dft's MEMORANDUM in Opposition to Ptf's 92 MOTION to Compel interrogatory response filed by Stephen P. Crosby, Robert Gittens, Eric Kriss, Jane M. Swift, Wendy E. Warring. (Lindsay, Maurice) (Entered: 10/09/2003)
98 Judge Michael A Ponsor : ELECTRONIC ORDER entered REFERRING MOTION 92 MOTION to Compel filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to Magistrate Judge Kenneth P. Neiman(French, Elizabeth) (Entered: 10/15/2003)
99 Ptf's MOTION for Leave to File a reply by Rosie D. et al., (Lindsay, Maurice) (Entered: 10/20/2003)
Judge Kenneth P. Neiman : electronic ORDER entered granting 99 Plaintiffs' Motion for Leave to File a Reply. (Neiman, Kenneth) (Entered: 10/27/2003)
100 Ps' REPLY MEMORANDUM in Support of their 92 MOTION to Compel filed. (Finn, Mary) (Entered: 10/27/2003)
101 NOTICE of Hearing on 92 MOTION to Compel ISSUED, cc:cl. Motion Hearing set for 11/13/2003 at 2:30 PM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 10/29/2003)
Electronic Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman : Motion Hearing held on 11/13/2003 re 92 MOTION to Compel filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. Court ALLOWS motion pursuant to terms outlined in open court. (Court Reporter Tape Nos. 03−KK, LL.) (Olin, Nathan) (Entered: 11/13/2003)
102 Judge Kenneth P. Neiman : ORDER entered granting Ps' 92 motion to compel ints. from the Defts. Excutive Office of Health and Human Services and The Division of Medical Assistance; cc/cl. (Finn, Mary) Additional attachment(s) added on 11/19/2003 (Healy, Bethaney). (Entered: 11/17/2003)

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11/19/2003 12/01/2003 12/09/2003
01/12/2004 01/14/2004
01/15/2004 01/15/2004
03/04/2004 03/04/2004 03/12/2004 03/12/2004 05/05/2004
05/07/2004 05/07/2004 05/17/2004 05/18/2004 05/18/2004 06/17/2004 07/02/2004

Notice of correction to docket made by Court staff. Correction: Doc. No. 102, Order with Regard to Ps' Motions to Compel corrected because: document was not attached to electronic filing entry (Healy, Bethaney) (Entered: 11/19/2003)
Mail Returned as Undeliverable. Mail sent to Gabrielle E. Foote, Esq. (Lindsay, Maurice) (Entered: 12/01/2003)
103 TRANSCRIPT of Motion to Compel Hearing held on November 13, 2003 before Judge Kenneth P. Neiman. Court Reporter: None. Tape Number: 03−KK, LL. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 12/09/2003)
104 Joint MOTION to Modify /Revised Pretrial Scheduling order by Anton B., Stephen P. Crosby, Joshua D., Rosie D..(Lindsay, Maurice) (Entered: 01/12/2004)
105 Judge Michael A Ponsor : ORDER entered REFERRING MOTION 104 MOTION to Modify Pretrial Scheduling order filed by Stephen P. Crosby, Rosie D., Joshua D., Anton B. to Magistrate Judge Kenneth P. Neiman(French, Elizabeth) (Entered: 01/14/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting 104 Joint Motion to Modify Schedule. See revised pretrial scheduling order issued this day. (Neiman, Kenneth) (Entered: 01/15/2004)
106 Mag. Judge Kenneth P. Neiman. SCHEDULING ORDER:setting non−expert disc. comp. by 7/27/04; expert report info. re: FRCP 26(a)(2) shall be conveyed by 10/28/04; expert deps. comp. by 11/30/04; final pretrial conf. set 12/14/04 at 3:30 p.m. in Courtroom Two, ENTERED,cc:cl. (Healy, Bethaney) (Entered: 01/16/2004)
107 Ptf's MOTION for appointment of Susan Pelechowicz as next friend for named plaintiff Jerry Nompleggi by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Jerry N..(Lindsay, Maurice) (Entered: 03/04/2004)
108 AFFIDAVIT of Susan Pelechowicz. (Lindsay, Maurice) (Entered: 03/04/2004)
Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 03/12/2004)
Magistrate Judge Kenneth P. Neiman. ELECTRONIC ORDER granting 107 Motion for appointment of Susan Pelechowicz as next friend for named Plaintiff, Jerry Nompleggi, ENTERED, cc:cl. (Healy, Bethaney) (Entered: 03/12/2004)
109 Joint MOTION for the Appointment of Guardian ad Litem by Anton B., Stephen P. Crosby, Joshua D., Rosie D., Devin E., Shaun E., EOHHS, Nathan F., Robert Gittens, Tyriek H., Eric Kriss, Sheena M., MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Jerry N., Jane M. Swift, Wendy E. Warring. (Attachments: # 1 Proposed Order)(Lindsay, Maurice) (Entered: 05/05/2004)
Judge Michael A Ponsor : ORDER entered granting 109 Motion to Appoint Guardain ad Litem. Appointed Robert H. Weber, Esq. for 18 minor plaintiff class members added this date. (Stuckenbruck, John) (Entered: 05/07/2004)
110 Judge Michael A Ponsor : ORDER entered (Lindsay, Maurice) (Entered: 05/10/2004)
111 MOTION for Withdraw as Attorney by Ptf's Rosie D. et al., (Lindsay, Maurice) (Entered: 05/17/2004)
Judge Michael A Ponsor : ENSORSED ORDER entered granting 111 Motion by Gabrielle E. Foote to Withdraw as Attorney for the Pltfs.; cc/cl. (Finn, Mary) (Entered: 05/18/2004)
*** Attorney Gabrielle E. Foote terminated as Counsel for the Pltfs. (Finn, Mary) (Entered: 05/18/2004)
112 NOTICE of Firm Name Change by James C. Burling (Lindsay, Maurice) (Entered: 06/17/2004)
113 Parties' Joint MOTION to Amend 106 Scheduling Order.(Stuckenbruck, John) (Entered: 07/02/2004)

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07/13/2004 07/27/2004 07/27/2004 07/28/2004 07/30/2004 07/30/2004 07/30/2004 08/02/2004
10/05/2004 10/29/2004 10/29/2004

Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting in part and denying in part 113 Defendants' Motion to Amend Scheduling Order. All non−expert discovery shall be completed by August 27, 2004. The remaining schedule set forth in the court's order of January 15, 2004, shall remain in effect without any further extensions. (Neiman, Kenneth) (Entered: 07/13/2004)
114 Ptf's Emergency MOTION to Compel by Rosie D. et al., (Lindsay, Maurice) (Entered: 07/27/2004)
115 MEMORANDUM of law in Support of Ptf's 114 Emergency MOTION to Compel filed by Rosie D. et al., (Attachments: # 1 Exhibit# 2 Exhibit# 3 Exhibit)(Lindsay, Maurice) (Entered: 07/27/2004)
116 Dft's Opposition to Ptf's 114 Emergency MOTION to Compel filed by Jane M. Swift. et l., (Lindsay, Maurice) (Entered: 07/28/2004)
117 MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' Emergency Motion to Compel by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W..(Rhee, John) (Entered: 07/30/2004)
118 REPLY to Response to Motion re 114 MOTION to Compel filed by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Rhee, John) (Entered: 07/30/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting 117 Motion for Leave to File Reply. (Neiman, Kenneth) (Entered: 07/30/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting in part and denying in part 114 Plaintiffs' Motion to Compel. If, indeed, there is "no real disagreement" between the parties as to discovery deadlines, as Defendants assert, then Plaintiffs' motion could be allowed without opposition. Defendants, however, oppose Plaintiffs' motion even though it tracks deadlines proposed, evidently, by Defendants. Thus, it appears that the dispute centers on whether the proposed dates are truly deadlines or simply dates which Defendants can therefater utilize to justify "supplementing" inadequate discovery responses. As the parties are no doubt aware, the requirement to supplement, as set forth in Fed. R. Civ. P. 26(e), applies to "information thereafter acquired." The rule, when read in its entirety, does not justify responses which are knowingly inadequate in the first instance. In this vein, when the court allowed, in part, the parties' joint motion to extend discovery, filed on July 2, 2004, and ordered that all non−expert discovery be completed by August 27, 2004, it understood, as no doubt the parties understood, that the completion of written discovery would have to precede the completion of non−expert depositions by the deadline. Thus, the deadlines now proposed by Plaintiffs (if not Defendants as well) are not unreasonable. Accordingly, the court will ALLOW Plaintiffs' motion with some slight alterations. DMH and DYS shall respond to Plaintiffs' second set of document requests by August 6, 2004. DMA, EOHHS and DSS shall supplement their responses to Plaintiffs' first set of document requests by August 6, 2004. All Defendants, as well as their subsidiary agencies and MCOs, will complete their interrogatory responses by August 6, 2004. And EOHHS, DMA and DSS shall complete their responses to Plaintiffs' second set of document requests by August 13, 2004. So ordered. (Neiman, Kenneth) (Entered: 08/02/2004)
119 NOTICE of Appearance by John R. Hitt on behalf of all defendants (Hitt, John) (Entered: 10/05/2004)
120 Defendants' EMERGENCY MOTION to Modify Scheduling Order (Attachments: # 1 Pltfs' Letter to Defts. re: schedule of depostions of experts) Twelve(12) Experts' Reports in Support of Motion not scanned due to size and on file in Clerk's Office. (Stuckenbruck, John) (Entered: 10/29/2004)
121 Opposition re 120 MOTION to Modify Scheduling Order filed by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin

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11/01/2004
11/01/2004
11/03/2004 11/04/2004 11/04/2004 11/05/2004 11/05/2004 11/08/2004 11/08/2004 11/08/2004 11/08/2004 11/16/2004 11/16/2004

W.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Schwartz, Steven) (Entered: 10/29/2004)
122 MOTION to Compel and/or Exclude by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W..(Rhee, John) Additional attachment(s) added on 11/3/2004 replacing unsigned document with a signed one (Lindsay, Maurice). (Entered: 11/01/2004)
123 MEMORANDUM in Support re 122 MOTION to Compel and/or Exclude filed by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Rhee, John) (Entered: 11/01/2004)
Magistrate Judge Kenneth P. Neiman. ELECTRONIC ORDER denying 120 Emergency Motion for Modification of the Scheduling Order, ENTERED, cc:cl. "DENIED. The court has already allowed several extensions and last indicated that there would be no further extensions." (Healy, Bethaney) (Entered: 11/03/2004)
124 Emergency MOTION to Compel Regarding Expert Discovery by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Attachments: # 1 # 2 # 3 # 4 # 5)(Rhee, John) (Entered: 11/04/2004)
125 NOTICE of Appearance by John Sup Rhee on behalf of all plaintiffs (Rhee, John) (Entered: 11/04/2004)
126 Objections to 11/3/04 Electronic Order of Magisrate Judge. (Lindsay, Maurice) (Entered: 11/05/2004)
127 MEMORANDUM OF LAW in support of 126 Objection to 11/3/04 Electronic Order of Magistrate Judge. by Janice B., Stephen P. Crosby, EOHHS, Robert Gittens, Eric Kriss, Jane M. Swift, Wendy E. Warring (Attachments: # 1 Exhibits − A through P)(Lindsay, Maurice) (Entered: 11/05/2004)
128 Defts' MEMORANDUM in Opposition re 122 MOTION to Compel expert testimony 124 Emergency MOTION to Compel re: expert discovery filed. (Finn, Mary) (Entered: 11/08/2004)
129 Defts' AFFIDAVIT of Deidre Roney in Opposition re 122 MOTION to Compel expert testtimony, 124 Emergency MOTION to Compelre: expert discovery by Janice B., Stephen P. Crosby, EOHHS, Robert Gittens, Eric Kriss, Jane M. Swift, Wendy E. Warring filed. (Attachments: # 1)(Finn, Mary) (Entered: 11/08/2004)
130 MOTION for Leave to File Reply Brief by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 11/08/2004)
131 REPLY to Response to Motion re 130 MOTION for Leave to File Reply Brief Defendants' Opposition to Plaintiffs' Motion to Exclude Expert Testimony and Emergency Motion Regarding Expert Discovery filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 11/08/2004)
132 MOTION to Compel Discovery by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W..(Rhee, John) (Entered: 11/16/2004)
133 MEMORANDUM in Support re 132 MOTION to Compel Discovery filed by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 #

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11/19/2004 11/22/2004 11/23/2004 11/23/2004
11/24/2004 11/24/2004 11/24/2004 11/24/2004 12/02/2004
12/03/2004 12/03/2004
12/03/2004 12/03/2004 12/03/2004 12/06/2004
12/06/2004

14 # 15 # 16)(Rhee, John) (Entered: 11/16/2004)
134 Objection Response to Objections to 11/3/04 Order. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 11/19/2004)
135 STIPULATION of Dismissal of Named Plaintiff by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Tyriek H., Sheena M., Jerry N.. (Costanzo, Cathy) (Entered: 11/22/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting 130 Plaintiffs' Motion for Leave to File Reply Brief. (Neiman, Kenneth) (Entered: 11/23/2004)
NOTICE BY PHONE OF HEARING of Hearing on Motion 124 Emergency MOTION to Compel Regarding Expert Discovery, 132 MOTION to Compel Discovery, 122 MOTION to Compel and/or Exclude: Also, objection to Magistrate's Order of 11/3/04 shall also be heard Motion Hearing set for 11/24/2004 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. STAFF NOTES: Attorney Burling and Attorney Roney notified by phone; defendant's counsel will notify all other defense counsel(French, Elizabeth) (Entered: 11/23/2004)
136 AFFIDAVIT of Ellen Lapriore in Opposition re 132 MOTION to Compel Discovery. . (Attachments: # 1 Exhibit A,B,C)(Stuckenbruck, John) (Entered: 11/24/2004)
137 AFFIDAVIT of Paul Shaw in Opposition re 132 MOTION to Compel Discovery. . (Attachments: # 1 Exhibit A,B)(Stuckenbruck, John) (Entered: 11/24/2004)
138 Rebuttal Report of Dr. Leonard Bickman (Stuckenbruck, John) (Entered: 11/24/2004)
139 Rebuttal Report of W. Peter Metz, M.D. (Attachments: # 1 Curriculum Vitae of Dr. Metz) (Stuckenbruck, John) (Entered: 11/24/2004)
140 MOTION for Clarification Regarding November 24, 2004 Hearing by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Attachments: # 1 # 2)(Rhee, John) (Entered: 12/02/2004)
141 AFFIRMATION of Deirdre Roney re 140 MOTION for Clarification Regarding November 24, 2004 Hearing. (Stuckenbruck, John) (Entered: 12/03/2004)
142 Joint MOTION to Modify Pre−Trial Order as to the Timing of Designation of Trial Exhibits by Anton B., Janice B., Ralph B., Sarah B., Stephen P. Crosby, Joshua D., Rosie D., Devin E., Shaun E., EOHHS, Shentelle G., Robert Gittens, Danielle H., Kristin H., Tyriek H., Eric Kriss, Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Jane M. Swift, Chelsea T., Chris T., Forrest W., Tevin W., Wendy E. Warring.(Rhee, John) (Entered: 12/03/2004)
143 Opposition re 132 MOTION to Compel Discovery filed by EOHHS. (Hitt, John) (Entered: 12/03/2004)
144 AFFIDAVIT of Deidre Roney in Opposition re 132 MOTION to Compel Discovery filed by EOHHS. (Attachments: # 1 Exhibit Defendants' Response to Plaintiffs' Second Set of Interrogatories)(Hitt, John) (Entered: 12/03/2004)
145 AFFIDAVIT of John DeLuca in Opposition re 132 MOTION to Compel Discovery filed by EOHHS. (Hitt, John) (Entered: 12/03/2004)
146 Judge Michael A Ponsor : MEMORANDUM ANDORDER entered. For the reasons stated in Open Court, the Pltfs' motion to exclude − 122 and the Pltfs' emergency motion re: discovery − 124 are DENIED. The Deft's objections to the electronic order of Magistrate Judge Neiman − 126 are SUSTAINED, in part. Suppl. scheduling order to issue; cc/cl. (Finn, Mary) (Entered: 12/07/2004)
147 Judge Michael A Ponsor : SUPPLEMENTAL SCHEDULING ORDER entered. Defts' rebuttal expert reports (no more than five in number) to be conveyed to the Pltfs' by 12/13/2004. Pretrial conf. set for 12/14/2004 03:30 PM in Courtroom 1 before Judge Michael A Ponsor. Defts' motion for S/J due 12/16/2004, Pltfs' opp. to motion for S/J due 1/17/2005. Pltfs' final expert rebuttal reports (not exceeding five in number) to be conveyed to Defts' by 1/10/2005. All depos. of experts to be completed by 1/31/2005.

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12/07/2004
12/09/2004 12/09/2004 12/09/2004 12/13/2004
12/16/2004
12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/17/2004

Counsel to appear for argument on the motion for S/J on 2/14/2005 at 2:00 p.M. The Court will attempt to rule on the motion from the bench. Trial set for 4/18/2005 at 9:00 A.M. It is understood trial will be non−jury. The normal day will be from 9:00 A.M. − 1:00 P.M. In the event that Pltfs' need to complete the depos. of experts in order to prepare their opp. to the Defts' moiton for S/J, Pltfs' may req. an extension to file their opp. The motion to compel filed by the Pltfs' on 11/16/2004 − 132 is referred to Magistrate Judge Kenneth P. Neiman for ruling; cc/cl.(Finn, Mary) (Entered: 12/07/2004)
148 Judge Michael A Ponsor : ORDER entered REFERRING MOTION 132 MOTION to Compel Discovery filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N., Samuel L., Jose M., Terrence M., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Marc St. L. to Magistrate Judge Kenneth P. Neiman(Finn, Mary) (Entered: 12/07/2004)
149 PRETRIAL MEMORANDUM by EOHHS. (Hitt, John) (Entered: 12/09/2004)
150 PRETRIAL MEMORANDUM by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Shentelle G., Danielle H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Terrence M., Jerry N., Kristin P., Christine Q., Jason S., Marc St. L., Chelsea T., Chris T., Forrest W., Tevin W.. (Rhee, John) (Entered: 12/09/2004)
151 JOINT STATEMENT of counsel regarding uncontested facts. (Rhee, John) (Entered: 12/09/2004)
152 REPLY to Response to Motion re: 132 MOTION to Compel and/or Exclude filed by Rosie D.. (Attachments: # 1 Reply Memorandum in Support of Motion to Compel Discovery# 2 Affidavit James W Conroy Affidavit in Support of Plaintiffs Reply Memorandum# 3 Exhibit Exhibit A# 4 Exhibit Exhibit A − pages 26−38# 5 Exhibit Exhibit B# 6 Exhibit Exhibit C# 7 Exhibit Exhibit D# 8 Exhibit Exhibit E − pages 1−25# 9 Exhibit Exhibit E − pages 26−50# 10 Exhibit Exhibit E − pages 51−71.pdf# 11 Exhibit Exhibit F)(Rhee, John) Modified on 12/14/2004 (Stuckenbruck, John). (REPLY LINKED TO WRONG MOTION TO COMPEL WHEN DOCKETED, #122 RATHER THAN #132) (Entered: 12/13/2004)
153 Judge Michael A Ponsor : FURTHER SCHEDULING ORDER entered. A joint motion re: sequencing of discovery to be filed by 12/28/2004. Also by 12/28/2004, Counsel to file a joint motion proposing time limits for the presentation of evidence at trial. Any motions in limine to be filed by 3/04/2005, with opps. due 3/18/2005. Argument on the motions in limine will be on 3/24/2005. at 2:00 P.M. Also by 3/04/2005, Cl. will exchange and copy to the Court a revised witness list and final summary of stipulations. Evidentiary matters that one party views as unconstested and the proper subject of a stipulation, but which the opposing party views as disrupted, may be the subject of motions in limine. Trial in this matter was originally scheduled to commence on 4/18/2005. It will now commence on 4/25/2005, with a typical trial day of 9:00 A.M. − 1:00 P.M. Counsel agree that this is a non−jury trial; cc/cl. (Finn, Mary) (Entered: 12/16/2004)
154 MOTION for Summary Judgment by EOHHS.(Hitt, John) (Entered: 12/16/2004)
155 AFFIDAVIT in Support re 154 MOTION for Summary Judgment. (Hitt, John) (Entered: 12/16/2004)
156 AFFIDAVIT in Support re 154 MOTION for Summary Judgment. (Hitt, John) (Entered: 12/16/2004)
157 MEMORANDUM in Support re 154 MOTION for Summary Judgment filed by EOHHS. (Hitt, John) (Entered: 12/16/2004)
158 STATEMENT of facts in Support of Motion for Summary Judgment. (Hitt, John) (Entered: 12/16/2004)
159 MOTION for Leave to File Excess Pages by EOHHS.(Hitt, John) (Entered: 12/16/2004)
160 AFFIDAVIT of Michael Norton in Support re: 154 MOTION for Summary Judgment. Document not scanned due to size and is on file in Clerk's Office.(Stuckenbruck, John)

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12/17/2004 12/17/2004 12/20/2004 12/22/2004
12/22/2004
12/28/2004 12/29/2004 01/07/2005 01/07/2005 01/10/2005
01/12/2005 01/13/2005

Modified on 12/17/2004. Text added to entry. (Stuckenbruck, John). (Entered: 12/17/2004)
161 AFFIDAVIT of Beth Waldman in Support re 154 MOTION for Summary Judgment. Document not scanned due to size and is on file in Clerk's Office. (Stuckenbruck, John) (Entered: 12/17/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting 159 Plaintiffs' Motion for Leave to File Excess Pages. (Neiman, Kenneth) (Entered: 12/17/2004)
Set Hearings: Hearing on Motion to Compel set for 12/22/2004 11:00 AM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman. (Stuckenbruck, John) (Entered: 12/20/2004)
Judge Kenneth P. Neiman : ELECTRONIC ORDER entered granting in part and denying in part 132 Plaintiffs' Motion to Compel Discovery. As described in court this day, by January 14, 2005, Defendants, through the Behavioral Health Partnership, shall provide Plaintiffs, who understand the limitations of the data described this day, (1) the data run covering March of 2001 through August of 2004, and (2)such information as is reasonably necessary to facilitate Plaintiffs' analysis fo the data run, including but not limited to assistance with the data dictionary and conversion factors (converting "unit" information into "hour" information). So ordered. (Neiman, Kenneth) (Entered: 12/22/2004)
Electronic Clerk's Notes for proceedings held before Judge Kenneth P. Neiman : Motion Hearing held on 12/22/2004 re 132 MOTION to Compel Discovery filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N., Samuel L., Jose M., Terrence M., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Marc St. L. Arguments of counsel followed by ruling of court. (Court Reporter CD.) (Stuckenbruck, John) (Entered: 12/22/2004)
162 Joint MOTION concerning sequencing of discovery and time limits for presentation of evidence at trial by Rosie D., et al., and Jane M. Swift. et al.(Lindsay, Maurice) (Entered: 12/28/2004)
Set/Reset Deadlines: Motions in limine due by 3/4/2005. Resp. due 3/18/2005. Motion hearing set for 3/24/2005 at 2:00 P.M. before Michael A. Ponsor. (Finn, Mary) (Entered: 12/29/2004)
163 TRANSCRIPT of Proceedings held on 11/24/04 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 01/07/2005)
164 TRANSCRIPT of Proceedings held on 12/14/04 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 01/07/2005)
165 Assented to MOTION for Extension of Time to January 21, 2005 to File Response/Reply to Defendants' Motion for Summary Judgment by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Rhee, John) (Entered: 01/10/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 165 Motion for Extension of Time to File Response/Reply re 165 Assented to MOTION for Extension of Time to January 21, 2005 to File Response/Reply to Defendants' Motion for Summary Judgment Responses due by 1/21/2005 (Lindsay, Maurice) (Entered: 01/12/2005)
E−Mail Notice re Motion for Extension of Time originally issued on 1/10/05 returned as undeliverable. Name of Addressee: John Hitt. E−mail resent by JCS on 1/12/05 and received. (Stuckenbruck, John) (Entered: 01/13/2005)

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01/21/2005 01/21/2005
01/21/2005
01/21/2005 01/28/2005 01/31/2005 02/01/2005
02/10/2005 02/17/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005

166 Opposition re 154 MOTION for Summary Judgment and Memorandum in Support of Motion to Strike filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 01/21/2005)
167 Opposition re 154 MOTION for Summary Judgment : Response to Defendants' Statement of Facts filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 01/21/2005)
168 AFFIDAVIT in Opposition to Defendants' Motion for Summary Judgment. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 14# 16 Exhibit 14# 17 Exhibit 15# 18 Exhibit 16# 19 Exhibit 17# 20 Exhibit 18# 21 Exhibit 19# 22 Exhibit 20# 23 Exhibit 21# 24 Exhibit 22# 25 Exhibit 23# 26 Exhibit 24# 27 Exhibit 25# 28 Exhibit 26# 29 Exhibit 27# 30 Exhibit 28# 31 Exhibit 29)(Rhee, John) (Entered: 01/21/2005)
169 MOTION to Strike Improper Proposed Statements of Undisputed Facts by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Rhee, John) (Entered: 01/21/2005)
170 TRANSCRIPT of Hearing held on 12/22/04 before Judge Neiman. Court Reporter: Diane Williamson(CD). The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Stuckenbruck, John) (Entered: 01/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 162 Motion concerning sequencing of discovery and time limits for presentation of evidence at trial. ALLOWED as to Paragraph 1 only. The issues raised in paragraph 2 will be addressed at a future date. So ordered. cc/cl (Lindsay, Maurice) (Entered: 01/31/2005)
171 Joint MOTION to Dismiss Count IV of Plaintiffs' Complaint, Without Prejudice by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Rosie D., Tyriek H., EOHHS, Eric Kriss, Samuel L., Jose M., Janice B., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Kristin H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Rhee, John) (Entered: 02/01/2005)
Remark Hearing on motion for Summary Judgment set for 2/14/05 inadvertently not put on calendar. Counsel notified that hearing will not go forward on that date. New Notice to be sent by Clerk (French, Elizabeth) (Entered: 02/10/2005)
172 NOTICE by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. of Supplemental Authority in Conjunction with Opposition to Motion for Summary Judgment (Schwartz, Steven) (Entered: 02/17/2005)
173 MOTION in Limine To Exclude Plaintiffs' Clinical Review by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Affidavit # 2 Affidavit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
174 MOTION in Limine To Exclude Plaintiffs' Cost Analysis by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
175 MOTION in Limine To Exclude Testimony By Advocate Experts About Law by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit # 2)(Roney, Deirdre) (Entered: 03/04/2005)
176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss.

