SUSAN J., et al., Plaintiffs, v. Bob RILEY, in his official..., 2006 WL 823313 (2006)
2006 WL 823313 (M.D.Ala.) (Trial Motion, Memorandum and Affidavit) United States District Court, M.D. Alabama. Northern Division
SUSAN J., et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
Case No. 2:00-cv-918-F. February 17, 2006.
Memorandum in Support of Motion for Judgment on the Pleadings
Troy King (KIN047), Attorney General, John J. Park, Jr. Bar Number: (PAR041), Assistant Attorney General, Office of the Attorney General, 11 S. Union Street, Montgomery, AL 36130-0152, Telephone: (334) 242-7300, Fax: (334) 353-8440, E-mail: jpark@ago.state.al.us.
Courtney W. Tarver, Esq., David E. Jackson, Esq., State of Alabama Department of Mental Health and Mental Retardation, RSA Union Building, 100 N. Union Street, P.O. Box 301410, Montgomery, AL 36130-1410, E-mail: Courtney.Tarver @mh.alabama.gov, E-mail: David.jackson@mh.alabama.gov, Of Counsel.
Bob Riley, in his official capacity as Governor of the State of Alabama, John Houston, in his official capacity as Commissioner of the Alabama Department of Mental Health and Mental Retardation, and the Alabama Department of Mental Health and Mental Retardation, defendants in this action (collectively, the “State Defendants” unless otherwise stated), submit this Memorandum in support of their Motion for Judgment on the Pleadings. For the reasons stated in their Motion and this Memorandum, this Court should enter judgment in favor of the State Defendants and against the Plaintiffs.
INTRODUCTION
This case involves Alabama’s program for providing services to those mentally retarded individuals eligible for both treatment in an intermediate care facility and for Medicaid benefits. Those services are provided under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v, and represent an exercise of Congress’ powers under the Spending Clause of the United States Constitution, Art. I, § 8, cl. 1.
More specifically, in 42 U.S.C. § 1396, Congress provided the following foundation for Title XIX:
For the purpose of enabling each state, as far as practicable under the conditions of each state, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families or individuals attain or retain capability for independence or self-care, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter. The sums made available under this section shall be used for making payments to states which have submitted, and had approved by the Secretary, state plans for medical assistance.
42 U.S.C. § 1396. The result is a “cooperative venture” of the State and the federal government. Silver v. Baggiano, 804 F. 2d 1211, 1215. The State need not participate, but, if it chooses to do so, it submits a plan that details how it proposes to comply with its obligations. The plan must contain certain provisions, but the States have some latitude as well. “Within broad federal rules, each State decides eligible groups, types and range of services, payment levels for services, and administrative and operating procedures.” 42 C.F.R. § 430.0. If the plan is acceptable, the federal government subsidizes the State’s compliance by funding a share of the cost.
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This case involves claims that the State is not complying with provisions in its plan. In their complaint, as twice amended, 31 Plaintiffs allege that the State Defendants have violated rights secured by the United States Constitution and federal statutory by failing to provide the required active treatment or habilitation of eligible individuals through, among other things, residential placement, day habilitation, or both. They contend that a number of eligible individuals are on a waiting list and more are underserved. More specifically, Plaintiffs make the following claims:
(1) The State Defendants have not provided required services to eligible recipients with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8), 42 C.F.R. § 435.930(a), and the Fourteenth Amendment to the United States Constitution. (No. 46 at 33-34). The Plaintiffs rely on 42 U.S.C. § 1983 to vindicate these rights. (Id.)
(2) The State Defendants have not provided eligible recipients with the same level of mandatory and designated optional services that are made available to other categorically needy recipients in violation of 42 U.S.C. § 1396a(a)(10)(B), 42 C.F.R. § 440.240, and the Fourteenth Amendment to the United States Constitution. (No. 46, at 34-35). Again, the Plaintiffs rely on § 1983 to vindicate these rights. (Id.)
(3) The State Defendants have failed to provide certain plaintiffs with the right to apply for services in violation of 42 U.S.C. § 1396(a)(8), the implementing regulations, and the Fourteenth Amendment to The United States Constitution. (No. 46, at 35-36) Again, the Plaintiffs rely on 42 U.S.C. § 1983 to vindicate these rights. (Id.)
(3) The State Defendants have violated the Plaintiffs’ right to due process by failing to provide Plaintiffs with adequate residential treatment and day habilitation. The Plaintiffs ground this right in the Fourteenth Amendment to the United State Constitution and seek to vindicate it through 42 U.S.C. § 1983. (No. 46, at 36-38).
2. The Standard of Review.
The State Defendants make their motion pursuant to Federal Rule of Civil Procedure 12(c). With respect to such a motion for judgment on the pleadings, the Eleventh Circuit has held that the courts should:
Accept[] the facts in the complaint as true and view[] them in the light most favorable to the nonmoving party. See Ortega v. Christian, 85 F. 3d 1521, 1524-25 (11th Cir. 1996). “Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Moore v. Liberty Nat’l Life Ins. Co., 267 F. 3d 1209, 1213 (11th Cir. 2001) (internal marks omitted), cert denied, 535 U.S. 1018, 122 S. Ct. 1608, 152 L. Ed 2d 622 (2002).
Horsley v. Feldt, 304 F. 3d 1125, 1131 (11th Cir. 2002); see also Cannon v. City of West Palm Beach, 250 F. 3d 1299, 1301 (11th Cir. 2001) (“Judgment on the pleadings is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.”) In considering the pleadings, this Court should not give deference to any conclusory allegations, South Florida Water Management Dist. v. Montalvo, 84 F. 3d 402, 409 fn. 10 (11th Cir. 1996), or to any unsupported conclusions of law or mixed assertions of law and fact. See Gonzales v. Reno, 325 F. 3d 1228, 1235 (11th Cir. 2003).
Notwithstanding the focus on the pleadings, however, this Court is not barred from considering matters of public record. In Bryant v. Avado Brands, Inc., 187 F. 3d 1271, 1275-81 (11th Cir. 1999), the Eleventh Circuit held that consideration of documents that had been publicly filed with the Securities Exchange Commission in a securities action at the motion to dismiss stage was not inappropriate. Those documents were capable of judicial notice and were pertinent to two of the defenses asserted in the motion. The court explained that, while the purpose of prohibiting courts from considering matters outside the pleadings at the motion to dismiss stage was to keep a plaintiff from being caught by surprise, consideration of publicly filed documents is “consonant with common notions of fairness.” 187 F. 3d at 1279. It is also consistent with considerations of judicial economy.
In this case, consideration of public documents relating to the State’s plan and the waiver in connection with this Motion is not inappropriate. Those documents define the terms of the State’s agreement with the Federal Government, and those terms speak to the potential scope of the State’s obligations to the Plaintiffs. In any event, as public documents, they are capable of judicial notice. Finally, considering these materials will preclude the Plaintiffs from asserting facts outside their context.
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Title XIX
As noted above, Title XIX of the Social Security Act is designed to enable States to furnish medical assistance and rehabilitation services to eligible persons. 42 U.S.C. § 1396. The States that wish to participate formulate a plan for providing services and submit it to the federal government for review. Section 1396a of Title 42 specifies the content of an acceptable plan and includes the requirement that the plan:
* * *
(3) provide for opportunity for granting a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness;
* * *
(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals ....
42 U.S.C. § 1396a(a)(3), (8). Section 1396a(a)(10) requires the plan to provide for medical assistance to certain individuals and to other optional individuals, 42 U.S.C. § 1396a(a)(10)(A), and further states that the plan must provide:
(B) that the medical assistance made available to any individual described in subparagraph (A) -
(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and
(ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in subparagraph (A).
42 U.S.C. § 1396a(a)(10)(B). The Secretary “shall approve” any plan that meets the requirements of § 1396a(a). 42 U.S.C. § 1396a(b).
As with other Spending Clause statutes, Title XIX includes an agency enforcement mechanism. Section 1396c empowers the federal agency to withhold or limit payments to a State that has failed to “comply substantially” with the provisions of § 1396a in its administration of the plan. Section 1396c provides that there will not be any such action absent a finding of substantial noncompliance by the Secretary “after reasonable notice and opportunity to the State agency administering or supervising the administration of the State plan approved ....” Id. Agency regulations provide greater detail on the process. In particular, 42 C.F.R. § 430.45 states that withholding will take place “only” on an Administrator’s finding of a failure to comply substantially, and that “[h]earings ... are generally not called until a reasonable effort has been made to resolve the issues through conferences and discussions. These may be continued even if a date and place have been set for the hearing.” Id. Moreover, a State that is dissatisfied with the Administrator’s decision that it has failed to comply substantially with its plan obligations has the right to judicial review. 42 C.F.R. § 430.38.
Furthermore, Title XIX allows the Administrator to agree to waive certain statutory provisions. 42 U.S.C. § 1396n. In particular, waivers respecting the inclusion of home and community-based services that limit the number of people who will receive those services are permitted. 42 U.S.C. § 1396n(c). In particular, the statute provides:
(9) In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or community-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan.
(10) The Secretary shall not limit to fewer than 200 the number of individuals in the State who may receive home and community-based services under a waiver under this subsection.
42 U.S.C. § 1396n(c)(9), (10). Moreover, such a waiver may include a waiver of the comparability requirements in § 1396a(a)(10)(B). See 42 U.S.C. § 1396n(c)(3).
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Consistent with § 1396n, the Health Care Financing Administration of the Department of Health and Human Services has granted the State of Alabama Home and Community Based Waivers and a Living at Home Waiver. See Exhibits A, B, and C. Those waivers extend to include the comparability requirements of § 1396a(a)(10)(B) and cap the number of unduplicated recipients.
ARGUMENT
A. The Legal Background
In this portion of their Memorandum, the State Defendants will show that, in order to proceed, the Plaintiffs must show that Congress intended to create privately enforceable rights when it enacted the Medicaid statutes. To the extent that Doe v. Chiles, 136 F. 3d 709 (11 Cir. 1998), says otherwise, that decision is due to be revisited in the light of subsequent changes of law. The State Defendants will also show that federal regulations will not support the creation of privately enforceable rights.
1. Identifying Privately Enforceable Rights
As noted above, the Medicaid Act is an exercise of Congress’ powers under the Spending Clause. U.S. CONST., Art I, § 8, cl. 1. In Barnes v. Gorman, the United States Supreme Court pointed out, “We have repeatedly characterized ... Spending Clause legislation as ‘much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.’ ” 536 U.S. 181, 186, 122 S. Ct. 2097, 2100-01 (2002) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 1540 (1981), and adding emphasis). In Pennhurst, more than twenty years ago, the Court explained that, for Spending Clause legislation, “the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance, but rather action by the Federal Government to terminate funds to the State.” 451 U.S. at 28, 101 S. Ct. at 1545.
In framing their Complaint, Plaintiffs seek to vindicate statutory, regulatory, and constitutional rights through 42 U.S.C. § 1983. By doing so, they do not appear to suggest that any of the statutes or regulations on which they rely creates a private right of action either directly or by implication. Moreover, their invocation of § 1983 does not, standing alone, empower Plaintiffs to proceed. Rather, “to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359 (1997) (emphasis in original); see also Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S. Ct. 444, 448 (1989) (“Section 1983 speaks in terms of ‘rights, privileges, or immunities,’ not violations of federal law.”) Indeed, nothing “short of an unambiguously conferred” statutory right will support a cause of action brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002). The Court explains, “Section 1983 provides a remedy only for the deprivation of ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States. Accordingly, it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section.” Id. (emphasis in original).
Federal funding statutes, like the Medicaid statute, do not provide a basis for private enforcement through § 1983 “unless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights.” Barnes v. Gorman, 536 U.S. at 280, 122 S. Ct. at 2273 (quoting Pennhurst, 451 U.S. at 17, 28 and n. 21, 101 S. Ct. at 1531, 1540, 1545 and n. 21). The Court has noted, “Since Pennhurst, only twice have we found spending legislation to give rise to enforceable rights.” Gonzaga v. Doe, 536 U.S. at 280-81, 122 S. Ct. at 2273-74. In those two instances, the applicable statute “unambiguously” or “explicitly” conferred a specific monetary benefit or entitlement on the claimants. Id. (discussing Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 107 S. Ct. 766 (1987), and Wilder v. Virginia Housing Authority, 496 U.S. 498, 110 S. Ct. 2510 (1990), respectively). More recently, though, the Court has found no basis for privately enforceable rights. See Gonzaga, 536 U.S. at 281, 122 S. Ct. at 2274 (discussing Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360 (1992), and Blessing v. Freestone).
In Gonzaga, as noted above, the Court “reject[ed] the notice that our cases permit anything short of unambiguously conferred
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right to support a cause of action brought under § 1983.” 536 U.S. at 283, 122 S. Ct. at 2275. Linking its implied right of action jurisprudence to its § 1983 cases, the Court pointed to the common denominator, which is “whether Congress intended to create a federal right” Id. (emphasis in original). “Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” 536 U.S. at 286, 122 S. Ct. at 2277. The Court concluded that the nondisclosure provisions of the Family Educational Rights and Privacy Act did not confer privately enforceable rights because those provisions lacked rights-creating language, spoke in terms of institutional policy and practice, had an aggregate focus, and were enforceable by the Secretary of Education. 536 U.S. at 287-90, 122 S. Ct. at 2277-79.
In 31 Foster Children v. Bush, 329 F. 3d 1255 (11th Cir. 2003), the Eleventh Circuit Court of Appeals concluded that portions of the Adoption Assistance and Child Welfare Act do not create privately enforceable rights. In reaching that conclusion, the Eleventh Circuit drew from Gonzaga the “lesson” that privately enforceable rights are to be found in the text and structure of the statute, explaining:
If the text and structure provide no indication that Congress intends to create new individual rights, there is no basis for a private suit. If they provide some indication that Congress may have intended to create individual rights, and some indication it may not have, that means that Congress has not spoken with the requisite clear voice. Ambiguity precludes enforceable rights.
329 F. 3d at 1270 (internal quotations and citations omitted). The intent of Congress is the linchpin, and it is determined by looking for the presence of individually focused rights creating language, an individual rather than a system wide or aggregate focus, and the availability of an enforcement mechanism for individual claims. Id.
Even more recently, in Arrington v. Helms, 438 F. 3d 1336, 2006 WL 321955 (11th Cir. Feb. 13, 2006), the Eleventh Circuit Court of Appeals held that portions of Title IV-D of the Social Security Act that relate to the collection, distribution, and disbursement of child support payments did not create individual rights enforceable through § 1983. In particular, the court affirmed a judgment holding that 42 U.S.C. § 657 does not create rights enforceable through § 1983.
2. Federal regulations do not create individual rights enforceable through § 1983.
In Harris v. James, 127 F. 3d 993 (11th Cir. 1997), the Eleventh Circuit held that a Medicaid regulation requiring that the State’s plan ensure that recipients of medical treatment received transportation to and from medical service providers could not be enforced through § 1983. Drawing on the Supreme Court’s decisions through Blessing v. Freestone, the court noted that “the driving force” is “Congressional intent to create a particular federal right.” 127 F. 3d at 1008. While agency regulations that “merely further[] or flesh [] out” a statutory right might contribute to the definition of that right, and, thereby, be enforceable, id. at 1009, regulations that “defme[] the content of a statutory provision that creates no federal right” and those that “go[] beyond explicating the statutory provision and impose [] distinct obligations in order to further the broad objectives underlying the statut[e]” are not enforceable through § 1983. Id. The court explained:
To hold otherwise would be inconsistent with the driving force of the Supreme Court precedent requiring a Congressional intent to create federal rights and with the Supreme Court’s directive that courts must find that Congress has unambiguously conferred federal rights on the plaintiff.
Id. (emphasis in original) (citing Suter; Pennhurst). In the end, the relationship between the transportation regulation and Congressional intent was “too tenuous” to support the creation of an enforceable right. Id. at 1010.
Subsequently, in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511 (2001), the United States Supreme Court held that a private right of action was not available to private individuals who sought to enforce agency disparate impact regulations
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promulgated pursuant to Section 602 of the Civil Rights Act of 1964 against a federal grantee. The Court explained, “Language in a regulation may invoke a private right of action that congress has created, but it may not create a right that Congress has not.” 532 U.S. at 290, 121 S. Ct. at 1522. Put differently, if the text and structure of a federal Spending Clause statute do not create privately enforceable rights, agency regulations cannot do so. And, in South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection, 274 F. 3d 771 (3d Cir. 2001), the Third Circuit held that the agency disparate impact regulations that were held not to be privately enforceable standing alone in Sandoval were not privately enforceable through § 1983.
3. Plaintiffs cannot enforce the provisions of a contract to which they are not a party.
As noted above, the relationship that Title XIX establishes between the State and the federal government is “much in the nature of a contract.” See Pennhurst, 451 U.S. at 17, 101 S. Ct. at 1540. The Plaintiffs are not parties to this arrangement.
In Blessing v. Freestone, Justice Scalia, joined by Justice Kennedy, concurred but reserved the question whether “§ 1983 ever authorizes the beneficiaries of a federal-state funding and spending agreement -- such as Title IV-D -- to bring suit.” 520 U.S. at 349, 117 S. Ct. at 1364 (Scalia, J., concurring) (emphasis in original). Those Justices observed that individuals like the Plaintiffs in this case are third-party beneficiaries of a contract, and ‘[u]ntil relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it ....” Id. Given that third-party beneficiaries had no right to enforce contract provisions when § 1983 was enacted, the rights secured by § 1983 do not include rights claimed by third-party beneficiaries. This Court should reject Plaintiffs’ claims for that reason.
Even under the modern view, a third-party beneficiary cannot enforce contractual rights unless he or she is an intended, as opposed to an incidental, beneficiary. In Wehunt v. Ledbetter, 875 F. 2d 1558 (11th Cir. 1989), the Eleventh Circuit held that the intended beneficiary of Title IV-D of the Social Security Act, which provides for the collection and distribution of child support payments, was the taxpaying public, not the recipients of the funds. The Third and Sixth Circuits have, however, held that the recipients of Title XIX services are the intended beneficiaries of §§ 1396a(a)(8), (10), and 15. See Sabree v. Richman, 367 F. 3d 180, 189 (3rd Cir. 2004); Westside Mothers v. Haveman, 289 F. 3d 852, 863 (6th Cir. 2002). The State Defendants disagree with those conclusions.
Intended beneficiary or no, however, the third-party beneficiary can only enforce the terms of the contract. They cannot change those terms to provide additional benefits not contemplated by the parties to the underlying transaction. In particular, to the extent that the State’s waivers include a waiver of the comparability requirement and a cap on the number of recipients, see Exhibits A, B, and C, these Plaintiffs cannot reimpose comparability, demand that the cap be increased, or both.
B. The statutes on which the Plaintiffs rely do not create individual rights enforceable through § 1983.
Evaluating the Plaintiffs’ claims against the legal background set forth above requires the examination of the text of each statutory provision. Cf. Blessing v. Freestone, 520 U.S. at 344, 117 S. Ct. at 1361 (9th Circuit erred in “taking a blanket approach to determining whether Title IV-D creates rights.”) In particular, this Court should first attempt to determine whether Congress intended the statute to benefit the plaintiffs. That determination involves considering whether the provision: (1) contains individually focused, rights creating language; (2) has an individual focus, not one that is aggregate or system wide; and (3) has an enforcement mechanism available to aggrieved individuals. See Arrington, 2006 WL 321955 at 6.
Before doing so, the State Defendants note that, in Doe v. Chiles, 136 F. 3d 709 (11th Cir. 1998), the Eleventh Circuit affirmed a district court judgment that enjoined Florida officials from failing to provide developmentally disabled plaintiffs with assistance within a reasonable time period. That decision predates Gonzaga, so its conclusion that § 1396a(a)(8) creates individually enforceable rights is due to be revisited in the light of Gonzaga. In the State Defendants’ view, examining the text and structure of Title XIX in the light of Gonzaga leads to the conclusion that no individual rights enforceable through § 1983 were created.
Sections 1396a(a)(3), (8), and (10) talk about “individuals” but that is not dispositive of Congressional intent. Section 1396a(a)(10)(A) shows that, between the “all individuals” identified in subsection (i) and the optional group or groups of individuals in subsection (ii), many individuals are involved. Moreover, each individual needs something different as the Second Amended Complaint shows. In Arrington, the Eleventh Circuit relying on 31 Foster Children, held that references to
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the individual foster “child” and “family” in 42 U.S.C. § 657 gave that statute an aggregate or system-wide focus. Arrington, 2006 WL 321955, at 7.
Likewise, the services to be provided indicate an aggregate or system wide focus because they are described in generic terms. See 42 U.S.C. §1396d. Not every recipient, much less any Plaintiff, will receive all of those services, and the amount of each service that a recipient receives depends on that recipient’s particular circumstances. Put differently, they are “a far cry from the sort of individualized, concrete monetary entitlement found enforceable” in Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, Wright, and Wilder. See Gonzaga 536 U.S. at 288 n.6, 122 S. Ct. at 2278 n.6. In Gonzaga, the Court explained that: (a) In Maine v. Thiboutot, it allowed plaintiffs to “recover payments wrongfully withheld by a state agency in violation of the Social Security Act.” See Gonzaga, 536 U.S. at 279, 122 S. Ct. at 2273.
(b) In Wright v. Roanoke Redevelopment and Housing Authority, the lawsuit involved a claim “by tenants to recover past overcharges under a rent-ceiling provision of the Public Housing Act ...” See Gonzaga, 448 U.S. at 280, 122 S. Ct. at 2273.
(c) In Wilder v. Virginia Hospital Assn., the lawsuit was brought by health care providers to “enforce a reimbursement provision of the Medicaid Act, on the ground that the provision, much like the rent-ceiling provision in Wright, explicitly conferred specific monetary entitlements on the plaintiffs.” See Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2274.
The generic description of the services at issue in Title XIX is a “far cry” from an “individualized, concrete monetary entitlement and speaks to an aggregate focus.”1
The “substantially comply” standard of § 1396c and 42 C.F.R. § 430.45 is “inconsistent with individually enforceable rights.” See Arrington, 2006 WL 321955 at 7. Such a standard indicates that the statute has an aggregate rather than an individualized focus. Id.
Title XIX includes an agency enforcement mechanism, and § 1396a(a)(3) requires the plan to include a hearing remedy for individuals. Plaintiffs claim that the State is in violation of § 1396a(a)(3), but such a hearing is available under the plan. In any event, even the absence of an enforcement mechanism for individuals is not dispostive in favor of a privately enforceable right. Rather, as one of the factors to be considered, it is to be weighed in determining whether Congress spoke “with a clear voice to unambiguously manifest its intent to create enforceable rights.” 31 Foster Children, 329 F. 3d at 1273.
C. This Court Should Dismiss Plaintiffs’ Due Process Constitutional Claims
Plaintiffs’ constitutional claims are due to be rejected. For the most part, those claims involve an attempt to turn alleged violations of federal statutes and regulations into constitutional claims. This Court should limit its analysis to the statutory and regulatory claims. If those statutory and regulatory claims have merit, the constitutional claim need not be addressed; if they have no merit, the constitutional claims will fail too.
Plaintiffs make only one claim, the claim that they have a due process right to adequate residential placement, day habilitation, other services, or all of them, No. 46 at 37, that appears to be grounded solely on the due process clause of the Fourteenth Amendment. The State Defendants recognize that “when [a] State takes a person into custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200, 109 S. Ct. 998, 1005 (1989). That constitutional duty arises, however, with the State’s assumption of custody over an individual. “As a general matter, a State is under no constitutional duty to provide substantive services for those with in its borders.” Youngberg v. Romeo, 457 U.S. 307, 317, 102 S. Ct. 2452, 2459 (1982); see also DeShaney, 489 U.S. at 196, 109 S. Ct. at 1003. (“[T]he Due Process Clauses generally confer no affirmative right to governmental aid”); Harris v. McRae, 448 U.S. 297, 317-18, 100 S. Ct. 2671, 2688 (1980) (The Due Process Clause “does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom” from unwarranted governmental interference.). Accordingly, the State Defendants disagree with the contention that they have a constitutional duty to provide habilitation to the Plaintiffs. If there is such a duty, it is a statutory one.
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CONCLUSION
For the reasons stated above, this Court should enter judgment of the pleadings in favor of Governor Riley, Commissioner Houston, and the Alabama Department of Mental Health and Mental Retardation.

Footnotes

1

The generic nature of the services and the individualized nature of the recipient’s service package further indicate that the right

Plaintiffs assert is “so vague and amorphous that its enforcement would strain judicial competence.” See Blessing, 520 U.S. at

340-41, 117 S. Ct. at 1359.

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 SUSAN J., et al., Plaintiffs, v. Bob RILEY, in his official..., 2006 WL 1201261...
2006 WL 1201261 (M.D.Ala.) (Trial Motion, Memorandum and Affidavit) United States District Court, M.D. Alabama. Northern Division SUSAN J., et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
Civil Action No. CV-00-S-918-F. March 20, 2006.
Plaintiffs’ Memorandum of Law Opposing Defendants’ Motion for Judgment on the Pleadings
Attorneys for the Plaintiffs, Deborah A. Mattison, Wiggins, Child, Quinn & Pantazis, P.C., The Kress Building, 301 19th Street North, Birmingham, AL 35203, (205) 314-0500, Robert R. Kracke, Kracke & Thompson, 808 29th Street South, Suite 300, Birmingham, AL 35205, (205) 933-2756, James A. Tucker (ASB-6986-T39J), Lauren Wilson-Carr, ADAP, Box 870395, Tuscaloosa, AL 35487, (205) 348-4928.
I. INTRODUCTION
Defendants’ Motion for Judgment on the Pleadings should be denied. As the Eleventh Circuit has already held, plaintiffs may utilize 42 U.S.C. § 1983 to bring a cause of action under Title XIX, which establishes the Medicaid program. Contrary to defendants’ assertion, subsequent case law developments do not alter this conclusion. Rather, there is a long-standing jurisprudence, both before and after Gonzaga that the types of Medicaid claims at issue in this case are enforceable through 42 U.S.C. § 1983. Finally, plaintiffs also may pursue their Fourteenth Amendment claim through § 1983.
II. PLAINTIFFS HAVE ENFORCEABLE CLAIMS UNDER 42 U.S.C. § 1983.
A. A Motion For Judgment on the Pleadings Must Be Strictly Construed.
As indicated by the defendants, this Court must construe the Complaint liberally, accepting “the facts in the complaint as true and viewing them in the light most favorable to the nonmoving party.” Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir. 2002). “Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir.2001) (internal marks omitted), cert. denied, 535 U.S. 1018, 122 S.Ct. 1608, 152 L.Ed.2d 622 (2002). As will be demonstrated, application of this standard dictates that defendants’ Motion should be denied.
B. Title XIX Provides Numerous Entitlements to Persons Eligible for Services Under the Statute.
Title XIX establishes the federal Medical Assistance program. “Medicaid is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” Doe v. Chiles, 136 F.3d 709, 714 (11th Cir. 1998), citing Wilder v. Va. Hosp. Assn., 496 U.S. 498, 502 (1990). The purpose of the Medical Assistance program includes the provision of services to help such individuals “attain or retain capability for independence or self-care ....” 42 U.S.C. § 1396; accord W. Va. Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 20 (3d Cir. 1989), aff’d on other grounds, 499 U.S. 83 (1991).
A state is not required to participate in the Medical Assistance program. However, if it participates, it must adopt a “state 1

