Settlement Agreement
Plaintiffs, Jacob Van Meter, Gail Fletcher as guardian of Adam Fletcher, and Eric Reeves, and Defendant, Mary Mayhew, Commissioner, Maine Department of Health and Human Services, by and through the undersigned counsel, hereby agree as follows:
WHEREAS, the parties have agreed to settle Civil Action Docket No. 1:09-cv-00633, Van Meter, et. al. v. Mary Mayhew, Commissioner, Maine Department of Health and Human Services, now pending in the United States District Court for the District of Maine. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, this settlement agreement is subject to Court approval. Without such approval, this settlement agreement shall be null and void and of no force and effect.
THEREFORE, the parties agree to the following terms and conditions:
I. DEFINITIONS
A. “Centers for Medicare and Medicaid Services” (CMS) means the United States federal agency that administers Medicare, Medicaid, and the Children's Health Insurance Program.
B. ”Defendant” means the Department of Health and Human Services (DHHS), its Commissioner, officers, and agents. Defendant is the single state agency responsible for the overall administration of the Medicaid program in the State of Maine, and includes any successor thereto.
C. “Home and Community Based Waiver” (HCBW) means a program for home and community based services approved and operated pursuant to Section 1915(c) of the Social Security Act, codified at 42 U.S.C. § 1396n(c).
D. “Intermediate Care Facility-Other Related Conditions” (ICF-ORC) means a facility that meets State licensing and Federal certification requirements for ICFs-ORC. These facilities are currently described in 42 C.F.R. § 440.150.
E. “Medicaid” or “MaineCare” means Maine’s medical assistance program jointly financed by the state and the federal government for low income individuals and people with disabilities pursuant to 42 U.S.C. § 1396 et seq.
F. “Named Plaintiffs” means Jacob Van Meter, Eric Reeves, and Adam Fletcher, by his guardian Gail Fletcher.
G. “Persons with Related Conditions” means individuals who have a severe, chronic disability that meets the conditions described in 42 C.F.R. § 435.1010 and, for purposes of this settlement agreement refers to those conditions, other than Autism.

H. “Plaintiff Class” refers to the certified class in this case which is described as: “[T]he Named Plaintiffs…and all other Maine residents who currently are or in the future will be: (1) eligible for and enrolled in MaineCare, (2) age 21 or older, (3) have a related condition as defined at 42 C.F.R. § 435.1010, other than autism, and who do not have a diagnosis of Alzheimer’s or dementia, and (4) who are or should be screened for admission to nursing facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. §§ 483.112 et seq.”
I. “PASRR Level I Screen” is a screening to identify all individuals who are in or have been discharged to a nursing facility and who are suspected of having mental illness or mental retardation (including other related conditions) as defined in 42 C.F.R. § 483.128.
J. “PASRR Level II Evaluation” means an Evaluation as described in 42 C.F.R. §§ 483.128, 483.130, 483.132, 483.136.
K. “PASRR Process” refers to the process required pursuant to 42 U.S.C. §1396r(e)(7) and 42 C.F.R. § 483.100-.138.
L. “Rules” means rules as defined in 5 M.R.S. § 8002(9) of the Maine Administrative Procedure Act.
M. “SPA” or “State Plan Amendment” refers to a Medicaid State Plan Amendment as currently set forth at 42 C.F.R. § 430.12.
N. “Specialized Services” is as defined in 42 C.F.R. § 483.120(a)(2). Nothing in this settlement agreement requires Defendant to provide Specialized Services for which Defendant would be required to pay with all State dollars.
II. DEVELOPMENT OF A HCBW TO SERVE THE PLAINTIFF CLASS
Defendant intends to develop a new HCBW, as an alternative to Intermediate Care Facilities, in order to provide community placement options for the Plaintiff Class. Defendant desires to develop the new HCBW for the Plaintiff Class without first having to establish any new Intermediate Care Facilities for Other Related Conditions (ICFs-ORC), if this is feasible under federal law as interpreted by CMS. Defendant intends to apply for the new HCBW using the costs of the existing Intermediate Care Facilities for Persons with Mental Retardation (ICFs-MR) program as its basis. With that understanding, the parties agree to work together in good faith to achieve that goal and to that extent agree as follows:
1. Defendant has determined, based upon preliminary, informal discussions with CMS, that it is unnecessary to establish any ICFs-ORC prior to submitting an application for an HCBW waiver. Defendant shall submit a HCBW application to CMS by November 1, 2011.
2. The HCBW application shall propose to include the following services in the waiver program: home supports; community supports; employment specialist services; work
2

supports; home accessibility adaptations; communications aids; transportation services; assistive technology; consultation services and assessments; counseling and crisis services; maintenance occupational, physical, and speech therapy; case management and specialized medical equipment to the extent that these services are subject to federal financial participation under the Medicaid program. Defendant shall work in good faith with counsel for the Plaintiff Class in the design and implementation of the HCBW. Before submission of any HCBW application, Defendant shall consult with counsel for the Plaintiff class on the content of the HCBW application that will be necessary for the operation of the HCBW. The parties will work cooperatively to ensure that the HCBW application adheres to the requirements and the intent of this settlement agreement to the extent allowed by state and federal law.
3. At the same time it submits the application to CMS, Defendant shall begin drafting Rules to implement the HCBW with the goal of having those Rules become effective within sixty (60) days of CMS approval of the waiver.
4. In its waiver application, Defendant shall propose to offer services to 15 members of the Plaintiff Class during the first full year of the waiver's operation and to offer services to an additional ten members per year for each subsequent year of the waiver's operation, unless the parties agree that there are no other Plaintiff Class members who seek services under the waiver; provided however that in no event shall the number of approved waiver slots exceed seventy-five (75). If CMS approves the waiver application, Defendant shall offer services to members of the Plaintiff Class as specified above.
5. Defendant shall act in good faith and use its best efforts to establish a HCBW for the Plaintiff Class without the necessity of establishing any ICFs-ORC and to secure CMS approval of the waiver application as submitted. Defendant shall provide copies to counsel for the Plaintiff Class of any questions or objections posed by CMS during this process and the Defendant’s responses to those questions or objections.
6. Unless changes in federal law make the continued operation of the HCBW impracticable, Defendant shall continue to maintain the HCBW to provide services to members of the Plaintiff Class. However, should Defendant develop different or additional programs that would allow it to offer substantially the same services to members of the Plaintiff Class, then it may discontinue, in whole or in part, the HCBW set forth herein. In the event that there are an insufficient number of Plaintiff Class members who seek services under the new HCBW for the Plaintiff Class, then Defendant may seek CMS permission to amend the HCBW accordingly.
7. If Defendant reasonably and in good faith determines that it is necessary to establish any ICFs-ORC prior to establishing a HCBW for the Plaintiff Class, Defendant agrees to operate the ICFs-ORC for the minimal period necessary to establish cost data acceptable to CMS to support Defendant’s application for a waiver. Defendant will begin to develop a Request for Proposals (or other procurement method) to establish any ICFs-ORC deemed necessary to establish necessary cost data within thirty (30) days of either proposing a State Plan Amendment (SPA) to establish ICFs-ORC or determining that a
3

SPA is unnecessary, so that there is a minimum of delay in the process to establish any necessary ICFs-ORC.
8. If Defendant reasonably and in good faith determines that it is necessary to establish any ICFs-ORC prior to the establishment of the HCBW for the Plaintiff Class, Defendant will seek input from counsel for the Plaintiff class on the number of ICFs-ORC that Defendant may seek to develop and the location of such ICFs-ORC. Any ICFs-ORC established by Defendant shall not exceed four beds per facility.
9. If the Defendant reasonably and in good faith determines it is necessary to submit a SPA to develop any ICFs-ORC as a step toward the submission of an application to CMS to establish the new HCBW for the Plaintiff Class, then Defendant shall submit that SPA to CMS no later than fourteen (14) days after determining that it is necessary to establish any ICFs-ORC prior to the establishment of the HCBW.
10. If Defendant reasonably and in good faith determines that it is necessary to establish any ICFs-ORC prior to the establishment of the HCBW for the Plaintiff Class, Defendant agrees to pursue expeditiously all necessary approvals from CMS and to issue and award any RFPs, or similar approvals. At the same time it determines that a SPA is unnecessary or submits the SPA to CMS, Defendant shall begin drafting Rules to establish the ICFsORC with the goal of having those Rules become effective within sixty (60) days of CMS approval of the SPA or of Defendant’s determination that a SPA is unnecessary.
11. If the Defendant reasonably and in good faith determines that it is necessary to establish any ICFs-ORC prior to establishing a HCBW for the Plaintiff Class, the Defendant must submit a HCBW application within thirty (30) days of obtaining cost basis data that Defendant reasonably and in good faith determines is sufficient to support a HCBW application. Defendant shall act in good faith and use best efforts to promptly take all steps necessary to obtain approval of the HCBW application as outlined above.
12. In the event that CMS does not approve a new HCBW that the parties reasonably and in good faith determine is satisfactory to meet the terms, conditions and goals of this settlement, then the parties shall attempt to negotiate a new settlement agreement to otherwise allow Defendant to develop community-based placement options for the Plaintiff Class.
13. Defendant agrees to regularly confer and seek the input of counsel for the Plaintiff class through the process of implementing this settlement agreement and ensure that counsel for the Plaintiff Class has sufficient information as allowed by state and federal law so that they are able to carry out their responsibilities to the Plaintiff Class in ensuring the timely implementation of this settlement agreement.
III. PROVISION OF PASRR SPECIALIZED SERVICES
The Defendant shall provide or arrange for the provision of Specialized Services, as defined herein and by 42 U.S.C. § 1396r(e)(7)(G)(iii) and 42 C.F.R. §§ 483.120(a)(2) and as identified in
4

the PASRR Process for the Plaintiff Class member, to all Plaintiff Class members who are identified by the PASRR Level II Evaluation to need such Specialized Services pursuant to 42 U.S.C. § 1396r(e)(7)(B)(ii)(II) and 42 C.F.R. §§ 483.120(a)(2) and 483.136. The parties agree to work together in good faith to achieve this result and as such agree as follows:
1. Within thirty (30) days of entry of this settlement agreement, Defendant will correspond with all nursing facilities that receive MaineCare payments reminding them of their responsibility to screen and identify residents who are known or suspected of having a “related condition” under PASRR Level I. Defendant will seek input from counsel for the Plaintiff Class as to the content and form of the correspondence before sending the correspondence.
2. Within sixty (60) days of entry of this settlement agreement, Defendant will perform a program review of the PASRR Level II process for the Plaintiff Class, to determine if the process it or its agents, including but not limited to APS Healthcare, uses, complies with the requirements of federal regulations. Defendant will submit the information relied upon, to the extent permitted by law, court order or release, and results of its program review to counsel for the Plaintiff Class at the conclusion of the review.
3. Within forty-five (45) days after receipt by counsel for the Plaintiff Class of the results of Defendant’s program review, experts for the Plaintiff Class shall provide input to Defendant and consult with Defendant on developing a corrective plan, if necessary. If the parties are unable to agree on a corrective plan, or the necessity of such a plan, within 150 days of the date of entry of this settlement agreement then either party may seek to have the Court mediate the dispute.
4. Once a revised PASRR Level II process is in place, if necessary, Defendant will direct the PASRR Level II Evaluation of all identified Plaintiff Class members in compliance with 42 C.F.R. § 483.136 to be completed within sixty (60) days, unless impracticable.
5. Within 30 days of a PASRR Level II Evaluation identifying a member of the Plaintiff Class as needing Specialized Services, Defendant shall provide or arrange for the provision of Specialized Services as defined herein and in 42 U.S.C. § 1396r(e)(7)(G)(iii) and 42 C.F.R. § 483.120(a)(2) and as identified by the PASRR Process for the member.
6. Defendant shall assign a complex case manager to review the Specialized Services and Evaluations that Defendant and experts for the Plaintiff Class have identified as of the date of this settlement agreement as needed by the three (3) Named Plaintiffs, and ensure that the Evaluations and Specialized Services will be provided to the extent available within thirty (30) days from the date of this settlement agreement. The complex case manager will also seek providers for Specialized Services if no providers are currently available so that these Specialized Services will be provided promptly. For those recommended Specialized Services that are not coverable by MaineCare, Defendant will make good faith efforts to arrange the provision of such services.
IV. CASE MONITORING SERVICES
5

1. Within thirty (30) days of entry of this settlement agreement, Defendant shall assign a case monitor to each member of the Plaintiff Class. The case monitor will facilitate and monitor the provision or arrangement of Specialized Services to Plaintiff Class members as required by 42 C.F.R. § 483.120(b).
2. Within sixty (60) days of entry of this settlement agreement, Defendant shall establish a Complex Case Group to be chaired by a Deputy Commissioner or other official within the Commissioner’s office. The group will consist of persons from the office of the Office of Adults with Cognitive and Physical Disability Services, the Office of Elder Services, the Office of Adult Mental Health Services, and the Office of MaineCare Services and representatives as are deemed appropriate by the Commissioner. The Complex Case Group shall review any difficult or unusual cases referred to it by the case monitors to determine what Specialized Services would meet the needs of the Plaintiff Class members identified in the member’s PASRR Level II Evaluation. The Complex Case Group shall meet at least monthly.
V. CONSULTATION WITH PLAINTIFFS’ COUNSEL
1. Throughout the process of implementing the terms of this settlement agreement, the parties agree to cooperate in good faith. Defendant agrees to, among other things, provide timely information to counsel for the Plaintiff Class, including waiver applications, state plan amendments, procedures to implement provisions of this settlement agreement, to ensure that Plaintiffs’ counsel are able adequately to monitor implementation of this settlement agreement. Defendant shall consult with Plaintiffs’ counsel about the adoption of any necessary Rules designed to implement this settlement agreement, including but not limited to, any Rules regarding the establishment and operation of ICFs-ORC and the HCBW and any Rules related to the provision of Specialized Services. Such consultation includes soliciting comments from counsel for the Plaintiff Class and working with counsel for the Plaintiff Class on the development of Rules prior to engaging in formal rulemaking pursuant to the Maine Administrative Procedure Act.
2. Absent a court order otherwise providing for the release of information to counsel for the Plaintiff Class regarding members of the Plaintiff Class, as provided below, Defendant shall send a release of information to identified members of the Plaintiff Class so that they may consent, if they so choose, to release of their identities and protected health information to counsel for the Plaintiff Class.
3. To ensure that Plaintiffs’ counsel are able adequately to monitor implementation of this settlement agreement Defendant shall provide the following information regarding the members of the Plaintiff Class, to the extent authorized by law, court order or release, to counsel for the Plaintiff Class within 30 days of the Department receiving (i) all PASRR Level I Screens that indicate that member is suspected of having a related condition; (ii) all PASRR Level II Evaluation Reports, including all information relied upon in conducting the PASRR Level II Evaluation, and all notes compiled in conducting the
6

PASRR Level II Evaluation; (iii) all offers of non-nursing facility placements made to a member of the Plaintiff Class. Upon counsel for the Plaintiff Class’s request for additional information regarding an individual member of the Plaintiff Class, the Defendant shall provide any and all information reasonably requested within thirty (30) days of such a request, to the extent authorized by law, court order or release.
VI. NOTICE TO CLASS MEMBERS
1. The parties agree to provide appropriate notice to the Plaintiff Class subject to approval by the court. That notice shall include an individual notice given to each currently known member of the Plaintiff Class and to any new members of the Plaintiff Class identified during the term of this settlement agreement. Furthermore, a one-time notice shall be provided to all nursing facilities in Maine regarding the terms of the settlement agreement.
2. The parties will collaborate to draft a notice that shall be phrased in simple, non-legal language and that shall include the essential terms of the settlement and the names and contact information for counsel for the Plaintiff Class.
3. The notice to known members of the Plaintiff Class and to the nursing facilities and home health agencies shall be sent out no later than thirty (30) days after the court approves the notice.
4. Counsel for the Plaintiff Class will by motion seek a protective order to obtain from the Defendant the names, addresses, and telephone numbers of members of the Plaintiff Class, and of their guardians, if any, and any and all information and/or documents in Defendant’s possession regarding any member of the Plaintiff Class. Defendant will, as required by 42 C.F.R. § 431.306(f), notify the Court of the applicable statutory provisions, policies, and regulations restricting disclosure. Defendant will, however, comply with any court order that requires it to disclose information about members of the Plaintiff Class. Absent a court order, the parties will collaborate in good faith to draft an authorization for release of information to be sent to identified members of the Plaintiff Class so that they may consent, if they so choose, to release of their protected health care information to counsel for the Plaintiff Class. The Defendant will send the authorization to identified members of the Plaintiff Class with the notice described above.
VII. LEGISLATIVE APPROPRIATION
1. In entering into this agreement, the Department undertakes to use its best efforts and act in good faith to carry out the terms of this agreement, including proposing a legislative appropriation of funds necessary to fulfill its obligations under this agreement. Plaintiffs hereby acknowledge that the Legislature has exclusive control over the appropriation of monies to fund the expenditures contemplated in this agreement, that the Department cannot and does not control the appropriation of funds, and that the Department cannot guarantee that sufficient funds will be appropriated to allow it to perform its obligations under this agreement.
7

2. Defendant shall make reasonable efforts to inform plaintiffs’ counsel of the status of legislative appropriation of funds necessary to provide the services specified in this settlement agreement. Defendant shall provide plaintiffs’ counsel with copies of all formal budget proposals submitted to the Governor’s office and the Department of Administrative and Financial Services (DAFS) that affect funding for the services specified in this settlement agreement. If the Governor imposes budgetary curtailments, Defendant shall provide to plaintiffs’ counsel copies of all documents submitted to the Governor’s office or DAFS showing the impact, if any, of any such curtailments on funds available for the services specified in this settlement agreement. After the Governor submits a proposed biennial or supplemental budget to the Legislature, the Defendant shall notify plaintiffs’ counsel of any proposals by the Department for funds to provide the services specified in this settlement agreement that were not included in the Governor’s proposed budget. Plaintiffs’ counsel may make reasonable requests for additional information in the Department’s possession otherwise available under the Freedom of Access Act (FOAA) relating to budgeting of funds for services specified in this settlement agreement without the necessity of submitting a formal FOAA request.
3. In the event that budgetary cuts make it impossible to fulfill the terms of this settlement agreement, then the parties agree to utilize the procedure set forth in Paragraph IX below.
VIII. DISMISSAL AND RETENTION OF JURISDICTION
1. The parties agree to request an order of dismissal pursuant to Rule 41(a)(2), without prejudice, and incorporating by reference the terms of this settlement agreement.
2. If Defendant is able to implement the HCBW without establishing any ICFs-ORC, the parties agree to request that the Court retain jurisdiction solely for the purposes of mediation and enforcement of the terms of the settlement agreement for a period of three years from the date the Court approvesthe settlement agreement.
3. If Defendant is unable to implement the HCBW without establishing any ICFs-ORC, the parties agree to mediate in an attempt to reach an agreement upon a reasonable extension of the retention of the Court’s jurisdiction solely for the purposes of mediation and enforcement of the terms of the settlement agreement.
a. If the parties reach agreement, the parties shall file a joint motion with the Court seeking the agreed-to extension of the retention of the Court’s jurisdiction.
b. If the parties cannot reach agreement after mediation, either party may seek an extension of time of the Court’s jurisdiction solely for the purposes of mediation and enforcement of the terms of the settlement agreement.
IX. MISCELLANEOUS PROVISIONS
8

1. In the event that the parties disagree on the implementation of any of the provisions in the settlement agreement, the parties agree not to seek enforcement of any provision or to void the settlement agreement and/or to initiate litigation without first providing reasonable notification to the other party and seeking a good faith resolution of any disputed matter.
2. In the event that the parties continue to disagree on the implementation of any of the provisions in the settlement agreement after seeking a good faith resolution, the parties may then choose an appropriate course, including moving the Court for enforcement of any provision in the settlement agreement to the extent provided in Section VIII, voiding the settlement agreement and/or initiating litigation.
3. This settlement agreement shall apply solely to the Class of Plaintiffs and services at issue in this lawsuit. By entering into this Settlement Agreement, Plaintiffs do not waive any right to appeal, grieve, or challenge decisions of the Department regarding provision of services to them.
4. In entering into this agreement, the Defendant does not admit liability to the Class of Plaintiffs or any other persons and specifically reserves the right to raise and maintain all of its defenses in any subsequent litigation.

Dated: August 25, 2011

/S/ Jeffrey Neil Young MCTEAGUE HIGBEE 4 Union Park P.O. Box 5000 Topsham, ME 04086 (207) 725-5581 jyoung@mcteaguehigbee.com

/S/ Jack Comart Maine Equal Justice Partners 126 Sewall Street Augusta, ME 04330-6822 (207) 626-7058, ext. 202 jcomart@mejp.org

/S/ Staci K. Converse Peter M. Rice Disability Rights Center 24 Stone Street P.O. Box 2007

9

Augusta, ME 04338 (207) 626-2774 sconverse@drcme.org price@drcme.org
/S/ Martha Jane Perkins National Health Law Program 211 N. Columbia St., Second Floor Chapel Hill, NC 27516 (919) 968-6308 Perkins@healthlaw.org
Attorneys for Plaintiffs
/S/ James E. Fortin Assistant Attorney General Office of the Attorney General Six State House Station Augusta, ME 04333 (207) 626-8800 James.Fortin@maine.gov
/S/ Janine A. Raquet Assistant Attorney General Office of the Attorney General Six State House Station Augusta, ME 04333 (207) 626-8800 Janine.Raquet@maine.gov
Attorneys for Defendant
10

 
 Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT for the
DISTRICT OF MAINE

Jacob Van Meter, Adam Fletcher, by his

)

guardian Gail Fletcher, and Eric Reeves,

)

)

)

Plaintiffs,

)

)

v.

)

)

Brenda Harvey, Commissioner, Maine Department )

Of Health and Human Services,

)

)

Defendant.

)

)

Civil Action No.

COMPLAINT I. Introduction 1. This action is brought by and on behalf of three young men who have been unlawfully confined to nursing facilities for years in violation of their rights under federal law. The Plaintiffs, despite their disabilities, are capable of attending school, working and participating in various community activities, and being contributing members of society. Maine state officials have failed to accommodate Plaintiffs’ disabilities and ensure that they receive appropriate treatment in the most integrated setting possible. The Plaintiffs are currently segregated in nursing facilities, where they do not receive even minimally adequate training, habilitation, or support services, as required by law. The Plaintiffs, therefore, bring this action against Maine’s Commissioner of the Department of Health and Human Services (hereafter the “Defendant”) seeking declaratory and injunctive relief.

1

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 2 of 20 PageID #: 2
2. The Plaintiffs should not be in nursing facilities because they do not require significant nursing care but instead need only supervision or assistance with activities of daily living such as bathing, dressing and eating. The medically necessary services to which Plaintiffs are entitled can and must be provided, under applicable federal law, in integrated community settings.
3. Maine, like most other states, voluntarily participates in the federal Medicaid program. 42 U.S.C. § 1396 – 1396v. As a condition of participation, Maine must ensure that services that are medically necessary for its citizens with disabilities are provided in a reasonably prompt manner and in sufficient amount, duration, and scope to meet the medical and clinical needs of all eligible Medicaid recipients like the Plaintiffs. 42 U.S.C. § 1396a(a)(8), 42 C.F.R. § 440.230(b). This failure to provide Plaintiffs with the programs and supports to which they are entitled has resulted in their deterioration, regression, segregation and unnecessary institutionalization.
4. Alternatively, if the Plaintiffs needed nursing home care, because Plaintiffs have developmental disabilities, they require and are entitled to receive specialized services appropriate to their individual needs, which promote independence and growth, while they remain confined in nursing facilities. The Nursing Home Reform Amendments to the federal Medicaid Act (hereafter “NHRA”) require that individuals with developmental disabilities must be screened to determine that they actually need nursing services prior to their admission to nursing facilities. 42 U.S.C. § 1396r(e). These amendments also require that the state “provide or arrange for the provision of” specialized services in nursing facilities or in the community to individuals with developmental disabilities, including the Plaintiffs who have cerebral palsy. 42
2

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 3 of 20 PageID #: 3
C.F.R. § 483.120. The Plaintiffs have received no specialized services and continue to live in nursing facilities segregated from their communities.
5. In segregating Plaintiffs in nursing facilities and failing to afford them equal access to community services and supports, the Defendant contravenes the integration and nondiscrimination mandates of Title II of the Americans with Disabilities Act (hereafter “ADA”), 42 U.S.C. § 12131-12134. and the Rehabilitation Act of 1973 (hereafter “Rehab Act”), 29 U.S.C. § 794. Likewise, the Defendant violates the relevant provisions of the Social Security Act and its implementing regulations in unnecessarily confining Plaintiffs to nursing facilities and failing to provide them with specialized services appropriate to their disabilities.
6. This case is brought to remedy these violations of federal law and to ensure that Jacob Van Meter, Adam Fletcher, and Eric Reeves receive appropriate services to which they are entitled under the Social Security Act, 42 U.S.C. § 1396a - 1396v and that these services are provided in an integrated community setting, as required by the ADA, 42 U.S.C. § 12133, and the Rehab Act, 28 C.F.R. § 41.51(d).
II. Jurisdiction and Venue 7. This action is brought pursuant to Title II of the ADA, 42 U.S.C. § 12133, and Section 504 of the Rehab Act, 29 U.S.C. § 794. The Defendant is a public entity subject to Title II of the ADA and a recipient of federal financial assistance under Section 504 of the Rehab Act. 8. This action is also brought pursuant to 42 U.S.C. § 1983 to redress the deprivation of rights, privileges, and immunities guaranteed by federal law and the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
3

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 4 of 20 PageID #: 4
9. 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, and Rule 65 of the Federal Rules of Civil Procedure.
10. Venue is proper in the District of Maine 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 State of Maine.
III. Parties 11. Plaintiff Jacob Van Meter is twenty-six (26) years old and resides in a nursing facility located in the Town of Ellsworth, County of Hancock, in the State of Maine. 12. Jacob was born with cerebral palsy, a neurological disorder that has profoundly and permanently affected his body movement and muscle coordination. As a result of this disability, Jacob requires assistance with his activities of daily living, including dressing, feeding, and mobility, among other activities. Despite Jacob’s disability, his cognitive functions are not limited. He completed high school and is now taking college courses. 13. While in high school, Jacob, a MaineCare recipient, needed assistance with his activities of daily living. However, due to limitations in Maine’s MaineCare program, he was not able to receive the level of services he needed while remaining at home. Jake was left with little choice but to enter into a nursing home where he has lived for the past eight (8) years. During those eight years he has never been screened for, found eligible for, or received specialized services in accordance with the NHRA, 42 U.S.C. § 1396r. 14. With appropriate supports, Jacob could safely live in a non-institutional, residential community setting.
4