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03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005
03/04/2005
03/04/2005
03/04/2005 03/04/2005 03/04/2005

(Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
177 MOTION in Limine To Exclude Evidence Concerning Other States' Medicaid Programs by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss.(Roney, Deirdre) (Entered: 03/04/2005)
179 MOTION in Limine To Exclude Improper Rebuttal Testimony by Four New Experts by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
180 MOTION in Limine Objecting to Qualifications of Ms. Koyanagi by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss. (Attachments: # 1 Exhibit)(Roney, Deirdre) (Entered: 03/04/2005)
181 Exhibit/Witness List Revised Witness List by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss.. (Roney, Deirdre) (Entered: 03/04/2005)
182 MOTION for Extension of Time to 03/11/05 to File Joint Summary of Stipulations by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss.(Roney, Deirdre) (Entered: 03/04/2005)
183 MOTION in Limine to Exclude Evidence Regarding Home−based Services Not Disclosed in Defendants' Interrogatory Responses by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Rhee, John) (Entered: 03/04/2005)
184 MEMORANDUM in Support re 183 MOTION in Limine to Exclude Evidence Regarding Home−based Services Not Disclosed in Defendants' Interrogatory Responses filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/04/2005)
185 AFFIDAVIT of John S. Rhee in Support re 183 MOTION in Limine to Exclude Evidence Regarding Home−based Services Not Disclosed in Defendants' Interrogatory Responses filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Exhibit 1# 2 Exhibit Exhibit 2 Part 1# 3 Exhibit Exh. 2 Part 2# 4 Exhibit Exh. 2 Part 3# 5 Exhibit Exhs. 3−9)(Rhee, John) (Entered: 03/04/2005)
186 MOTION in Limine to Exclude Post−Discovery Developments by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Rhee, John) (Entered: 03/04/2005)
187 MEMORANDUM in Support re 186 MOTION in Limine to Exclude Post−Discovery Developments filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/04/2005)
188 AFFIDAVIT of Christopher B. Zimmerman in Support re 186 MOTION in Limine to Exclude Post−Discovery Developments filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua

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03/04/2005 03/07/2005
03/07/2005 03/07/2005 03/07/2005 03/09/2005 03/09/2005 03/16/2005 03/18/2005 03/18/2005

D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4)(Rhee, John) (Entered: 03/04/2005)
189 Witness List by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/04/2005)
Set Deadlines as to 183 MOTION in Limine to Exclude Evidence Regarding Home−based Services Not Disclosed in Defendants' Interrogatory Responses, 186 MOTION in Limine to Exclude Post−Discovery Developments, 173 MOTION in Limine To Exclude Plaintiffs' Clinical Review, 174 MOTION in Limine To Exclude Plaintiffs' Cost Analysis, 175 MOTION in Limine To Exclude Testimony By Advocate Experts About Law, 176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis, 177 MOTION in Limine To Exclude Evidence Concerning Other States' Medicaid Programs, 178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians, 179 MOTION in Limine To Exclude Improper Rebuttal Testimony by Four New Experts, 180 MOTION in Limine Objecting to Qualifications of Ms. Koyanagi, 182 MOTION for Extension of Time to 03/11/05 to File Joint Summary of Stipulations. Responses to motions in limine due by 3/18/2005. Motion Hearing set for 3/24/2005 at 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Finn, Mary) (Entered: 03/07/2005)
190 NOTICE of Hearing on Motion 169 MOTION to Strike Improper Proposed Statements of Undisputed Facts, 171 Joint MOTION to Dismiss Count IV of Plaintiffs' Complaint, Without Prejudice, 154 MOTION for Summary Judgment: Motion Hearing set for 3/17/2005 11:00 AM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 03/07/2005)
191 Joint MOTION Reschedule 3/17/05 Hearing re 154 MOTION for Summary Judgment by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss.(Roney, Deirdre) (Entered: 03/07/2005)
192 EXHIBITS to Dft's 178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians by Jane M. Swift. (Lindsay, Maurice) (Entered: 03/07/2005)
193 NOTICE of Appearance by Juliana deHaan Rice on behalf of all defendants (Rice, Juliana) (Entered: 03/09/2005)
Judge Michael A Ponsor : Electronic ORDER entered granting 191 Motion to continue hearing on dispositive motions set for 3/17/05; Hearing reset to 3/24/05 at 2:00 p.m. in place of hearing on motions in limine previously set for this date; A new hearing date for hearing on any motions in limine shall be rescheduled at the 3/24/05 hearing (French, Elizabeth) (Entered: 03/09/2005)
194 Emergency MOTION to Expedite Consideration of Plaintiffs' Motion in Liminie to Exclude Proffered Evidence or Argument Regarding Alleged Post−Discovery Developments by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Rhee, John) (Entered: 03/16/2005)
195 Opposition re 186 MOTION in Limine to Exclude Post−Discovery Developments filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit)(Roney, Deirdre) Additional attachment(s) added on 3/22/2005 − documents not scanned but on file in the Clerk's Office. (Finn, Mary). Modified on 3/22/2005 (Finn, Mary). (Entered: 03/18/2005)
196 Opposition re 173 MOTION in Limine To Exclude Plaintiffs' Clinical Review filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)

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03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005

197 Opposition re 174 MOTION in Limine To Exclude Plaintiffs' Cost Analysis filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
198 Opposition re 175 MOTION in Limine To Exclude Testimony By Advocate Experts About Law filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
199 Opposition re 176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
200 AFFIDAVIT of Steven J. Schwartz in Opposition re 176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
201 Opposition re 177 MOTION in Limine To Exclude Evidence Concerning Other States' Medicaid Programs filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
202 Opposition re 178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
203 Opposition re 179 MOTION in Limine To Exclude Improper Rebuttal Testimony by Four New Experts filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
204 Opposition re 180 MOTION in Limine Objecting to Qualifications of Ms. Koyanagi filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 03/18/2005)
205 Opposition re 183 MOTION in Limine to Exclude Evidence Regarding Home−based Services Not Disclosed in Defendants' Interrogatory Responses filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit # 2 Exhibit)(Roney, Deirdre) (Entered: 03/18/2005)
206 AFFIDAVIT of Christopher B. Zimmerman in Opposition re 173 MOTION in Limine To Exclude Plaintiffs' Clinical Review, 174 MOTION in Limine To Exclude Plaintiffs' Cost Analysis, 175 MOTION in Limine To Exclude Testimony By Advocate Experts About Law, 176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis, 177 MOTION in Limine To Exclude Evidence Concerning Other States' Medicaid Programs, 178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians, 179 MOTION in Limine To Exclude Improper Rebuttal Testimony by Four New Experts, 180 MOTION in Limine Objecting to Qualifications of Ms. Koyanagi filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit Ex. 1, pages 1−25# 2 Exhibit 1, pages 26−50# 3 Exhibit 1, pages 52−58# 4 Exhibit 2# 5 Exhibit 3# 6

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03/23/2005 03/23/2005 03/24/2005
03/25/2005 03/25/2005 03/25/2005 03/25/2005 03/28/2005

Exhibit 4# 7 Exhibit 5, pages 1−25# 8 Exhibit 5, pages 26−32# 9 Exhibit 6# 10 Exhibit 7# 11 Exhibit 8# 12 Exhibit 9# 13 Exhibit 10# 14 Exhibit 11# 15 Exhibit 12# 16 Exhibit 13# 17 Exhibit 14# 18 Exhibit 15, pages 1−25# 19 Exhibit 15, pages 26−31# 20 Exhibit 16# 21 Exhibit 17# 22 Exhibit 18# 23 Exhibit 19# 24 Exhibit 20# 25 Exhibit 21# 26 Exhibit 22# 27 Exhibit 23, pages 1−25# 28 Exhibit pages 26−31# 29 Exhibit 24# 30 Exhibit 25# 31 Exhibit 26# 32 Exhibit 27, pages 1−25# 33 Exhibit 27, pages 26−27# 34 Exhibit 28# 35 Exhibit 29# 36 Exhibit 30# 37 Exhibit 31# 38 Exhibit 32# 39 Exhibit 33# 40 Exhibit 34# 41 Exhibit 35)(Rhee, John) (Entered: 03/18/2005)
Judge Michael A Ponsor : Electronic ORDER entered granting 194 Motion to Expedite − Document number 186 shall be heard at Motion Hearing set for 3/24/05 (French, Elizabeth) (Entered: 03/23/2005)
207 ADDENDUM re 154 MOTION for Summary Judgment Notice of Supplemental Authority filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Roney, Deirdre) (Entered: 03/23/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Motion Hearing held on 3/24/2005 re 171 Joint MOTION to Dismiss Count IV of Plaintiffs' Complaint, Without Prejudice filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, Rosie D.,, Tyriek H.,, Joshua D.,, Sheena M.,, Devin E.,, Anton B.,, Shaun E.,, Jerry N.,, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"),, EOHHS,, Eric Kriss,, Samuel L.,, Jose M.,, Janice B.,, Terrence M.,, Natisha M.,, Sarah B.,, Forrest W.,, Jason S.,, Shentelle G.,, Christine Q.,, Kristin P.,, Chris T.,, Chelsea T.,, Ralph B.,, Tevin W.,, Danielle H.,, Kristin H.,, Marc St. L.,, 169 MOTION to Strike Improper Proposed Statements of Undisputed Facts filed by Rosie D.,, Tyriek H.,, Joshua D.,, Sheena M.,, Devin E.,, Anton B.,, Nathan F.,, Shaun E.,, Jerry N.,, Samuel L.,, Jose M.,, Terrence M.,, Natisha M.,, Sarah B.,, Forrest W.,, Jason S.,, Shentelle G.,, Christine Q.,, Kristin P.,, Chris T.,, Chelsea T.,, Ralph B.,, Tevin W.,, Danielle H.,, Marc St. L.,, 154 MOTION for Summary Judgment filed by EOHHS,, 186 MOTION in Limine to Exclude Post−Discovery Developments filed by Rosie D.,, Tyriek H.,, Joshua D.,, Sheena M.,, Devin E.,, Anton B.,, Nathan F.,, Shaun E.,, Jerry N.,, Samuel L.,, Jose M.,, Terrence M.,, Natisha M.,, Sarah B.,, Forrest W.,, Jason S.,, Shentelle G.,, Christine Q.,, Kristin P.,, Chris T.,, Chelsea T.,, Ralph B.,, Tevin W.,, Danielle H.,, Marc St. L.,. Motion hearing on Motions in limine set for 3/28/05 at 10:00 a.m. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 03/24/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 171 Motion to Dismiss Count IV (Managed Care Claim). cc/cl (Lindsay, Maurice) (Entered: 03/25/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 169 Motion to Strike 169 MOTION to Strike Improper Proposed Statements of Undisputed Facts DENIED, as moot. Defendant's motion for summary judgment as been denied. So ordered. cc/cl (Lindsay, Maurice) (Entered: 03/25/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 154 Motion for Summary Judgment. DENIED, for the reasons stated in open court on March 24, 2005. So ordered. cc/cl (Lindsay, Maurice) (Entered: 03/25/2005)
Judge Michael A Ponsor : Electronic ORDER entered granting 186 Motion in Limine "in the sense that the Court's focus will be on the defendant's compliance with Medicaid requirements as of August, 2004. Further evidence may be taken if the Court needs to consider a remedy. This ruling may be adjusted at trial as practical considerations may require" (French, Elizabeth) (Entered: 04/08/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Motion Hearing held on 3/28/2005 re 179 MOTION in Limine To Exclude Improper Rebuttal Testimony by Four New Experts filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 180 MOTION in Limine Objecting to Qualifications of Ms. Koyanagi filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, Eric Kriss,, 173 MOTION in Limine To Exclude Plaintiffs' Clinical Review filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 174 MOTION in Limine To Exclude Plaintiffs' Cost Analysis filed by Robert Gittens,, Stephen P. Crosby,, Wendy E.

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03/28/2005 03/28/2005 03/28/2005 03/28/2005 03/28/2005 03/28/2005 03/28/2005 03/28/2005 03/28/2005 04/04/2005
04/04/2005 04/08/2005
04/08/2005
04/08/2005

Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 175 MOTION in Limine To Exclude Testimony By Advocate Experts About Law filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 176 MOTION in Limine To Exclude Expert Testimony That Lacks a Reliable Basis filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 177 MOTION in Limine To Exclude Evidence Concerning Other States' Medicaid Programs filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, 178 MOTION in Limine To Exclude Opinion Testimony by Treating Physicians filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,. (Motions denied) Conference held w/attorneys re: trial schedule − memo from counsel re: evidentiary issues by 4/8/05; Response by 4/18/05; trial memo also due 4/18/05 no more than 15 pages; Hearing set for 4/21/05 at 3:00 p.m. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 173 Motion in Limine to exclude evidence concerning the clinical needs of any Children. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 174 Motion in Limine exclude Ptf's Cost Analysis. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 175 Motion in Limine: to exclude expert testimony. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 176 Motion in Limine. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 177 Motion in Limine. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 178 Motion in Limine. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 179 Motion in Limine. DENIED, without prejudice. (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 180 Motion in Limine. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 183 Motion in Limine. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 03/28/2005)
208 TRANSCRIPT of Proceedings held on 3/24/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 04/04/2005)
209 NOTICE of Appearance by Kathryn L. Rucker on behalf of all plaintiffs (Rucker, Kathryn) (Entered: 04/04/2005)
210 BRIEF by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss Defendants' April 8, 2005 Memorandum Concerning Evidentiary Issues. (Attachments: # 1 Affidavit In Support of Defendants' April 8, 2005 Memorandum)(Roney, Deirdre) (Entered: 04/08/2005)
211 MOTION to Strike Supplemental Expert Report by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Rhee, John) (Entered: 04/08/2005)
212 MEMORANDUM in Support re 211 MOTION to Strike Supplemental Expert Report filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton

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04/08/2005 04/08/2005
04/13/2005 04/15/2005 04/15/2005 04/15/2005 04/18/2005 04/18/2005
04/18/2005
04/18/2005
04/18/2005 04/18/2005
04/18/2005
04/18/2005

B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 04/08/2005)
213 AFFIDAVIT in Support re 211 MOTION to Strike Supplemental Expert Report, 212 Memorandum in Support of Motion,. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Rhee, John) (Entered: 04/08/2005)
214 BRIEF by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. Regarding Evidentiary Issues. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibits 2−3# 3 Exhibit Exhibit 4)(Rhee, John) (Entered: 04/08/2005)
215 Remark − Letter received from Steven Schwartz requesting permission to utilize laptop computers (4) during course of trial (French, Elizabeth) (Entered: 04/13/2005)
216 TRIAL BRIEF Plaintiffs' by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 04/15/2005)
217 BRIEF by EOHHS Responding to Plaintiffs' Evidentiary Memorandum. (Hitt, John) (Entered: 04/15/2005)
Remark re: Letter request dated 4/12/05 re: using computers for trial − APPROVED BY COURT − Copy of letter will be given to CSO's (French, Elizabeth) (Entered: 04/15/2005)
218 TRIAL BRIEF by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss. (Roney, Deirdre) (Entered: 04/18/2005)
219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Rhee, John) (Entered: 04/18/2005)
220 MEMORANDUM in Support re 219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Rhee, John) (Entered: 04/18/2005)
221 Opposition re 219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman, 211 MOTION to Strike Supplemental Expert Report of Dr. Foster, and Cross Motion to Strike Supplemental Expert Report of Dr. Conroy filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss. (Roney, Deirdre) (Entered: 04/18/2005)
222 AFFIDAVIT in Support re 219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman, 220 Memorandum in Support of Motion,. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Rhee, John) (Entered: 04/18/2005)
223 AFFIDAVIT in Opposition re 219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman, 211 MOTION to Strike Supplemental Expert Report of Dr. Foster, and in Support of Cross Motion to Strike Supplemental Expert Report of Dr. Conroy filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Roney, Deirdre) (Entered: 04/18/2005)
224 BRIEF by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. Responding to Defendants' Evidentiary Memorandum. (Rhee, John) (Entered: 04/18/2005)
225 AFFIDAVIT in Support of Plaintiffs' Response to Defendants' Evidentiary Memorandum. (Attachments: # 1 Exhibit Exhibits to Rhee Affidavit)(Rhee, John)

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04/19/2005
04/20/2005 04/21/2005 04/21/2005 04/21/2005 04/21/2005 04/25/2005 04/25/2005
04/26/2005 04/26/2005 04/27/2005 04/27/2005

(Entered: 04/18/2005)
226 Response by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to 221 Opposition to Motion,, 223 Affidavit in Opposition to Motion, and Cross Motion to Strike. (Attachments: # 1)(Rhee, John) (Entered: 04/19/2005)
E−Mail Notice re 216−226 originally issued on 4/15/05, 4/18/05 returned as undeliverable. No host available. Name of Addressee: M. Meacham, J. Bergeron who do not appear on face of docket. Documents received by counsel on docket. Not re−sent. (Stuckenbruck, John) (Entered: 04/20/2005)
227 TRANSCRIPT of Hearing held on March 28, 2005 before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/21/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 211 Motion to Strike 211 MOTION to Strike Supplemental Expert Report cc/cl (Lindsay, Maurice) (Entered: 04/22/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 219 Motion to Strike 219 Emergency MOTION to Strike Supplemental Expert Report of Dr. Bickman. cc/cl (Lindsay, Maurice) (Entered: 04/22/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Status Conference held on 4/21/2005. Hearing on pending motions − and review of trial procedures and schedule (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 04/22/2005)
229 Remark Plaintiff's submission of supplemental authority re: Federal Rule of evidence 801(d)(2)(D) (in connection w/their Evidentiary Memorandum submitted to Court on 4/8/05 (Dkt No. 214) (French, Elizabeth) (Entered: 04/26/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : 9:00 a.m. Daily Copy − A.M. Reporters Alice Moran; Leigh Gershowitz; p.m. Reporter Rebekah Johnson;Bench Trial held on 4/25/2005. Opening statements by plaintiff and defendant.Defendant moves orally to substitute Governor Mitt Romney for Jane Swift, to add Ronald Preson, Sec. HHS and Eric Kriss − Allowed by Court Plaintiff's evidence begins w/testimony of Lisa Alintuzk; P.M. Session counsel only to review exhibits and evidentiary issues − Recess for day 3:30 p.m. Trial to resume 4/26/05 at 9:00 a.m. (Court Reporter Alice Moran.) (French, Elizabeth) Modified on 4/27/2005 (French, Elizabeth). (Entered: 04/26/2005)
228 TRANSCRIPT of Daily Copy of Non−Jury Trial held on April 25, 2005 at 9:04 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/26/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : (Daily copy)Bench Trial held on 4/26/2005. 9:00 a.m. plaintiff's case continues w/testimony of Barbara Burns; Robert Friedman; Recess for day 3:00 p.m. Trial to resume 9:00 a.m. on 4/27/05 (Court Reporter Alice Moran; Leigh Gershowitz; Sara Mubarek) (French, Elizabeth) (Entered: 04/27/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 4/27/2005. 9:00 a.m. plaintiff's case continues w/testimony of Jacqueline Earp; Marci White; (Daily Copy) (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 04/27/2005)
231 TRANSCRIPT of Proceedings held on 4/26/05 before Judge Michael A. Ponsor. Court Reporter: Rebekah J. Johnson. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 04/28/2005)

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04/28/2005 04/28/2005 04/28/2005 04/28/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 05/02/2005 05/02/2005

230 TRANSCRIPT of Daily Copy of Non−jury Trial held on April 26, 2005 at 9:08 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/28/2005)
232 TRANSCRIPT of Daily Copy of Non−Jury Trial held on April 26, 2005 at 2:05 P.M. before Judge Michael A. Ponsor filed. Court Reporter: Sarah L. Mubarek. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/28/2005)
233 TRANSCRIPT of Daily Copy of Non−Jury Trial held on April 27, 2005 at 9:10 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/28/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 4/28/2005. 9:00 a.m. Plaintiff's case continues w/testimony of Marci White; Ranelle Jayner; Dr. Greer; Recess for day 1:00 p.m. (Daily Copy) (Court Reporter Alice Moran; Leigh Gershowitz) (French, Elizabeth) (Entered: 04/28/2005)
234 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on April 28, 2005 at 11:14 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/29/2005)
235 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on April 28, 2005 at 9:08 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/29/2005)
236 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on April 25, 2005 at 11:05 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/29/2005)
237 DAILY COPY TRANSCRIPT of Non−Jury Trial held on April 26, 2005 at 11:20 A.M. before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/29/2005)
238 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on April 27, 2005 at 11:00 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 04/29/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Daily copyBench Trial held on 4/29/2005 Plaintiff's case continues (Court Reporter Alice Moran; Leigh Gershowitz) (French, Elizabeth) (Entered: 05/05/2005)
239 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on April 29, 2005 at 11:17 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/02/2005)
240 TRANSCRIPT of Proceedings held on 4/29/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/02/2005)

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05/02/2005 05/03/2005 05/03/2005 05/03/2005 05/04/2005 05/05/2005 05/05/2005 05/06/2005 05/06/2005 05/06/2005 05/10/2005 05/10/2005 05/12/2005

Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Daily copyBench Trial held on 5/2/2005; Plaintiff's case continues w/testimony of Dr. Rogers (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 05/05/2005)
241 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 2, 2005 at 9:32 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/03/2005)
242 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 2, 2005 at 11:11 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/03/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Daily copyBench Trial held on 5/3/2005. (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 05/05/2005)
243 TRANSCRIPT of Proceedings held on 5/3/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/04/2005)
244 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 3, 2005 at 11:10 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) Modified on 5/5/2005 (Finn, Mary). (Entered: 05/05/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : 9:00 a.m.Bench Trial held on 5/5/2005. Daily copy Plaintiff's case continues; Recess for day 1:00 p.m. Trial to resume 5/6/05 at 9:00 a.m. (Court Reporter Alice Moran/Leigh Gershowitz.) (French, Elizabeth) (Entered: 05/06/2005)
245 DAILY COPY OF TRANSCRIPT of Non−jury Trial held on May 5, 2005 at 11:10 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/06/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : 9:00 a.m.Bench Trial held on 5/6/2005 (Plaintiffs case continues) (Daily Copy)Trial to resume on 5/16/05 at 9:00 a.m. (Court Reporter Alice Moran/Leigh Gershowitz.) (French, Elizabeth) (Entered: 05/06/2005)
246 TRANSCRIPT of Proceedings held on 5/5/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/06/2005)
247 TRANSCRIPT of Proceedings held on 5/6/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/10/2005)
Remark − NOTICE TO COUNSEL RE: TRIAL SCHEDULE May 19, 2005 trial date − Court will sit on this date from 9:00 a.m. to 11:30 a.m. rather than a full day as previously indicated by Court. (French, Elizabeth) (Entered: 05/10/2005)
248 BRIEF by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. Concerning Evidentiary Issues Related to Exhibits. (Attachments: # 1 Affidavit Affidavit and Exhibits 1−2# 2 Exhibit Exhibits 3−4# 3 Exhibit Exhs 5−7)(Rhee, John) (Entered: 05/12/2005)

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05/12/2005 05/16/2005 05/16/2005 05/17/2005 05/17/2005
05/17/2005 05/18/2005
05/18/2005 05/18/2005 05/19/2005 05/20/2005
05/20/2005
05/20/2005 05/23/2005

249 Objection Further Objections to Plaintiffs' Proposed Trial Exhibits. (Roney, Deirdre) (Entered: 05/12/2005)
250 TRANSCRIPT of Proceedings held on 5/6/05 before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/16/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/16/2005. Witnesses: Marty Beyer; Katherine Grimes (Court Reporter Alice Moran/Leigh Gershowitz) Daily Copy (French, Elizabeth) (Entered: 07/29/2005)
251 TRANSCRIPT of Proceedings held on 5/16/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/17/2005)
252 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 16, 2005 at 11:00 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/17/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Witnesses Bruce Kamradt; Sara RosenbaumBench Trial held on 5/17/2005. (Court Reporter Alice Moran/Leigh Gershowitz Daily copy (French, Elizabeth) (Entered: 07/29/2005)
253 DAILY COPY TRANSCRIPT of Non−Jury Trial held on May 17,2005 at 11:15 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B Greshowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/18/2005)
254 TRANSCRIPT of Proceedings held on 5/17/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/18/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Witnesses: Continuation of Sara Rosenbaum; Paul O'Shea; Marjorie CohanBench Trial held on 5/18/2005. (Court Reporter Alice Moran/Leigh Gershowitz Daily Copy (French, Elizabeth) (Entered: 07/29/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/19/2005. Witness: Katherine Grimes; Carl Valentine (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 07/29/2005)
255 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 18, 2005 at 9:08 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/20/2005)
256 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 18, 2005 at 11:00 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/20/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/20/2005. Witnesses Carl Valentine; Jon Marcus; John Jackson (Court Reporter Alice Moran/Leigh Gershowitz) Daily Copy (French, Elizabeth) (Entered: 07/29/2005)
257 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 19, 2005 at 9:06 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's

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05/23/2005 05/23/2005 05/23/2005 05/23/2005 05/23/2005 05/24/2005 05/24/2005 05/24/2005 05/24/2005 05/24/2005 05/24/2005 05/25/2005 05/25/2005

Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/23/2005)
258 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 20, 2005 at 9:11 A.M before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/23/2005)
259 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 20, 2005 at 11:14 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/23/2005)
263 Defts' MOTION to Amend their 181 Exhibit/Witness List by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
271 Pltfs' List of Unobjected−to Exhibits to be admitted in Evidence at Trial by Rosie D., Tyriek H., EOHHS, Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. filed. (Finn, Mary) (Entered: 05/26/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/23/2005. Continuation of testimony of Marjorie Cohan; Continued cross exam of John Jackson and redirect (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
260 TRANSCRIPT of Proceedings held on 5/23/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/24/2005)
261 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 23, 2005 at 11:10 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/24/2005)
262 TRANSCRIPT of Proceedings held on 5/24/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/25/2005)
272 Pltf's Suppl. Evidentiary MEMORANDUM re: Plfts' Exhibit 141 (PX0141) by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. filed. (Finn, Mary) (Entered: 05/26/2005)
273 Pltfs' EXHIBITS Listed in Category E of their 272 Evidentiary Memorandum of Law, by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. filed. (Finn, Mary) (Entered: 05/26/2005)
323 Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/24/2005. Witnesses: Lisa Lambert; Barbara Estes; Michael Norton (Court Reporter Alice Moran/Sarah Mubarek) (French, Elizabeth) (Entered: 07/29/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting the Defts' 263 Motion to Amend their witness; cc/cl. (Finn, Mary) (Entered: 05/25/2005)
264 Defts' MOTION to Strike hearsay portions of Marty Beyer expert client review report (PX 1072) by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring,

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05/25/2005 05/25/2005 05/25/2005 05/25/2005 05/25/2005 05/25/2005 05/25/2005 05/26/2005 05/26/2005 05/27/2005 05/27/2005 05/27/2005 05/27/2005

EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
265 Defts' MOTION to Strike hearsay portions of Marty Beyer expert program review report (PX 1100B) by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
266 Defts' MOTION to Strike hearsay portions of James Greer expert client review report (PX 1148B) by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney filed.(Finn, Mary) (Entered: 05/25/2005)
267 Dets' MOTION to Strike hearsay portions of Narell C. Joyner expert client review report (PX 1101) by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
268 Defts' MOTION to Strike hearsay portions of Bruce Kamradt program review report (PX 1151B) by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
269 Defts' MOTION to Strike hearsay portions of Beth C. Whitaker expert client review report (PX 1095) by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
270 Defts' MOTION to Strike hearsay portions of Marci White expert client review report (PX 1092B) by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston filed.(Finn, Mary) (Entered: 05/25/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/25/2005. Witness: Michael Norton; (Court Reporter Rebekah Johnson.) (French, Elizabeth) (Entered: 07/29/2005)
274 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 24, 2005 at 11:11 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/26/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/26/2005. Witness: Continuation of direct exam of Michael Norton; cross exam of Michael Norton (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
275 DAILY COPY OF TRANSCRIPT of Non−jury Trial held on May 25, 2005 at 9:05 A.M. before Judge Michael A. Ponsor. Court Reporter: Rebekah J. Johnson. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/27/2005)
276 DAILY COPY OF TRANSCRIPT of Non−jury trial held on May 25, 2005 at 11:05 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/27/2005)
277 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 26, 2005 at 11:17 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/27/2005)
278 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 26, 2005 at 9:53 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office.