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plan” which delineates the statute’s standards for determining eligibility. The plan will also identify the Medical Assistance services to be provided. The state plan must comply with the Medical Assistance statute and implementing regulations. See 42 U.S.C. § 1396a; Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981); Harris v. McRae, 448 U.S. 297, 301 (1980); Doe v. Chiles, 136 F.3d at 714. It is undisputed that Alabama has adopted a State Plan. Defendants’ Motion incorporates several exhibits referencing components of the State Plan.
“Medical assistance” is defined to include certain mandatory types of services, along with those “optional” types of services, as defined in 42 U.S.C. § 1396d, which a state chooses to include in its state plan. 42 U.S.C. §§ 1396a(a)(10)(A)(i)-(ii). Such optional “Medical Assistance” services can include “[s]ervices in an [ICF/MR]... for individuals who are determined in accordance with [42 U.S.C. § 1396a(a)(31)] to be in need of such care.” 42 U.S.C. § 1396d(a)(15) (emphasis added); Portland Residence, Inc. v. Steffen, 34 F.3d 669, 670 (8th Cir. 1994). Alabama has chosen to include such services in its state plan, to include day treatment, habilitation and other services which are the subject of this case. Ala. Admin. Code 560-X-35-.01 (2005). “[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.” Tallahassee Mem’l Reg’l Med’l. Ctr., 109 F.3d 693, 698 (11th Cir. 1997). Title XIX also requires states to furnish Medical Assistance services, including day treatment, habilitation and other services, with reasonable promptness. 42 U.S.C. § 1396a(a)(8). E.g., Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002); Boulet v. Cellucci, 107 F. Supp.2d 61, 76 (D. Mass. 2000); Lewis v. N.M. Dep’t of Health, 94 F. Supp.2d 1217, 1234 (D.N.M. 2000), aff’d on other grounds, 261 F.3d 970 (10th Cir. 2001).
Title XIX is commonly referred to as an “entitlement” statute because of the rights it confers to each Medical Assistance recipient. Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981) (“An individual is entitled to Medicaid if he fulfills the criteria established by the state in which he lives.”)(Emphasis supplied.). Indeed, Title XIX unequivocally mandates that: “A State plan for medical assistance must -- ... provide -- for making medical assistance available... to -- ... all individuals” who fall within specified eligibility categories (e.g., persons who receive Supplemental Security Income benefits). 42 U.S.C. § 1396a(a)(10)(A)(i) (emphasis supplied).
C. Plaintiffs’ Complaint Alleges Violations of the Medicaid Act
Plaintiffs’ second amended complaint alleges that plaintiffs are persons with significant disabilities, including physical disabilities and mental retardation. (Pls’ Second Amended Comp., ¶¶ 6-36). In addition to identifying the structure of the Medicaid Act, as it applies to Alabama, the complaint alleges that Alabama has chosen to provide residential placement in ICF/MR facilities, which constitutes the state’s main residential program in its state plan. Many of these placements are provided through small community-based, home-like settings. (Pls’ Second Comp. ¶¶ 1, 160-167). Defendants are also required to provide an array of other medical services, to include therapeutic and habilitation services. To be eligible for medical assistance, plaintiffs must meet three criteria. It is undisputed that plaintiffs meet these criteria and that they have been on a waiting list, sometimes for over ten years. (Pls’ Second Comp. ¶¶ 164-171).
Plaintiffs’ complaint also alleges that defendants are, or should have been, aware that there are a significant number of persons with mental retardation, including plaintiffs, who, while they are eligible for residential placement and other services, have not been provided these necessary services. As a result, plaintiffs have been harmed. Plaintiffs have been denied the care and services they need, for which they are eligible under law. Plaintiffs also have languished for years on waiting lists maintained by the State Defendants. (Pls’ Second Comp. ¶ 171, 173-180).
Plaintiffs have alleged three types of statutory violations. Count I of plaintiffs’ complaint alleges defendants failed to provide medical assistance, to include ICF/MR and/or waiver services, with reasonable promptness in violation of, inter alia, 42 U.S.C. §§1396a(a)(8) and (10)(a). (Pls’ Second Comp. ¶¶183-187).
Count II of plaintiffs’ complaint alleges that defendants failed to provide services to plaintiffs in an amount, duration and scope equal to services provided to other persons. Such constitutes a violation of, inter alia, 42 U.S.C. § 1396(a)(10)(B). (Pls’ Second Comp. ¶ 188-191).
Count III of plaintiffs’ complaint alleges that, in contrast to the treatment afforded to others, defendants have denied plaintiffs’ right to apply for services and have a decision rendered on their application, in violation of, inter alia, 42 U.S.C. §
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1396a(a)(8).
Each of these statutory violations state a valid claim under 42 U.S.C. 1983.
D. Numerous Courts, Including the Supreme Court and the 11th Circuit Have Recognized the Enforceability of Certain Provisions of Title XIX through Section 1983.
Contrary to defendants’ assertions, numerous courts, including the United States Supreme Court and the Eleventh Circuit, have recognized that Medicaid claims can be enforced through 42 U.S.C. § 1983. Subsequent case law developments do not alter these holdings.
1. The Requirements for Enforcing a Statute Under 42 U.S.C. § 1983.
A plaintiff who wishes to bring a cause of action under 42 U.S.C. § 1983 must first demonstrate that the statute upon which he or she relies affords a federal right. Courts have historically applied a three part test to assure the existence of a privately created and enforceable federal right. First, is the plaintiff the intended beneficiary of the statutory language? Second, is the plaintiff’s interest so vague and amorphous as to be incapable of judicial enforcement? And, third does the statute place a binding obligation on the state?
If the Court determines the existence of a federal right, a rebuttable presumption exists that the statute may be enforced through § 1983. Blessing v. Freestone, 520 U.S. 329, 341 (1997). The claim will then only be dismissed if the Court determines that Congress has foreclosed the use of § 1983, either expressly or by creating an enforcement scheme which is sufficiently comprehensive. A defendant has a heavy burden of proof to prevail on this issue. (Blessing; See also Wilder v. Va. Hosp. Ass’n., 496 U.S. 498 (1990)).
2. The U.S. Supreme Court has Adopted these Principles to Claims Under the Medicaid Act.
Since at least 1990, the U.S. Supreme Court has recognized the applicability of these principles to violations of a plaintiff’s rights under the Medicaid Act. In Wilder v. Va. Hosp. Ass’n, 110 S.Ct. 2510, 496 U.S. 498 (1990), the U.S. Supreme Court held that Medical Assistance providers could pursue a Section 1983 lawsuit to enforce the “Boren Amendment” to Title XIX. That amendment requires states to pay “reasonable and adequate” reimbursement rates to providers. Id. at 509. The Court held that the Boren Amendment conferred on providers an enforceable right on providers to reasonable and adequate reimbursement rates. Id. at 510-20. In reaching this decision, the Court rejected an argument that 42 U.S.C. § 1396c, which allows the federal government to terminate funding, demonstrated any Congressional intent to foreclose the application of Section 1983 as an enforcement of Title XIX provisions. Wilder, 496 U.S. at 521-22.1
In 1997, the Court applied these principals in Blessing which involved Title IV-D of the Social Security Act (the analog of 42 U.S.C. § 1396c in Title XIX). While the Court ultimately rejected plaintiffs’ contention that they could enforce the “substantial compliance” provision of the Act, the Court recognized that certain provisions within Title IV-D could give rise to individually enforceable rights. The Court, thus, remanded the case to the District Court for a more detailed review of plaintiff’s complaint, finding it unclear as to which rights plaintiffs intended to invoke. Significantly, the Court also rejected defendants’ argument that Congress had demonstrated its intent to foreclose § 1983 as a remedial statute. The statute which allowed the federal government to terminate funding did not compel the conclusion that Congress had intended to foreclose § 1983 lawsuits on an enforcement mechanism. Id. at 345-46. See also Wright v. Roanoke Redevel & Hous. Auth., 479 U.S. 418, 107 S.Ct. 7666 (1990).
3. The “Suter Fix.”
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In 1992, the United States Supreme Court dealt a blow to the utilization of 42 U.S.C. § 1983 to enforce a provision contained in the Adoption Assistance and Child Welfare Act. Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360 (1992). In Suter, the Court declined to recognize an enforceable federal right when the language at issue was contained in a statutory provision which identified what must exist in a state’s plan in order for the state to receive federal funds. Suter had the potential to affect claims under the Social Security Act, given that some of the language typically relied upon by plaintiffs was contained in 42 U.S.C. 1936a.
Following the Court’s decision in Suter, however, Congress acted swiftly to amend the Social Security Act to clarify that it did not intend to foreclose § 1983 as a mechanism for enforcing an entitlement which was contained in the statutes articulating the requirements for a state’s plan. That amendment states:
In an action brought to enforce a provision of the Social Security Act, such provision is not to be deemed unenforceable because of its inclusion in a section of the Act requiring a State plan or specifying the required contents of a State plan.
42 U.S.C. § 1320a-2; accord 42 U.S.C. § 1320a-10. In enacting this statute, Congress recognized that:
Social Security beneficiaries, parents, and advocacy groups have brought hundreds of successful lawsuits alleging failure of the State and/or locality to comply with State plan requirements of the Social Security Act. ... Much of this litigation has resulted in comprehensive reforms of Federal-State programs operated under the Social Security Act, and increased compliance with the mandates of the Federal statutes.
H.R. Rep. No. 102-631, at 364-65 (1992). See also H.R. Conf. Rep. No. 102-1034, at 1304 (1992) (quoting H.R. Rep. No. 102-631, at 366 (1992)). Congress stated that “the purpose of this provision [was] to assure that individuals who have been injured by a state’s failure to comply with the state plan requirements are able to seek redress in the federal courts to the same extent they were able to prior to the decision in Suter v. Artist M.” Id. (quoting H.R. Rep. No. 102-631, at 366 (1992)).2
4. Subsequently, Numerous Other Courts, Including the Eleventh Circuit, Recognized that Certain Title XIX Provisions Create Rights which are Enforceable Through Section 1983 by Medical Assistance Recipients.
Subsequently, numerous courts, including the Eleventh Circuit, have recognized that certain Title XIX provisions such as those relied upon by plaintiffs, create rights which are enforceable through 42 U.S.C. 1983 by individual Medical Assistance recipients.3
In Doe v. Chiles, supra, the Eleventh Circuit held that Medicaid recipients may bring an action under 42 U.S.C. § 1983 in a factual situation almost identical to this case.4 The case involved persons with disabilities who had been on a waiting list for services for several years. Plaintiffs claimed that they were denied services with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8). Rejecting defendants’ argument to the contrary, the Eleventh Circuit found that the plaintiffs in Doe had the right to bring their claim under § 1983. 42 U.S.C. § 1396a(a)(8)(b) was intended to benefit plaintiffs who were Medicaid “eligible individuals under the Medicaid statute.”5 The Eleventh Circuit also found that the Medicaid statutory right was “not so ‘vague and amorphous’ that its enforcement would strain judicial confidence.” Doe, 136 F.3d at 716, citing Blessing. Rather, the “reasonable promptness” language was “specific and definite.” Id. at 717. Because the language unambiguously created an obligation which was binding on the states, the language was mandatory. Finally, the Court easily found that Congress had not foreclosed such a remedy by creating “a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Id. at 719, citing Blessing.6
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E. The U.S. Supreme Court’s Decision in Gonzaga does not Overrul Wilder And its Progeny.
Defendants’ primary argument in support of their motion to dismiss is that Gonzaga overruled Wilder and its progeny. However, defendants are wrong. Gonzaga does not support the dismissal of plaintiffs’ complaint, as it is distinguishable on several grounds.
The issue before the Court in Gonzaga was whether a plaintiff could bring a 1983 claim to enforce the Family Education Rights to Privacy Act (FERPA), which protected certain educational records from public disclosure. The significant language in Gonzaga stated: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization.
20 U.S.C. § 1232g(b)(1) (emphases added), quoted in Gonzaga University, 122 S. Ct. at 2273.
In concluding that FERPA did not create enforceable rights, the Court looked at several factors, including whether the statute included “ ‘rights-creating’ language.” 122 S. Ct. at 2277, 2279. Contrasting Titles VI and IX of the Civil Rights Act which use “individually focused terminology,” the FERPA provision simply forbade the Secretary of Education from providing federal funds to an “educational agency or institution” which engaged in a prohibited “policy or practice.” Accordingly, the FERPA language was “two steps removed from the interests of individual students and parents and clearly does not confer the sort of ’individual entitlement’ that is enforceable under § 1983.” Id. (citation omitted; emphasis in original).
The Court also found that the FERPA provision addressed merely “institutional policy and practice, not individual instances of disclosure.” Gonzaga University, 122 S. Ct. at 2278 (emphasis added). Thus, the statute had an “ ‘aggregate’ focus” and it was “not concerned with ‘whether the needs of any particular person have been satisfied’ ....” Id. (citations omitted).7 Accordingly, Gonzaga neither dictates the dismissal of plaintiffs’ complaint, nor does it overrule Doe v. Chiles. The FERPA statutory provision at issue did not contain the same type of rights creating language as found in the statute giving rise to plaintiffs’ claims. The FERPA provision also addresses public policy practice issues, rather than a person’s individual rights.
Moreover, Gonzaga did not overrule Wilder and its progeny. Rather, Gonzaga cited Wilder with favor, recognizing that in Wilder, plaintiffs were able to enforce a provision of the Medicaid Act through 42 U.S.C. 1983. Gonzaga, 122 S. Ct. at 2274, 2279.
1. The Statutes Implicated in Plaintiffs’ Complaint Are Grounded in Statutory Provisions, Contrary to Rights-Creating Language Which Have an Individual Focus.
The allegations contained in plaintiffs’ complaint are easily distinguishable from FERPA. Each of the statutes relied upon by plaintiffs identify plaintiffs as the intended beneficiaries of the statutory language. Moreover, plaintiffs’ interests are not so vague and amorphous so as to escape this Court’s enforcement power. Finally, the statutory language unequivocally places a binding obligation on the state. Thus, a rebuttable presumption exists that each of the statutes relied upon by plaintiffs may be enforced via 42 U.S.C. § 1983.
42 U.S.C. § 1396a(a)(10)(A) mandates that states “must” make “medical assistance available” to “all individuals” who are eligible for such services. (Emphasis added). Alabama’s State Plan, defines “medical assistance” to include day treatment, habilitation and other services. Ala. Admin. Code 560-X-35-.01 (2005). Plaintiffs in this action each allege they need such services. See Second Amended Complaint, generally.
42 U.S.C. § 1396a(a)(8), too, embodies the type of “rights-creating” language identified by the Supreme Court as evidence of an enforceable right. The provision required that “[a] State plan for medical assistance must -- provide that... such [medical] assistance shall be furnished with reasonable promptness to all eligible individuals[.]” 42 U.S.C. § 1396a(a)(8) (emphasis added). This language focuses expressly on the individual plaintiffs and the benefits to which they are entitled. Thus, unlike the FERPA provision at issue in Gonzaga, the reasonable promptness mandate is directly related to individual Medical
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Assistance recipients; and, it states unequivocally that “all eligible individuals” must be furnished with Medical Assistance services with reasonable promptness. Similarly, 42 U.S.C. § 1396a(a)(8) also provides “that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so....” (emphasis added). Accordingly, the statutory language at issue here is distinct from that in Gonzaga, which was “two steps removed from” an individual’s right. Here, Medical Assistance provisions relied upon by plaintiffs have direct and “unmistakable focus,” on the rights of plaintiffs who are, undisputedly, eligible for the Medical Assistance. In direct contrast, the FERPA provision did not even directly reference individuals. Rather, the statute merely prohibited “policies and practices” by educational institutions. It did not identify with precision, as is the case here, a service or benefit to be provided to a person.
Indeed, the language relied upon by plaintiffs reflects precisely “the sort of ‘individual entitlement’ that is enforceable under § 1983.” Gonzaga at 2277 (emphasis in original). Because it is undisputed that plaintiffs are “individuals” who are eligible for “medical assistance,” these services must be made available to them. 42 U.S.C. § 1396a. Gonzaga simply requires that the statute to be enforced focus on the individual who seeks to enforce it. 122 S. Ct. at 2275-77. “For a statute to create such private rights, its text must be ‘phrased in terms of the person benefited,’ ” and have ‘an unmistakable focus on the benefited class’.” Id. at 2275 (emphasis in original). Title XIX’s statutory requirements focus directly and unmistakably on individuals eligible for Medical Assistance. This is all that is necessary under the Gonzaga analysis to create an enforceable right.8
The statutory language which is at issue in this case also has an “individual,” versus an “aggregate,” focus. Title XIX’s entitlement provisions do not allow states to provide Medical Assistance services to some eligible people. Nor, does it require services with reasonable promptness to “most” eligible persons. Finally, the statute does not require that states merely have certain limited “policies and practices” which comply with Title XIX. Rather, 42 U.S.C. § 1396a(a)(10)(A) requires Alabama to make Medical Assistance benefits available with reasonable promptness to “all individuals ” who fall within the eligibility categories. 42 U.S.C. § 1396a(10)(A)(i) (emphasis added). Rather, unlike FERPA, the Medicaid provisions which plaintiffs seek to enforce here, focus exclusively on Medical Assistance recipients and their right to receive services in a timely manner.9
2. Defendants failed to Demonstrate that Congress Intended to Foreclose § 1983.
Defendants have also failed to meet their burden of proof to demonstrate that Congress intended to foreclose 42 U.S.C. § 1983 as a remedy. As an initial matter, Congress has not expressly foreclosed such relief. Rather, the “Suter Fix” demonstrates that Congress expressly intended to continue to allow plaintiffs to rely on § 1983 to enforce substantive provisions in Medicaid. Indeed, in at least two post-Gonzaga cases discussed below, the Fifth and Second Circuits have acknowledged the continuing viability of the “Suter fix.” See discussion of Hood and Rabin, at 15, 16, infra.
Moreover, defendants have failed to meet their burden to demonstrate that the use of any so-called administrative enforcement scheme is sufficiently comprehensive so as to meet the heavy burden imposed upon defendants.10 And, as explained in Wilder supra, the Medicaid Act does not contain comprehensive remedial scheme for the purpose of making the difficult showing needed to rebut the presumption of enforceability. See also Doe v. Chiles, supra.
3. Subsequent to Gonzaga, Numerous Courts have Continued to Enforce a Recipients’ Medicaid Claims Through 42 U.S.C. § 1983.
Since Gonzaga, numerous courts, including many Circuit Courts of Appeal, have held the statutory language relied upon by plaintiffs is enforceable through § 1983. Accordingly, defendants’ assertion that Gonzaga overruled the principles articulated Doe v. Chiles must be rejected.
In S.D. v. Hood, 391 F.3d 581, 604 (5th Cir. 2004), the Fifth Circuit held that section 1396a(a)(10) features “precisely the sort of ‘rights-creating’ language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right.” The only “potentially material difference” between section 1396a(a)(10) and the Gonzaga-approved rights-creating language of Titles VI and IX is that section 1396a(a)(10) requires state action under a medical assistance plan. However, the “Suter fix” renders the language enforceable. Id.
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In Sabree v. Richman, 367 F.3d 180, 182 (3rd Cir. 2004) (Alito concurring), the Third Circuit recognized that Gonzaga “set the bar high for plaintiffs.” However, the Court held that Congress, nevertheless, unambiguously conferred on plaintiffs the right to enforce through §1983 the precise provisions of the Medicaid Act that plaintiffs seek to enforce in this action. Further, the Sabree Court found that Gonzaga did not overrule Wilder or Wright. Id. at 184.
In Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006), the Ninth Circuit found that 42 U.S.C. 1396a(a)(10) created individual rights enforceable under 42 U.S.C. 1983. “In holding that this statutory provision creates a right enforceable by section 1983, [the Circuit] joins five federal circuit courts that have already so held.” Id. at 1159. “No circuit court has held that section 1396a(a)(10) does not create a section 1983 right.” Id. at 1159-60. “Because section 1396a(a)(10) requires states to provide particularly specified benefits to particularly specified types of individuals, there is a presumption of a section 1983 right under Blessing.” Id. 1161.
In Rio Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56 (1st Cir. 2005), the First Circuit found that, while Gonzaga “tightened up” claims under § 1983, a federally qualified health center (FQHC), could enforce the state’s obligation to make payments under 42 U.S.C. §1396a(bb). Id. at 72-75. Inter alia, the statutory provision at issue identified a FQHC as a discrete beneficiary group and it spoke in “individualistic terms,” rather than focusing on the aggregate level of institutional policy or practice. The highly specific provision also identified how to calculate payments. Finally, the fact that the provision was in a state plan statute did not mean the provision could not be enforced. 42 U.S.C. 1320a-2. See also, Rolland v. Romney, 318 F.3d 42, 47-56 (1st Cir. 2003) (Medical Assistance recipients can enforce Title XIX nursing facility standards).
In Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004), the Second Circuit held that 42 U.S.C. § 1396r-6, a Medicaid Act provision requiring that transitional Medicaid assistance (TMA) be provided to certain individuals, was enforceable through §1983. Gonzaga was distinguished because the Medicaid provision’s” language focuse[d] much more directly than does the FERPA provision [at issue in Gonzaga] on the individual’s entitlement. In particular, it contains no qualifying language akin to FERPA’s “policy or practice.” Id. at 201. Pursuant to the “Suter Fix,” the fact that the provisions spoke in terms of requiring state plan provisions did not change its enforceability. Id. at 202.
Other lower courts are in accord. Rosie D. v. Romney. 2006 WL 181393 (D. Mass. 2006), (could be used to enforce 1396a(a)(8) and 1396a(a)(10)). Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (E.D. Mich. 2005) (a private right of action exists under 1983 to enforce 1396a(a)(8) and 1396a(a)(10)). Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 366 F.Supp.2d 1050 (N.D. Okla. 2005) (Medicaid recipients could bring a private suit under 1983 to enforce 1396a(a)(8) and 1396a(a)(10)(A)(III)). Reynolds v. Giuliani, 2005 WL 342106 (S.D.N.Y. Feb. 14, 2005) (1396a(a)(8) gives rise to a 1983 claim). Michelle P. ex rel. Deisenroth v. Holsinger, 356 F.Supp.2d 763 (E.D. Ky. 2005) (42 U.S.C. § 1983 may be used to enforce 42 USC §1396a(a)(10)(A); 1396a(a)(10) (B); 1396a(a)(8);). Clark v. Richman, 339 F.Supp.2d 631 (M.D. Pa. 2004) (1396a(a)(8) and 1396a(a)(10) are enforceable under § 1983). Mendez v. Brown, 311 F.Supp.2d 134 (D. Mass. 2004) (1396a(a)(8) and 1396a(a)(10) each create a private right of action for Medicaid recipients). Kerr v. Holsinger, 2004 WL 882203 (E.D. Ky. Mar. 25, 2004) (1396a(a)(8) and 1396a(a)(10)(A) create a private right of action under § 1983). Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003) (1396a(a)(10)(A) confers a private right of action under § 1983). Lewis v. N.M. Dept. of Health, 275 F.Supp.2d 1319 (D.N.M. 2003) (1396a(a)(8) creates a private right of action under § 1983). Ass’n of Residential Resources in Minn. v. Minn. Comm’r of Human Services, 2003 WL 22037719 (D. Minn. Aug. 29, 2003) (notwithstanding Gonzaga, the provisions of the Medicaid Act are privately enforceable through 42 U.S.C. § 1983). Mo. Child Care Ass’n v. Martin, 241 F.Supp.2d 1032 (W.D.Mo.2003) (“If the Supreme Court had intended to overrule Wilder, one would expect the criticisms or clarification [of Gonzaga University] to be directed at Wilder, and not Blessing and Suter”). White v. Martin, 2002 WL 32596017 (W.D. Mo. Oct. 3, 2002) (1396a(a)(8) has been repeatedly found to give a Medicaid recipient the right to pursue action under § 1983). Martin v. Taft, 222 F.Supp.2d. 940 (S.D. Ohio 2002) (“Reasonable promptness” requirement 1396a(a)(8) was enforceable under § 1983). Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27 (E.D.N.Y. 2002) (1396a(a)(8) is enforceable under § 1983);11 Bryson v. Shumway, 308 F.3d 79, at 88-89 (1st Cir. 2002) (Medical Assistance recipients can enforce Title XIX’s reasonable promptness mandate). Finally, in declining to reverse “three decades of case law” that allowed Ex pane Young lawsuits for injunctive relief to enforce Title XIX, one court wrote: “Reversing these precedents would require a dramatic -- and unwarranted -- departure from both the common understanding of Ex parte Young and its historic role in administering the Social Security Act.” Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 237 (1st Cir. 2002) (footnoted omitted).12
Significantly, defendants’ Memorandum makes no mention of these cases. However, in light of the clarity of the federal
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rights which are created by the statutes relied upon by plaintiffs, as well as the overwhelming case law which recognizes the right to enforce such statutes, defendants motion should be denied.
III. THE LAW OF THE CASE MANDATES THAT DEFEDANTS’ MOTION SHOULDBE DENIED.
The“law of the case” doctrine has been termed “an amorphous concept” that developed in this country nearly one century ago. Arizona v. California, 460 U.S. 605, 618 (1983); See also Messenger v. Anderson, 225 U.S. 436 (1912). In order for the doctrine to be applicable, an issue must be previously determined, either implicitly or explicitly. Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984). Although courts have been reluctant to import wholesale “law of the case” doctrine into original actions, prior rulings in such cases “should be subject to the general principles of finality and repose, absent changed circumstances or unforeseen issues not previously litigated. Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992).
1. This Court Previously Denied Defendants’ Motion to Dismiss for Failure to State a Claim under 42 U.S.C. § 1983.
“When a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). In other words, an issue decided at one stage of a case is binding on later stages of the same case. Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000). The State Defendants have already argued that the plaintiffs failed to state a claim upon which relief can be granted, relying heavily on arguments about Medicaid Act provisions that are recycled at greater length in their latest motion. Defendants’ original Motion to Dismiss was denied by this Court. As demonstrated, supra, the defendants’ claim that Gonzaga changed the law on plaintiffs’ ability to state a claim is not well-founded regarding the specific Medicaid Act provisions at issue in this case.
2. The Defendants have not Alleged any Changed Circumstances or Unforeseen Issue in their Latest Motion to Dismiss.
The defendants’ use of Gonzaga to resurrect their Motion to Dismiss is unfounded. Every post-Gonzaga Circuit court faced with this issue has recognized the enforceability of certain provisions of Title XIX through Section 1983. Rio Grande Community Health Center v. Rullan, 2005 US App. LEXIS 2390 (1st Cir. Feb. 14, 2005), Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004), Sabree v. Richman, 367 F.3d 180 (3rd Cir. 2004), S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004), Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006). In the interest of finality and judicial economy, this court should deny the defendants’ latest Motion to Dismiss.
IV. PLAINTIFFS ARE ENTITLED TO PURSUE THEIR CLAIMS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION.
In defendants’ memorandum in support of its motion for judgment on the pleadings, the defendants limit their Motion to plaintiffs’ substantive due process claim under the Fourteenth Amendment to the United States Constitution. Thus, defendants have not moved to dismiss plaintiffs’ procedural due process rights or equal protection claims. (Pls’ Second Comp., ¶ 1; Counts I and II). It is well established that persons with disabilities, to include mental retardation, are entitled to equal protection under the Fourteenth Amendment. See City of Cleburne v. Cleburne Living Ctr., 473, 454 U.S. 432 (1985) (acknowledging the “history of unfair and often grotesque mistreatment” of persons with such disabilities). Alexander v. Choate, 469 U.S. 287, 295 fn 12 (1985) (“well cataloged instances of invidious discrimination against the handicap do exist.”). Such includes “lengthy and tragic history of discrimination, which includes segregation and denial of basic civil and constitutional rights for persons with disabilities, to include the plaintiffs here. Cleburne, 473 U.S. p. 461
Count II of plaintiffs’ complaint alleges that eligible recipients, such as plaintiffs, are entitled to receive mandatory services and any optional service, to include residential placement and/or day habilitation and other services, in an amount, duration
8

SUSAN J., et al., Plaintiffs, v. Bob RILEY, in his official..., 2006 WL 1201261...
or scope that is no less than those services available to other eligible recipients. 42 U.S.C. 1396a(a)(10)(B). The statute also requires that eligible recipients, to include plaintiffs, must receive services in an equal amount, duration and scope as available to other eligible recipients within their covered group. (Pls’ Second Comp. ¶ 188-191).
Count III denotes that defendants have failed to provide such rights available to other eligible recipients with reasonable promptness. 42 U.S.C. 1396a(a)(8). (Pls’ Second Comp. ¶ 192-195). As such, plaintiffs have alleged violations of the Fourteenth Amendment, in addition to violations of their substantive right to due process. Given that defendants have not moved to dismiss on either of these grounds, such claims may proceed. It is well established that discrimination on the basis of disability may include the equal provision of services based on, inter alia, the severity of a disability. See, generally, Messier v. Southbury Training School, 14 NDLR (Conn. 1999). Thus, given plaintiffs’ allegations, it cannot be said that no set of facts would establish a violation of the equal protection clause.
Further, in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982), the Supreme Court established the right of persons with mental retardation who resided in state-run facilities to sue under the Due Process Clause of the Fourteenth Amendment. Here, plaintiffs are similarly situated to persons with mental retardation who reside in state-run facilities. Indeed, pursuant to Medicaid-eligibility rules, many of the named plaintiffs have already been determined -- by virtue of the placement on waiting lists maintained by the State Defendants -- to be eligible for placement in a state-run facility or, in the alternative, in a community placement.
Though no constitutional right to community placement exists, P.C. v. McLaughlin, 913 F.2d 1033, 1042 (2d Cir. 1990), state actors must comply with the Youngberg, professional judgment standard in deciding if mentally retarded residents should be placed at an institution or in the community. Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990); Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1249 (2d Cir. 1984); Messier v. Southbury Training School, 916 F.Supp. 133, 140 (D.Conn. 1996). In Messier v. Southbury Training School, 14 Nat. Disability Law Rep. ¶218 (D.Conn. 1999), the Court declined to award summary judgment to plaintiffs on their substantive due process claims, but allowed the claims to be heard.
Here, some plaintiffs have not been allowed to apply for services and other plaintiffs are receiving limited or no services. All have waited for years for needed services. In such circumstances, the due process question is not solely where plaintiffs should receive services, i.e., in a state-run facility or in the community. Rather, the question is also whether the State Defendants may deny the provision of services to persons deemed eligible to receive them, and whether in doing so the state has denied these plaintiffs their right to substantive due process. Thus, based on the standard which must be applied to a motion to dismiss, defendants’ motion should be denied.

V. CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court deny the Defendants’ Motion. DATED: March 20, 2006

Footnotes

1

To the extent that the Defendants rely on 42 U.S.C. § 1396c to support a claim that Title XIX creates no enforceable rights, (Def’s.

Memo. at 6), the argument ignores the fact that plaintiffs here do not seek to enforce 42 U.S.C. § 1396c. Further, compare Sabree

v. Richman, 367 F.3d 180 (3d Cir. 2004) (enforcing 42 U.S.C. § 1396a(a)(8, 10) and noting plaintiffs were not seeking to enforce

1396c), with Blessing (finding “substantial compliance” provision similar to 1396c does not create federal right and remanded to

determine whether another provision of the Social Security Act title in question did). Such an argument also ignores the Supreme

Court’s ruling in Wilder. The analysis used to assess whether Congress intends to foreclose private lawsuits under Section 1983 is

also essentially the same as that employed to determine whether the Eleventh Amendment bars private lawsuits for injunctive relief

(“Ex parte Young” lawsuits) based on the existence of a detailed remedial scheme. Missouri Child Care Ass’n v. Cross, 294 F.3d

1034, 1039 (8th Cir. 2002). Both before and after Gonzaga University, appellate courts have held that the Social Security Act’s

provisions allowing the federal government to terminate funding do not create the type of detailed remedial scheme that would

preclude private enforcement through Ex parte Young lawsuits. Id. at 1038-39; Antrican v. Odom, 290 F.3d 178, 190 (4th Cir.

9

SUSAN J., et al., Plaintiffs, v. Bob RILEY, in his official..., 2006 WL 1201261...

2002), cert. denied, 537 U.S. 973, 123 S. Ct. 467 (2002).

2

This is not the only instance in which Congress has acknowledged that some provisions of Title XIX may be enforced through

private lawsuits. In fact, Congress rejected proposals in the mid-1990s to repeal Title XIX, transform Medical Assistance from an

entitlement program to a block grant program, and prohibit individuals from using Section 1983 to challenge a state’s failure to

comply. See H.R. Rep. No. 104-651, at 213-14, 731-32, 2019-20 (1996); H.R. Rep. No. 104-350, at 211, 270, 288, 1069 (1995).

See also H.R. Rep. No. 97-158, vol. II, at 301 (1981) (in proposing amendment to Title XIX, the House Committee noted that “in

instances where the States or the Secretary fail to observe these statutory requirements, the courts would be expected to take

appropriate remedial action.”); Wilder, 496 U.S. at 516-18 & n.15 (discussing federal legislation and related history affecting

states’ immunity to suit under Title XIX’s rate provision, the Court concluded that Congress understood that Title XIX conferred

enforceable rights on Medical Assistance providers).