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 5 of 20 PageID #: 5
15. Plaintiff Adam Fletcher is age twenty-eight (28) and for the past three (3) years he has been placed in a facility located in Braintree, Massachusetts. He is a Maine resident who receives his health care services through the MaineCare program. He has cerebral palsy, which significantly limits his physical abilities, and as such he requires assistance with his activities of daily living.
16. Prior to going to the present facility, Adam graduated from high school, was a member of the National Honor Society, and planned to attend college. The Defendant has never assessed Adam as needing specialized services under the NHRA, although Adam meets the criteria to receive such services. Adam would like to return to Maine to live relatively independently in the community where he could resume his studies and get a job.
17. With appropriate supports, Adam could safely live in a non-institutional, residential community setting.
18. Plaintiff Fletcher’s claim is brought on his behalf through his legal guardian, Gail Fletcher. Both Adam Fletcher and Gail Fletcher’s legal residence is in the Town of Ellsworth, County of Hancock, in the State of Maine.
19. Plaintiff Eric Reeves is age thirty-three (33) and resides at a nursing home in the Town of Penobscot, Hancock County, in the State of Maine. He is enrolled in the MaineCare program, which provides for his health care services. He has cerebral palsy, which substantially limits his ability to care for himself; he needs assistance with activities of daily living.
20. Prior to going to the present facility, Eric lived in various nursing homes and in his community. While living in the community, Eric held a job for approximately five years. The Defendant has never assessed Eric as needing specialized services under the NHRA, although Eric meets the criteria to receive such services. Like Jacob and Adam, Eric would like
5

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 6 of 20 PageID #: 6
to live relatively independently in the community where he could resume his studies and get a job.
21. With appropriate supports, Eric could safely live in a non-institutional, residential community setting.
22. For the past several years, the Plaintiffs in this case have repeatedly sought to move out of the nursing facilities and into a home in the community that could meet their physical needs and allow them to live more independently. The Plaintiffs have attempted to engage in an interactive process to seek and to have the Defendant provide them with services in a community-based, integrated setting. The Plaintiffs also have formed an organization, JacobBrewerHome.Org and are actively seeking ways to leave the nursing facility. See http://jacobbrewerhome.org/index.php?p=1_3_About.
23. Defendant Brenda Harvey is the Commissioner of the Department of Health and Human Services for the State of Maine. Her principal place of business is in the City of Augusta, County of Kennebec, in the State of Maine. She has overall responsibility for administrating Maine’s Medicaid Program, MaineCare, and ensuring compliance with the Medicaid Act and the NHRA. It is the policies, practices and procedures of the Department that violate the rights of the Plaintiffs to receive certain specialized services and to receive such services in the least restrictive setting. She is responsible for ensuring that the rules, policies and practices of the Maine Department of Health and Human Services are conducted in compliance with the ADA. Her actions, relevant hereto, have been taken under the color of state law. She is sued in her official capacity only.
6

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 7 of 20 PageID #: 7
IV. Factual Allegations The State-Federal Medicaid Program
24. Medicaid is a jointly funded state and federal program that provides medical services to low-income persons pursuant to Title XIX of the Social Security Act. 42 U.S.C. § 1396-1396v.
25. State participation in the Medicaid program is optional. States choosing to receive federal matching funds for their Medicaid program must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the U.S. Department of Health and Human Services (hereafter “HHS”). 42 U.S.C. § 1396, 42 C.F.R. §§ 430-484. The Centers for Medicare and Medicaid Services (CMS) is responsible for the administration of the Medicaid program.
26. The state Medicaid agency may place appropriate limits on services based on such criteria as medical necessity or on utilization control procedures.
27. Maine has chosen to participate in the Medicaid program. It has prepared a state plan, which CMS has reviewed and approved. That plan, along with relevant federal law and regulations, forms the foundation for the Maine’s Medicaid program and establishes the State's obligations and responsibilities to Medicaid recipients. DHHS and its Commissioner, Brenda Harvey, administer the Medicaid program.
28. States must cover nursing facility services as a part of their Medicaid programs. 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(4)(A).
29. DHHS has failed to coordinate the activities, programs, and resources of the agencies under its control in order to ensure that the Plaintiffs receive medically necessary services, particularly specialized services in nursing facilities. In addition, DHHS has failed to
7

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 8 of 20 PageID #: 8
take reasonable actions to prevent the Plaintiffs from being inappropriately admitted to and retained in nursing facilities, through the actions and inactions of its agencies. Nursing Facilities and the Nursing Home Reform Amendments to the Social Security Act
30. A nursing facility is an institution which primarily provides: (1) nursing care; (2) rehabilitation services for those who are sick, injured or disabled; and (3) health related care and services to individuals who, because of their mental or physical condition, require care and services which can only be provided in an institutional setting. 42 U.S.C. § 1396r(a)(1)(A-C).
31. Nursing facilities’ services are defined as “services which are ... required to be given an individual who needs ... on a daily basis nursing care (provided by or requiring the supervision of nursing personnel) or other rehabilitation services which as a practical matter can only be provided in a nursing facility on an inpatient basis.” 42 U.S.C. § 1396d(f) (emphasis added).
32. In 1987, Congress passed the Nursing Home Reform Amendments (NHRA) to the Medicaid Act to address the widespread problem of warehousing people with psychiatric and developmental disabilities in the Nation’s nursing facilities. 42 U.S.C. § 1396r. Congress enacted the Pre-Admission Screening and Annual Resident Review (“PASARR”) provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities.
33. The PASARR review is designed to determine whether an individual is appropriate for admission because he or she needs the level of nursing services that can only be provided in a nursing facility. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. § 483.126. The PASSAR review must also identify whether a person is suspected of having a mental illness, mental retardation, or a related condition. 42 U.S.C. § 1396r(e)(7)(B)(i); 42 C.F.R. § 483.128.
8

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 9 of 20 PageID #: 9
34. “Related conditions” are severe, chronic disabilities attributable to cerebral palsy or epilepsy or any other condition (other than mental illness) found to be closely related to mental retardation. 42 C.F.R. § 435.1010.
35. Following admission, annual reviews are to be conducted to determine whether the individual continues to need a nursing level of care and to require confinement in a nursing facility. The initial and annual PASARR evaluations must also determine whether specialized services are necessary. 42 U.S.C. §§ 1396r(b)(3)(F)(i), 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.128, 483.132, 483.134, 483.136. Specialized services consist of an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services that are aimed at allowing the individual to function as independently and with as much self-determination as possible, and services designed to prevent or decelerate regression and loss of abilities. 42 U.S.C. § 1396r(e)(7)(G)(iii); 42 C.F.R. §§ 483.120,483.440(a)(1). The state is required to “provide for (or arrange for the provision of)” needed specialized services. 42 U.S.C. § 1396r(e)(7)(C)(i)(IV); 42 C.F.R. § 483.120.
36. The PASARR review must assess whether the individual’s needs could be met in the community or whether she/he requires institutionalization. 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. § 483.132. The review must document the individual’s need for assistance with activities of daily living; level of sensor motor development; social development; academic and educational development; ability to live independently, and vocational development. See 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. § 483.136. The assessment must determine whether it would be possible to meet the individual’s needs through the provision of specialized services in the community as an alternative to nursing facility placement. 42 U.S.C. § 1396r(e)(7)(C)(i)(IV); 42 C.F.R. § 483.132.
9

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 10 of 20 PageID #: 10
37. If the PASARR review determines that a resident does not require nursing facility services, but instead requires services in a non-institutional setting, states have a mandatory duty to provide or arrange for the provision of these specialized services. 42 U.S.C. §§ 1396r(e)(7)C)(i); 1396r(e)(7)(C)(ii); 42 C.F.R. §§ 483.118(c); 483.120(b).
38. Long-term residents who have continuously resided in a nursing facility for at least thirty (30) months must be given the choice of receiving these specialized services while remaining in the facility or receiving the services in an alternative community setting. 42 U.S.C. § 1396r(e)(7)(C)(i)(II); 42 C.F.R. § 483.118(c)(1)(i).
39. DHHS licenses nursing facilities in Maine. DHHS is solely responsible for administering the PASSAR program and providing individuals with specialized services. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100-.138. Because these nursing facilities participate in the federal Medicaid program, DHHS reviews and certifies these facilities pursuant to the federal requirements for nursing facilities under 42 C.F.R. §§ 483.1-483.75. DHHS, as part of its responsibility for surveying, inspecting, and certifying nursing facilities, has failed to identify the lack of compliance with the PASARR provisions of the NHRA and its implementing regulations. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100-.138. Specifically, DHHS has not documented the failure to prevent Plaintiffs from unnecessary admission to nursing facilities, identify Plaintiffs as eligible for specialized services, and to provide them such specialized services.
40. The Plaintiffs do not need intensive nursing services that can only be provided in a nursing facility, nor do they require an institutional setting. 42 C.F.R § 483.132. Moreover, they do not receive those specialized services or supports in the community as required by the Medicaid Act and regulations. 42 C.F.R. §§ 483.120, 483.132, 483.136.
10

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 11 of 20 PageID #: 11
41. Furthermore, even if the Plaintiffs needed intensive nursing services, they are not receiving specialized services or supports in the nursing facility as required by the Medicaid Act and regulations. 42 C.F.R. §§ 483.120, 483.132, 483.136.
42. The Plaintiffs could live and function in an alternative community setting if they were provided with specialized support services appropriate to meet their needs.
43. Defendant has failed to ensure that the Plaintiffs receive rehabilitative community developmental disability support services; unnecessarily institutionalized them; and, instead, provided them with severely limited and inappropriately restrictive nursing services where they are segregated from the community, their family, and their friends. If Defendant offered Plaintiffs appropriate community developmental disability support services outside of the nursing facility, the Plaintiffs could live in alternative, integrated community settings. Nonetheless, Defendant has not provided Plaintiffs with adequate and appropriate, medically necessary services in a community setting.
44. None of the Plaintiffs are currently receiving specialized services through the PASARR program or through any other program.
45. None of the Plaintiffs have been offered specialized services, as defined in 42 C.F.R. §§ 483.120, 483.440, while living in the nursing facility. Likewise, none of the Plaintiffs have been offered the choice of receiving specialized services and the other services that they need, in a community setting suitable to meet their needs.
46. The Defendant’s current rules, policies and procedures result in the Plaintiffs unlawfully being found not eligible for specialized services through the PASARR program.
11

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 12 of 20 PageID #: 12
The Americans with Disabilities Act And Its Integration Mandate 47. On July 12, 1990, Congress enacted the ADA, 42 U.S.C. § 12101-12213 (ADA),
establishing the most important civil rights laws for persons with disabilities in our nation's history.
48. Congress stated in its findings that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
49. Congress found that “discrimination against individuals with disabilities persists in … institutionalization … and access to public services.” 42 U.S.C. § 12101(a)(3). It also found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion . . . , segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
50. Congress further concluded that “[i]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7).
51. A major purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1)&(2).
12

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 13 of 20 PageID #: 13
52. Title II of the ADA provides that “no qualified individual with a disability shall, reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
53. “Discrimination” under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization. As the Senate Labor and Human Relations Committee observed: ”One of the most debilitating forms of discrimination is segregation imposed by others ... Discrimination also includes exclusion, or denial of benefits, services, or other opportunities that are as effective and meaningful as those provided to others.” S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (emphasis added). Thus, Congress recognized that “discrimination” against persons with disabilities entails more than just disparate treatment, and that simply requiring evenhanded treatment would not remedy all discrimination.
54. The regulations implementing the ADA require that: “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.§ 35.130(d). The affirmative duty embodied in 28 C.F.R.§ 35.130(d) stems from the recognition that the failure to integrate individuals with disabilities in society (for example, through unnecessary institutionalization) constitutes unlawful discrimination under the ADA.
55. Each of the Plaintiffs would benefit from access to community-based services, but is forced to remain in an overly restrictive nursing facility due to the Defendant’s denial of community-based services.
56. Each of the Plaintiffs strongly desires to leave the nursing facility and live in a setting that is more integrated in the community, where they can have greater interaction with
13

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 14 of 20 PageID #: 14
their peer community, people of their age, and where they can live independent and fulfilling lives.
57. Defendant has not taken reasonable actions to determine and ensure that the MaineCare program and other disability support services are administered in the most integrated setting appropriate for Plaintiffs.
58. Defendant’s actions, taken under the color of state law, have deprived and will continue to deprive the Plaintiffs of their federally protected rights.
59. The Plaintiffs have no adequate remedy at law. Section 504 of The Rehabilitation Act
60. Section 504 of the Rehabilitation Act of 1973 provides, “No otherwise qualified individual with a disability in the United States …, shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794.
61. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
62. Regulations implementing Section 504 prohibit recipients of federal financial assistance from “[u]tiliz[ing] criteria or methods of administration … (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the … effect of substantially impairing accomplishment of the recipients’ program with respect to handicapped persons.” 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i).
14

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 15 of 20 PageID #: 15
V. Legal Claims 63. In her capacity as the Commissioner of the Maine Department of Health and Human Services, and under color of law, the Defendant has subjected the Plaintiffs to prolonged and unnecessary institutionalization, without providing needed and required services, resulting in violations of the ADA, the Rehabilitation Act, the Medicaid Act and the Nursing Home Reform Act.
Count I Americans With Disabilities Act: Integration Mandate 64. The Plaintiffs re-allege paragraphs 1 through 63 as though fully set forth herein. 65. Each of the Plaintiffs is “a qualified individual with a disability” within the meaning of 42 U.S.C. § 12131(2). Each of the Plaintiffs has a disability, cerebral palsy, which significantly limits his life activities in profound ways, including mobility, the ability to provide self-care, and the ability to communicate, among other major life activities. 66. Defendant’s denial of Medicaid coverage for the community based or specialized services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that are appropriate to their needs constitutes unlawful discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 130.51(d).
Count II Americans With Disabilities Act: Methods of Administration 67. The Plaintiffs re-allege paragraphs 1 through 66 as though fully set forth herein. Regulations implementing Title II of the ADA provide that “a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the
15

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 16 of 20 PageID #: 16
basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities ....” 28 C.F.R. § 35.130(b)(3).
68. The Defendant has utilized criteria and methods of administering Maine’s long-term care system, including the nursing home program, that have subjected the Plaintiffs to unnecessary and unjustified segregation in violation of the ADA integration mandate, including (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community, and (2) failing to ensure that Plaintiffs have access to Medicaid-covered services and other specialized services that will meet their needs in the community.
Count III Americans With Disabilities Act: Discrimination Based on Nature and Severity of Disability 69. The Plaintiffs re-allege paragraphs 1 through 68 as though fully set forth herein. 70. The federal regulations implementing Title II of the ADA provide that public entities such as the Defendant may not “deny a qualified individual with a disability the opportunity to participate or benefit” from the service and cannot “provide a … service which is not as effective in affording equal opportunity … gain the same benefit … as that provided to others.” 28 C.F.R. § 35.130(b)(i, iii, iv). 71. The Defendant’s PASARR program totally excludes Plaintiffs from receiving specialized services by virtue of their developmental disabilities. This failure relegates Plaintiffs to segregated facilities in violation of Title II of the ADA and its implementing regulations.
Count IV Section 504 of the Rehabilitation Act 72. The Plaintiffs re-allege paragraphs 1 through 71 as though fully set forth herein.
16

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 17 of 20 PageID #: 17
73. The Plaintiffs are qualified individuals with disabilities under Section 504 of the Rehabilitation Act. 29 U.S.C. § 794(a).
74. The Maine Department of Health and Human Services receives federal financial assistance.
75. The regulations accompanying Section 504 provide that: “[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
76. These regulations further prohibit recipients of federal financial assistance from “utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons.” 28 C.F.R. § 41.51(b)(3); 45 C.F.R. § 84.4(b).
77. The Plaintiffs qualify for the Defendant’s program of long-term rehabilitative services, and would benefit from specialized services provided in a community based setting. Although the community is the most integrated setting appropriate to meet their needs, the Plaintiffs remain institutionalized in nursing facilities. By denying them access to existing community programs and by requiring that Plaintiffs be confined in the segregated nursing facilities in order to receive needed rehabilitative services, the Defendant violates Section 504.
78. The Defendant’s criteria and methods of administering the system of long-term services for people with cerebral palsy subjects Plaintiffs to illegal discrimination and unnecessary segregation.
17

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 18 of 20 PageID #: 18
Count V Nursing Home Reform Act Amendments 79. The Plaintiffs re-allege paragraphs 1 through 78 as though fully set forth herein. 80. The NHRA requires that states develop and implement a PASARR program for all applicants to, and residents of, Medicaid certified nursing facilities. 42 U.S.C. § 1396r(e)(7 81. The nursing homes in which Plaintiffs have been placed are Medicaid-certified facilities. 82. Defendant has failed to develop and implement a PASARR program sufficient to prevent the admission of Plaintiffs to nursing homes. 83. Defendant likewise has failed to assure that Plaintiffs, who are in nursing homes, receive specialized services for their condition to permit Plaintiffs to progress towards a more integrated setting. 84. Defendant’s policies and practices as described herein, and which have been repeated and knowing, conflict with Plaintiffs’ federal rights, as set forth above, and this violation entitles Plaintiffs to relief under 42 U.S.C. §1983.
Request For Relief WHEREFORE, the Plaintiffs respectfully request that this Court: 1. Grant preliminary and permanent injunctive relief requiring the Defendant to:
(a) promptly provide the Plaintiffs with integrated treatment and specialized services and supports in a community setting;
(b) promptly provide specialized services to Plaintiffs, in order to promote their independence and provide opportunities for community living and/or prevent the deterioration of their basic functioning; and
18

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 19 of 20 PageID #: 19
(c) amend its policies, practices and procedures to ensure that Plaintiffs are promptly screened for and provided with on-going treatment services and specialized services with reasonable promptness;
2. Issue a declaratory judgment stating that the Defendant has violated the Americans with Disabilities Act, the Rehabilitation Act, the Medicaid Act and the Nursing Home Reform Act in her failure to: provide specialized services to Plaintiffs; prevent the unnecessary segregation and institutionalization of Plaintiffs; and provide community-based services to Plaintiffs;
3. Award the Plaintiffs costs of this litigation and their reasonable attorneys’ fees; and 4. Grant such further and other relief as may be just and proper.
Dated: Respectfully submitted, /s/ Staci Converse /s/ Sean Ociepka /s/ Peter Rice Staci Converse Sean Ociepka Peter Rice Disability Rights Center 24 Stone Street P.O. Box 2007 Augusta, ME 04338-2007 (207) 626-2774 sconverse@drcme.org sociepka@drcme.org price@drcme.org
/s/ Jack Comart
19

Case 1:09-cv-00633-NT Document 1 Filed 12/18/09 Page 20 of 20 PageID #: 20 Jack Comart Maine Equal Justice Partners, Inc. 126 Sewall Street Augusta, ME 04330-6822 (207) 626-7058, ext. 202 jcomart@mejp.org /s/ Jane Perkins Jane Perkins National Health Law Program 211 N. Columbia St., 2d Floor Chapel Hill, NC 27514 (919) 968-6308 Perkins@healthlaw.org
20

 
 Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 1 of 24 PageID #: 204

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JACOB VAN METER, ADAM FLETCHER, by and through his guardian GAIL FLETCHER, and ERIC REEVES, on behalf of themselves and other similarly situated individuals
Plaintiffs, v.
BRENDA HARVEY, COMMISSIONER, MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant.

) ) ) ) ) ) ) ) ) Civil Action No. 1:09-cv-00633 ) ) ) ) )

FIRST AMENDED CLASS ACTION COMPLAINT (INJUNCTIVE RELIEF SOUGHT) I. Introduction
This action is brought by Plaintiffs Jacob Van Meter, Adam Fletcher, and Eric Reeves (“Named Plaintiffs”) and others similarly situated. Named Plaintiffs all have cerebral palsy and are entitled to Medicaidfunded health care and supportive services. Despite their disabilities, the Named Plaintiffs and members of the putative class are capable of living in their own homes or other community settings. Nevertheless, Maine state officials have failed to accommodate the disabilities of the Named Plaintiffs’ and others similarly situated to ensure that they receive treatment and services in the most integrated setting appropriate. Thus, the Named Plaintiffs and others similarly situated have been forced to live in the most restrictive settings—nursing facilities both in and outside Maine. Additionally, contrary to federal law, state officials have failed to ensure that the Named Plaintiffs and members of the putative class receive adequate training, habilitation, or support services while living in the nursing facilities. Accordingly, the Named Plaintiffs bring this action against Brenda Harvey in

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 2 of 24 PageID #: 205
her capacity as Maine’s Commissioner of the Department of Health and Human Services (“Defendant”) seeking declaratory and injunctive relief.
Maine voluntarily participates in the federal Medicaid program. 42 U.S.C. §§ 1396-1396w-2. As a condition of participation, Maine must ensure that medically necessary services are provided in a reasonably prompt manner and in sufficient amount, duration, and scope to meet the medical and clinical needs of all eligible Medicaid recipients like the Named Plaintiffs. 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B). Nursing facility services are among those that must be covered under the Medicaid program. 42 U.S.C. § 1396d(a)(4)(A). In addition, the Pre-Admission Screening and Resident Review provisions (“PASRR”) of the Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r, part of the Medicaid Act, requires the Defendant to evaluate individuals who have mental retardation or “related conditions” and who have been deemed eligible to live in nursing facilities to determine what services, if any, they require that might permit them to live in an integrated community setting. See 42 U.S.C. § 1396r(e)(&)(B)(ii); 42 C.F.R. §§ 483.126, 483.130, 483.132. The NHRA also requires that the Defendant evaluate those individuals who will remain in the nursing facility and to provide such individuals with appropriate training, habilitation, and support services. 42 U.S.C. § 1396r(e)(7)(C)(i)(IV); 42 C.F.R. §§ 483.120, 483.130. “Related conditions” as defined by regulation expressly includes cerebral palsy and epilepsy. 42 C.F.R. § 435.1010.
Even though Defendant conducted the required PASRR evaluations of the three Named Plaintiffs after they instituted this action, the Defendant subsequently has failed to implement the recommendations in the evaluations and provide the services the Named Plaintiffs need. The Defendant has not conducted the required PASRR evaluations of most, if not all, members of the putative class and has failed to provide them with the services that they need. As a result, all members of the putative class are being compelled to reside in nursing facilities, and some of the members of the putative class would be able, with appropriate services, to elect to live in a more integrated community setting.
2

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 3 of 24 PageID #: 206
In segregating the Named Plaintiffs and similarly situated individuals in nursing facilities and failing to afford them equal access to community services and supports, Defendant contravenes the integration and nondiscrimination mandates of Title II of the Americans with Disabilities Act (the“ADA”), 42 U.S.C. § 12131-12134, the Rehabilitation Act of 1973 (the “Rehab Act”), 29 U.S.C. § 794, the Nursing Home Reform Act, 42 U.S.C. § 1396r, and the Civil Rights of 1871, 42 U.S.C § 1983 (“Section 1983”).
The Named Plaintiffs bring this action on behalf of themselves and other similarly situated individuals who are MaineCare eligible, have a related condition, apart from autism, as defined by federal Medicaid law, and who are or should be screened for admission to nursing facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. §§ 483.100-.138. The Named Plaintiffs seek declaratory and injunctive relief under the ADA, the Rehab Act, the Medicaid Act, 42 U.S.C. §§ 1396a(a)(8), 1396r, and the Civil Rights Act of 1871, 42 U.S.C. § 1983 to compel Defendant to: comply with applicable Medicaid requirements, including the PASRR provisions; evaluate them and other similarly situated individuals; provide them and other similarly situated individuals with appropriate training, habilitation, and support services; and permit them and other similarly situated individuals to live in an integrated community setting if appropriate, and if they so elect, rather than in nursing facilities.
II. Jurisdiction and Venue 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4); pursuant to 28 U.S.C. § 2201; pursuant to 28 U.S.C. § 2202; pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; pursuant to Title II of the ADA, 42 U.S.C. § 12133; pursuant to 42 U.S.C. § 1983; and pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure. 2. Venue is proper in the District of Maine 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 State of Maine.
3

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 4 of 24 PageID #: 207

III. Parties

A. The Named Plaintiffs

3. Plaintiff Jacob Van Meter is a twenty-seven (27) year-old MaineCare recipient who resides in a

nursing facility located in the Town of Ellsworth, County of Hancock, in the State of Maine.

4. Plaintiff Van Meter has cerebral palsy, a neurological disorder that profoundly and permanently

affects his body movement and muscle coordination. As a result of this disability, Plaintiff Van Meter requires

assistance with his activities of daily living, including dressing, feeding, and mobility, among other activities.

Despite Plaintiff Van Meter’s disability, his cognitive functions are not limited. He completed high school and is

now taking college courses.

5.

For more than seven years, Defendant failed to evaluate Plaintiff Van Meter to determine his

need for specialized services and to determine whether alternate community placements were appropriate for

him, as required by the NHRA, 42 U.S.C. § 1396r. As a result, Plaintiff Van Meter has been compelled

unnecessarily to reside in a nursing facility for the past eight (8) years.

6. On July 9, 2010, as a result of his identification in this action, Defendant informed Plaintiff Van

Meter that it had found him eligible to receive specialized services and for the first time specified the specialized

services that Defendant alleges he is entitled to receive. To date, however, Defendant has not provided Plaintiff

Van Meter with any of the specialized services it identified that he was entitled to receive. Defendant has not

evaluated whether there is or could be an alternative community placement for Plaintiff Van Meter.

7. Plaintiff Adam Fletcher’s claim is brought on his behalf through his legal guardian, Gail Fletcher.

Gail Fletcher’s legal residence is in the Town of Ellsworth, County of Hancock, in the State of Maine.