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05/27/2005 05/27/2005 05/27/2005 05/27/2005 05/31/2005 05/31/2005 05/31/2005 05/31/2005 05/31/2005 06/01/2005 06/01/2005 06/01/2005 06/02/2005

(Finn, Mary) (Entered: 05/27/2005)
279 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 25, 2005 at 2:20 P.M. before Judge Michael A. Ponsor filed. Court Reporter: Sarah L. Mubarek. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/27/2005)
280 MOTION in Limine to Preclude Admission of Defendants' Exhibit 73 and Testimony by Deborah Kaegebein on Clinical Summaries of MBHP Clients filed by Plaintiffs. (Healy, Bethaney) (Entered: 05/27/2005)
281 MEMORANDUM in Opposition re 280 MOTION in Limine to Preclude Admission of Defendants' Exhibit 73 and Testimony by Deborah Kaegebein on Clinical Summaries of MBHP Clients, filed by Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Healy, Bethaney) (Entered: 05/27/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/27/2005. Cross exam of Michael Norton continues; Witness: John Ross; Doborah Kaegebein; (Court Reporter Alice Moran/Leigh Gershowitz; Sara Mubarek) (French, Elizabeth) (Entered: 07/29/2005)
282 TRANSCRIPT of Proceedings held on 5/27/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 05/31/2005)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 280 Motion in Limine to preclude admission of Dft's exhibit 73 and testimony by Deborah Kaegebein on clinical summaries of MBHP clients. cc/cl (Lindsay, Maurice) (Entered: 05/31/2005)
283 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 27, 2005 at 11:17 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershiwitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/31/2005)
284 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 27, 2005 at 2:05 P.M. before Judge Michael A. Ponsor filed. Court Reporter: Sarah L. Mubarek. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 05/31/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 5/31/2005. Witnesses: Deborah kaegebein; Leonard Bickman; (Court Reporter Alice Moran, Leigh Gershowitz; Sara Mubarek) (French, Elizabeth) (Entered: 07/29/2005)
285 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 31, 2005 at 9:08 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/01/2005)
286 DAILY COURT TRANSCRIPT of Proceedings held on 5/31/05 before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/01/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 6/1/2005. Witnesses: Leonard Bickman; Peter Metz; Kathleen Betts (Court Reporter Alice Moran; Leigh Gershowitz; Rebekah Johnson.) (French, Elizabeth) (Entered: 07/29/2005)
287 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 1, 2005 at 9:03 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's

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06/02/2005 06/02/2005 06/02/2005 06/03/2005 06/03/2005 06/03/2005 06/06/2005 06/06/2005 06/06/2005 06/07/2005 06/07/2005
06/07/2005

Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/02/2005)
288 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 1, 2005 at 11:05 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/02/2005)
289 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on May 31, 2005 at 2:20 P.M. before Judge Michael A. Ponsor filed. Court Reporter: Sarah L. Mubarek. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/02/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 6/2/2005.Witnesses: Michael Foster; Susan Fields; (Court Reporter Alice Moran; Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
290 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 1, 2005 at 2:04 P.M. before Judge Michael A. Ponsor filed. Court Reporter: Rebekah J. Johnson. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/03/2005)
291 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 2, 2005 at 11:05 A.M. before Judge Michael A. Ponsor filed. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/03/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 6/3/2005. (Court Reporter Alice Moran/Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
292 TRANSCRIPT of Trial held on 6/2/05 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Stuckenbruck, John) (Entered: 06/06/2005)
293 TRANSCRIPT of Trial held on 6/3/05 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Stuckenbruck, John) (Entered: 06/06/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 6/6/2005. Witnesses: Stephen Magnus; (Court Reporter Leigh Gershowitz/Rebekah Johnson) (French, Elizabeth) (Entered: 07/29/2005)
294 DAILY COPY OF TRANSCRIPT of Proceedings held on 6/3/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/07/2005)
295 Opposition re 264 MOTION to Strike Portions of Marty Beyer Client Review Expert Report (PX1072) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit 1)(Rhee, John) (Entered: 06/07/2005)
296 Opposition re 268 MOTION to Strike Portions of Bruce Kamradt Program Review Report (PX1151B) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit 1)(Rhee, John) (Entered: 06/07/2005)

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06/07/2005 06/07/2005 06/07/2005 06/07/2005 06/07/2005 06/07/2005 06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/09/2005 06/09/2005

297 Opposition re 265 MOTION to Strike Portions of Marty Beyer Program Review Expert Report (PX1100B) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 06/07/2005)
298 Opposition re 266 MOTION to Strike Portions of James Greer Client Review Expert Report (PX1148B) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 06/07/2005)
299 Opposition re 270 MOTION to Strike Portions of Marci White Client Review Expert Report (PX1092B) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 06/07/2005)
300 Opposition re 269 MOTION to Strike Portions of Beth Whitaker Client Review Expert Report (PX1095) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 06/07/2005)
301 Opposition re 267 MOTION to Strike Portions of Narell Joyner Client Review Expert Report (PX1101) filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 06/07/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial held on 6/7/2005. Witnesses: Richard Goldstein Conference w/attorneys re: exhibits (Court Reporter Leigh Gershowitz/Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
302 DAILY COPY TRANSCRIPT of Proceedings held on 6/3/05 before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/08/2005)
303 DAILY COPY TRANSCRIPT of Proceedings held on 6/6/05 before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/08/2005)
304 DAILY COPY TRANSCRIPT of Proceedings held on 6/6/05 before Judge Michael A. Ponsor. Court Reporter: Rebekah J. Johnson. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/08/2005)
305 DAILY COPY TRANSCRIPT of Proceedings held on 6/7/05 before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/08/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Witnesses: Robert Wentworth; Bench Trial held on 6/8/2005. (Court Reporter Leigh Gershowitz) (French, Elizabeth) (Entered: 07/29/2005)
306 TRANSCRIPT of Trial held on 6/7/05 before Judge Ponsor. Court Reporter: Sarah Mubarek. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Stuckenbruck, John) (Entered: 06/09/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Witnesses: Robert Wentworth; Joan MikulaBench Trial held on 6/9/2005. (Court Reporter Sara Mubarek/Leigh Gershowitz; Alice Moran) (French, Elizabeth) (Entered: 07/29/2005)

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06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/15/2005
06/15/2005
06/15/2005
06/15/2005
06/20/2005 06/20/2005 06/20/2005 06/21/2005 06/21/2005 07/15/2005 07/18/2005

Remark NOTICE/REMINDER TO COUNSEL: FINAL ARGUMENTS SCHEDULED FOR 8/9/04 AT 2:00 p.m.(Counsel shall have one hour each to present their argument (French, Elizabeth) (Entered: 06/13/2005)
307 Ptf's Opposition to Dft's 266 MOTION to Strike portions of James Greer client review expert report PX1148B filed by Rosie D. (Lindsay, Maurice) (Entered: 06/13/2005)
308 Ptf's Opposition to Dft's 270 MOTION to Strike portions of Marci White client review expert report (PX1092B) filed by Rosie D. (Lindsay, Maurice) (Entered: 06/13/2005)
309 Ptf's Opposition to Dft's 269 MOTION to Strike portions of Beth Whitaker client review expert report (PX1095) filed by Rosie D. et al. (Lindsay, Maurice) (Entered: 06/13/2005)
310 Ptf's Opposition to Dft's 267 MOTION to Strike portions of Narell Joyner client review expert report (PX1101) filed by Rosie D. et al. (Lindsay, Maurice) (Entered: 06/13/2005)
311 Ptf's Opposition to Dft's 265 MOTION to Strike portions of Marty Beyer program review expert report (PX1100B) filed by Rosie D. et al. (Lindsay, Maurice) (Entered: 06/13/2005)
312 TRANSCRIPT of Proceedings held on 6/9/05 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 06/15/2005)
313 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 8, 2005 at 9:05 A.M. before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/15/2005)
314 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 9, 2005 at 9:05 A.M. before Judge Michael A. Ponsor. Court Reporter: Sarah L. Mubarek. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/15/2005)
315 DAILY COPY OF TRANSCRIPT of Non−Jury Trial held on June 9, 2005 at 11:10 A.M. before Judge Michael A. Ponsor. Court Reporter: Leigh B. Gershowitz. Tape Number: None. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 06/15/2005)
316 Letter/request (non−motion) from Deirdre Roney in response to Judge Ponsor's June 9, 2005 inquiry. (Roney, Deirdre) (Entered: 06/20/2005)
317 Letter/request (non−motion) from Steven J. Schwartz in response to Judge Ponsor's 6/9/05 inquiry. (Schwartz, Steven) Additional attachment(s) added on 6/20/2005 (Stuckenbruck, John). (Entered: 06/20/2005)
Notice of correction to docket made by Court staff. Correction: Doc. #317 corrected because: Wrong signature page of letter attached. Document deleted and replaced. (Stuckenbruck, John) (Entered: 06/20/2005)
318 Ptf's Opposition to Dft's Deposition designations for Susan Pelechowicz, by Rosie D. et al. (Lindsay, Maurice) (Entered: 06/21/2005)
319 Remark: Plaintiffs' counter desigations to dft's deposition designations. (Exhibits could not be scanned) (Attachments: # 1 Exhibit) (Lindsay, Maurice) (Entered: 06/21/2005)
320 Proposed Findings of Fact by Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 07/15/2005)
321 Proposed Findings of Fact by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 07/18/2005)

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07/28/2005 08/01/2005
08/01/2005 08/04/2005 08/05/2005 08/09/2005 08/10/2005 08/17/2005 09/02/2005
09/16/2005 01/11/2006 01/11/2006 01/11/2006 01/26/2006
01/27/2006 02/08/2006 02/09/2006

322 NOTICE of Withdrawal of Appearance (Jernigan, Cytheria) (Entered: 07/28/2005)
324 Counter Proposed Findings of Fact by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 08/01/2005)
325 MEMORANDUM OF LAW by Eric Kriss, Mitt Romney, Ronald Preston to 321 Proposed Findings of Fact,. (Roney, Deirdre) (Entered: 08/01/2005)
326 APPENDIX/EXHIBIT of Testimony Cited in Plaintiffs' 324 Proposed Findings of Fact, by Rosie D. et al. (Lindsay, Maurice) (Entered: 08/04/2005)
327 APPENDIX/KEY EXHIBITS Cited in Plaintiff's 324 Proposed Findings of Fact, by Rosie D. et al., (Lindsay, Maurice) (Entered: 08/05/2005)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Bench Trial completed on 8/9/2005. Closing Arguments (Court Reporter Sara Mubarek.) (French, Elizabeth) (Entered: 08/10/2005)
328 Letter/request (non−motion) from Deirdre Roney Responding to Ms. Kaplan's inquiry concerning exhibits. (Roney, Deirdre) (Entered: 08/10/2005)
Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Case had originally been referred for full pretrial management. Original referral is terminated this day for statistical purposes.) (Healy, Bethaney) (Entered: 08/17/2005)
Motions terminated: 182 MOTION for Extension of Time to 03/11/05 to File Joint Summary of Stipulations filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,. (French, Elizabeth) (Entered: 09/02/2005)
Judge Michael A Ponsor : Electronic ORDER entered finding as moot 140 Motion for Clarification, finding as moot 142 Motion for Modification (French, Elizabeth) (Entered: 09/16/2005)
329 Letter/request (non−motion) from Deirdre Roney. (Roney, Deirdre) (Entered: 01/11/2006)
330 Letter/request (non−motion) from Deirdre Roney. (Roney, Deirdre) (Entered: 01/11/2006)
Remark − Document 329 (letter) was incomplete and was redone and is document 330 . (Finn, Mary) (Entered: 02/09/2006)
331 Judge Michael A Ponsor : ORDER entered. MEMORANDUM OF DECISION (Attachments: # 1 Memo Continue (2 of 5) Parts# 2 Memo Continue (3 of 5) Parts# 3 Memo Continue (4 of 5) Parts# 4 Memo Continue (5 of 5) Parts)Finding for plaintiffs on liability on Counts I and II. Finding for defendant on Count III. No judgment to enter at this time. Because the issue of remedy remains to be addressed, the parties are ordered to meet within fourteen days of this memo to discuss the issues to be addressed and to attempt to agree on a timetable for doing so. On or before 2/17/06 counsel will submit their written proposal regarding both issues and timetable. Counsel will appear again for a status conference to discuss the remedial phase on 2/23/06 at 3:00 p.m. See the attached memo for complete details. cc/cl (Lindsay, Maurice)Text modified on 1/27/2006 (Stuckenbruck, John). (Entered: 01/26/2006)
Notice of correction to docket made by Court staff. Correction: docket text corrected to provide more information regarding the opinion entered on 1/26/06. (Stuckenbruck, John) (Entered: 01/27/2006)
Mail Returned as Undeliverable. Mail sent to Robert H. Weber, pro se (Lindsay, Maurice) (Entered: 02/08/2006)
332 Judge Michael A Ponsor : ORDER OF CLARIFICATION entered. re Guardian AD Litem Robert H. Weber. See the attached order for complete details. cc/cl (Attachments: # 1 Exhibit A)(Lindsay, Maurice) (Entered: 02/09/2006)

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02/17/2006 02/23/2006 02/24/2006
02/24/2006 02/24/2006 02/27/2006 06/12/2006 06/12/2006
06/27/2006 06/28/2006 07/25/2006 08/28/2006

333 Proposed Document(s) submitted by Mitt Romney. Document received: Joint Proposal Concerning Remedy Process. (Attachments: # 1 Exhibit # 2 Exhibit)(Roney, Deirdre) (Entered: 02/17/2006)
ElectronicClerk's Notes for proceedings held before Judge Michael A Ponsor : Status Conference held on 2/23/2006. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 02/24/2006)
Motions terminated: 264 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, Mitt Romney,, Ronald Preston,, Janice B.,, 270 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, EOHHS,, Eric Kriss,, Mitt Romney,, Ronald Preston,, Janice B.,, 265 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, Mitt Romney,, Ronald Preston,, Janice B.,, 266 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, Jane M. Swift,, EOHHS,, Eric Kriss,, Mitt Romney,, Janice B.,, 267 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, EOHHS,, Mitt Romney,, Ronald Preston,, Janice B.,, 268 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, EOHHS,, Eric Kriss,, Mitt Romney,, Ronald Preston,, Janice B.,, 269 MOTION to Strike filed by Robert Gittens,, Stephen P. Crosby,, Wendy E. Warring,, EOHHS,, Eric Kriss,, Mitt Romney,, Ronald Preston,, Janice B., and [270 −Defts' motion to strike hearsay portions of Marci White expert client review. (Finn, Mary) Modified on 2/24/2006 (Finn, Mary). (Entered: 02/24/2006)
Judge Michael A Ponsor : ENDORSED ORDER entered. approving 333 Joint Proposal concerning remedy process. APPROVED. The parties will submit a joint status report, or individual status reports, on or before June 12, 2006. So ordered. cc/cl(Lindsay, Maurice) (Entered: 02/24/2006)
Set/Reset Deadlines: The Parties' Status Report due by 6/12/2006. (Lindsay, Maurice) (Entered: 02/27/2006)
NOTICE issued to Attorney Stephanie S. Lovell regarding mandatory registration with ECF in compliance with the Standing Order entered by Judge Ponsor and Magistrate Judge Neiman. (Lindsay, Maurice) (Entered: 02/27/2006)
334 STATUS REPORT by Mitt Romney. (Roney, Deirdre) (Entered: 06/12/2006)
335 STATUS REPORT by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit Proposed Agenda# 2 Exhibit Proposed Remedial Plan part 1# 3 Exhibit Proposed Remedial Plan part 2# 4 Appendix CANS Manual# 5 Appendix VO Reviewers Guide part 1# 6 Appendix VO Reviewers Guide part 2# 7 Appendix Improvement Review part 1# 8 Appendix Improvement Review part 2)(Schwartz, Steven) (Entered: 06/12/2006)
336 NOTICE of Scheduling Conference Scheduling Conference set for 7/17/2006 03:30 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 06/27/2006)
337 Joint MOTION for Extension of Time to Week of July 24, 2006 to Hold scheduling conference presently scheduled for July 17, 2006 by all parties.(Roney, Deirdre) (Entered: 06/28/2006)
Judge Michael A Ponsor : Electronic ORDER entered granting 337 Motion Requesting Rescheduling of Scheduling Conference. Scheduling Conference set for 9/13/2006 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Stuckenbruck, John) (Entered: 07/25/2006)
338 STATUS REPORT Plaintiffs' Report to the Court and Final Remedial Plan by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Report to the Court part 2# 2 Exhibit Exhibit 1# 3 Remedial Plan part 1# 4 Remedial Plan part 2# 5 Remedial Plan part 3# 6 Appendix Appendix 1# 7 Appendix Appendix 2# 8 Appendix Appendix 3 part 1# 9 Appendix Appendix 3

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08/29/2006 08/29/2006 08/30/2006 09/13/2006 10/25/2006 10/26/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006
11/08/2006 11/14/2006

part 2# 10 Appendix Appendix 4 part 1# 11 Appendix Appendix 4 part 2)(Schwartz, Steven) (Entered: 08/28/2006)
339 STATUS REPORT by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Mitt Romney, Ronald Preston. (Attachments: # 1 Exhibit Defendants' Remedial Plan Proposal)(Roney, Deirdre) (Entered: 08/29/2006)
340 MEMORANDUM OF LAW by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Mitt Romney, Ronald Preston to 339 Status Report. (Roney, Deirdre) (Entered: 08/29/2006)
E−Mail Notice returned as undeliverable. Name of Addressee: Timothy Jones. The ECF Help Desk has attempted to contact the attorney by telephone. The voice mail message states that this attorney is no longer employed by the firm. The attorney's email address has been removed from the ECF database to prevent the return of additional undeliverable email notices. (Hurley, Virginia) (Entered: 08/30/2006)
ElectronicClerk's Notes for proceedings held before Judge Michael A Ponsor : Scheduling Conference held on 9/13/2006. Scheduling order to issue (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 09/14/2006)
341 MEMORANDUM OF LAW by Robert Gittens, Stephen P. Crosby, Eric Kriss, Mitt Romney, Ronald Preston to 339 Status Report. (Attachments: # 1 Exhibit State Medicaid Manual EPSDT Provisions# 2 Affidavit Norton Affirmation in Support of Defs Proposal# 3 Exhibit Ex 1 to Norton Affirmation)(Roney, Deirdre) Additional attachment(s) added on 10/27/2006 (Lindsay, Maurice). (Entered: 10/25/2006)
342 TRANSCRIPT of Proceedings held on 2/23/06 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 10/26/2006)
343 TRANSCRIPT of Hearing Proceedings held on September 13, 2006 before Judge Michael A. Ponsor filed. Court Reporter: Alice Moran. Digital Recording: No.. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Finn, Mary) (Entered: 11/01/2006)
344 MOTION For Withdrawal of Defendants' 10/6/2006 Letter to CMS by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Rhee, John) (Entered: 11/01/2006)
345 MEMORANDUM in Support re 344 MOTION For Withdrawal of Defendants' 10/6/2006 Letter to CMS filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 11/01/2006)
346 AFFIDAVIT of Steven J. Schwartz in Support re 344 MOTION For Withdrawal of Defendants' 10/6/2006 Letter to CMS filed by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Rhee, John) (Entered: 11/01/2006)
347 Opposition re 344 MOTION For Withdrawal of Defendants' 10/6/2006 Letter to CMS filed by all defendants. (Attachments: # 1 Affidavit Deirdre Roney Affirmation Opposing Plaintiffs' Motion)(Roney, Deirdre) (Entered: 11/08/2006)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 344 Motion for withdrawal of 10/6/06 letter to CMS, and request for expedited briefing and consideration. DENIED. The scope of the court's discretion in designing a remedial plan will not be limited by the October 6 letter or by any response from CMS. Plaintiffs' counsel may of course contact CMS independently if any clarification is needed. So ordered. cc/cl (Lindsay, Maurice) (Entered: 11/14/2006)

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11/21/2006
12/05/2006 12/06/2006 12/06/2006
12/12/2006 12/19/2006 12/19/2006
12/21/2006 12/21/2006 12/22/2006 01/03/2007 02/22/2007
03/23/2007 03/23/2007

348 MEMORANDUM OF LAW by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15)(Schwartz, Steven) (Entered: 11/21/2006)
ELECTRONIC NOTICE OF RESCHEDULING TO COUNSEL:Hearing scheduled for 12/12/06 is now rescheduled TO 12/14/2006 10:00 AM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 12/05/2006)
ELECTRONIC NOTICE of RESCHEDULING Hearing :Hearing SHALL NOW GO FORWARD ON 12/12/2006 AT 11:00 AM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 12/06/2006)
349 MEMORANDUM OF LAW by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston to 341 Memorandum of Law,, 348 Memorandum of Law,. (Attachments: # 1 Affidavit Beth Waldman# 2 Exhibit B to Waldman Aff.)(Roney, Deirdre) Additional attachment(s) added on 12/8/2006 (Lindsay, Maurice). (Entered: 12/06/2006)
ElectronicClerk's Notes for proceedings held before Judge Michael A Ponsor : Hearing re Hearing on remedy held on 12/12/2006. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 02/21/2007)
350 MOTION for Leave to File Order on Remedial Plan by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Text of Proposed Order on Remedial Plan)(Schwartz, Steven) (Entered: 12/19/2006)
351 Proposed Document(s) submitted by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. Document received: Proposed Order on Remedial Plan. (Lindsay, Maurice) (Entered: 12/21/2006)
Motions terminated: 350 MOTION for Leave to File Order on Remedial Plan filed by Rosie D.,, Tyriek H.,, Joshua D.,, Sheena M.,, Devin E.,, Anton B.,, Shaun E.,, Jerry N.,. (Lindsay, Maurice) (Entered: 12/21/2006)
Notice of correction to docket made by Court staff. The motion for entry of proposed order Dkt. No. 350 has been terminated because the motion was not required. The proposed order is now re−docketed as Dkt. No. 351 (Lindsay, Maurice) (Entered: 12/21/2006)
352 Objection by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston to Plaintiffs' Proposed Order on Remedial Plan. (Roney, Deirdre) (Entered: 12/22/2006)
353 TRANSCRIPT of Proceedings held on 12/12/06 before Judge Michael A. Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter or the Clerk's Office. (Lindsay, Maurice) (Entered: 01/03/2007)
354 Judge Michael A Ponsor : ORDER entered. MEMORANDUM AND ORDER Regarding Remedy, The parties will report to the court, in writing, no later than 3/23/07 regarding their efforts to agree upon a court monitor to oversee implementation of the remedial plan, Ptf's will, as they requested, submit a proposed form of Judgment embodying the remedial plan adopted by the court, by 3/23/07 Ptf's may responed by 4/6/07. See the attached memo & order for complete details. cc/cl (Attachments: # 1 Exhibit A (1of2) Parts# 2 Exhibit A (2of2) Parts)(Lindsay, Maurice) (Entered: 02/22/2007)
355 Joint MOTION for Extension of Time to March 28, 2007 to File Report on Efforts to Agree on Court Monitor by EOHHS.(Rice, Juliana) (Entered: 03/23/2007)
356 Proposed Document(s) submitted by EOHHS. Document received: Defendants' Proposed Judgment. (Rice, Juliana) (Entered: 03/23/2007)

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03/26/2007 03/26/2007 03/28/2007 04/05/2007 04/05/2007 04/06/2007
04/25/2007 04/25/2007 04/27/2007 04/27/2007 05/18/2007 05/23/2007
05/24/2007
05/24/2007
06/04/2007

Judge Michael A Ponsor : ENDORSED ORDER entered granting 355 Motion for Enlargment of Time to March 28, 2007, to report on efforts to agree on court monitor. ALLOWED, Report by 3/28/07. cc/cl (Lindsay, Maurice) (Entered: 03/26/2007)
Set/Reset Deadlines: Status Report due by 3/28/2007. (Lindsay, Maurice) (Entered: 03/26/2007)
357 Joint MOTION for Extension of Time to April 4, 2007 to Further Report on Efforts to Agree on Court Monitor by EOHHS.(Rice, Juliana) (Entered: 03/28/2007)
Judge Michael A Ponsor : ENDORSED ORDER entered granting the parties' 357 Joint Motion for Enlargment of Time to further report on efforts to agree on court monitor. ALLOWED, Further Report due by 4/4/2007. (Lindsay, Maurice) (Entered: 04/05/2007)
358 STIPULATION on the Monitor by EOHHS. (Attachments: # 1 Exhibit Curriculum Vita for Proposed Monitor# 2 Exhibit Proposed Budget)(Rice, Juliana) (Entered: 04/05/2007)
359 Opposition Response by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. to 356 Proposed Document(s) submitted. (Attachments: # 1 Exhibit # 2 Exhibit # 3 # 4 # 5 Exhibit # 6 # 7 # 8 Exhibit # 9)(Schwartz, Steven) (Entered: 04/06/2007)
360 Judge Michael A Ponsor : ORDER RE: PROPOSED JUDGMENT entered. Any response to Ptf's opposition by Dft's due 5/18/07. See the attached order for complete details. cc/cl(Lindsay, Maurice) (Entered: 04/25/2007)
NOTICE issued to Attorney's Robert H. Weber, Stephanie S. Lovell and Timothy M. Jones regarding mandatory use of ECF in compliance with Local Rule 5.4. Failure to comply may result in the imposition of sanctions. cc/cl (Lindsay, Maurice) (Entered: 04/25/2007)
361 Judge Michael A Ponsor : ORDER entered. MEMORANDUM AND ORDER Re: Appointment of Monitor. Counsel will appear with the Monitor for a conference to discuss organizational and logistical issues on July 10, 2007. See the attached memo & order for complete details. cc/cl (Lindsay, Maurice) (Entered: 04/27/2007)
Set Deadlines/Hearings: Conference set for 7/10/2007 at 2:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Lindsay, Maurice) (Entered: 04/27/2007)
362 Defendants' Reply to Plaintiffs' Opposition to Defendants' Proposed Judgment Response by EOHHS. (Rice, Juliana) (Entered: 05/18/2007)
363 MOTION for Leave to File Surreply by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Supplement Surreply)(Schwartz, Steven) (Entered: 05/23/2007)
Judge Michael A Ponsor : ENDORSED ORDER entered granting 363 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 05/24/2007)
364 Surreply, leave granted, Response by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to 362 Response, Order on Motion for Leave to File,. (Schwartz, Steven) (Entered: 05/24/2007)
NOTICE issued to Attorney Stephanie S. Lovell, Robert H. Weber and Timothy M. Jones regarding mandatory use of ECF in compliance with Local Rule 5.4. Failure to comply may result in the imposition of sanctions. (Lindsay, Maurice) (Entered: 06/04/2007)

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06/19/2007 06/27/2007 07/13/2007
07/16/2007
07/16/2007 07/19/2007 07/24/2007 08/10/2007 08/13/2007 08/30/2007
10/05/2007 10/16/2007 10/18/2007
10/22/2007 10/26/2007 10/30/2007 11/01/2007