3

For example, Courts have routinely held that Medical Assistance recipients may use Section 1983 to enforce their entitlements to

benefits under 42 U.S.C. § 1396a(a)(10)(A). E.g., Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Services, 293 F.3d 472, at

477-49 & n.5 (8th Cir. 2002); Westside Mothers v. Haveman, 289 F.3d at 862-63 (6th Cir. 2002), cert. denied, 537 U.S. 1045, 123

S.Ct. 618 (2002); Antrican v. Buell, 158 F. Supp.2d 663, 672-73 (E.D.N.C. 2001), aff’d on other grounds sub nom. Antrican v.

Odom, 290 F.3d 178 (4th Cir. 2002), cert. denied, 537 U.S. 973, 123 S. Ct. 467 (2002); Parry ex rel. Parry v. Crawford, 990 F.

Supp. 1250, 1254-55 (D. Nev. 1998) (ICF/MR services); cf. K&A Radiologic Technology Services, Inc. v. Comm’r of Dep’t of

Health, 189 F.3d 273, 280-81 (2d Cir. 1999) (while providers cannot enforce service provisions of Section 1396a(a)(10), (Medical

Assistance recipients can enforce those provisions). See also, Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 927,

930-32 (5th Cir. 2000) (Medical Assistance recipients may enforce Title XIX rate provision, but provider may not).

4

In Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), the Supreme Court noted that “in those instances where

Congress has intended to fund certain entitlements as a condition of receiving federal funds, it has proved capable of saying so

explicitly.” Id. at 17-18. As an example of an instance in which Congress explicitly intended to create an enforceable entitlement,

the Pennhurst Court cited the Social Security Act provision at issue in King v. Smith, 392 U.S. 309, 333 (1968), which “creates a

federally imposed obligation [on the States] to furnish aid to families with dependent children ... with reasonable promptness as to

all eligible individuals’....” Pennhurst, 451 U.S. at 18 (emphasis added).

5

Defendants rely on Harris v. James, 127 F.3d 993 (11th Cir. 1997) to argue that federal regulations do not create individual rights

enforceable through 42 U.S.C. 1983. However, defendants have mischaracterized plaintiffs’ claims. Plaintiffs do not rely on the

regulations implementing Medicaid to bring their claims under §1983. Rather, plaintiffs rely on the language contained within the

Medicaid statute to create such rights. Further, in Harris, the Court found that the regulation at issue was contained in a federal

regulation and not in the Medicaid Act. The Eleventh Circuit also made it clear that in reaching its decision in Harris was “not

deciding the issue of whether § 1396a(a)(8) gives rise to a federal right to reasonably prompt provision of assistance.” Doe, 136

F.3d at 715. Likewise, Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511 (2001) is inapplicable as plaintiffs rely on the

Medicaid Act, not implementing regulations, to create enforceable federal rights. Finally, several courts are in accord with Doe.

Boulet v. Cellucci, 107 F. Supp.2d at 79-81; Kirk T. v. Houstoun, Civil Action No. 99-3253, 2000 WL 830731 at *4 (E.D. Pa. June

27, 2000); Rolland v. Cellucci, 52 F. Supp.2d 231, 239-40 (D. Mass. 1999); Sobky v. Smoley, 855 F. Supp. 1123, 1147-48 (E.D.

Cal. 1994). Further, the absence of any time frame within which services will be provided is itself a violation of the reasonable

promptness mandate. See Kirk T. v. Houstoun, 2000 WL 830731 at *3.

6

Defendants’ argument that plaintiffs cannot enforce contractual provisions between state and federal government must also be

rejected. Wehunt v. Ledbetter, 875 F.2d 1558 (1989). The majority opinion in Blessing recognized that, even though plaintiffs were

beneficiaries of the agreement, Title IV-D, in certain situations, could be enforced through 42 U.S.C. 1983. The court then

remanded the case to “separate out the particular rights (the Court) believed arise from the statutory scheme. . . .” Blessing, 117

S.Ct. at 1362. And, as defendants have already recognized, both the Third and Sixth Circuits have held that, while recipients of

Title XIX services are the intended beneficiaries of 42 U.S.C. 1396a(a)(8), (10), and (15), they, nonetheless, may enforce the

statutes via 42 U.S.C. 1983. Sabree v. Richmond, 367 F.3d 180 (3rd Cir. 2004); Westside Mothers v. Haveman, 289 F.3d 1852 (6th

Cir. 2002) (holding that Medical Assistance statute is no mere contract between federal and state governments; that Spending

Clause statutes are the supreme law of the country; and that entitlement provision of Title XIX is enforceable by Medical

Assistance recipients). The state, while disagreeing with such conclusions, has failed to articulate any problem with these

decisions’ reasoning. Finally, the U.S. Supreme Court’s decision in Barnes v. Gorham, 536 U.S. 101, 122 S.Ct. 2997 (2002), does

not imply otherwise. Barnes examined the issue as to whether plaintiffs were entitled to punitive damages in an action brought

pursuant to certain civil rights statutes which invoked Congress’ power under the Spending Clause. While the Court found under a

contract law analogy that punitive damages were not available, it recognized the availability of compensatory type damages in

spending clause litigation. Further, see fn 7, which recognizes that the contract analysis is not an overlay onto federal statutes..

7

The Court also cited FERPA’s unique enforcement mechanism -- a centralized, federal review board that allowed students and

parents to file individual complaints -- to support its conclusion that FERPA did not create rights enforceable through Section 1983

suits. Gonzaga, 122 S. Ct. at 2278. This centralized review provision was established to prevent multiple interpretations of FERPA.

10

SUSAN J., et al., Plaintiffs, v. Bob RILEY, in his official..., 2006 WL 1201261...

It is undisputed that Title XIX does not create the type of centralized, federal review process cited in Gonzaga.

8

By analogy, the Supreme Court cited Titles VI and IX of the Civil Rights Act, which prohibit “discrimination,” as examples of

statutes that unequivocally conferred enforceable rights because they focus on the individual. “Discrimination” under those statutes

may take a variety of forms, but whether a particular action constitutes discrimination in a particular case does not undermine the

enforceability of the statutes. Thus, whether defendants here have violated Title XIX’s reasonable promptness mandate by failing

to establish any time frame for the provision of Medicaid services and by maintaining lengthy waiting lists relates to the merits of

the case -- not whether the underlying right is enforceable by the plaintiffs.

9

The State Defendants’ reliance on 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) (alleging violations of Adoption

Assistance and Child Welfare Act), and Arrington v. Helms, -- F.3. -- (11th Cir. 2006), 2006 WL 321955 (11th Cir. Ala. Feb. 13,

2006), is misplaced. Neither case addresses the Medicaid provisions at issue in this case. Nor does either case overrule Doe v.

Chiles, supra, First, in 31 Foster Children, the Court noted with favor, the U.S. Supreme Court’s decision in Wilder. Further, in 31

Foster Children. the Court found that the plaintiffs relied upon statutory language contained within a definitional section, as well

as the existence of a vague “case review system.” In Arrington. the Court found that the language at issue required only that the

state distribute child support payments in a certain manner, rather than to individual parents. As such, it did not have an

“unmistakable focus” on the persons to be benefited.

10

Defendants do not seriously assert otherwise. While defendants reference 42 U.S.C. § 1396a(a)(3), as well as 42 U.S.C. §1396c,

which allows a federal agency to withhold payments to a state which has not “substantially complied” with requirements contained

in its plan, these provisions do not equate to the conclusion that Congress has intended to foreclose plaintiffs’ utilization of 42

U.S.C. § 1983. (Defs’ Brf. pp. 5-6, 15-16). See Blessing, supra; Wilder, supra. Title XIX’s statutory provisions are written in terms

of the state plan’s requirements, this does not change the result, especially given the “Suter Fix.” 42 U.S.C. § 1320a-2. Further,

Gonzaga reiterates that the underlying purpose of the inquiry is a determination of congressional intent to create an enforceable

right. The enactment of 42 U.S.C. § 1320a-2 crucially reflects Congress’s understanding that certain provisions of the Social

Security Act are enforceable through private lawsuits. Hood, supra.; Rabin, supra.

11

Nor, is the mandate is rendered unenforceable because it is phrased in terms of ‘reasonableness.” (“While there may be a range of

reasonable [time periods for provision of assistance], there certainly are some [time periods] outside that range that no State could

ever find to be reasonable ... under the [Medicaid] Act.” “Common law courts have reviewed actions for reasonableness since time

immemorial.” Bryson v. Shumway, 308 F.3d at 89; Martin v. Taft, 222 F. Supp.2d at 978.) Moreover, defendants, at minimum,

must establish time lines to measure reasonable promptness for a particular Medical Assistance service. Kirk T. v. Houstoun, 2000

WL 830731 at *3. Defendants’ failure to establish any maximum time limit on the provision of services -- whether six months or

six years -- within which Medicaid services must be provided violates the reasonable promptness mandate. Second, the Court can

look to the administrative procedures used by the defendants to determine whether they result in a system that generally yields

undue delays in the provision of the service. See 42 C.F.R. § 435.930(a). Here, for example, the State Defendants have significant

control over the development and provision of Medicaid services need by plaintiffs, yet have adopted a policy that restrains the

development of new services, resulting in lengthy waiting lists such as those experienced by the Plaintiffs’ Compl. ¶1, at 3. The

Court can examine this and other administrative policies and practices implemented by the State Defendants to assess objectively

whether those policies and practices have led to a shortage of services to meet plaintiffs’ needs. Finally, the Court can examine

evidence concerning the general time needed by providers to develop the services.

12

Nor should Gonzaga University be construed to limit private enforcement of Spending Clause statutes. Cf. Farley v. Philadelphia

Housing Auth., 102 F.3d 697, 703-04 (3d Cir. 1996) (rejecting argument that Supreme Court rulings sought to limit private

enforcement of Spending Clause statutes).

11

 
 Case 2:00-cv-00918-MEF-WC Document 23 Filed 06/15/04 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

SUSAN J., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BOB RILEY, in his official capacity as )

Governor of the State of Alabama, et al., )

)

Defendants.

)

CASE NO. 2:00-cv-918-F

ORDER In accordance with Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998), and Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001), it is hereby

ORDERED that the Motion to Dismiss filed by the defendants on September 12, 2000 (Doc. # 7) is DENIED.1

It is further ORDERED that on or before June 30, 2004 the defendants shall file their

Answer to the First Amended Complaint. DONE this the 15th day of June, 2004.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

1 Contrary to the defendants’ contentions, Alabama’s “Waiver Program” is subject to federal statutory and regulatory dictates, including 42 U.S.C. § 1396a(a)(8) and the Eleventh Amendment poses no bar to this lawsuit or to the injunctive relief sought, as this suit fits neatly within the Ex parte Young exception. See Chiles, 136 F.3d at 720-721.

 
 Case 2:00-cv-00918-MEF-WC Document 68 Filed 06/23/06 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

SUSAN J., et al.,

)

)

Plaintiffs,

)

v.

)

)

BOB RILEY, in his official capacity as )

Governor of the State of Alabama, et al., )

)

Defendants.

)

CASE NO. 2:00-cv-918-MEF (WO)
[DO NOT PUBLISH]

OPINION AND ORDER Plaintiffs—persons with significant disabilities, including physical disabilities and mental retardation—bring this suit pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief to remedy alleged violations of the Medicaid Act by Defendants, various representatives of the state of Alabama in their official capacities. On June 15, 2004, the Court summarily denied the Defendants’ Motion to Dismiss—which argued that the relevant provisions of the Medicaid Act were not actionable under § 1983—in light of the Eleventh Circuit’s holdings in Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998) and Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001). The Defendants have now filed a Motion for Judgment on the Pleadings (Doc. #62), essentially renewing the arguments they made in their earlier motion on the basis of the Supreme Court’s ruling in Gonzaga University v. Doe, 536 U.S. 273 (2002). In the Court’s opinion, Gonzaga does not alter the preexisting case law to such an extent that reconsideration of the Court’s prior ruling or Eleventh Circuit precedent is

Case 2:00-cv-00918-MEF-WC Document 68 Filed 06/23/06 Page 2 of 2
necessary. This position is amply supported by the unanimity among the Courts of Appeal
and District Courts that have addressed this question since the issuance of the Supreme
Court’s opinion in Gonzaga.1 As a result, the Court finds that the Defendants’ Motion for
Judgment on the Pleadings (Doc. #62) must be DENIED.
In accordance with the Court’s ruling, it is further ORDERED that the parties shall
file by July 7, 2006 a joint status report under the same conditions as prescribed in the
Court’s order (Doc. #48) of July 8, 2005.
Done this the 23rd day of June, 2006.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
1 See, e.g., Watson v. Weeks, 436 F.3d 1152, 1158-1162 (9th Cir. 2006) (recognizing that “[n]o circuit court has held that section 1396a(10) does not create a section 1983 right”); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 602-07 (5th Cir. 2004) (finding that § 1396a contains “precisely the sort of ‘rights-creating’ language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right”); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 193 (3d Cir. 2004) (“The language used by Congress in 42 U.S.C. §§ 1396a(a)(10) . . . and 1396a(a)(8) . . . explicitly creates rights.”); Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir. 2004) (allowing suit based on violations of the Medicaid Act brought pursuant to § 1983); Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) (same); Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002) (finding “that there is a § 1983 cause of action arising from the ‘reasonable promptness’ provision of 42 U.S.C. § 1396a(a)(8) under the state model waiver plan as approved”); Rosey D. v. Romney, 410 F. Supp. 2d 18, 33 (D. Mass. 2006) (holding that § 1983 could be used to enforce § 1396a(a)(8) and 1396a(a)(10)); Westside Mothers v. Olszewski, 368 F. Supp. 2d 740, 757-62 (E.D. Mich. 2005) (same); Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 366 F. Supp. 2d 1050 (N.D. Okla. 2005) (same); Michelle P. ex rel. Deisenroth v. Holsinger, 356 F. Supp. 2d 763 (E.D. Ky. 2005) (same); Clark v. Richman, 339 F. Supp. 2d 631 (M.D. Pa. 2004) (same); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 293-94 (N.D. Ga. 2003) (finding that § 1983 provides a private right of action to enforce § 1396a(a)(10)(A)); Lewis v. N.M. Dep’t of Health, 275 F. Supp. 2d 1319, 1332-33 (D.N.M. 2003) (holding that § 1983 confers a private right of action to enforce § 1396a(a)(8)); Mo. Child Care Ass’n v. Martin, 241 F. Supp. 2d 1032, 1037-42 (W.D. Mo. 2003) (noting that Gonzaga did not intend to overrule Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990), which allowed suit brought pursuant to § 1983 to enforce a provision of the Medicaid Act); Martin v. Taft, 222 F. Supp. 2d 940, 977-78 (S.D. Ohio 2002) (holding that the “reasonable promptness” requirement of § 1396a(a)(8) was enforceable through § 1983); Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27, 34-35 (E.D.N.Y. 2002) (same).
2

 
 Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

Susan J., et al.,

]

]

Plaintiffs,

]

]

vs.

]

]

Bob Riley, in his official capacity as

]

Governor of the State of Alabama, et. al., ]

]

Defendants.

]

]

CASE NO. 2:00-cv-918-F

THIRD AMENDED COMPLAINT

I. Introduction

1. Plaintiffs bring this class action for declaratory and injunctive relief to declare

the plaintiffs= rights and to remedy Defendants= violations of the Social Security (Medicaid) Act, 42 U.S.C. '' 1396 et seq., and to redress the deprivation of plaintiffs= constitutionally

protected rights to procedural due process under the Fourteenth Amendment to the U.S.

Constitution, to residential services and/or placement and/or day habilitation services which

are designed to improve plaintiffs= overall level of functioning, independence and integration

into the community. Plaintiffs are adults with disabilities, all with mental retardation, who

are entitled to services. The plaintiffs now live with caretakers who, for a variety of reasons,

can not provide the intensive support and services which plaintiffs both need, and to which

they are entitled. Specifically, each plaintiff is eligible to receive active treatment or

habilitation via, inter alia, a community residential placement, active treatment, and/or day

habilitation. Plaintiffs are persons who are unable to fully care for themselves and,

therefore, require various degrees of care, treatment, and/or habilitation. Plaintiffs seek

appropriate residential services, residential placement, day habilitation programs, and/or

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 2 of 38
other needed therapeutic and habilitative services before their caretakers succumb to unemployment, incapacitation or death.
2. Defendants have refused to provide plaintiffs with appropriate Medicaid Home and Community Based Services (HCBS waiver) as described in the relevant State Plan. HCBS waiver services that are or shall be available include the following, among others:
• In-home residential habilitation services, including habilitation training & intervention,
• In-home residential habilitation training and intervention, • Habilitation supplies, equipment, and transportation, • Day habilitation services, • Prevocational services aimed at preparing an individual for paid or unpaid
employment but which are not job-task oriented, and • Supported employment services. These waiver services are described in more detail at Appendix A.
3. Further, in contrast to the manner in which defendants are obligated to provide needed Medicaid waiver services to plaintiffs in a reasonably prompt and comparable manner as required by law, as described below, defendants have placed plaintiffs on a waiting list for residential services, and/or day habilitation, and/or other needed services for as long as fourteen (14) years. Plaintiffs seek to remedy the pervasive, systemic, and continuing failure of defendants to provide them with necessary services in a reasonably prompt manner in sufficient quantity to meet their needs as required by federal law. This action is brought under 42 U.S.C. ' 1983 and 28 U.S.C. '2201 et. seq.
4. As will be explained, defendants have violated plaintiffs= rights under federal law by: (a) failing to provide for the development of appropriate residential placement (hereinafter ARPs@) and/or day habilitation (hereinafter ADH@) and/or other services, and
2

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 3 of 38
thereby depriving these plaintiffs of those services to which they are entitled; (b) failing to assure that plaintiffs can apply for and receive RP and/or DH and/or other services with reasonable promptness; (c) failing to assure that RP and/or DH and/or other services are made available to eligible individuals, such as plaintiffs, in the same amount, duration and scope as they are provided to other similarly situated Medicaid assistance recipients in the State of Alabama; and (d) failing to assure that plaintiffs receive RP and/or DH and/or other services which could provide vocational and/or job training skills, social interaction, counseling, enhanced peer relationships, and improved mobility services and supports, among others. II. Jurisdiction and Venue
5. This Court has jurisdiction to decide plaintiffs= claims pursuant to 28 U.S.C. '' 1331 and 1343 and 42 U.S.C. ' 1983.
6. Plaintiffs= claims are authorized by 42 U.S.C. ' 1396 et seq., 42 U.S.C. ' 1983, and 28 U.S.C. '' 2201 and 2202.
7. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b)(2) as, inter alia, a substantial part of the events that give rise to this Complaint occurred in this District. Further, all defendants are located within this District. III. Parties
8. Plaintiff, Susan J., is a forty-three (43) year old female who has mental retardation, Down syndrome, and a seizure disorder who resides in Jefferson County, Alabama. She needs and is qualified for Medicaid waiver services, and is eligible for services that she is not receiving. She brings this action on behalf of herself.
3

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 4 of 38
9. Plaintiff, Elizabeth A., is a twenty-five (25) year old female who has mental retardation who resides in Jefferson County, Alabama. Elizabeth A. needs and is qualified for Medicaid waiver services, and is eligible for services that she is not receiving. Elizabeth A. has been on a waiting list for waiver services for twelve (12) years. She brings this action through her mother and next friend, Debbie G.
10. Plaintiff, Beverly W., is a forty-six (46) year old female who has mental retardation who resides in Jefferson County, Alabama. Beverly W. needs and is qualified for Medicaid waiver services, and is eligible for services that she is not receiving. Beverly W. has been on a waiting list for waiver services for twelve (12) years. She brings this action through her mother and next friend, Clarice W.
11. Plaintiff, Tara L., is a twenty-seven (27) year old female who has mental retardation and autism who resides in Jefferson County, Alabama. She needs and is qualified to receive services through a Medicaid waiver, and is eligible for services that she is not receiving. Tara L. has been on a waiting list for needed waiver services for over nine (9) years. She brings this action through her mother and next friend, Belinda L.
12. Plaintiff, Krystal W., is a twenty-two (22) year old female who has mental retardation and cerebral palsy who resides in Jefferson County, Alabama. She needs and is qualified for a Medicaid waiver and receives some respite services. She requires additional services that she is not receiving and is currently on a waiting list for needed waiver services. She brings this action through her mother and next friend, Kathy W.
13. Plaintiff, Brichette W., is a twenty-two (22) year old female who has mental retardation who resides in Jefferson County, Alabama. She needs and is qualified to receive Medicaid waiver services she is not receiving. She has been on a waiting list for
4