8. Plaintiff Fletcher is a twenty-eight (28) year-old MaineCare recipient who resides in a nursing

facility located in the Town of Freeport, County of Cumberland, State of Maine. Up until this past week, for the

past three (3) years, he had resided in a facility located in Braintree, Massachusetts, having been placed there

by Defendant

4

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 5 of 24 PageID #: 208
9. Plaintiff Fletcher has cerebral palsy, a neurological disorder that has profoundly and permanently affected his body movement and muscle coordination. As a result of his disability, Plaintiff Fletcher requires assistance with his activities of daily living including dressing, feeding, and mobility, among other activities. Despite Plaintiff Fletcher’s disability, his cognitive functions are not limited. Prior to entering a nursing facility, Plaintiff Fletcher graduated from high school, was a member of the National Honor Society, and planned to attend college.
10. For more than three years, Defendant failed to evaluate Plaintiff Fletcher to determine his need for specialized services and to determine whether alternate community placements were appropriate for him, as required by the NHRA, 42 U.S.C. § 1396r. As a result, Plaintiff Fletcher has been compelled unnecessarily to reside in a nursing facility for the past three (3) years.
11. On July 9, 2010, as a result of his identification in this action, Defendant informed Plaintiff Fletcher that it had found him eligible to receive specialized services and for the first time specified the specialized services that Defendant alleges he is entitled to receive. To date, however, Defendant has not provided Plaintiff Fletcher with any of the specialized services it identified that he was entitled to receive. Defendant has not evaluated whether there is or could be an alternative community placement for Plaintiff Fletcher.
12. Plaintiff Eric Reeves is a thirty-four (34) year-old MaineCare recipient who resides in a nursing home in the City of Bangor, County of Penobscot, State of Maine.
13. Plaintiff Reeves has cerebral palsy, a neurological disorder that has profoundly and permanently affected his body movement and muscle coordination. As a result of his disability, Plaintiff Reeves requires assistance with his activities of daily living including dressing, feeding, and mobility, among other activities. Despite Plaintiff Reeves’ disability, his cognitive functions are not limited. Prior to entering the present facility, Plaintiff Reeves lived in various nursing homes and in his community. While living in the community, Plaintiff Reeves held a job for approximately five years.
5

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 6 of 24 PageID #: 209
14. For more than two years, Defendant failed to evaluate Plaintiff Reeves to determine his need for specialized services and to determine whether alternate community placements were appropriate for him, as required by the NHRA, 42 U.S.C. § 1396r. As a result, Plaintiff Reeves has been compelled unnecessarily to reside in a nursing facility for the past two (2) years.
15. On July 9, 2010, as a result of his identification in this action, Defendant informed Plaintiff Reeves that it had found him eligible to receive specialized services and for the first time specified the specialized services Defendant alleges he is entitled to receive. To date, however, Defendant has not provided Plaintiff Reeves with any of the specialized services it identified that he was entitled to receive. Defendant has not evaluated whether there is or could be an alternative community placement for Plaintiff Reeves. B. The Plaintiff Class
16. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the Named Plaintiffs bring this matter as a class action on behalf of themselves and all other Maine residents who currently are or in future will be: (1) eligible for and enrolled in MaineCare, (2) age 21 or older, (3) have a related condition as defined at 42 C.F.R. § 435.1010, other than autism, and who do not have a diagnosis of Alzheimer’s or dementia, and (4) who are or should be screened for admission to nursing facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.112 et seq.
17. According to information provided by Defendant, there are currently 41 individuals, including the three Named Plaintiffs, with cerebral palsy (and who have not been diagnosed with mental retardation, autism, Alzheimer’s disease, or dementia) who meet the definition of the class as set forth in paragraph 16 above.
18. The Defendant has also identified an additional 58 individuals who in the previous ten years met the definition of the class as set forth in paragraph 16 above but who no longer reside in nursing facilities. In addition, there are 18 other individuals currently residing in nursing facilities in Maine with the related condition of epilepsy who meet the definition of the class set forth in paragraph 16 above, unless they also have diagnoses of mental retardation, Alzheimer’s disease, and/or dementia.
6

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 7 of 24 PageID #: 210
19. The plaintiff class is so numerous that joinder of all members is impracticable. Joinder is also impracticable because the class is not static; because the class members are geographically dispersed throughout 11 counties in Maine, from York County to Washington County; and because class members lack the knowledge and financial means to maintain individual actions.
20. There are questions of law and fact common to the plaintiff class including, inter alia: a. Whether the Defendant has failed to develop and implement a PASRR program sufficient to prevent the unnecessary admission of the plaintiff class to nursing homes; b. Whether the Defendant has failed to assure that members of the plaintiff class, once admitted to nursing homes, receive specialized services for their condition aimed at allowing the individual to function as independently and with as much self-determination as possible, and receive services designed to prevent or decelerate regression and loss of abilities; c. Whether Defendant’s denial of community based services that the plaintiff class requires to avoid segregation in an institution constitutes unlawful discrimination in violation of Title II of the ADA and Section 504 of the Rehabilitation Act; d. Whether the Defendant has utilized criteria and methods of administering Maine’s longterm care system, including the nursing facility program, that have subjected the Plaintiffs to unnecessary and unjustified segregation in violation of the ADA and Section 504 integration mandate, including (1) failing to assess properly the services and supports that would enable members of the plaintiff class to live in the community, and (2) failing to ensure that the plaintiff class have prompt access to Medicaid-covered services that will meet their needs in the community and/or the nursing facility; and
7

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 8 of 24 PageID #: 211
e. Whether the Defendant’s policies and practices as described herein, and which have been repeated and knowing, conflict with the plaintiff class’s federal rights, as set forth above, and whether this violation entitles Plaintiffs to relief under 42 U.S.C. §1983.
21. The representative parties will fairly and adequately protect the interests of the class. The Named Plaintiffs will vigorously represent the interests of unnamed class members, and all members of the proposed class will benefit from the efforts of the Named Plaintiffs. The interests of the proposed class and the Named Plaintiffs are identical.
22. Defendant, her agents, employees, and predecessors and successors in office have acted or will act on grounds generally applicable to the class, thereby making injunctive or declaratory relief appropriate to the class as a whole. C. The Defendant
23. Defendant Brenda Harvey is the Commissioner of the Department of Health and Human Services (“DHHS”) for the State of Maine. Her principal place of business is in the City of Augusta, County of Kennebec, in the State of Maine. She has overall responsibility for administering Maine’s Medicaid Program, MaineCare, and ensuring that the rules, policies and practices of the Maine Department of Health and Human Services are conducted in compliance with the Medicaid Act, the NHRA, Section 504 of the Rehabilitation Act, and the ADA. Defendant is responsible for reviewing and certifying nursing facilities that participate in the federal Medicaid program. 42 C.F.R. §§ 483.1-483.75. Her actions, relevant hereto, have been taken under the color of state law. She is sued in her official capacity only.
IV. Factual Allegations A. The State-Federal Medicaid Program
24. Medicaid is a jointly funded state and federal program that provides medical services to lowincome persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396-1396w-2.
8

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 9 of 24 PageID #: 212
25. State participation in the Medicaid program is voluntary. States choosing to receive federal matching funds for their Medicaid program must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the U.S. Department of Health and Human Services (hereafter “HHS”). 42 U.S.C. § 1396; 42 C.F.R. §§ 430-484. The Centers for Medicare and Medicaid Services (hereafter “CMS”) is responsible for the administration of the Medicaid program.
26. The state Medicaid agency may place appropriate limits on services based on such criteria as medical necessity or on utilization control procedures.
27. Maine has chosen to participate in the Medicaid program. It has prepared a state plan, which CMS has reviewed and approved. That plan, along with relevant federal law and regulations, forms the foundation for Maine’s Medicaid program and establishes the State’s obligations and responsibilities to Medicaid recipients.
28. Under federal Medicaid requirements, states must provide comparable benefits, i.e., benefits that are equal in “amount, duration and scope,” to all categorically needy Medicaid beneficiaries. 42 U.S.C. § 1396a(a)(10)(B)(i); 42 C.F.R. §§ 440.240(a), (b)(1). Categorically needy Medicaid beneficiaries are beneficiaries who, in most cases, receive cash public assistance to meet basic needs. Therefore (with certain exceptions for some groups such as pregnant women, certain aliens and services provided pursuant to waiver of federal requirements), Maine must provide benefits under its Medicaid program that are equal in amount, duration and scope to all eligible needy beneficiaries. B. Nursing Facilities and the Nursing Home Reform Amendments to the Social Security Act
29. States must cover nursing facility services as a part of their Medicaid programs. 42 U.S.C. §§ 1396a(a)(10)(A) and 1396d(a)(4)(A).
30. A nursing facility is an institution that primarily provides: (1) nursing care; (2) rehabilitation services for those who are sick, injured or disabled; and (3) health-related care and services to individuals who,
9

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 10 of 24 PageID #: 213
because of their mental or physical condition, require care and services which can only be provided in an institutional setting. 42 U.S.C. § 1396r(a)(1)(A-C).
31. Nursing facilities’ services are defined as “services which are ... required to be given an individual who needs ... on a daily basis nursing care (provided by or requiring the supervision of nursing personnel) or other rehabilitation services which as a practical matter can only be provided in a nursing facility on an inpatient basis.” 42 U.S.C. § 1396d(f) (emphasis added).
32. In 1987, Congress passed the Nursing Home Reform Amendments to the Medicaid Act to address the widespread problem of warehousing people with psychiatric and developmental disabilities in the nation’s nursing facilities. 42 U.S.C. § 1396r. Congress enacted the Pre-Admission Screening and Annual Resident Review Provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities.
33. The PASRR pre-admission screening (“PASRR Level I”) is designed to identify individuals suspected of having mental illness, mental retardation, or related conditions. See 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. §§ 435.1010, 483.128.
34. “Related conditions” are chronic disabilities that manifest before age 22 and include disabilities that are attributable to cerebral palsy or epilepsy. See 42 U.S.C. § 1396r(e)(7)(G); 42 C.F.R. § 435.1010.
35. If the PASSR Level I screening identifies that an individual is suspected of having mental illness, mental retardation, or related conditions, the State must conduct a PASRR II evaluation of that individual. See 42 U.S.C. § 1396r(e)(7); 42 C.F.R. § 483.128. The function of the PASRR Level II evaluation is to determine whether a person is appropriate for admission to a nursing facility because he or she needs a level of care that can only be provided in a nursing facility and, if so, whether the person needs specialized services while living in the nursing facility. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.126, 483.128, 483.132, 483.136.
10

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 11 of 24 PageID #: 214
36. If the PASRR Level II evaluation determines that an individual does not require nursing facility services, but instead that services can be provided in a non-institutional setting, states have a mandatory duty to offer the individual a choice of remaining in the facility or receiving services in an alternative, appropriate, noninstitutional setting. 42 U.S.C. §§ 1396r(e)(7)(C)(i-ii42 C.F.R. §§ 483.118(c), 483.130(m). On the other hand, if nursing facility level of care is needed, the PASRR Level II evaluation must determine whether a nursing facility is the appropriate setting for meeting an individual’s needs and consider alternate placements. See 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.126, 483.132(a)(4).
37. In the PASRR Level II evaluation, if the Defendant confirms that the person has a related condition, it must determine whether specialized services are needed based on characteristics commonly associated with the need for specialized services. See 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.120(2), 483.136. The PASRR Level II evaluation must document, inter alia, the individual’s need for assistance with activities of daily living; level of sensorimotor development; social development; academic and educational development; ability to live independently; and vocational development. See 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. §§ 483.130, 483.136. Specialized services consist of an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services that are aimed at allowing the individual to function as independently and with as much selfdetermination as possible, and services designed to prevent or decelerate regression and loss of abilities. See 42 U.S.C. § 1396r(e)(7)(G)(iii); 42 C.F.R. §§ 483.120(2), 483.440(a)(1).
38. After conducting the PASRR Level II evaluation, the Defendant must notify the individual of its determinations. See 42 U.S.C. § 1396r(e)(7)(C); 42 C.F.R. § 483.130. This notice must include: (1) whether nursing facility level of care is necessary, (2) whether specialized services are necessary, (3) and placement options available to the individual. See 42 U.S.C. § 1396r(e)(7)(C); 42 C.F.R. § 483.130. This notice must also inform the individual of his or her right to appeal the State’s PASRR Level II evaluation determinations. See 42 U.S.C. § 1396r(e)(7)(F); 42 C.F.R. § 483.130.
11

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 12 of 24 PageID #: 215
39. If the PASRR Level II evaluation determines that an individual needs specialized services, the State is required to “provide for (or arrange for the provision of)” needed specialized services. 42 U.S.C. § 1396r(e)(7)(C)(i)(IV); 42 C.F.R. § 483.118(c).
40. Following admission to a nursing facility, annual reviews must be conducted to determine whether an individual with a related condition continues to need a nursing level of care and to require confinement in a nursing facility or whether the individual’s needs could be met in the community. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.106(a)(3), 483.114(b), 483.130, 483.132.
41. Whenever the PASRR review process determines that the person needs services in the nursing facility or outside of the nursing facility, those services that are covered under Maine’s MaineCare program must be provided with “reasonable promptness.” 42 U.S.C. § 1396a(a)(8), (a)(10)(A); 42 C.F.R. § 435.930. C. Other Medicaid Long-Term Care Services
42. Maine currently provides MaineCare recipients with disabilities an array of direct care services, including personal care services, physician services, nursing services and various types of therapies, through residential care Private Non-Medical Institutions (commonly referred to as “PNMIs”). These facilities are more fully described in Chapter 101 of the MaineCare Benefits Manual of the Maine Department of Health and Human Services. See Chapter II, Section 97 at http://www.maine.gov/sos/cec/rules/10/ch101.htm.
43. The PNMI system currently serves discrete groups of people with disabilities. For example, there are PNMI’s to serve people diagnosed with mental illness, substance abuse problems, mental retardation, Muscular Dystrophy or Brain Injury. Maine has not established any PNMI’s to serve people like the Named Plaintiffs and the putative class.
44. Maine also provides MaineCare recipients with disabilities an array of direct services, including personal care services, nursing services, and physician services, through residential care Intermediate Care Facilities for the Mentally Retarded (commonly referred to as “ICFs-MR”). ICFs-MR are residential facilities defined as “primarily for the diagnosis, treatment, or rehabilitation of the mentally retarded or persons with other
12

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 13 of 24 PageID #: 216
related conditions[.]” 42 C.F.R. § 435.1010. In Maine, eligibility for ICFs-MR is limited to persons with a diagnosis of mental retardation or autism. These facilities are more fully described in Chapter 101 of the MaineCare Benefits Manual of the Maine Department of Health and Human Services. See Chapter II, Section 50 at http://www.maine.gov/sos/cec/rules/10/ch101.htm.
45. The Defendant currently provides services in community-based settings to permit some individuals with mental retardation, autism, and other disabilities to live in the community. These individuals have functional limitations that are similar to those of the Named Plaintiffs. However, the Defendant has refused to make these programs and services available to the Named Plaintiffs and other similarly situated individuals. D. The Americans with Disabilities Act And Its Integration Mandate
46. On July 12, 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., establishing the most important civil rights law for persons with disabilities in our nation’s history.
47. Congress stated in its findings that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
48. Congress found that “discrimination against individuals with disabilities persists in … institutionalization … and access to public services.” 42 U.S.C. § 12101(a)(3). It also found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion …, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
49. A major purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1) and (2).
13

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 14 of 24 PageID #: 217
50. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
51. “Discrimination” under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization. As the Senate Labor and Human Relations Committee observed: “One of the most debilitating forms of discrimination is segregation imposed by others ... Discrimination also includes exclusion, or denial of benefits, services, or other opportunities that are as effective and meaningful as those provided to others.” S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989) (emphasis added). Thus, Congress recognized that “discrimination” against persons with disabilities entails more than just disparate treatment, and that simply requiring evenhanded treatment would not remedy all discrimination.
52. The regulations implementing the ADA require that: “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.§ 35.130(d). The affirmative duty embodied in 28 C.F.R.§ 35.130(d) stems from the recognition that the failure to integrate individuals with disabilities in society (for example, through unnecessary institutionalization) constitutes unlawful discrimination under the ADA. E. Section 504 of The Rehabilitation Act
53. Section 504 of the Rehabilitation Act of 1973 provides: “No otherwise qualified individual with a disability in the United States …, shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794.
54. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
14

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 15 of 24 PageID #: 218
55. Regulations implementing Section 504 prohibit recipients of federal financial assistance from “[u]tiliz[ing] criteria or methods of administration … (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the … effect of substantially impairing accomplishment of the recipients’ program with respect to handicapped persons.” 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i).
V. Legal Claims Count I
Americans With Disabilities Act: Integration Mandate 56. The Named Plaintiffs and putative class members re-allege the foregoing paragraphs as though fully set forth herein. 57. Each of the Named Plaintiffs and putative class members is “a qualified individual with a disability” within the meaning of 42 U.S.C. § 12131(2). Each of the Named Plaintiffs and members of the putative class has a related condition, including cerebral palsy and/or epilepsy, which significantly limits his or her life activities in profound ways, including mobility, the ability to provide self-care, and the ability to communicate, among other major life activities. 58. Each of the Named Plaintiffs has requested and would benefit from receipt of community-based services, but is forced to remain in an overly restrictive nursing facility due to Defendant’s denial of communitybased services adequate to meet the needs of the Named Plaintiffs. Members of the putative class have not been given the opportunity to request or obtain appropriate services in the community. 59. Each of the Named Plaintiffs and some of the putative class members desire to leave the nursing facility where s/he currently resides and live in a setting that is more integrated in the community, where s/he can have greater interaction with his or her peer community and where s/he can live an independent and fulfilling life.
15

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 16 of 24 PageID #: 219 60. Despite the Named Plaintiffs’ attempt to engage in an interactive process with the Defendant,
Defendant has not taken reasonable actions to determine and ensure that the MaineCare program and other disability support services are administered in the most integrated setting appropriate for Named Plaintiffs and the putative class.
61. Defendant’s denial of community-based services that Named Plaintiffs and putative class members require to avoid segregation in an institution and remain in the integrated settings that are appropriate to their needs constitutes unlawful discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 35.130(d).
16

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 17 of 24 PageID #: 220
Count II Americans With Disabilities Act: Methods of Administration 62. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 63. Regulations implementing Title II of the ADA provide that “a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities ....” 28 C.F.R. § 35.130(b)(3). 64. Defendant has utilized criteria and methods of administering Maine’s long-term care system, including the nursing home program, which has subjected the Plaintiffs and putative class members to unnecessary and unjustified segregation in violation of the ADA integration mandate. These criteria and methods include (1) failing to assess properly the need for services and supports that would enable Plaintiffs and class members to remain in the community, and (2) failing to ensure that Plaintiffs and class members have access to medically necessary and appropriate services that will meet their needs in the community.
Count III Americans With Disabilities Act: Discrimination Based on Nature and Severity of Disability 65. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 66. The federal regulations implementing Title II of the ADA provide that public entities such as Defendant may not “deny a qualified individual with a disability the opportunity to participate or benefit” from a service and cannot “provide a … service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.” 28 C.F.R. § 35.130(b)(1)(i), (iii), (iv).
17

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 18 of 24 PageID #: 221
67. Defendant’s PASRR program totally excludes Plaintiffs and class members from receiving appropriate specialized services by virtue of their disabilities. In addition, on the basis of their disabilities, Defendant’s community programs either totally exclude the Named Plaintiffs and putative class members on the basis of their disabilities or are not of sufficient duration and intensity to allow the Named Plaintiffs and putative class members to live in the community. These failures relegate Named Plaintiffs and putative class members to segregated facilities in violation of Title II of the ADA and its implementing regulations.
Count IV Section 504 of the Rehabilitation Act 68. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 69. The Named Plaintiffs and class members are qualified individuals with disabilities under Section 504 of the Rehabilitation Act. 29 U.S.C. § 794(a). 70. The Maine Department of Health and Human Services receives federal financial assistance. 71. The regulations accompanying Section 504 provide that: “[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d). 72. These regulations further prohibit recipients of federal financial assistance from “utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons.” 28 C.F.R. § 41.51(b)(3); 45 C.F.R. § 84.4(b). 73. The Named Plaintiffs and putative class members qualify for Defendant’s program of longterm rehabilitative services, and would benefit from services provided in a community-based setting. Although the community is the most integrated setting appropriate to meet their needs, the Named Plaintiffs
18

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 19 of 24 PageID #: 222
and putative class members remain institutionalized in nursing facilities. By denying them access to existing community programs and by requiring that Named Plaintiffs and putative class members be confined in the segregated nursing facilities in order to receive needed rehabilitative services, Defendant violates Section 504.
Count V Nursing Home Reform Act Amendments 74. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 75. The NHRA, 42 U.S.C. § 1396r(e)(7), requires that states develop and implement a PASRR program for all applicants to, and residents of, Medicaid-certified nursing facilities. 76. The nursing homes in which Plaintiffs and the putative class members have been placed are Medicaid-certified facilities licensed by DHHS. 77. DHHS is solely responsible for administering the PASRR program and providing individuals with specialized services. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100-138. 78. The specialized services that the Defendant identified after Plaintiffs filed suit, even if provided, when combined with the services currently provided by the nursing facility where the Named Plaintiffs reside, are grossly inadequate to meet the requirements of the NHRA. 42 C.F.R. §§ 483.120 (a)(2), 483.440. The services specified by the Defendant will not permit the Named Plaintiffs to acquire the behaviors “to function with as much self determination and independence as possible” nor do they adequately “prevent[] or decelerat[e] regression or loss of current optimal functional status.” 42 C.F.R. § 483.440. The Defendant has violated the regulations with respect to the Named Plaintiffs in at least the following ways: a. failed to develop a plan to ensure the opportunity for regular and continuous social and/or religious activities, in violation of 42 C.F.R. § 483.420 (a)(11);
19

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 20 of 24 PageID #: 223

b. failed to provide any documentation that the staff would be trained to meet the Named

Plaintiffs’ needs, particularly their behavioral health needs, in violation of 42 C.F.R. §

483.430(e)(1);

c. failed to identity any on-going monitoring program or other procedures to ensure that

the active treatment program is aggressive and continuous, in violation of 42 C.F.R. §

483.440(a)(1);.

d. failed to provide any evidence that the Named Plaintiffs’ programs are developed and

monitored by an interdisciplinary team that is appropriate to their needs, in violation of

42 C.F.R. § 483.440(c)(1);

e. failed to produce any evidence that any plan for active and continuous treatment will be

implemented by all staff, both professional and non-professional, in violation of 42

C.F.R. § 483.440(d)(3); and,

f.

failed to identify any methods or procedures to demonstrate how data would be

collected, in violation of 42 C.F.R. § 483.440(e)(1).

79. In addition to the allegations made in the foregoing paragraph, the Defendant has also violated

the NHRA with respect to Plaintiff Fletcher by failing to identify counseling services to reduce the need for

antidepressant drugs, in violation of 42 C.F.R. § 483.420(a)(6).

80. Defendant’s policies and practices as described herein, which have been repeated and

knowing, violate Plaintiffs’ and class members’ rights under the NHRA to:

a. an appropriate pre-admission PASRR Level I screening;

b. a PASRR Level II evaluation to determine the need for nursing facility level of care and

specialized services and to determine whether alternate community placements are

appropriate;

c.

the choice of receiving services in the community rather than in nursing facilities; and

20

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 21 of 24 PageID #: 224
d. receipt of appropriate specialized services while residing in the nursing facility. 81. If Defendant offered the Named Plaintiffs and putative class members support services appropriate to their needs, the Named Plaintiffs and some putative class members could live in alternative, integrated community settings.
Count VI Medicaid Act- Reasonable Promptness 82. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 83. The Defendant has failed to provide the Named Plaintiffs and members of the putative class with medically necessary services with reasonable promptness. These services include, inter alia, specialized services while confined to the nursing facility and long-term care services and supports sufficient to permit them to live in the community. In so doing, the Defendant operates the MaineCare program in violation of 42 U.S.C. §1396a(a)(8), (a)(10)(A).
Count VII Section 1983 84. The Named Plaintiffs and members of the putative class re-allege the foregoing paragraphs as though fully set forth herein. 85. Defendant’s actions, taken under the color of state law, have deprived and will continue to deprive the Plaintiffs and class members of their federally protected rights.
21

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 22 of 24 PageID #: 225
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 (b)(2); 2. Grant preliminary and permanent injunctive relief requiring Defendant to amend its policies, practices and procedures to ensure that the Named Plaintiffs and putative class members:
a. are properly screened and evaluated as required by the NHRA; b. are provided with appropriate services with reasonable promptness; c. are informed that they may be eligible for community services and, if eligible for
such services, that they have the choice to receive such services in an institutional or an integrated community setting; d. are provided comprehensive assessments, evaluations and screenings to determine their eligibility for community services, both prior to and after admission to nursing facilities; and e. are provided, as appropriate, with long-term care services and supports in the community with reasonable promptness and that the Defendant refrain from providing long-term care only in institutional settings. 3. Issue a declaratory judgment stating that the Defendant has violated the Americans with Disabilities Act, the Rehabilitation Act, the Medicaid Act and the Nursing Home Reform Act in her failure to: provide specialized services to Plaintiffs and class members; prevent the unnecessary segregation and institutionalization of Plaintiffs and class members; and provide community-based services to Plaintiffs and class members; 4. Award the Plaintiffs costs of this litigation and their reasonable attorneys’ fees; and 5. Grant such further and other relief as may be just and proper.
22

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 23 of 24 PageID #: 226

Dated: August 11, 2010

/s/ Jeffrey Neil Young Jeffrey Neil Young MCTEAGUE HIGBEE 4 Union Park P.O. Box 5000 Topsham, ME 04086 (207) 725-5581 jyoung@mcteaguehigbee.com

/s/ Jack Comart Jack Comart Maine Equal Justice Partners 126 Sewall Street Augusta, ME 04330-6822 (207) 626-7058, ext. 202 jcomart@mejp.org

/s/ Staci K. Converse Staci K. Converse Sean P. Ociepka Peter M. Rice Disability Rights Center 24 Stone Street P.O. Box 2007 Augusta, ME 04338 (207) 626-2774 sconverse@drcme.org sociepka@drcme.org price@drcme.org
/s/ Martha Jane Perkins Martha Jane Perkins National Health Law Program 211 N. Columbia St., Second Floor Chapel Hill, NC 27516 (919) 968-6308 Perkins@healthlaw.org
Attorneys for Plaintiffs

23

Case 1:09-cv-00633-NT Document 30 Filed 08/11/10 Page 24 of 24 PageID #: 227 CERTIFICATE OF SERVICE
I, Jeffrey Neil Young, hereby certify that on August 11, 2010, I electronically filed Plaintiff’s First Amended Complaint (Class Action) with the Clerk of the Court using the CM/ECF system which will send notification of such filing(s) to the following: James E. Fortin at James.Fortin@maine.gov; and Janine A. Raquet at Janine.Raquet@maine.gov.
/s/ Jeffrey Neil Young McTEAGUE HIGBEE Four Union Park P.O. Box 5000 Topsham, ME 04086 T: (207) 725-5581 F: (207) 725-1090 jyoung@mcteaguehigbee.com
24

 
 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JACOB VAN METER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BRENDA HARVEY, COMMISSIONER, )

MAINE DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

)

Defendant.

)

1:09-cv-00633-JAW

ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Seeking declaratory and injunctive relief from the Maine Department of

Health and Human Services (DHHS), Plaintiffs move for class certification.

Because Plaintiffs have established each of the requirements for class certification,

the Court grants their motion.