ELECTRONIC NOTICE OF RESCHEDULING Conference w/monitor present RESET from 7/10/07 TO 7/19/2007 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 06/19/2007)
365 STATUS REPORT on Implementation of Project One, by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 06/27/2007)
366 Response by Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N. to 365 Status Report on Implementation. (Schwartz, Steven) (Entered: 07/13/2007)
367 Judge Michael A Ponsor : ORDER entered. MEMORANDUM AND ORDER, see the attached memo & order and the judgment for complete details. cc/cl (Attachments: # 1 Judgment 1 of 2 parts# 2 Judgment 2 of 2 parts)(Lindsay, Maurice) (Entered: 07/16/2007)
368 Judge Michael A Ponsor : ORDER entered. JUDGMENT in favor of Plaintiff's Rosie D., et al., against Defendant's Deval L. Patrick, et al., (Attachments: # 1 Judgment 2of2 parts)(Lindsay, Maurice) (Entered: 07/16/2007)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Status Conference held on 7/19/2007. Further status conference set for 10/18/07 at 2:00 p.m. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 07/24/2007)
Set/Reset Hearings: Status Conference set for 10/18/2007 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 07/24/2007)
369 Assented to MOTION for Extension of Time to 11/2/2007 to File request for attorneys' fees and costs by Rosie D., Tyriek H., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Schwartz, Steven) (Entered: 08/10/2007)
Judge Michael A Ponsor : endorsedORDER entered granting 369 Motion for Extension of Time (French, Elizabeth) (Entered: 08/13/2007)
370 TRANSCRIPT of Status Conference held on July 19, 2007 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the court reporter at 413/731−0086 or the Clerk's Office. (Scalfani, Deborah) (Entered: 08/30/2007)
371 Letter/request (non−motion) from Defs. Compliance Coordinator as Requested by Monitor with copy to Court. (Attachments: # 1 Memo addressing issue)(Roney, Deirdre) (Entered: 10/05/2007)
372 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E.. (Attachments: # 1 Exhibit Eligibility Regs# 2 Exhibit EPSDT regs)(Schwartz, Steven) (Entered: 10/16/2007)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Status Conference held on 10/18/2007. Written submission by defendant on 11/1/07; Parties to return on 11/7/07 at 2:00 p.m. for further status (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 10/22/2007)
Set/Reset Hearings: Status Conference set for 11/7/2007 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 10/22/2007)
373 Second MOTION for Extension of Time to 12/23/07 to file attorneys' fees and costs by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Schwartz, Steven) (Entered: 10/26/2007)
Judge Michael A Ponsor : ENDORSED ORDER entered granting Ptf's 373 Assented to Motion for Extension of Time to file their request for Attorneys' fees. ALLOWED. Extension to 12/23/2007. cc/cl (Lindsay, Maurice) (Entered: 10/30/2007)
374 MEMORANDUM OF LAW by Mitt Romney to 372 Status Report. (Attachments: # 1 Callahan Affirmation# 2 Roney Affirmation# 3 Roney Aff Ex A# 4 Roney Aff Ex B# 5 Roney Aff Ex C)(Roney, Deirdre) (Entered: 11/01/2007)

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11/07/2007 11/08/2007
11/21/2007 11/21/2007 11/21/2007 11/26/2007 11/27/2007 11/27/2007 11/30/2007 12/17/2007 12/17/2007 12/18/2007
12/18/2007 12/18/2007 12/18/2007 12/19/2007

Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : Status Conference held on 11/7/2007.Further Status Conference set for 1/8/2008 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 11/07/2007)
375 BRIEF by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E. on Medicaid Eligibility Groups. (Attachments: # 1 Exhibit # 2 Exhibit # 3 # 4 Exhibit # 5 Exhibit # 6 # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit)(Schwartz, Steven) (Entered: 11/08/2007)
376 NOTICE of Withdrawal of Appearance by Adam Simms (Simms, Adam) (Entered: 11/21/2007)
377 NOTICE of Withdrawal of Appearance by John R. Hitt (Hitt, John) (Entered: 11/21/2007)
378 NOTICE of Withdrawal of Appearance by Daniel J. Hammond (Hammond, Daniel) (Entered: 11/21/2007)
379 MEMORANDUM OF LAW by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E. to 375 Brief,. (Attachments: # 1 Second part of Memo)(Schwartz, Steven) Additional attachment(s) added on 11/27/2007 (Finn, Mary). (Entered: 11/26/2007)
Notice of correction to docket made by Court staff. Correction: document 379 corrected because: to add the memorandum with all the pages and to delete the memorandum that was missing one page. (Finn, Mary) (Entered: 11/27/2007)
380 NOTICE of Withdrawal of Appearance by Bart Q. Hollander (Hollander, Bart) (Entered: 11/27/2007)
381 STATUS REPORT on Implementation of Remedy by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 11/30/2007)
382 Assented to MOTION for Leave to File Excess Pages by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N..(Schwartz, Steven) (Entered: 12/17/2007)
Judge Judge Michael A Ponsor: ELECTRONIC ENDORSED ORDER entered granting the Pltfs' Assented to 382 Motion for Leave to File Excess Pages re: req. for attorney's fees and costs; cc/cl. (Finn, Mary) (Entered: 12/17/2007)
383 MOTION for Attorney Fees, MOTION for Costs ( Responses due by 1/1/2008) by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 5(1), # 7 Exhibit 5(2), # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10)(Schwartz, Steven) (Additional attachment(s) added on 12/18/2007: # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13) (Finn, Mary). (Entered: 12/18/2007)
384 MEMORANDUM in Support re 383 MOTION for Attorney Fees MOTION for Costs filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Memo (2))(Schwartz, Steven) (Entered: 12/18/2007)
385 NOTICE by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. re 383 MOTION for Attorney Fees MOTION for Costs Filing with Clerk's Office (Schwartz, Steven) (Entered: 12/18/2007)
Notice of correction to docket made by Court staff. Correction: document 383 corrected because: to add exhibits 11 − 13 to the document. (Finn, Mary) (Entered: 12/18/2007)
386 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 12/19/2007)

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12/20/2007 01/03/2008 01/03/2008
01/04/2008 01/07/2008 01/15/2008 01/16/2008 01/17/2008 01/22/2008 01/22/2008 01/25/2008
02/11/2008 02/13/2008 02/14/2008 02/14/2008

387 Assented to MOTION for Extension of Time to 1/23/2008 to File Response/Reply as to 383 MOTION for Attorney Fees MOTION for Costs by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 12/20/2007)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference RESET for 1/17/2008 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 01/03/2008)
Judge Michael A Ponsor: ENDORSEDORDER entered granting 387 Motion for Extension of Time to File Response/Reply re 387 Assented to MOTION for Extension of Time to 1/23/2008 to File Response/Reply as to 383 MOTION for Attorney Fees MOTION for CostsAssented to MOTION for Extension of Time to 1/23/2008 to File Response/Reply as to 383 MOTION for Attorney Fees MOTION for Costs Responses due by 1/23/2008 (French, Elizabeth) (Entered: 01/03/2008)
388 Assented to MOTION for Extension of Time to 1/15/2008 to Status conference Presently Scheduled for 1/17/2008 by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 01/04/2008)
Judge Michael A Ponsor: endorsedORDER entered granting 388 Motion for Extension of Time Status Conference RESET BY AGREEMENT for 1/15/2008 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 01/07/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 1/15/2008. Further status conference set for 3/6/08 at 2:00 p.m. (Court Reporter: Alice Moran.) (French, Elizabeth) (Entered: 01/16/2008)
Set/Reset Hearings: Status Conference set for 3/6/2008 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 01/16/2008)
389 Assented to MOTION for Extension of Time to 2/13/2008 to Respond to attorney fee motion by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 01/17/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 389 Motion for Extension of Time to 2/13/08 to respond. cc/cl (Lindsay, Maurice) (Entered: 01/22/2008)
Set/Reset Deadlines as to 383 MOTION for Attorney Fees & MOTION for Costs. Responses due by 2/13/2008 (Lindsay, Maurice) (Entered: 01/22/2008)
390 NOTICE of Appearance by James W. Prendergast on behalf of Rosie D., Tyriek H., Samuel L., Jose M., Terrence M., Marc St. L., Natisha M., Sarah B., Forrest W., Jason S., Shentelle G., Christine Q., Kristin P., Chris T., Chelsea T., Ralph B., Tevin W., Danielle H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N. (Prendergast, James) (Entered: 01/25/2008)
391 TRANSCRIPT of Status Hearing held on January 15, 2008 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the court reporter at 413/731−0086 or the Clerk's Office. (Scalfani, Deborah) (Entered: 02/11/2008)
392 Assented to MOTION for Extension of Time to File Response/Reply as to 383 MOTION for Attorney Fees MOTION for Costs Defendants by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 02/13/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 392 Motion for Extension of Time to File Response re 383 MOTION for Attorney Fees and MOTION for Costs, Responses due by 2/20/2008. cc/cl (Lindsay, Maurice) (Entered: 02/14/2008)
NOTICE issued to Attorney Robert H. Weber, Timothy M. Jones and Stephanie S. Lovell regarding mandatory use of ECF in compliance with Local Rule 5.4. Failure to comply may result in the imposition of sanctions, if these attorney's are no longer active counsel of record as in this case a notice of withdrawal is required. cc/cl

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02/14/2008 02/15/2008 02/15/2008 02/20/2008 02/20/2008 02/21/2008 02/29/2008
03/03/2008 03/03/2008
03/03/2008
03/04/2008 03/04/2008 03/06/2008 03/21/2008 04/09/2008 04/09/2008
04/22/2008

(Lindsay, Maurice) (Entered: 02/14/2008)
393 MOTION Notice of Withdrawal of Appearance by Timothy Jones by Mitt Romney.(Roney, Deirdre) (Entered: 02/14/2008)
394 MOTION Withdrawal of appearance by Stephanie Lovell by Mitt Romney.(Roney, Deirdre) (Entered: 02/15/2008)
Judge Michael A Ponsor: Electronic ORDER entered granting 393 Motion for withdrawal of Appearance and granting 394 Motion withdrawal of Appearance cc/cl (Lindsay, Maurice) (Entered: 02/15/2008)
395 Assented to MOTION for Leave to File Excess Pages by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 02/20/2008)
396 MEMORANDUM in Opposition re 383 MOTION for Attorney Fees MOTION for Costs filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 02/20/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 395 Motion for Leave to File Excess Pages. cc/cl (Lindsay, Maurice) (Entered: 02/21/2008)
397 Assented to MOTION for Leave to File Reply to Defendants' Partial Opposition to Plaintiffs' Motion for Attorney Fees and Costs by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Schwartz, Steven) (Entered: 02/29/2008)
398 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 03/03/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 397 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 03/03/2008)
399 REPLY to Response to 383 MOTION for Attorney Fees MOTION for Costs filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Fees Scale)(Schwartz, Steven) (Additional attachment(s) added on 3/4/2008: # 3 Main document, # 4 Exhibit Affidavit, # 5 Exhibit Fees Scale) (Finn, Mary). (Entered: 03/03/2008)
Notice of correction to docket made by Court staff. Correction: document 399 corrected because: to add the correct document to the event, the incorrect document having been originally filed. (Finn, Mary) (Entered: 03/04/2008)
400 STATUS REPORT In Preparation for 3−6−08 Status Conference by Stephen P. Crosby, Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 03/04/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 3/6/2008. Counsel to return on May 16, 2008 at 2:00 p.m. (Court Reporter: Alice Moran.) (French, Elizabeth) (Entered: 03/06/2008)
Attorney fee records in excel submitted at previous hearing − placed in envelope for filing (Docketed late due to clerk's error) (French, Elizabeth) (Entered: 03/21/2008)
401 MOTION for Clarification Regarding Class Members' Fair Hearing Rights by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N..(Schwartz, Steven) (Entered: 04/09/2008)
402 MEMORANDUM in Support re 401 MOTION for Clarification Regarding Class Members' Fair Hearing Rights filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 04/09/2008)
403 TRANSCRIPT of Status Hearing held on March 6, 2008 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained by the Clerk's Office.

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05/12/2008 05/15/2008 05/15/2008
05/29/2008 05/30/2008 05/30/2008 06/06/2008 06/06/2008 06/10/2008 06/11/2008 06/11/2008 06/13/2008 06/17/2008
06/17/2008 07/02/2008

Copies may be obtained by contacting the court reporter at 413/731−0086 or the Clerk's Office. (Scalfani, Deborah) (Entered: 04/22/2008)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference RESET FROM 5/16/08 TO 6/6/2008 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Counsel who wish to appear by telephone shall contact the clerk in order to set up telephone conference)(French, Elizabeth) (Entered: 05/12/2008)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference RESET FROM 6/6/08 TO 6/17/2008 03:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Per request of counsel)(French, Elizabeth) (Entered: 05/15/2008)
E−Mail Notice originally issued on 5/15/08 returned as undeliverable. Name of Addressee: Juliana Rice. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Hassett, Kathy) (Entered: 05/15/2008)
404 Joint MOTION for Extension of Time to June 6, 2008 to Respond to Docket No. 401 by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Mitt Romney, Ronald Preston.(Roney, Deirdre) (Entered: 05/29/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 404 Joint Motion to Extend the Time to 6/6/08 for Defendant to respond plaintiff's motion for clarification. cc/cl (Lindsay, Maurice) (Entered: 05/30/2008)
405 STATUS REPORT to the Court by Defendants dated May 30, 2008 by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston. (Roney, Deirdre) (Entered: 05/30/2008)
406 Opposition re 401 MOTION for Clarification Regarding Class Members' Fair Hearing Rights filed by Jane M. Swift, Robert Gittens, Stephen P. Crosby, Wendy E. Warring, Eric Kriss, Mitt Romney, Ronald Preston. (Attachments: # 1 Exhibit SED form)(Roney, Deirdre) (Entered: 06/06/2008)
407 NOTICE of Withdrawal of Appearance by Deirdre Roney (Roney, Deirdre) (Entered: 06/06/2008)
408 STATUS REPORT on the Implementaton of Court's Judgment and Remedial Plan by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit SED Determination draft)(Schwartz, Steven) (Entered: 06/10/2008)
409 NOTICE of Appearance by Daniel J. Hammond on behalf of EOHHS (Hammond, Daniel) (Entered: 06/11/2008)
410 NOTICE of Appearance by Daniel J. Hammond on behalf of EOHHS (Hammond, Daniel) (Entered: 06/11/2008)
411 REPLY to Response to 401 MOTION for Clarification Regarding Class Members' Fair Hearing Rights filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 06/13/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 6/17/2008, Motion Hearing held on 6/17/2008 re 401 MOTION for Clarification Regarding Class Members' Fair Hearing Rights filed by Jerry N., Rosie D., Nathan F., Anton B., Tyriek H., Shaun E., Joshua D., Devin E., Sheena M.. Further conference set for 7/15/08 at 10:00 a.m. (Court Reporter: Alice Moran.)(Attorneys present: Boyle/Hammond/Scott/Sherwood/Schwartz/Castanza/Pendergast) (French, Elizabeth) (Entered: 06/26/2008)
Set Deadlines/Hearings: Further Status Conference set for 7/15/2008 10:00 AM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 06/26/2008)
412 NOTICE of Withdrawal of Appearance by John Sup Rhee (Rhee, John) (Entered: 07/02/2008)

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07/11/2008 07/15/2008 07/15/2008
07/17/2008 07/25/2008 07/25/2008 07/29/2008 07/30/2008 07/31/2008 08/04/2008
08/04/2008
10/03/2008 10/08/2008 11/04/2008 11/17/2008 11/18/2008
12/01/2008 12/03/2008

413 STIPULATION (Joint) Regarding Budget for Court−Appointed Monitor by EOHHS. (Hammond, Daniel) (Entered: 07/11/2008)
Judge Judge Michael A Ponsor: ENDORSED ORDER entered re 413 Joint Stipulation on the Monitor − APPROVED; cc/cl. (Finn, Mary) (Entered: 07/15/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered denying, without prejudice the Pltfs' 401 Motion for Clarification. The need for clarification is not clear, and the remedy of a fair hearing may not effectively address the problem, if any. The legal foundation is uncertain, and the practical consequences unpredictable; cc/cl. (Finn, Mary) (Entered: 07/15/2008)
414 NOTICE of Withdrawal of Appearance by Juliana deHaan Rice (Rice, Juliana) (Entered: 07/17/2008)
415 Proposed Document(s) submitted by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. Document received: Proposed Order on Interim Services. (Schwartz, Steven) (Entered: 07/25/2008)
416 Response by EOHHS to Plaintiffs' Proposed Order Regarding Interim Services. (Hammond, Daniel) (Entered: 07/25/2008)
417 Proposed Document(s) submitted by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. Document received: Revised Proposed Order on Interim Services. (Schwartz, Steven) (Entered: 07/29/2008)
418 MEMORANDUM OF LAW by EOHHS to 416 Response. (Hammond, Daniel) (Entered: 07/30/2008)
419 Judge Michael A Ponsor: ORDER entered. MEMORANDUM RE: PROVISION OF INTERIM SERVICES. See the attached memo for complete details. cc/cl(Lindsay, Maurice) (Entered: 07/31/2008)
420 Transcript of Hearing held on July 15, 2008, before Judge Ponsor. Court Reporter: Sarah L. Mubarek at sarahmubarek@comcast.net. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 8/22/2008. Redacted Transcript Deadline set for 9/1/2008. Release of Transcript Restriction set for 10/30/2008. (Scalfani, Deborah) (Entered: 08/04/2008)
421 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/04/2008)
422 STATUS REPORT (Limited) of October 3, 2008 by EOHHS. (Hammond, Daniel) (Entered: 10/03/2008)
423 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 10/08/2008)
424 STATUS REPORT Supplemental Sixth by Rosie D., Tyriek H., Joshua D., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 11/04/2008)
ELECTRONIC NOTICE of Hearing : Status Conference set for 12/19/2008 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 11/17/2008)
ELECTRONIC NOTICE OF RESCHEDULING NOTE: TIME CHANGE ONLY Status Conference RESET TO 3:00 P.M. FROM 2:00 P.M. on 12/19/2008 in Hampden Courtroom before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 11/18/2008)
425 STATUS REPORT Regarding Implementation Issues by EOHHS. (Hammond, Daniel) (Entered: 12/01/2008)
426 Assented to MOTION to Continue Status Conference Scheduled for December 19, 2008 to December 16−17 by EOHHS.(Hammond, Daniel) (Entered: 12/03/2008)

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12/09/2008 12/11/2008 12/16/2008 01/08/2009
01/08/2009 01/14/2009
01/16/2009 01/16/2009 01/29/2009 02/02/2009 02/02/2009 02/02/2009 02/12/2009 02/12/2009

Judge Michael A Ponsor: endorsedORDER entered granting 426 Motion to Continue Status Conference RESET FROM 12/19/08 at 3:00 p.m. To 12/16/2008 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 12/09/2008)
427 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 12/11/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 12/16/2008. Further status set for 2/12/09 at 2:00 p.m. (Court Reporter: Sarah Mubarek.) (French, Elizabeth) (Entered: 12/17/2008)
428 Transcript of Hearing held on December 16, 2008, before Judge Ponsor. Court Reporter: Sarah L. Mubarek at sarahmubarek@comcast.net. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/26/2009. Redacted Transcript Deadline set for 2/5/2009. Release of Transcript Restriction set for 4/6/2009. (Scalfani, Deborah) (Entered: 01/08/2009)
429 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 01/08/2009)
430 Judge Michael A Ponsor: MEMORANDUM AND ORDER entered granting Ptf's 383 Motion for Attorney's Fees and for Costs. The court hereby awards attorneys fees in the total amount of $6,885,108.75 and costs in the amount of $221,305.82. In view of the lengthy wait Plaintiffs have endured inobtaining this award, the court orders Defendants to make full payment of fees and costs, absent an appeal, within forty−five days of this order. In the event of an appeal, the court orders that Defendants make a payment of $2,708,487.01 as fees and costs within forty−five days of this order. This is the amount that Defendants have stated that they do not dispute. See the attached memo and order for complete details. cc/cl (Lindsay, Maurice) (Entered: 01/14/2009)
431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) by EOHHS.(Hammond, Daniel) (Entered: 01/16/2009)
432 MEMORANDUM in Support re 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) filed by EOHHS. (Attachments: # 1 Affidavit Affidavit of Stephen Barnard, # 2 Affidavit Affidavit of Thomas Dehner, # 3 Affidavit Affidavit of Suzanne Fields, # 4 Text of Proposed Order Proposed Form of Order Modifying Judgment)(Hammond, Daniel) (Entered: 01/16/2009)
433 MEMORANDUM in Opposition re 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Nathan F., Shaun E., Jerry N.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 01/29/2009)
ELECTRONIC NOTICE TO COUNSEL PER PONSOR, USDJ; The Court will also hear defendant's motion to modify the Judgment (dkt 431) at the hearing which is scheduled for 2/12/09 at 2:00 p.m. (French, Elizabeth) (Entered: 02/02/2009)
434 MOTION for Discovery Briefing and Evidentiary Hearing by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 02/02/2009)
435 MEMORANDUM in Support re 434 MOTION for Discovery Briefing and Evidentiary Hearing, 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E.. (Schwartz, Steven) (Entered: 02/02/2009)
436 NOTICE of Appearance by Kenneth W. Salinger on behalf of Robert Gittens, Stephen P. Crosby, Wendy E. Warring, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston (Salinger, Kenneth) (Entered: 02/12/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Motion Hearing held on 2/12/2009 re 434 MOTION for Discovery Briefing and Evidentiary

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02/12/2009 02/19/2009 02/23/2009 02/23/2009 02/23/2009
02/24/2009 02/24/2009
02/25/2009 02/25/2009 02/25/2009 02/25/2009 02/26/2009 02/27/2009

Hearing filed by Jerry N., Rosie D., Anton B., Tyriek H., Shaun E., Joshua D., Devin E., Sheena M., 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) filed by EOHHS. (Court Reporter: Leigh Gershowitz.)(Attorneys present: Schwartz, Hammond) Affidavits to be filed by 2/23/09. Further hearing on 2/25/09 @ 3:00 PM. (Stuckenbruck, John) Modified on 2/12/2009 to add text.(Stuckenbruck, John). (Entered: 02/12/2009)
Hearing set for 2/25/2009 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Stuckenbruck, John) (Entered: 02/12/2009)
Judge Michael A Ponsor: ENDORSED ORDER entered denying 434 Motion for Discovery Briefing and Evidentiary Hearing, in connection with EOHHS' Motion to modify judgment. DENIED, without prejudice. cc/cl (Lindsay, Maurice) (Entered: 02/19/2009)
437 AFFIDAVIT in Opposition re 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b). (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4)(Schwartz, Steven) (Entered: 02/23/2009)
438 AFFIDAVIT in Opposition re 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b). (Schwartz, Steven) (Entered: 02/23/2009)
439 ADDENDUM re 431 MOTION to Modify Judgment Pursuant to Fed. R. Civ. P. 60(b) , with Defendants' Revised Proposal To Extend Certain Deadlines for Implementing New Programs, filed by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston. (Attachments: # 1 Affidavit of Suzanne Fields in Support of Defendants' Revised Proposal To Modify Certain Implementation Deadlines)(Salinger, Kenneth) (Entered: 02/23/2009)
440 Assented to MOTION to Amend 430 Order on Motion for Attorney Fees, Order on Motion for Costs,,,,,, To Revise the Deadline for Paying Attorneys' Fees and Costs, by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston.(Salinger, Kenneth) (Entered: 02/24/2009)
441 MEMORANDUM in Support re 440 Assented to MOTION to Amend 430 Order on Motion for Attorney Fees, Order on Motion for Costs,,,,,, To Revise the Deadline for Paying Attorneys' Fees and Costs,Assented to MOTION to Amend 430 Order on Motion for Attorney Fees, Order on Motion for Costs,,,,,, To Revise the Deadline for Paying Attorneys' Fees and Costs, filed by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Janice B., Mitt Romney, Ronald Preston. (Attachments: # 1 Affidavit of Jenny Hedderman)(Salinger, Kenneth) (Entered: 02/24/2009)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 440 Motion to Revise the deadline for paying attorneys' fees and costs. ALLOWED. The quoted paragraph is hereby incorporated into the court's order, replacing the prior order's last substantive paragraph. So ordered. cc/cl (Lindsay, Maurice) (Entered: 02/25/2009)
442 Pltfs' resp. to 441 − the Defendants' Memorandum in Support of Assented to Motion to Revise Deadline for Paying Attorneys' Fees and Costs Response by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E.. (Schwartz, Steven) Modified on 2/25/2009 (Finn, Mary). (Entered: 02/25/2009)
Notice of correction to docket made by Court staff. Correction: Text of document 442 corrected because: to add to the text "Pltfs' resp. to 441 − the" and to link it to document 441 . (Finn, Mary) (Entered: 02/25/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Hearing held on 2/25/2009. Court takes matter under advisement. A memorandum will issue. Status conference set for 3/27/09 @ 2:00 PM. (Court Reporter: Alice Moran.) (Stuckenbruck, John) (Entered: 02/26/2009)
Status Conference set for 3/27/2009 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Stuckenbruck, John) (Entered: 02/26/2009)
443 Judge Michael A Ponsor: MEMORANDUM AND ORDER entered. The Court hereby ALLOWS Deft's motion to modify judgment − 431 , to the extent that In−Home Behavioral Services and Therapeutic Mentoring Services may commence by

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03/04/2009 03/09/2009
03/09/2009 03/16/2009 03/23/2009 03/23/2009 03/26/2009 03/27/2009 04/15/2009
04/15/2009 05/15/2009 05/15/2009 05/20/2009 05/22/2009

10/01/2009. In−Home Therapy Services may commence by 11/01/2009, and Crisis Stabilization Services may commence by 12/01/2009. In all other respects, the original Remedial Order of 2/22/2007 will remain as issued; cc/cl. (Finn, Mary) (Entered: 02/27/2009)
444 Judge Michael A Ponsor: ORDER entered. NOTICE OF CORRECTION re 443 Memorandum and Order. See attached notice for details. cc/cl (Lindsay, Maurice) (Entered: 03/04/2009)
445 Transcript of Motion Hearing held on February 25, 2009, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 3/27/2009. Redacted Transcript Deadline set for 4/6/2009. Release of Transcript Restriction set for 6/4/2009. (Scalfani, Deborah) (Entered: 03/09/2009)
446 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 03/09/2009)
447 Assented to MOTION to Modify Judgment Regarding Payment of Attorneys' Fees by EOHHS. (Attachments: # 1 Affidavit of Jenny Hedderman, General Counsel, Office of the Comptroller)(Hammond, Daniel) (Entered: 03/16/2009)
448 STATUS REPORT (Interim Report on Implementation Issues) by EOHHS. (Hammond, Daniel) (Entered: 03/23/2009)
449 STATUS REPORT Plaintiffs' Eighth by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Medical Necessity Criteria for ICC)(Schwartz, Steven) (Entered: 03/23/2009)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 447 Motion to Modify Judgment regarding payment of attorney's fees. ALLOWED. cc/cl (Lindsay, Maurice) (Entered: 03/26/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 3/27/2009, (Further Status Conference set for 5/21/2009 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor.). (Court Reporter: Alice Moran.) (Stuckenbruck, John) (Entered: 03/30/2009)
450 Transcript of Status Conference held on March 27, 2009, before Judge Ponsor. Court Reporter: Alice Moran at 412//731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 5/4/2009. Redacted Transcript Deadline set for 5/13/2009. Release of Transcript Restriction set for 7/13/2009. (Scalfani, Deborah) (Entered: 04/15/2009)
451 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 04/15/2009)
452 STATUS REPORT (Interim) Regarding Implementation Activities by EOHHS. (Hammond, Daniel) (Entered: 05/15/2009)
453 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Additional attachment(s) added on 5/21/2009: # 1 9th Status Report) (Lindsay, Maurice). (Entered: 05/15/2009)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 5/21/109. Status Conference re−set for 5/29/2009 10:00 AM in Hampden Courtroom before Judge Michael A Ponsor. (Stuckenbruck, John) (Entered: 05/20/2009)
454 Assented to MOTION to Continue Status Conference Scheduled for May 29, 2009 to June 1, 2009 by EOHHS.(Hammond, Daniel) (Entered: 05/22/2009)

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05/26/2009 06/01/2009 07/10/2009 07/17/2009 07/20/2009 07/22/2009 07/24/2009 07/28/2009 08/14/2009
08/14/2009 09/23/2009 09/24/2009 09/24/2009 09/28/2009
10/05/2009