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 5 of 38
needed waiver services for approximately two (2) years. Brichette W. needs and would benefit from day habilitation services as well as transportation services, among others.
14. Plaintiff, Charles P., is a twenty-three (23) year old male who has mental retardation and autism, and is non-verbal, who resides in Jefferson County, Alabama. He needs and is qualified to receive Medicaid waiver services, but does not receive such services. He has been on a waiting list for needed waiver services for approximately seven (7) years. He needs and would benefit from residential services as well as vocational services.
15. Plaintiff, Paul B., is a twenty-one (21) year old male who has mental retardation, Down syndrome and cerebral palsy who resides in Houston County, Alabama. He needs and is qualified to receive Medicaid waiver services that he is not receiving. Paul receives some services, such as respite care and meal assistance. He has been on a waiting list for needed waiver services for approximately eight (8) years. He needs and would benefit from residential services as well as vocational services.
16. Plaintiff, Rico C., is a thirty-two (32) year old male who has mental retardation who resides in Jefferson County, Alabama. He needs and is qualified to receive Medicaid waiver services, but does not receive such services. He has been on a waiting list for needed waiver services for approximately three (3) years. He needs and would benefit from day habilitation services as well as vocational services.
17. Plaintiff, Tamara C., is a thirty-five (35) year old female who has mental retardation who resides in Autauga County, Alabama. She needs and is qualified to receive Medicaid waiver services that she is not receiving. Tamara does receive some services.
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 6 of 38
She has been on a waiting list for needed waiver services for approximately four (4) years. She needs and would benefit from day habilitation services as well as vocational services.
18. Plaintiff, Dusti M., is a twenty-four (24) year old female who has mental retardation who resides in Calhoun County, Alabama. She needs and is qualified to receive Medicaid waiver services, but does not receive such services. She has been on a waiting list for needed waiver services for approximately three (3) years. She needs and would benefit from day habilitation services.
19. Plaintiff, Nicholas A., is a twenty-six (26) year old male who has mental retardation and autism and resides in Lauderdale County, Alabama. He needs and is qualified to receive Medicaid waiver services that he has not been receiving. Nicholas currently receives day habilitation services. He has been on a waiting list for needed waiver services for approximately four (4) years. He needs and would benefit from residential and other services. This action is brought through his mother and next friend, Melissa T.
20. Plaintiff, Angie D., is a thirty-one (31) year old female who has mental retardation, cerebral palsy, and a hearing impairment who resides in Morgan County, Alabama. She needs and is qualified to receive Medicaid waiver services that she is not receiving. Angie receives day habilitation services. Angie needs and would benefit from additional services such as residential, respite and personal care. She brings this action through her legal guardians, Michelle D. and Herbert D.
21. Plaintiff, Shavon H., is a thirty-nine (39) year old female who has mental retardation, cerebral palsy, visual and hearing impairments, and digestive difficulties. She uses a wheelchair for mobility. She needs and is qualified to receive Medicaid waiver
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 7 of 38
services, but does not receive such services. She resides in Jefferson County, Alabama, and she brings this action through her mother as next friend, Marion L.
22. Defendant, Bob Riley, is the Governor of the State of Alabama and as such is vested with executive power of the government of the State of Alabama. In accordance with his executive powers, Defendant Riley is charged with faithfully executing the law, including upholding the United States Constitution and is responsible for assuring that the Medicaid programs in the State of Alabama are operated in compliance with federal law. Defendant Riley is sued in his official capacity only for actions and omissions taken under color of state law. The Governor=s Office is the single state agency designated to administer or supervise the administration of the Medicaid program under Title XIX of the Social Security Act. As such, Defendant Riley has knowingly and deliberately failed and/or refused to take actions necessary to ensure that persons with mental retardation and developmental disabilities who are eligible for Medicaid services actually receive those services. In doing so, he has acted in deliberate disregard of those persons= federal, statutory, and constitutional rights.
23. Defendant, John Houston, is the Commissioner of the Department of Mental Health/Mental Retardation for the State of Alabama. The Department of Mental Health/Mental Retardation has sole responsibility for administering Alabama=s federally supported Intermediate Care Facility/Mental Retardation (hereinafter @ICF/MR@) and waiver programs. See 42 U.S.C. ' 1396a(a)(5); Ala. Code ' 22-50-11. Defendant Houston is responsible for assuring that these Medicaid assistance programs are operated in compliance with federal law. Defendant Houston is sued in his official capacity for actions and omissions taken under color of state law.
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 8 of 38
24. Defendant, Alabama Department of Mental Health/Mental Retardation, is a recipient of Medicaid funding, and thus, is required by law to continually ensure that adequate and appropriate services to people with mental retardation are available to all citizens throughout the state. The Department of MH/MR is responsible for the administration of these funds and ensuring services including, inter alia, admission, evaluation and the provision of residential placement and day habilitation services. IV. Class Action Allegations
25. Plaintiffs incorporate by reference Paragraphs 1 through 24 of this Complaint. 26. Plaintiffs bring this action on behalf of themselves and all persons similarly situated pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). The class is defined as follows: All Alabama residents with mental retardation who are eligible for Medicaid services under the ICF/MR program pursuant to 42 U.S.C. §1396a or a Home and Community Based Services waiver for the Mentally Retarded and Developmentally Disabled pursuant to 42 U.S.C. §1396n, who request services under these programs but (1) are denied the opportunity to apply for such services; (2) whose application for services under these programs is denied; or (3) are placed on a DMHMR waiting list for services under these programs. 27. The Plaintiff class is so numerous and geographically diverse that joinder of all members is impracticable. 28. As recently as March 2007, the Defendants acknowledged to the State Legislature that approximately 1571 people were waiting for needed services for which they were and are eligible. 29. There are at least 1,500 class members who need and are eligible to receive Medicaid waiver services and who are not receiving needed services.
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30. As of March 2007, approximately 1172 persons who need and are eligible to receive Medicaid waiver services were receiving no services.
31. There are questions of law and fact common to the class, such as, and without limitation to, whether the general policies, practices and procedures of the Defendants and the State of Alabama are such that they result in a widespread failure to arrange for or provide to class members services and/or benefits in a “reasonably prompt” manner, as and to the extent required by federal law. These failures affect and/or threaten all members of the class.
32. The named representative Plaintiffs’ claims are typical of the claims of the class. Plaintiffs and members of the proposed class have not obtained benefits and/or services in a reasonably prompt fashion as and to the extent required by federal law.
33. The named representative Plaintiffs will fairly and adequately represent the interests of the proposed class. Plaintiffs have a clearly defined and personally vital controversy with the Defendants which dictates that they will fully and vigorously prosecute this action. At stake for Plaintiffs is their ability to obtain needed Medicaid waiver benefits and/or services, for which they are eligible, in a “reasonably prompt” manner.
34. Plaintiffs are represented by attorneys experienced in civil rights litigation including mental health law generally, Alabama’s Medicaid program, practice and procedure in federal courts, and the prosecution and management of class action litigation. The named Plaintiffs seek relief that will inure to the benefit of the class as a whole.
35. Plaintiffs seek certification of the class under Federal Rule of Civil Procedure 23(b)(2). Defendants’ policies, practices and procedures utilized to administer Alabama’s Medicaid program violate the requirements of the federal Medicaid Act. Defendants’
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policies, practices and procedures have generally affected the entire class, thereby making final injunctive and declaratory relief appropriate with respect to the class as a whole. Because Plaintiffs: 1) challenge the administration and implementation of Alabama’s Medicaid program as it affects them, their interests, and the interests of numerous similarly situated persons, and 2) seek declaratory and injunctive relief, class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2).
V. Facts A. Plaintiffs= Service Needs PLAINTIFF SUSAN J. 36. Susan J. is eligible for and receives Medicaid/medical assistance benefits,
Respite Services, Targeted Case Management and Supported Employment services as well as Supplemental Security Income (hereinafter ASSI@). Susan J. needs and would benefit from transportation services, among others, in order to further her socialization and vocational skills and gain additional independence.
37. Susan J. has lived with her parents, both now in their eighties, Christine and Dewey J., for her entire life. Her father has been diagnosed with cancer and has been hospitalized recently. Susan J. has two older brothers who do not live at home. Because Mr. and Mrs. J. are advancing in age, they will not be able to care for Susan J. much longer.
38. As a result of her disabilities, Susan J. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help, domestic, and job readiness skills she needs to become a more fully functioning member of society. For
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example, Susan J. communicates only in a limited fashion. Susan J. is able to wake herself, groom, feed, and dress herself, cook simple meals, and handle daily tasks. Susan J. is also able to help her mother around the home by sweeping, doing dishes, setting the table, making her bed, etc. She is independent in many functions of life, but desires more independence to continue her development.
39. Susan J. has been on a waiting list for residential services since 1992, but has not received them. She has been on a waiting list for respite services since 2005, and began receiving some respite services in May 2006.
40. Susan also needs and would benefit from transportation services to relieve her parents from the task of transporting her to her supported employment day program. Susan’s mother is of the belief that Susan is on a waiting list for transportation services, but does not know Susan’s status on the waiting list for said transportation services.
PLAINTIFF ELIZABETH A. 41. Elizabeth A. is 25 years old, has mental retardation and is eligible for and receives Medicaid/medical assistance benefits and respite services as well as SSI. Elizabeth A. needs and would benefit from day habilitation and transportation services, among others, in order to further her socialization and vocational skills and gain additional independence. 42. Elizabeth A. has lived with her parents for her entire life. Elizabeth A. spends her days at home watching television. Because Debbie G., Elizabeth A.’s mother, works full time, Debbie G. is dependent on family members to provide day-to-day care for Elizabeth, including Elizabeth A.’s grandmother, who is eighty (80) years old. 43. As a result of her disabilities, Elizabeth A. has functional limitations resulting
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in a need for certain supports and services so that she may attain the self-help and domestic skills she needs to become a more fully functioning member of society. Elizabeth A. is unable to independently perform any daily self-care activities. She desires assistance in her development and independence in the performance of daily activities.
44. Elizabeth A. needs day habilitation services and transportation services to and from a day habilitation program to acquire independence skills. A request was submitted to DMH/MR in approximately 1992, requesting day habilitation services. In approximately December 2006, Elizabeth A. was initially offered day habilitation services but this offer was revoked once the provider learned that Elizabeth A. has seizures. The stated reason for revocation was that the seizures presented a liability issue. Elizabeth A. receives no day habilitation services.
PLAINTIFF BEVERLY W. 45. Beverly W. is 48 years old, has mental retardation, and is qualified to receive Medicaid waiver services. Beverly W. has been on a waiting list for services for eleven (11) years. 46. Beverly W. needs and would benefit from housing services, among others, in order to further her socialization skills and gain additional independence. 47. Beverly W. has lived with her parents for her entire life. Beverly W. does work part-time, but requires assistance with some daily self-care activities. 48. As a result of her disabilities, Beverly W. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help and domestic skills she needs to become a more fully functioning member of society. She desires assistance in her development and independence in the performance of daily activities.
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49. Beverly W. needs housing services to acquire independence skills. A request was submitted to DMH/MR in approximately 1996, requesting housing services. At the time the request was submitted, Beverly W. was initially told she did not qualify for services but additional information could be submitted. Beverly W’s mother submitted the requested information but did not receive a response. Beverly W.’s mother does not know whether Beverly W. was ever placed on a waiting list or, in the alternative, is still on the waiting list. Beverly W. is not receiving the requested housing services.
PLAINTIFF TARA L. 50. Tara L. is twenty-seven (27) years old, needs and is qualified for Medicaid waiver services, and has been on a waiting list for needed services for over nine (9) years. 51. Tara L. is eligible for and receives Medicaid/medical assistance benefits and Targeted Case Management as well as SSI. Tara L. needs and would benefit from day habilitation and transportation services, among others, in order to further her socialization and vocational skills and gain additional independence. 52. Tara L. has lived with her mother, Belinda L., who is fifty-seven (57) years old, for her entire life. Tara L. spends her days at home watching television and playing with toys. 53. As a result of her disabilities, Tara L. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help, domestic, and job readiness skills she needs to become a more fully functioning member of society. Tara L. is able to feed and dress herself. She is independent in some functions of life, but desires more independence to continue her development. 54. Tara L. needs day habilitation services and transportation services to and
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from a day habilitation program to acquire independence and job readiness skills. A request was submitted to Defendants in 1997 for day habilitation services and transportation services to and from a day habilitation program, but Tara L. receives no such services.
PLAINTIFF KRYSTAL W. 55. Krystal W. is twenty-four (24) years old and has mental retardation and cerebral palsy. 56. Krystal W. is eligible for and receives Medicaid/medical assistance benefits and respite services as well as SSI. Krystal W. needs and would benefit from day habilitation and group home services, among others, in order to further her socialization and vocational skills and gain additional independence. 57. Krystal W. has lived with her parents for her entire life. Krystal W. spends her days at home listening to music. Because Krystal W.’s parents work full-time, Krystal W. is dependent on family members to provide day-to-day care for her, including Krystal W.’s grandmother, who is seventy-eight (78) years old. 58. As a result of her disabilities, Krystal W. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help and domestic skills she needs to become a more fully functioning member of society. Krystal W. is unable to independently perform any daily self care activities. She desires assistance in her development and independence in the performance of daily activities. 59. Krystal W. needs day habilitation services and group home services to acquire independence skills. A request was submitted to DMH/MR in approximately 2000, requesting day habilitation and group home services. Approximately one year ago, Kathy
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W., Krystal W.’s mother, called the various agencies which supposedly had Krystal W. on their respective waiting list to determine Krystal W.’s status on the waiting list. The agencies informed Kathy W. that they had no information on Krystal W. and she would have to resubmit the information to be placed back on the waiting list. Krystal W. receives no day habilitation or group home services.
PLAINTIFF BRICHETTE W. 60. Brichette W. is eligible for and receives Medicaid/medical assistance benefits as well as Supplemental Security Income SSI. Brichette W. needs and would benefit from day habilitation and transportation services, among others, in order to further her socialization and vocational skills and gain additional independence. 61. Brichette W. has lived with her parents for her entire life. Brichette W. spends her days at home watching television and videos and occasionally goes shopping with family members. 62. As a result of her disabilities, Brichette W. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help, domestic, and job readiness skills she needs to become a more fully functioning member of society. Brichette W. is able to feed and dress herself and cook simple meals in a microwave. Brichette W. needs assistance with handling her finances and transportation. She is independent in some functions of life, but desires even more independence to continue her development. 63. Brichette W. needs day habilitation services and transportation services to and from a day habilitation program to acquire independence and job readiness skills. A request was submitted to DMH/MR in 2005, requesting day habilitation services and
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transportation services to and from a day habilitation program, but Brichette W. receives no such services.
PLAINTIFF CHARLES P. 64. Charles P. is eligible for and receives Medicaid/medical assistance benefits as well as SSI. Charles P. needs and would benefit from day habilitation and supported employment services, among others, in order to further his socialization and vocational skills and gain additional independence. 65. Charles P. has lived with his parents for his entire life. His mother is fiftyseven (57) years old and his father is sixty (60) years old. Charles P. spends some of his days informally attending the day habilitation program at which his father is employed. Charles P. does not receive consistent services from this program. On the days Charles P. does not accompany his father to work, Charles P. stays at home with his mother. 66. As a result of his disabilities, Charles P. has functional limitations resulting in a need for certain supports and services so that he may attain the self-help, domestic, and job readiness skills he needs to become a more fully functioning member of society. Charles P. is able to feed and dress himself, except for tying his shoes and he takes care of most of his own personal hygiene needs. He is independent in some functions of life, but desires even more independence to continue his development. 67. Charles P. needs day habilitation services and supported employment services to acquire independence and job readiness skills. A request was submitted to DMH/MR approximately seven (7) years ago, requesting day habilitation services and supported employment services, but Charles P. technically receives no such services. PLAINTIFF PAUL B.
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68. Paul B. is eligible for and receives Medicaid/medical assistance benefits as well as SSI. Paul B. needs and would benefit from day habilitation and supported employment services, among others, in order to further his socialization and vocational skills and gain additional independence.
69. Paul B. has lived with his parents for his entire life. 70. As a result of his disabilities, Paul B. has functional limitations resulting in a need for certain supports and services so that he may attain the self-help, domestic, and job readiness skills he needs to become a more fully functioning member of society. Paul B. requires assistance with all daily activities. He is independent in some functions of life, but desires even more independence to continue his development. 71. Paul B. needs day habilitation services to acquire independence skills. A request was submitted to DMH/MR approximately eight (8) years ago, requesting day habilitation services. Approximately two (2) years ago, Paul B. was on the top of the waiting list, but the offer of services was revoked due to Paul B.’s disabilities, specifically, Paul B. has a trachea tube. Paul B. was moved down to the bottom of the waiting list. As of this date, Paul B. receives no day habilitation services. PLAINTIFF RICO C. 72. Rico C. is eligible for and receives Medicaid/medical assistance benefits as well as SSI. Rico C. needs and would benefit from day habilitation and supported employment services, among others, in order to further his socialization and vocational skills and gain additional independence. 73. Rico C. has lived with his parents for his entire life. Rico C. spends his days watching television, assisting with household chores, and doing yard work.
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74. As a result of his disabilities, Rico C. has functional limitations resulting in a need for certain supports and services so that he may attain the self-help, domestic, and job readiness skills he needs to become a more fully functioning member of society. Rico C. can perform most self-care activities. He is independent in some functions of life, but desires even more independence to continue his development.
75. Rico C. receives no day habilitation or vocational services. PLAINTIFF TAMARA C. 76. Tamara C. is eligible for and receives Medicaid/medical assistance benefits as well as SSI. Tamara C. needs and would benefit from day habilitation and supported employment services, among others, in order to further her socialization and vocational skills and gain additional independence. 77. Tamara C. has lived with her mother for her entire life. Tamara C. spends her days at home assisting with household chores and caring for her sister. 78. As a result of her disabilities, Tamara C. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help, domestic, and job readiness skills she needs to become a more fully functioning member of society. Tamara C. can perform most self-care activities. She is independent in some functions of life, but desires even more independence to continue her development. 79. When Tamara C.’s mother applied for waiting list services approximately three or four years ago, she was told that Tamara C. was at the top of the waiting list. Tamara C’s mother was recently informed that Tamara C. has not even been approved for a Medicaid waiver. Although Tamara C. receives some services, Tamara C. would benefit from transportation, prevocational services or supported employment, targeted case
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management or case management, and vocational rehabilitation services. PLAINTIFF DUSTI M. 80. Dusti M. is eligible for and receives Medicaid/medical assistance benefits as
well as SSI. Dusti M. needs and would benefit from day habilitation services, among others, in order to further her socialization and vocational skills and gain additional independence.
81. Dusti M. has lived with her parents for her entire life. Dusti M. spends her days at home watching neighbors out the window.
82. As a result of her disabilities, Dusti M. has functional limitations resulting in a need for certain supports and services so that she may attain the self-help, domestic, and job readiness skills she needs to become a more fully functioning member of society. Dusti M. can perform some self-care activities, but needs assistance with toileting and daily household chores. She is independent in some functions of life, but desires even more independence to continue her development.
83. When Dusti M.’s mother applied for waiting list services approximately three years ago, she never heard from a caseworker after the initial interview. In February 2007, Dusti M. had to reapply for the waiting list because the original caseworker apparently had not properly processed Dusti M.’s waiting list application. Dusti M. receives no day habilitation services.
PLAINTIFF NICHOLAS A. 84. Nicholas A. is 24 years old and has mental retardation. He needs, would benefit from, and is qualified for Medicaid waiver services.
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85. Nicholas A. has been on a waiting list for services for four (4) years. Nicholas A. is currently receiving day habilitation services.
86. Nicholas A. lives with his mother, Melissa T. Nicholas A. needs and would benefit from residential services, medical services and vocational services.
PLAINTIFF ANGIE D. 87. Angie D. is 31 years old and has mental retardation, cerebral palsy and a hearing impairment. She needs, would benefit from, and is qualified for Medicaid waiver services. 88. Angie D. lives with her brother and sister-in-law, Hubert and Michelle D., who provide all care for Angie. 89. Angie D. needs residential, respite and personal care services, but receives no such services. Angie’s personal representative, Michelle Dotson, is unsure whether Angie is on a waiting list for said services, but has requested said services on Angie’s behalf. She can perform limited self care and some household chores but cannot bathe herself. PLAINTIFF SHAVON H. 90. Shavon H. is eligible for Medicare and receives SSI benefits. Shavon H. needs and would benefit from respite, day habilitation and Targeted Case Management services. 91. Because of her severe disabilities, Shavon H. must receive assistance regarding every aspect of living. She has no functional control over the movement of her limbs or bowels, and has severe problems with verbalization. She uses a wheelchair for
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mobility, but is unable to assist with the movement of the chair. She is unable to feed herself.
92. Shavon H. resides with her mother, Marion L., and father, Rodgers L., in their family home in Jefferson County, where she has lived all her life. Shavon H. relies totally on her mother, Marion L., for her care. Marion L. must not only accomplish typical chores to manage the household such as shopping, cooking, cleaning, laundry, etc., but she must also provide the total care required by Shavon H. This includes all lifting and transfers, dressing, feeding, assistance with toileting, bathing, transferring Shavon H. from her bed to the tub, tooth brushing, grooming, etc.
93. Shavon H=s mother applied for day habilitation services years ago, but was told that Shavon would be placed on a waiting list for those services and it would take years to obtain them.
94. Due to her disabilities, Shavon H. cannot be left alone. Shavon H. received day habilitation services for a brief period in 2002. Her primary caregiver, her mother, Marion L., was forced to give up such services because she had difficulty in helping Shavon H. attend the day habilitation program due to Shavon H’s retardation and her inability to ambulate. Shavon H. received Targeted Case Management services for a period of time through 2003.
95. Despite her need for services, and the fact that she would benefit from Medicaid waiver services, Shavon H. is not receiving needed Medicaid waiver services.
B. The Medicaid Waiver Program and Community Residential Placements and Day Habilitation for Persons with Mental Retardation.
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96. The Medicaid Waiver Program, which is authorized by Title XIX of the Social Security Act, 42 U.S.C. ' 1396 et seq., is a joint federal-state program. The Medicaid Waiver is a cost-sharing arrangement under which the federal government reimburses a portion of the expenditures incurred by states that elect to furnish Medicare medical assistance to individuals with mental retardation who meet eligibility requirements.
97. Pursuant to the Act, the designated Asingle state agency@ must submit a State Plan to the U.S. Department of Health and Human Services (hereinafter AHHS@) which details the programs and funding requirements for which Medicaid funds are to be used.
98. Upon approval of the State Plan by HHS, the State becomes entitled to grants of federal funds as reimbursement for a portion of the expenditures made in providing specific types of medical assistance to eligible individuals.
99. States are not required to participate in the Medicare Medical Assistance program but, if they choose to do so, they must adopt a State Plan that delineates the standards for determining eligibility and the extent of Medicare Medical Assistance benefits in compliance with the Medicare Medical Assistance statute and implementing regulations. Alabama has chosen to participate in the Medicare Medical Assistance program and has adopted a State Plan.
100. Title XIX mandates that a State Plan must provide certain specified health care services. See 42 U.S.C. ' 1396a(a)(10)(A)(i) (incorporating 42 U.S.C. '1396d(a)(1)(5), (17), (21)). These mandatory services include, inter alia, inpatient hospital services, outpatient services, nursing facility services, and physician=s services.
101. In addition to these mandatory services, Title XIX also permits (but does not
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require) a State Plan to provide other specified Medicare Medical Assistance Aoptional@ services identified in 42 U.S.C. ' 1396d(a); 42 U.S.C. '1396a(a)(10)(A). However, if a state chooses to provide such optional services, it must provide those services to all eligible persons throughout the state who need them.
102. Residential placements for persons with mental retardation are Aoptional@ under Title XIX and the Medicaid Waiver. Alabama has chosen to provide residential placements in ICF/MR facilities, its main residential program in its State Plan. As such, individuals who are eligible for residential placements and/or day habilitation services, including plaintiffs, are entitled to receive them.
103. In Alabama, residential placements are provided through a number of different means, including large, segregated, state-operated facilities and small, community-based, home-like settings operated by nonprofit and for profit private providers.
104. As a result of providing residential placements and day habilitation, Alabama=s state budget benefits from a huge influx of federal monies, including the funding of over 69.57% of the costs of Alabama=s state-operated institutions and community programs for persons with mental retardation.
105. The primary purpose of residential placements and day habilitation is to provide daily living, health and rehabilitative services for individuals with mental retardation or other developmental disabilities. 42 U.S.C. ' 1396(d). In fact, Alabama=s Department of Mental Health/Mental Retardation acknowledges:
AThe chances for success of persons with . . . mental retardation are greatest in community settings where they can engage in normal life experiences and be challenged to achieve their personal best.@
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Department of Mental Health/Mental Retardation Three-Year Plan, FY00-FY02, p.3.
106. A person eligible for Medicare Medical Assistance must meet three criteria to
be eligible for residential placement in Alabama. First, the person must have a diagnosis of
mental retardation. Second, the person must need active treatment. Third, a professional
must recommend that the person needs the level of care provided in a given residential
placement or day treatment program.
107. An essential component of the residential placement or day habilitation service is Aactive treatment.@ Federal regulations governing progress of services state
persons receiving such services:
“Must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... that is directed towardB (i) [t]he acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and (ii) [t]he prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. ' 483.440 (a)(1).
108. The need for active treatment is met if the person will benefit from a
professionally developed and supervised program of activities, experiences, or therapies
which are necessary for assisting the individual to function at his/her greatest physical,
intellectual, social, or vocational level. See Alabama Department of Mental Heath/Mental
Retardation, Three-Year Plan, FY00-FY02; See also Standards for Community Services for
Persons with Mental Retardation.
109. As part of the services required to be provided, an individual program plan
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must be developed for each person. The individual program plan must identify the interventions to support the person in independence and must include, for those clients who need them, inter alia, training in the basic personal skills needed for independence and privacy, such as personal and dental hygiene, self-feeding, dressing, grooming, and communication skills.
110. Before admitting an individual to residential placement or day habilitation an evaluation must be conducted to determine if the facility can meet the client=s needs and if the client is likely to benefit from the placement in the facility. See Alabama Department of Mental Heath/Mental Retardation, Three-Year Plan, FY00-FY02; See also Standards for Community Services for Persons with Mental Retardation.
111. DMH/MR has significant control over the development and provision of residential placement and day habilitation services.
112. DMH/MR is, has been, or should have been, aware of a substantial waiting list for community residential services for persons with mental retardation who are eligible for residential placement and day habilitation services. DMH/MR has acknowledged that approximately 1,571 persons are on its waiting list for such services, that additional qualified persons are routinely added to the waiting list, and that the number of such qualified persons on the waiting list is increasing.
113. Individual plaintiffs are Medicare and SSI eligible recipients who meet the criteria for residential placement and day habilitation services. Individual plaintiffs= needs can be met in small, community-based residential placements, and/or day habilitation services and they would benefit from placement in such programs. Nevertheless, defendants have failed to provide individual plaintiffs with services in residential placements
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or day habilitation programs. As a result, individual plaintiffs have remained, in many cases for years, on waiting lists for these services.
114. Title XIX requires that categorically needy recipients such as plaintiffs must receive services in an amount, duration or scope that is available to other categorically needy recipients. 42 U.S.C. ' 1396a(a)(10)(B)(i) and (ii); 42 C.F.R. ' 440.240.
C. Alabama=s System For Assuring Services to Persons with Mental Retardation.
115. In Alabama, provision of services to persons with mental retardation is governed by the Department of Mental Health/Mental Retardation Act of 1984 (MH/MR Act), Act No. 84-242, ' 22-50-1, et seq., of the Code of Alabama.
116. Under the MH/MR Act, the Department of Mental Health/Mental Retardation must assure that the residents of Alabama with mental retardation receive adequate services. Ala. Code ' 22-50-9, et seq.
117. Department of Mental Health/Mental Retardation=s mental retardation policy is based on:
“the principal of establishing and promulgating reasonable minimum standards for the construction and operation of facilities including reasonable minimum standards for the admission, diagnosis, care, treatment, transfer of patients or clients and their records, and also including reasonable minimum standards for providing day care, outpatient care, emergency care, inpatient care and follow up care when such care is provided for persons, with mental or emotional illness or day care or residential care for persons who are mentally retarded.” Ala. Code ' 22-50-11(11) (emphasis added). 118. Persons seeking residential placement or day habilitation programs must do
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so through their locally designated Mental Retardation and Developmental Disabilities Health Care Authority (MRDDHCA). Under the MH/MR Act, for example, the MRDDHCA of Jefferson County, Alabama, through its designees, serves as the point of entry into Alabama=s mental retardation system for persons in Jefferson County who want to apply for services. See Ala. Code ' 22-51-1(8).
119. All referrals of persons with mental retardation living in Alabama for needed residential services, and/or day habilitation programs, and/or other related supports and services must be approved by the Department of Mental Health/Mental Retardation.
120. For many years, The Alabama Department of Mental Health/Mental Retardation has failed or refused to provide community based services to all persons with mental retardation who apply and are eligible for such services, regardless of the need for such services. Thus, for example, the MRDDHCA of Jefferson County has developed a waiting list, as required in its contractual agreement with the Alabama Department of Mental Health/Mental Retardation, for persons with mental retardation who need residential, day habilitation, and other community based services, which lists hundreds of persons who are waiting for needed services.
121. The Department of Mental Health/Mental Retardation is aware of the lack of community residential placements, day habilitation, and other community based services available to eligible applicants and is aware that there are growing numbers of unserved and underserved persons on their waiting lists for such services, but is not providing needed services to qualified individuals as required by federal law.
122. Individuals with mental retardation who need community services, but who are placed on waiting lists are often forced to remain at home with aging or ailing relatives
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 28 of 38
who cannot provide them with appropriate care or opportunities, while others are admitted and cared for entirely by the State in large, inappropriate institutions.
123. All individual plaintiffs will suffer imminent, irreparable injury absent an award of injunctive relief. Plaintiffs need small, community-based residential placement and/or day habilitation services. Plaintiffs can no longer live in their homes with caretakers who are unable to meet their needs, and they cannot live independently.
124. At all material times the defendants acted under color of state law. 125. All of the individual defendants are named and sued solely in their official capacities. VI. Claims A. Count I - Violation of 42 U.S.C. ' 1983; Failure to Provide ICF/MR and/or
Waiver Services with Reasonable Promptness. 126. Plaintiffs incorporate by reference Paragraphs 1 through 125 of this Complaint. For purposes of Count I, Adefendants@ refers to defendants Riley, Houston, and the Department of MH/MR. 127. Title XIX requires that states that participate in the Medical Assistance program must make Medical Assistance benefits available. 42 U.S.C. ' 1396a(a)(10)(A). Medical Assistance benefits include, at the option of the state, ICF/MR services and/or waiver services. 42 U.S.C. ' 1396a(a)(15). 128. Alabama has chosen to cover ICF/MR and/or waiver services for some eligible persons as a Medical Assistance benefit. As a condition of its participation in the program, defendants must ensure that services which are necessary for eligible persons with mental retardation and other developmental disabilities are provided to them in a
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 29 of 38
reasonably prompt manner. 129. Plaintiffs are eligible for Medical Assistance benefits generally and ICF/MR
and/or waiver services in particular. Title XIX requires that the State Plan provide that Aall individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.@ 42 U.S.C. ' 1396a(a)(8). This means that defendants must not only allow individual plaintiffs to apply for residential placement, day habilitation services, and other related supports and services, but must furnish these services promptly and without any delay caused by the agency=s administrative procedures. 42 C.F.R. ' 435.930(a).
130. Defendant has failed or refused to provide plaintiffs with residential placement, day habilitation, and other supports and services in small, community-based settings in violation of Title XIX. This failure violates plaintiff=s rights under the Social Security Act and its implementing regulations, and the Fourteenth Amendment to the United States Constitution, and thus constitutes a violation of 42 U.S.C. ' 1983.
B. Count II B Violation of 42 U.S.C. ' 1983; Failure to Comply with Comparability Requirements.
131. Plaintiffs incorporate by reference Paragraphs 1 through 130 of this Complaint. For purposes of Count II, Adefendants@ refers to defendants Riley, Houston, and Department of MH/MR.
132. Title XIX requires that eligible recipients must not receive mandatory services and any designated optional services, such as residential placement or day habilitation, in an amount, duration or scope that is no less than those services that are available to other
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eligible recipients already enrolled, or than are available to other categorically needy recipients. 42 U.S.C. ' 1396a; 42 C.F.R. ' 440.240. Title XIX further requires that eligible recipients must receive services that are equal in amount, duration, and scope to other eligible recipients within their covered group.
133. Alabama, in its Medicaid program, provides residential placements, day habilitation, and other services to some eligible recipients, while continuing to deny those services to the plaintiffs.
134. Alabama=s failure to provide residential placement, day habilitation, and other services to plaintiffs, who are eligible for and need residential placement, day habilitation and other services, while it provides ICF/MR and/or waiver services to certain other eligible recipients, violates 42 U.S.C. ' 1396a(a)(10)(B). This failure violates plaintiffs’ rights under the Social Security Act and its implementing regulations, and the Fourteenth Amendment to the United States Constitution, and, thus, constitutes a violation of 42 U.S.C. ' 1983.
C. Count III B Violation of 42 U.S.C. ' 1983; Failure to Provide Right to Apply
135. Plaintiffs incorporate by reference Paragraphs 1 through 134 of this Complaint. For purposes of Count III, Adefendants@ refers to defendants Riley, Houston, and Department of MH/MR.
136. Title XIX provides eligible recipients the right to apply for services and have a decision rendered regarding their applications for services. 42 U.S.C. ' 1396a.
137. Alabama, in its Medicaid program, as administered by defendants, has afforded the right to apply for services to certain eligible recipients, while continuing to deny
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the right to apply to certain plaintiffs. 138. Alabama=s failure to provide the right to apply for services and have a
decision rendered regarding their applications for services to plaintiffs who are eligible for and need residential placement, day habilitation and other services, while it provides the right to apply to certain other eligible recipients, violates 42 U.S.C. ' 1396a(a)(3). This failure violates plaintiffs’ rights under the Social Security Act and its implementing regulations, and the Fourteenth Amendment to the United States Constitution, and, thus, constitutes a violation of 42 U.S.C. ' 1983.
D. Count IV - Violation of Plaintiff=s Due Process Rights as Guaranteed by United States Constitution.
139. Plaintiffs incorporate by reference Paragraphs 1 through 138 of this Complaint. For purposes of Count VI, Adefendants@ refers to defendants Riley and Houston in their official capacities.
140. 42 U.S.C. ' 1983 provides that any person acting under color of state law who deprives any other person of rights guaranteed by the Constitution or laws of the United States shall be liable to the party injured in an action for legal or equitable relief.
141. The actions of defendants described in this Complaint were taken under color of state law and represent the custom and policy of these officials and the offices and programs they operate. Defendants= conduct was done with malice and with reckless disregard of the federally protected rights of the plaintiffs.
142. Defendants= failure to provide plaintiffs with adequate residential placement, day habilitation and other services, and defendants= failure to provide such services to plaintiffs, has violated, and continues to violate, plaintiffs= rights to due process guaranteed
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by the 14th Amendment to the U.S. Constitution and 42 U.S.C. ' 1983. 143. Plaintiffs= constitutional rights to habilitation were clearly established at the
time of this lawsuit. 144. Defendants knew, or should have known, about plaintiffs= needs for safe living
conditions, habilitation, training and other services to ensure Plaintiffs= safety and freedom from harm, via placement of plaintiffs in residential placements and/or day habilitation programs and/or other appropriate services and programs, but customarily refused to or failed to assure that plaintiffs= needs were met. Defendants had, and have, the power and authority necessary to make the appropriate changes to provide to the plaintiffs the requested due process. As such, defendants knew about, but failed or refused, to remedy the known and continuing violation of plaintiffs= clearly established Constitutional rights to habilitation, care, and treatment equal or substantially similar to that provided to others receiving services.
145. Also, defendants created and promoted unconstitutional practices, including inter alia, the failure to exercise and implement professional judgment with respect to plaintiffs= care and treatment, including their needs for habilitation, ancillary services, community placements, and safe living conditions. Defendants= refusal to remedy the known violations of plaintiffs= clearly established Constitutional rights to, inter alia, habilitation, has amounted, and continues to amount to, gross indifference to plaintiffs= rights.
146. Defendants= failure to provide plaintiffs with the services described in this Complaint has caused, and is continuing to cause, them irreparable harm in that they are being denied services that would allow them to become more independent, to become
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 33 of 38
more integrated into the community, to assure their safety, and to prevent the loss of previously acquired skills which would prevent deterioration of their physical and mental health, including increased contractures and disability, loss of adaptive skills, muscle atrophy, and generalized failure to thrive. VII. Request for Relief
147. WHEREFORE, the plaintiffs respectfully request that this Court grant the following relief: As to COUNTS I, II, and III - Defendants, Riley, Houston, and Department of MH/MR:
1. Retain jurisdiction over this case; 2. Declare that defendants= actions and inactions violate Title XIX of the
Social Security Act; 3. Issue a preliminary injunction and a permanent injunction to enjoin
defendants from continuing to violate Title XIX of the Social Security Act and to require defendants to allow individual plaintiffs to apply for residential placement and/or day habilitation and/or other needed services, and immediately provide individual plaintiffs with services in small, community-based programs appropriate to their needs; and, 4. Issue such other relief as may be just, equitable and appropriate, including an award of reasonable attorney=s fees and costs pursuant to 42 U.S.C. ' 1988. As to COUNT IV - Defendants, Riley and Houston: 1. Retain jurisdiction over this case; 2. Declare that defendants= actions and inactions violate plaintiffs’ due
33

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 34 of 38
process rights guaranteed under Fourteenth Amendment to the United States Constitution. 3. Issue a preliminary injunction and a permanent injunction to enjoin defendants from continuing to violate plaintiffs’ due process rights under the Fourteenth Amendment of the United States Constitution and require defendants to allow individual plaintiffs to apply for services appropriate to their needs, and immediately provide individual plaintiffs with such services in small, community-based programs appropriate to their needs; and, 4. Issue such other relief as may be just, equitable and appropriate, including an award of reasonable attorney=s fees and costs pursuant to 42 U.S.C. ' 1988.
Respectfully Submitted,
By: /s/ J. Patrick Hackney
ATTORNEYS FOR THE PLAINTIFFS Deborah A. Mattison Rachel L. McGinley Wiggins, Child, Quinn & Pantazis, P.C. The Kress Building 301 19th Street North Birmingham, AL 35203 (205) 314-0500 Robert R. Kracke Kracke & Thompson 808 29th Street South, Suite 300 Birmingham, AL 35205 (205) 933-2756
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 35 of 38

Dated: July 26, 2007

James A. Tucker (ASB-6986-T39J) J. Patrick Hackney (ASB-6971-H51J) ADAP Box 870395 Tuscaloosa, AL 35487 (205) 348-4928

DEFENDANT=S ADDRESSES:
Bob Riley, Governor State of Alabama State Capitol 600 Dexter Avenue Montgomery, AL 36130
John Houston, Acting Commissioner Mental Health & Mental Retardation Department for the State of Alabama 100 North Union Street Montgomery, AL 36130
Mental Health & Mental Retardation Department for the State of Alabama 100 North Union Street Montgomery, AL 36130

35

Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 36 of 38 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this the 26th day of July, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to counsel for all parties of record.
/s/ J. Patrick Hackney ASB No.:6971-H51J Alabama Disabilities Advocacy Program University of Alabama 500 Martha Parham West, Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205) 348-4928 Facsimile: (205) 348-3909 E-mail: phackney@adap.ua.edu
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 37 of 38
APPENDIX A HOME AND COMMUNITY BASED WAIVER LIST OF SERVICES
• In-home residential habilitation services, including habilitation training & intervention the following areas: o Self-care; o Sensory/motor development; o Interpersonal skills; o Communication; o Behavior shaping; o Community living skills; o Mobility; o Health care; o Socialization; o Community inclusion; o Money management; o Pursuit of leisure & recreational activities; o Household responsibilities.
• In-home residential habilitation training and intervention consisting of: o Incidental learning in addition to formal training plans; o Modification of the physical and/or social environment, such as changing factors that impede progress (examples range from changing other peoples’ attitudes towards the person to opening a door or moving a chair); and o Provision of direct support.
• Habilitation supplies, equipment and transportation, including: o Transportation costs to providers of residential habilitation to transport individuals to day programs, when public transportation or transportation covered under the Medicaid state plan is not available, accessible or desirable due to the functional limitations of the client; and o Transportation costs to providers of residential habilitation to transport individuals to social events or community activities, when public transportation or transportation covered under the Medicaid state plan is not available, accessible, or desirable due to the functional limitations of the client.
• Day habilitation services including: o Planning, training, coordination, and support to enable and increase independent functioning, physical health and development; o Communication development services; o Cognitive training services; o Socialization services; o Community integration services; o Domestic & economic management services; o Behavior management services; o Responsibility services; and o Self-direction services;
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Case 2:00-cv-00918-MEF-WC Document 107 Filed 07/26/07 Page 38 of 38
o Assistance/ training in daily living activities; o Instruction in the skills necessary for independent pursuit of leisure time/
recreation activities. o Social and other adaptive skills building activities (such as expressive therapy and
prescribed use of art, music or drama movement to modify ineffective learning patterns and/or to influence a change in behavior); • Prevocational services aimed at preparing an individual for paid or unpaid employment but which are not job-task oriented, including: o Teaching concepts such as compliance, attendance, task completion, problem solving and safety. o Activities aimed at teaching underlying habilitative goals such as attention span and motor skills. • Supported employment services, including: o where the individual participates in paid employment but will not likely be competitive at or above the minimum wage and where the individual needs intensive and ongoing support to perform in a work setting; and o where the individual participates in paid employment and needs supervision and training in excess of that provided to other nondisabled employees.
38

 
 Case 2:00-cv-00918-MEF-WC Document 267 Filed 08/03/09 Page 1 of 2

IN THE UNITED STATESDISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERNDIVISION

SUSANJ.,et al.,

Plaintiffs,

v. BOB RILEY, et al.,

CWIL ACTION NO.: 2:00-cv-918-MEF-WC

Defendants.