I. STATEMENT OF FACTS

On December 18, 2009, Jacob Van Meter, Adam Fletcher—by and through

his guardian, Gail Fletcher—and Eric Reeves (Named Plaintiffs) filed a complaint

seeking relief under 42 U.S.C. § 1983 for DHHS‟s alleged violations of the Nursing

Home Reform Amendments to the federal Medicaid Act (NHRA), 42 U.S.C. §

1396r(e); Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et

seq.; and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794, for

failing to ensure the Named Plaintiffs “receive appropriate treatment in the most

integrated setting possible.” Compl. ¶¶ 1-6 (Docket # 1) (Initial Compl.). That

same day, the Named Plaintiffs moved individually for leave to proceed in forma

pauperis. Application to Proceed in District Court Without Prepaying Fees or Costs
(Docket #s 3, 4, 5). The Magistrate Judge granted those motions on December 21,
2009. Order Granting Mots. to Proceed in Forma Pauperis (Docket # 7). On
February 22, 2010, DHHS answered the complaint. Answer to Compl. (Docket # 12)
(Answer).
On August 10, 2010, the Plaintiffs moved for leave to file an amended
complaint and for class certification. Pls.’ Assented to Mot. for Leave to File First
Am. Compl. (Docket # 22); Pls.’ Mot for Class Certification (Docket # 23) (Pls.’ Mot.).
The next day, the Court granted without objection the motion for leave to file an
amended complaint. Order (Docket # 29). That same day, the Plaintiffs filed an
amended complaint, which defined the class as:
[T]he Named Plaintiffs . . . and all other Maine residents who currently are or in the future will be: (1) eligible for and enrolled in MaineCare, (2) age 21 or older, (3) have a related condition as defined at 42 C.F.R. § 435.1010, other than autism, and who do not have a diagnosis of Alzheimer‟s or dementia,1 and (4) who are or should be screened for
1 The regulation defines “persons with related conditions” as: Individuals who have a severe, chronic disability that meets all of the following conditions: (a) It is attributable to— (1) Cerebral palsy or epilepsy; or (2) Any other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons. (b) It is manifested before the person reaches age 22. (c) It is likely to continue indefinitely. (d) It results in substantial functional limitations in three or more of the following areas of major life activity: (1) Self-care. (2) Understanding and use of language. (3) Learning. (4) Mobility. (5) Self-direction. (6) Capacity for independent living.
2

admission to nursing facilities pursuant 42. U.S.C. § 1396r(e)(7) and 42 C.F.R. §§ 483.112 et seq.2 First Am. Class Action Compl. (Docket # 24) (Class Action Compl.). On August 31, 2010, DHHS responded in opposition to the motion for class certification. Def.’s Opp’n to Mot. for Class Certification (Docket # 33) (Def.’s Opp’n). On September 14, 2010, Plaintiffs replied to DHHS‟s response. Pls.’ Reply to Def.’s Opp’n to Mot. for Class Certification (Docket # 40) (Pls.’ Reply). II. DISCUSSION A. The Parties’ Positions
1. Plaintiffs’ Motion Plaintiffs argue that class certification is appropriate because all of the elements of a Rule 23(a) and one of the elements of Rule 23(b) are met. Pls.’ Mot. at 3-4 (citing FED. R. CIV. P. 23)). They assert that the elements of numerosity, commonality, typicality, and adequacy of representation are met under 23(a). Id. at 3. In regards to 23(b), they assert that class action is appropriate under 23(b)(2) because DHHS “has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Id. at 4. They address each element individually. Plaintiffs observe that the first pre-requisite for class certification is that “the class is so numerous that joinder of all members is impracticable.” Id. (citing FED.
42 C.F.R. § 435.1010. 2 The amended complaint also added a claim for relief under the “reasonable promptness” provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(8). First Am. Class Action Compl. ¶¶ 82-83 (Docket # 24) (Class Action Compl.).
3

R. CIV. P. 23(a)(1)). They argue that in the First Circuit, “[n]o minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Id. (quoting Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)). They contend that their putative class consists of at least forty-one current members with cerebral palsy, an unidentified number of individuals with epilepsy and other related conditions, and “new individuals entering nursing facilities each day who are at risk of the same rights violations and are members of the proposed class.” See id. at 3. Plaintiffs also argue that where, as here, only declaratory and injunctive relief is sought, they “need not establish the precise number or identity of class members.” Id. at 5 (quoting Rolland v. Cellucci, No CIV A 98-30208-KPN, 1999 WL 34815562, at *3 (D. Mass. Feb. 2, 1999)).
Having asserted that they meet the First Circuit‟s general numerical threshold, Plaintiffs argue that practicability is the more important consideration in weighing 23(a)(1). Id. at 4 (citing McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D. 304, 307 (D. Mass. 2004)). They argue that “[i]n order to determine whether joinder would be impracticable, „courts give significant weight to such factors as the ability of class members to bring their own separate actions, their geographical diversity and the type of relief sought.‟” Id. (quoting Rolland, 1999 WL 34815562, at *3). They argue that “it would be extremely difficult, and thus impracticable, for the members of the proposed class to maintain individual suits against [DHHS],
4

particularly given the nature of their disabilities, their limited economic resources, their geographical diversity, and their segregation in nursing facilities.” Id. at 6. Furthermore, they contend that the inability to precisely identify each individual class member and the likelihood that the class includes unnamed future members are factors making joinder less practicable. Id. at 5.
The Plaintiffs argue that second prerequisite for class certification is met because there are questions of law and fact common to the class. Id. at 6 (citing FED. R. CIV. P. 23(a)(2)). They assert that “[b]ecause the class need share only a single legal or factual issue at this stage of the analysis, the commonality prerequisite is ordinarily easily satisfied.” Id. (quoting Mulligan v. Choice Mortg. Corp. USA, No. CIV. 96-596-B, 1998 WL 544431, at *3 (D.N.H. Aug. 11, 1998)). They argue that although class members‟ individual circumstances differ, they all “challenge systemic issues with [DHHS‟s] policies and practices in the provision of services in nursing facilities and in the community.” Id. at 7. Plaintiffs identify what they argue are questions of law and fact common to all putative class members. See id at 7-8.
They argue that the third prerequisite to class certification is met because Plaintiffs‟ claims are typical of those of the class. Id. at 8 (citing FED. R. CIV. P. 23(a)(3)). They contend that this requirement is met when the class representatives “possess the same interest and suffer the same injury” as other class members. Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). Plaintiffs argue that the Named Plaintiffs, like all other class members, “have been inadequately
5

screened and assessed under the NHRA, have been discriminated against in violation of the ADA and Section 504, and have not been provided services with „reasonable promptness‟ under the Medicaid Act.” Id. They contend that “[t]he fact that individual class members may have somewhat different needs, or may have entered the nursing homes through different processes, or may be entitled to or need different services, does not justify denying class certification.” Id. (quoting Rolland, 1999 WL 34815562, at *7). Plaintiffs also cite Rolland for the proposition that the Named Plaintiffs‟ claims are typical of the class even though, subsequent to the filing of this action, they individually received some form of the evaluative screening they request as relief. Id. at 8-9.
Plaintiffs next argue that the Named Plaintiffs will “fairly and adequately protect the interests of the class,” in satisfaction of the fourth prerequisite to class certification. Id. at 9 (citing FED. R. CIV. P. 23(a)(4)). They identify three necessary elements: “The Court must inquire whether the Named Plaintiffs have the ability and the incentive to represent the claims of the class vigorously, that they have obtained adequate counsel, and that the Named Plaintiffs do not have interests adverse to the class.” Id. (quoting Rancourt v. Concannon, 207 F.R.D. 14, 16 (D. Me. 2002)). Plaintiffs argue that the Named Plaintiffs have the incentive to represent the claims of the class because they “will benefit from the same injunction that is intended to benefit all class members.” Id. (quoting Risinger ex rel. Risinger v. Concannon, 201 F.R.D. 16, 22 (D. Me. 2001)). They further contend that adequate counsel is “rebuttably presumed” and that Plaintiffs have obtained
6

competent counsel. Id. (citing Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 401 (N.D. Ill. 1987)). Finally, they assert that the Named Plaintiffs have suffered the same legal injury as the proposed class, so their interests are not adverse to the class. Id. (citing Curtis v. Comm’r Me. Dep’t. of Human Services, 159 F.R.D. 339, 341 (D. Me. 1994)).
The Plaintiffs acknowledge that they must satisfy one of three elements of Rule 23(b). They argue that the putative class satisfies 23(b)(2) because declaratory or injunctive relief is appropriate respecting the class as a whole. Quoting First Circuit law, the Plaintiffs explain, “the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions.” Id. (quoting Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972)). The Plaintiffs note that this is a civil rights class action seeking declaratory and injunctive relief, which they argue “is exactly the type of litigation that . . . should be certified under Rule 23(b)(2).” Id. at 10. Furthermore, they argue that 23(b)(2) cases should be certified “where there is a danger that the individual‟s claim may be moot, [or] where a declaration of the rights of one plaintiff does not automatically translate into appropriate and timely relief for other class members . . . .” Id. (citing Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985)). Plaintiffs warn that there is a danger of mootness in this case because DHHS attempted to address at least some of the claims after the filing of the initial complaint by screening the Named Plaintiffs. Id. They also argue that there is a risk that a declaration of the rights of one plaintiff will not resolve the problems of other class
7

members because requiring the DHHS to fulfill its statutory requirements as to one individual will not resolve the systemic problems that are alleged. See id.
2. DHHS’s Opposition DHHS responds that Plaintiffs failed to satisfy the prerequisites of numerosity, commonality, and typicality under 23(a) and that they failed to demonstrate that a class action is appropriate under 23(b). Turning to numerosity, DHHS argues that “the number of the unidentified proposed class members is unknown” and that the Court should deny class certification if it finds that “plaintiff‟s contention as to the size of the class is purely speculative.” Def.’s Opp’n. at 5 (quoting Vigue v. Ives, 138 F.R.D. 6, 8 (D. Me. 1991)). DHHS puts the number of identified individuals in the class at thirtyseven.3 Id. at 2. DHHS argues that the authority Plaintiffs cite for the proposition that a class of forty is generally sufficient to satisfy the numerosity requirement is “pure dictum, because the actual numbers of individuals cited in the classes under consideration in those cases were much higher.” Id. at 6. DHHS further argues that joinder of the plaintiffs is practicable. First, it states that “[j]oinder of potential class members is more likely to be found practicable where all class members can be easily identified.” Id. (citing Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985)). It argues that here “there is a discrete, relatively small number of individuals who have been personally identified.” Id. at 6-7. Second, DHHS asserts that “where all members reside in a
3 DHHS excludes the Named Plaintiffs in numbering the identified individuals in the class. See Def.’s Opp’n. at 2.
8

geographically compact area, joinder is more readily achieved.” Id. at 7. They argue that the proposed class resides in a geographically compact area because thirty-four of the thirty-seven class members live in Southern Maine, which they define as “Penobscot County and south.” Id. Third, DHHS predicts that the class will actually be smaller than thirty-seven since some of the thirty-seven will likely be satisfied with their current level of care, and Rule 23(c)(2)(B)(v) requires that individuals who do not wish to be part of the class be allowed to opt-out. Id.
DHHS next argues that the commonality requirement of 23(a)(2) is not met. Id. It divides Plaintiff‟s request for relief into two categories: 1) a procedural category, seeking an order that DHHS perform Pre-Admission Screening and Resident Review (PASRR) assessments; and 2) a substantive category, seeking an order that DHHS “provide appropriate placement and specialized services.” See id. It concedes that the former request is common for the entire class but asserts it has taken steps to provide this relief. Id. at 7-8. It submits that lack of a PASRR assessment alone “is not sufficient to support a class.” Id. at 8. It argues that the latter request raises “no commonality because determinations of the appropriate specialized services and placement must be made on a client-by-client, case-by-case basis depending on the unique circumstances of each individual.” Id.
DHHS argues that Rule 23(a)(3)‟s typicality requirement is not met because “the [N]amed [P]laintiffs share very little connection with the identified proposed class members.” Id. at 8-9. DHHS observes that the Named Plaintiffs are younger than most of the other identified members of the proposed class. Id. at 9. It argues
9

that the original goals of their lawsuit were “to live and interact with people closer to their own age” and that those goals “would not apply to an individual in a nursing home in his or her later years of life.” Id. DHHS further argues that the mental and physical conditions of the unidentified proposed class members are unknown, so the Named Plaintiffs “cannot demonstrate that their claims are typical of the unidentified proposed class.” Id.
DHHS gives brief treatment to Plaintiffs‟ Rule 23(b)(2) argument, countering that it is not satisfied for the same reasons Rule 23(a)(2) commonality is not satisfied. Id.4
3. Plaintiffs’ Reply Plaintiffs reply that the class is sufficiently identified for class certification. Pls.’ Reply at 2. It argues that the class definition is “virtually identical” to that of a class certified by the United States District Court for the District of Massachusetts in Rolland, “except that Plaintiffs have excluded individuals with mental retardation or autism, and have limited the class to those individuals with „related conditions.‟” Id. (citing Rolland, 1999 WL 34815562, at *2)). They argue that DHHS‟s characterization of the class as “broad and imprecise” is based on the premise that the class definition makes no reference to age or cerebral palsy, which DHHS saw as the focus of the initial complaint; yet Plaintiffs contend that DHHS “has acted or refused to act on grounds applicable to all with „related conditions‟
4 DHHS also argues that 23(b)(3) is not satisfied. Def.’s Opp’n. at 9-10. However, Plaintiffs are only seeking certification under 23(b)(2). Pls.’ Reply at 5 n.3. A party seeking class certification need only satisfy one of the Rule 23(b) elements. See FED. R. CIV. P. 23(b). The Court does not reach DHHS‟s contentions regarding 23(b)(3).
10

(excluding autism), not just those with cerebral palsy.” Id. Plaintiffs further argue that a Rule 23(b)(2) class “need not establish the precise number or identity of class members.” Id. at 3 (quoting Rolland, 1999 WL 34815562, at *3).
Turning to numerosity, Plaintiffs refute DHHS‟s figure of thirty seven. Id. at 3. They argue that the class currently has at least forty members with cerebral palsy and up to eighteen members with epilepsy.5 Id. Additionally, they maintain that the class is “fluid” and contains those who will enter a nursing facility at a later date. Id. Plaintiffs also contend that joinder is impracticable because class members‟ are disabled, reside throughout the state, are not easily identifiable due to patient confidentiality concerns, and their participation in the needs-based Medicaid program indicates financial difficulty. Id. at 4.
Plaintiffs reject DHHS‟s contention that commonality is lacking because class members request individualized relief. They argue that they request an order that would put in place a system to address the individual needs of class members but “do not request that the Court approve a specific service.” Id. They contend that “the Court has rejected similar arguments that differences in medical diagnoses and conditions undermine commonality and typicality.” Id. at 4-5 (citing Rancourt, 207 F.R.D. at 15-16; and Risinger, 201 F.R.D. at 20-21).
5 Plaintiffs assert that “there are currently 18 individuals enrolled in the MaineCare program who have epilepsy that manifested prior to age 22 residing in Maine nursing facilities who by definition would be included in the proposed class.” Pls.’ Reply at 3. However, they concede that they are unaware how many of those 18 “also have diagnoses of mental retardation, autism, dementia, or Alzheimer‟s Disease, which would eliminate them from the proposed class, or whether they also have a diagnosis of C[erebral] P[alsy],” in which case they would have been included in the forty-one figure. Id. at 3 n.5.
11

Finally, Plaintiffs argue that DHHS‟s argument that differences in age between the Named Plaintiffs and the rest of the class lacks merit. Id. at 5. They assert individual‟s in their later years of life maintain their right to “live independently in the community,” “to appropriate medical services,” and to choose “where [they] live[] or whom [they] interact[] with.” Id. III. DISCUSSION
A. Class Certification Standard Before certifying a class, the Court must review whether the Plaintiffs have met their burden of proving each Rule 23(a) factor and one Rule 23(b) requirement. Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). A court must “conduct a rigorous analysis of the prerequisites established by Rule 23 before certifying a class.” Id. When legal and factual premises of a case are disputed, such that “the class action would be proper on one premise but not another,” a district court “has the power to test disputed premises at the certification stage” by probing “behind the pleadings to formulate some prediction as to how specific issues will play out.” In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 17 (1st Cir. 2008) (internal punctuation and citations omitted). However, “the district court must evaluate the plaintiff‟s evidence . . . critically without allowing the defendant to turn the class-certification proceeding into an unwieldy trial on the merits.” In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 17 (1st Cir. 2005) (emphasis in original). B. Rule 23(a) Factors
12

Rule 23(a) requires a showing of numerosity, commonality, typicality, and adequacy of representation. FED. R. CIV. P. 23(a). DHHS contests numerosity, commonality, and typicality. Nevertheless, because the First Circuit directs district courts to undertake a “rigorous analysis,” the Court addresses each requirement. Smilow, 323 F.3d at 38; see In re Light Cigarettes Marketing Sales Practices Litigation, No. 1:09-md-02068-JAW, 2010 WL 4901785, at *11-13 (D. Me. Nov. 24, 2010) (assessing all requirements even though numerosity and commonality were conceded), and Donovan v. Phillip Morris USA, Inc., 268 F.R.D. 1, 10 (D. Mass. 2010) (assessing all requirements even though all four were conceded).
1. Numerosity The numerosity requirement is satisfied when “the class is so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). There is no threshold number of class members that automatically satisfies this requirement. Gen’l Tel. Co. Nw. v. EEOC, 446 U.S. 318, 330 (1980). Nevertheless, the First Circuit has provided numerical suggestions. The First Circuit favorably cited authority holding numerosity is generally satisfied if “the potential number of plaintiffs exceeds 40.” Garcia-Rubiera, 570 F.3d at 460 (quoting Stewart v. Abraham, 275 F.3d 220, 226-27 (3rd Cir. 2001)). Plaintiffs call this appellate comment dictum. Indeed, the forty class member figure was not directly relevant to that case as the plaintiff class in Garcia-Rubiera was estimated to be around 500,000. Nevertheless, the forty class member figure is in line with decisions from many other circuits. See 5-23 Jerold L. Solovy, et al., MOORE‟S FEDERAL PRACTICE, §
13

23.22 (Matthew Bender 3d ed.) (“a class of 41 or more is usually sufficiently numerous”) (citing cases from the 3rd, 4th, 7th, 9th, 10th, and D.C. circuits). Given the weight of authority and its positive citation by the First Circuit, the figure of forty is a useful guide in considering how many class members meet the numerosity requirement.
Plaintiffs have provided evidence that the size of the class will include well over forty members. Plaintiffs cite deposition testimony and Maine government websites to demonstrate that there are at least forty individuals with cerebral palsy who fit the class definition. Pls.’ Mot. at 3, 3 n.4. They further note there are a number of other individuals with epilepsy and other related conditions who are likely to fit the class definition. Id. at 3, 3 n.5. They cite statistics indicating that “there are new individuals entering nursing facilities each day who are at risk of the same rights violations and are members of the proposed class.” Id. at 3. DHHS makes no attempt to undermine the statistical bases for Plaintiffs‟ figures. See Def.’s Opp’n. Instead, it argues for a deflated class size. The Court finds these arguments unconvincing.
First, DHHS discounts class members with related conditions other than cerebral palsy, arguing that the inclusion of class members with varying medical conditions makes the class “broad and imprecise.” Def.’s Opp’n. at 3. This argument is better addressed to the consideration of commonality and typicality than to numerosity. The class definition incorporates specific statutory language that includes individuals with conditions other then cerebral palsy. 42 C.F.R. §
14

435.1010. DHHS essentially alters the class definition to shrink the size of the class. For purposes of numerosity, the Court considers the size of the class as defined. If that definition does not satisfy other 23(a) requirements, certification can be denied on those grounds.
Second, DHHS‟s argument that the class will be smaller because class members must be given the opportunity to opt-out is simply incorrect. Under the plain language of Rule 23(c)(2)(B), the opt out requirement only applies to classes certified under 23(b)(3). FED. R. CIV. P. 23(c)(2)(B); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (“notice to and therefore precise definition of the members of the suggested class are important to certification of a (b)(3) class, notice to the members of a (b)(2) class is not required and the actual membership of the class need not therefore be precisely delimited”). Here, because Plaintiffs attempt to certify the class under 23(b)(2), they need not give class members the opportunity to opt-out.
Third, Vigue, which DHHS cites in support of its assertion that the class size is speculative, is inapposite. In Vigue, the plaintiff failed to satisfy numerosity of a proposed class including “[a]ll persons residing in the State of Maine who are or will become eligible for both Medicaid and Medicare program benefits and who need or will need power or customized wheelchairs.” 138 F.R.D. at 8. There, the plaintiff‟s only direct evidence of the number of proposed class members was a wheelchair dealer‟s testimony that she had rejected at least five individuals eligible for Medicaid and Medicare. Id. at 8. The plaintiff attempted to extrapolate that figure
15

to fifty by offering an unsupported estimate that there were between ten and fifteen wheelchair dealers in Maine. Id. The Court considered this extrapolation too speculative to be considered evidence of a fifty member class. Id.
Here, Plaintiffs have provided direct evidence of at least forty class members. They have posited that the class includes additional unidentified class members, Pls.’ Mot. at 5, but they do not rely on a specified number of unidentified class members to meet the numerosity requirement. The inclusion of unidentified class members merely serves to emphasize that the class is probably larger than the forty member figure for which Plaintiffs have provided direct evidence. Yaffe established that a Rule 23(b)(2) class need not precisely identify every class member, 454 F.2d at 1366, so Plaintiffs‟ failure to do so does not make the class overly speculative.
Although Plaintiffs‟ class is large enough to satisfy the First Circuit‟s advisory figure, further considerations go into the Rule 23(a)(1) analysis. “The facts and circumstances of each case are to be taken into account to determine numerosity under 23(a)(1).” Andrews, 780 F.2d at 131. Courts in the First Circuit have considered a number of factors in considering whether joinder of class members is impracticable. “Joinder is more likely to be practicable when class members are from the same geographic area” and “where class members can be easily identified.” Id. 131-32. Furthermore, disability, confinement and financial difficulty, and the inability of class members to bring their own separate actions have been found to be factors strongly weighing against the practicability of joinder. See Rolland, 1999 WL 34815562, at *3.
16

The Court finds that joinder is not practicable in this case. The putative class members all suffer from disabilities as defined under the NHRA. Pursuant to the class definition, they are all either admitted to nursing facilities or candidates for admission. Their enrollment in MaineCare suggests their financial resources may be limited. These qualities would make it difficult for the putative class members to bring their own individual actions.
DHHS asserts that because most identified plaintiffs live in the southern half of Maine, geographic diversity does not make joinder impracticable. For support, DHHS cites Andrews. In Andrews, the First Circuit upheld the district court‟s finding of a lack of geographic diversity where the putative class members all lived in southeastern Massachusetts, 780 F.2d. at 132, a geographic area far more confined than “Southern Maine” if defined—as DHHS does—to include “Penobscot County and south”. Def.’s Opp’n. at 7. Moreover, any number of unidentified members of the proposed class could live in the northern part of Maine. See Risinger, 201 F.R.D. at 19 (“geographic dispersion . . . throughout the state of Maine” was a factor making joinder impracticable). Combining their location throughout Maine with the difficulties their disabilities may place on their ability to travel, the proposed class members‟ geographic dispersion weighs against the practicability of joinder.
Finally, because there are likely unidentified and future class members, there would be practical difficulties with identifying and joining all of the potential class members. See Risinger, 201 F.R.D. at 19. DHHS‟s characterization of the
17

class as a “discrete, relatively small number of individuals who have been personally identified,” Def.’s Opp’n. at 6-7, is based on its limited definition of the class. The class, as defined, is sufficiently numerous, fluid, and in all likelihood growing to meet the numerosity requirement.
2. Commonality The commonality prerequisite is met when “there are questions of law or fact common to the class.” FED. R. CIV. P. 23 (a)(2). “Rule 23(a)‟s requirement of commonality is a low bar.” In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 19. Here, questions of DHHS‟s course of conduct are common to all class members, namely its alleged failure to evaluate and provide services to the proposed class members according to federal standards. Those factual questions implicate a common set of federal statutes. DHHS concedes that whether PASRR screenings have taken place is a common question, but argues that it is no longer relevant because DHHS has committed to putting in place an adequate PASRR system for the identified proposed class. It essentially asks the Court to ignore one of the Plaintiffs‟ claims by assuring the Court that it is being addressed. The Court cannot accept the State‟s unsupported assurance. Whether proper PASRR screenings are taking place remains at issue in this case, see Pls.’ Mot. at 9 n.7, and as DHHS conceded, it is a common question. Furthermore, Plaintiffs do not ask the Court to order individualized remedies for the various class members. Instead, they seek an order requiring DHHS to develop a system of evaluation and implementation of
18

corresponding services that complies with federal standards. In other words, class members seek relief from systemic barriers to proper treatment. This District has certified classes on nearly identical bases in the past. See Rancourt, 207 F.R.D. at 15-16; and Risinger, 201 F.R.D. at 20-21.
3. Typicality The typicality prerequisite requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). This requirement is satisfied when the representatives are “part of the class,” Falcon, 457 U.S. at 156, and their claims “arise from the same event or practice or course of conduct that gives rise to the claims of other class members, and are based on the same legal theory,” Garcia-Rubiera, 570 F.3d at 460 (internal quotations and punctuation omitted). Here, the representatives (the Named Plaintiffs) fit the class definition and assert the same legal claims as the other class members. Those legal claims are based on a common course of alleged conduct by DHHS. DHHS‟s argument that the Named Plaintiffs are not typical of the rest of the class because they are younger than most class members is unavailing. DHHS provides no support for the notion that older individuals have less interest in proper medical services and independent living outside of a nursing facility than younger individuals. All class members, regardless of age, are entitled to receive care that is in compliance with federal law, and that is all Plaintiffs seek in this suit. The same can be said for class members with different conditions; whether they have cerebral
19

palsy, epilepsy, or other related conditions, all class members are entitled to medical care that meets legal standards. That the Named Plaintiffs have cerebral palsy does not render their claims atypical of those class members who suffer from other conditions.
4. Adequacy The adequacy prerequisite requires that the class representatives “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Plaintiff must make a two-part showing: first, “that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation.” Andrews, 780 F.2d at 130. DHHS does not contest this prerequisite. See Def.’s Opp’n. at 1. Nevertheless, the Court addresses this prerequisite pursuant to its obligation to conduct a rigorous analysis. The Named Plaintiffs seek the same injunctive and declaratory relief for themselves that they seek for the class as a whole. Their willingness to bring the initial suit indicates that they are motivated to achieve such relief. As for adequacy of counsel, Plaintiffs‟ attorneys have filed declarations averring to their skill and experience in class action litigation and the underlying areas of substantive law. Decl. of Jeffrey Neil Young (Docket # 25); Decl. of Martha Jane Perkins (Docket # 26); Decl. of Jack Comart (Docket # 27); Decl. of Staci Converse (Docket # 28). The Court is satisfied that they are qualified and experienced. Because their interests are in line with the rest of the class and because they have retained qualified
20

counsel, the Court concludes that the Named Plaintiffs will fairly and adequately protect the interests of the class.
C. Rule 23(b)(2) Having satisfied all four of the Rule 23(a) prerequisites, Plaintiff must establish that DHHS “has acted or refused to act on grounds that apply generally to the class, so that injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). “[T]he conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which members of the class are often incapable of specific enumeration.” Yaffe, 454 F.2d at 1366. Plaintiffs allege a systemic problem with DHHS‟s procedures, and they seek injunctive and declaratory relief to change DHHS‟s conduct on an agency-wide basis. Such relief is appropriate respecting the whole class because if Plaintiffs‟ allegations prove correct, every putative class member will be entitled to the relief. If the same relief could be obtained without class certification, the Court may be justified in denying class certification. Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985). However, that possibility appears unlikely in this case. If the putative class members were to proceed on an individual basis, they might obtain the individual services they seek without obtaining systemic changes to DHHS‟s conduct that would benefit the class as a whole, a result that could lead to countless individual claims seeking the exact same relief. Obtaining relief on a class-wide basis ensures an efficient judicial remedy to any deficiency in DHHS‟s conduct.
21

Because Plaintiffs have satisfied the four prerequisites of Rule 23(a) and one element of Rule 23(b), class certification is appropriate. IV. CONCLUSION
The Court GRANTS the Plaintiffs‟ Motion for Class Certification (Docket # 23).
SO ORDERED. /s/ Judge John A. Woodcock, Jr. CHIEF UNITED STATES DISTRICT JUDGE
Dated this 31st day of January, 2011
22

 
 Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 1 of 13 PageID #: 758

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JACOB VAN METER, ADAM FLETCHER by and through his guardian GAIL FLETCHER, and ERIC REEVES, on behalf of themselves and other similarly situated individuals,
Plaintiffs,
v.
BRENDA HARVEY, COMMISSIONER OF MAINE DEPATMENT OF HEALTH AND HUMAN SERVICES,
Defendant.