Judge Michael A Ponsor: Electronic ORDER entered granting 454 Motion to Continue. Status Conference set for 6/1/2009, 11:00 AM in Hampden Courtroom before Judge Michael A Ponsor. (Stuckenbruck, John) (Entered: 05/26/2009)
Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 6/1/2009, ( Status Reports due by 7/17/2009. Status Conference set for 7/28/2009 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor.). (Court Reporter: Alice Moran.) (Stuckenbruck, John) (Entered: 06/01/2009)
Time change Hearing moved to 7/28/2009 at 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 07/10/2009)
455 STATUS REPORT as of July 17, 2009 by EOHHS. (Hammond, Daniel) (Entered: 07/17/2009)
456 Objection by EOHHS to Monitor's Recommended Resolution of Dispute Pertaining to ICC Caseload Caps. (Hammond, Daniel) (Entered: 07/20/2009)
457 STATUS REPORT − Plaintiffs' Tenth by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 07/22/2009)
458 Plaintiffs' Response by Sheena M., Jerry N. to 456 Objection to the Monitor's Recommendations on Caseload Limits. (Attachments: # 1 Exhibit Pls' 5/22/09 letter, # 2 Exhibit Monitior's 5/28/09 ltr, # 3 Exhibit Defs 6/30/09 ltr, # 4 Exhibit Pls 7/2/09 ltr, # 5 Exhibit Monitor's 7/6/09 ltr)(Schwartz, Steven) (Entered: 07/24/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 7/28/2009, ( Status Conference set for 9/28/2009 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor.). (Court Reporter: Alice Moran.) (Pelegano, Theresa) (Entered: 07/30/2009)
459 Transcript of Status Hearing held on July 28, 2009, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 9/1/2009. Redacted Transcript Deadline set for 9/11/2009. Release of Transcript Restriction set for 11/9/2009. (Scalfani, Deborah) (Entered: 08/14/2009)
460 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 08/14/2009)
461 MOTION Adherence to Published Specifications and Criteria for In−Home Behavioral Services by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Schwartz, Steven) (Entered: 09/23/2009)
462 STATUS REPORT − Plaintiffs' Eleventh Report by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 09/24/2009)
463 STATUS REPORT on Implementation (October 24, 2009) by EOHHS. (Hammond, Daniel) (Entered: 09/24/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 9/28/2009, Set Deadlines/Hearing as to 461 MOTION Adherence to Published Specifications and Criteria for In−Home Behavioral Services : Responses due by 10/5/2009, Replies due by 10/9/2009. Motion Hearing set for 10/13/2009 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Court Reporter: Jim Gibbons.) (Pelegano, Theresa) (Entered: 09/28/2009)
464 Opposition re 461 MOTION Adherence to Published Specifications and Criteria for In−Home Behavioral Services filed by EOHHS. (Attachments: # 1 Affidavit Exhibit A −− Affidavit of Emily Sherwood, # 2 Affidavit Exhibit B −− Affidavit of Suzanne Fields, # 3 Exhibit Exhibit A to Fields Affidavit −− Chart of Provider Agencies and Their IHBS Status as of 10/5/2009)(Hammond, Daniel) (Entered: 10/05/2009)

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10/06/2009
10/06/2009 10/08/2009 10/13/2009
10/21/2009 10/22/2009 11/04/2009
11/04/2009 11/20/2009 11/24/2009 12/03/2009 12/07/2009 12/09/2009 12/10/2009

465 Transcript of Motion Hearing held on September 28, 2009, before Judge Ponsor. Court Reporter: James P. Gibbons at jmsgibbons@yahoo.com. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 10/26/2009. Redacted Transcript Deadline set for 11/3/2009. Release of Transcript Restriction set for 1/4/2010. (Scalfani, Deborah) (Entered: 10/06/2009)
466 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/06/2009)
467 REPLY to Response to 461 MOTION Adherence to Published Specifications and Criteria for In−Home Behavioral Services filed by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 10/08/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: held on 10/13/2009, parties to submit status report by 10/23/09 ( Status Conference set for 12/18/2009 10:00 AM in Hampden Courtroom before Judge Michael A Ponsor.)Further Status Report by 12/7/09. (Court Reporter: Alice Moran.) (Pelegano, Theresa) (Entered: 10/15/2009)
468 STIPULATION of the Parties as to Monitor's Budget for Fiscal Year 2010 by EOHHS. (Hammond, Daniel) (Entered: 10/21/2009)
Judge Michael A Ponsor: ENDORSED ORDER entered. re 468 Joint Stipulation of the Parties as to the Monitor's Budget for Fiscal Year 2010. The Monitor's budget, attached as exhibit one, is hereby approved, with the agreement of the parties. cc/cl (Lindsay, Maurice) (Entered: 10/22/2009)
469 Transcript of Status Conference held on October 13, 2009, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 11/23/2009. Redacted Transcript Deadline set for 12/2/2009. Release of Transcript Restriction set for 2/1/2010. (Scalfani, Deborah) (Entered: 11/04/2009)
470 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 11/04/2009)
471 Withdrawal of motion: 461 MOTION Adherence to Published Specifications and Criteria for In−Home Behavioral Services filed by Jerry N., Rosie D., Anton B., Tyriek H., Shaun E., Joshua D., Devin E., Sheena M... (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 11/20/2009)
472 Judge Michael A Ponsor: ORDER entered. ORDER RE: PENDING ISSUES. The court will take up this issue at the currently scheduled status conference on 12/18/09 at 10:00 a.m. See the attached order for complete details. cc/cl (Lindsay, Maurice) (Entered: 11/24/2009)
473 Assented to MOTION for Extension of Time to 1/19/2009 to Conduct Status Conference by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Mitt Romney, Ronald Preston.(Salinger, Kenneth) (Entered: 12/03/2009)
474 STATUS REPORT on Implementation by Robert Gittens, Stephen P. Crosby, Wendy E. Warring, EOHHS, Eric Kriss, Mitt Romney, Ronald Preston. (Porter, William) (Entered: 12/07/2009)
Judge Michael A Ponsor: Electronic ORDER entered granting 473 Motion for Extension of Time Status Conference set for 2/1/2010 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 12/09/2009)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 2/12/2010 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 12/10/2009)

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12/14/2009 02/09/2010 02/11/2010 02/12/2010 03/04/2010
03/04/2010 05/11/2010 05/11/2010 05/14/2010 05/17/2010 05/18/2010
05/18/2010
05/25/2010
05/25/2010 05/26/2010

475 STATUS REPORT by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Schwartz, Steven) (Entered: 12/14/2009)
476 STATUS REPORT TWELFTH SUPPLEMENTAL by Rosie D., Tyriek H., Joshua D., Sheena M., Devin E., Anton B., Shaun E., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 02/09/2010)
477 STATUS REPORT for February 12, 2010 Hearing by EOHHS. (Attachments: # 1 Exhibit CMS Denial Letter)(Hammond, Daniel) (Entered: 02/11/2010)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 2/12/2010, ( Status Conference set for 5/18/2010 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor.) Status report by 5/11/10. (Court Reporter: Alice Moran.) (Pelegano, Theresa) (Entered: 02/16/2010)
478 Transcript of Status Conference held on February 12, 2010, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 3/25/2010. Redacted Transcript Deadline set for 4/5/2010. Release of Transcript Restriction set for 6/2/2010. (Scalfani, Deborah) (Entered: 03/04/2010)
479 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 03/04/2010)
482 STATUS REPORT −Plaintiffs' Thirteenth Report by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Caseload Distribution Chart)(Schwartz, Steven) (Entered: 05/11/2010)
483 STATUS REPORT on Implementation Issues (May 11, 2010) by EOHHS. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Hammond, Daniel) (Entered: 05/11/2010)
484 Withdrawal of motion: 483 Status Report filed by EOHHS.. (Hammond, Daniel) (Entered: 05/14/2010)
485 STATUS REPORT on Implementation Issues (May 11, 2010) (Revised) by EOHHS. (Hammond, Daniel) (Entered: 05/17/2010)
486 Errata by EOHHS to 485 Status Report (Refiled to Restore Referenced but Inadvertently Omitted Exhibits). (Attachments: # 1 Exhibit Defendants' Revised May 11, 2010 Interim Report on Implementation (as filed on May 17, 2010, with exhibits restored), # 2 Exhibit Exhibit 1 to May 11, 2010 Interim Report (in same form as filed on May 11, 2010), # 3 Exhibit Exhibit 2 to May 11, 2010 Interim Report (in same form as filed on May 11, 2010))(Hammond, Daniel) (Entered: 05/18/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference held on 5/18/2010, ( Status Conference set for 7/20/2010 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor.)Plaintiff's proposed order by 6/1/10 as ordered in court. Defendant's to submit report and response by 6/18/10 as ordered in court. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 05/19/2010)
487 MOTION for Attorney Fees by Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Table of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit)(Schwartz, Steven) (Entered: 05/25/2010)
488 MEMORANDUM in Support re 487 MOTION for Attorney Fees filed by Anton B., Joshua D., Rosie D., Devin E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 05/25/2010)
Remark − Exhibits 9 − 15 in support of document 487 received this date in paper form and placed in the file. (Finn, Mary) (Entered: 05/26/2010)

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06/01/2010 06/01/2010 06/04/2010
06/04/2010 06/14/2010 06/15/2010 06/18/2010 06/18/2010 06/24/2010 06/28/2010
06/28/2010 06/28/2010 07/12/2010 07/20/2010 07/20/2010
08/12/2010

490 Proposed Document(s) submitted by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. Document received: Proposed Order. (Schwartz, Steven) (Entered: 06/01/2010)
491 STATUS REPORT (Bi−Annual Report on Implementation Issues) by EOHHS. (Hammond, Daniel) (Entered: 06/01/2010)
492 Judge Michael A Ponsor: ORDER entered. As follows: On or before 6/18/10, Defendants will submit a written report regarding the status of the application for a waiver by the federal government to permit Defendants to move forward with their proposed crisis stabilization program. Counsel will appear again to report to the court on these and other matters on July 20, 2010 at 2:00 p.m. See the attached order for complete details. (Lindsay, Maurice) (Entered: 06/04/2010)
Set Deadlines/Hearings: Written Status Report due by 6/18/2010. Counsel will appear again to report to the court on these and other matters on 7/20/2010 at 2:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Lindsay, Maurice) (Entered: 06/04/2010)
493 Assented to MOTION for Extension of Time to June 28, 2010 to File Response/Reply as to 487 MOTION for Attorney Fees by EOHHS.(Hammond, Daniel) (Entered: 06/14/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 493 Motion for Extension of Time to File Response/Reply re 487 MOTION for Attorney Fees Responses due by 6/28/2010 Replies due by 7/22/2010. (Pelegano, Theresa) (Entered: 06/15/2010)
494 Response by EOHHS to 490 Proposed Document(s) submitted (Response to Proposed Form of Order). (Hammond, Daniel) (Entered: 06/18/2010)
495 STATUS REPORT Regarding Status of Crisis Stabilization Implementation by EOHHS. (Hammond, Daniel) (Entered: 06/18/2010)
496 STATUS REPORT Plaintiffs' Fourteenth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 06/24/2010)
497 Transcript of Status Hearing held on May 18, 2010, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 7/19/2010. Redacted Transcript Deadline set for 7/29/2010. Release of Transcript Restriction set for 9/27/2010. (Scalfani, Deborah) (Entered: 06/28/2010)
498 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 06/28/2010)
499 Opposition re 487 MOTION for Attorney Fees filed by EOHHS. (Hammond, Daniel) (Entered: 06/28/2010)
500 REPLY to Response to 487 MOTION for Attorney Fees filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Natisha M., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 07/12/2010)
ELECTRONIC NOTICE Hearing rescheduled (time change): Hearing for 7/20/10 : is moved from 2pm to 3pm today (Pelegano, Theresa) (Entered: 07/20/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference/Motion hearing held on 7/20/2010, ( Status Conference/Motion hearing set for 9/30/2010 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor.) Defendant's motion by 8/13/10 response by 9/3/10. Reply by 9/10/10 Surreply by 9/17/10. Order to issue on fees Court takes matter under advisement. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 07/20/2010)
501 Assented to MOTION for Extension of Time to August 20, 2010 to File Motion for Clarification (with corresponding modifications to briefing schedule) by

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08/20/2010 08/20/2010
08/26/2010 09/17/2010 09/22/2010 09/30/2010
10/01/2010 10/22/2010 10/22/2010 10/28/2010
10/28/2010 11/12/2010 11/12/2010 11/16/2010

EOHHS.(Hammond, Daniel) (Entered: 08/12/2010)
502 MOTION for Clarification by EOHHS.(Hammond, Daniel) (Entered: 08/20/2010)
503 MEMORANDUM in Support re 502 MOTION for Clarification filed by EOHHS. (Attachments: # 1 Affidavit Affidavit of Emily Sherwood, # 2 Exhibit A to Sherwood Affidavit (Defendants' Final Comments to Monitor re CSR), # 3 Exhibit B to Sherwood Affidavit (Current Verison of CSR), # 4 Exhibit C to Sherwood Affidavit (University of South Florida field study), # 5 Exhibit D to Sherwood Affidavit (Issue Brief/Best Practices), # 6 Exhibit E to Sherwood Affidavit (Table of Outcomes Measured by CBHI), # 7 Affidavit Affidavit of Hannah Karpman, # 8 Affidavit Affidavit of Stephen Barnard)(Hammond, Daniel) (Entered: 08/20/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 501 Motion for Extension of Time to File document was filed on 8/20/10. (Pelegano, Theresa) (Entered: 08/26/2010)
505 Opposition re 502 MOTION for Clarification filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Affidavit)(Schwartz, Steven) (Entered: 09/17/2010)
506 REPLY to Response to 502 MOTION for Clarification filed by EOHHS. (Attachments: # 1 Affidavit Mary I. Armstrong)(Hammond, Daniel) (Entered: 09/22/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Status Conference RE: Motion for Clarification held on 9/30/2010, ( Status Conference set for 11/22/2010 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor.) Order to issue. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 10/01/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered denying 502 Motion for Clarification. DENIED, without prejudice, for the reasons stated in open court on September 30, 2010. So order. (Lindsay, Maurice) (Entered: 10/01/2010)
507 MOTION Timely Access to Remedial Services by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M..(Schwartz, Steven) (Entered: 10/22/2010)
508 MEMORANDUM in Support re 507 MOTION Timely Access to Remedial Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Schwartz, Steven) (Entered: 10/22/2010)
509 Transcript of Status Conference held on September 30, 2010, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 11/18/2010. Redacted Transcript Deadline set for 11/29/2010. Release of Transcript Restriction set for 1/26/2011. (Folan, Karen) (Entered: 10/28/2010)
510 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry. (Folan, Karen) (Entered: 10/28/2010)
511 Opposition re 507 MOTION Timely Access to Remedial Services filed by EOHHS. (Attachments: # 1 Affidavit Emily Sherwood, # 2 Exhibit A to Emily Sherwood Affidavit, # 3 Affidavit Sharon Boyle)(Hammond, Daniel) (Entered: 11/12/2010)
512 Assented to MOTION for Extension of Time to 12/15/2010 to File Renewed Motion, if Any, to Challenge CSR Case Reviews by EOHHS.(Hammond, Daniel) (Entered: 11/12/2010)
ELECTRONIC NOTICE OF RESCHEDULINGHearing set for 1/31/2011 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (the hearing scheduled for 11/22/10 is cancelled)(Pelegano, Theresa) (Entered: 11/16/2010)

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11/17/2010 11/17/2010
11/17/2010 11/17/2010
11/19/2010
11/19/2010 11/22/2010 11/22/2010 11/30/2010 11/30/2010
12/07/2010
12/15/2010 12/17/2010 12/28/2010

513 MOTION to Continue Hearing on Motion to Ensure Timely Access to Services to 11/22/2010 by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 11/17/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 512 Motion for Extension of Time to File. ALLOWED. Plaintiff's opposition may be filed by 1.14.11; Defendants may reply by 1/24/11. The Nov. 22 conference date is hereby vacated. The court will hear argument on the motion and conduct a conference on Jan. 31, 2011 at 2:00 pm. So ordered. (Lindsay, Maurice) (Entered: 11/17/2010)
Set Deadlines/Hearings: Hearing is set for 1/31/2011 at 2:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Lindsay, Maurice) (Entered: 11/17/2010)
514 MOTION for Leave to File Reply by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Reply to Opposition to Motion to Ensure Timely Access to Services)(Schwartz, Steven) (Additional attachment(s) added on 11/18/2010: # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7) (Lindsay, Maurice). (Entered: 11/17/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 514 Motion for Leave to File Reply to Dft's Opposition. ALLOWED; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 11/19/2010)
515 REPLY to Response to 507 MOTION Timely Access to Remedial Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Schwartz, Steven) (Entered: 11/19/2010)
516 Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 513 Motion to Continue Hearing set for 12/21/2010 10:00 AM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 11/22/2010)
517 Assented to MOTION for Extension of Time to January 7, 2011 to File Defendants' Biannual Status Report Regarding Implementation Efforts by EOHHS.(Hammond, Daniel) (Entered: 11/22/2010)
518 Assented to MOTION to Continue Hearing on Motion to Ensure Timely Access to Services to 12/9/10 − 12/15/10 by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M..(Schwartz, Steven) (Entered: 11/30/2010)
519 STATUS REPORT on Implementation Issues by EOHHS. (Attachments: # 1 Exhibit 1: MassHealth Initial Enrollment Notice, # 2 Exhibit 2: Brochure, "Worried About the Way Your Child is Acting or Feeling?" (western region version), # 3 Exhibit 3: Member Handbook insert regarding behavioral health services, # 4 Exhibit 4: Boston Medical Center HealthNet Plan article, "In−Home Therapy", # 5 Exhibit 5: Neighborhood Health Plan article, "In−Home Therapy", # 6 Exhibit 6: "TeenScreen" excerpt)(Hammond, Daniel) (Entered: 11/30/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 518 Motion to Continue. Unfortunately, however, the court is not available between Dec 9−and Dec 15th. The hearing on the issue will therefore take place on 1/31/2011 at 2pm.Hearing set for 1/31/2011 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 12/07/2010)
520 Second MOTION for Clarification of Judgment with respect to Monitor's CSR Process by EOHHS. (Attachments: # 1 Exhibit A: Affidavit of Jack Simons)(Hammond, Daniel) (Entered: 12/15/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered denying 517 Motion for Extension of Time to File. DENIED, as moot. The report has been filed. (Lindsay, Maurice) (Entered: 12/17/2010)
521 Assented to MOTION for Extension of Time to 1/7/2010 to Respond to Defendants' Motion for Clarification by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 12/28/2010)

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12/29/2010 12/29/2010 01/03/2011
01/03/2011 01/07/2011 01/21/2011 01/31/2011
02/03/2011 02/07/2011 02/11/2011
02/11/2011 02/18/2011 04/22/2011 05/02/2011 05/04/2011

Judge Michael A Ponsor: ENDORSED ORDER entered granting 521 Motion for Extension of Time to 1/7/2011 to Respond to Defendants' Motion for Clarification. (Lindsay, Maurice) (Entered: 12/29/2010)
Set/Reset Deadlines as to Opposition Responses due by 1/7/2011 and Replies due by 1/21/2011. (Lindsay, Maurice) (Entered: 12/29/2010)
522 Judge Michael A Ponsor: MEMORANDUM AND ORDER entered. As follows: Plaintiffs Motion for Attorneys Fees and Costs is hereby ALLOWED. Counsel are hereby awarded $1,431,026.85 in fees and $28,657.65 in costs, to paid, absent an appeal, within ninety days of this ruling. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 01/03/2011)
523 STATUS REPORT Plaintiffs' Fifteenth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 01/03/2011)
524 Opposition re 520 Second MOTION for Clarification of Judgment with respect to Monitor's CSR Process filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Affidavit)(Schwartz, Steven) (Entered: 01/07/2011)
525 REPLY to Response to 520 Second MOTION for Clarification of Judgment with respect to Monitor's CSR Process filed by EOHHS. (Attachments: # 1 Exhibit A: Second Affidavit of Jack Simons, Ph.D.)(Hammond, Daniel) (Entered: 01/21/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Motion Hearing held on 1/31/2011 re 520 Second MOTION for Clarification of Judgment with respect to Monitor's CSR Process filed by EOHHS, 507 MOTION Timely Access to Remedial Services filed by Anton B., Shaun E., Tyriek H., Joshua D., Devin E., Rosie D., Sheena M. Plaintiff's submission by 2/7/11 response by 2/18/11. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 01/31/2011)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 520 Motion for Clarification of Judgment. DENIED without prejudice for the reasons, and under the conditions, set forth in open court on Jan. 31, 2011. (Lindsay, Maurice) (Entered: 02/03/2011)
526 Proposed Document(s) submitted by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. Document received: Proposed Order. (Schwartz, Steven) (Entered: 02/07/2011)
527 Transcript of Motion Hearing held on January 31, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 3/4/2011. Redacted Transcript Deadline set for 3/14/2011. Release of Transcript Restriction set for 5/12/2011. (Scalfani, Deborah) (Entered: 02/11/2011)
528 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 02/11/2011)
529 Response by EOHHS to 526 Proposed Document(s) submitted. (Hammond, Daniel) (Entered: 02/18/2011)
530 STIPULATION Regarding Budget for Court Monitor, Year Four by EOHHS. (Hammond, Daniel) (Entered: 04/22/2011)
ELECTRONIC NOTICE of Hearing : Status Conference set for 6/2/2011 03:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 05/02/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered. approving 530 Joint Stipulation Regarding Budget for Court Monitor. APPROVED. (Lindsay, Maurice) (Entered: 05/04/2011)

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05/31/2011
06/02/2011
06/03/2011 06/30/2011 06/30/2011 07/01/2011 07/01/2011 07/01/2011 07/05/2011
07/05/2011 07/08/2011 07/08/2011 07/08/2011 07/11/2011 07/12/2011 07/15/2011

531 STATUS REPORT (Dated May 31, 2011) by EOHHS. (Attachments: # 1 Exhibit 1: Article, Health Highlights, # 2 Exhibit 2: Article, Living Well!, # 3 Exhibit 3: Article, Network Health, # 4 Exhibit 4: Article, Network Health Member Care, # 5 Exhibit 5: Article, CANS News, # 6 Exhibit 6: Article, PCC Plan, # 7 Exhibit 7: Article, BMC Provider News, # 8 Exhibit 8: Article, Clinician Quarterly, # 9 Exhibit 9: Network Health Provider Update, # 10 Exhibit 10: CBHI Service Utilization Report Dated 4/29/2011)(Hammond, Daniel) (Entered: 05/31/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 6/2/2011,Defendant's to provide data by 6/17/2011. Plaintiff's response by 7/1/2011. (Hearing set for 9/9/2011 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.)(Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 06/02/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered denying, without prejudice, for the reasons stated in Open Court on 6/2/1011 the Pltfs' 507 Motion to Ensure Timely Access to remedial services. (Finn, Mary) (Entered: 06/03/2011)
532 STIPULATION (Joint) Regarding Interim Fiscal Year 2012 Budget for Court−Appointed Monitor by EOHHS. (Hammond, Daniel) (Entered: 06/30/2011)
533 STATUS REPORT Plaintiffs' Sixteenth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 06/30/2011)
534 Proposed MOTION to Compel Production of Available Access Data by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 07/01/2011)
535 MEMORANDUM in Support re 534 Proposed MOTION to Compel Production of Available Access Data filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 07/01/2011)
536 Joint MOTION for Order to To Enter Protective Order (Form of Order Attached) by EOHHS. (Attachments: # 1 Text of Proposed Order (Third Protective Order))(Hammond, Daniel) (Entered: 07/01/2011)
537 Transcript of Status Conference held on June 2, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 7/26/2011. Redacted Transcript Deadline set for 8/5/2011. Release of Transcript Restriction set for 10/3/2011. (Scalfani, Deborah) (Entered: 07/05/2011)
538 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 07/05/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 536 Joint Motion to Enter Protective Order. ALLOWED. (Lindsay, Maurice) (Entered: 07/08/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered. re 532 Joint Stipulation on an interim budget for the monitor. In light of all parties' agreement, this is APPROVED. So ordered. (Lindsay, Maurice) (Entered: 07/08/2011)
539 Judge Michael A. Ponsor: ORDER entered. THIRD PROTECTIVE ORDER(Lindsay, Maurice) (Entered: 07/08/2011)
540 Opposition re 534 Proposed MOTION to Compel Production of Available Access Data filed by EOHHS. (Hammond, Daniel) (Entered: 07/11/2011)
541 REPLY to Response to 534 Proposed MOTION to Compel Production of Available Access Data filed by Anton B.. (Prendergast, James) (Entered: 07/12/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 534 Motion to Compel production. ALLOWED, with regard to the data specified in paragraph 1 and 2 of P. 5 this motion. DENIED, pending oral argument at the September hearing, as to Paragraph 3. So ordered. (Lindsay, Maurice) (Entered: 07/15/2011)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 74 of 102

07/28/2011 09/12/2011 09/12/2011
09/30/2011
10/03/2011 10/03/2011 10/14/2011
10/14/2011 10/20/2011 10/20/2011
10/25/2011

ELECTRONIC NOTICE OF RESCHEDULINGHearing set for 10/18/2011 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (The hearing scheduled for 9/9/11 is canceled.)(Pelegano, Theresa) (Entered: 07/28/2011)
542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 09/12/2011)
543 MEMORANDUM in Support re 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Natisha M., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Schwartz, Steven) (Entered: 09/12/2011)
544 Opposition re 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by EOHHS. (Attachments: # 1 Exhibit A: Aggregate Access Data (summarized), # 2 Exhibit B:Provider−Level Access Data (summarized) (also Exhibit 2 to Sherwood Affidavit), # 3 Exhibit C: Sherwood Affidavit, # 4 Exhibit 1 to Sherwood Affidavit, # 5 Exhibit 4 to Sherwood Affidavit, # 6 Exhibit 5 to Sherwood Affidavit, # 7 Exhibit 7 to Sherwood Affidavit, # 8 Exhibit D: Tracy Affidavit, # 9 Exhibit E: Simons Affidavit)(Hammond, Daniel) (Entered: 09/30/2011)
545 Errata by EOHHS to 544 Opposition to Motion,,, (Submission of Exhibit 3 to Sherwood Affidavit, inadvertantly omitted from 9/30/11 electronic filing). (Hammond, Daniel) (Entered: 10/03/2011)
546 Errata by EOHHS to 544 Opposition to Motion,,, (Submission of Exhibit 6 to Sherwood Affidavit, inadvertantly omitted from 9/30/11 Electronic Filing). (Hammond, Daniel) (Entered: 10/03/2011)
547 REPLY to Response to 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit 12, # 2 Exhibit 13)(Schwartz, Steven) (Entered: 10/14/2011)
548 NOTICE of Appearance by Ronald F. Kehoe on behalf of Janice B., Stephen P. Crosby, EOHHS, Robert Gittens, Eric Kriss, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Ronald Preston, Mitt Romney, Jane M. Swift, Wendy E. Warring (Kehoe, Ronald) (Entered: 10/14/2011)
549 Assented to MOTION for Extension of Time to File Alternative Proposed Form of Order (defendants), Assented to MOTION for Extension of Time to File Response/Reply thereto (plaintiffs) ( Responses due by 11/3/2011) by EOHHS.(Hammond, Daniel) (Entered: 10/20/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 10/20/2011 re 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by Jerry N., Rosie D., Anton B., Tyriek H., Shaun E., Joshua D., Devin E., Sheena M., (Hearing set for 11/22/2011 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 10/20/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 549 Motion to Revise Pleading Schedule. ALLOWED. (Lindsay, Maurice) (Entered: 10/25/2011)