JOINT STIPULATION OF DISMISSAL WITH PREJUDICE Plaintiffs andDefendantsrespectfullysubmitthis Joint Stipulationof Dismissalpursuant to Ruleal(a)(l)(A)(ii) of theFederalRulesof Civil Procedure.Plaintiffs andDefendanrshereby jointly stipulateto dismissawl ith prejudiceof all claimsmadein this action,eachpartyto bear his own costs,baseduponthe SettlemenAt greemententeredinto by the parties.

For the Plaintiffs:

For the Defendants:
Troy King (KIN047) Attorney General
s/ JamesW. Davis JamesW. Davis(DAVIO3)

Case 2:00-cv-00918-MEF-WC Document 267 Filed 08/03/09 Page 2 of 2

Counselfor the Plaintiffs:
JamesA. Tucker(ASB-6986-T39J) J, PatrickHackney(.4.58-697l'H5 1J) AlabamaDisabilitiesAdvocacyProgram Box 870395 TuscaloosaA,L 35487 Phone:(205)348-4928 Fax:(205)348-3909 phachey@adaP.ua.edu jtuclrer@pdaP.ua.edu
DeborahA. Mattison RachelL. McGinleY Wiggins,Child,Quinn& PantazisP, .C' TheKressBuilding 301 lgth StreeNt orth BirminghamA, L 35203 ( 2 0 5 )3 1 4 - 0 5 0 0 dmattison@wcqq.com rmeginley@wcPq'com
RobertR. Kracke Kracke& ThomPson 2}} LakeshoreDrive, Ste306 BirminghamA, labama35209 (20s)933-2756 rlvacke@hlegal.com

Counselfor the Defendants:
MargaretL. Fleming(FLE 001) JamesW. Davis(DAV103) Misfy S.Fairbanks(FAI005) AssistantAttorneysGeneral
OrRce oFTHEArroRNnY GENPnel Srerp oFALABAMA 500 Dexter Avenue MontgomeryA, labama36130 Telephone: (334) 242-7300 Facsimile:(334)353-8440 mfleming@agos.tate.al.us j imdavsi @agos. tate.al.us mfairbanlcs@ago.state.al.us wparlrer@ago.state.al. us
CourtneyW. Tarver(TAR009) DeputyAttomey General/GeneralCounsel AlabamaDepartmentof Mental Health and Mental Retardation PostOfficeBox 301410 MontgomeryA, labama36130-l4l 0 Telephone:(334) 242-3038 Facsimile: (334) 242-0924 courtneyt.arver@mh.alabama.gov

 
 616 F.Supp.2d 1219 (2009)
SUSAN J., et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
No. 2:00-cv-918-MEF.
United States District Court, M.D. Alabama, Northern Division.
April 29, 2009.
1224*1224 Deborah Ann Mattison, Rachel Lee McGinley, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, Glenn Nelson Baxter, James Arnold Tucker, James Patrick Hackney, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Robert Russell Kracke, Sr., Kracke & Thompson, LLC, Birmingham, AL, for Plaintiffs.
Misty S. Fairbanks, Office of the Attorney General, Montgomery, AL, William G. Parker, Jr., State of Alabama Office of the Attorney General, Montgomery, AL, for Defendants.
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, Chief Judge.
I. INTRODUCTION
Plaintiffs are adults with disabilities and mental retardation who bring this class action for declaratory and injunctive relief to declare their rights, to remedy alleged violations of the Social Security (Medicaid) Act, 42 U.S.C. §§ 1396 et seq., and to redress alleged deprivations of their due process rights under the Fourteenth Amendment to the United States Constitution. This case is before the Court on the following summary judgment motions: Defendants' Motion for Summary Judgement as to All Claims Brought By Paul B. (Doc. # 127); Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152); Defendants' Motion for Summary Judgment (Doc. # 172); and Plaintiffs' Motion for Partial Summary Judgment on "Reasonable Promptness" Claim (Doc. # 211).
For the reasons set forth in this Memorandum Opinion and Order, Defendants' Motion for Summary Judgment as to All Claims Brought by Paul B. (Doc. # 127) is due to be DENIED. Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is due to be GRANTED with respect to Elizabeth A. and Charles P., due to be DENIED with respect to Angie D. and Susan J, and due to be DENIED as moot with respect to Nicholas A. Defendants' Motion for Summary Judgment (Doc. # 172) is due to be GRANTED in part and DENIED in part, and Plaintiffs' Motion for Partial Summary Judgment on "Reasonable Promptness" Claim (Doc. #

211) is due to be DENIED. In the end, all that remains (and they remain completely) are the claims of Subclasses Two and Three.
II. JURISDICTION AND VENUE
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs claims are pursuant to 42 U.S.C. § 1396 et seq., § 1983, and the Due Process Clause of the Fourteenth Amendment. The parties do not contest venue and personal jurisdiction, and the Court finds a sufficient basis for each.
III. PROCEDURAL HISTORY
On July 12, 2000, Named Plaintiffs filed suit against Don Siegelman in his official 1225*1225 capacity as Governor of the State of Alabama, Kathy Sawyer in her official capacity as Commissioner of Mental Health and Mental Retardation for the State of Alabama, and the Alabama Department of Mental Health and Mental Retardation seeking declaratory and injunctive relief to enforce their rights under the Social Security (Medicaid) Act, 42 U.S.C. §§ 1396 et seq. and the United States Constitution. (Doc. # 1.) On May 20, 2003, the Court terminated Defendant Siegelman and added Defendant Bob Riley in his official capacity as Governor of the State of Alabama. (Doc. # 21.) Likewise, on August 17, 2007, the Court terminated Defendant Sawyer and added Defendant John Houston in his official capacity as Commissioner of the State of Alabama Department of Mental Health and Mental Retardation. (Doc. # 117.)[1]
With leave of this Court, Plaintiffs filed a Second Amended Complaint on June 21, 2005 (Doc. # 46) and Third Amended Complaint on July 26, 2007 (Doc. # 107) ("Third Amended Complaint").
On April 24, 2007, Plaintiffs filed a motion to certify the case as a class action (Doc. # 87), which this Court denied on September 12, 2007 (Doc. # 126). Plaintiffs then filed a Second Motion to Certify Class (Doc. # 128), which this Court granted in part and denied in part on October 24, 2008 (Doc. # 222). The Court certified two subclasses:
Subclass Two: All persons with mental retardation who have applied for services compensable under Alabama's Home and Community Based Waiver Programs but who have been adjudged ineligible and/or denied services without notice and opportunity for hearing.
Subclass Three: All persons with mental retardation who have applied for services compensable under Alabama's Home and Community Based Waiver Programs and have not received a reasonably prompt claims determination.
(Doc. # 222.) Proposed Subclass One contained persons "with mental retardation who have applied for services compensable under Alabama's Home and Community Based Waiver Programs and who have been determined to be eligible for services but who have not received them with reasonable promptness or have received inadequate or inappropriate services." The Court declined to certify this subclass because there was insufficient

information available to make a numerosity determination. The Court also noted proposed Subclass One did not meet the adequacy requirement.
Upon joint motion of the Parties (Doc. # 225), the Court staid the case pending interlocutory appeal under Rule 26(f) (Doc. # 226). The Eleventh Circuit denied the Petition for Permission to Appeal on December 12, 2008. (Doc. # 227.) The Court then held a Status Conference (Doc. # # 228, 230), lifted the stay (Doc. # 232), and set this case for trial in the Court's June 29, 2009 term. (Doc. # 229.)
Currently before the Court are four motions for summary judgment filed by parties on both sides: (1) Defendants' Motion for Summary Judgment as to All Claims Brought By Paul B (Doc. # 127), filed on September 19, 2007; (2) Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152), filed on December 28, 2007; (3) Defendants' Motion for Summary Judgment (Doc. # 172), filed on January 22, 2008; and (4) Plaintiffs' Motion for Partial Summary Judgment on "Reasonable Promptness" Claim (Doc. # 211), filed on 1226*1226 January 23, 2008. These four motions are ripe for disposition.
IV. FACTS
The Memorandum Opinion and Order granting the Amended Motion for Class Certification provides a full account of the facts of this case. See Susan J. v. Riley, 254 F.R.D. 439, 44550 (M.D.Ala.2008) (Fuller, C.J.). The Court incorporates those largely undisputed facts by reference and assumes familiarity with them. This Section therefore provides only a brief summary of the case and a discussion of the claims of the named plaintiffs. The Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the Motions. Because of the way this case has progressed, the Court has also considered its Order on Pretrial Hearing. (Doc. # 221.) There are cross-motions for summary judgment in this case, so the Court will consider the facts and reasonable inferences to be drawn from the facts in the light most favorable to the non-moving party as the Court considers each of the motions. With that caveat, the submissions of the parties, viewed in the light most favorable to the nonmoving party, establish the following relevant facts:
The named Plaintiffs represent a group of adults with mental retardation who are unable to care fully for themselves and require varying degrees of care and treatment. The Defendants are Bob Riley, in his official capacity as Governor of the State of Alabama, the Alabama Department of Mental Health and Mental Retardation (the "Department"), and John M. Houston ("Houston"), in his official capacity as Commissioner of the Department.
Plaintiffs seek placement in Alabama's Home and Community Based Waiver programs ("HCB Waiver" or "Waiver"), which includes both the Mental Retardation Waiver program ("MR Waiver") and the Living at Home Waiver program ("LAH Waiver"). They also seek to enforce procedural protections they claim the Constitution and the Medicaid Act provide to applicants for slots in those programs. They present their claims in four counts. They claim:[2] (1) that Defendants have violated the Medicaid act by failing to provide ICF/MR and/or Waiver services with reasonable promptness as required by 42 U.S.C. § 1396a(a)(8); (2) that Defendants have also failed to comply with the comparability

requirements of 42 U.S.C. § 1396a(a)(10); (3) that Defendants have deprived Plaintiffs of their right to apply pursuant to 42 U.S.C. § 1396a(a)(3); and (4) that Defendants have violated Plaintiffs' due process rights guaranteed by the United States Constitution.
A. Susan J.
Susan J. is a forty-six year old female with Down Syndrome associated with mental retardation and a seizure disorder. She applied for residential services in 1992 and withdrew her request for these services in 2007. She applied for day habilitation services in 1993 and began receiving them in 1999. She remains on the waiting list for respite services with a criticality score of one because she may want additional services in the future. As of January 2008, her ranking on the waiting list was 1256. She would like financial reimbursement for persons who transport her to her day habilitation program, but the state has not authorized such reimbursement under its Waiver program.
B. Angie D.
Angie D. is a thirty-one year old female with cerebral palsy associated with mental retardation. She applied for day habilitation LAH Waiver services in 2000 and began receiving them in June 2007. She is 1227*1227 on the waiting list for residential services, but does not seek them at this time. Angie D. is eligible for Medicaid medical assistance benefits.
C. Elizabeth A.
Elizabeth A. is a twenty-eight year old female with Rett Syndrome, neurological problems, and mental retardation. She applied for day habilitation Waiver services in 1995 and was offered these services in October 2006, but her mother turned them down because she thought they were inadequate. From November 2006 to September 2007, while still on the waiting list for an MR Waiver slot, Elizabeth received twenty hours per week of respite and support services through another waiver program that is not at issue in this case. As of July 24, 2007, she was number 499 on the waiting list. In September 2007, she obtained an MR Waiver slot and began receiving eleven hours per day of in-home support services. As she was receiving all the services she sought, Elizabeth was removed from the waiting list.
D. Charles P.
Charles P. is a twenty-four year old male with mental retardation associated with autism. He applied for day habilitation and supported employment services in 2005. As of July 24, 2007, he was number 362 on the waiting list. In August 2007, he obtained an LAH Waiver slot and is receiving day habilitation services and supported employment services. Charles P. is no longer on the waiting list. He is eligible for and receives Medicaid medical assistance benefits and Social Security Income.
E. Paul B.

Paul B. is a twenty-two year old male with Down Syndrome, cerebral palsy, and severe developmental delays due to mental retardation. Paul applied for HCB Waiver services in approximately 1999. He is eligible for and received Medicaid medical assistance and Social Security Income. In May 2007, Paul was entered onto the list for day habilitation services, and was number 907 on that list on July 24, 2007. Paul aged out of the school system in May 2007, and was enrolled in the MR Waiver program in September of that year. He began receiving day habilitation services at that time. In September 2008, his mother requested additional services for him.
F. Beverly W.
Beverly W. is a fifty year old female with mental retardation, brain damage, and possible fetal alcohol syndrome. She submitted paperwork requesting HCB Waiver services in 1992 and again in 1996 and is not receiving those services. Between 1996 and 2004 Beverly's caretaker received no communication regarding the status of Beverly's application or her place on the waiting list.
G. Tara L.
Tara L. is a twenty-nine year old female with mental retardation and autism. Tara's caretaker applied for residential, day, and support services though the local 310 board. She is qualified for Medicaid medical assistance benefits, Targeted Case Management, and Social Security Income. As of September, 2008, Tara was number 462 on the waiting list for day habilitation services. Tara is currently not receiving day habilitation services.
H. Krystal W.
Krystal W. is a twenty-six year old female with mental retardation. She is eligible for and receives Medicaid medical assistance benefits and Social Security Income. Her mother claims she submitted a request to the Department of Mental Retardation in 2000 requesting day habilitation and group home services. Her mother further claims that she made numerous calls to the relevant agencies to determine Krystal's status on the waiting list in the 1228*1228 three years following the initial application. Defendants contend they received the application in November 2007. As of January 15, 2008, Krystal was number 464 on the waiting list. She was approved for the LAH Waiver on August 26, 2008, and she began receiving day habilitation services three days later.
I. Brishette W.
Brishette W. is a twenty-four year old female with mental retardation. She is seeking day habilitation services, and, in 2005, submitted an application for those services. She became eligible for Alabama Medicaid services in 2006, because she is a new Alabama resident. As of September 2008, she is number 583 on the waiting list with a criticality score of four. Brishette W. is not receiving HCB Waiver services.

J. Rico C.
Rico C. is a thirty-four year old male with mental retardation. He is eligible for and receives Medicaid medical assistance and Social Security Income. As of January 15, 2008, Rico was number 528 on the waiting list for day services and for residential services with a criticality score of four and one, respectively.
K. Shavon H.
Shavon H. is a thirty-nine year old female with mental retardation, cerebral palsy, visual and hearing impairments, and digestive difficulties. Shavon received day habilitation services for a brief period in 2002. She subsequently declined offers for services and requested that her case be closed. Shavon is not currently receiving Waiver services and is not on the waiting list.
V. DISCUSSION: JURISDICTIONAL ISSUES
Defendants advance two classes of jurisdictional arguments, which this Court must address prior to reaching the merits of the Motions. See Seaborn v. Florida, 143 F.3d 1405, 1407 (11th Cir.1998). First are the familiar justiciability doctrines of standing, mootness, and ripeness. Defendants argue that the claims of the individual plaintiffs are moot because each plaintiff is receiving reimbursement for all appropriate Waiver services. Defendants also argue that Plaintiffs' claims are not ripe to the extent they concern services not yet requested and that Plaintiffs seek reimbursement for medical services that are not compensable, and that Plaintiffs do not have standing to seek prospective injunctive relief. Second are Eleventh Amendment and absolute sovereign immunity. Defendants argue that this Court lacks jurisdiction to compel state Defendants to comply with state law and that the Eleventh Amendment to the United States Constitution bars claims against the Alabama Department of Mental Health and Mental Retardation. The Court is satisfied that it has subject matter jurisdiction over the claims brought by Paul B., Angie D., Susan J., Brishette W., Rico C., Tara L., Beverly W., and Krystal W., but not over the claims brought by Elizabeth A., Charles P., and Shavon H. and not over claims brought against the Alabama Department of Mental Health and Mental Retardation. The Court therefore retains jurisdiction over the individual claims of Paul B., Angie D., Susan J., Brishette W., Rico C., Tara L., Beverly W., and Krystal W. and over the claims of both subclasses.
A. Legal Standard
Defendants characterize their motions as ones for summary judgment, which they are to some extent. Defendants include in the motions, however, arguments that clearly attack the subject matter jurisdiction of this Court. Their arguments that various claims are moot or not ripe and that some plaintiffs do not have standing concern subject matter jurisdiction and are "appropriately dealt with by means of a motion to dismiss under Federal Rule of 1229*1229 Civil Procedure 12(b)(1)." Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1278 n. 2 (11th Cir.2004). Therefore, when a party seeks to have a case dismissed on justiciability grounds, the district court should treat the motion as

one to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), even if the party has labeled its motion as one for summary judgment. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir.2007) (mootness); United States v. Blue Cross & Blue Shield of Ala., Inc., 156 F.3d 1098, 1101 n. 7 (11th Cir.1998) (mootness); Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006) (ripeness); Hames v. City of Miami, 479 F.Supp.2d 1276 (M.D.Fla.2007) (subject matter jurisdiction). To the extent these motions for summary judgment concern the subject matter jurisdiction of the Court, the Court considers them under the standards of Rule 12(b)(1).
"A Rule 12(b)(1) motion may challenge the court's subject matter jurisdiction based on the face of the pleadings or based on the actual substantive facts of the case." Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003). These two forms of attack differ substantially. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Where the jurisdictional attack is based on the face of the pleadings, courts merely look to determine whether the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in the plaintiffs' complaint are taken as true for purposes of the motion. Id. at 1529. When addressing a factual challenge, on the other hand, a court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." See id. at 1528-29 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May 20, 1981)).[3] Generally, in the context of a factual challenge to jurisdiction, there is no presumption of truthfulness in favor of the plaintiff's allegations and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See id. at 1529-30. Because these jurisdictional challenges are made at a stage when the factual record is well developed, the Court will consider Defendants' jurisdictional arguments as factual challenges and will evaluate for itself the merits of their jurisdictional claims.
B. Immunity
1. Eleventh Amendment
Defendants argue that "Plaintiffs' claims against the Alabama Department of Mental Health and Mental Retardation are barred by the Eleventh Amendment." (Doc. # 178 83.) Because the Department enjoys Alabama's Eleventh Amendment immunity as a department of the State, Plaintiffs' claims against the Department are due to be dismissed.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court has not, however, limited the application of this immunity to the suits described in the text of the Eleventh Amendment. The Court has extended a State's immunity to suits brought by the State's own citizens in order to respect the "broader concept of immunity" implicit in the Constitution and exemplified by the Eleventh Amendment. Doe v. Chiles, 136 F.3d 709, 719 (11th 1230*1230 Cir.1998) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)). The decisions of the Supreme Court thus establish that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as citizens of other

states." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citing Employees of Dep't of Pub. Health & Welfare, Mo. v. Dep't of Pub. Health & Welfare, Mo., 411 U.S. 279, 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973)).
Agencies, departments, and instrumentalities of states are entitled to the same Eleventh Amendment immunity as the states themselves. Pennhurst, 465 U.S. at 100-01, 104 S.Ct. 900 (citing Florida Dep't of Health v. Fla. Nursing Home Ass'n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam)); Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.1985); University of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir.1999) ("In the context of Eleventh Amendment immunity, we have held that state universities are "agencies or instrumentalities" of the state, and thus are immune from suit in federal court."). Whether the entity sued can be considered an agency, department, or instrumentality of the state is generally determined by reference to state law. Harden, 760 F.2d at 1163 (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); Sessions v. Rusk State Hosp., 648 F.2d 1066 (5th Cir. June 26, 1981)[4]; Cross v. Ala. Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir.1995). Factors that bear on this determination include the definition of "state" and "political subdivision"; the degree of state control over the entity; and the fiscal autonomy of the entity. Harden, 760 F.2d at 1163; Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520 (11th Cir.1983).[5]
The issue of Eleventh Amendment immunity thus turns on whether the Alabama Department of Mental Health and Mental Retardation is an agency, department or instrumentality of the state. The Court finds that it is. In Cross, 49 F.3d at 1502-03, the Eleventh Circuit explained, in the Eleventh Amendment context, that "The Alabama Department of Mental Health and Mental Retardation is a department of the state government." (citing Ala.Code § 22-50-2 (1990)). Furthermore, Alabama Code § 22-50-2 provides:
There shall be created and established a department of the state government to be known as the Department of Mental Health and Mental Retardation. The 1231*1231 department shall be composed of the State Mental Health and Mental Retardation Commissioner and such divisions and administrative sections as the Mental Health and Mental Retardation Commissioner may direct. The principal offices of the department shall be located at the state capitol. The department shall perform the functions prescribed in this chapter.
Moreover, the statutes that govern the Department make it clear that the degree of State control over the entity is absolute and the Department is not at all fiscally autonomous. See Harden, 760 F.2d at 1163; Fouche, 713 F.2d at 1520. Under the relevant provisions of the Alabama Code, the Department is required to "perform the functions described in this chapter," Ala.Code. § 22-50-2, the offices of the department are "at the state capitol," id., all fees collected by the Department must be spent either within the Department or in support of state hospitals, id. § 22-50-3, the Governor is chairman of the board of trustees and appoints the members of the board, id. § 22-50-5, the trustees' expenses are paid from the state treasury, id. § 22-50-8, the Department must give an annual report to the Governor and distribute copies to members of the State legislature, id. § 22-50-13, the Department must request operating funds from the Governor who should include those requests in his

appropriation bill, id. § 22-50-14, final decisions of the Department are subject to judicial review, id. § 22-50-19, and the Department may hire police officers to assist it in carrying out its tasks, id. § 22-50-21.
In light of the foregoing, the Court finds that the Alabama Department of Mental Health and Mental Retardation is an agency, department or instrumentality of the State, and is therefore entitled to Eleventh Amendment immunity in this case.[6] The degree of state control over the entity is complete, and the fiscal autonomy of the entity is slight. See Harden, 760 F.2d at 1163. Therefore, Defendants' Motion is due to be granted to the extent it seeks dismissal of all claims against the Department.[7]
2. State Sovereign Immunity
Defendants also argue that "to the extent that Plaintiffs seek to enjoin the State Defendants to follow Alabama law... the State Defendants are entitled to absolute sovereign immunity." (Doc. # 178 81.) The Court agrees that under Pennhurst State School & Hospital v. Halderman it lacks power to compel state officials to obey state law.[8] See 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding that federal courts are barred by the Eleventh Amendment from ordering state officials to conform their conduct to state law, even when only prospective injunctive relief is sought). Plaintiffs have not requested this Court issue an injunction compelling compliance with state law, and their claim seeks vindication of federal statutory and constitutional rights. While this argument currently appears to be irrelevant to this Case, Defendants' Motion 1232*1232 for Summary Judgment is due to be granted to the extent it seeks to prevent this Court from compelling state officials to comply with state law.
C. Justiciability
The courts of the United States are courts of limited jurisdiction. The Constitution of the United States, Article III, Section 2, provides that the judicial power of the United States shall extend only to "cases" and "controversies." U.S. Const. art. III, § 2; see also Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir.2004) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Defendants argue that Plaintiffs lack standing,[9] that their claims are moot, and that some of their claims are not ripe.[10]
1. Legal Framework
Mootness is among the limitations placed on the power of the federal courts because "[b]y its very nature, a moot suit `cannot present an Article III case or controversy.'" Nat'l Advertising Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir.2005) (citing Coral Springs, 371 F.3d at 1328). "A case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183 (11th Cir.2007) (quoting Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281-82 (11th Cir.2004)). There are three exceptions to the mootness doctrine:

First, the doctrine of voluntary cessation provides an important exception to the general rule that a case is mooted by the end of the offending behavior. Sheely, 505 F.3d at 1184 (citing Troiano, 382 F.3d at 1282). "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). A defendant who asserts that a plaintiff's claims are moot because of the defendant's voluntary conduct bears the "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again." Id.; United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) 1233*1233 (noting that the test for mootness in cases of voluntary cessation is "a stringent one" and that "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur"). "A defendant's assertion that it has no intention of reinstating the challenged practice `does not suffice to make a case moot' and is but `one of the factors to be considered in determining the appropriateness of granting an injunction against the nowdiscontinued acts.'" Sheely, 505 F.3d at 1184 (citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). In the Eleventh Circuit, government actors are entitled to "the benefit of a rebuttable presumption that the offending behavior will not recur." Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. District courts must, however, "beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." Sec'y of Labor, U.S. Dep't of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.1992) (quoting United States v. Oregon State Med. Soc'y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952)).
Second, a district court may entertain a moot case if it arises from a situation that is "capable of repetition, yet evading review." Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th Cir.2004) (citation omitted). This exception has two requirements: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam)).
Finally, with respect to class actions, a named Plaintiffs' claim "must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiff's claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot." Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) (citations omitted). In other words, "a lawsuit brought as a class action must present justiciable claims at each stage of the litigation; if the named plaintiffs' individual claims become moot before a class has been certified, no justiciable claims are at that point before the court and the case must as a general rule be dismissed for mootness." Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1046 (5th Cir. Unit A, July 27, 1981).[11] In cases where the named Plaintiffs' claims became moot after class certification, the Plaintiff may retain standing to pursue the class action because the class has a "legal status separate from the interest asserted by the [named plaintiffs]." Tucker, 819 F.2d at 1034 (quoting Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). The act of certification brings the unnamed members of the class before the court for Article III purposes; so long as their claims are justiciable,

the mootness of the original named plaintiff's claim does not require dismissal. Zeidman, 651 F.2d at 1045.
2. Discussion
Defendants argue first that the claims of Paul B., Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. are moot.[12] 1234*1234 (Doc. ## 127, 153.) Defendants also argue more globally that "Plaintiffs' claims are moot because their needs have been [met] to the extent required under the existing terms of the controlling HCB waiver documents." (Doc. # 178.)
As an initial matter, because part of this case is a class action, the claims of the subclass representatives must not be moot when the district court determines whether to certify the putative class. Tucker, 819 F.2d at 1033. This Court certified the class in this case on October 24, 2008. If the claims of Named Plaintiffs who are members of the certified subclasses became moot before that date, their claims must be dismissed. The Court continues to have jurisdiction, however, over the claims of the other named Plaintiffs who represent Subclasses Two and Three if their claims became moot after class certification. See id. at 1034; Zeidman v. J. Ray McDermott & Co. Inc., 651 F.2d 1030, 1045 (5th Cir. July 27, 1981)[13] Additionally, if the claims of Named Plaintiffs who are not members of either certified subclass are moot now (or become so at any later point prior to judgment), their claims must be dismissed.[14]
First, the Claims of Paul B. are not moot. The Complaint alleged that Paul B. needs but is not receiving day habilitation services. At the time of Defendants' Motion as to Paul B., he was receiving all requested services and was no longer on the waiting list for services. He was in a MR Waiver slot and was receiving compensation for all services provided to him in accordance with the terms of the HCB Waiver documents. However, in September, 2008, Paul's mother requested additional services for him. Therefore, his claim is not moot and Defendants' Motion for Summary Judgment as to All Claims Brought by Paul B. is due to be denied.
The claims of Elizabeth A. and Charles P. are moot because neither of them is on the waiting list and they are both receiving all the services they requested. Elizabeth A. has been placed in a MR Waiver slot and receives in-home support services. Charles P. is enrolled in a LAH Waiver slot and attends a day habilitation program. Plaintiffs argue that Defendants have voluntarily ceased the offending behavior and would be free to resume it at any time. However, Plaintiffs have not meet the burden of overcoming the "rebuttable presumption that the offending behavior will not recur" to which the government defendants are entitled. Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. Finally, Plaintiffs' argument that these claims are "capable of repetition, yet evading review," fails because there is no "reasonable expectation that the same complaining party would be subjected to the same action again" because neither Elizabeth A. nor Charles P. is on the waiting list. See Bourgeois, 387 F.3d at 1308. The undisputed evidence in this case also shows that once a person is in a Waiver slot, they usually only leave the slot because of relocation out-of-state 1235*1235 or death. Therefore, Defendants' Motion for Summary Judgment as to All Claims of Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A.

is due to be granted in part. It is due to be granted with respect to Elizabeth A. and Charles P.
On the other hand, the claims of Angie D. and Susan J. are not moot. Angie D. has been placed in a LAH Waiver slot and therefore is receiving the assistance she has requested. However, she remains on the waiting list for residential services, and her claims, to the extent they would otherwise be moot, are "capable of repetition, yet evading review," because there is a "reasonable expectation that the same complaining party would be subjected to the same action again." Bourgeois, 387 F.3d at 1308. Because Angie D. is on the waiting list for residential services, it is reasonable to expect she will need those services in the future. See id. Similarly, Susan J. remains on the waiting list for support services. Therefore, to the extent her individual claims would otherwise be moot, they are "capable of repetition, yet evading review," because there is a "reasonable expectation that the [Susan J.] would be subjected to the same action again." Id. Therefore, Defendants' Motion for Summary Judgment as to All Claims of Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. is due to be denied in part. It is due to be denied with respect to Angie D. and Susan J.
Defendants also argue more generally that "Plaintiffs' claims are moot because their needs have been [met] to the extent required under the existing terms of the controlling HCB waiver documents." (Doc. # 178). Having already made determinations regarding the claims of Susan J., Elizabeth A., Charles P., Paul B., Angie D., and Nicholas A., the Court now turns to the claims of Beverly W., Tara L., Krystal W., Brishette W., Rico C., and Shavon H. This Court previously determined that the claims of Tara L., Beverly W., and Krystal W. were justiciable. Susan J., 254 F.R.D. at 449-50. Because the Court has no information to indicate their situations have changed since its prior Order, the Court is satisfied that their claims are justiciable and are not moot. Therefore, Defendants' Motion for Summary Judgment is due to be denied to the extent it seeks to have the claims of Tara L., Beverly W., and Krystal W. dismissed.
Turning to the claims of Brishette W., Rico C., and Shavon H., the Court notes that Brishette W. is on the waiting list for services, ranked number 583 with a criticality score of four. Rico C. is on the waiting list for residential services and day services, with a criticality score of one and four, respectively. He is ranked number 528 on the waiting list. Finally, Shavon H. has declined offers for services and requested that her case be closed. She is therefore no longer on the waiting list. After reviewing the facts, the Court finds that the claims of Brishette W. and Rico C. present live controversies, but that the claims of Shavon H. do not at this time present a justiciable dispute. Therefore, Defendants' Motion for Summary Judgment is due to be granted in part and denied in part. The Motion is due to be granted with respect to Shavon H. and denied with respect to Brishette W. and Rico C.
VI. DISCUSSION: SUBSTANTIVE ISSUES
Defendants seek summary judgment on all of Plaintiffs' claims. Defendants' Motion can be granted summarily with respect to Counts II and IV because of this Court's prior rulings. The Court will then subject remaining claims to the tests posed by Defendants' Motions and will determine whether Plaintiffs are entitled to summary judgment on the reasonable promptness claim.