) ) ) ) ) Civil Docket no. 1:09-cv-00633-NT ) ) ) ) ) ) ) ) ) ) ) )

OPINION AND ORDER ON PROPOSED SETTLEMENT The parties have entered into a proposed Settlement Agreement of Plaintiffs’ class action suit seeking injunctive and declaratory relief under Title II of the Americans with Disabilities Act, 42 U.S.C § 12132, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), the Medicaid Act, 42 U.S.C. §§ 1396r(e)(7), §1396a(a)(8), 1396a(a)(10)(A), and 42 U.S.C. § 1983. The proposed Settlement Agreement provides for a Home and Community Based Waiver (HCBW) program, Preadmission Screening and Annual Resident Review (PASARR) screening and evaluations, and specialized services for Jacob Van Meter, Adam Fletcher, and Eric Reeves, the named Plaintiffs, and a class of others similarly situated.1

1

In January of 2011, this Court certified the Plaintiff class, defined as:

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 2 of 13 PageID #: 759
A fairness hearing was held on April 24, 2012 on the proposed Settlement
Agreement. For the reasons that follow, the Court finds that the proposed
Settlement Agreement is fair, adequate, and reasonable and hereby APPROVES
the Settlement Agreement.
Rule 23(e)(2) Fairness Determination
Federal Rule of Civil Procedure 23(e)(2) allows the Court to settle a class
action “after a hearing and on finding that it is fair, reasonable, and adequate.” Fed.
R. Civ. P. 23(e)(2). Courts consider a number of factors in determining whether a
proposed settlement agreement is “fair, reasonable, and adequate.”
There is no single test in the First Circuit for determining the fairness, reasonableness and adequacy of a proposed class action settlement. In making this assessment, other circuits generally consider the negotiating process by which the settlement was reached and the substantive fairness of the terms of the settlement compared to the
Maine residents who currently are or in the future will be: (1) eligible for and enrolled in MaineCare, (2) age 21 or older, (3) have a related condition as defined at 42 C.F.R. § 435.1010, other than autism, and who do not have a diagnosis of Alzheimer’s or dementia, and (4) who are or should be screened for admission to nursing facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R. § 483.112 et seq.
Order Granting Motion to Certify Class (Doc. No. 41). 42 C.F.R. § 435.1010 defines a related condition as:
[A] severe, chronic disability that meets all of the following conditions: (a) It is attributable to —
(1) Cerebral palsy or epilepsy; or (2) Any other condition, other than mental illness, found to be closely related to mental
retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons. (b) It is manifested before the person reaches age 22. (c) It is likely to continue indefinitely. (d) It results in substantial functional limitations in three or more of the following areas of major life activity: (1) Self-care. (2) Understanding and use of language. (3) Learning. (4) Mobility. (5) Self-direction. (6) Capacity for independent living.
42 C.F.R. § 435.1010.
2

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 3 of 13 PageID #: 760
result likely to be reached at trial. Specifically, the appellate courts consider some or all of the following factors: (1) comparison of the proposed settlement with the likely result of litigation; (2) reaction of the class to the settlement; (3) stage of the litigation and the amount of discovery completed; (4) quality of counsel; (5) conduct of the negotiations; and (6) prospects of the case, including risk, complexity, expense and duration. In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 206 (D. Me. 2003); see also Durrett v. Hous. Auth. of City of Providence, 896 F.2d 600, 604 (1st Cir. 1990) (district court must “assure itself” that parties have validly consented to settlement, reasonable notice has been given to potential objectors, settlement does not violate federal law, settlement is not impermissible as to third parties, and court’s continued involvement is not burdensome). The First Circuit also recognizes a presumption in favor of a proposed settlement agreed to after meaningful discovery and arms-length negotiations. City P’ship Co. v. Atl. Acquisition Ltd. P’ship, 100 F.3d 1041, 1043 (1st Cir. 1996). The Court will consider each of the relevant factors in turn.2 1. Comparison of Proposed Settlement with Likely Result of Litigation The Plaintiffs have a strong case and were likely to prevail at least in part at trial. In Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003), a group of nursing home residents with mental retardation or other developmental disabilities residing in Massachusetts nursing homes brought a class action suit on behalf of themselves and others similarly situated alleging, like the Plaintiffs, violations of 42 U.S.C. §

2

The Court notes as a threshold matter that the parties have consented to the proposed settlement, the

proposed settlement is consistent with federal law, and the proposed settlement is not impermissible as to any

affected third parties.

3

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 4 of 13 PageID #: 761

1396r and seeking injunctive relief.3 Rolland, 318 F.3d at 44. Following a magistrate judge’s denial of the Commonwealth’s motion to dismiss, the Rolland plaintiffs and the Commonwealth entered into a settlement agreement that operated as a stay of litigation. Id.; see also Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass. 2000) (approving the settlement agreement). In the settlement agreement, the Commonwealth committed to providing specialized services for all Massachusetts nursing home residents identified by the PASARR process as needing them. Rolland, 318 F.3d at 44. When the Commonwealth subsequently failed to do so, on plaintiffs’ motion the magistrate judge lifted the stay and found that the plaintiffs had a privately enforceable right to specialized services under federal law. Id. at 45. The First Circuit affirmed, holding that states have a duty to provide specialized services that constitute active treatment as required under § 1396r(e)(7), and that this duty can be enforced by suit under § 1983. Id. at 55, 57. Rolland is a powerful precedent for Plaintiffs’ position that they are entitled to injunctive relief enforcing the PASARR evaluation, specialized services, and active treatment requirements of § 1396r(e)(7).
The proposed Settlement Agreement gives the named Plaintiffs and the Plaintiff class almost all of the relief they requested in their Amended Complaint. Because the Plaintiffs are receiving so much of their requested relief in the proposed Settlement Agreement, the Court is not concerned that the Plaintiffs by

3

Section 1396r’s screening and specialized services requirements apply equally to individuals with mental

retardation and individuals with other related conditions, like the named Plaintiffs and the Plaintiff class. See §

1396r(e)(7)(g)(ii) (“An individual is considered to be ‘mentally retarded’ if the individual is mentally retarded or a

person with a related condition . . . .”).

4

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 5 of 13 PageID #: 762
agreeing to the proposed Settlement Agreement are unnecessarily and unreasonably sacrificing relief they might ultimately have recovered at trial.
a. Plaintiffs’ Amended Complaint In their Amended Complaint, the Plaintiffs requested that the named Plaintiffs and the Plaintiff class, with reasonable promptness, be screened and evaluated consistent with the PASARR provisions of the Nursing Home Rehabilitation Amendments to the Medicaid Act; provided with comprehensive assessments, evaluations, and screenings to determine eligibility for community services; provided with appropriate services with reasonable promptness; have the choice to receive community services in either an institutional or integrated community setting; be provided with long-term care services and supports in the community; and, lastly, that Maine DHHS refrain from providing long-term care solely in institutional only. Amended Complaint at 22 (Doc. No. 30). b. The Proposed Settlement The proposed Settlement Agreement has two main parts: first, the establishment of an HCBW program for the named Plaintiffs and the Plaintiff class, and second, the provision of PASARR Level I screenings, PASARR Level II evaluations and specialized services for the named Plaintiffs and the Plaintiff class. The “Home and Community Based Waiver” is defined by the proposed Settlement Agreement as “a program for home and community based services approved and operated pursuant to Section 1915(c) of the Social Security Act, codified at 42 U.S.C. § 1396n(c).” Settlement Agreement at 1 (Doc. No. 77-1). The
5

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 6 of 13 PageID #: 763
proposed Settlement Agreement provides that the Defendant will develop and institute an HCBW program for the Plaintiff class that will include
[H]ome supports; community supports; employment specialist services; work supports; home accessibility adaptations; communication aids; transportation services; assistive technology; consultation services and assessments; counseling and crisis services; maintenance occupational, physical and speech therapy; case management and specialized medical equipment to the extent that those services are subject to federal financial participation under the Medicaid program. Id. at 3. The HCBW program will offer services to 15 members of the Plaintiff class for its first year and an additional 10 members for each additional year, up to 75 members. Id. Participation in the HCBW is completely voluntary. Class members who wish to continue living in nursing homes do not have to apply for the HCBW program. The proposed Settlement Agreement also provides that within 30 days of entry of the Settlement Agreement, Maine DHHS will remind all nursing facilities of their responsibility to screen and identify residents who they know or suspect have a “related condition” as required under PASARR Level I; within 60 days of entry of the Settlement Agreement, Maine DHHS will perform a program review of its PASARR Level II process for compliance with federal regulations; within 45 days of Maine DHHS’s review of its PASARR Level II process, the Plaintiffs’ experts will work with Maine DHHS to revise its PASARR Level II process if necessary, and once a revised process is in place, Maine DHHS will perform within 60 days PASARR II evaluations of all of the Plaintiff class and provide specialized services within 30 days of the evaluation to any member of the Plaintiff class identified as
6

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 7 of 13 PageID #: 764
requiring specialized services. Id. at 5. Maine DHHS will also assign a case monitor to each member of the Plaintiff class and establish a Complex Case Group to review difficult and unusual cases. Id. at 6.
Maine DHHS has already begun to comply with many of the provisions of the proposed Settlement Agreement. It has hired a coordinator for the HCBW program and assigned case monitors to the Plaintiff class members. It has applied for the HCBW program with CMS, received CMS’s questions about the application, and prepared answers to CMS’s questions, which, once submitted, will begin CMS’s approval process for the HCBW program. Defendant’s counsel informed the Court that she believes that CMS will approve the HCBW application. The HCBW program will be funded in fiscal year 2013 using funds already within the Office of Adults with Cognitive and Physical Disabilities’ budget. For fiscal year 2014, there will be a line item in the budget for waiver services.
Maine DHHS has already notified nursing facilities of their responsibility to screen individuals with related conditions under PASARR I. It has also already reviewed its PASARR II process and held initial meetings with Plaintiffs’ experts about revisions to the process. Finally, it has established a Complex Case team as required under the proposed Settlement Agreement.
In addition to achieving their primary goal of allowing the named Plaintiffs and the Plaintiff class an opportunity to live independently, the Plaintiffs have essentially received all of the injunctive relief requested in the Amended Complaint.
7

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 8 of 13 PageID #: 765

Therefore, the Court is satisfied that the substance of the proposed settlement is fair, reasonable, and adequate.
2. Reaction of Class a. Objections The Court has only received one objection to the proposed Settlement
Agreement from a current nursing facility resident who wishes to remain in her nursing facility. Objection to Settlement (Doc. No. 104).4 The Court does not consider this an objection to the terms of the proposed Settlement Agreement, which does not require that any class members leave their nursing facilities. The Court considers the absence of any other objections to the proposed Settlement Agreement significant.
b. Notice The Court is satisfied that the notice that was mailed to class members, which was reviewed by the Court, was clear and provided class members with a meaningful opportunity to object to the proposed Settlement Agreement. See Notice to Class (Doc. No. 96-2). Plaintiffs’ counsel sent out notices to the 121 class members identified by Maine DHHS, of which only two were returned as undeliverable. Approximately sixty additional notices were sent out to individuals who were identified as responsible parties to class members. Only two of the notices sent to those approximately sixty responsible parties were returned as undeliverable.

4

The objection reads: “I do not agree with [the proposed settlement] because I have been assessed by the

State of Maine and wish to continue to reside in the Nursing Facility in which I am currently living.”

8

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 9 of 13 PageID #: 766
The notice to class members made clear that if class members agreed with the terms of the proposed Settlement Agreement, they were not required to do anything else. The notice also informed class members that they could return a form attached to the notice authorizing Maine DHHS to give their health information to Plaintiffs’ counsel if they wished to have class counsel ensure that they got the benefits to which they were entitled under the proposed Settlement Agreement. Twenty-eight members of the class returned the form and authorized Maine DHHS to release their health information; five returned the form affirmatively refusing the release of their health information. Of the twenty-eight authorizations, sixteen were from class members who currently reside in nursing facilities. Of the five refusing to disclose, two were from class members currently residing in nursing facilities.
The Court is convinced by the absence of objections and the proportion of class members who expressed their interest by returning the form authorizing release of their health information that the class views the proposed Settlement Agreement favorably.
3. Litigation Stage and Amount of Discovery The Court next considers whether the discovery conducted prior to the
proposed settlement “enabled the attorneys to assess the merits of the action and negotiate a principled compromise.” Rolland, 191 F.R.D. at *10. The parties conducted discovery to identify class members, gather information about the class members, and obtain the financial details of DHHS’s existing programs. The
9

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 10 of 13 PageID #: 767
discovery included several depositions of DHHS officials, written interrogatories and production of documents.
While there was no dispositive motion practice in this case, the motion to certify the class and a motion for a preliminary injunction were vigorously contested. The Court is satisfied that the litigation had proceeded to a point where there was sufficient development of the issues and adequate discovery to assess the merits of the action and negotiate a fair settlement.
4. Quality of Counsel The Court must be confident that counsel representing the named Plaintiffs
and Plaintiff class advocated skillfully and zealously on their clients’ behalf. In Re New Motor Vehicles Canadian Export Antitrust Litigation, No. 1532, 2011 WL 1398485, at *3 (D. Me. April 13, 2011). The Rolland court noted that when the parties’ counsel are experienced and knowledgeable, “their representations to the court that the settlement provides class relief which is fair, reasonable and adequate should be given significant weight.” Rolland, 19 F.R.D. at *10 (citing Bussie v. Allmerica Fin. Corp., 50 F. Supp. 2d 59, 72 (D. Mass. 1999)).
The record includes affidavits from Plaintiffs’ counsel detailing their credentials to litigate this suit. Mr. Young has handled numerous class actions, as well as numerous disability discrimination suits under the Americans with Disabilities Act. He has served as the chapter editor for the BNA’s Employment Discrimination Law treatise, and he helped draft Maine’s disability discrimination statute. Affidavit of Jeffrey Neil Young (Doc. No. 25). Mr. Comart is employed by
10

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 11 of 13 PageID #: 768
the Maine Equal Justice Foundation, which has represented plaintiffs in class actions for over 25 years. Affidavit of Jack Comart (Doc. No. 27). Ms. Converse is employed by The Disability Rights Center, which has represented plaintiff classes in numerous class action suits for people with disabilities, and individual plaintiffs with disabilities in numerous claims in the State of Maine. Affidavit of Staci Converse (Doc. No. 28). Ms. Perkins is employed by the National Health Law Program, which has substantial expertise in health law and civil rights litigation and has successfully litigated many Medicaid cases and class action suits. Affidavit of Martha Jane Perkins (Doc. No. 26). The Court is satisfied that class counsel are well-qualified and experienced.
5. Conduct of Negotiations The “conduct of negotiations” inquiry looks at whether the proposed
Settlement Agreement is the result of a good faith, arms-length negotiation, and whether there is any evidence of collusion between the parties. Rolland, 191 F.R.D. at *11.
Before the parties entered settlement negotiations with Magistrate Judge Rich but after they had decided that they wished to reach a settlement, the parties discussed the framework of a potential settlement. On June 24, 2011, the parties spent almost a full day in a settlement conference with Magistrate Judge Rich and left the conference with an overall agreement but without settling many of the details of the HCBW program. After the settlement conference the parties met at least once a week until the end of August to work out the remaining details of the
11

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 12 of 13 PageID #: 769
proposed Settlement Agreement and moved for a 30-day extension to complete the Settlement Agreement.
The Court is satisfied that the proposed Settlement Agreement was the result of good faith negotiations and that there was no collusion between the parties.
6. Expense And Duration of Continued Litigation At the fairness hearing, counsel for both parties represented to the Court
that continuing with litigation would have been costly for both parties, requiring expensive expert testimony on both sides. Similar cases in other states that have not settled have resulted in lengthy, drawn-out proceedings, and both parties’ counsel believe that the expeditiousness of the proposed Settlement Agreement is in the best interests of the population that the proposed Settlement Agreement will serve.
7. Recommendation of Neutral Parties The Court did not receive any evaluations of the proposed Settlement
Agreement by neutral parties. However, Plaintiffs’ counsel informed the Court that disability rights advocates at the National Health Law Program, particularly Martha Jane Perkins of the National Health Law Program, admitted pro hac vice for purposes of this suit, believe that the proposed Settlement Agreement was very favorable to the Plaintiffs.
8. The Court’s Continued Involvement If Maine DHHS is able to implement the HCBW program without first
establishing any Intermediate Care Facilities for Other Related Conditions (ICFs-
12

Case 1:09-cv-00633-NT Document 107 Filed 05/02/12 Page 13 of 13 PageID #: 770

ORC),5 the proposed settlement provides that the Court will retain jurisdiction “solely for the purposes of mediation and enforcement of the terms of the settlement agreement” for three years following the Court’s approval of the proposed settlement. Settlement Agreement at 8 (Doc. No. 77-1). If Maine DHHS is required first to establish ICFs-ORC, the parties may either jointly move the Court for a reasonable extension of its jurisdiction for purposes of mediation and enforcement of the proposed settlement’s terms, or either party may move the Court for an extension of the Court’s jurisdiction for purposes of mediation and enforcement if the parties are unable to agree on the duration of the extension. Id. The Court is satisfied that the Court’s three-year retained jurisdiction will not be unduly burdensome.
CONCLUSION Having considered all of the appropriate factors, the Court finds that the proposed settlement is fair, adequate, and reasonable, and hereby APPROVES the settlement. A separate order will issue. The Court will retain jurisdiction in accordance with the terms of the Settlement Agreement. SO ORDERED.
/s/ Nancy Torresen United States District Judge Dated this 2nd day of May, 2012.

5

There was initially some concern that CMS might require the establishment of ICFs-ORC prior

to establishing an HCBW for the Plaintiff Class in order to provide cost data acceptable to the CMS

to support the state’s application for an HCBW. The proposed Settlement Agreement contains

provisions dealing with this possible contingency. Defendant’s counsel indicated at the fairness

hearing that the she believes that CMS will allow the state to use cost data from ICFs for Mentally

Retarded individuals in lieu of ICFs-ORC for purposes of the waiver application.

13

 
 Case 1:09-cv-00633-NT Document 108 Filed 05/02/12 Page 1 of 3 PageID #: 771

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

JACOB VAN METER, ADAM FLETCHER by and through his guardian GAIL FLETCHER, and ERIC REEVES, on behalf of themselves and other similarly situated indviduals
Plaintiffs,
v.
BRENDA HARVEY, COMMISSIONER OF MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant.

) ) ) ) ) Civil Docket no. 1:09-cv-00633-NT ) ) ) ) ) ) ) ) ) ) ) )

ORDER ON DISMISSAL Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the parties, by and through their respective counsel, have jointly moved this Court for an Order of Dismissal, without prejudice, of this action. The Court determines that pursuant to Fed. R. Civ. P. 23(e), reasonable notice, with an opportunity to object, has been provided to members of the Plaintiff class. A fairness hearing having been held, with no objections having been filed or made, this Court, being otherwise sufficiently advised, finds that the Settlement Agreement entered into between the parties on August 25, 2011 is fair, reasonable and adequate.

Case 1:09-cv-00633-NT Document 108 Filed 05/02/12 Page 2 of 3 PageID #: 772
Accordingly, this Court hereby GRANTS the Motion and ORDERS as follows:
1. The terms and conditions of the Settlement Agreement entered into between the parties on the 25th day of August, 2011 are incorporated herein by reference;
2. The Court shall retain jurisdiction as follows: a. If the Defendant is able to implement the HCBW without establishing any ICFs-ORC, the Court shall retain jurisdiction solely for the purposes of mediation and enforcement of the terms of the settlement agreement for a term of three years from the date of this Order. b. If the Defendant is unable to implement the HCBW without establishing any ICFs-ORC, the parties will mediate in an attempt to reach an agreement upon a reasonable extension of the retention of the Court’s jurisdiction solely for purposes of mediation and enforcement of the terms of the Settlement Agreement. i. If the parties reach agreement, the parties shall file a joint motion with the Court seeking the agreed-to extension of the retention of the Court’s jurisdiction. ii. If the parties cannot reach agreement after mediation, either party may seek an extension of time of this Court’s jurisdiction
2

Case 1:09-cv-00633-NT Document 108 Filed 05/02/12 Page 3 of 3 PageID #: 773
solely for the purposes of mediation and enforcement of the terms of the settlement agreement.

SO ORDERED. Dated this 2nd day of May, 2012.

/s/ Nancy Torresen United States District Judge

3

 
 Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 1 of 21 PageID #: 339

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

JACOB VAN METER, et. al.,

)

)

Plaintiffs,

)

v.

)

) MARY MAYHEW,1 COMMISSIONER, )

MAINE DEPARTMENT OF HEALTH )

AND HUMAN SERVICES,

)

)

Defendant.

)

Civil Action No. 1:09-cv-00633

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION WITH INCORPORATED MEMORANDUM OF LAW

NOW COME the named Plaintiffs, by and through their undersigned counsel, and move for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. 2
I. INTRODUCTION

In the summer of 2010, Eric Reeves, a 34-year-old young man with Cerebral Palsy began to walk

for the first time in his life. He was able to take his first few steps as a result of months of physical

therapy, which helped him gain strength and balance. He worked his way up to 210 steps. Then, because

the state Medicaid agency determined that Eric had reached a “plateau,” it stopped covering physical

therapy for him. Eric’s legs weakened again. Before long he was back in his wheelchair, back at square

one, unable to walk again. Had the State of Maine been in compliance with federal Medicaid law, it is

likely that Eric would have continued to receive physical therapy services and maintained his ability to

walk because the State has a duty to provide him with “specialized services” that equate to “active

treatment”: services designed to allow an individual with disabilities to function as independently and

with as much self-determination as possible, and to prevent or decelerate regression and loss of abilities.
1 This action was originally filed against then Commissioner Brenda Harvey. Pursuant to Fed.R.Civ.P. 25(d), Mary Mayhew, as Ms. Harvey’s successor, is automatically substituted as a party. See Currier v. Leavitt, 490 F.Supp.2d 1, n.1 (D. Me. 2007). 2 Although the Court, on January 31, 2011, granted the Plaintiffs’ Motion for Class Certification, this motion is brought only on behalf of the three individually-named Plaintiffs.