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10/25/2011 11/04/2011
11/07/2011
11/07/2011 11/07/2011 11/09/2011
11/09/2011 11/09/2011 11/21/2011 11/22/2011 11/22/2011 11/23/2011 11/29/2011

550 Assented to MOTION to Withdraw as Attorney by Stephen P. Crosby, EOHHS, Robert Gittens, Eric Kriss, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Ronald Preston, Mitt Romney, Wendy E. Warring.(Salinger, Kenneth) (Entered: 10/25/2011)
551 Supplemental Opposition re 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by EOHHS. (Attachments: # 1 Exhibit A: Proposed Form of Order, # 2 Exhibit B: Chart of Mean Wait Times for ICC, preceding 15 months, # 3 Exhibit C: Chart of July, August and September Wait Times by Mean, Median and Mode, # 4 Exhibit D: Chart, July, August and September Wait Times (by Provider), # 5 Exhibit E: Counihan Letter)(Hammond, Daniel) (Entered: 11/04/2011)
552 Transcript of Status Hearing held on October 18, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 11/28/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (Scalfani, Deborah) (Entered: 11/07/2011)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 11/07/2011)
553 Errata by EOHHS to 551 Opposition to Motion,, (Corrected Version of Exhibit A, Proposed Form of Order). (Hammond, Daniel) (Entered: 11/07/2011)
554 REPLY to Response to 542 Supplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial ServicesSupplemental MOTION Timely Access to Remedial Services re 508 Memorandum in Support of Motion, 507 MOTION Timely Access to Remedial Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 11/09/2011)
Remark − # 555 placed in the vault. (Finn, Mary) (Entered: 11/09/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 550 Motion to Withdraw as Attorney. ALLOWED. Attorney Kenneth W. Salinger terminated (Lindsay, Maurice) (Entered: 11/09/2011)
556 Assented to MOTION for Extension of Time to January 13, 2012 to File Defendants' Next Status Report by EOHHS.(Hammond, Daniel) (Entered: 11/21/2011)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 556 Motion for Extension of Time to January 13, 2012 to File Defendants' Next Status Report. ALLOWED. (Lindsay, Maurice) (Entered: 11/23/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 11/22/2011 re: 542 Supplemental MOTION for Timely Access to Remedial Services, 507 MOTION for Timely Access to Remedial Services. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Schwartz, Costanzo, Hammond) (Stuckenbruck, John) (Entered: 11/23/2011)
Set/Reset Deadlines: Defendants' Next Status Report due by January 13, 2012 (Lindsay, Maurice) (Entered: 11/23/2011)
557 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Plaintiffs' Supplemental Motion to Insure Timely Access to Remedial Services (Dkt. No. 542 ) is ALLOWED to the extent set forth in this memo and order, and is otherwise DENIED. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 11/29/2011)

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11/30/2011 11/30/2011 12/05/2011 12/30/2011 12/30/2011
12/30/2011 01/05/2012 01/13/2012
01/24/2012 01/26/2012 01/27/2012 02/03/2012 02/06/2012

558 Third MOTION for Attorney Fees by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Natisha M., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 11/30/2011)
559 MEMORANDUM in Support re 558 Third MOTION for Attorney Fees filed by Sheena M., Jerry N.. (Attachments: # 1 Exhibit Fees and Costs Summary, # 2 Exhibit SJS affidavit, # 3 Exhibit CEC affidavit, # 4 Exhibit KR affidavit, # 5 Exhibit FL affidavit, # 6 Exhibit JB affidavit, # 7 Exhibit Notice of filing Exs. 7−12, # 8 Exhibit Detailed costs)(Schwartz, Steven) (Entered: 11/30/2011)
Remark − Copies of Exhibits 7 − 12 in support of document 559 received and placed in the file. (Finn, Mary) (Entered: 12/05/2011)
ELECTRONIC NOTICE OF RESCHEDULING Hearing set for 1/27/2012 11:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Time change only. The time of hearing scheduled in dkt. #557 has been changed from 3p.m. to 11:30 a.m.)(Pelegano, Theresa) (Entered: 12/30/2011)
560 Transcript of Status Conference held on November 22, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 1/20/2012. Redacted Transcript Deadline set for 1/30/2012. Release of Transcript Restriction set for 3/29/2012. (Scalfani, Deborah) (Entered: 12/30/2011)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/30/2011)
561 Joint MOTION to Approve Joint Statement (Stipulation Regarding Court Monitor's Supplemental Budget) by EOHHS. (Attachments: # 1 Exhibit A: Court Monitor's Amended Budget (including CSR Costs))(Hammond, Daniel) (Entered: 01/05/2012)
562 STATUS REPORT on Implementation by EOHHS. (Attachments: # 1 Exhibit 1: MCE Network Management Plan, # 2 Exhibit 2: November 2011 CSA Monthly Reports, # 3 Exhibit 3: November 2011 CSA Access Reports, # 4 Exhibit 4: Article, "Peace of Mind for Parents", # 5 Exhibit 5: Article, "Preventive and Well−Child Care", # 6 Exhibit 6: Guide for School Personnel, # 7 Exhibit 7: Application Guide for Parents, # 8 Exhibit 8: August 2011 CANS News, # 9 Exhibit 9: Quarterly Screening report, # 10 Exhibit 10: CANS "Cultural Considerations", # 11 Exhibit 11: CBHI Utilization Report, # 12 Exhibit 12: WFI Presentation)(Hammond, Daniel) (Entered: 01/13/2012)
563 STATUS REPORT Plaintiffs' Seventeenth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 01/24/2012)
564 AFFIDAVIT of Emily Sherwood re 562 Status Report,, by EOHHS. (Attachments: # 1 Exhibit 1: Peter Metz email, # 2 Exhibit 2: Request to NECCAP, # 3 Exhibit 3: Sherwood Memo to Metz, # 4 Exhibit 4: ICC Performance Specifications, # 5 Exhibit 5: ICC Medical Necessity Criteria, # 6 Exhibit 6: NECCAP Recommendation)(Hammond, Daniel) (Entered: 01/26/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Hearing held on 1/27/2012, Colloquy Re: status (Hearing set for 3/12/2012 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 01/27/2012)
ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 3/1/2012 10:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (The date of 3/12/12 was entered in error. The correct hearing date is 3/1/12 at 10:30 a.m.)(Pelegano, Theresa) (Entered: 02/03/2012)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 561 Joint Motion to Approve Supplemental Budget for Court Monitor. ALLOWED. (Lindsay, Maurice) (Entered: 02/06/2012)

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02/09/2012 02/10/2012 02/10/2012 02/14/2012 02/17/2012 02/27/2012 02/28/2012 02/29/2012 03/06/2012 03/20/2012 03/20/2012 03/20/2012
03/21/2012 03/23/2012 03/29/2012
03/29/2012

565 Assented to MOTION for Extension of Time to 2/17/2012 to To File Response to Plaintiffs' Proposal re Extending Monitoring Period , MOTION for Extension of Time to 2/17/2012 to File ( Responses due by 2/23/2012) by EOHHS.(Hammond, Daniel) (Entered: 02/09/2012)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 565 Motion for Extension of Time; granting MOTION for Extension of Time to 2/17/2012 to File ( Responses due by 2/23/2012) by EOHHS (Pelegano, Theresa) (Entered: 02/10/2012)
566 RESPONSE to Motion re 558 Third MOTION for Attorney Fees (Statement of No Opposition) filed by EOHHS. (Hammond, Daniel) (Entered: 02/10/2012)
567 Judge Michael A. Ponsor: ORDER entered granting 558 Third Motion for Attorney Fees. See the attached order for complete details. (Lindsay, Maurice) (Entered: 02/14/2012)
568 Response by EOHHS to Plaintiffs' Proposal Regarding Extension of Monitoring Phase of Case. (Hammond, Daniel) (Entered: 02/17/2012)
569 Response by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. to 568 Response . (Schwartz, Steven) (Entered: 02/27/2012)
570 Letter/request (non−motion) from Daniel J. Hammond, AAG, counsel for defendants regarding status of ICC access standards. (Hammond, Daniel) (Entered: 02/28/2012)
ELECTRONIC NOTICE Canceling Hearing. The hearing for 3/1/12 has been canceled. The clerk will reschedule. (Pelegano, Theresa) (Entered: 02/29/2012)
ELECTRONIC NOTICE of Hearing. Status Conference set for 3/20/2012 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 03/06/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 3/20/2012. Order to issue. Further Conference set for 6/25/12 at 10:00 a.m. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 03/20/2012)
ELECTRONIC NOTICE of Hearing. Status Conference set for 6/25/2012 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 03/20/2012)
571 Judge Michael A. Ponsor: MEMORANDUM AND ORDER Regarding ICC Access Standard, Ongoing Monitoring and Status Conference, entered. As follows: Defendants will report by March 23, 2012 as to the date when they will be submitting their next comprehensive status report. This will be, in any event, no later than May 31,2012. Plaintiffs will respond to Defendants report no later than June 21, 2012, or thirty days following the submission of Defendants report. Counsel will appear again before this court for a further status conference on June 25, 2012 at 10:00 a.m. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 03/21/2012)
Set/Reset Scheduling Order Deadlines: Status Conference set for 6/25/2012 @ 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Lindsay, Maurice) (Entered: 03/21/2012)
572 NOTICE by EOHHS of New Date by Which May, 2012 Status Report Will Be Filed (Hammond, Daniel) (Entered: 03/23/2012)
573 Transcript of Status Conference held on March 20, 2012, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 4/19/2012. Redacted Transcript Deadline set for 4/30/2012. Release of Transcript Restriction set for 6/27/2012. (Scalfani, Deborah) (Entered: 03/29/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah)

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04/13/2012 05/16/2012 05/16/2012 05/16/2012 05/17/2012 05/18/2012 06/14/2012
06/15/2012 06/25/2012
07/03/2012
07/03/2012
08/06/2012 08/22/2012 09/21/2012 09/24/2012 09/27/2012

(Entered: 03/29/2012)
574 transmittal Letter/request (non−motion) from Daniel J. Hammond, counsel for defendant, EOHHS attaching. (Attachments: # 1 Exhibit A: February 2012 CSA Reports)(Hammond, Daniel) (Entered: 04/13/2012)
575 STATUS REPORT on Implementation by EOHHS. (Attachments: # 1 Affidavit of Emily Sherwood)(Hammond, Daniel) (Entered: 05/16/2012)
576 NOTICE OF MANUAL FILING by EOHHS Report on Implementation, together with Compact Disc containing referenced exhibits re 575 Status Report (Hammond, Daniel) (Entered: 05/16/2012)
577 Errata by EOHHS to 575 Status Report (original improperly formatted). (Hammond, Daniel) (Entered: 05/16/2012)
Remark − Documents 575 & 577 are duplicates − document 577 is the Status Report in a larger format. (Finn, Mary) (Entered: 05/17/2012)
Remark: Clerk's office Received Paper copy of Defendant's Report on Implementation and the compact disc containing exhibits. (Lindsay, Maurice) (Entered: 05/21/2012)
578 STATUS REPORT Plaintiffs' 18th by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit CSA Monthly Reports−part 1, # 2 Exhibit CSA Monthly Reports−part2, # 3 Exhibit MCI Encounters 5/6/12 run, # 4 Exhibit MCI Encounters by Provider 1/13/12 run, # 5 Exhibit MCI Encounters by Providers 5/6/12 run)(Schwartz, Steven) (Entered: 06/14/2012)
Remark − Courtesy Copy and CD of various CSA Reports referenced in Ps' Eightheenth Status Report (578)received and placed in the file. (Finn, Mary) (Entered: 06/15/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 6/25/2012, Colloquy re: status. Defendant's written proposal by 8/6/12 Plaintiff response by 8/24/12. Defendant's revised proposal by 9/21/12, Defendant's surreply by 10/5/12.( Status Conference set for 10/10/2012 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 06/25/2012)
579 Transcript of Status Conference held on June 25, 2012, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 7/24/2012. Redacted Transcript Deadline set for 8/3/2012. Release of Transcript Restriction set for 10/1/2012. (Scalfani, Deborah) (Entered: 07/03/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/03/2012)
580 Proposed Document(s) submitted by EOHHS. Document received: Proposal Regarding Disengagement Criteria. (Hammond, Daniel) (Entered: 08/06/2012)
581 Plaintiffs' Response by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. to 580 Proposed Document(s) submitted . (Attachments: # 1 Exhibit Statewide Report)(Schwartz, Steven) (Entered: 08/22/2012)
582 Joint MOTION for Extension of Time to 9/26/12, 10/9/12 to File Follow−Up Pleadings Relating to Disengagement Proposals by Rosie D., EOHHS.(Hammond, Daniel) (Entered: 09/21/2012)
583 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 582 Motion for Extension of Time to Amend Filing Schedule. (Stuckenbruck, John) (Entered: 09/25/2012)
584 Proposed Document(s) submitted by EOHHS. Document received: Second Proposal Regarding Disengagement Criteria. (Hammond, Daniel) (Entered: 09/27/2012)

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10/04/2012 10/10/2012
10/17/2012
10/17/2012
10/17/2012 10/19/2012 10/30/2012 11/02/2012 11/02/2012 11/05/2012 11/09/2012 11/20/2012 11/21/2012 11/21/2012 12/05/2012

585 Supplemental Response by Anton B., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. on Disengagement Criteria. (Attachments: # 1 Disengagement Criteria)(Schwartz, Steven) (Entered: 10/04/2012)
586 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 10/10/2012, Colloquy re: status of case. 10/19/12 status due re:proposal. ( Status Conference set for 11/9/2012 02:30 PM in Hampden Courtroom before Judge Michael A. Ponsor. Memo up to 10 pages by 11/2/12 if needed.) (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 10/11/2012)
587 Transcript of Status Conference held on October 10, 2012, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 11/7/2012. Redacted Transcript Deadline set for 11/19/2012. Release of Transcript Restriction set for 1/15/2013. (Scalfani, Deborah) (Entered: 10/17/2012)
588 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/17/2012)
589 Response by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. to Court's Proposal for Extending Monitoring and Reporting. (Schwartz, Steven) (Entered: 10/17/2012)
590 RESPONSE TO COURT ORDER by EOHHS re 586 Status Conference, Set Hearings,, . (Hammond, Daniel) (Entered: 10/19/2012)
591 ELECTRONIC NOTICE OF RESCHEDULING (Time change only) Status Conference set for 11/9/2012 03:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 10/30/2012)
592 Supplemental Response by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. on Scope of Monitoring and Reporting. (Schwartz, Steven) (Entered: 11/02/2012)
593 RESPONSE TO COURT ORDER by EOHHS re 586 Status Conference, Set Hearings,, (Supplemental Response). (Attachments: # 1 Exhibit A: Sherwood Affidavit, # 2 Exhibit B: Dr. Simons Affidavit)(Hammond, Daniel) (Entered: 11/02/2012)
594 ELECTRONIC NOTICE Canceling Hearing. The hearing on 11/9/12 has been canceled. The clerk will reschedule. (Pelegano, Theresa) (Entered: 11/05/2012)
595 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 12/17/2012 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (The hearing from 11/9/12 has been rescheduled to 12/17/12.)(Pelegano, Theresa) (Entered: 11/09/2012)
596 Joint MOTION to Approve Joint Statement (Court Monitor's Proposed Budget for Fiscal Year 2013) by EOHHS. (Attachments: # 1 Exhibit A: Court Monitor's Proposed Fiscal Year 2013 Budget)(Hammond, Daniel) (Entered: 11/20/2012)
597 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 596 Motion to Approve Joint Statement. ALLOWED. See order. (Lindsay, Maurice) (Entered: 11/21/2012)
598 Judge Michael A. Ponsor: ORDER entered. ORDER APPROVING COURT MONITOR'S FISCAL YEAR 2013 BUDGET. See the attached order for details. (Lindsay, Maurice) (Entered: 11/21/2012)
599 STATUS REPORT On Implementation by EOHHS. (Attachments: # 1 Exhibit A: CBHI Utilization Report, # 2 Exhibit B: October 2012 CSA Monthly Report, # 3 Exhibit C: MCI Key Indicators, # 4 Exhibit D: Behavioral Health Screening Report, # 5 Exhibit E: ICC Family Survey Questionnaire, # 6 Exhibit F: MBHP MCI Report)(Hammond, Daniel) (Attachment 2 replaced on 12/18/2012) (Lindsay, Maurice). (Attachment 4 replaced on 12/18/2012) (Lindsay, Maurice). (Entered:

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12/13/2012 12/14/2012 12/17/2012
12/18/2012 12/21/2012
12/21/2012
01/25/2013 01/25/2013 02/15/2013
02/15/2013
02/22/2013 02/26/2013 02/26/2013 03/01/2013

12/05/2012)
600 RESPONSE TO COURT ORDER by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. re 586 Status Conference, Set Hearings,, Supplemental Memo. (Schwartz, Steven) (Entered: 12/13/2012)
601 Errata by EOHHS to 599 Status Report, Correcting Incomplete Attachments Thereto. (Attachments: # 1 Exhibit B to December 5, 2012 Status Report (Corrected), # 2 Exhibit D to December 5, 2012 Status Report (Corrected))(Hammond, Daniel) (Entered: 12/14/2012)
602 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 12/17/2012, monitoring and reporting extended to 6/30/2013, for reasons stated in open Court. ( Status Report due by 1/25/2013), ( Status Conference set for 2/6/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.) (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 12/17/2012)
603 Notice of correction to docket made by Court staff. The status report Dkt. No. 599 has been edited because exhibits B and D were incomplete, some pages were omitted. Both exhibits has been replaced with a complete copy. (Lindsay, Maurice) (Entered: 12/18/2012)
604 Transcript of Status Conference held on December 17, 2012, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 1/11/2013. Redacted Transcript Deadline set for 1/21/2013. Release of Transcript Restriction set for 3/21/2013. (Scalfani, Deborah) (Entered: 12/21/2012)
605 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/21/2012)
606 STATUS REPORT Regarding Disengagement Criteria by EOHHS. (Hammond, Daniel) (Entered: 01/25/2013)
607 STATUS REPORT Plaintiffs' Report on Disengagement by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 01/25/2013)
608 Transcript of Status Conference held on February 6, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 3/8/2013. Redacted Transcript Deadline set for 3/18/2013. Release of Transcript Restriction set for 5/16/2013. (Scalfani, Deborah) (Entered: 02/15/2013)
609 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/15/2013)
610 Assented to MOTION for Extension of Time to 03/01/2013 to File Status Report Regarding Data Collection by EOHHS.(Hammond, Daniel) (Entered: 02/22/2013)
611 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 610 Motion for Extension of Time to File Status Report regarding Data−Collection Tasks. ALLOWED. (Lindsay, Maurice) (Entered: 02/26/2013)
612 Set/Reset Deadlines: Status Report due by 3/1/2013 (Lindsay, Maurice) (Entered: 02/26/2013)
613 STATUS REPORT Regarding Data Collection Sought by Plaintiffs by EOHHS. (Attachments: # 1 Exhibit A: Disengagement Criteria (Document Summarizing

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03/06/2013 04/01/2013 04/01/2013 04/09/2013
05/08/2013
05/08/2013 05/31/2013 06/11/2013 06/18/2013 06/21/2013 06/25/2013 06/25/2013

Negotiations))(Hammond, Daniel) (Entered: 03/01/2013)
614 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 2/6/2013, Parties report to court as to status. ( Status Conference set for 4/9/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 03/06/2013)
615 STATUS REPORT on DISENGAGEMENT by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 04/01/2013)
616 STATUS REPORT Regarding parties' discussions of disengagement criteria by EOHHS. (Attachments: # 1 Exhibit A: Disengagement Criteria Document (redlined 3/27/2013; most recent iteration))(Hammond, Daniel) (Entered: 04/01/2013)
617 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 4/9/2013, PArties report to court re: status. ( Defendant's Status Report due by 6/11/2013 response by 6/18/2013) ( Status Conference set for 6/25/2013 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 04/09/2013)
618 Transcript of Status Conference held on April 9, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 5/29/2013. Redacted Transcript Deadline set for 6/10/2013. Release of Transcript Restriction set for 8/6/2013. (Scalfani, Deborah) (Entered: 05/08/2013)
619 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/08/2013)
620 STATUS REPORT on Implementation (Semi−Annual Report) by EOHHS. (Attachments: # 1 Exhibit 1: ICC Survey Results, # 2 Exhibit 2: Most Recent Iteration of Disengagement Criteria Document, # 3 Exhibit 3: Key Indicators for Remedy Service Utilization, # 4 Exhibit 4: Use of Remedy Services Pre− and Post−MCI Encounters)(Hammond, Daniel) (Entered: 05/31/2013)
621 MEMORANDUM OF LAW by EOHHS. (Attachments: # 1 Exhibit A: Proposed Form of Order, # 2 Exhibit B: Disengagement Criteria Document (June 10, 2013 Iteration))(Hammond, Daniel) (Entered: 06/11/2013)
622 STATUS REPORT Plaintiffs' 20th by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Shentelle G., Danielle H., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 06/18/2013)
623 NOTICE by EOHHS re 621 Memorandum of Law (Correction to Exhibits Previously Filed) (Attachments: # 1 Exhibit A: Corrected Proposed Form of Order, # 2 Exhibit B: Corrected Disengagement Criteria Document)(Hammond, Daniel) (Entered: 06/21/2013)
624 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 6/25/2013, Monitor is extended. Order to issue. (Hearing set for 9/20/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 06/25/2013)
625 Judge Michael A. Ponsor: ORDER entered. As follows: The appointment of the Court Monitor in this matter being presently scheduled to expire by its terms on June 30, 2013, it is hereby ordered that the Court Monitors term shall be,and hereby is, extended through and including December 31, 2013. The parties shall file a document setting forth a budget to compensate the Court Monitor for her fees and expenses during this extended appointment period. See the attached order for complete details. (Lindsay, Maurice) (Entered: 06/25/2013)

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07/08/2013 07/08/2013
07/08/2013
07/29/2013 07/31/2013 09/12/2013 09/16/2013 09/18/2013 09/20/2013
09/24/2013 11/18/2013 11/19/2013 12/02/2013 12/02/2013
12/06/2013

626 Judge Michael A. Ponsor: ORDER pursuant to Local Rule 7.2, re impounded documents in the Court's custody.(Lizotte, James) (Entered: 07/08/2013)
627 Transcript of Status Hearing held on June 25, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 7/29/2013. Redacted Transcript Deadline set for 8/8/2013. Release of Transcript Restriction set for 10/7/2013. (Scalfani, Deborah) (Entered: 07/08/2013)
628 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/08/2013)
629 Joint MOTION to Approve Joint Statement (Court Monitor's Fiscal Year 2014 Budget) by EOHHS. (Attachments: # 1 Exhibit A: Approved Fiscal Year 2014 Budget, Rosie D. Court Monitor)(Hammond, Daniel) (Entered: 07/29/2013)
630 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 629 Motion to Approve Joint Statement. (Pelegano, Theresa) (Entered: 07/31/2013)
631 Assented to MOTION to Modify Allocation (But Not Amount) of Court Monitor's FY14 Budget by EOHHS. (Attachments: # 1 Exhibit A: Copy of Court Monitor's FY14 Budget (Showing Proposed Modification))(Hammond, Daniel) (Entered: 09/12/2013)
632 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 631 Assented to Motion to Modify Allocation (But Not Amount) of Court Monitor's FY14 Budget. ALLOWED (Lindsay, Maurice) (Entered: 09/16/2013)
633 STATUS REPORT Plaintiffs' Twenty−First by Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 09/18/2013)
634 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 9/20/2013, Counsel updates court as to status. Further conference set. ( Status Conference set for 12/6/2013 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa). (Entered: 09/20/2013)
635 Judge Michael A. Ponsor: ORDER entered. ORDER, re: the appointment in this matter of the Court Monitor, See the attached order for details. (Lindsay, Maurice) (Entered: 09/24/2013)
636 Assented to MOTION for Attorney Fees by Anton B., Joshua D., Rosie D., Devin E..(Schwartz, Steven) (Entered: 11/18/2013)
637 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 636 Motion for Attorney Fees and Costs. ALLOWED. Payment within ninety (90) days. So ordered. (Lindsay, Maurice) (Entered: 11/19/2013)
638 STATUS REPORT Plaintiffs' Twenty−Second by Anton B., Ralph B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 12/02/2013)
639 STATUS REPORT on Implementation Activities by EOHHS. (Attachments: # 1 Exhibit A: Patterns of Change in CANS Domain Scores, # 2 Exhibit B: Wraparound Fidelity Assessment, # 3 Exhibit C: Pre and Post MCI Encounter Remedy Service Utilization, # 4 Exhibit D: Behavioral Health Screens, # 5 Exhibit E: CBHI Service Utilization)(Hammond, Daniel) (Entered: 12/02/2013)
640 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 12/6/2013,Deft report by 3/3/14, plaintiff by 3/17/14 ( Status Conference set for 3/21/2014 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 12/06/2013)

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12/18/2013 01/14/2014
01/14/2014
03/03/2014 03/10/2014 03/19/2014 03/21/2014
03/27/2014 06/06/2014 06/17/2014 06/20/2014
06/20/2014
06/23/2014 06/27/2014

641 Letter/request (non−motion) from Daniel J. Hammond, counsel for Defendants explaining clerical error in December 2, 2013 Status Report, and attaching corrected version. (Attachments: # 1 Exhibit A: Corrected Version of December 2, 2013 Status Report)(Hammond, Daniel) (Entered: 12/18/2013)
642 Transcript of Status Conference held on December 6, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 2/4/2014. Redacted Transcript Deadline set for 2/14/2014. Release of Transcript Restriction set for 4/14/2014. (Scalfani, Deborah) (Entered: 01/14/2014)
643 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/14/2014)
648 STATUS REPORT on Compliance Efforts by EOHHS. (Attachments: # 1 Exhibit A: CANS Compliance by Remedy Service, # 2 Exhibit B: Chart: Status of Oustanding Data Requests in "Disengagement Criteria" Document)(Hammond, Daniel) (Entered: 03/03/2014)
649 STATUS REPORT Plaintiffs' Twenty−Third by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 03/10/2014)
650 ELECTRONIC NOTICE OF RESCHEDULING****** COURTROOM CHANGE ONLY******* Status Conference set for 3/21/2014 02:00 PM in Franklin Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 03/19/2014)
651 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 3/21/2014, Colloquy re: progress. Monitor extended to end of 2014. ( Status Conference set for 6/27/2014 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.). (Court Reporter: Carol Scott at 617−330−1377.) (Pelegano, Theresa) (Entered: 03/21/2014)
652 Judge Michael A. Ponsor: ORDER entered. Re: Court Monitor(Pelegano, Theresa) (Entered: 03/27/2014)
653 ELECTRONIC NOTICE OF RESCHEDULING ************TIME CHANGE******** Status Conference set for 6/27/2014 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 06/06/2014)
654 STATUS REPORT (16th) Regarding Implementation by EOHHS. (Hammond, Daniel) (Entered: 06/17/2014)
655 Transcript of Status Conference held on March 21, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at 617−330−1377 Redaction Request due 7/11/2014. Redacted Transcript Deadline set for 7/21/2014. Release of Transcript Restriction set for 9/18/2014. (Scalfani, Deborah) (Entered: 06/20/2014)
656 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/20/2014)
657 STATUS REPORT Plaintiffs' Twenty−Fourth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 06/23/2014)
658 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 6/27/2014, ( Status Conference set for 10/7/2014 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.)Defendants status due

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07/11/2014 07/25/2014
07/25/2014
09/23/2014 09/26/2014 10/06/2014 10/14/2014
10/14/2014
10/28/2014 12/03/2014 12/09/2014
12/09/2014
12/12/2014 12/18/2014