1236*1236 A. Legal Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, a court ruling on a motion for summary judgment must believe the evidence of the nonmovant and must draw all justifiable inferences from the evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the Court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
B. Counts II and IV
On October 24, 2008, this Court granted in part and denied in part Plaintiffs' Motion to Certify Class. Susan J. v. Riley, 254 F.R.D. 439 (M.D.Ala.2008) (Fuller, C.J.). In their opposition to class certification, Defendants argued Named Plaintiffs lacked standing to bring the claims associated with their respective subclasses. The nature of the standing challenge required the Court to decide whether Plaintiffs' four counts stated grounds for relief. With respect to Count II, which alleges Defendants' violated Medicaid's comparability requirements, this Court stated:
Plaintiffs' second count alleges that Defendants violated 42 U.S.C. § 1396a(a)(10)(B) by failing to provide comparable services to Waiver participants. As a general matter, when states provide assistance under Medicaid programs, benefits must be comparable among

recipients. See 42 U.S.C. § 1396a(a)(10)(B); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1186 n. 12 (10th Cir.2003). However, states may waive the comparability requirement for programs such as the 1237*1237 HCB Waiver programs at issue in this case. Section 42 U.S.C. § 1396n(c)(3) provides that
A waiver granted under this subsection may include a waiver of the requirements of section 1396a(a)(1) of this title (relating to statewideness), section 1396a(a)(10)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community).
As is plainly permissible on the face of this statute, Alabama's HCB Waiver programs include a waiver of the comparability requirement. As such, Alabama is not required to provide comparable services across participants in the HCB Waiver programs. In other words, Plaintiffs enjoy no statutory right to comparable treatment in the context of the HCB Waiver programs.
Susan J., 254 F.R.D. at 455 (internal footnotes omitted). In their Motion for Summary Judgment, Defendants correctly point out that "The State of Alabama has waived comparability under 42 U.S.C. § 1396a(a)(10)(B)." (Doc. # 178 79.) Defendants also offer the uncontroverted affidavit testimony of Eranell McIntosh-Wilson, who stated that "With respect to the MR Waiver program and the LAH Waiver program, Alabama has elected to waive the requirements of 42 U.S.C. § 1396a(a)(10)(B). Thus the comparability requirement does not apply to Alabama's HCB Waiver programs" (Id. Ex. B ¶ 3.) In accordance with the Court's earlier holding and the undisputed facts, Defendants' Motions for Summary Judgment are due to be granted to the extent they seek to have Count II dismissed.
Similarly, Defendants' opposition to class certification required the Court to determine the scope of the right allegedly protected by the substantive due process protections of the Fourteenth Amendment to the United States Constitution. With respect to Count IV, this Court said:
Count IV of Plaintiffs' Third Amended Complaint alleges that Defendants violated the Constitutional rights of the putative class members by "fail[ing] or refus[ing] to remedy the known and continuing violation of plaintiffs' clearly established constitutional rights to habilitation, care, and treatment." The Court cannot locate, in caselaw or elsewhere, support for the proposition that there is a "clearly established constitutional right to habilitation, care, [or] treatment." Because there is no substantive due process right that guarantees protection from the conduct Plaintiffs complain of, there is no alleged violation of § 1983, and that statute cannot support standing in this case. Accordingly, Plaintiffs' Motion for Class Certification is DENIED to the extent the subclasses implicate alleged violations of substantive due process rights.
Susan J., 254 F.R.D. at 457-58 (internal footnotes and citation omitted). In accordance with this holding, Defendants' Motions for Summary Judgment are due to be granted to the extent they seek to have Count IV dismissed.
C. ICF/MR and HCB Waiver

Defendants argue they are entitled to summary judgment "as to any ICF-MR claims asserted by the Plaintiffs in this case." (Doc. # 178 48.) Defendants' felt need to argue against ICF/MR claims is a result of Plaintiffs' repeated use of "ICF-MR and/or waiver services" language. (Doc. # 46 33); (Doc. 107 ¶¶ 1, 26); (Doc. # 170 ¶¶ 6(a), (b), (c), & (d)).[15] After Defendants 1238*1238 filed the Motions currently under submission, Plaintiffs clarified that "they do not seek institutional placement (ICF/MR) services." (Doc. # 183 ¶¶ 3(a)-(d)); (Doc. # 187 20) ("plaintiffs do not actively seek to be institutionalized"). Plaintiffs have stated that they employed the "and/or" language because eligibility for ICF/MR services is a prerequisite for participation in the HCB Waiver program.
Nevertheless, Defendants moved for summary judgment on any ICF/MR claims, so the Court will decide the issue. As discussed above, Plaintiffs do not seek ICF/MR services. Additionally, Defendants discovered and adduced uncontroverted evidence that none of the Named Plaintiffs sought ICF/MR placement. (Doc. # 195 4 n. 2.) While it is not clear to the Court that there are any claims in this Case that seek ICF/MR placement, to the extent Plaintiffs do seek placement in an ICF/MR institution, Defendants' Motion for Summary Judgment is due to be granted.
D. Remaining Individual Claims
Plaintiffs' proposed Subclass One contained persons who have been determined eligible, but have not received services with reasonable promptness in violation of § 1396a(a)(8). The Court previously denied certification of this class because of problems with adequacy and numerosity. Susan J., 254 F.R.D. at 458-59, 459 n. 26. The individual claims of members of this putative subclass remain, however.[16] Defendants mount numerous challenges to these claims in particular, and Plaintiffs have moved for summary judgment on these claims as well.
1. Legal Framework
The remaining individual claims seek remedy for violations of the reasonable promptness requirement of § 1396a(a)(8). As discussed more fully in this Court's Class Certification Order, the Medicaid Act requires states provide some services and permits them to provide other services. The latter group is referred to as "optional services," and the HCB Waiver programs are optional services. While it is true that the Waiver program is governed by an agreement between the state and the federal government, "when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law." Susan J., 254 F.R.D. at 451 (citing Doe v. Chiles, 136 F.3d 709, 714 (11th Cir.1998)); see also Boulet v. Cellucci, 107 F.Supp.2d 61, 76 (D.Mass.2000) ("once a state opts to implement a waiver program and sets out eligibility requirements for that program, eligible individuals are entitled to those services and to the associated protections of the Medicaid Act"). Section 1396a(a)(8) provides:
[A state plan for medical assistance must] provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.

2. Discussion
a. Finite and Discretionary
Defendants first argue that "because participation in the HCB Waiver programs is both finite and discretionary, there is no entitlement either to participate in the Waiver programs or to receive financial reimbursement for any particular waiver services." (Doc. # 178 48.) The thrust of this argument is that Plaintiffs have no right to complain about not receiving medical 1239*1239 assistance with reasonable promptness because they have no legitimate claim of entitlement to such assistance under the Waiver. Defendants cite the report of their expert, which contains the following language:
The services and supports of all state HCB waiver programs, including those in Alabama, are not an entitlement for individuals just because they are eligible for Medicaid services.... [A] person must be fully enrolled in an HCB S waiver program before he or she is entitled to receive services offered through the waiver. Even then, the individual must have an assessed need for the service and the service must be determined necessary to assure his health and welfare.
(Doc. # 178 49) (quoting Doc. # 179 Ex. A, Affidavit of Cathy Anderson ¶ 24.) Defendants contrast this with their characterization of Plaintiffs' position: an assertion "that everyone who is on the waiting list is entitled to an HCB Waiver slot, and that the State Defendants must therefore unilaterally increase the cap on the HCB Waiver to provide unlimited financial reimbursements for everyone on that list." (Doc. # 178 50.) Defendants' argument stands on three legs:
i. The Cap
First, Defendants argue that because of the existence of a legal cap on the number of eligible Waiver participants, no one has a "right" to medical assistance under the Waiver.[17] However, the cap on Waiver participation is "simply a constraint on eligibility" and does not relieve Defendants of their statutory obligations with respect to individuals who would not exceed the cap and otherwise meet the eligibility requirements. Susan J., 254 F.R.D. at 454. "Individuals who apply after the cap has been reached are not eligible.... [T]he eligible individuals under the cap are entitled to waiver services. In short, the cap does not support the defendants' position that the state has total discretion in providing waiver services." Id. (quoting Boulet, 107 F.Supp.2d at 77-78). Therefore, the reasonable promptness provision applies to medical assistance if an individual can prove that he or she is entitled to a vacant slot or is allocated a slot and the individual is eligible for the assistance, but not when a person meets the preliminary eligibility requirements and a slot is not available. Id. Eligible individuals under the cap are entitled to medical assistance under the applicable Waiver and to the provision of such assistance with reasonable promptness.
Therefore, Defendants' argument is not fatal to Plaintiffs' claim, because the cap merely limits the eligible persons to those who (1) meet the preliminary requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of Waiver slots that exist.[18] The import of this holding is not, as Defendants assert,

that no one has a right to medical assistance when slots are available. To the contrary, some persons do have a right to assistance and to 1240*1240 provision of such assistance in compliance with the requirements of the Medicaid Act.
ii. Services are Limited
Second, Defendants argue that the services compensable under the HCB Waivers are limited. According to the uncontroverted affidavit testimony of Eranell McIntosh-Wilson, "the specific terms of Alabama's HCB Waivers have been negotiated between the Alabama Medicaid Agency and the federal Center for Medicaid and Medicare Services (CMS) pursuant to Section 1915(c) of the Social Security Act." (Doc. # 178 Ex. B ¶ 3.) This is in accord with the statutory requirements set out in 42 U.S.C. § 1396n(c). Once approved, the Waiver application becomes the controlling document. See 42 C.F.R. § 430.25(e)-(h); see also (Doc. # 178 Ex. B ¶ 28.) As a result, "Alabama's HCB Waivers are limited in scope, both with respect to the array of reimbursable services and with respect to the number of eligible recipients." (Doc. # 178 Ex. B ¶ 5.) With respect to the array of reimbursable services, the MR Waiver is limited to those listed in a catalogue submitted with the affidavit of Eranell McIntosh-Wilson.[19] The services available under the LAH Waiver program are the same, except that residential habilitation in a group home is not available under the LAH Waiver. According to Defendants' expert, Cathy Anderson, "[a] Person must be fully enrolled in an HCBS Waiver program before he or she is entitled to receive services offered through the Waiver. Even then, the individual must have an assessed need for the service and the service must be determined necessary to assure his or her health or welfare." (Doc. # 178 Ex A ¶ 24.)
It is clear from the above that the statutory scheme that established the HCB Waiver programs envisioned programs of limited scope. See Susan J., 254 F.R.D. at 447-48, 45556. In particular, the Waiver programs are limited in the variety of services offered through the Waiver program.[20] Defendants' Motions are due to be granted to the extent they seek dismissal of all or part of the claims of Plaintiffs who (1) seek services not provided for in the documents that govern the terms of the HCB Waiver programs, and/or (2) cannot prove that they are one of the eligible recipients.[21] Plaintiffs Motion is due to be denied it seeks the provision of assistance to ineligible persons.
1241*1241 iii. The Waiting List
Finally, Defendants argue that the use of the waiting list is irrelevant to Plaintiffs' claims. Plaintiffs challenge the administration of the waiting list as violative of the Medicaid Act's reasonable promptness requirement. They argue that Defendants have transgressed the dictates of the statute by allowing the waiting list to grow and allowing unserved persons to languish on the list. Defendants counter that the waiting list is entirely permissible because the number of eligible recipients far outstrips the number of available Waiver slots. The Court agrees with Defendants that the waiting list is an entirely permissible way to manage the significant population of persons who are otherwise eligible for medical assistance under the Waivers, but for whom no slot is available.[22] As discussed in the preceding sections, the Waiver statute provides eligible individuals in Alabama with an entitlement to medical assistance under the Waiver program and affords them the protections of the

Medicaid Act with respect to such assistance. Susan J., at 454 (citing Chiles, 136 F.3d at 714). Only those persons who both (1) meet the preliminary eligibility requirements for participation in the Waiver program, as indicated by their presence on the waiting lists, and (2) are entitled to one of the few Waiver slots are entitled to the provision of medical assistance with reasonable promptness. Id. The many persons who are on the waiting list, who evidently meet the preliminary eligibility requirements, but who are not entitled to one of the few available Waiver slots are not entitled to the provision of medical assistance with reasonable promptness. See id. Therefore, Plaintiffs who are not either actually in a Waiver slot or entitled to one have no legal basis to support their claim for the provision of assistance with reasonable promptness. Moreover, Alabama's use of a waiting list is not unusual. According to the uncontroverted testimony of Defendants' expert, it is "not unusual for states to have waiting lists for services." (Doc. # 178 Ex. A ¶ 21.) Therefore, the Court is satisfied that the existence of the waiting list is immaterial. Defendants' Motion is due to be granted to the extent Plaintiffs seek alterations to the administration of the waiting list and to the extent Plaintiffs claim an entitlement to the provision of medical assistance with reasonable promptness but are not either in a Waiver slot or entitled to one. Plaintiffs' Motion is due to be denied to the extent it seeks a remedy for the existence of a waiting list or for the provision of assistance to persons who are on the waiting list but do not meet the other eligibility requirements.
iv. Conclusion
Defendants are partially right when they say that "Plaintiffs are asking this Court to rewrite the terms of the HCB Waiver agreements negotiated between the federal CMS and the Alabama Medicaid Agency." (Doc. # 178 50.) This the Court can not and will not do. However, Defendants urge too much when they claim the terms of the Waiver documents doom Plaintiffs' reasonable promptness claims. The terms of the Waiver documents seem to preclude one remedy Plaintiffs appear to seek: expanded capacity in the Waiver programs. Nevertheless, there is a group of persons who are entitled to the provision of medical assistance under the Waiver program with reasonable promptness—those who (1) meet the eligibility 1242*1242 requirements for participation in the program, and (2) are entitled to one of the lawfully limited number of slots available in the Waiver program. Determining who among the Plaintiffs not currently in a Waiver slot is entitled to one of the slots would pose difficult problems of proof at trial, but this is a different problem entirely than wanting for a legally enforceable right altogether.
b. Financial Reimbursements and the Provision of Services
Defendants claim that the reasonable promptness claims of the individual plaintiffs lack sound legal basis because the documents that control the HCB Waiver programs require the state to provide financial reimbursement only, not services. They claim that if 42 U.S.C. § 1396a(a)(8) applies to HCB Waiver programs it only requires that the State provide prompt payment for services, not the prompt provision of services by private providers. They rely on Mandy R. v. Owens, 464 F.3d 1139, 1143-46 (10th Cir.2006), Westside Mothers v. Olszewski, 454 F.3d 532, 540-41 (6th Cir.2006), and Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003). Plaintiffs counter that this is a strained reading of the

statute and conflicts not only with the language in the statute, but also with the holdings of cases interpreting the statute.[23] Plaintiffs rely primarily on two district court cases, Sobky v. Smoley, 855 F.Supp. 1123 (E.D.Cal.1994), and McMillan v. McCrimon, 807 F.Supp. 475 (C.D.Ill.1992).[24]
i. Legal Framework
The United States Code provision that contains the reasonable promptness requirement, 42 U.S.C. § 1396a(a)(8), provides specifically that "all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness." (emphasis added). Therefore, the scope of any claim for the provision of services with reasonable promptness is set by the definition of "medical assistance," as that is all states are required to provide with reasonable promptness under the statute. The Tenth Circuit in Mandy R. explained the meaning of "medical assistance" as used in § 1396a(a)(8):
The Medicaid Act defines "medical assistance" as "payment of part or all of the cost of the [described] care and services." 42 U.S.C. § 1396d(a). The statutory definition mentions payment for, but not provision of, services. In other words, "the statutory reference to `assistance' appears to have reference to financial assistance rather than to actual medical services." Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003); see also Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006) (concluding that 42 U.S.C. §§ 1396a(a)(8) and (10) do not 1243*1243 "require the State to provide medical services directly" but rather require only financial assistance). On its face, then, the Medicaid Act requires any state participating in Medicaid to pay promptly and evenhandedly for medical services when the state is presented with the bill.
464 F.3d at 1143. However, a footnote to this excerpted paragraph notes that, without addressing the issue, two other circuits, including the Eleventh, appear to have treated the statute as requiring the provision of actual services. Id. n. 2 (citing Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir.1998)); see also Sabree v. Richman, 367 F.3d 180, 181 n. 1 (3d Cir.2004) ("There appears to be a disagreement among our sister courts of appeals as to whether, pursuant to Medicaid, a state must merely provide financial assistance to obtain covered services, or provide the services themselves.")(citing Chiles, 136 F.3d at 709-714).
In Westside Mothers, the Sixth Circuit also addressed the meaning of "medical assistance" for purposes of § 1396a(a)(8). 454 F.3d at 540. Plaintiffs in that case argued that §§ 1396a(a)(8) and 1396a(a)(10) mandated the actual provision of, or arrangement for, certain medical services.[25] After noting the Eleventh Circuit overlooked the issue in Doe v. Chiles, and after examining the text and structure of the statute, the Sixth Circuit held that, because "the Medicaid Act explicitly defines the term "medical assistance," as used in § 1396a(a)(8), "`[m]edical assistance' means `payment of part or all of the cost of the [enumerated] services' to eligible individuals."" Westside Mothers, 454 F.3d at 540 (citing 42 U.S.C. § 1396d(a)); see also Schott v. Olszewski, 401 F.3d 682, 686 (6th Cir.2005) ("The Act defines `medical assistance' as `payment of part or all of the cost of the [covered] care and services... for individuals.'"). Likewise, the Seventh Circuit in Bruggeman noted in dicta: "the statutory reference to "assistance" [in § 1396a(a)(8)] appears to have reference to financial assistance rather than to actual medical services, though the distinction was missed in

Bryson v. Shumway, 308 F.3d 79, 81, 88-89 (1st Cir.2002), and Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir.1998). Medicaid is a payment scheme, not a scheme for stateprovided medical assistance, as through state-owned hospitals."[26] 324 F.3d at 910.
As detailed in these cases, the Eleventh Circuit has never specifically spoken to the definition of "medical assistance." But, in Doe v. Chiles, the Circuit, without deciding as much, treated § 1396a(a)(8) as requiring the actual provision of services. See Doe, 136 F.3d at 714, 717. In Doe, the Eleventh Circuit affirmed the determination of the trial court that "the Florida Department of Health and Rehabilitative Services w[as] failing to furnish Medicaid assistance with `reasonable promptness' to eligible individuals." Id. at 711. The plaintiffs in that case complained that they were illegally placed on waiting lists for entry into intermediate care facilities and claimed that the defendants were causing 1244*1244 unreasonable delays regarding the provision of intermediate care facility services in violation of the reasonable promptness requirement of § 1396a(a)(8). The Eleventh Circuit noted the holding of the District Court that "`Medical assistance under the plan' has been defined as medical services. The state is obliged to furnish medical services only to the extent that such placements are offered in the Federal Health Care Financing Agency ("HCFA") approved State plan." Id. at 711. The defendants in Doe conceded that Florida's HCFA State approved plan did provide for placement in ICF/MR facilities.[27] After noting, as this Court has, that once a state elects to provide a service that service becomes part of the State Medicaid plan and is subject to the requirements of Federal law, the Court construed the defendants' admission that they failed to conform with the provisions set forth in that statute as an admission of unreasonable delay in placing developmentally disabled persons into ICF/MR facilities. Id. at 712. This holding appears to rest on the logic that, because Florida elected in its HCFA approved state plan to provide services rather than provide mere payment for services, the state was bound by § 1396a(a)(8) to provide those services with reasonable promptness. The Circuit did not consider whether, absent such a term in the HCFA approved state plan, the term "medical assistance" in § 1396a(a)(8) meant the provision of services or the provision of payment for services.
This Court is certain that if the Eleventh Circuit were to consider (as it surely will) the meaning of "medical assistance" in the context of this case, that it would hold that "medical assistance" means payment for Waiver services, not the actual provision of Waiver services.[28] As the Sixth, Seventh, and Tenth Circuits have pointed out, the statute is clear: "The Medicaid Act defines `medical assistance' as `payment of part or all of the cost of the [described] care and services.'" Mandy R., 464 F.3d at 1143 (quoting 42 U.S.C. § 1396d(a)); Westside Mothers, 454 F.3d at 540-41; Bruggeman, 324 F.3d at 910. This definition comports with the nature of Medicaid itself—Medicaid is a payment scheme, not a scheme for state-provided medical assistance. Bruggeman, 324 F.3d at 910. Additionally, the Eleventh Circuit's reasoning in Doe that Florida's election, embodied in its HCFA approved State plan, to actually provide ICF/MR services bound it to provide those services with reasonable promptness is inapposite here. According to the uncontroverted facts, the HCB Waiver documents in this case require the State to compensate eligible 1245*1245 persons for all services to which they are entitled. Therefore, in light of the clarity of the language of the Medicaid Act and the unanimity of the Courts of Appeal that have considered the issue, it is the holding of this Court that, for purposes of § 1396a(a)(8), the term medical assistance means the payment for services, not the actual provision of such services, at least where the governing state plan documents do not require the state to

provide the services themselves. Consequently, Defendants' Motion is due to be granted to the extent it seeks dismissal of individual plaintiffs' claims for the provision of services with reasonable promptness, rather than payment for services with reasonable promptness.[29] Plaintiffs' Motion, which seeks an injunction ordering Defendants to provide them with Waiver services is therefore due to be denied.
ii. Discussion
Having prevailed on the foregoing issue of law, Defendants argue that there is no evidence that the State has failed to provide all Plaintiffs reimbursement for services with reasonable promptness. In response, Plaintiffs persist in their argument that § 1396a(a)(8) requires the provision of services with reasonable promptness. Consequently, throughout their briefs on the pending dispositive motions, Plaintiffs seek only the provision of services with reasonable promptness. Indeed, the language of the Third Amended Complaint casts individual plaintiffs' claims as ones for the provision of services. For example, in its opening, the complaint states that "Plaintiffs seek appropriate residential services, residential placement, day habilitation programs, and/or other therapeutic and habilitative services ...." (Doc. # 107 ¶ 1.) In fact, the relevant portions of the third amended complaint are all cast in terms of the provision of services. (E.g. Doc. # 107 ¶¶ 1, 109, 120, 123, 127.) The linchpin of Count I, which is the reasonable promptness count, is an affirmative allegation that "Medical Assistance benefits include, at the option of the state, ICF/MR services and/or waiver services." (Doc. 3 107 ¶ 127.) However, as previously detailed, "[t]he Medicaid Act defines `medical assistance' as `payment of part or all of the cost of the [described] care and services.'" Mandy R., 464 F.3d at 1143 (quoting 42 U.S.C. § 1396d(a)); Westside Mothers, 454 F.3d at 540-41; Bruggeman, 324 F.3d at 910. The Count builds on this erroneous statement of law with allegations like: "[a]s a condition of its participation in the [waiver] program, [the State] must ensure that services which are necessary for eligible persons with mental retardation and other developmental disabilities are provided to them in a reasonably prompt manner," (Doc. # 107 ¶ 128), and "defendants must not only allow individual plaintiffs to apply for residential placement, day habilitation services, and other related supports and services, but must furnish these services promptly and without any delay caused by the agency's administrative procedures." (Doc. # 107 ¶ 129.)[30] As should be clear from this 1246*1246 juxtaposition of allegations and governing law, Plaintiffs' claim in Count I and the evidence developed to support it seek to remedy purported violations of rights not created by the reasonable promptness provisions of the Medicaid Act.
With these allegations as the basis of their claim, it is no surprise that plaintiffs did not adduce evidence that the State failed to provide the payment for services with reasonable promptness. At least where the governing plan documents are not to the contrary, the Medicaid Act requires states to provide reasonably prompt payment for covered services to all persons who are either in a Waiver slot or are entitled to one of the legally limited number of Waiver slots available. Plaintiffs developed this particular claim on the theory that the Medicaid Act required states to provide services with reasonable promptness to everyone who has been determined to meet the preliminary eligibility requirements. Therefore, Plaintiffs' averments and evidence adduced in support of this claim are mismatched to what the Act requires the State to provide with reasonable promptness. Plaintiffs are unable to designate specific facts showing that there is a genuine issue for trial. They have provided no evidence that Defendants have failed to provide reasonably

prompt payment for covered services to eligible persons as defined in this Memorandum Opinion and Order. Therefore, Defendants' Motion is due to be granted to the extent it seeks dismissal of Plaintiffs' claims for the reasonably prompt payment for services.[31]
c. Plaintiffs' Private Right of Action to Enforce the Reasonable Promptness Requirement of 42 U.S.C. § 1396a(a)(8)
Defendants claim that Plaintiffs lack a private right of action to enforce the terms of the HCB Waiver documents. This final challenge to the substance of Plaintiffs' reasonable promptness claim merits little discussion because this Court has decided the determinative issues of law before.
Previously, this Court was required to decide this issue because Defendants raised it in opposition to Plaintiffs' Motion for Class Certification, claiming that named plaintiffs lacked standing to sue under § 1983 because 42 U.S.C. § 1396a(a)(8) did not create legally enforceable rights. This Court first noted that
the Medicaid Act requires states provide some services and permits them to provide other services. The latter group is referred to as "optional services." The HCB Waiver programs are optional services. While it is true that the Waiver program is governed by an agreement between the state and the federal government, when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is 1247*1247 subject to the requirements of federal law.
Susan J., 254 F.R.D. at 451 (citing Chiles, 136 F.3d at 714; Boulet, 107 F.Supp.2d at 76) (internal quotation marks omitted). Hence, because the HCB Waiver documents are part of the state's Medicaid plan, the execution of the HCB Waiver program is subject to the requirements imposed on states by the Medicaid Act. For present purposes, the significance of this is that "Medicaid assistance must be furnished with reasonable promptness to all eligible individuals," and that the statute that creates this requirement, 42 U.S.C. § 1396a(a)(8), creates privately enforceable federal statutory rights.[32] Therefore, Defendants' Motion is due to be denied to the extent it argues 42 U.S.C. § 1396a(a)(8) does not create privately enforceable rights.
E. Remaining Class Claims
1. Subclass Two
Subclass Two contains all persons with mental retardation who have applied for services compensable under Alabama's Home and Community Based Waiver Programs but who have been adjudged ineligible and/or denied services without notice and opportunity for a hearing. The origin of the rights members of this subclass seek to vindicate is 42 U.S.C. § 1396a(a)(3), which requires states to "provide for granting an opportunity for a fair hearing

before the State agency to any individual whose claim for medical assistance under the plan is denied ...."[33] As this Court has previously held:
State agencies must provide individuals with an opportunity for a hearing before the agency when a claim for medical assistance is denied or is not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.206, 431.210; Cramer v. Chiles, 33 F.Supp.2d 1342, 1351-52 (S.D.Fla.1999); Bryson v. Shumway, 177 F.Supp.2d 78, 81 (D.N.H.2001). Additionally, State administration of Medicaid programs must meet the constitutional due process minimums set out in Goldberg v. Kelly, 397 U.S. 254, 267-71, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
The implementing regulations specify the content of the notice and the requirements for a fair hearing. The notice must inform the beneficiary of the action the agency intends to take and the reason for the action, of the facts and law that support the action, and of the right to a fair hearing. 42 C.F.R. § 431.210; see also id. § 431.206(b) (requiring agencies to inform every applicant or recipient in writing of the right to a hearing and the method by which one may obtain a hearing any time an individual applies for Medicaid or when an agency takes action affecting benefits).
These procedural protections are applicable to State's Medicaid Plans, which includes the HCB Waiver program. See Chiles, 136 F.3d at 714 ("when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law."); Parry v. Crawford, 990 F.Supp. 1250, 1258-59 (D.Nev.1998); King v. Fallon, 801 F.Supp. 925, 937-38 (D.R.I.1992).
254 F.R.D. at 456-57 (internal footnotes omitted).[34]
1248*1248 Defendants argue that because participation in HCB Waiver programs is limited, needs-based, fact-intensive, and judgment-laden, no applicant has an absolute entitlement to participation in the program, and so no process is due to Plaintiffs.[35] They compare HCB Waiver services to government cheese, arguing that because there is no statutory entitlement to government cheese, there is no right to apply for it, nor is there any problem with being required to wait in line. This argument is wholly without merit and unduly callous. Defendants' attempt to analogize the needs of Alabama's disabled citizens to handouts of "government cheese" offends the Court's sense of justice and fair play.
The unarticulated basis for this argument seems to be the holding of Board of Regents v. Roth that a person claiming a property interest in a federal benefit "must have more than an abstract need or desire for it .... He must ... have a legitimate claim of entitlement to it." 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). While the Court is not altogether convinced that there is no constitutional property interest at stake here,[36] Defendants' arguments ignore the most obvious source of the right: § 1396a(a)(3). That statute plainly requires states to "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied...." 42 U.S.C. § 1396a(a)(3) (emphasis added). What the statute does not say is that the "any individual whose claim for medical assistance under the plan" has been denied must also have a property interest in that assistance in order to get a fair hearing. Therefore, Defendants' Motion is due to be denied to the extent it seeks dismissal of the claims of Subclass Two.