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 2 of 21 PageID #: 340
Active treatment, by its very definition, is intended to guard against such irreparable harm to individuals with developmental disabilities. Because Eric and the other named Plaintiffs have been and continue to be irreparably harmed by the state’s failure to comply with the active treatment mandate, they seek a preliminary injunction to assure that they receive necessary services to prevent further regression and loss of abilities.
The three named Plaintiffs in this case are young men with diagnoses of Cerebral Palsy who are confined to nursing facilities due to the Defendant’s failure to provide them with adequate services that if provided could enable them to live in the community. Each Plaintiff has the right under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1974 to appropriate services in the least restrictive setting; however, until such services are made available to them, they have no choice but to live in nursing facilities. While they remain in nursing facilities, the law requires that Defendants ensure that they receive services “directed toward (i) The acquisition of the behaviors necessary … to function with as much self-determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. §§ 483.120(a)(2), 483.440(a). The Defendant has failed to provide these services. Because the lack of these services is causing Plaintiffs irreparable harm, as they regress, lose skills, and are denied the chance to develop new ones, Plaintiffs request a preliminary injunction that requires Defendant to comply with the Pre-Admission Screening and Resident Review (PASRR) requirements of the Nursing Home Reform Amendments (NHRA) and to provide these important services with “reasonable promptness” in compliance with federal Medicaid law.3
3 See Counts V, VI and VII of Plaintiffs’ First Amended Class Action Complaint.
2

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 3 of 21 PageID #: 341
II. STATEMENT OF FACTS Background of the Pre-Admission Screening and Resident Review (PASRR) Process
In 1987, Congress passed the Nursing Home Reform Amendments to the Medicaid Act to address the widespread problem of warehousing people with psychiatric and developmental disabilities in the nation’s nursing facilities. 42 U.S.C. § 1396r. Congress enacted the Pre-Admission Screening and Resident Review Provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities by screening and assessing potential residents for their needs for supportive services. Rolland v. Romney, 318 F.3d 42, 45-46 (1st Cir. 2003).
The PASRR pre-admission screening (“PASRR Level I”) is designed to identify individuals suspected of having mental illness, mental retardation, or related conditions. See 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. §§ 435.1010, 483.128. “Related conditions” are chronic disabilities that manifest before age 22 and include disabilities that are attributable to Cerebral Palsy or epilepsy. See 42 U.S.C. § 1396r(e)(7)(G); 42 C.F.R. § 435.1010. If the PASSR Level I screening identifies that an individual is suspected of having mental illness, mental retardation, or related conditions, the State must conduct a PASRR Level II evaluation of that individual. See 42 U.S.C. § 1396r(e)(7); 42 C.F.R. § 483.128. The function of the PASRR Level II evaluation is to determine whether a person is appropriate for admission to a nursing facility because he or she needs a level of care that can only be provided in a nursing facility and, if so, whether the person needs specialized services while living in the nursing facility. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.126, 483.128, 483.132, 483.136.
If the PASRR Level II evaluation determines that an individual does not require nursing facility services, but instead that services can be provided in a non-institutional setting, states have a mandatory duty to offer the individual a choice of remaining in the facility or receiving services in an alternative,
3

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 4 of 21 PageID #: 342
appropriate, noninstitutional setting. 42 U.S.C. §§ 1396r(e)(7)(C)(i-ii); 42 C.F.R. §§ 483.118(c), 483.130(m). On the other hand, even if an individual qualifies for the level of care that is typically provided in a nursing facility, the PASRR Level II evaluation must determine whether a nursing facility is the appropriate setting for meeting an individual’s needs and consider alternate placements. See 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.126, 483.132(a)(4). For example, home and communitybased “waiver” programs provide “Medicaid reimbursement to States for the provision of communitybased services to individuals who would otherwise require institutional care.” See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, n.12 (1999).
In the PASRR Level II evaluation, if the Defendant confirms that the person has a related condition, it must determine whether specialized services are needed based on characteristics commonly associated with the need for specialized services. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.120(a)(2), 483.136. The PASRR Level II evaluation must document, inter alia, the individual’s need for assistance with activities of daily living; level of sensorimotor development; social development; academic and educational development; ability to live independently; and vocational development. See 42 U.S.C. § 1396r(e)(7)(B); 42 C.F.R. §§ 483.130, 483.136. Specialized services consist of an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services that are aimed at allowing the individual to function as independently and with as much self-determination as possible, and services designed to prevent or decelerate regression and loss of abilities. 42 U.S.C. § 1396r(e)(7)(G)(iii); 42 C.F.R. §§ 483.120(a)(2), 483.440(a)(1).
After conducting the PASRR Level II evaluation, the Defendant must notify the individual of its determinations. See 42 U.S.C. § 1396r(e)(7)(C); 42 C.F.R. § 483.130. This notice must include: (1) whether nursing facility level of care is necessary, (2) whether specialized services are necessary, (3) and
4

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 5 of 21 PageID #: 343
placement options available to the individual. See 42 U.S.C. § 1396r(e)(7)(C); 42 C.F.R. § 483.130. This notice must also inform the individual of his or her right to appeal the State’s PASRR Level II evaluation determinations. 42 U.S.C. § 1396r(e)(7)(F); 42 C.F.R. § 483.130.
If the PASRR Level II evaluation determines that an individual needs specialized services, the State is required to “provide for (or arrange for the provision of)” needed specialized services. 42 U.S.C. § 1396r(e)(7)(C)(i)(IV); 42 C.F.R. § 483.118(c). Following admission to a nursing facility, annual reviews must be conducted to determine whether an individual with a related condition continues to need a nursing level of care and to require confinement in a nursing facility or whether the individual’s needs could be met in the community. 42 U.S.C. § 1396r(e)(7)(B)(ii); 42 C.F.R. §§ 483.106(a)(3), 483.114(b), 483.130, 483.132.
Whenever the PASRR review process determines that the person needs services in the nursing facility or outside of the nursing facility, those services that are covered under Maine’s MaineCare program must be provided with “reasonable promptness.” 42 U.S.C. § 1396a(a)(8), (a)(10)(A); 42 C.F.R. § 435.930.
a. The Named Plaintiffs i. Jacob Van Meter
Plaintiff Jacob Van Meter is a twenty-seven (27) year-old MaineCare recipient who resides in a nursing facility located in the Town of Ellsworth, County of Hancock, in the State of Maine. Aff. of Jacob Van Meter ¶ 2. Van Meter has Cerebral Palsy, a neurological disorder that profoundly and permanently affects his body movement and muscle coordination. Id. As a result of this disability, Van Meter requires assistance with his activities of daily living, including dressing, feeding, and mobility, among other activities. Id. Despite Van Meter’s disability, his cognitive functions are not limited; he completed high school and is now taking college courses. Id.
5

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 6 of 21 PageID #: 344
For several years, Defendant failed to evaluate Van Meter to determine his need for specialized services and to determine whether alternate community placements were appropriate for him, as required by the NHRA. Id. at ¶ 3,7. As a result, Van Meter has been compelled unnecessarily to reside in a nursing facility, where he is surrounded by much older people and where he is cut-off from his peers and opportunities to grow, learn, socialize, work and do the activities that people his age experience. Id. at ¶ 3. He has been denied services that would help him learn skills to become more independent, such as an augmentive communication device for better communication, and a power wheelchair for better mobility. Id. at ¶ 4.
On July 9, 2010, after he filed the instant action, Defendant informed Van Meter that it had found him eligible to receive specialized services and for the first time specified the specialized services that Defendant alleges he is entitled to receive. Id. at ¶¶ 5-6. To date, however, Defendant has not provided Van Meter with most of the specialized services it determined that he needs, such as the communication services mentioned above. Id. at ¶ 6. Further, the services it did identify do not amount to “active treatment,” because they do not reflect an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services that are aimed at allowing the individual to function as independently and with as much selfdetermination as possible, and services designed to prevent or decelerate regression and loss of abilities. Aff. of Lyn Rucker ¶ 13.
ii. Adam Fletcher Plaintiff Adam Fletcher’s claim is brought on his behalf through his legal guardian, Gail Fletcher. Aff. of Gail Fletcher on behalf of Adam Fletcher ¶ 1. Gail Fletcher’s legal residence is in the Town of Ellsworth, County of Hancock, in the State of Maine. Id. at ¶ 2. Adam Fletcher is a twenty-eight (28) year-old MaineCare recipient who resides in a nursing facility located in the Town of Freeport, County
6

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 7 of 21 PageID #: 345
of Cumberland, State of Maine. Id. Up until August 5, 2010, for the previous three years, he had resided in a facility located in Braintree, Massachusetts, having been placed there by Defendant. Id. at ¶ 3.
Fletcher has Cerebral Palsy, a neurological disorder that has profoundly and permanently affects his body movement and muscle coordination. Id. at ¶ 4. As a result of his disability, Fletcher requires assistance with his activities of daily living including dressing, feeding, and mobility, among other activities. Id. Despite Fletcher’s disability, his cognitive functions are not limited; prior to entering a nursing facility, Fletcher graduated from high school, was a member of the National Honor Society, and planned to attend college. Id.
For many years, Defendant failed to evaluate Fletcher to determine his need for specialized services and to determine whether alternate community placements were appropriate for him, as required by the NHRA. Id. at ¶ 5-6. As a result, Fletcher has been compelled unnecessarily to reside in a nursing facility, first in Massachusetts, and now in Maine. Id. For the past three years, Fletcher has been deprived of necessary services that could increase his level of independence and prevent the loss of his functions: there has been a marked decline in his abilities; he used to be much more capable, but has gotten worse physically; he used to be able to feed himself and shave himself, but now he even has trouble driving his own power wheelchair. Id. at ¶ 7.
On July 9, 2010, after Fletcher filed the instant action, Defendant informed Fletcher that it had found him eligible to receive specialized services and for the first time specified the specialized services that Defendant alleges he is entitled to receive. Id. ¶ 6. To date, however, Defendant has not provided Fletcher with most of the specialized services it determined that he needs. Id. Further, the services it did identify do not amount to “active treatment.” Aff. of Lyn Rucker ¶ 13.
iii. Eric Reeves Plaintiff Eric Reeves is a thirty-four (34) year-old MaineCare recipient who resides in a nursing
7

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 8 of 21 PageID #: 346
home in the City of Bangor, County of Penobscot, State of Maine. Decl. of Eric Reeves at ¶ 2. Reeves has Cerebral Palsy, a neurological disorder that has profoundly and permanently affected his body movement and muscle coordination. Id. at ¶ 3. As a result of his disability, Reeves requires assistance with his activities of daily living including dressing, feeding, and mobility, among other activities. Id. Despite Reeves’ disability, his cognitive functions are not limited. Id. Prior to entering the present facility, Reeves had lived at various times in the community, even working for some time at a national retail store; however, due to the lack of appropriate services in the community, he was forced to live in a nursing facility. Id. For more than two years, Defendant failed to evaluate Reeves to determine his need for specialized services and to determine whether alternate community placements were appropriate for him, as required by the NHRA. Id. at ¶ 4. As a result, Reeves has been compelled unnecessarily to reside in a nursing facility for the past two years deprived of necessary services that could increase his level of independence and prevent the loss of his functions, such as his ability to walk. Id. at ¶ 7.
On July 9, 2010, after Reeves filed the instant action, Defendant informed Reeves that it had found him eligible to receive specialized services and for the first time specified the specialized services Defendant alleges determined that he needs. Id. at ¶ 5. To date, however, Defendant has not provided Reeves with most of the specialized services it determined that he needs, such as speech therapy and an augmentive communication device for greater communication abilities. Id. Further, the services it did identify, such as a referral to another facility, do not amount to “active treatment.” Id. at ¶¶ 13-14. III. ARGUMENT
Plaintiffs meet the criteria for issued a preliminary injunction. When determining whether to grant such relief, the Court must consider four factors: “(i) the likelihood that the movant will succeed on the merits; (ii) the possibility that, without an injunction, the movant will suffer irreparable harm; (iii) the balance of relevant hardships as between the parties; and (iv) the effect of the court's ruling on the
8

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 9 of 21 PageID #: 347

public interest.” Waldron v. George Weston Bakeries, Inc., 570 F.3d 5, 9 (1st Cir. 2009). “The party

seeking the preliminary injunction bears the burden of establishing that these four factors weigh in its favor.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
The Plaintiffs Are Likely to Succeed on the Merits “The sine qua non of [the] four-part inquiry is likelihood of success on the merits….” New Comm Wireless Services, Inc. v. SprintCom, Inc., 287 F.3d 1, 18 (1st Cir. 2002). In evaluating a motion

for preliminary injunction, “a court’s conclusions as to the merits of the issues presented … are to be understood as statements of probable outcomes.” Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6

(1st Cir. 1991).

i. The Defendant has violated Plaintiffs’ rights under the NHRA by failing to provide required “specialized services”

Defendant’s failure to provide Plaintiffs Van Meter, Fletcher, and Reeves with “specialized

services” compels the conclusion that Plaintiffs are likely to succeed on the merits of their claims. The

First Circuit has confirmed that the NHRA requires states to provide individuals with developmental

disabilities in nursing facilities specialized services “in a way that results in active treatment when combined with services provided by nursing facilities and others.” Rolland v. Romney, 318 F.3d 42, 58

(1st Cir. 2003). Here, Defendant has admitted that not only did it fail to conduct a PASRR Level II

evaluation for all of the Plaintiffs for many years in violation of the NHRA, Depo. of Kathy Bubar at 15-

17, 24, but even after it finally completed the evaluations, it failed to provide Plaintiffs with most of the

very services it identified. Aff. of Jacob Van Meter ¶ 6-7; Decl. of Eric Reeves ¶ 5-6; Aff. of Gail

Fletcher ¶ 6.

“Active treatment” is an array of services that help individuals with developmental disabilities to

acquire behaviors that increase independence and prevent the loss of functional abilities. 42 C.F.R. §§

9

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 10 of 21 PageID #: 348
483.120(a)(2),483.440(a)(1). Active treatment can be broken down into multiple components, including a Comprehensive Functional Assessment (CFA), 42 C.F.R. § 483.440(c)(3); the formation of an Interdisciplinary Team (IDT), 42 C.F.R. § 483.440(c); the creation of an Individual Program Plan (IPP), 42 C.F.R. § 483.440(c)(4-6); the consistent implementation of the IPP in all relevant settings in order to meet objectives, 42 C.F.R. § 483.440(d); the receipt of services by trained staff in accordance with the person’s needs and IPP; accurate, systemic data about the person’s performance toward meeting the criteria stated in the IPP objectives, 42 C.F.R. § 483.440(c) & (f); the development of increased skills and independence in functional life areas, or maintenance of an individual’s functions to the maximum extent possible; and finally, the monitoring and change of the IPP based on the changing circumstances of the individual, 42 C.F.R. § 483.440(f). Aff. of Lyn Rucker, ¶ 2-9.
Defendant has already conceded that, until the present lawsuit was filed, it had unqualifiedly failed to comply with the PASRR requirements for individuals with “related conditions” such as Cerebral Palsy. Depo. of Kathy Bubar at 15-17, 24. On or about July 9, 2010, the Defendant issued a “final determination” indicating that each Plaintiff met the criteria for having an “other related condition” under Medicaid law and is eligible to receive specialized services. [PASRR II notifications]. Claire Harrison, a social worker acting on the Defendant’s behalf, evaluated reports completed by Defendant’s consulting physicians, Dr. Jerrold C. Edelberg and Dr. Cairbre MacCann, as well as the Plaintiffs’ relevant medical records, and made recommendations for Plaintiffs to receive certain services, which Defendants categorizes as “specialized services.” Id. Copies of the reports of Ms. Harrison (PASRR Level II), Dr. Edelberg, and Dr. MacCann are attached to the Declaration of Jeffrey Neil Young as Exhibits 2-8.
The Defendant’s determination of what constitutes “specialized services” for each of the named Plaintiffs is wholly inadequate and inconsistent with the requirements of the NHRA. The Defendant
10

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 11 of 21 PageID #: 349
failed to identify “specialized services” that, when combined with other services provided by the nursing facility “result in a continuous and active treatment program.” Aff.of Lyn Rucker, ¶ 14. The evaluations performed by the Defendant largely recommends additional assessments and evaluations, such as referrals to other nursing facilities; these assessments and evaluations are not “services,” but rather determinations necessary to evaluate what services are needed. Id. The Defendant has failed to complete Comprehensive Functional Assessments for each of the named Plaintiffs, as required by 42 C.F.R. § 483.440(c)(3); Defendant completed only two of the expected ten assessment areas for Plaintiffs Van Meter and Fletcher, and only three of the expected assessment areas for Plaintiff Reeves. Id. at ¶ 15. Although there are Plans of Care for each of the named Plaintiffs in the nursing facility in which he currently resides, the Defendant has failed to complete Individual Program Plans for each of the named Plaintiffs. Id. at ¶ 16. In many instances the goals targeted in the Plans of Care are not based on any apparent assessment, and targeted outcomes established by the Plans of Care generally are not being achieved. Id. In sum, the requirements of Active Treatment are not being implemented as required by Medicaid regulation. Id. at ¶ 13.
Even if the services identified by Defendant back in July of 2010 were not legally and medically insufficient, the Defendant has failed to provide most of these very services it recommended for the Plaintiffs. For example, the Defendant’s agent recommended that Plaintiff Eric Reeves receive a “comprehensive speech therapy evaluation and identification of communication devices”; to date, such an evaluation has not been provided. Decl. of Eric Reeves at ¶ 5. As another example, the Defendant’s agent recommended that Plaintiff Jacob Van Meter receive an evaluation related to his speech and communication needs; increased access to the internet and adaptive computer equipment; and additional opportunities for social interaction with peers of his age; again, none of these have been provided. Affidavit of Jacob Van Meter at ¶ 6.
11

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 12 of 21 PageID #: 350
The Defendant’s PASRR evaluations clearly fail to comply with applicable regulations, and as a result the Plaintiffs are not receiving anything close to the active treatment required by federal law. Further, even disregarding the inadequacy of the PASSR Level II evaluations Defendant has completed, Defendant has failed to provide most of the very services recommended by its own agent. Given the readily-apparent legal deficiencies in Defendant’s PASRR process, the Plaintiffs are likely to prevail on their claim that the Defendant has violated the NHRA and its accompanying regulations.
ii. The Defendant Has Violated Plaintiffs’ Rights Under Federal Medicaid Law By Failing to Provide Services With “Reasonable Promptness”
Because of the Defendant’s long delay in providing services to them the Plaintiffs are also likely to prevail on their claim that Defendant has violated the requirement that “medical assistance … be furnished with reasonable promptness to all eligible individuals,” as required by the Medicaid law. See 42 U.S.C. § 1396a(a)(8). The implementing regulation provides: “The agency must: (a) furnish Medicaid promptly to recipients without delay caused by the agency’s administrative procedures; . . . . 42 C.F.R. §435.930. As alleged in Count VII of Plaintiffs’ First Amended Class Action Complaint, 42 U.S.C. § 1983 permits Plaintiffs to enforce the “reasonable promptness” provision of the Medicaid law. See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002).
In Boulet v. Cellucci, 107 F.Supp.2d 61 (D. Mass. 2000), the District Court found that a class of plaintiffs with developmental disabilities were entitled to services in the community, but that the state had “not offered any of these services to the plaintiffs and certainly not in a way that matches their individual needs.” Id. at 78. The court rejected the argument that the “reasonable promptness” requirement was met if the state provided just “some assistance, at the total discretion of the state,” and instead found that “the assistance must correspond to the individual’s needs.” Id. at 79. Noting that “it is axiomatic that delays of several years are far outside the realm of reasonableness,” the court had “little
12

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 13 of 21 PageID #: 351
trouble finding that the defendants have not been reasonably prompt” in providing services, especially “where some of the delays extend more than a decade.” Id. at 80.
Similarly, in Rosie D. v. Romney, 410 F.Supp.2d 18 (D. Mass. 2006), the District Court found that the state’s failure to provide required “early and periodic screening, diagnostic, and treatment” (EPSDT) services to Medicaid-eligible children violated the reasonable promptness provision of the Medicaid Act. Id. at 53. The court held that because the state failed to provide the comprehensive assessments, clinical oversight and monitoring, and in-home support services required by the EPSDT provisions, it had “not satisfied Congress’ command to provide services with ‘reasonable promptness.’” Id. As in Boulet, the court found that “[t]he fact that Defendants provide some services does not relieve them of the duty to provide all necessary services with reasonable promptness.” Id.
Just as in Rosie D., the Defendant here is failing to provide the evaluations, clinical oversight and monitoring, and necessary services required by federal law. The Plaintiffs and class members have never received specialized services in accordance with the NHRA, and have received inadequate services for the many years that they have inappropriately confined in nursing facilities, far “outside the realm of reasonableness.” Because the Defendant has failed to provide most of the services it has identified, let alone provide them in a timely fashion, the Plaintiffs are likely to prevail on their claim that the Defendants have violated the “reasonable promptness” provision of the Medicaid law.
b. The Plaintiffs Will Suffer Irreparable Harm Unless Defendant is Enjoined. “[W]hen the likelihood of success on the merits is great, a movant can show somewhat less in the way of irreparable harm and still garner preliminary injunctive relief.” E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 743 (1st Cir. 1996). “It is usually enough if the plaintiff shows that its legal remedies are inadequate. If the plaintiff suffers a substantial injury that is not accurately measurable or adequately compensable by money damages, irreparable harm is a natural sequel.” Ross-Simons of Warwick, Inc. v.
13

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 14 of 21 PageID #: 352
Baccarat, Inc., 102 F.3d 12, 18-19 (1st Cir. 1996) (internal citations omitted). The First Circuit has long held that the failure of the state to provide Medicaid benefits, causing
individuals to forgo necessary medical care is “clearly irreparable injury.” Massachusetts Ass’n of Older Americans v. Sharp, 700 F.2d 749, 753 (1st Cir. 1983). Numerous other courts have reached the same conclusion. See Daniels v. Wadley, 926 F. Supp. 1305, 1313 (M.D. Tenn. 1996) vacated in part on other grounds sub nom Daniels v. Menke, 145 F.3d 1330 (6th Cir. 1998); Markva v. Haveman, 168 F. Supp. 2d 695, 719 (E.D. Mich. 2001) (recognizing that there is no adequate remedy at law for denial of medical care and recognizing “the principle that denial or delay in benefits which effectively prevents plaintiffs from obtaining needed medical care constitutes irreparable harm. In other words, risk of further injury to health warrants injunctive relief.”); Brantley v. Maxwell-Jolly, 656 F.Supp. 2d 1161, 1177 (N.D. Cal. 2009) (enjoining cuts to adult day health services and stating “reduction in public medical benefits standing alone is sufficient to demonstrate irreparable harm”). See also, e.g., Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982) (holding irreparable injury shown when enforcement of a Medicaid rule “may deny [plaintiffs] needed medical care”); Caldwell v. Blum, 621 F.2d 491, 498 (2d Cir. 1980) (holding that Medicaid applicants established harm where they would “absent relief, be exposed to the hardship of being denied essential medical benefits”); McMillan v. McCrimon, 807 F. Supp. 475, 479 (C.D. Ill. 1992) (holding that “[t]he nature of their claim—a claim against the state for medical services—makes it impossible to say that any remedy at law could compensate them”).
In Benjamin H. v. Ohl, No.Civ.A. 3:99-0338, 1999 WL 34783552 at *12 (S.D.W.V. July 15, 1999), the District Court found, in the context of a preliminary injunction analysis, that the plaintiffs, individuals with mental retardation and other developmental disabilities, “are not receiving the therapy, habilitation services, respite care, and other benefits to which they are entitled under Medicaid.” Id. Echoing the fundamental purposes of the “active treatment” program, the court continued:
14

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 15 of 21 PageID #: 353
“Consequently, they are failing to develop skills which will enable them to achieve their greatest functional capacity and highest level of independence. They are even losing skills previously acquired because the services they are receiving are insufficient to maintain them.” Id. In light of this, the Court held that “[t]he plaintiffs are suffering direct, serious, and irreversible harm, and will, in the future, suffer even greater harm, if the preliminary injunction is not issued.” Id.
By its very definition, the “active treatment” mandate is intended to guard against irreparable harm to individuals with developmental disabilities—to ensure “[t]he prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. § 483.440(a)(ii). The state’s failure to provide services deemed necessary to prevent an individual’s loss of abilities will, as a matter of course, harm that individual. The importance of this mandate is most glaringly illustrated in the case of Plaintiff Reeves: a young man who, when he was getting necessary physical therapy services, was able to walk for the first time in his life; without these services, he quickly lost “optimal functional status.” Decl. of Eric Reeves ¶ 7. Just as the court in Benjamin H. recognized, the failure to provide adequate service to the Plaintiffs as soon as possible will lead to irreparable injury—a loss functioning that may never be regained due to the lack of timely attention to a number of particular abilities, as detailed further below.
i. Jacob Van Meter Dr. Susan Ostertag, MD, has known and treated Plaintiff Van Meter since 2005. Aff. of Dr. Susan Ostertag, M.D., ¶ 3. In her opinion, “[t]here are a number of services, which if delivered in the nursing home, would increase [his] ability to function with more self-determination and independence as well as prevent or decelerate the regression or loss of his functioning.” Id. at ¶ 6. Dr. Ostertag believes that Mr. Van Meter requires “speech therapy and possibly an augmentative communication device with an adaptive phone … [as well as] a functional power chair … [and] adaptive equipment to increase his written output.” Id. at ¶ 7. These “services and equipment would both increase his independence and
15

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 16 of 21 PageID #: 354
prevent deceleration and loss of his functional abilities.” Id. Additionally, Van Meter also needs “intensive and ongoing supports and assistance to engage in socialization with his peers and family, be involved in his community, and engage in recreation and leisure skills.” Id. at ¶ 8. “Services that could provide this ongoing support are increased transportation and the provision of services at a day or vocational program.” Id. He “needs additional supports to attend college.” Id. Dr. Ostertag’s conclusion is that “[c]ontinuing to have Jake reside in a nursing facility without additional therapy, equipment, and services designed to maximize his independence and prevent regression is irreparably harmful to [his] physical and mental well-being.” Id. at ¶ 9. “Every day that goes by, without these services, is a lost opportunity and will only make any effort to achieve some semblance of independent living that much more difficult, if not impossible.” Id.
ii. Adam Fletcher Plaintiff Fletcher’s mother and guardian, Gail Fletcher, states that Fletcher’s “life continues to be very isolated, living among much older people who do not share his interests, and having no opportunities for socialization, recreation, work [and] education.” Aff. of Gail Fletcher ¶ 6. Ms. Fletcher has “noticed a marked decline in his abilities due to the lack of appropriate services. He was much more capable in the past but he has gotten worse physically. His level of therapy hasn’t been kept up. He used to be able to feed himself and shave himself, but now he even has trouble driving his own chair.” Id. at ¶ 7. Dr. Hugh Harwood, M.D., who has treated Fletcher since August of 2010, also believes that specialized services “would increase Adam’s ability to function with more self-determination and independence, as well as prevent or decelerate the regression or loss of his functioning.” Aff. of Hugh Harwood, M.D. ¶¶ 3,7. According to his doctor, Fletcher needs “increased access to the larger community, age-appropriate peers, and activities aimed at intellectual stimulation. Services and supports
16

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 17 of 21 PageID #: 355
that would allow this include a day program, increased availability of transportation, training and adaptations to use the computer better, and increased internet access. The foregoing services would increase Adam’s independence and self-determination and prevent him falling even further behind his peers.” Id. at ¶ 8. The lack of these specialized services, in Dr. Harwood’s opinion, “is irreparably harmful to Adam’s physical and mental well-being.” Id. at ¶ 9.
iii. Eric Reeves Plaintiff Reeves began by making progress and acquiring new skills when he arrived at East Side Rehabilitation; for a few months he received Physical Therapy and Occupational Therapy. Aff. of Lyn Rucker ¶ 12. With the therapy he started walking for the first time in his life. Id.; Decl. of Eric Reeves ¶ 7. However, he no longer gets PT; although the staff is supposed to help him walk, time rarely permits this, so now he is back to being unable to walk. Id. Dr. Toby Atkins, MD, who has been Reeves’ doctor for a number of years, believes that there are a number of services Reeves needs in order to increase his “ability to function with more selfdetermination and independence, as well as prevent or decelerate the regression or loss of his functioning.” Aff. of Dr. Toby Atkins, MD, ¶ 5. According to Dr. Atkins, Reeves needs “speech therapy and possibly an augmentative communication device.” Id. He needs physical therapy to help him regain independence in transfers and bed mobility, and increasing his range of motion. Id. “Additional occupational therapy would enable him to restore and maintain his ability to feed himself.” Id. He also requires “increased access to the larger community and age-appropriate peers. Services that would allow this include a day program, increased availability of transportation, and assistance in furthering his education and employment opportunities.” Id. at ¶ 6. In sum, Dr. Atkins believes that “[c]ontinuing to have Eric reside in a nursing facility without additional therapies and services designed to maximize his independence and prevent regression is irreparably harmful to [his] physical and mental well-being.” Id.
17

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 18 of 21 PageID #: 356
at ¶ 7. All three named Plaintiffs here have already suffered harm, and will continue to do so until the
Defendant is required to provide them with medically necessary services, as mandated by Medicaid law. Like the plaintiffs in Benjamin H., Plaintiffs here are failing to develop skills, and even losing existing skills, thus suffering direct, serious, and irreversible harm. It is clear that Plaintiffs’ harm is not accurately measurable or adequately compensable by money damages, and thus an injunction is necessary to redress Defendant’s violations.
c. The Hardship to the Plaintiffs in the Absence of a Preliminary Injunction Outweighs any Hardship That the Defendants May Experience in Complying With Federal Law
As discussed, the Plaintiffs face serious continuing harm as the result of the Defendant’s failure to provide required specialized services. On the other hand, complying with the requirements of federal law cannot harm the Defendant. The Seventh Circuit has summed up this rationale as follows:
Because the defendants are required to comply with the [law in question], we do not see how enforcing compliance imposes any burden on them. The Act itself imposes the burden; this injunction merely seeks to prevent the defendants from shirking their responsibilities under it. Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) (granting preliminary injunction requiring defendant's compliance with federal Food Stamp law). See also Ill. Hosp. Ass’n v. Ill. Dept of Public Aid, 576 F. Supp. 360, 371 (N.D. Ill. 1983) (“Once a state has voluntarily elected to participate in the Medicaid program, . . . [it cannot] characterize its duty to comply with the requirements of [the program] as constituting a hardship to its citizens.”). The preliminary injunction that Plaintiffs request here seeks to require the Defendant to provide services that it is already required to provide under federal law, but has failed to deliver. The NHRA and its implementing regulations “imposes the burden,” and the requested injunction seeks to prevent the defendant from continuing to shirk its responsibility to provide necessary services to some of the state’s
18

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 19 of 21 PageID #: 357
most vulnerable citizens. “Insofar as the injunction prohibits the State from continuing to violate federal and state law, the injunction imposes no burden upon the State whatsoever.” Indiana State Bd. of Public Welfare v. Tioga Pines Living Center, Inc., 637 N.E.2d 1306, 1317 (Ind. Ct. App. 1994).
d. The Public Interest Favors the Granting of a Preliminary Injunction “[E]quitable relief to ensure compliance with the Medicaid statute would obviously serve the public interest.” Rosie D. v. Romney, 410 F.Supp.2d 18, 54 (D.Mass. 2006) (granting permanent injunctive relief based on violations of the “early and periodic screening, diagnostic, and treatment services” and “reasonable promptness” provisions of the Medicaid act). Congress passed the NHRA to address the widespread problem of warehousing people with psychiatric and developmental disabilities in the nation’s nursing facilities. 42 U.S.C. § 1396r. Similarly, Congress enacted the PASRR Provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities. Rolland v. Romney, 318 F.3d 42, 45-46 (1st Cir. 2003). Congress was seeking to remedy abuse and neglect of people with disabilities throughout the nation, undoubtedly a fundamental public interest that Plaintiffs now seek to enforce through this preliminary injunction. By seeking to ensure that the Defendant complies with federal law, the preliminary injunction clearly serves the public interest. IV. NO BOND SHOULD BE REQUIRED A party seeking a preliminary injunction may be required to post a bond or other form of security to the extent the Court “considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed.R.Civ.P. 65. Courts have waived the bond requirement under a variety of circumstances found here: where the plaintiffs, proceeding either individually or as a class, are indigent; where the litigation involves an important “public interest”; and where the plaintiffs have demonstrated a strong likelihood of success on the merits. 11A C. Wright & A.
19

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 20 of 21 PageID #: 358

Miller, Federal Practice & Procedure § 2954 (2d ed. 2010); see also Maine Ass’n of Interdependent Neighborhoods v. Petit, 647 F.Supp. 1312, 1319 (D. Me. 1986) (“[T]he Court may waive the security requirement where the party seeking injunctive relief has shown an extraordinarily high likelihood of success on the merits.”). Because this case meets most, if not all, of these factors for waiving the bond requirement, no security should be required.
V. CONCLUSION WHEREFORE, the named Plaintiffs respectfully request that the Court enter a preliminary
injunction requiring the Defendant to comply with the PASRR requirements of the NHRA and to provide these services with “reasonable promptness” in compliance with federal Medicaid law.