9/23/2014, Plaintiff 9/30/14. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 06/27/2014)
659 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Status Conference moved to 10/14/2014 at 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 07/11/2014)
660 Transcript of Status Hearing held on June 27, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 8/15/2014. Redacted Transcript Deadline set for 8/25/2014. Release of Transcript Restriction set for 10/23/2014. (Scalfani, Deborah) (Entered: 07/25/2014)
661 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/25/2014)
663 Letter/Request (non−motion) from Andrea Wohl, MA LMHC Letter Re: Status Conf. (Lindsay, Maurice) (Entered: 09/23/2014)
664 STATUS REPORT on Implementation by EOHHS. (Hammond, Daniel) (Entered: 09/26/2014)
665 STATUS REPORT Plaintiffs' 25th by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 10/06/2014)
666 Judge Michael A. Ponsor: ORDER entered. Per Agreement of the parties, the appointment of the Court Monitor in this matter, which is presently scheduled to expire on 12/31/2014, is hereby extended through and including 6/30/2015. Defts' shall file a document setting forth the budget to compensate the Court Monitor for her fees and expensed during this extended appointment period. (Finn, Mary) (Entered: 10/14/2014)
667 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 10/14/2014. Colloquy re: status of matter. Matter set for a further status conference on December 22, 2014, at 11:00 a.m. (Court Reporter: Carol Scott at 617−330−1377.) (Healy, Bethaney) (Entered: 10/28/2014)
668 Set/Reset Hearings: Status Conference set for 12/22/2014 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 10/28/2014)
670 Joint MOTION for Attorney Fees by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Nathan F., Shentelle G., Tyriek H., Sheena M., Terrence M.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 12/03/2014)
671 Transcript of Status Conference held on October 14, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at 617−330−1377 Redaction Request due 12/30/2014. Redacted Transcript Deadline set for 1/9/2015. Release of Transcript Restriction set for 3/9/2015. (Scalfani, Deborah) (Entered: 12/09/2014)
672 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/09/2014)
673 STATUS REPORT on Implementation by EOHHS. (Hammond, Daniel) (Entered: 12/12/2014)
674 STATUS REPORT Plaintiffs' 26th by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M.. (Schwartz, Steven) (Entered: 12/18/2014)

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12/22/2014 12/22/2014 12/22/2014 01/05/2015 01/09/2015 01/20/2015 02/20/2015 02/24/2015
02/24/2015 03/03/2015 03/03/2015 03/03/2015 03/09/2015
03/10/2015

675 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 670 Motion for Attorney Fees and Costs. ALLOWED and so ordered. Payment no later than March 23, 2015. (Healy, Bethaney) (Entered: 12/23/2014)
676 Judge Michael A. Ponsor: ORDER for Attorney Fees and Costs, ENTERED, cc:cl. (Healy, Bethaney) (Entered: 12/23/2014)
677 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 12/22/2014. (Court Reporter: Carol Scott at 617−330−1377.) (Healy, Bethaney) (Entered: 01/02/2015)
678 STATUS REPORT Regarding Defendants' Plans for Massachusetts Practice Review for Fiscal Years 2015 and 2016 by EOHHS. (Hammond, Daniel) (Entered: 01/05/2015)
679 Set Hearings: Status Conference set for 3/4/2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. Set Deadlines: Defendants' Status Report due by 01/05/2015; Plaintiffs' Status Report due by 1/20/2015. (Healy, Bethaney) (Entered: 01/09/2015)
680 Plaintiffs" Response by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. To Defendants' Report On Plans For The Client Review Process. (Rucker, Kathryn) (Entered: 01/20/2015)
681 STATUS REPORT of Timeline for Disengagement Activities (Assented−to) by EOHHS. (Attachments: # 1 Exhibit A: Chart of Completion Dates for Disengagement Activites, # 2 Exhibit B: Completion Dates in Calendar Form)(Hammond, Daniel) (Entered: 02/20/2015)
682 Transcript of Status Conference held on December 22, 2014, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 3/17/2015. Redacted Transcript Deadline set for 3/27/2015. Release of Transcript Restriction set for 5/25/2015. (Scalfani, Deborah) (Entered: 02/24/2015)
683 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/24/2015)
684 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. Status Conference set for 3/4/2015 at 12:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 03/03/2015)
685 Remark: Clerk was contacted by Attorney Julianna Rice, who reported that one of the attorneys had a family emergency that would preclude his appearance at the status conference. Counsel requested that the conference be continued to 3/9/15. (Healy, Bethaney) (Entered: 03/03/2015)
686 ELECTRONIC NOTICE OF RESCHEDULING ISSUED, cc:cl. The Status Conference originally set for 3/4/15 has been rescheduled to 3/9/2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 03/03/2015)
688 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 3/9/2015. Colloquy re: status of case. Court sets the following schedule: Defendants' status report is due by May 1, 2015, with Plaintiffs' response/status report due by May 8, 2015. Counsel shall appear for a further status conference on May 14, 2015, at 11:00 a.m. in the Hampden Courtroom. The court has set a tentative further status conference date for June 9, 2015, at 11:00 a.m. as well, however that date will be confirmed at the May 14, 2015 conference. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).) (Healy, Bethaney) (Entered: 03/10/2015)
689 Set/Reset Hearings: Status Conference set for 5/14/2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. Further Status Conference tentatively set

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03/10/2015 03/17/2015
03/17/2015
05/01/2015 05/08/2015 05/14/2015 06/12/2015
06/12/2015
08/10/2015 08/12/2015 09/10/2015 09/16/2015 09/17/2015 10/19/2015

for 6/9/2015 at 11:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 03/10/2015)
690 Judge Michael A. Ponsor: ORDER entered. The appointment of the Court Monitor in this matter, which is presently scheduled to expire on June 30, 2015, is hereby extended through and including December 31, 2015. See the attached order for complete details. (Lindsay, Maurice) (Entered: 03/10/2015)
692 Transcript of Hearing held on March 9, 2015, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 4/7/2015. Redacted Transcript Deadline set for 4/17/2015. Release of Transcript Restriction set for 6/15/2015. (Scalfani, Deborah) (Entered: 03/17/2015)
693 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/17/2015)
694 STATUS REPORT on Compliance Efforts by EOHHS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Hammond, Daniel) (Entered: 05/01/2015)
695 STATUS REPORT Plaintiffs' Twenty−seventh by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M.. (Rucker, Kathryn) (Entered: 05/08/2015)
729 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 5/14/2015. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 03/03/2016)
697 Transcript of Hearing held on May 14, 2015, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 7/3/2015. Redacted Transcript Deadline set for 7/13/2015. Release of Transcript Restriction set for 9/10/2015. (Scalfani, Deborah) (Entered: 06/12/2015)
698 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/12/2015)
699 Assented to MOTION to Modify Dates on Which September, 2015 Status Reports Are Due by EOHHS.(Hammond, Daniel) (Entered: 08/10/2015)
700 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 699 Assented to Motion to Amend Scheduling for Filing September 2015 Status Reports. ALLOWED. (Lindsay, Maurice) (Entered: 08/12/2015)
701 STATUS REPORT on Compliance Activities by EOHHS. (Attachments: # 1 Exhibit A: Updated Schedule of Disengagement Activities)(Hammond, Daniel) (Entered: 09/10/2015)
702 Set/Reset Hearings: Status Conference set for 9/22/2015 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 09/16/2015)
703 STATUS REPORT Plaintiffs' Twenty−Eighth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 09/17/2015)
704 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 9/22/2015. Colloquy re: status of case. Counsel shall appear for a further status conference on December 10, 2015, at 2:00 p.m. in the Hampden Courtroom. (Court Reporter: Sarah Mubarek.)(Kaplan, Jennifer) (Entered: 10/19/2015)

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10/19/2015 12/01/2015 12/07/2015 12/10/2015 12/15/2015
12/15/2015 12/15/2015 12/16/2015 12/18/2015 12/22/2015 12/22/2015 01/14/2016 01/15/2016 01/15/2016 02/02/2016 02/10/2016

705 ELECTRONIC NOTICE of Hearing. Status Conference set for 12/10/2015 at 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Kaplan, Jennifer) (Entered: 10/19/2015)
706 STATUS REPORT on Implementation by EOHHS. (Attachments: # 1 Exhibit A: Chart, Status of Disengagement Activities, # 2 Exhibit B: CANS Changes Example, ICC and IHT, # 3 Exhibit C: MPR Report, October, 2015)(Hammond, Daniel) (Entered: 12/01/2015)
707 STATUS REPORT Plaintiffs' 29th by Anton B., Ralph B., Sarah B., Joshua D., Rosie D., Devin E., Shaun E., Shentelle G., Danielle H., Kristin H., Tyriek H., Samuel L., Jose M., Natisha M., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 12/07/2015)
730 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 12/10/2015. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 03/03/2016)
708 Judge Michael A. Ponsor: ORDER entered. SCHEDULING ORDER: By 12/18/2015, Defts. will submit an Order authorizing the Monitor access to medical records of the Dept. of Mental Health and records for the Dept. of Mental Health Clients who are receiving care through private contractors. Alternatively, Deft. may by that date conform that a court order will not be necessary to provide the Monitor access to these materials. By 2/19/2016, Defts. will file their status report, including an update on efforts to fill upper−level staff positions. By 2/23/2016, counsel for both parties will file a memo of no more than ten pages addressing issues related to the use of outpatient treatment as a hub for care coordination services. By 2/25/2016, Pltf. will submit their status report. Cl. will appear on 3/1/2016 at 2:00 P.M. for a status conf. Status Report due by 2/19/2016 (Finn, Mary) (Entered: 12/15/2015)
709 Set/Reset Hearings: Status Conference set for 3/1/2016 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Finn, Mary) (Entered: 12/15/2015)
710 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 12/10/2015. Colloquy re: status of case. Scheduling Order to issue. (Court Reporter: Carol Scott at carollynnscott@cs.com.) (Healy, Bethaney) (Entered: 12/15/2015)
711 NOTICE of Withdrawal of Appearance by James C. Burling (Burling, James) (Entered: 12/16/2015)
712 Joint MOTION for Protective Order Governing Court Monitor's Review of Department of Mental Health Records by EOHHS. (Attachments: # 1 Exhibit A: Proposed Form of Order)(Hammond, Daniel) (Entered: 12/18/2015)
713 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 712 Joint Motion for Protective Order. ALLOWED. See order. (Lindsay, Maurice) (Entered: 12/22/2015)
714 Judge Michael A. Ponsor: ORDER entered. Protective Order Governing Court Monitor's Review. See the attached order for details. PROTECTIVE ORDER(Lindsay, Maurice) (Entered: 12/22/2015)
715 Assented to MOTION for Order to Memorialize Extension of Court Monitor's Appointment Through June 30, 2016 by EOHHS. (Attachments: # 1 Exhibit A: Proposed Form of Order)(Hammond, Daniel) (Entered: 01/14/2016)
716 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting Dft's 715 Assented to Motion for An Order extending Court Monitor's Appointment Through June 30, 2016. ALLOWED (Lindsay, Maurice) (Entered: 01/15/2016)
717 Judge Michael A. Ponsor: ORDER entered. ORDER, See the attached order for details. (Lindsay, Maurice) (Entered: 01/15/2016)
718 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. Status Conference moved to 3/2/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 02/02/2016)
719 Assented to MOTION for Extension of Time to March 4, 2016 to Status Conference by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry

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02/11/2016 02/19/2016 02/22/2016 02/22/2016 02/23/2016
02/23/2016
02/23/2016 02/23/2016 02/29/2016 03/04/2016 03/04/2016
03/07/2016 04/22/2016 05/05/2016

N..(Schwartz, Steven) (Entered: 02/10/2016)
720 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 719 Motion to Continue the Status Conference. ALLOWED. The Status Conference originally set for March 2, 2016 is continued to March 4, 2016 at 11:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 02/11/2016)
721 Assented to MOTION for Extension of Time to February 23, 2016 to file defendant's status report and to February 29, 2016 to file plaintiffs' status report by EOHHS.(Hammond, Daniel) (Entered: 02/19/2016)
722 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 721 Motion for Extension of Time to February 23, 2016 to file defendant's status report and to February 29, 2016 to file plaintiffs' status report. ALLOWED. (Lindsay, Maurice) (Entered: 02/22/2016)
723 RESPONSE TO COURT ORDER by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. re 708 Scheduling Order,,,, Set Scheduling Order Deadlines,,, . (Schwartz, Steven) (Entered: 02/22/2016)
724 Transcript of Status Conference held on December 10, 2015, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 3/15/2016. Redacted Transcript Deadline set for 3/25/2016. Release of Transcript Restriction set for 5/23/2016. (Scalfani, Deborah) (Entered: 02/23/2016)
725 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/23/2016)
726 STATUS REPORT on Implementation and Disengagement Issues by EOHHS. (Hammond, Daniel) (Entered: 02/23/2016)
727 MEMORANDUM OF LAW by EOHHS. (Hammond, Daniel) (Entered: 02/23/2016)
728 STATUS REPORT Plaintiffs' Thirtieth Status Report by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 02/29/2016)
731 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 3/4/2016. Colloquy re: status of the case. Scheduling order to issue. (Court Reporter: Carol Scott at carollynnscott@cs.com.) (Kaplan, Jennifer) (Entered: 03/04/2016)
732 Judge Michael A. Ponsor. SCHEDULING ORDER entered as follows: On or before 5/20/16, counsel will file reports on outpatient therapy and in−home therapy as clinical hubs, Also on or before 5/20/16, Defendants will file their status report, On or before 5/27/16, Plaintiffs will file their status report and Counsel will appear again before this court on June 8, 2016 at 2:00 p.m. for a status conference in Hampden Courtroom before Judge Michael A. Ponsor. See the attached scheduling order for complete details. (Lindsay, Maurice) Modified on 3/6/2016 to correct name of presiding judge. (Healy, Bethaney). (Entered: 03/04/2016)
733 EXHIBIT re 723 Response to Court Order by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 03/07/2016)
734 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. Status Conference moved to 6/8/2016 at 3:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 04/22/2016)
735 Transcript of Status Conference held on March 4, 2016, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 5/26/2016. Redacted Transcript Deadline set for 6/6/2016. Release of Transcript

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05/05/2016
05/11/2016 05/12/2016 05/12/2016 05/20/2016 05/20/2016 05/26/2016 05/31/2016 06/08/2016
06/09/2016 06/14/2016
06/29/2016
06/29/2016
09/13/2016

Restriction set for 8/3/2016. (Scalfani, Deborah) (Entered: 05/05/2016)
736 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/05/2016)
737 Joint MOTION for Extension of Time to December 31, 2016 to Appointment of Court Monitor by EOHHS. (Attachments: # 1 Text of Proposed Order Attached as Exhibit A)(Hammond, Daniel) (Entered: 05/11/2016)
738 Judge Michael A. Ponsor: ENDORSED ORDER entered granting the Parties 737 Motion for Extending Court Monitor's Engagement through December 31, 2016. ALLOWED. See order. (Lindsay, Maurice) (Entered: 05/12/2016)
739 Judge Michael A. Ponsor: ORDER entered. ORDER regarding Court Monitor's Budget covering 7/1/16 through 12/31/16, See the attached order for details. (Lindsay, Maurice) (Entered: 05/12/2016)
740 STATUS REPORT Report on Service Coordination in Outpatient Therapy and In−Home Therapy Services by Anton B., Ralph B., Joshua D., Rosie D., Devin E., Shaun E., Natisha M., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 05/20/2016)
741 STATUS REPORT on Compliance, including discussions of Outpatient−as−a−Hub and IHT by EOHHS. (Attachments: # 1 Exhibit A: (Draft) IHT Practice Profile (partial))(Hammond, Daniel) (Entered: 05/20/2016)
742 STATUS REPORT Plaintiffs' Thirty−First by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 05/26/2016)
743 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. The Status Conference time has been moved back to 6/8/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 05/31/2016)
744 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 6/8/2016. Colloquy re: status of matter. Schedule established re: submissions to the court. Further Status Conference set for September 27, 2016, at 2:00 p.m. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 06/09/2016)
745 Set/Reset Hearings: Status Conference set for 9/27/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 06/09/2016)
746 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: On or before 9/13/16, Defendants will file their status report, On or before 9/20/16, Plaintiffs will file their status report and Counsel will appear again before this court on 9/27/2016 at 2:00 PM for a Status Conference in Hampden Courtroom before Judge Michael A. Ponsor. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 06/14/2016)
747 Transcript of Status Conference held on June 8, 2016, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 7/20/2016. Redacted Transcript Deadline set for 8/1/2016. Release of Transcript Restriction set for 9/27/2016. (Scalfani, Deborah) (Entered: 06/29/2016)
748 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/29/2016)
749 STATUS REPORT on Implementation by EOHHS. (Attachments: # 1 Exhibit 1: MCI Sustainability Framework, # 2 Appendix 1 to Exhibit 1, # 3 Appendix 2 to Exhibit 1, # 4 Exhibit 2: Defendants' Response to Proposal on Disengagement Measures)(Hammond, Daniel) (Entered: 09/13/2016)

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09/14/2016 09/20/2016 09/21/2016 09/23/2016 09/26/2016 11/08/2016 11/08/2016 11/08/2016
11/08/2016 11/16/2016
11/16/2016
11/18/2016 12/13/2016 12/13/2016 12/21/2016

750 Supplement/ Errata by EOHHS . (Attachments: # 1 Exhibit 3: Status of Disengagement Activities)(Hammond, Daniel) (Entered: 09/14/2016)
751 STATUS REPORT Plaintiffs' Thirty−Second by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Rucker, Kathryn) (Entered: 09/20/2016)
752 ELECTRONIC NOTICE Canceling Hearing. Hearing canceled: September 27, 2016 Status Conference. New date to be set. (Bartlett, Timothy) (Entered: 09/21/2016)
753 STATUS REPORT Supplement −− Defendants' Response to Plaintiffs' Proposed Form of Order Regarding Outpatient Services as a Therapeutic Hub by EOHHS. (Hammond, Daniel) (Entered: 09/23/2016)
754 ELECTRONIC NOTICE of Hearing ISSUED. Status Conference set for 11/8/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 09/26/2016)
755 Assented to MOTION for Attorney Fees by Anton B., Ralph B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Natisha M., Sheena M., Jerry N.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 11/08/2016)
756 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 755 Motion for Attorney Fees and Costs. ALLOWED and so ordered. (Healy, Bethaney) (Entered: 11/10/2016)
757 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 11/8/2016. Colloquy re: status of case. Parties to file a joint or separate disengagement proposals by no later than December 13, 2016. Court shall appear for a status Conference on December 21, 2016 at 2:00 p.m. (Please note this date is a different date than what was set in court on the record.) (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 11/10/2016)
758 Set/Reset Hearings: Status Conference set for 12/21/2016 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 11/10/2016)
759 Transcript of Status Conference held on November 8, 2016, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 12/7/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/14/2017. (Scalfani, Deborah) (Entered: 11/16/2016)
760 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 11/16/2016)
761 STATUS REPORT Supplement: FY 16 Massachusetts Practice Review Summary by EOHHS. (Attachments: # 1 Exhibit A: FY 16 Year−End Summary, Massachusetts Practice Review)(Hammond, Daniel) (Entered: 11/18/2016)
762 BRIEF by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. In Support of Plaintiffs' Disengagement Proposal. (Attachments: # 1 Exhibit, # 2 Exhibit)(Schwartz, Steven) (Entered: 12/13/2016)
763 STATUS REPORT Regarding Disengagement Standards by EOHHS. (Attachments: # 1 Exhibit 1: Defendants' Proposed Disengagement Measures)(Hammond, Daniel) (Entered: 12/13/2016)
765 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 12/21/2016. Colloquy re: proceedings. Scheduling Order to issue. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Healy, Bethaney) (Entered: 12/23/2016)

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12/22/2016 12/23/2016 12/28/2016
01/06/2017 01/06/2017 01/12/2017 01/17/2017
01/18/2017 01/18/2017 02/02/2017 02/03/2017 02/16/2017 02/17/2017 03/03/2017

764 Judge Michael A. Ponsor: ORDER entered. Extending the appointment in this matter of the Court Monitor, which is presently scheduled to expire on December 31, 2016, is hereby extended through and including June 30, 2017. See the attached order for complete details. (Lindsay, Maurice) (Entered: 12/22/2016)
766 Judge Michael A. Ponsor: ORDER for Attorneys' Fees and Costs entered. (Healy, Bethaney) (Main Document 766 replaced on 12/23/2016) (Healy, Bethaney). (Entered: 12/23/2016)
767 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: for the reasons stated On or before 1/6/17, the parties will submit a modified plan for the final stage of implementation of the remedial order, Plaintiffs will file a motion for an order regarding outpatient services by 1/20/17, with opposition by 2/3/17, Counsel will appear again before this court on April 6, 2017 at 2:00 p.m. The court will make an effort to arrange for this hearing to take place at the Boston courthouse and Formal, detailed status reports will not be necessary in preparation for the April 6 hearing. However, either party may submit a written memorandum outlining concerns to be addressed, no later than March 23, 2017, with the reply to any submission by March 30, 2017. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 12/28/2016)
768 BRIEF by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N. Memo in Support of Its Disengagement Proposal. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 01/06/2017)
769 BRIEF by EOHHS Memorandum in Support of Defendants' Revised Disengagement Plan. (Attachments: # 1 Exhibit A: Defendants' Revised Disengagement Plan)(Hammond, Daniel) (Main Document 769 replaced on 1/18/2017) (Healy, Bethaney). (Entered: 01/06/2017)
770 MOTION re 769 Brief /Motion to Permit Substitution of Pleading by EOHHS. (Attachments: # 1 Exhibit A: Defendants' Statement on Disengagement Plan (corrected version))(Hammond, Daniel) (Entered: 01/12/2017)
771 Assented to MOTION for Extension of Time to 2/10/2017 for the Pltfs' to file their Motion on Outpatient Services, to 2/20/2017 for the Defts' response and to 2/24/2017 for the Pltfs' reply by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) Modified on 1/18/2017 to correct the text. (Finn, Mary). (Entered: 01/17/2017)
772 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 770 Motion to File Substitute Pleading. ALLOWED. Exhibit A will be separately docketed as Dkt 769 and substituted for the original document. (Healy, Bethaney) (Entered: 01/18/2017)
773 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 771 Assented to Motion to Reset Date for Filing Motion on Outpatient Services. ALLOWED and so ordered. (Lindsay, Maurice) (Entered: 01/18/2017)
774 Assented to MOTION for Extension of Time to 02/17/2017 to file plaintiffs' motion on outpatient services by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 02/02/2017)
775 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting Plaintiff's 774 Assented to Motion to reset date for fining motion on outpatient services. ALLOWED. (Lindsay, Maurice) (Entered: 02/03/2017)
776 MOTION for Settlement Approve Joint Disengagement Measures by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 02/16/2017)
777 MOTION to Modify Judgment by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Order)(Schwartz, Steven) (Entered: 02/17/2017)
778 Assented to MOTION for Extension of Time to March 10, 2017 to File Response/Reply as to 777 MOTION to Modify Judgment , 776 MOTION for Settlement Approve Joint Disengagement Measures by EOHHS.(Hammond, Daniel)

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03/06/2017
03/09/2017 03/10/2017 03/10/2017 03/17/2017 03/17/2017 03/20/2017 03/20/2017 03/23/2017 03/24/2017 03/28/2017 04/06/2017
04/07/2017 04/07/2017
04/07/2017 04/11/2017

(Entered: 03/03/2017)
779 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 778 Motion for Extension of Time to File Response/Reply re 776 MOTION for Settlement Approve Joint Disengagement Measures, 777 MOTION to Modify Judgment. Responses due by 3/10/2017. (Healy, Bethaney) (Entered: 03/06/2017)
780 Second MOTION for Extension of Time to March 17, 2017 to File Response to Plaintiffs' Motion to Modify Judgment by EOHHS.(Hammond, Daniel) (Entered: 03/09/2017)
781 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 780 Motion for Extension of Time to March 17, 2017 to File Response to Plaintiffs' Motion to Modify Judgment. ALLOWED. (Lindsay, Maurice) (Entered: 03/10/2017)
782 Opposition re 776 MOTION for Settlement Approve Joint Disengagement Measures filed by EOHHS. (Attachments: # 1 Exhibit A: Disengagement Measures)(Hammond, Daniel) (Entered: 03/10/2017)
783 REPLY to Response to 776 MOTION for Settlement Approve Joint Disengagement Measures filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 03/17/2017)
784 MOTION for Extension of Time to March 20, 2017 to File Response to Plaintiffs' Motion to Modify Judgment by EOHHS.(Hammond, Daniel) (Entered: 03/17/2017)
785 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 784 Motion for Extension of Time to March 20, 2017 to File Response to Plaintiffs' Motion to Modify Judgment. ALLOWED. (Lindsay, Maurice) (Entered: 03/20/2017)
786 MEMORANDUM in Opposition re 777 MOTION to Modify Judgment filed by EOHHS. (Hammond, Daniel) (Entered: 03/20/2017)
787 STATUS REPORT Plaintiffs' Thirty−third by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 03/23/2017)
788 REPLY to Response to 777 MOTION to Modify Judgment filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 03/24/2017)
789 NOTICE Resetting a Hearing ISSUED. The Status Conference is moved to 4/6/2017 at 12:00 PM in Courtroom 8 (BOSTON) before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 03/28/2017)
790 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 4/6/2017. Motions taken under advisement. (Court Reporter: Catherine Handel at hhcatherine2@yahoo.com.)(Attorneys present: various) (Hohler, Daniel) (Entered: 04/06/2017)
791 ELECTRONIC NOTICE of Hearing ISSUED. Status Conference set for 9/27/2017 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/07/2017)
792 Judge Michael A. Ponsor: ORDER entered. Per agreement of the parties, the appointment of the Court Monitor, which is presently scheduled to expire on June30, 2017, is hereby extended through and including December31, 2018. By June 9, 2017, Defendants shall file a statusreport confirming that adequate provisions have been, or willbe, made for the budget to cover the Court Monitors fees andexpenses during this extended appointment period.It is So Ordered. (Lindsay, Maurice) (Entered: 04/07/2017)
793 Set/Reset Deadlines: Status Report due by 6/9/2017 (Lindsay, Maurice) (Entered: 04/07/2017)
794 Assented to MOTION for Extension of Time to 10/03/2017 to For next Status Conference by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 04/11/2017)

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04/14/2017 04/18/2017
04/18/2017 04/21/2017 04/24/2017
04/24/2017 04/27/2017 05/03/2017
05/03/2017 06/06/2017
06/06/2017 06/09/2017 06/09/2017