2. Subclass Three
Subclass Three contains all persons with mental retardation who have applied for services compensable under Alabama's Home and Community Based Waiver Programs and have not received a reasonably prompt claims determination. The origin of the rights members of this subclass seek to vindicate is 42 U.S.C. § 1396a(a)(8) and its implementing regulations. As this Court has said once before, 1249*1249 "the standard for informing applicants of their eligibility for Medicaid services is `reasonable promptness.'" Susan J., 254 F.R.D. at 452 (quoting Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.2007)). 42 C.F.R. § 435.911 provides that a state agency "must establish time standards for determining eligibility and inform the applicant of what they are. These standards must not exceed ... [n]inety days for applicants who apply for Medicaid on the basis of disability." See also Susan J., 254 F.R.D. at 452. As this Court previously held, "[i]t is plain that all persons who apply for HCB Waiver services enjoy the [procedural] protection of § 1396a(a)(8). Applicants are entitled to have their claims determined with reasonable promptness." Id. at 455. Defendants have presented no arguments that undermine the claims of the members of Subclass Three. Therefore, to the extent Defendants Motion seeks to have the claims of Subclass Three dismissed, their Motion is due to be denied.
VII. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED as follows:
(1) Defendants' Motions (Doc. ## 127, 152, 172) for Summary Judgment are DENIED to the extent they argue Plaintiffs lack standing;
(2) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks dismissal of all claims against the Alabama Department of Mental Health and Mental Retardation and all of Plaintiffs' claims against that defendant are DISMISSED;
(3) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks to prevent this Court from compelling state officials to comply with state law;
(4) Defendants' Motion for Summary Judgment as to All Claims Brought by Paul B. (Doc. # 127) is DENIED;
(5) Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is GRANTED to the extent it seeks to have the claims of Elizabeth A. and Charles P. dismissed and all claims brought by Elizabeth A. and Charles P. are DISMISSED;
(6) Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is DENIED to the extent it seeks dismissal of the claims of Angie D. and Susan J.;

(7) Defendants' Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is DENIED as moot to the extent it seeks to have the claims of Nicholas A. dismissed;
(8) Defendants' Motion for Summary Judgment (Doc. # 172) is DENIED to the extent it seeks to have the claims of Tara L., Beverly W., Krystal W., Brishette W. and Rico C. dismissed;
(9) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks to have the claims of Shavon H. dismissed and all claims brought by Shavon H. are DISMISSED;
(10) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks to have Count II dismissed;
(11) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks to have Count IV dismissed;
(12) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks dismissal of Plaintiffs' 1250*1250 claims that seek placement in an ICF/MR institution;
(13) Defendants' Motions (Doc. # # 127, 152, 172) are GRANTED to the extent they seek dismissal of all or part of the claims of Plaintiffs who (1) seek services not provided for in the documents that govern the terms of the HCB Waiver programs, and/or (2) cannot prove that they are one of the eligible recipients;
(14) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks dismissal of claims of Plaintiffs that seek alterations to the administration of the waiting list and to the extent Plaintiffs claim an entitlement to the provision of medical assistance with reasonable promptness but are not either in a Waiver slot or entitled to one;
(15) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks dismissal of Plaintiffs' claims for the provision of services with reasonable promptness, rather than payment for services with reasonable promptness;
(16) Defendants' Motion for Summary Judgment (Doc. # 172) is GRANTED to the extent it seeks dismissal of Plaintiffs' claims for the reasonably prompt payment for services;
(17) Plaintiffs' Motion for Partial Summary Judgment on "Reasonable promptness" Claim (Doc. # 211) is DENIED;
(18) Defendants' Motion for Summary Judgment (Doc. # 172) is DENIED as moot to the extent it seeks dismissal of Plaintiffs' claims for failure to join indispensable parties;
(19) Defendants' Motion for Summary Judgment (Doc. # 172) is DENIED to the extent it argues 42 U.S.C. § 1396a(a)(8) does not create privately enforceable rights;

(20) Defendants' Motion for Summary Judgment (Doc # 172) is DENIED to the extent it seeks dismissal of the claims of Subclass Two; and
(21) Defendants' Motion for Summary Judgment (Doc. # 172) is DENIED to the extent it seeks dismissal of the claims of Subclass Three.
After all of this, the only claims that remain are those of Subclasses Two and Three. Therefore, it is further
ORDERED that Plaintiffs shall file, within 14 days of the date of this Memorandum Opinion and Order, a list, with facts and citations to legal authority as necessary, of the remaining named Plaintiffs who represent Subclass Two and a list, again with facts from the record and citations to legal authority as necessary, of the remaining named Plaintiffs who represent Subclass Three. Defendants shall file their response, if any, within 7 days of Plaintiffs' initial filing. The claims of all Plaintiffs not specifically dismissed by this Memorandum Opinion and Order who are not subclass representatives will thereafter be dismissed by order of this Court.
[1] The Court also terminated John Doe, a pseudonymous defendant, on April 9, 2007.
[2] Each of these claims proceeds though the vehicle of 42 U.S.C. § 1983.
[3] In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981
[4] In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981
[5] States and their agencies and departments enjoy Eleventh Amendment protection regardless of the nature of the relief sought. See, e.g., Fouche, 713 F.2d at 1523 (citing Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 78 L.Ed. 145 (1933) ("Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State")); Harden, 760 F.2d at 1163 (noting that in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the Supreme Court "held that actions for injunctive relief against a state or its instrumentality were also barred by the Eleventh Amendment."); See also 3 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation § 9:48 (4th ed. 2004) ("States and their "alter ego" agencies may not be sued in federal court directly in their own names either for damages or for declaratory and injunctive relief by virtue of the Eleventh Amendment.").
[6] Congress has not abrogated Eleventh Amendment immunity for § 1983 cases like this one. See Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir.1990). Neither has Alabama waived its immunity. E.g., Pugh, 438 U.S. at 782, 98 S.Ct. 3057.
[7] None of this has any effect, of course, on the official capacity claims against the individual defendants for prospective injunctive relief, as those claims fit neatly within the Ex parte Young doctrine. Ex parte Young, 209 U.S. 123, 156, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Wu v. Thomas, 863 F.2d 1543, 1550 (11th Cir. 1989); Parker v. Williams, 862 F.2d 1471, 1475 (11th Cir.1989).
[8] Alabama has not waived its state sovereign immunity. Ala. Const. art.I, § 14 ("[t]he State of Alabama shall never be made a defendant in any court of law or equity").
[9] Defendants conflate the concepts of standing and mootness when they argue Plaintiffs lack standing. (Doc. # 178 63-65.) As the Supreme Court has explained, "the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness)." Friends of the Earth, Inc. v. Laidlaw Evntl. Serv., 528 U.S. 167, 189-90, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189 n. 16 (11th Cir.2007). In other words, standing is determined as of when the case is filed. See Laidlaw, 528 U.S. 167, 120 S.Ct. 693. Here, Defendants do not dispute that Plaintiffs had standing when the case was filed. Rather, they argue that Plaintiffs' claims are moot because of the provision of Waiver services subsequent to the commencement of this litigation. Therefore, Defendants' motions for summary judgment are due to be denied to the extent Defendants argue Plaintiffs lack standing.
[10] Defendants' claims that because to some extent Plaintiffs intend to seek services at some unspecified time in the future, their claims are not ripe lacks merit. Plaintiffs' future need for services is not the basis of their claims. To the contrary, their alleged previous deprivations are the basis of their claims. Their claimed future needs simply allow the case to be heard even if the claims would otherwise be moot, as the future needs create a probability that the same Plaintiff will be subjected to the same wrongdoing in the future. This exception to the mootness doctrine is explained more fully below.
[11] In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
[12] The claims of Nicholas A. were voluntarily dismissed by a prior order of this court. (Doc. # 215.) Therefore, Defendants' Motion is due to be dismissed as moot to the extent it seeks to have the claims of Nicholas A. dismissed.
[13] In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
[14] The distinction between Named Plaintiffs who are class members and Plaintiffs who are not members of the certified classes proves unimportant to the decision of these Motions, as the Court does not have information that shows that the status of any Named Plaintiff changed between the class certification and the date of this Opinion and Order.
[15] ICF/MR services are medical services from an intermediate care facility for persons with mental retardation. See, e.g., Sabree v. Richman, 367 F.3d 180 (3d Cir.2004). As discussed more fully above, HCB Waiver services are provided in home and community based settings.
[16] Nothing in this Section is intended to affect the claims of Subclasses Two and Three.
[17] The cap itself is clearly proper. See 42 U.S.C. §§ 1396n(c)(9), 1396n(c)(10); 42 C.F.R. § 441.303(f)(6) ("The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. The number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment."); Mandy R. v. Owens, 464 F.3d 1139, 1142 (10th Cir.2006); see also Susan J., 254 F.R.D. at 454 n. 12.
[18] To be clear, even eligible individuals are only entitled to those services provided for under the controlling HCB Waiver documents, as detailed in the next subsection.
[19] The Medicaid HCBS MR Waiver Service Catalog provides that the following services are available under the MR Waiver: personal care services, respite care, residential habilitation, day habilitation, prevocational services, supported employment services, environmental accessability adaptations, skilled nursing, specialized medical equipment and supplies, adult companion services, assistive technology, speech and language therapy, physical therapy, occupational therapy, behavior therapy, community specialist services, and crisis intervention.
[20] The limitation on the number of persons served, i.e. the cap, was dealt with primarily in the previous subsection.
[21] As this Court previously held, "eligible persons... are those who (1) meet the requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of waiver slots that exist. In other words, if a slot is not available, a person is not eligible, ... even if that person otherwise meets the eligibility requirements." Susan J., 254 F.R.D. at 454.

Plaintiffs claim that "it is undisputed that the defendants have already determined that at least ten of the eleven plaintiffs are eligible for the services at issue, [a]nd an issue of fact exists as to the eleventh plaintiff, Beverly W." (Doc. # 187 at 24.) Defendants have determined that at least ten of the eleven plaintiffs meet the preliminary eligibility requirements for participation in the HCB Waiver programs, not that each of the ten is entitled to one of the lawfully limited number of Waiver slots.
[22] This not to say that placing an individual on the waiting list when they meet the preliminary eligibility requirements and are entitled to a Waiver slot is not a violation of such an individual's right to the provision of medical assistance with reasonable promptness under the Medicaid Act. See Boulet, 107 F.Supp.2d at 79-80.
[23] Plaintiffs also argue that Defendants' interpretation of the statute renders § 1396a(a)(8), as well as the regulations that require reasonable promptness, superfluous, because other statutes and regulations set forth specific time limits for payment of providers. Plaintiffs do not point to the other statutes and regulations, and the Court is not convinced by this argument. As detailed below, Defendants' interpretation actually makes the most sense in light of the language, nature, and purposes of the Medicaid Act, and meshes most consistently with the implementing regulations. See Westside Mothers, 454 F.3d at 540-41 ("The regulations that implement these provisions also indicate that what is required is a prompt determination of eligibility and a prompt payment to eligible individuals to enable them to obtain the necessary medical services.") (citing 42 C.F.R. §§ 435.911, 435.930).
[24] These cases are not persuasive, and, in light of the reasoning of the following cases and the clarity of the Medicaid Act, the Court finds that they do not merit further discussion.
[25] The Sixth Circuit framed the issue this way: "Thus, the issue presented by this claim is whether the individual rights to `medical assistance' created by these provisions impose an obligation on the State to provide services directly." 454 F.3d at 539-40.
[26] The Seventh Circuit also noted that
The regulations that implement [§ 1396a(a)(8)] indicate that what is required is a prompt determination of eligibility and prompt provision of funds to eligible individuals to enable them to obtain the covered medical services that they need...; a requirement of prompt treatment would amount to a direct regulation of medical services.
324 F.3d at 910.
[27] Federal law did not require Florida to provide ICF/MR services in order to participate in the Medicaid Program. Doe, 136 F.3d at 714 (citing 42 U.S.C. §§ 1396a(a)(10), 1396a(a)(31)).
[28] This Court, like our Circuit Court in Doe v. Chiles, see 136 F.3d at 711, was less precise than it could have been with its use of the words "Waiver services" or "services" in its prior order granting in part and denying in part class certification. See Susan J., 254 F.R.D. at 451-57. Neither this Court when ruling on class certification nor the Eleventh Circuit when deciding Doe considered the distinction detailed in the preceding paragraphs. What this Court meant by Waiver services was the "medical assistance" provided for in the provisions of the Medicaid Act governing Waiver programs. As is apparent both from the plan language of 42 U.S.C. § 1396d(a), which defines "medical assistance" as financial reimbursement, and the unanimity of the Courts of Appeal that have actually considered the issue, state HCB Waiver plans need only provide medical assistance in the form of financial reimbursement for services covered under the Waiver (i.e. "Waiver services") with reasonable promptness. State HCB Waiver plans are not required to actually provide Waiver services with reasonable promptness; a State must only provide medical assistance, i.e. financial reimbursement, with reasonable promptness.
[29] Defendants also argue that, to the extent Plaintiffs seek to compel delivery of additional Waiver services, they have failed to join indispensable parties. Because the Court finds that there is no right of action against Defendants for the provision of services, this portion of Defendants' motion is due to be denied as moot.
[30] The evidence offered in support of these allegations is also focused on Defendants' failure to provide services. For example, Plaintiffs introduce the section of their brief that details the circumstances of the named Plaintiffs by stating: "defendants have failed to provide individual plaintiffs with services in residential placements and/or day habilitation programs." (Doc. # 187 13.) As specific examples of this problem, Plaintiffs point to individuals who "seek[] transportation and respite services" (Susan J.), have "submitted application[s] for day habilitation and

residential services" (Krystal W.), are "not receiving needed waiver services" (Brishette W.), seek "other waiver services, including, but not limited to, respite services" (Shavon H.), and who are "not receiving said requested services" (Tara L.). (Doc. # 187 14-17.) Just as the averments in the complaint do not allege problems with the prompt payment for waiver services to eligible persons, as required by the Medicaid Act, the facts offered to support Plaintiffs' grievances evince no problem with the prompt provision of reimbursement for Waiver services to eligible persons.
[31] Defendants also argue that to the extent Plaintiffs seek to compel the provision of Waiver services, they have failed to join indispensable parties, specifically the various 310 Boards. Because there is no cause of action for the provision of services with reasonable promptness, this argument is moot, and Defendants' Motion is due to be denied with respect to Plaintiffs' failure to join indispensable parties.
[32] The Court incorporates the full analysis of this issue from its previous decision by reference, and anyone needing a full elucidation on the Court's position on the matter should reference the prior Memorandum Opinion and Order. See Susan J., 254 F.R.D. at 451-55.
[33] Plaintiffs also argue that these procedural rights are protected by the due process clause of the Fourteenth Amendment.
[34] In so holding, the Court thought it necessary to make explicit its awareness that federal regulations do not of their own force create rights enforceable through § 1983 in this Circuit. Susan J., 254 F.R.D. at 457 n. 17; see also Harris v. James, 127 F.3d 993, 1008-09 (11th Cir. 1997); Kissimmee River Valley Sportsman Ass'n v. City of Lakeland, 250 F.3d 1324, 1326-27 (11th Cir.2001). As detailed more fully in the prior Memorandum Opinion and Order, the Court determined that these regulations merely "further define[] or fleshe[] out the content of [a] right," such that § 1396a(a)(3) "`in conjunction with the regulation created a federal right as further defined by the regulation" 254 F.R.D. at 457 n. 17 (quoting Harris, 127 F.3d at 1009). This is consistent with prior holdings of the Eleventh Circuit. Cf. Doe, 136 F.3d at 717 (holding that § 1396a(a)(8) further defines the contours of a statutory right to reasonably prompt provision of assistance).
[35] The arguments are not in name directed to the claims of Subclass Two because this Court had not certified the subclasses prior to the submission of the Motion now under consideration. Nevertheless, the arguments are directed at claims brought pursuant to § 1396a(a)(3), which are now the claims of Subclass Two.
[36] In its prior decision, this Court stated: "State administration of Medicaid programs must meet the constitutional due process minimums set out in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)." Susan J., 254 F.R.D. at 456-57. Because the statutory right is so clear, the Court will proceed without deciding whether Plaintiffs have a constitutional property interest in HCB Waiver benefits. As the Court has pointed out before, 42 C.F.R. § 431.205(d) requires that a State's Medicaid hearing system "must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and any additional standards set forth in this subpart." Susan J., 254 F.R.D. at 456-57, n. 18.

 
 Susan J. v. Riley, 254 F.R.D. 439 (2008)
254 F.R.D. 439 United States District Court,
M.D. Alabama, Northern Division.
SUSAN J., et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
No. 2:00–CV–918–MEF. | Oct. 24, 2008.
Attorneys and Law Firms
*444 Deborah Ann Mattison, Rachel Lee McGinley, Wiggins Childs Quinn & Pantanzis, PC, Robert Russell Kracke, Sr., Kracke & Thompson, LLC, Birmingham, AL, James Arnold Tucker, James Patrick Hackney, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Plaintiffs.
William G. Parker, Jr., State Of Alabama, Office of the Attorney General, Montgomery, AL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, Chief Judge.
I. INTRODUCTION
Eleven named plaintiffs seek to represent a class of disabled persons. The Defendants are Bob Riley, as Governor of the State of Alabama, John Houston, as Commissioner of Mental Health and Mental Retardation, and The Alabama Department of Mental Health and Mental Retardation. Plaintiffs challenge the way Defendants operate a Medicaid program known as the Home and Community Based Waiver Program (“HCB Waiver”). Specifically, they allege Defendants have: (1) violated the Medicaid Act by failing to provide services to eligible individuals with “reasonable promptness;” (2) violated the Medicaid Act by failing to provide “comparable” services to participants in the Waiver program; (3) violated the Medicaid Act by failing to provide an application process that meets the requirements of the Act; and (4) violated Plaintiffs Fourteenth Amendment substantive due process rights.
There are currently six motions under submission:

Plaintiffs’ Amended Motion for Class Certification (Doc. # 128), four Motions for Summary Judgment (Doc. # # 127, 152, 172, 211), and Plaintiffs’ Motion for Reconsideration (Doc. # 218). The issues raised in the Motions for Summary Judgment partially overlap the issues raised in the Motion for *445 Class Certification. The Motion for Reconsideration raises distinct issues. Because the Parties and the Court expect an interlocutory appeal of the class certification decision pursuant to Rule 23(f),1 the Court in this Opinion and Order decides only the Motion for Class Certification.2 For the reasons set forth in this Memorandum Opinion and Order, the Motion is due to be GRANTED in part and DENIED in part. It is due to be granted with respect to Subclasses Two and Three and due to be denied with respect to Subclass One.

1

This Motion for Class Certification raises issues that

the Eleventh Circuit has not yet decided.

2

Interlocutory appeals from class certification decisions

do not automatically stay proceedings in the District

Court. Fed.R.Civ.P. 26(f). The Court intends to rule on

the other motions currently under submission and, if the

Eleventh Circuit exercises its discretion to entertain the

interlocutory appeal, stay the proceedings. If the parties

decline to appeal or if the Circuit declines to hear the

appeal, trial will go forward as scheduled.

II. JURISDICTION AND VENUE
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs bring their claims pursuant to 42 U.S.C. § 1396 et seq., § 1983, and the Due Process Clause of the Fourteenth Amendment. The parties do not contest venue and personal jurisdiction, and the Court finds a sufficient basis for each.
III. FACTS AND PROCEDURAL BACKGROUND
A. Overview of the Parties and Claims
Named Plaintiffs seek to represent a group of adults with mental retardation who are unable to care fully for themselves and require varying degrees of care and treatment. The Defendants are Bob Riley, in his official capacity as Governor of the State of Alabama, the Alabama Department of Mental Health and Mental
1

Susan J. v. Riley, 254 F.R.D. 439 (2008)
Retardation (the “Department”), and John M. Houston (“Houston”), in his official capacity as Commissioner of the Department. Plaintiffs claim that the “State of Alabama, in violation of its obligations under federal and state law, has continually failed to provide necessary Medicaid services in a timely or ‘reasonably prompt’ manner as required by federal law.” (Doc. # 128 2.) Plaintiffs seek declaratory and injunctive relief.

B. Proposed Class Definition
Plaintiffs seek certification of the following three subclasses:3

3

These three subclasses track very closely the three

subclasses offered in dicta by the Eleventh Circuit in

Prado–Steiman v. Bush, 221 F.3d 1266, 1282 (11th

Cir.2000).

Subclass One: All persons with mental retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs and who have been determined to be eligible for services but who have not received them with reasonable promptness or have received inadequate or inappropriate services.
Subclass Two: All persons with mental retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs but who have been adjudged ineligible and/or denied services without notice and opportunity for hearing.
Subclass Three: All persons with mental retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs and have not received a reasonably prompt claims determination.
(Doc. # 128 1–2.)
C. Overview of the Medicaid Waiver Program
Medicaid is a joint federal and state program under Title XIX of the Social Security Act. 42 U.S.C. § 1396 et seq. The federal government reimburses a portion of the expenditures incurred by states that elect to furnish medical assistance to individuals with mental retardation. States that elect to participate in the program must submit

a plan to the U.S. Department of Health and Human Services that details the programs and funding requirements for which Medicaid funds will be used. Alabama has elected to participate *446 in the program and has submitted a state plan.
State plans must provide certain specified health care services, such as inpatient hospital services, certain outpatient services, and physicians’ services. In addition to the mandatory services, a state may also elect to provide optional services such as residential placements. The HCB Waiver programs are optional services.
States that elect to provide optional services must provide them to all eligible persons in the state. Id. § 1396a(a)(8). The services must also be “furnished with reasonable promptness.” Id. Eligible recipients generally must receive services that are comparable in amount, duration, and scope to those services received by other eligible recipients. Id. § 1396a(a)(10). The Medicaid Act does, however, allow states to waive the comparability requirements. Id. § 1396n(c)(3). Alabama has waived the comparability requirements.

D. Organization of Alabama’s Medicaid Waiver Programs4

4

The factual summaries in the parties’ briefs referred to

the detailed affidavits of Fordyce Mitchel, the Director

of Mental Retardation Community Programs in the

Department’s Division of Mental Retardation Services

(Doc. # 105–2), and Eranell McIntosh–Wilson, the

Special Advisor to Houston (Doc. # 129–2). The Court

will cite to these affidavits throughout this Section.

The Department develops and manages services through three clinical divisions: Mental Health, Mental Retardation Services, and Substance Abuse. (Doc. # 105– 2 ¶ 2.) The Division of Mental Retardation Services (the “Division”) oversees the payment and day-to-day management of the Medicaid programs that are at issue in this case. (Id. ¶ 2.) The Division has a central office and five regional offices. (Id. ¶ 6.) The central office works with the Alabama Medicaid Agency to “write, amend, and renew the Waiver Programs, resolve problems, and administer the quality assurance processes required by the Medicaid Agency. In addition, the central office develops systems, policies and procedures, oversees contracts, develops and presents the budget, and sets directions and goals for the community based system in concert with input from a standing group of stakeholders....” (Id. ¶ 6.)
The Division’s central and regional offices generally do not directly provide services, but rather contract for services with private vendors. (Id. ¶ 4.) There are “limited exceptions,” such as crisis situations, where the regional offices provide services directly. (Id. ¶ 7.) The vendors
2

Susan J. v. Riley, 254 F.R.D. 439 (2008)
provide several services including “case management; residential and day habilitation; supported and prevocational employment; respite in and out of home; personal and companion care in any setting; physical, occupational, speech and behavior therapy; nursing care; environment adaptation; specialized equipment; personcentered plan facilitation and crisis intervention.” (Id. ¶ 4.)
Persons with mental retardation can apply for waiver services by contacting their county’s “310 Board,” which is public nongovernmental agency that serves as an access point to the state’s waiver programs. (Id. ¶ 8–9.) The 310 Boards take their name from the legislation that created them, namely Acts 1967, No. 310, which is codified as amended at Alabama Code § 22–51–1 et seq. There are two types of 310 Boards: (1) Comprehensive 310 Boards, which “tend to provide all services directly”; and (2) Mental Retardation Specialty 310 Boards, which “provide only case management services or, if they provide other services, they do so through subcontracting with other provider entities.” (Id.)
E. Alabama’s Home and Community Based Waiver Programs
Plaintiffs seek to compel Defendants to provide services to them under Alabama’s HCB Waiver programs. Alabama has two HCB Waiver programs, the Mental Retardation (“MR”) Waiver and the Living at Home (“LAH”) Waiver.
The term “waiver” comes from Section 1915(c) of the Social Security Act, enacted in 1981, which gave the Secretary of the Department of Health and Human Services the power to waive certain requirements of the Medicaid Act. Section 42 U.S.C. § 1396n(c)(1) provides in pertinent part:
*447 The Secretary may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care

facility for the mentally retarded the cost of which could be reimbursed under the State plan.
42 U.S.C. § 1396n(c)(1); see also 42 C.F.R. § 441.300 (“Section 1915(c) of the Act permits States to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual needs to avoid institutionalization.”). An important requirement relevant to the claims in this case is that “all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8).
1. MR Waiver Program
Alabama began its MR Waiver program in 1981. (Doc. # 105–2 ¶¶ 27, 31.) The program offers twenty-three services. Day habilitation and residential habilitation are the primary ones. (Id. ¶ 31.) Day habilitation programs offer assistance and training “in daily living activities and instruction in the skills necessary for independent pursuit of leisure time/recreation activities.” Medicaid HCBS MR Waiver Service Catalog (Doc. # 189–4, Ex. 3, at 110.) “A unit of service is a day consisting of at least 5 hours, one hour of which may include transporting the individual.” (Id.) Residential habilitation programs “provide care, supervision, and skills training in activities of daily living, home management and community integration.” (Id. at 107.) These services may be provided in the waiver recipient’s home or a community setting. In either case, the recipient’s home or community setting must satisfy certain requirements and obtain certification from the Department. (Id.) For instance, a newly certified home may have no more than six residents. (Id.)
2. LAH Waiver Program
Alabama began its LAH Waiver program in 2002. (Doc. # 105–2 ¶ 33.) “It is a ‘supports waiver’ which takes advantage of a [federal] rule that allows the state to set a cap on the total amount that can be expended for any one individual, and allows the state to set that cap lower than the average cost of the offsetting type of institution. The concept is that a supports waiver can provide sufficient services to help a family support their member with a disability for many years, before that person will need residential services. So the person receiving services through this waiver can remain on the waiting list for services from the MR Waiver, while benefitting from supports in the home and in the community.” (Id.)
3

Susan J. v. Riley, 254 F.R.D. 439 (2008)
The services in the LAH Waiver match those in the MR Waiver except for residential habilitation out of the person’s home. (Id. ¶ 33.) “The current cap in the LAH Waiver is $22,500, and is made effective by not enrolling anyone in this waiver whose costs can reasonably be expected to exceed that cap within a year. If someone were to reach the point of exceeding the cap, [he or she] could receive crisis intervention services at costs beyond the cap (this is a provision of this waiver), until the [Department] could transfer [him or her] to the MR Waiver.” (Id.)
3. Number of Slots in the Waiver Programs
A state’s HCB Waiver requires the approval of the Centers for Medicaid and Medicare Services (“CMS”) Administration. (Doc. # 105–2, ¶ 28.) A state plan must specify the maximum number of people who will receive waiver services in the applicable year. When approved by CMS, this number is a “cap” on how many persons can participate in the state’s waiver program. (Id.) If a person leaves the waiver program (for example, because he or she passed away or moved out of the state), then his or her slot is not used again until the following year. (Id.) In *448 Alabama, the applicable year for the MR Waiver and LAH Waiver runs from October 1 through the following September 30. (Id.)
Alabama’s MR Waiver program currently has 5,260 slots. The Department requested and obtained approval for increases in late 2000 (4,200 to 5,200) and April 2007 (5,200 to 5,260). (Id. ¶ 30.) Alabama’s LAH Waiver program currently has 569 slots. The Department requested and received approval for increases in 2003 (204 to 326), 2004 (326 to 449), and 2005 (449 to 569). (Doc. # 129–2 ¶ 3.)
F. The Waiting List
The Division maintains a waiting list for both the MR and LAH waivers. (Doc. # 105–2 ¶ 34.) The Division ranks people according to their needs and criticality by taking into account each person’s individual needs and abilities. (Id. ¶¶ 16–21.)
Prior to 2003, Alabama did not have a “coherent centralized electronic waiting list.” (Id. ¶ 16.) The previous system contained data on persons needing services, “but the data was not edited [or] standardized and there was insufficient information to create a ranking or prioritization of need.” (Id.)