Dated: April 13, 2011
/s/ Staci K. Converse Staci K. Converse Sean P. Ociepka Peter M. Rice Disability Rights Center 24 Stone Street P.O. Box 2007 Augusta, ME 04338 (207) 626-2774 sconverse@drcme.org sociepka@drcme.org price@drcme.org
/s/ Martha Jane Perkins Martha Jane Perkins National Health Law Program 211 N. Columbia St., Second Floor Chapel Hill, NC 27516 (919) 968-6308 Perkins@healthlaw.org

/s/ Jeffrey Neil Young Jeffrey Neil Young MCTEAGUE HIGBEE 4 Union Park P.O. Box 5000 Topsham, ME 04086 (207) 725-5581 jyoung@mcteaguehigbee.com
/s/ Jack Comart Jack Comart Maine Equal Justice Partners 126 Sewall Street Augusta, ME 04330-6822 (207) 626-7058, ext. 202 jcomart@mejp.org
Attorneys for Plaintiffs

20

Case 1:09-cv-00633-NT Document 44 Filed 04/13/11 Page 21 of 21 PageID #: 359
CERTIFICATE OF SERVICE I, Jeffrey Neil Young, hereby certify that on April 13, 2011, I electronically filed Motion for Preliminary Injunction; Motion to Seal Affidavit of Lyn Rucker; Declaration of Jeffrey Neil Young; Affidavit of Lyn Rucker, with Exhibit A; Affidavit of Susan Ostertag, M.D.; Affidavit of Hugh Harwood, M.D.; Affidavit of Toby Atkins, M.D.; Affidavit of Jacob Van Meter; Affidavit of Gail Fletcher on Behalf of Adam Fletcher; Affidavit of Eric Reeves with the Clerk of the Court using the CM/ECF system which will send notification of such filing(s) to the following: James E. Fortin at James.Fortin@maine.gov; and Janine A. Raquet at Janine.Raquet@maine.gov.
/s/ Jeffrey Neil Young Jeffrey Neil Young McTEAGUE HIGBEE Four Union Park P.O. Box 5000 Topsham, ME 04086 T: (207) 725-5581 F: (207) 725-1090 jyoung@mcteaguehigbee.com
21

 
 10/23/2017

District of Maine G6 Version 6.1

CLOSED,COMPLEX,SETTLED

U.S. District Court District of Maine (Bangor) CIVIL DOCKET FOR CASE #: 1:09-cv-00633-NT

VAN METER et al v. MAINE DEPARTMENT OF HEALTH AND Date Filed: 12/18/2009

HUMAN SERVICES COMMISSIONER

Date Terminated: 05/02/2012

Assigned to: JUDGE NANCY TORRESEN

Jury Demand: None

Referred to: MAGISTRATE JUDGE MARGARET J.

Nature of Suit: 446 Civil Rights: Americans

KRAVCHUK

with Disabilities - Other

Cause: 42:12101 American Disabilities Act

Jurisdiction: Federal Question

Plaintiff JACOB VAN METER

represented by JACK B. COMART MAINE EQUAL JUSTICE PARTNERS 126 SEWALL STREET AUGUSTA, ME 04330-6822 (207) 626-7058 Email: jcomart@mejp.org ATTORNEY TO BE NOTICED

JEFFREY NEIL YOUNG JOHNSON WEBBERT & YOUNG LLP 160 CAPITOL STREET, SUITE 3 PO BOX 79 AUGUSTA, ME 04330 207-623-5110 Email: jyoung@johnsonwebbert.com ATTORNEY TO BE NOTICED

MARTHA JANE PERKINS NATIONAL HEALTH LAW PROGRAM 211 N. COLUMBIA ST. SECOND FLOOR CHAPEL HILL, NC 27516 919-968-6308 Email: perkins@healthlaw.org ATTORNEY TO BE NOTICED

PETER M. RICE DISABILITY RIGHTS MAINE 24 STONE STREET SUITE 204 AUGUSTA, ME 04330 207-626-2774 Email: pmrice@drcme.org ATTORNEY TO BE NOTICED

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

SEAN OCIEPKA OCIEPKA & BURNETT, P.A. 48 MARSHALL WHARF, SUITE 4
1/17

10/23/2017

District of Maine G6 Version 6.1
P.O. BOX 403 BELFAST, ME 04915 207-930-3525 Email: sean@belfastbaylaw.com TERMINATED: 08/16/2011 ATTORNEY TO BE NOTICED

Plaintiff
GAIL FLETCHER Guardian of Adam Fletcher

STACI K. CONVERSE DISABILITY RIGHTS CENTER OF MAINE 24 STONE STREET PO BOX 2007 AUGUSTA, ME 04338-2007 (207) 626-2774 Email: sconverse@drcme.org ATTORNEY TO BE NOTICED
represented by JACK B. COMART (See above for address) ATTORNEY TO BE NOTICED

JEFFREY NEIL YOUNG (See above for address) ATTORNEY TO BE NOTICED

MARTHA JANE PERKINS (See above for address) ATTORNEY TO BE NOTICED

PETER M. RICE (See above for address) ATTORNEY TO BE NOTICED

SEAN OCIEPKA (See above for address) TERMINATED: 08/16/2011 ATTORNEY TO BE NOTICED

Plaintiff ERIC REEVES

STACI K. CONVERSE (See above for address) ATTORNEY TO BE NOTICED
represented by JACK B. COMART (See above for address) ATTORNEY TO BE NOTICED

JEFFREY NEIL YOUNG (See above for address) ATTORNEY TO BE NOTICED

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

MARTHA JANE PERKINS (See above for address)
2/17

10/23/2017

District of Maine G6 Version(S6.1ee above for address) ATTORNEY TO BE NOTICED
PETER M. RICE (See above for address) ATTORNEY TO BE NOTICED
SEAN OCIEPKA (See above for address) TERMINATED: 08/16/2011 ATTORNEY TO BE NOTICED
STACI K. CONVERSE (See above for address) ATTORNEY TO BE NOTICED

V. Defendant MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER
https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

represented by JAMES E. FORTIN OFFICE OF THE ATTORNEY GENERAL HEALTH AND HUMAN SERVICES DIVISION SIX STATE HOUSE STATION AUGUSTA, ME 04333 207-626-8800 Email: james.fortin@maine.gov TERMINATED: 10/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
JANINE A. RAQUET MAINE ATTORNEY GENERAL'S OFFICE 84 HARLOW STREET 2ND FLOOR BANGOR, ME 04401 207-941-3083 Email: janine.raquet@maine.gov TERMINATED: 06/18/2015 ATTORNEY TO BE NOTICED
JUSTIN B BARNARD MAINE ATTORNEY GENERAL'S OFFICE SIX STATE HOUSE STATION AUGUSTA, ME 04333-0006 207-626-8540 Email: justin.barnard@maine.gov ATTORNEY TO BE NOTICED
WILLIAM D. HAGEDORN OFFICE OF THE ATTORNEY GENERAL STATE HOUSE STATION 6
3/17

10/23/2017
Interested Party SHARON MACIE
V. Notice Only Party MAINE ATTORNEY GENERAL - NON PRISONER IFP CASES TERMINATED: 01/21/2010

District of Maine G6 Version 6.1
AUGUSTA, ME 04333-0006 207-626-8540 Email: william.hagedorn@maine.gov ATTORNEY TO BE NOTICED

Date Filed 12/18/2009
12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009
12/21/2009
12/21/2009

# Docket Text
1 COMPLAINT against MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER, ﬁled by JACOB VAN METER, GAIL FLETCHER, ERIC REEVES. (Service of Process Deadline 4/19/2010)(err) (Entered: 12/21/2009)
2 CIVIL COVER SHEET. (err) (Entered: 12/21/2009)
3 MOTION for Leave to Proceed in forma pauperis by JACOB VAN METER (err) (Entered: 12/21/2009)
4 MOTION for Leave to Proceed in forma pauperis by GAIL FLETCHER (err) (Entered: 12/21/2009)
5 MOTION for Leave to Proceed in forma pauperis by ERIC REEVES (err) (Entered: 12/21/2009)
6 CERTIFICATION for Admission Pro Hac Vice of JANE PERKINS ﬁled by JACK B. COMART on behalf of GAIL FLETCHER, ERIC REEVES, JACOB VAN METER (err) (Entered: 12/21/2009)
7 ORDER granting 3 Motion for Leave to Proceed in forma pauperis; granting 4 Motion for Leave to Proceed in forma pauperis; granting 5 Motion for Leave to Proceed in forma pauperis By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) (Entered: 12/21/2009)
8 Summons Issued as to MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER.

Counsel shall print the embossed summons and effect service in the manner in accordance with Fed.R.Civ.P.4.

Note-If you are using Version 6 of Adobe Acrobat, be sure the PRINT WHAT ﬁeld is set to DOCUMENTS AND COMMENTS (Click File, then Print to check this setting).

(jlg) (Entered: 12/21/2009)

12/22/2009

9 NOTICE: The Court has completed its preliminary review and ordered the complaint to be served. Pursuant to the Agreement on Service between the Clerk of Court and the Maine Attorney General, this Notice constitutes service as directed by the Court. The

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

4/17

10/23/2017

District of Maine G6 Version 6.1
Maine Attorney General shall ﬁle notice of acceptance or declination of acceptance of service within 30 days. (Deadline to File Acceptance or Declination of Acceptance of Service is 1/21/2010) (jgw) (Entered: 12/22/2009)

01/21/2010

10 AGREEMENT of Acceptance of Service by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (FORTIN, JAMES) Modiﬁed on 1/21/2010 to correct ﬁler and text (jlg). (Entered: 01/21/2010)

01/21/2010

NOTICE of Docket Entry Modiﬁcation regarding 10 Acceptance of Service: This docket entry was modiﬁed to reﬂect that the incorrect even was chosen "Acknowledgment of Service" and was changed to "Acceptance of Service-State of Maine" by the Clerk's Ofﬁce. (jlg) (Entered: 01/21/2010)

01/21/2010

Set Answer Deadline for MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER: Answer due by 2/22/2010. (jlg) (Entered: 01/21/2010)

02/19/2010

11 NOTICE of Appearance by JEFFREY NEIL YOUNG on behalf of GAIL FLETCHER, ERIC REEVES, JACOB VAN METER (YOUNG, JEFFREY) (Entered: 02/19/2010)

02/22/2010

12 ANSWER to Complaint by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER.(FORTIN, JAMES) (Entered: 02/22/2010)

02/23/2010

13 SCHEDULING ORDER: Discovery due by 7/27/2010. Motions due by 8/17/2010. Ready for Trial on 12/1/2010. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 02/23/2010)

03/15/2010

14 Joint MOTION to Amend Scheduling Order by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 4/5/2010. (YOUNG, JEFFREY) (Entered: 03/15/2010)

03/16/2010

15 ORDER granting in part 14 Motion to Amend Scheduling Order; the current discovery and dispositive motion deadlines will remain as established, provided, however, this court will set an additional deadline of June 4, 2010, as the date by which plaintiffs shall ﬁle a motion for class certiﬁcation if they intend to do so in this case (with normal response and reply deadlines); furthermore, whether or not they choose to ﬁle such a motion, plaintiffs shall arrange for a status conference with the magistrate judge during the week of June 7, 2010, to discuss further amendment and adjustment of the scheduling order (including reestablishment of any previously expired deadlines such as amendment of pleadings or expert designations which are partially suspended by operation of this order). Since the parties anticipate engaging in "class certiﬁcation" discovery between now and May 14, 2010, they should establish internal deadlines for the designation of any "class certifcation" experts sufﬁciently prior to that date to avoid extension of this interim order. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) Modiﬁed on 3/16/2010 to correct typo (jlg). (Entered: 03/16/2010)

03/19/2010

16 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report to follow. (Court Reporter: FTR) (CWP) (Entered: 03/19/2010)

03/19/2010

17 REPORT OF CONFERENCE OF COUNSEL AND ORDER. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 03/19/2010)

05/13/2010

18 Unopposed MOTION to Extend Time by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 6/3/2010. (Attachments: # 1 Exhibit A--Pls' Interrogatories to Def, # 2 Exhibit B--CMS Subpoena)(YOUNG, JEFFREY) (Entered: 05/13/2010)

05/21/2010

19 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report to follow. (Court Reporter: FTR)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

5/17

10/23/2017

District of Maine G6 Version 6.1
(CWP) (Entered: 05/21/2010)

05/21/2010

20 REPORT OF TELEPHONE CONFERENCE AND ORDER granting in part 18 Motion to Extend Time. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 05/21/2010)

05/21/2010

Set Deadlines/Hearings : Class Certiﬁcation Discovery due by 7/20/2010. Motion for Class Certiﬁcation (1) due by 8/10/2010. Agreed-to or individual proposed scheduling order (2) due by 8/24/2010.(CWP) Per Order at 20 . Modiﬁed on 5/21/2010 to enter reference to Order. (CWP). (Entered: 05/21/2010)

07/14/2010

21 AFFIDAVIT of Jeffrey Neil Young ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1--Subpoena, # 2 Exhibit 2--5/12/10-5/17/10 Email Chain, # 3 Exhibit 3--5/27/10 E-mail, # 4 Exhibit 4--6/3/10 E-mail, # 5 Exhibit 5-6/11/10 E-mail Exchange, # 6 Exhibit 6--6/24/10 E-mail Exchange, # 7 Exhibit 7-6/30/10 E-mail Exchange, # 8 Exhibit 8--7/8/10 E-mail Exchange)(YOUNG, JEFFREY) (Entered: 07/14/2010)

08/10/2010

22 MOTION for Leave to File First Amended Complaint and Incorporated Memorandum of Law by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 8/31/2010. (YOUNG, JEFFREY) (Entered: 08/10/2010)

08/10/2010

23 MOTION to Certify Class and Incorporated Memorandum of Law by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 8/31/2010. (YOUNG, JEFFREY) (Entered: 08/10/2010)

08/10/2010

24 PROPOSED AMENDED COMPLAINT (Class Action) Re: 22 MOTION for Leave to File First Amended Complaint, ﬁled by JACOB VAN METER, GAIL FLETCHER, ERIC REEVES. (Service of Process Deadline 12/8/2010)(YOUNG, JEFFREY) Modiﬁed on 8/11/2010 to clarify text (mlm). (Entered: 08/10/2010)

08/10/2010

25 AFFIDAVIT of Jeffrey Neil Young ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1--Bubar Deposition Excerpts, # 2 Exhibit 2-Supplemented Answers to Plaintiffs First Set of Interrogatories, # 3 Exhibit 3--Cowing Deposition Excerpts, # 4 Exhibit 4--Cowing Deposition Exhibit 2, # 5 Exhibit 5--Olsen Deposition Excerpts)(YOUNG, JEFFREY) (Entered: 08/10/2010)

08/10/2010

26 AFFIDAVIT of Martha Jane Perkins ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 08/10/2010)

08/10/2010

27 AFFIDAVIT of Jack Comart ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 08/10/2010)

08/10/2010

28 AFFIDAVIT of Staci Converse ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 08/10/2010)

08/11/2010

29 ORDER granting without objection 22 Motion for Leave to File amended complaint. Defendant's assent to the ﬁling of the amended complaint does not signify a lack of objection to the class certiﬁcation motion and that issue will proceed on a contested basis. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) (Entered: 08/11/2010)

08/11/2010

30 First AMENDED COMPLAINT (Class Action) against MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER, ﬁled by JACOB VAN METER, GAIL FLETCHER, ERIC REEVES. (Service of Process Deadline 12/9/2010) (YOUNG, JEFFREY) (Entered: 08/11/2010)

08/11/2010

NOTICE of Docket Entry Modiﬁcation regarding 24 Amended Complaint: Pleading 24 was originally ﬁled as an Amended Complaint. It was modiﬁed to indicate that it is a

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

6/17

10/23/2017

District of Maine G6 Version 6.1
"PROPOSED" Amended Complaint" and should have been ﬁled as an attachment to Motion #22 for Leave to File Amended Complaint. The Motion for Leave to File Amended Complaint was granted and the Court considers the Amended Complaint received at pleading 30 . (mlm) (Entered: 08/11/2010)

08/19/2010

31 ANSWER to 30 Amended Complaint by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER.(FORTIN, JAMES) (Entered: 08/19/2010)

08/25/2010

32 NOTICE of Telephone Conference set for 9/2/2010 01:00 PM regarding scheduling order deadlines before MAGISTRATE JUDGE MARGARET J. KRAVCHUK. All parties have been provided with a call-in number. (CWP) (Entered: 08/25/2010)

08/31/2010

33 RESPONSE to Motion re 23 MOTION to Certify Class ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. Reply due by 9/14/2010. (Attachments: # 1 Afﬁdavit of Kathy Bubar, # 2 Exhibit A to Bubar Aff., # 3 Exhibit B to Bubar Aff., # 4 Exhibit Bubar depo. testimony, # 5 Exhibit Cowing depo. testiony, # 6 Exhibit Defendant's discovery responses)(RAQUET, JANINE) Modiﬁed on 8/31/2010 to remove duplicative language (err). (Entered: 08/31/2010)

09/02/2010

34 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report and Amended Scheduling Order to issue. (Court Reporter: FTR) (CWP) (Entered: 09/02/2010)

09/02/2010

35 REPORT OF TELEPHONE CONFERENCE AND AMENDED SCHEDULING ORDER: Discovery due by 6/15/2011. Motions due by 7/15/2011. Ready for Trial on 10/4/2011. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 09/02/2010)

09/02/2010

36 AMENDED REPORT OF TELEPHONE CONFERENCE AND AMENDED SCHEDULING ORDER: Discovery due by 6/15/2011. Motions due by 7/15/2011. Ready for Trial on 10/4/2011. Status telephone conference 3/15/11 at 9:00 am. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 09/02/2010)

09/02/2010

37 NOTICE of Status Telephone Conference set for 3/15/2011 at 09:00 AM before MAGISTRATE JUDGE MARGARET J. KRAVCHUK. See Amended Report at Doc 36 . (CWP) (Entered: 09/02/2010)

09/09/2010

38 MOTION for Leave to File Document in Excess of Page Limit by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 9/30/2010. (YOUNG, JEFFREY) (Entered: 09/09/2010)

09/10/2010

39 ORDER granting 38 Motion for Leave to File Document in Excess of Page Limt By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (bld) (Entered: 09/10/2010)

09/14/2010

40 REPLY to Response to Motion re 23 MOTION to Certify Class ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 09/14/2010)

01/31/2011

41 ORDER granting 23 Motion to Certify Class. By JUDGE JOHN A. WOODCOCK, JR. (MFS) (Entered: 01/31/2011)

03/15/2011

42 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report to follow. (Court Reporter: FTR) (CWP) (Entered: 03/15/2011)

03/15/2011

43 REPORT OF TELEPHONE CONFERENCE AND AMENDED SCHEDULING ORDER: Discovery due by 8/31/2011. Motions due by 9/30/2011. Ready for Trial on 1/4/2012. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 03/15/2011)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

7/17

10/23/2017
03/15/2011 04/13/2011 04/13/2011 04/13/2011
04/13/2011
04/13/2011 04/13/2011 04/13/2011 04/13/2011 04/13/2011 04/13/2011 04/14/2011 04/14/2011 05/03/2011 05/04/2011

District of Maine G6 Version 6.1
Set Deadlines/Hearings : Defendant's Status Report due by 4/15/2011. See Report at PDF Doc 43 . (CWP) (Entered: 03/15/2011)
44 MOTION for Preliminary Injunction With Incorporated Memorandum of Law by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 5/4/2011. (YOUNG, JEFFREY) (Entered: 04/13/2011)
45 MOTION to Seal Afﬁdavit of Lyn Rucker by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 5/4/2011. (YOUNG, JEFFREY) Modiﬁed on 4/14/2011 to unseal motion (jgw). (Entered: 04/13/2011)
46 AFFIDAVIT of Jeffrey Neil Young ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1: Excerpted pages from the deposition of Kathy Bubar, # 2 Exhibit 2: July 9, 2010 PASRR determination for Van Meter, # 3 Exhibit 3: July 9, 2010 PASRR determination for Fletcher, # 4 Exhibit 4: July 9, 2010 PASRR determination for Reeves, # 5 Exhibit 5: Cairbre McCann, M.D.s report dated June 1, 2010 regarding Van Meter, Fletcher, and Reeves, # 6 Exhibit 6: Jerrold Edelberg, Ph.D.s report dated May 27, 2010 regarding Van Meter, # 7 Exhibit 7: Jerrold Edelberg, Ph.D.s report dated May 27, 2010 regarding Fletcher, # 8 Exhibit 8: Jerrold Edelberg, Ph.D.s report dated May 27, 2010 regarding Reeves)(YOUNG, JEFFREY) (Entered: 04/13/2011)
47 (Document sealed from public view) SEALED DOCUMENT Afﬁdavit of Lyn Rucker by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit A: Report of Lyn Rucker regarding Van Meter, Fletcher, and Reeves)(YOUNG, JEFFREY) Modiﬁed on 4/14/2011 to clean-up docket text (jgw). (Entered: 04/13/2011)
48 AFFIDAVIT of Susan Ostertag, M.D. ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
49 AFFIDAVIT of Toby Atkins, M.D. ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
50 AFFIDAVIT of Jacob Van Meter ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
51 AFFIDAVIT of Gail Fletcher on Behalf of Adam Fletcher ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
52 AFFIDAVIT of Eric Reeves ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
53 AFFIDAVIT of Hugh Harwood, M.D. ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 04/13/2011)
54 ORDER granting 45 Motion to Seal. The Afﬁdavit of Lyn Rucker will remain under seal, but this order and the motion to seal are ordered unsealed. By JUDGE JOHN A. WOODCOCK, JR. (jgw) (Entered: 04/14/2011)
55 STATUS REPORT by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (FORTIN, JAMES) (Entered: 04/14/2011)
56 Unopposed MOTION to Extend Time by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER Responses due by 5/24/2011. (FORTIN, JAMES) (Entered: 05/03/2011)
57 ORDER granting without objection 56 Motion to Extend Time to May 6, 2011. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) (Entered: 05/04/2011)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

8/17

10/23/2017
05/04/2011

District of Maine G6 Version 6.1
Reset Deadlines as to 44 MOTION for Preliminary Injunction per order number 57: Responses due by 5/6/2011. (jlg) (Entered: 05/04/2011)

05/06/2011

58 RESPONSE in Opposition re 44 MOTION for Preliminary Injunction ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. Reply due by 5/20/2011. (FORTIN, JAMES) (Entered: 05/06/2011)

05/06/2011

59 AFFIDAVIT of Bonnie L. Smith ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (FORTIN, JAMES) (Entered: 05/06/2011)