795 MOTION for Leave to File Supplemental Memorandum in Opposition to Plaintiffs' Motion to Modify Judgment by EOHHS. (Attachments: # 1 Exhibit A: (Proposed) Supplemental Memorandum in Opposition to Plaintiffs' Motion to Modiry Judgment)(Hammond, Daniel) (Entered: 04/14/2017)
796 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 795 Motion for Leave to File Supplemental Memorandum in Opposition to Plaintiffs' Motion to Modify Judgment; ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 04/18/2017)
797 Supplemental MEMORANDUM in Opposition re 777 MOTION to Modify Judgment (Leave to File Granted on April 18, 2017) filed by EOHHS. (Hammond, Daniel) (Entered: 04/18/2017)
798 Assented to MOTION for Leave to File Supplemental Reply by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Supplemental Reply, # 2 Exhibit)(Schwartz, Steven) (Entered: 04/21/2017)
799 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 798 Assented to Motion for Leave to File a Supplemental Memorandum on Outpatient Therapy. ALLOWED. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lindsay, Maurice) (Entered: 04/24/2017)
800 SUR−REPLY to Motion re 798 Assented to MOTION for Leave to File Supplemental Reply In Support of Motion To Modify Judgment filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 04/24/2017)
801 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 794 Assented to Motion to reset date for status Conference. ALLOWED. In−part. The motion to re−set is ALLOWED. The October 3 proposed date will not work. The clerk will re−schedule for 10/4/17 or Some other date. (Lindsay, Maurice) (Entered: 04/27/2017)
802 Transcript of Status Conference held on April 4, 2017, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Catherine Handel at hhcatherine2@yahoo.com Redaction Request due 5/24/2017. Redacted Transcript Deadline set for 6/5/2017. Release of Transcript Restriction set for 8/1/2017. (Scalfani, Deborah) (Entered: 05/03/2017)
803 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/03/2017)
804 Judge Michael A. Ponsor: MEMORANDUM AND ORDER Regarding Further Status Conference entered. As follows: The next status conference in this case will be on September 27, 2017, at 2 p.m. in Hampden Courtroom before Judge Michael A. Ponsor. Defendant will submit a written status report no later than September 8, 2017 and Plaintiff will submit a written status report no later than September 20, 2017. See the attached memo and order for the complete details. (Lindsay, Maurice) (Entered: 06/07/2017)
805 Set/Reset Deadlines: Plaintiff's Status Report due by 9/20/2017 (Lindsay, Maurice) (Entered: 06/07/2017)
806 ELECTRONIC NOTICE OF RESCHEDULING. The status conference previously set for 09/27/2017 has been rescheduled for 10/4/2017 at 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Kaplan, Jennifer) (Entered: 06/09/2017)
807 STATUS REPORT Regarding Court Monitor's Retention and Remuneration by EOHHS. (Hammond, Daniel) (Entered: 06/09/2017)

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08/28/2017 08/28/2017 09/01/2017 09/05/2017 09/06/2017 09/13/2017 09/22/2017 09/27/2017
10/04/2017
10/16/2017 10/24/2017
10/24/2017
11/17/2017 11/17/2017 11/17/2017

808 NOTICE of Appearance by Daniel W. Halston on behalf of Rosie D. (Halston, Daniel) (Entered: 08/28/2017)
809 NOTICE of Withdrawal of Appearance by James W. Prendergast (Prendergast, James) (Entered: 08/28/2017)
810 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. The Status Conference is rescheduled to 10/4/2017 at 11:30 AM in Courtroom 18 (U.S. District Courthouse− BOSTON) before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 09/01/2017)
811 Assented to MOTION for Extension of Time to September 13, 2017 to File Defendants' Status Report, and to September 25, 2017 to File Plaintiffs' Status Report by EOHHS.(Hammond, Daniel) (Entered: 09/05/2017)
812 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 811 Motion for Extension of Time until September 13, 2017 to File Defendants' Status Report, and until September 25, 2017 to File Plaintiffs' Status Report by EOHHS. (Healy, Bethaney) (Entered: 09/06/2017)
813 STATUS REPORT on Implementation Efforts by EOHHS. (Attachments: # 1 Exhibit 1: Access Results, Year to Date, # 2 Exhibit 2: Summary Reports of IHT MPR results, # 3 Exhibit 3: Outpatient assessment tool)(Hammond, Daniel) (Entered: 09/13/2017)
814 STATUS REPORT Plaintiffs' 34th by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) (Entered: 09/22/2017)
815 Judge Michael A. Ponsor: ORDER entered. As follows: For the reasons stated, the Motion to Approve Joint Disengagement Measures (Dkt. No. 776 ) and the Motion to Modify the Judgment to Incorporate Provisions on Outpatient Therapy (Dkt. No. 777 ) are hereby DENIED, WITHOUT PREJUDICE. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 09/27/2017)
816 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 10/4/2017. Colloquy re: status of matter. By November 17, 2017, counsel shall file a written report addressing the following issues: (1) new chart reviews for 2018, (2) raw data dispute, and (3) access issues. If the report is joint, it shall be filed by Plaintiffs, otherwise counsel may file separate reports. Further Status Conference set for January 16, 2017, at 2:00 p.m. (Court Reporter: Lee Marzilli at leemarz@aol.com.)(Attorneys present: Halston, Zucker, Simons, Costanzo, Schwartz) (Healy, Bethaney) (Entered: 10/16/2017)
817 Set Deadlines/Hearings: Status Report due by 11/17/2017; Status Conference set for 1/16/2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) Modified on 10/20/2017 (Healy, Bethaney). (Entered: 10/16/2017)
818 Transcript of Status Conference held on October 4, 2017, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 11/14/2017. Redacted Transcript Deadline set for 11/24/2017. Release of Transcript Restriction set for 1/22/2018. (Scalfani, Deborah) (Entered: 10/24/2017)
819 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/24/2017)
820 STATUS REPORT Relating to ICC & IHT Access Issues by EOHHS. (Hammond, Daniel) (Entered: 11/17/2017)
821 JOINT STATEMENT of counsel on Disengagement. (Rucker, Kathryn) (Entered: 11/17/2017)
822 STATUS REPORT Plaintiffs' Supplemental Report on Access by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Report)(Rucker, Kathryn) (Entered: 11/17/2017)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 95 of 102

01/16/2018
02/09/2018
02/09/2018
02/22/2018 02/23/2018 02/26/2018 04/03/2018 04/04/2018 04/05/2018 04/25/2018 04/26/2018
04/26/2018 05/11/2018 05/11/2018

823 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Status Conference held on 1/16/2018. (Court Reporter: Sarah Mubarek (Philbin & Associates, 413−733−4078).)(Attorneys present: Hammond, Arterian, Rucker, Schwartz, Costanzo). Next Status Conference set for 3/1/2018 02:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Defendants' Status Report due by 2/22/2018; Plaintiffs' Response, if any, due by 2/26/2018. (Kaplan, Jennifer) (Entered: 01/16/2018)
824 Transcript of Hearing held on January 16, 2018, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Sarah Mubarek at sarahmubarek@comcast.net Redaction Request due 3/2/2018. Redacted Transcript Deadline set for 3/12/2018. Release of Transcript Restriction set for 5/10/2018. (Scalfani, Deborah) (Entered: 02/09/2018)
825 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/09/2018)
826 STATUS REPORT on Actions Related to Joint Disengagement by EOHHS. (Hammond, Daniel) (Entered: 02/22/2018)
827 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. The Status Conference originally set for March 1, 2018 has been moved to April 5, 2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 02/25/2018)
828 STATUS REPORT Plaintiffs' Thirty−Fifth by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit)(Rucker, Kathryn) (Entered: 02/26/2018)
829 NOTICE Resetting a Hearing. Status Conference moved to 4/5/2018 at 1:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. PLEASE NOTE CHANGE IN TIME ONLY. (Healy, Bethaney) (Entered: 04/03/2018)
830 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. Status Conference is moved to 4/25/2018 at 2:00 PM before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/04/2018)
831 NOTICE Resetting a Hearing. Status Conference rescheduled for 4/26/2018 at 01:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Kaplan, Jennifer) (Entered: 04/05/2018)
832 ELECTRONIC NOTICE OF RESCHEDULING ISSUED. Status Conference moved to 4/26/2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Please note change in time only. (Healy, Bethaney) (Entered: 04/25/2018)
833 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Status Conference held on 4/26/2018. Colloquy re: joint disengagement process and status of proceedings. Court sets the following schedule: Plaintiffs' proposed briefing schedule due by May 11, 2018; Defendants' response by June 1, 2018, to which Plaintiffs may reply by June 8, 2018. Counsel shall appear for a status conference on June 13, 2018, at 2:00 p.m. in Springfield. (Court Reporter: Brenda Hancock at brhancock@msn.com.)(Attorneys present: Costanzo, Schwartz, Laski, Rucker, Hammond, Kehoe) (Healy, Bethaney) (Entered: 04/26/2018)
834 Set/Reset Hearings: Status Conference set for 6/13/2018 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/26/2018)
835 MOTION for Order to Improve Access to Services by Anton B., Joshua D., Rosie D., Devin E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit)(Schwartz, Steven) (Entered: 05/11/2018)
836 MEMORANDUM in Support re 835 MOTION for Order to Improve Access to Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit IHT Report, # 2 Exhibit IHBS Report,

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 96 of 102

05/25/2018 05/29/2018 06/05/2018 06/08/2018 06/08/2018 06/11/2018 06/13/2018 06/14/2018
06/29/2018 06/29/2018

# 3 Exhibit TM Report)(Schwartz, Steven) (Entered: 05/11/2018)
837 Assented to MOTION for Extension of Time to June 5, 2018 to File Response/Reply as to 835 MOTION for Order to Improve Access to Services and to Extend Plaintiffs' Deadline to File Reply to June 12, 2018 by EOHHS.(Hammond, Daniel) (Entered: 05/25/2018)
838 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Defendants' Motion for Extension of Time to File Response/Reply (Dkt. No. 837) is hereby ALLOWED. Defendants' response to Plaintiffs' Motion for Order to Improve Access to Services (Dkt. No. 835) due by 6/5/2018 and Plaintiffs' reply due by 6/12/2018. (Kaplan, Jennifer) (Entered: 05/29/2018)
839 MEMORANDUM in Opposition re 835 MOTION for Order to Improve Access to Services filed by EOHHS. (Hammond, Daniel) (Entered: 06/05/2018)
840 Transcript of Status Conference held on April 26, 2018, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 6/29/2018. Redacted Transcript Deadline set for 7/9/2018. Release of Transcript Restriction set for 9/6/2018. (Scalfani, Deborah) (Entered: 06/08/2018)
841 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/08/2018)
842 REPLY to Response to 835 MOTION for Order to Improve Access to Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 06/11/2018)
843 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor. Motion Hearing held on 6/13/2018 regarding Plaintiffs' Motion for Order to Improve Access to Services (Dkt. No. 835). Arguments heard; motion taken under advisement. Scheduling order to issue. (Court Reporter: Alice Moran atalice.moran@verizon.net.) (Attorneys present: Hammond, Arterian, Rucker, Schwartz, Costanzo, Laskip) (Kaplan, Jennifer) (Entered: 06/13/2018)
844 Judge Michael A. Ponsor: SCHEDULING ORDER entered. As follows: For the reasons stated, On or before August 6, 2018, Defendants will file a Motion Regarding Substantial Compliance, with a supporting memorandum laying out in detail their argument that they have substantially complied with the court's remedial order of July 16, 2007, Also on or before August 6, 2018, Plaintiffs will file their Motion to Incorporate the Disengagement Criteria as an Order of the Court, Opposition to these motions will be filed by September 10, 2018, If reply memoranda are felt to be critical, they may be submitted by September 17, 2018, and contain no more than 10 pages, Counsel will appear again for argument on September 27, 2018, at 2 p.m. in Hampden Courtroom in the Springfield Courthouse. At that time, U.S. District Judge Richard G. Stearns, who has agreed to accept transfer of this case in light of the undersigned's imminent transition to inactive senior status, will appear and assist in presiding. It is So Ordered. See the attached Scheduling Order for complete details. (Lindsay, Maurice) (Entered: 06/14/2018)
845 Transcript of Status Conference held on June 13, 2018, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at alice.moran@verizon.net Redaction Request due 7/20/2018. Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/27/2018. (Scalfani, Deborah) (Entered: 06/29/2018)
846 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/29/2018)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 97 of 102

08/06/2018
08/06/2018 08/06/2018 08/06/2018
08/06/2018 08/27/2018 09/04/2018
09/06/2018 09/06/2018 09/06/2018 09/10/2018
09/10/2018

847 MOTION Approve and Order Disengagement Measures, Improve Access to Remedial Services and Provisions on Outpatient Services by Anton B., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit Order Disengagement Measures, # 2 Exhibit Order Approve Remedial Orders, # 3 Exhibit Order Outpatient Services, # 4 Exhibit Affidavit.L.Lambert, # 5 Exhibit Affidavit.V.Digravio)(Schwartz, Steven) (Entered: 08/06/2018)
848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision by EOHHS.(Hammond, Daniel) (Entered: 08/06/2018)
849 MEMORANDUM in Support re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by EOHHS. (Hammond, Daniel) (Entered: 08/06/2018)
850 Statement of Material Facts L.R. 56.1 re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by EOHHS. (Attachments: # 1 Exhibit Exh. A to Statement of Material Facts, # 2 Exhibit Exh B to Statement of Material Facts, # 3 Exhibit Exh. C to Statement of Material Facts, # 4 Exhibit Exh. D to Statement of Material Facts, # 5 Exhibit Exh. E to Statement of Material Facrts, # 6 Exhibit Exh. F. to Statement of Material Facts, # 7 Exhibit Exh. G. to Statement of Material Facts, # 8 Exhibit Exh. H to Statement of Material Facts, # 9 Exhibit Exh. I to Statement of Material Facts, # 10 Exhibit Exh. J to Statement of Material Facts)(Hammond, Daniel) (Entered: 08/06/2018)
851 AFFIDAVIT in Support re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision by Mary Lou Sudders, Sec. of Health and Human Services filed by EOHHS. (Hammond, Daniel) (Entered: 08/06/2018)
852 Assented to MOTION for Leave to File Substitute Pleadings by EOHHS. (Attachments: # 1 Exhibit A: Affidavit of Stephanie Brown, # 2 Exhibit B: Corrected Statement of Material Facts, # 3 Exhibit C: Corrected Memorandum of Law, # 4 Exhibit D: Corrected Sudders Affidavit)(Hammond, Daniel) (Entered: 08/27/2018)
853 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 852 Motion for Leave to File Substitute Pleadings. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 09/04/2018)
854 Amended MEMORANDUM in Support re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by EOHHS. (Hammond, Daniel) (Entered: 09/06/2018)
855 Amended Statement of Material Facts L.R. 56.1 re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision (Leave to File Granted 9/4/18) filed by EOHHS. (Hammond, Daniel) (Entered: 09/06/2018)
856 Amended AFFIDAVIT in Support re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision (Leave to File Granted 9/4/18) filed by EOHHS. (Hammond, Daniel) (Entered: 09/06/2018)
857 Opposition re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit)(Schwartz, Steven) (Entered: 09/10/2018)
858 Opposition re 847 MOTION Approve and Order Disengagement Measures, Improve Access to Remedial Services and Provisions on Outpatient Services filed by EOHHS. (Attachments: # 1 Exhibit A: Affidavit of Stephanie Brown, # 2 Exhibit B: Affidavit of Laura Conrad)(Hammond, Daniel) (Entered: 09/10/2018)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 98 of 102

09/13/2018 09/13/2018 09/14/2018 09/14/2018 09/17/2018
09/24/2018 09/24/2018 09/27/2018
10/04/2018 10/15/2018
10/15/2018 11/27/2018 12/07/2018

859 MOTION for Extension of Time to September 24, 2018 to File Response/Reply as to 857 Opposition to Motion,, by EOHHS.(Hammond, Daniel) (Entered: 09/13/2018)
860 Opposition re 859 MOTION for Extension of Time to September 24, 2018 to File Response/Reply as to 857 Opposition to Motion,, filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 09/13/2018)
861 Judge Michael A. Ponsor: ELECTRONIC ORDER entered. Defendants' Motion for Extension of Time to File Response/Reply (Dkt. No. 859) is hereby ALLOWED, with reluctance. The court will consider a short continuance of the hearing date, if requested and justified. Replies due by 9/24/2018. It is so ordered. (Kaplan, Jennifer) (Entered: 09/14/2018)
862 MOTION for Leave to File Excess Pages by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Schwartz, Steven) (Entered: 09/14/2018)
863 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 862 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 09/17/2018)
864 REPLY to Response to 847 MOTION Approve and Order Disengagement Measures, Improve Access to Remedial Services and Provisions on Outpatient Services filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Jose M., Natisha M., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 09/24/2018)
865 REPLY to Response to 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by EOHHS. (Attachments: # 1 Exhibit A: Affidavit of Laura Conrad)(Hammond, Daniel) (Entered: 09/24/2018)
870 Electronic Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Counsel appear for Motion Hearing held on 9/27/2018 re 848 MOTION for Order to Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision filed by EOHHS and 847 MOTION Approve and Order Disengagement Measures, Improve Access to Remedial Services and Provisions on Outpatient Services filed by Anton B., Shaun E., Tyriek H., Jerry N., Devin E., Rosie D., Sheena M.. Arguments heard. Court requests a report for Defendants regarding the Court Monitor's appointment. (Healy, Bethaney) (Entered: 12/04/2018)
866 Response by EOHHS to Court's Inquiries re Court Monitor. (Hammond, Daniel) (Entered: 10/04/2018)
867 Transcript of Case Management Conference held on September 27, 2018, before Judge Michael A. Ponsor and Judge Richard G. Stearns. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Linda Walsh at lwalshsteno@gmail.com Redaction Request due 11/5/2018. Redacted Transcript Deadline set for 11/15/2018. Release of Transcript Restriction set for 1/14/2019. (Scalfani, Deborah) (Entered: 10/15/2018)
868 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/15/2018)
869 Judge Michael A. Ponsor: ORDER entered.Re: Extension of Monitor's Appointment.The question of the Monitors continued appointment after June 30, 2019 will be addressed in the rulings on the two motions. It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) (Entered: 11/27/2018)
871 MOTION for Attorney Fees by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 12/07/2018)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 99 of 102

12/21/2018 12/21/2018 12/28/2018 12/28/2018 01/14/2019 02/07/2019
03/11/2019
03/11/2019 03/11/2019 03/12/2019 03/13/2019
03/13/2019

872 RESPONSE TO COURT ORDER by EOHHS re 869 Order, Response of Each Party to Order Extending Court Monitor's Appointment. (Attachments: # 1 Exhibit A: Court Monitor's Proposed Budget for Period from 1/1/19 Through 6/30/19 (Estimated))(Hammond, Daniel) (Entered: 12/21/2018)
873 Judge Michael A. Ponsor: ORDER entered. MEMORANDUM AND ORDER Regarding Monitor's Budget. See the attached order for details. (Lindsay, Maurice) (Entered: 12/21/2018)
874 RESPONSE to Motion re 871 MOTION for Attorney Fees filed by EOHHS. (Hammond, Daniel) (Entered: 12/28/2018)
875 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 871 Motion for Attorney Fees and Costs. ALLOWED. (Lindsay, Maurice) (Entered: 12/28/2018)
876 Supplemental Charts (CSA Monthly Reports FY2018 and Plaintiff's Comparison of Defendants Chart 9−24−2018) submitted to the court on September 27, 2018 filed by Rosie D., et al. (Attachments: # 1 Additional Chart)(Healy, Bethaney) (Entered: 01/14/2019)
877 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered as follows: For the reasons stated, the court retains the power and the responsibility to continue its supervision and monitoring, with the essential assistance of the Court Monitor, until reasonable compliance is achieved. Based on the foregoing, Defendants Motion Regarding Substantial Compliance and to Terminate Monitoring and Court Supervision (Dkt. 848 ) is hereby DENIED. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 02/07/2019)
878 NOTICE OF APPEAL as to 877 Order on Motion for Order,, by Stephen P. Crosby, EOHHS, Robert Gittens, Kristin H., Eric Kriss, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Ronald Preston, Mitt Romney, Jane M. Swift, Wendy E. Warring Fee Status: State or Local Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 4/1/2019. (Hammond, Daniel) (Entered: 03/11/2019)
879 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 878 Notice of Appeal. (Paine, Matthew) (Entered: 03/11/2019)
884 USCA Appeal Fees received $505.00 receipt number 1BST073435 re 878 Notice of Appeal, filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift (Coppola, Katelyn) (Entered: 03/14/2019)
880 USCA Case Number 19−1262 for 878 Notice of Appeal filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift. (Paine, Matthew) (Entered: 03/12/2019)
881 Judge Michael A. Ponsor: MEMORANDUM AND ORDER RE: Plaintiffs' Motion for Order to Improve Access to Services, and Motion to Approve and Order Disengagement Measure, Actions to Improve Access to Remedial Services, and Provisions on Outpatient Service (Dkt Nos 835 and 847) ENTERED. "...For the reasons set forth above, Plaintiffs' Motion to Improve Access to Remedial Services (Dkt. 835) and Motion to Approve and Order Disengagement Measures, Actions to Improve Access to Remedial Services, and Provisions on Outpatient Services (Dkt. 847) are hereby DENIED, without prejudice. It is so ordered." (Healy, Bethaney) (Entered: 03/13/2019)
882 Judge Michael A. Ponsor: ORDER Transferring Case Pursuant to Local Rule 40.1(I), ENTERED. The case is hereby reassigned to District Judge Richard G. Stearns. (Healy, Bethaney) (Entered: 03/13/2019)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 100 of 102

03/13/2019 06/17/2019 06/17/2019
06/24/2019 06/28/2019 07/01/2019
07/31/2019
07/31/2019 08/02/2019 08/02/2019 05/04/2020
05/04/2020

883 ELECTRONIC NOTICE of Reassignment. Judge Richard G. Stearns added. Judge Michael A. Ponsor no longer assigned to case. (Healy, Bethaney) (Entered: 03/13/2019)
885 MOTION Extend Appointment of Court Monitor by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N..(Rucker, Kathryn) (Additional attachment(s) added on 6/17/2019: # 1 Proposed Order) (Finn, Mary). Modified on 6/17/2019 to add the Proposed Order to the Entry. (Finn, Mary). (Entered: 06/17/2019)
886 MEMORANDUM in Support re 885 MOTION Extend Appointment of Court Monitor filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Rucker, Kathryn) Modified on 6/17/2019 to delete the Proposed Order which was an attachment and to attach it to document 855 , (Finn, Mary). (Entered: 06/17/2019)
887 Opposition re 885 MOTION Extend Appointment of Court Monitor filed by EOHHS. (Hammond, Daniel) (Entered: 06/24/2019)
888 REPLY to Response to 885 MOTION Extend Appointment of Court Monitor filed by Anton B., Joshua D., Rosie D., Devin E., Shaun E., Tyriek H., Sheena M., Jerry N.. (Schwartz, Steven) (Entered: 06/28/2019)
889 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 885 Motion for extension of the court monitor. Extending the appointment of the court monitor, under her present terms and conditions of engagement, in aid of execution of the underlying judgment, unless and until the Court of Appeals orders differently, the case now pending in that court. (Zierk, Marsha) (Entered: 07/01/2019)
890 NOTICE OF APPEAL as to 889 Order on Motion for Miscellaneous Relief, by EOHHS Fee Status: State or Local Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/20/2019. (Hammond, Daniel) (Entered: 07/31/2019)
892 USCA Appeal Fees received $505.00 receipt number 1BST075660 re 890 Notice of Appeal, filed by EOHHS (Coppola, Katelyn) (Entered: 08/02/2019)
891 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 890 Notice of Appeal. (Paine, Matthew) (Entered: 08/02/2019)
893 USCA Case Number 19−1767 for 890 Notice of Appeal filed by EOHHS. (Paine, Matthew) (Entered: 08/02/2019)
894 OPINION of USCA as to 878 Notice of Appeal filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift, 890 Notice of Appeal filed by EOHHS. (Paine, Matthew) (Entered: 05/04/2020)
895 USCA Judgment as to 878 Notice of Appeal filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift, 890 Notice of Appeal filed by EOHHS.

The district court's denial of the defendants' motion is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion issued this day.

(Paine, Matthew) (Entered: 05/04/2020)
06/17/2020 896 ORDER of USCA as to 878 Notice of Appeal filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 101 of 102

DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift, 890 Notice of Appeal filed by EOHHS.

ORDER entered by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge; Kermit V. Lipez, Appellate Judge; Rogeriee Thompson, Appellate Judge; William J. Kayatta, Jr., Appellate Judge and David J. Barron, Appellate Judge: The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. LIPEZ, Circuit Judge, dissents from the denial of panel rehearing

06/23/2020

(Paine, Matthew) (Entered: 06/21/2020)
897 Judge Richard G. Stearns: ELECTRONIC ORDER entered. The First Circuit having declined to rehear the appeal en banc and in anticipation of the issuance of the mandate and remand of the matter to this session, the court believes it would be of benefit to all involved to convene a status conference. To that end, the court would like to be informed of counsel's availability between July 21 and July 28, 2020. As the conference will most likely have to proceed by way of remote video (Zoom), geographical considerations should not be a constraint. To insure the most productive meeting possible, the court will order the parties to submit by close of business on Friday, July 17, 2020, an agenda memorandum summarizing each side's view of the outstanding issues and the most efficient path each believes the litigation should take going forward to a resolution. Please notify my Chief Law Clerk, Marsha Zierk, no later than Wednesday, July 1 (at Marsha_Zierk@mad.uscourts.gov), of your availability for the conference on the business days between July 21 and July 28.

06/24/2020 07/10/2020

(Zierk, Marsha) (Entered: 06/23/2020)
898 MANDATE of USCA as to 878 Notice of Appeal filed by Ronald Preston, Robert Gittens, Eric Kriss, EOHHS, Stephen P. Crosby, Mitt Romney, MASSACHUSETTS DIVISION OF MEDICAL ASSISTANCE ("DMA"), Kristin H., Wendy E. Warring, Jane M. Swift, 890 Notice of Appeal filed by EOHHS. Appeal 878 , 890 Terminated (Paine, Matthew) (Entered: 06/25/2020)
899 Set Hearings:

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://public.mad.uscourts.gov/seating−signup.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

07/17/2020 07/17/2020
07/20/2020

Status Conference set for 7/28/2020 02:30 PM in Courtroom 21 before Judge Richard G. Stearns. (Maynard, Timothy) (Entered: 07/10/2020)
900 RESPONSE TO COURT ORDER by EOHHS re 897 Order,,,, (Proposed Agenda Memorandum). (Hammond, Daniel) (Entered: 07/17/2020)
901 STATUS REPORT ON REMAND by Anton B., Joshua D., Rosie D., Devin E., Tyriek H., Natisha M., Jerry N.. (Attachments: # 1 Exhibit Doc. 847, # 2 Exhibit Doc. 847−1, # 3 Exhibit Doc. 847−2, # 4 Exhibit Doc. 847−3)(Schwartz, Steven) (Entered: 07/17/2020)
902 NOTICE of Appearance by Douglas S. Martland on behalf of Mitt Romney (Martland, Douglas) (Entered: 07/20/2020)

Case: 3:01-cv-30199 As of: 08/10/2020 03:56 PM EDT 102 of 102

07/28/2020 07/28/2020
07/28/2020

903 NOTICE of Appearance by Kevin R. Palmer on behalf of Rosie D. (Palmer, Kevin) (Entered: 07/28/2020)
904 Electronic Clerk's Notes for proceedings held before Judge Richard G. Stearns: Status Conference held on 7/28/2020. Court hears argument from the parties; Order to issue. (Court Reporter: James Gibbons at jamesgibbonsrpr@gmail.com.)(Attorneys present: Schwartz Rucker, Laski, Costanzo for the plaintiffs; Hammond and Martland for the defendants) (Maynard, Timothy) (Entered: 07/28/2020)
905 Judge Richard G. Stearns: ELECTRONIC ORDER entered. As agreed at this afternoon's status conference, the parties will have sixty days to confer on all outstanding matters in this litigation with a view to narrowing the issues and refining the existing disengagement criteria to the extent possible. By October 5, 2020, the parties will report to the court regarding those parts of the existing Judgment which they can agree have been substantially satisfied and identify those portions of the Judgment, if any, that will need to be further litigated. As part of the status report, the parties will provide the court with a proposed briefing schedule regarding any motion by plaintiffs to modify the existing Judgment.

(Zierk, Marsha) (Entered: 07/28/2020)