05/06/2011

60 MOTION to Seal Exhibits 1, 2 and 3 to Declaration of James E. Fortin by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER Responses due by 5/27/2011. (Attachments: # 1 Declaration of James E. Fortin in Support of Defendat's Opposition to Plaintiffs' Motion for Prelimnary Injunction, # 2 SEALED Exhibit 1 Van Meter medical records, # 3 SEALED Exhibit 2 Fletcher medical records, # 4 SEALED Exhibit 3 Reeves medical records)(FORTIN, JAMES) Modiﬁed on 5/6/2011 to remove extra text (jlg). Modiﬁed on 5/6/2011 to unseal the main document and attachment #1 (mlm). (Entered: 05/06/2011)

05/06/2011

61 ORDER granting 60 Motion to Seal, this order the motion to seal and attachment one, the Fortin declaration are unsealed, but the three medical record exhibits shall remain under seal. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) Modiﬁed on 5/6/2011 to unseal(mlm). (Entered: 05/06/2011)

05/09/2011

62 NOTICE of Settlement Conference set for 6/24/2011 beginning at 9:30 AM in Magistrate Judge Rich's Chambers, Portland, Maine, before MAGISTRATE JUDGE JOHN H. RICH III. (CWP) (Entered: 05/09/2011)

05/20/2011

63 REPLY to Response to Motion re 44 MOTION for Preliminary Injunction ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit A: Proposed Order for Specialized Services on Plaintiffs' Motion for Preliminary Injunction) (YOUNG, JEFFREY) (Entered: 05/20/2011)

05/20/2011

64 AFFIDAVIT of Staci K. Converse re 63 Reply to Response to Motion, for Preliminary Injunction ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1: Attachment 4.39 to the State Medicaid Plan)(YOUNG, JEFFREY) (Entered: 05/20/2011)

05/20/2011

65 MOTION for Oral Argument/Hearing re 44 MOTION for Preliminary Injunction by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 6/10/2011. (YOUNG, JEFFREY) (Entered: 05/20/2011)

05/23/2011

66 ORDER granting 65 Motion for Oral Argument/Hearing on Motion for Preliminary Injunction. Oral argument to be scheduled at the convenience of the court and all parties. By JUDGE JOHN A. WOODCOCK, JR. (jgw) (Entered: 05/23/2011)

06/01/2011

67 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report to follow. (Court Reporter: FTR) (CWP) (Entered: 06/01/2011)

06/01/2011

68 REPORT OF CONFERENCE OF COUNSEL AND ORDER setting another telephonic status conference for 7/6/11 at 10 a.m. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 06/01/2011)

06/01/2011

Set Deadlines/Hearings : Telephonic Status Conference set for 7/6/2011 at 10:00 AM before MAGISTRATE JUDGE MARGARET J. KRAVCHUK. See Report at 68 .(CWP) (Entered: 06/01/2011)

06/24/2011 69 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III:

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

9/17

10/23/2017
06/27/2011 07/26/2011 07/26/2011
07/27/2011 08/12/2011 08/16/2011 08/19/2011 08/25/2011 08/25/2011 09/08/2011 09/08/2011
09/09/2011 09/13/2011 09/15/2011

District of Maine G6 Version 6.1
Settlement Conference held; settlement achieved; order to issue. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 06/24/2011)
70 REPORT OF SETTLEMENT CONFERENCE AND ORDER, Set Deadlines: Stipulation of Dismissal due by 7/27/2011. By MAGISTRATE JUDGE JOHN H. RICH III. (gbc) (Entered: 06/27/2011)
71 Unopposed MOTION to Extend Time to File Stipulation of Dismissal by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER Responses due by 8/16/2011. (FORTIN, JAMES) (Entered: 07/26/2011)
72 ORDER granting without objection 71 Motion to Extend Time. The time within which the parties shall ﬁle a stipulation of dismissal is enlarged to August 25, 2011, noting the defendant's representation that no further request for extension is contemplated. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 07/26/2011)
Reset Deadlines Regarding Order on Motion to Extend Time : Stipulation of Dismissal due by 8/25/2011.(jgw) (Entered: 07/27/2011)
73 MOTION by Attorney Sean Ociepka to Withdraw as Attorney for Plaintiffs by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 9/2/2011. (OCIEPKA, SEAN) (Entered: 08/12/2011)
74 ORDER granting 73 Motion to Withdraw as Attorney. Attorney SEAN P. OCIEPKA terminated as counsel of record; other counsel have appeared. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) (Entered: 08/16/2011)
75 NOTICE of Hearing: Telephone Conference re Settlement Issues set for 8/23/2011 02:00 PM with MAGISTRATE JUDGE JOHN H. RICH III. Attorney Young to initiate call to chambers with participating parties on the line. (nrg) (Entered: 08/19/2011)
76 NOTICE/CORRESPONDENCE Re: Motion for Approval of Settlement and Settlement Agreement by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER (YOUNG, JEFFREY) (Entered: 08/25/2011)
77 Joint MOTION for Approval of Settlement by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 9/15/2011. (Attachments: # 1 Settlement Agreement)(YOUNG, JEFFREY) (Entered: 08/25/2011)
78 NOTICE/CORRESPONDENCE Re: Motion to Compel Disclosure of Class Member Information and Incorporated Memorandum of Law by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER (YOUNG, JEFFREY) (Entered: 09/08/2011)
79 MOTION to Compel Disclosure of Class Member Information and Incorporated Memorandum of Law by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 9/29/2011. (Attachments: # 1 Exhibit A: Proposed Order, # 2 Exhibit B: Risinger, et al. v. Concannon, Civ. No. 00-CV-116-B-C)(YOUNG, JEFFREY) (Entered: 09/08/2011)
Reset Deadlines as to 79 MOTION to Compel Disclosure of Class Member Information by Agreement of the Parties and Approval of the Court: Responses due by 9/15/2011. (jgw) (Entered: 09/09/2011)
80 NOTICE of Appearance by JUSTIN B BARNARD on behalf of MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (BARNARD, JUSTIN) (Entered: 09/13/2011)
81 RESPONSE in Opposition re 79 MOTION to Compel Disclosure of Class Member Information ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

10/17

10/23/2017
09/29/2011 10/04/2011 10/04/2011 10/04/2011 10/13/2011 10/13/2011 10/20/2011 10/21/2011 10/21/2011 10/24/2011 11/08/2011 11/21/2011 11/28/2011 12/09/2011 12/15/2011 12/20/2011

District of Maine G6 Version 6.1
COMMISSIONER. Reply due by 9/29/2011. (BARNARD, JUSTIN) (Entered: 09/15/2011)
82 REPLY to Response to Motion re 79 MOTION to Compel Disclosure of Class Member Information ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 09/29/2011)
83 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Order to follow. (Court Reporter: FTR) (CWP) (Entered: 10/04/2011)
84 REPORT OF TELEPHONE CONFERENCE AND ORDER granting in part 79 Motion to Compel. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 10/04/2011)
set Deadlines : Speciﬁc Document Deadline (1): Plaintiffs' proposed notice to class members due by 10/20/11.(CWP) (Entered: 10/04/2011)
85 MOTION by Attorney James E. Fortin to Withdraw as Attorney by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER Responses due by 11/3/2011. (FORTIN, JAMES) (Entered: 10/13/2011)
86 ORDER granting 85 Motion to Withdraw as Attorney. Attorney JAMES E. FORTIN terminated By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (KRAVCHUK, MARGARET) (Entered: 10/13/2011)
87 NOTICE/CORRESPONDENCE Re: Proposed Settlement of Class Action Lawsuit to Class Members (proposed) by All Plaintiffs (YOUNG, JEFFREY) (Entered: 10/20/2011)
88 Minute Entry for proceedings held before MAGISTRATE JUDGE MARGARET J. KRAVCHUK: Telephone Conference held. Report to follow. (Court Reporter: FTR) (CWP) (Entered: 10/21/2011)
89 REPORT OF CONFERENCE OF COUNSEL AND ORDER. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 10/21/2011)
Case Randomly Reassigned to NANCY TORRESEN. JUDGE JOHN A. WOODCOCK, JR no longer assigned to the case.(dfr) (Entered: 10/24/2011)
90 NOTICE of Hearing: Conference of Counsel set for 11/21/2011 at 02:00 PM in Judge Torresen's Chambers before JUDGE NANCY TORRESEN. (dfr) (Entered: 11/08/2011)
91 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Conference of Counsel held, Report and Order to follow. (Court Reporter: Dennis Ford) (dfr) (Entered: 11/21/2011)
92 REPORT OF CONFERENCE OF COUNSEL AND ORDER, Set Deadlines:( Draft of notice and release due by 1/17/2012.) By JUDGE NANCY TORRESEN. (dfr) (Entered: 11/28/2011)
93 NOTICE of Hearing: Telephone Conference set for 12/15/2011 at 11:30 AM before JUDGE NANCY TORRESEN. Attorney JEFFREY NEIL YOUNG will initiate the telephone call to counsel and the Court.(dfr) (Entered: 12/09/2011)
94 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Telephone Conference held. Status Report to follow. (Court Reporter: Lori Dunbar) (dfr) (Entered: 12/15/2011)
95 REPORT OF TELEPHONE CONFERENCE By JUDGE NANCY TORRESEN. (dfr) (Entered: 12/20/2011)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

11/17

10/23/2017
12/20/2011
01/17/2012
01/24/2012
01/31/2012 02/01/2012
02/09/2012 02/10/2012 02/17/2012 02/17/2012 03/05/2012 04/24/2012
04/25/2012 05/02/2012 05/02/2012 05/24/2012

District of Maine G6 Version 6.1
Set Deadlines Per Report of Telephone Conference (Docket # 95):Counsel to notify the court as to there decision regarding their intent to seek to compel medical records of the class members who expressly elect not to release their medical information, due by 1/3/2012.(dfr) (Entered: 12/20/2011)
96 NOTICE/CORRESPONDENCE Re: Judge Torresen's Order dated 11/28/11 by All Parties (Attachments: # 1 Exhibit Authorization for DHHS to Release my Protected Health Information, # 2 Exhibit Notice to Class, # 3 Text of Proposed Order Order of Dismissal)(RAQUET, JANINE) (Entered: 01/17/2012)
97 NOTICE of Hearing on Motion 77 Joint MOTION for Approval of Settlement : Telephone Conference set for 1/31/2012 at 11:00 AM before JUDGE NANCY TORRESEN. Attorney JEFFREY NEIL YOUNG will initiate the telephone call to counsel and the Court. (dfr) (Entered: 01/24/2012)
98 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Telephone Conference held. Report and order to follow. (Court Reporter: Lori Dunbar) (dfr) (Entered: 01/31/2012)
99 REPORT OF CONFERENCE OF COUNSEL AND ORDER Briefs: due by 2/10/2012., Telephone Conference set for 2/17/2012 11:00 AM before JUDGE NANCY TORRESEN. Attorney JEFFREY NEIL YOUNG to initiate call to counsel and the Court. By JUDGE NANCY TORRESEN. (dfr) (Entered: 02/01/2012)
100 BRIEF re: Necessity of Fairness Hearing by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (BARNARD, JUSTIN) (Entered: 02/09/2012)
101 NOTICE/CORRESPONDENCE Re: Necessity of Fairness Hearing by All Plaintiffs (YOUNG, JEFFREY) (Entered: 02/10/2012)
102 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Telephone Conference held. Report and order to follow. (Court Reporter: Julie Edgecomb) (dfr) (Entered: 02/17/2012)
103 REPORT OF TELEPHONE CONFERENCE- Fairness Hearing set for 4/24/2012 01:00 PM in Courtroom 2 before JUDGE NANCY TORRESEN.) By JUDGE NANCY TORRESEN. (mjlt) (Entered: 02/18/2012)
104 NOTICE-Objection to Settlement by SHARON MACIE. (Attachments: # 1 Envelope) (dfr) (Entered: 03/07/2012)
105 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing held re 77 Joint MOTION for Approval of Settlement ﬁled by JACOB VAN METER, ERIC REEVES, GAIL FLETCHER. Written order to issue. (Court Reporter: Lori Dunbar) (mjlt) (Entered: 04/24/2012)
106 NOTICE/CORRESPONDENCE Re: Authorizations Returned by Class Members or Their Guardians by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER (YOUNG, JEFFREY) (Entered: 04/25/2012)
107 OPINION AND ORDER ON PROPOSED SETTLEMENT re 77 Motion for Approval of Settlement By JUDGE NANCY TORRESEN. (cef) (Entered: 05/02/2012)
108 ORDER ON DISMISSAL By JUDGE NANCY TORRESEN. (cef) (Entered: 05/02/2012)
109 Unopposed MOTION to Extend Time to File Fee Petition by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 6/14/2012. (Attachments: # 1 Exhibit

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

12/17

10/23/2017

District of Maine G6 Version 6.1
1--Fee Letter (UNDER SEAL))(YOUNG, JEFFREY) (Entered: 05/24/2012)

05/24/2012

110 (Document sealed from public view) Unopposed MOTION to Seal Exhibit by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 6/14/2012. (YOUNG, JEFFREY) (Entered: 05/24/2012)

05/24/2012

111 (Document sealed from public view) SEALED ADDITIONAL ATTACHMENTS re 109 Motion to Extend Time to File Fee Petition -- First Attached Document: Exhibit 1 - Fee Letter by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 05/24/2012)

05/29/2012

112 ORDER granting without objection 109 Motion to Extend Time By JUDGE NANCY TORRESEN. (TORRESEN, NANCY) (Entered: 05/29/2012)

05/29/2012

113 ORDER granting without objection 110 Motion to Seal By JUDGE NANCY TORRESEN. (TORRESEN, NANCY) (Entered: 05/29/2012)

10/10/2012

114 MOTION for Judicial Conference and Mediation by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 10/31/2012. (YOUNG, JEFFREY) (Entered: 10/10/2012)

10/10/2012

115 AFFIDAVIT of Jeffrey Neil Young re 114 MOTION for Judicial Conference and Mediation ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1--8/25/11 Letter, # 2 Exhibit 2--9/10/12 DHHS Proposal, # 3 Exhibit 3--Pls' recent proposal, # 4 Exhibit 4--Def's recent proposal)(YOUNG, JEFFREY) (Entered: 10/10/2012)

10/10/2012

116 AFFIDAVIT of Staci K. Converse re 114 MOTION for Judicial Conference and Mediation ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Exhibit 1--10/3/12 Letter, # 2 Exhibit 2--10/19/11 E-mail, # 3 Exhibit 3--1/3/12 Letter, # 4 Exhibit 4--1/10/12 Letter, # 5 Exhibit 5--1/30/12 Letter, # 6 Exhibit 6--3/7/12 E-mail, # 7 Exhibit 7--4/27/12 E-mail, # 8 Exhibit 8--8/21/12 E-mail, # 9 Exhibit 9--9/13/12 Letter, # 10 Exhibit 10--9/21/12 Letter, # 11 Exhibit 11--9/25/12 Letter)(YOUNG, JEFFREY) (Entered: 10/10/2012)

10/10/2012

117 AFFIDAVIT of Jack Comart re 114 MOTION for Judicial Conference and Mediation ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 10/10/2012)

10/15/2012

Reset Deadlines as to 114 MOTION for Judicial Conference and Mediation Per request for expedited brieﬁng by Magistrate Judge John H. Rich III: Responses due by 10/19/2012. Reply will be due by 10/26/2012.(dfr) (Entered: 10/15/2012)

10/17/2012

118 RESPONSE in Opposition re 114 MOTION for Judicial Conference and Mediation ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. Reply due by 10/31/2012. (BARNARD, JUSTIN) (Entered: 10/17/2012)

10/17/2012

119 AFFIDAVIT of Justin B. Barnard re 118 Response in Opposition to Motion ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (Attachments: # 1 Exhibit Exh 1 - Barnard Email of 10/2/12, # 2 Exhibit Exh 2 - Young Email of 10/5/12, # 3 Exhibit Exh 3 - Comart Email of 10/11/12)(BARNARD, JUSTIN) (Entered: 10/17/2012)

10/17/2012

Reset Deadlines as to 114 MOTION for Judicial Conference and Mediation Per Request for Expedited Brieﬁng by Magistrate Judge John H. Rich III: Reply due by 10/26/2012. (dfr) (Entered: 10/17/2012)

10/23/2012 120 REPLY to Response to Motion re 114 MOTION for Judicial Conference and Mediation

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

13/17

10/23/2017
12/21/2012
01/08/2013
01/28/2013 01/28/2013 02/01/2013 02/05/2013 03/05/2013 03/25/2013 04/09/2013 04/09/2013 04/09/2013 04/17/2013 07/11/2013 07/16/2013

District of Maine G6 Version 6.1
ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (YOUNG, JEFFREY) (Entered: 10/23/2012)
121 ORDER granting 114 Motion for judicial conference and mediation. The PASRR dispute is a dispute about a corrective plan and one that is made subject to further mediation by the terms of the Settlement Agreement. The court will hold a conference on the other issues set out by the plaintiff, which are not subject to further mediation under the terms of the Settlement Agreement, in the hope that such a judicial conference will assist the parties in reducing or eliminating their disagreements about those issues. The clerk is directed to schedule a conference and is directed to schedule a mediation session on the two next available dates; the two matters may be combined on a single day, if counsel agree to such a consolidation in the interest of efﬁciency. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 12/21/2012)
122 NOTICE of Hearing: Per Order #121 Combined Judicial Conference and Mediation set for 1/28/2013 10:00 AM in Magistrate Judge Rich's Chambers before MAGISTRATE JUDGE JOHN H. RICH III. The Court has reserved three hours for this proceeding.(dfr) (Entered: 01/08/2013)
123 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Settlement Conference held; report and order to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 01/28/2013)
124 REPORT OF SETTLEMENT CONFERENCE AND ORDER By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) (Entered: 01/28/2013)
125 JOINT STATEMENT RE: IMPLEMENTATION OF SETTLEMENT AGREEMENT: in support of 124 Report of Conference of Counsel and Order . (RAQUET, JANINE) Modiﬁed on 2/5/2013 to correct event type (dfr). (Entered: 02/01/2013)
126 NOTICE of Hearing: Follow-Up Telephone Conference set for 4/9/2013 at 10:00 AM before MAGISTRATE JUDGE JOHN H. RICH III. Attorney Janine Raquet will initiate the telephone call to counsel and the Court. (dfr) (Entered: 02/05/2013)
127 MOTION for Clariﬁcation by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (dfr) (Entered: 03/14/2013)
128 REPORT OF TELEPHONE CONFERENCE AND ORDER granting 127 Motion clariﬁcation. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP) (Entered: 03/25/2013)
129 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Conference of Counsel held re: case status; report and order to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 04/09/2013)
130 REPORT OF HEARING AND ORDER RE: SETTLEMENT STATUS-Joint Supplemental Letter due by 4/17/2013 By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) (Entered: 04/09/2013)
131 AMENDED REPORT OF HEARING AND ORDER RE: SETTLEMENT STATUS By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) (Entered: 04/09/2013)
132 Joint Statement re: Update on Settlement Status (dfr) (Entered: 04/17/2013)
133 NOTICE/CORRESPONDENCE Re: Mediating Outstanding Issues by All Plaintiffs (YOUNG, JEFFREY) (Entered: 07/11/2013)
134 MOTION for Mediation by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER Responses due by 8/6/2013. (YOUNG, JEFFREY) (Entered: 07/16/2013)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

14/17

10/23/2017
07/16/2013
08/06/2013 08/06/2013 08/28/2013
08/30/2013 09/25/2013 09/25/2013 10/10/2013 10/16/2013 10/16/2013 10/16/2013 10/28/2014 10/29/2014

District of Maine G6 Version 6.1
135 AFFIDAVIT of Staci K. Converse re 134 MOTION for Mediation ﬁled by GAIL FLETCHER, ERIC REEVES, JACOB VAN METER. (Attachments: # 1 Def's corrective plan, 4/5/13, # 2 Pls' expert's written report of 5/30/13, # 3 Pls' expert's report of 3/7/12, # 4 Pls' expert's report of Dec 2010, # 5 Atty Raquet e-mail of 7/2/13)(YOUNG, JEFFREY) (Entered: 07/16/2013)
136 RESPONSE in Opposition re 134 MOTION for Mediation ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. Reply due by 8/20/2013. (BARNARD, JUSTIN) (Entered: 08/06/2013)
137 AFFIDAVIT of Justin B. Barnard re 136 Response in Opposition to Motion ﬁled by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (Attachments: # 1 Exh. 1 - Third Attachment to Department's PASRR Corrective Action Plan)(BARNARD, JUSTIN) (Entered: 08/06/2013)
138 ORDER granting 134 Motion for mediation. The PASRR dispute is a dispute about a corrective plan, and one that is made subject to further mediation by the terms of the Settlement Agreement. After an earlier mediation, the parties set a deadline of April 5, 2013, for the defendant to produce a corrective plan to address the PASRR process as it affects the plaintiff class members. ECF No. 125. This date was extended by agreement to July 12, 2013, after which, if the parties continued to disagree, either party could seek mediation with the court. ECF No. 132. The plaintiffs have now done so. The clerk is directed to schedule a mediation session on the next available date. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 08/28/2013)
139 NOTICE of Hearing:Per Order #138 Mediation set for 9/25/2013 at 09:00 AM in Magistrate Judge Rich's Chambers before MAGISTRATE JUDGE JOHN H. RICH III. The Court has reserved three hours for this proceeding.(dfr) (Entered: 08/30/2013)
140 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Settlement Conference held; report and order to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 09/25/2013)
141 REPORT OF SETTLEMENT CONFERENCE AND ORDER: Joint, or competing, letter statement(s) due by 10/9/2013. By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) (Entered: 09/26/2013)
142 NOTICE of Hearing: Telephone Conference re Settlement set for 10/16/2013 03:00 PM with MAGISTRATE JUDGE JOHN H. RICH III. Attorney Barnard to initiate the call. (nrg) (Entered: 10/10/2013)
143 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Settlement Conference held; report and order to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 10/16/2013)
144 REPORT OF SETTLEMENT CONFERENCE AND ORDER By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) (Entered: 10/17/2013)
145 JOINT LETTER STATEMENT. (dfr) (Entered: 10/17/2013)
146 JOINT MOTION to Extend Time re: notiﬁcation re: corrective PASRR plan by GAIL FLETCHER, MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER, ERIC REEVES, JACOB VAN METER (dfr) (Entered: 10/28/2014)
147 ORDER granting without objection 146 Motion to Extend Time. The parties' deadline to notify the court whether they have reached agreement on a corrective PASRR plan is extended to November 19, 2014. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 10/29/2014)

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

15/17

10/23/2017
11/05/2014

District of Maine G6 Version 6.1
148 NOTICE of Appearance by WILLIAM D. HAGEDORN on behalf of MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (HAGEDORN, WILLIAM) (Entered: 11/05/2014)

11/17/2014

149 Joint MOTION extension of time by JACOB VAN METER Responses due by 12/8/2014. (COMART, JACK) Modiﬁed on 11/17/2014 to change the docket event to Motion to Extend Time (mjlt). (Entered: 11/17/2014)

11/18/2014

150 ORDER granting without objection 149 Motion to Extend Time. The parties' deadline to notify the court whether they have reached agreement on a corrective PASRR plan is further extended to December 17, 2014. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 11/18/2014)

11/18/2014

reset Deadlines Pursuant to Judge Rich's Order dated November 18, 2014: The parties' deadline to notify the court whether they have reached agreement on a corrective PASRR plan is December 17, 2014. (mjlt) (Entered: 11/18/2014)

12/17/2014

151 NOTICE/CORRESPONDENCE Re: Agreement on PASRR Plan by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (RAQUET, JANINE) (Entered: 12/17/2014)

01/26/2015

152 NOTICE of Hearing: Telephone Conference re Case Status set for 2/6/2015, at 11:00 AM with MAGISTRATE JUDGE JOHN H. RICH III. Attorney Comart to initiate call to chambers. (nrg) (Entered: 01/26/2015)

02/06/2015

153 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Conference of Counsel held re: case status; report to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 02/06/2015)

02/06/2015 154 REPORT OF HEARING AND ORDERRE: SCHEDULING By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt) (Entered: 02/06/2015)

04/06/2015 155 STATUS REPORT by JACOB VAN METER. (CONVERSE, STACI) (Entered: 04/06/2015)

04/06/2015

156 Response to Plaintiffs' Status Report 155 by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER. (RAQUET, JANINE) Modiﬁed on 4/6/2015 to clean up the docket text (mjlt). (Entered: 04/06/2015)

04/07/2015

157 NOTICE of Hearing: Telephone Conference set for 4/10/2015, at 3:30 PM with MAGISTRATE JUDGE JOHN H. RICH III. Counsel shall call chambers once all participants are on the line. (nrg) (Entered: 04/07/2015)

04/10/2015

158 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Hearing held on 4/10/2015 re: ECF Nos. 155 & 156; report and order to follow. (Court Reporter: No court reporter present) (RICH III, JOHN) (Entered: 04/10/2015)

04/10/2015 159 REPORT OF HEARING AND ORDER RE: STATUS Set Deadlines:( Joint Letter due by 4/15/2015.) By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt) (Entered: 04/13/2015)

04/13/2015

160 NOTICE/CORRESPONDENCE Re: Specialized Services by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER (RAQUET, JANINE) (Entered: 04/13/2015)

05/01/2015 161 Joint MOTION Joint Motion to Extend Jurisdiction by JACOB VAN METER Responses due by 5/22/2015. (CONVERSE, STACI) (Entered: 05/01/2015)

05/04/2015

162 ORDER granting without objection 161 Motion to extend jurisdiction. By agreement of the parties, the court's jurisdiction over this matter is extended to August 30, 2015, pursuant to Paragraph VIII.2 of the Settlement Agreement, dated August 25, 2011. More

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

16/17

10/23/2017
06/18/2015 06/18/2015

District of Maine G6 Version 6.1
speciﬁcally, the court shall retain jurisdiction for the sole purpose of deciding, should it become necessary, whether Specialized Services recommended for a Class Member who received a PASRR Level II Evaluation pursuant to Paragraph III.4 of the Settlement Agreement in February 2015 are being provided. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 05/04/2015)
163 MOTION by Attorney Janine A. Raquet to Withdraw as Attorney by MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES COMMISSIONER Responses due by 7/9/2015. (RAQUET, JANINE) (Entered: 06/18/2015)
164 ORDER granting 163 Motion to Withdraw as Attorney. Attorney Raquet's representation of the defendant is hereby terminated; the defendant continues to be represented by Attorneys Hagedorn and Barnard. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 06/18/2015)

PACER Service Center

Transaction Receipt

10/23/2017 21:39:28

PACER Login: hs0328:2563377:0 Client Code:

Description: Docket Report Search Criteria: 1:09-cv-00633-NT

Billable Pages: 14

Cost:

1.40

https://ecf.med.uscourts.gov/cgi-bin/DktRpt.pl?109319884392106-L_1_0-1

17/17