The new system works as follows: Persons who need services must contact their county’s 310 Board. (Doc. # 129–2 ¶ 20.) The 310 Board case managers and intake coordinators complete documentation, including a “Criticality Summary,” in order to document the person’s eligibility for the waiver program. The 310 Board sends the documentation to one of the state’s five regional offices. If the regional office approves the application, it adds the person to the waiting list. (Id.) The waiting list includes all persons in the state who are deemed to meet the requirements for participation in the Waiver programs.
The waiting list “is a planning tool that the Department has developed to assist it in its mission to plan for and to serve individuals with mental retardation throughout the State. The waiting list helps the Department understand the needs of individuals now and in the future, based upon the categories of the services that they have requested and are expected to be eligible for, all prioritized by the criticality of their need.” (Doc. # 129–2 ¶ 7.)
The criticality score is a number ranging from 1 (no present need for services) to 12 (immediate need). The Division assigns a score to each service requested by each individual on the waiting list. (Id. ¶ 10.) A person’s criticality scores will not change unless his or her circumstances change. Fordyce Mitchel, the Director of Mental Retardation Community Programs in the Department’s Division of Mental Retardation Services, provided the following example of how a criticality score could change:
[A]n individual under the age of 21 who is eligible to attend public school may be on the waiting list for day habilitation for long range planning purposes, with a low criticality score because he is attending public school. When that individual ages out of the public school system, however, his need has changed drastically and his criticality score will very likely jump, placing him ahead of others on the list.
(Id. ¶ 11.)
The process of enrolling a person in a waiver program begins when the regional office offers a slot in a waiver program to a person on the waiting list. For example, a regional office might offer the MR Waiver to persons with a high criticality scores who are waiting for residential services because only the MR Waiver reimburses residential habilitation out of the person’s home. On the other hand, the regional office might offer
4

Susan J. v. Riley, 254 F.R.D. 439 (2008)
the LAH Waiver to persons who do not need residential habilitation or need it with low criticality. (Id.)
After the person accepts the offered waiver slot, the regional office contacts the 310 Board to develop a plan of care, lets the person choose the provider(s) of services, prepares the documentation that is required to enroll the person, and contacts the service provider to initiate the plan of care. (Doc. # 105–2 ¶ 11.)
The size of the waiting list has increased in recent years. In August 2005, there were approximately 1,311 persons on the waiting list, according to Patricia J. Martin, Associate Commissioner for MR Services, Alabama *449 Department of Mental Health and Mental Retardation. Coordinating Subcommittee for Mental Retardation Services, Meeting Summary, August 7, 2007 (Doc. # 128–3, PX 1, 3.) On April 12, 2007, there were 1,522 persons were on the waiting list, according to Defendants. Response of Defendants to Plaintiffs’ First Set of Interrogatories (Doc. # 128–4, PX 2, Response No. 1.) In August 2007, there were 1,681 persons on the waiting list, according to Martin. (Doc. # 128–3, PX 1, at 3.) Since July 1, 2000, over 2,700 persons have submitted applications. (Doc. # 128–4, PX 2, Response No. 1.)
G. Subclass Representatives
Plaintiffs argue that Tara L.’s claims are typical of Subclass One, Beverly W.’s claims are typical of Subclass Two, and Krystal W.’s claims are typical of Subclass Three.
1. Subclass One: Persons Who Have Not Received Waiver Services With Reasonable Promptness
Plaintiffs offer Tara L. as a representative of Subclass One. She is a twenty-eight year old resident of Jefferson County and has been diagnosed with mental retardation, autism, psychosis, and aggressive behavior. Affidavit of Belinda L. (Doc. # 121–4 ¶ 3) (filed under seal pursuant to an Order of this Court (Doc. # 118)). On December 4, 1997, Belinda L., Tara’s mother, applied for residential, day, and support services through the local 310 Board, the Mental Retardation & Developmental Disabilities Health Care Authority of Jefferson County, Inc. (“Jefferson County 310 Board”). (Id. ¶ 5); (Doc. # 129–2 ¶ 30). Tara has never been offered services other than case management. (Id. ¶ 10.) Belinda was informed that Tara has not been offered a residential placement because of her behavior problems. (Id. ¶ 10.)

As of July 2005, Tara was on the statewide waiting list for residential and day habilitation services. Letter from Frederick Pinto to Belinda L. (Doc. # 173–45, Ex. N, at 118.) As of September 24, 2007, Tara was ranked 514. (Id. ¶ 11); (Doc. # 129–2, ¶ 30). Belinda believes that Tara needs and would benefit from these services. (Doc. # 121–4, ¶ 14.) With respect to residential habilitation services, Tara has a criticality score of 1. With respect to day habilitation services, she has a criticality score of 4. (Doc. # 129–2, ¶ 30.)
2. Subclass Two: Persons Deemed Ineligible or Denied Services Without Notice and Opportunity for a Hearing
Plaintiffs offer Beverly W. as a representative of Subclass Two. She is a forty-nine year old resident of Jefferson County and has been diagnosed with mental retardation, brain damage, and possible fetal alcohol syndrome. Affidavit of Clarice W. (Doc. # 121–2 ¶ 5) (filed under seal pursuant to an Order of this Court (Doc. # 118)). In 1992, and again in 1996, Clarice W., Beverly’s mother, applied for residential and day habilitation services from the Jefferson County 310 Board. (Id. ¶¶ 6–7.) Between 1996 and 2004, Clarice received no communication regarding the status of Beverly’s application or her place on the waiting list. (Id. ¶ 8.)
In 2005, Gary Hendrix of the Jefferson County 310 Board informed Clarice that Beverly was not eligible to receive services because she was found to be functioning above the range of mental retardation. (Id. ¶ 10); (Doc. # 129–2 ¶ 29); (Doc. # 129–2, Ex. 1, at 15). Clarice asked Hendrix to reconsider the decision. (Doc. # 121–2 ¶ 11); (Doc. # 129–2, Ex. 2, at 16). Hendrix told Clarice that she could provide additional documentation to assist in the reconsideration of the decision, and Clarice provided this documentation. (Id.) According to Beverly’s supplemental response to Defendants’ interrogatories, Beverly did not receive notice on how to object to being denied eligibility. Supp. Response of Plaintiffs to Defendants’ Interrogatories (Doc. # 173–23, DX D–9.)
On November 19, 2007, the Department informed the Jefferson County 310 Board that Beverly was ineligible because of her above-range IQ scores. The 310 Board was responsible for informing Beverly of the decision and the procedure for appealing it. Beverly and her family have not appealed the decision. Aff. (Third) of Eranell McIntosh–Wilson (Doc. # 173–3 ¶¶ 21–22.)
3. Subclass Three: Persons Who Applied for Waiver
5

Susan J. v. Riley, 254 F.R.D. 439 (2008)
Services and Did Not Receive a Reasonably Prompt Claims Determination
Plaintiffs offer Krystal W. as a representative of Subclass Three. She is a twenty-five *450 year old resident of Jefferson County and has been diagnosed with profound mental retardation. Affidavit of Kathy W. (Doc. # 121–3 ¶ 3) (filed under seal pursuant to an Order of this Court) (Doc. # 118). In 2000, Kathy W., Krystal’s mother, applied for residential and day habilitation services. (Id. ¶ 5.) Between 2000 and 2003, Kathy made numerous phone calls to the agencies to determine Krystal’s status on the waiting list, but she did not receive any updates. (Id. ¶ 6.) In 2003, Kathy withdrew the request for residential and day habilitation services because Krystal was receiving services through another waiver program that is not at issue in this case. Aff. (Third) of Eranell McIntosh– Wilson (Doc. # 173–3 ¶ 25.) In October 2005, Kathy reapplied for residential and day habilitation services because she believed that they were needed. (Id. ¶ 26); (Doc. # 121–3 ¶¶ 12–13). On November 9, 2007, the regional office received Krystal’s application for day habilitation services. (Doc. # 173–3, ¶ 27.)
IV. DISCUSSION
[1] [2] To obtain class certification, Named Plaintiffs must (1) have standing, (2) satisfy each requirement of Rule 23(a) of the Federal Rules of Civil Procedure, and (3) satisfy at least one of the requirements of Rule 23(b). Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th Cir.2008). The Plaintiffs have the burden of establishing the propriety of class certification. Id.
A. Standing
Defendants argue Plaintiffs lack standing. The Court must consider this issue before addressing the Rule 23 requirements. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987). Defendants argue Plaintiffs lack standing because they are not entitled to the relief they seek and the statutes in issue do not create privately enforceable rights. The Court finds that representatives of Subclasses One and Three have standing to assert claims under 42 U.S.C. § 1396a(a)(8) (reasonable promptness), the representative of Subclass Two has standing to assert claims under 42 U.S.C. § 1396a(a)(3) and the procedural protections of the Fourteenth Amendment, and no named plaintiffs have standing to assert claims under either 42 U.S.C. § 1396a(a)(10) (comparability) or the substantive protections of the Fourteenth Amendment.

1. Legal Framework
[3] At the core of the Article III cases and controversies requirement is the rule that standing is limited to those who allege they personally have suffered or imminently will suffer an injury. As the Supreme Court has explained, an injury sufficient to meet this requirement is “an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the paradigmatic standing cases concern the latter clauses in this articulation, the standing dispute in this case turns on the existence of “a legally protected interest.” Id.
[4] “Standing may be based on an interest created by the Constitution or a statute,” among other sources. Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 152–153, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1304 (11th Cir.2006) (“A legally cognizable injury requires infringement of an interest protected by statute or otherwise.”). That interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right. Id. Plaintiffs seek redress through § 1983 and assert violations of four “federal rights.”
[5] Section 1983 imposes liability on anyone who, acting under color of state law, deprives a person of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In Maine v. Thiboutot, 448 U.S. 1, 4–8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 can be used to vindicate violations of federal statutory rights. Somewhat more obviously, § 1983 can also be used to vindicate constitutional violations. *451 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (“As the language of the statute plainly indicates, the remedy encompasses violations of federal statutory as well as constitutional rights.”). The Supreme Court has made clear that “[i]n order to seek redress through § 1983 ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).
In the Third Amended Complaint, Plaintiffs allege that Defendants deprived, and are depriving, them of four federal rights guaranteed by the Medicaid statutes, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B), 1396a(a)(3), and the substantive and procedural protections provided by the Fourteenth Amendment to the United States Constitution.
6

Susan J. v. Riley, 254 F.R.D. 439 (2008)

[6] [7] Because this is a motion to certify a class, the Court must “determine that at least one named class [or subclass] representative has Article III standing to raise each class subclaim.” Prado–Steiman v. Bush, 221 F.3d 1266, 1279–80 (11th Cir.2000). “[E]ach claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Id. at 1280 (quoting Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)). Therefore, the Court takes up each of the four claims and determines whether each named subclass representative has standing to prosecute the claims asserted by members of the subclass she seeks to represent. Making the standing determination requires two steps: (1) do Plaintiffs allege violations of federal rights remediable through § 1983 such that there is a “legally protected interest” sufficient to support standing, and (2) is at least one member of each subclass among the injured with respect to the claims made by members of that subclass?

2. Count I: Deprivation of Rights Created by 42 U.S.C. § 1396a(a)(8)
Subclasses One and Three contain members who Defendants have allegedly subjected to violations of the reasonable promptness requirements of § 1396a(a)(8).5 The Court finds that Tara L., as a representative of Subclass One, has standing to assert a claim under 42 U.S.C. § 1396a(a)(8).6 The Court also finds that Krystal W., as representative of Subclass Three has standing to assert a claim under 42 U.S.C. § 1396a(a)(8). As discussed above, in order to show they have standing to bring claims on behalf of their respective subclasses, Tara L. and Krystal W. must show that they are personally suffering an injury to a “legally protected interest.” It is therefore essential to first set out in some detail the interests § 1396a(a)(8) protects.

5

Subclass One contains class members who have been

determined eligible, but have not received services with

reasonable promptness. Subclass Three contains

members who have applied for services, but have not

received a reasonably prompt claims determination.

6

In the Pretrial Conference, held in chambers on October

9, 2008, Plaintiffs indicated they intend to classify all

eleven named plaintiffs as members of a particular

subclass (or, in the case of at least one, as members of

more than one subclass). In their Motion for Class

Certification, however, they offer one named plaintiff

as a representative of each subclass. Hence, eight

named plaintiffs are unclassified as of the date of this

Memorandum Opinion and Order.

a. Federal Right
As discussed more fully above, the Medicaid Act requires states provide some services and permits them to provide other services. The latter group is referred to as “optional services.” The HCB Waiver programs are optional services. While it is true that the Waiver program is governed by an agreement between the state and the federal government, “when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.”7 Doe v. Chiles, *452 136 F.3d 709, 714 (11th Cir.1998); see also Boulet v. Cellucci, 107 F.Supp.2d 61, 76 (D.Mass.2000) (“once a state opts to implement a waiver program and sets out eligibility requirements for that program, eligible individuals are entitled to those services and to the associated protections of the Medicaid Act”). Of particular relevance here is § 1396a(a)(8), which provides:

7

Defendants are correct to point out that 42 U.S.C. §

1396n(c)(3) permits a waiver of certain uniform

requirements of the Medicaid Act. For example, under

§ 1396n(c)(3), a state may wave the statewideness,

comparability, and income requirements of the

Medicaid Act. This provision is the namesake of the

waiver services at issue in this litigation. The statute

does not, however, provide for waiver of the §

1396a(a)(8) reasonable promptness requirement. There

is more on Alabama’s waiver of comparability below.

[A state plan for medical assistance must] provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals. This provision guarantees two categories of rights. First, that Medicaid assistance be furnished with reasonable promptness to all eligible individuals. Inherent in this guarantee is a second requirement that the agency make reasonably prompt claims determinations. In other words, “the standard for informing applicants of their eligibility for Medicaid services is ‘reasonable promptness.’ ” Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.2007) (citing 42 C.F.R. § 435.911);8 Chiles, 136 F.3d at 714;9 see also, e.g., Boulet, 107 F.Supp.2d at 64 (“Two regulations follow from [42 U.S.C. § 1396a(a)(8) ]. 42 C.F.R. § 435.911 provides that a state agency ‘must establish time standards for determining eligibility and inform the applicant of what they are. These standards may not exceed ... [n]inety days for applicants who apply for Medicaid on the basis of disability.’ [42 C.F.R. § 435.930] instructs, ‘The agency must-(a) Furnish
7

Susan J. v. Riley, 254 F.R.D. 439 (2008)

Medicaid promptly to recipients without any delay caused by the agency’s administrative procedures....”).10 Subclasses One and Three contain members who allege violations of the first and second right, respectively.

8

42 C.F.R. § 435.911 provides:

(a) The agency must establish time standards for

determining eligibility and inform the applicant of

what they are. These standards may not exceed-

(1) Ninety days for applicants who apply for

Medicaid on the basis of disability; and

(2) Forty-five days for all other applicants.

(b) The time standards must cover the period from

the date of application to the date the agency mails

notice of its decision to the applicant.

(c) The agency must determine eligibility within

the standards except in unusual circumstances, for

example—

(1) When the agency cannot reach a decision

because the applicant or an examining physician

delays or fails to take a required action, or

(2) When there is an administrative or other

emergency beyond the agency’s control.

(d) The agency must document the reasons for

delay in the applicant’s case record.

(e) The agency must not use the time standards—

(1) As a waiting period before determining

eligibility; or

(2) As a reason for denying eligibility (because

it has not determined eligibility within the time

standards).

9

The Eleventh Circuit has recognized the duality of the

reasonable promptness right created by § 1396a(a)(8):

Section 1396a(a)(8) reads: “A State plan for

medical assistance must ... provide that all

individuals wishing to make application for

medical assistance under the plan shall have

opportunity to do so, and that such assistance shall

be furnished with reasonable promptness to all

eligible individuals.” A corresponding regulation

provides that the responsible state agency “must,”

among other things, “[f]urnish Medicaid promptly

to recipients without any delay caused by the

agency’s administrative procedures,” and

“[c]ontinue to furnish Medicaid regularly to all

eligible individuals until they are found to be

ineligible.” Another regulation states that “[t]he

agency must establish time standards for

determining eligibility and inform the applicant of

what they are.” These periods are not to exceed

“[n]inety days for applicants who apply for

Medicaid on the basis of disability” or “[f]orty-

five days for all other applicants.” Moreover, the

agency “must not use the time standards” as “a

waiting period.” It is this panel’s task to determine

whether the “reasonable promptness” clause of

section 1396a(a)(8) “gives rise to a federal right.”

Chiles, 136 F.3d at 714.

10

With respect to furnishing services, the Medicaid

regulations do not define “reasonable promptness” in

terms of a specific time period. The regulations only

state that the agency must “[f]urnish Medicaid

promptly to recipients without any delay caused by the

agency’s administrative procedures.” 42 C.F.R. §

435.930; Doe v. Bush, 261 F.3d 1037, 1062 n. 20 (11th

Cir.2001). Courts considering the issue have found that

“reasonable promptness” means within ninety days.

Chiles, 136 F.3d at 715–19; Boulet, 107 F.Supp.2d 61.

The Eleventh Circuit has recognized a federal statutory right where Medicaid statutes require placement in an ICF/MR institution *453 with reasonable promptness pursuant to the State’s Medicaid Plan. Chiles, 136 F.3d at 719 (finding “a federal right to reasonably prompt provision of assistance under section 1396a(a)(8) of the Medicaid Act, and that [the] right is enforceable under section 1983”). Defendants argue that the reasonable promptness requirement of 42 U.S.C. § 1396a(a)(8) does not create privately enforceable rights here either because Doe v. Chiles has been called into question by the Supreme Court case of Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), or because Doe v. Chiles is distinguishable from this case in any event.11

11

The Court considered a version of this argument in

August 2004. (Doc. # 8.) Because years have passed

and the Courts of Appeal have decided numerous cases

on point during those years, the Court has decided to

reconsider the issue.

First, the Eleventh Circuit has not addressed the continuing validity of Doe v. Chiles following Gonzaga. However, no Circuit Court of Appeals has held, either before or after Gonzaga, that 42 U.S.C. § 1396a(a)(8) dos not create privately enforceable rights. The First, Third, Seventh, and Tenth Circuits have found or assumed a privately enforceable right after Gonzaga. See Bryson v. Shumway, 308 F.3d 79, 88–89 (1st Cir.2002) ( “[T]here is a § 1983 cause of action arising from the “reasonable promptness” provision of 42 U.S.C. § 1396a(a)(8) under the state model waiver plan as approved.”); Sabree v. Richman, 367 F.3d 180, 192 (3d Cir.2004) (42 U.S.C. § 1396a(a)(8) creates privately enforceable rights); Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.2007) (“Doe may proceed under § 1983 to address any failure by Appellees to comply with the reasonable promptness provision of the Medicaid Act.”); Mandy R. v. Owens, 464 F.3d 1139, 1142 (10th Cir.2006) (“[W]e assume that the individual plaintiffs may sue to enforce their rights under subsections (8) and (10).”). Courts have also held after Gonzaga that analogous and related provisions of the Medicare Act create privately enforceable rights. Among
8

Susan J. v. Riley, 254 F.R.D. 439 (2008)
the provisions that create privately enforceable rights is § 1396a(a)(10), which the Eleventh Circuit has called “materially identical” to § 1396a(a)(8). Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir.2007) (§ 1396a(a)(10) is “materially identical” to § 1396a(a)(8)); S.D. v. Hood, 391 F.3d 581, 603 (5th Cir.2004) (§ 1396a(a)(10) creates privately enforceable rights); Watson v. Weeks, 436 F.3d 1152, 1159 & n. 8 (9th Cir.2006) (42 U.S.C. § 1396a(a)(10) creates privately enforceable rights); see also Sabree, 367 F.3d at 192 (42 U.S.C. §§ 1396a(a)(1), 1396d(a)(15), 1396a(a)(8) create privately enforceable rights); Ball v. Rodgers, 492 F.3d 1094, 1107–11 (9th Cir.2007) (42 U.S.C. §§ 1396n(c)(2)(C), 1396n(d)(2)(C) create privately enforceable rights). In light of the unanimity of the Courts of Appeal on this issue, this Court finds that Gonzaga does not affect the holding of Doe v. Chiles that 42 U.S.C. § 1396a(a)(8) creates privately enforceable federal statutory rights.
[8] Defendants also argue that the private right of action recognized in Doe v. Chiles is inapplicable here because that case involved ICF/MR services and this case involves HCB Waiver programs. (Doc. # 178 73) (“Doe v. Chiles ..., which concerned an entitlement to ICF–MR, [and not HCB Waiver services,] is distinguishable and does not require a finding of a private right of action ...”). Defendants present a distinction without a difference. While it is again true that the Eleventh Circuit has not addressed the specific issue of whether 42 U.S.C. § 1396a(a)(8) creates a private right of action when HCB waiver services are in issue (rather than ICF/MR services), Courts of Appeal when considering 42 U.S.C. § 1396a(a)(8) have uniformly found a privately enforceable right irrespective of whether the plaintiffs sought ICF/MR or HCB Waiver services. See Chiles, 136 F.3d at 719 (finding “a federal right to reasonably prompt provision of assistance under section 1396a(a)(8) of the Medicaid Act”); Mandy R, 464 F.3d at 1142 (finding private right of action where plaintiffs sought both ICF/MR and HCB Waiver services); Kidd, 501 F.3d at 356 (HCB Waiver services); Sabree, 367 F.3d at 192 (ICF/MR services); see also Lewis, 94 F.Supp.2d at 1236 (HCB Waiver services); Boulet, 107 F.Supp.2d at 72 (ICF/MR and HCB Waiver services); cf. *454 Cramer, 33 F.Supp.2d at 1350– 51(finding a private right of action when eligible persons were denied a choice between ICF/MR and HCB Waiver services); Watson, 436 F.3d at 1159 & n. 8 (finding private right of action under 42 U.S.C. § 1396(a)(10) when HCB Waiver services were at issue); Ball, 492 F.3d at 1107–11 (holding that 42 U.S.C. §§ 1396n(c)(2)(C), 1396n(d)(2)(C) create privately enforceable rights when HCB Waiver services were at issue). But see M.A.C. v. Betit, 284 F.Supp.2d 1298, 1307 (D.Utah 2003) (42 U.S.C. § 1396a(a)(8) does not create a private right of action when HCB Waiver services were at issue). In light of the unanimity of the Courts of Appeal on this issue, and the vast weight of lower court and analogous authority, this Court finds that 42 U.S.C. § 1396a(a)(8)

creates privately enforceable rights irrespective of whether the services in issue are ICF/MR or HCB Waiver services.

b. Right–Holding Group
Having thus established the existence of privately enforceable rights under this portion of the Medicaid Act, the Court turns to the second necessary inquiry: Whom does the Medicaid Act include in the right-holding groups?

i. Provision of Services with Reasonable Promptness
Alabama has chosen to operate an HCB Waiver plan in the state. The waiver statute provides eligible individuals in Alabama with an entitlement to waiver services and affords them the protections of the Medicaid Act with respect to those services. Chiles, 136 F.3d at 714; see also Boulet, 107 F.Supp.2d at 76; Bryson, 308 F.3d at 89 (“The strictures of § 1396a(a)(8) should apply with no less force to opt-in plans such as the waiver program. Once the waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law; the waiver plans must meet all requirements not expressly waived.”). Defendants argue that because of the existence of a legal cap on the number of eligible waiver participants,12 no one has a “right” to waiver services. The Court agrees with the reasoning of Boulet v. Cellucci, 107 F.Supp.2d 61, 77 (D.Mass.2000), which held that the cap on waiver services is “simply a constraint on eligibility” and does not relieve Defendants of their statutory obligations with respect to class members who would not exceed the cap. “Individuals who apply after the cap has been reached are not eligible.... [T]he eligible individuals under the cap are entitled to waiver services. In short, the cap does not support the defendants’ position that the state has total discretion in providing waiver services.” Boulet, 107 F.Supp.2d at 77–78; see also Lewis v. N.M. Dep’t of Health, 275 F.Supp.2d 1319, 1344 (D.N.M.2003) (holding that “the reasonable promptness provision applies to waiver services once an individual is allocated an unduplicated recipient slot and the individual is eligible for the waiver services,” but not when a person meets the preliminary eligibility requirements and a slot is not available).

12

See 42 U.S.C. § 1396n(c)(10) (“The Secretary shall not

limit to fewer than 200 the number of individuals in the

State who may receive home and community-based

services under a waiver under this subsection.”); 42

C.F.R. § 441.303(f)(6) (“The State must indicate the

9

Susan J. v. Riley, 254 F.R.D. 439 (2008)
number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.”)
Therefore, eligible persons, and by extension subclass members, are those who (1) meet the requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of waiver slots that exist. In other words, if a slot is not available, a person is not eligible, and so not a member of the subclass, even if that person otherwise meets the eligibility requirements.
ii. Reasonably Prompt Claims Determination
Defining the group of persons who are entitled to a reasonably prompt claims determination under § 1396a(a)(8) is less complicated. “The standard for informing applicants of their eligibility for Medicaid services *455 is ‘reasonable promptness’ and the relevant federal ... regulations and manuals define reasonable promptness as forty-five days or ninety days, depending on the applicant.” Kidd, 501 F.3d at 356 (citing 42 C.F.R. § 435.911); Chiles, 136 F.3d at 709. It is plain that all persons who apply for HCB Waiver services enjoy the protection of § 1396a(a)(8). Applicants are entitled to have their claims determined with reasonable promptness.
c. Subclass One Representative
[9] The record is not yet clear regarding the number of unfilled slots in the Alabama HCB Waiver program. What is also not clear is whether Tara L. is entitled to one of the existing slots. What is clear is that all members of Subclass One must prove they are entitled to one of the waiver slots, not only that they meet the requirements to be placed on the waiting list. The Court, however, is satisfied that Tara L. is potentially a member of the rightholding group. The Third Amended Complaint alleges that “[s]he needs and is qualified to receive services through a Medicaid Waiver, and is eligible for services that she is not receiving.” (Doc. # 107 ¶ 11.) Therefore, her claim presents a live controversy and “suffice[s] to pass the minimal test required for invoking the Court’s jurisdiction.” Delta Coal Program v. Libman, 743 F.2d 852, 855 (11th Cir.1984).

d. Subclass Three Representative
[10] Krystal W., as named representative of Subclass Three, has personally suffered an alleged violation of § 1396a(a)(8). As detailed above, in 2000 Krystal’s mother applied for residential and day habilitation services. Between 2000 and 2003 Krystal’s mother made numerous phone calls to agencies in an attempt to determine Krystal’s status on the waiting list, but she did not receive any updates. She withdrew her request in 2003 but reapplied in October, 2005. In November, 2007, the regional office received Krystal’s application for day habilitation services.
This scenario states a violation of 42 U.S.C. § 1396a(a)(8), because “the standard for informing applicants of their eligibility for Medicaid services is “reasonable promptness” and the relevant federal ... regulations and manuals define reasonable promptness as forty-five days or ninety days, depending on the applicant.” Kidd, 501 F.3d at 356 (citing 42 C.F.R. § 435.911.); Chiles, 136 F.3d at 709. Here, years (2000– 2003, 2000–2008) passed without any action on Krystal’s claims for Medicaid assistance. Under the Medicaid Act and its implementing regulations, persons who apply for services are entitled to a reasonably prompt claims determination. Because this requirement was not met with respect to Krystal, she is a member of Subclass Three with standing to assert claims on behalf of the class.

3. Count II: 42 U.S.C. § 1396a(a)(10)(B) [11] Plaintiffs’ second count alleges that Defendants violated 42 U.S.C. § 1396a(a)(10)(B) by failing to provide comparable services to Waiver participants.13 As a general matter, when states provide assistance under Medicaid programs, benefits must be comparable among recipients. See 42 U.S.C. § 1396a(a)(10)(B);14 see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1186 n. 12 (10th Cir.2003). However, states may waive the comparability requirement for programs such as the HCB Waiver programs at issue in this case. Section 42 U.S.C. § 1396n(c)(3) provides that

13

It is not entirely clear which subclasses implicate this

count. Subclass Two implicates only procedural claims

and Subclass Three implicates only reasonably prompt

claims determination. Subclass One, on the other hand,

contains members who “have received inadequate or

inappropriate services.” This quoted language could

encompass violations of the comparability requirements

(if they were applicable), which mandate that services

be alike in “amount, duration, [and] scope.” 42 U.S.C.

§ 1396a(a)(10)(B).

14

42 U.S.C. § 1396a(a)(10)(B) provides:

10

Susan J. v. Riley, 254 F.R.D. 439 (2008)
that the medical assistance made available to any individual described in [this section]—
(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and (ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in [this section].

*456 A waiver granted under this subsection may include a waiver of the requirements of section 1396a(a)(1) of this title (relating to statewideness), section 1396a(a)(10)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community). As is plainly permissible on the face of this statute, Alabama’s HCB Waiver programs include a waiver of the comparability requirement.15 As such, Alabama is not required to provide comparable services across participants in the HCB Waiver programs. In other words, Plaintiffs enjoy no statutory right to comparable treatment in the context of the HCB Waiver programs. Therefore, § 1396a(a)(10)(B) does not confer rights Plaintiffs can enforce through § 1983. As a consequence, the claimed violation of § 1983 cannot support standing. Accordingly, Plaintiffs’ Motion for Class Certification is due to be DENIED to the extent the proposed subclasses allege violations of the comparability requirements.

15

“With respect to the MR Waiver program and the LAH

Waiver program, Alabama has elected to waive the

requirements of 42 U.S.C. § 1396a(a)(10)(B). Thus, the

comparability requirement does not apply to Alabama’s

HCB Waiver programs.” (Doc. # 178 Ex. B ¶ 3.)

4. Count III: 42 U.S.C. § 1396a(a)(3) and the Fourteenth Amendment
a. Federal Right
[12] Proposed Subclass Two contains persons who Plaintiffs claim Defendants subjected to violations of their procedural due process rights guaranteed by 42 U.S.C. § 1396a(a)(3) and the due process clause of the Fourteenth Amendment. State agencies must provide individuals with an opportunity for a hearing before the agency when a claim for medical assistance is denied or is not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3);16 42 C.F.R. §§ 431.206, 431.210;17 Cramer v. Chiles, 33

F.Supp.2d 1342, 1351–52 (S.D.Fla.1999); Bryson v. Shumway, 177 F.Supp.2d 78, 81 (D.N.H.2001). Additionally, State administration of Medicaid programs must meet the *457 constitutional due process minimums set out in Goldberg v. Kelly, 397 U.S. 254, 267–71, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).18

16

42 U.S.C. § 1396a(a) provides:

A State plan for medical assistance must—

...

(3) provide for granting an opportunity for a fair

hearing before the State agency to any individual

whose claim for medical assistance under the plan

is denied or is not acted upon with reasonable

promptness.

...

17

The Court is aware that federal regulations do not of

their own force create rights enforceable through §

1983 in this Circuit. Harris v. James, 127 F.3d 993,

1008–09 (11th Cir.1997); Kissimmee River Valley

Sportsman Ass’n v. City of Lakeland, 250 F.3d 1324,

1326–27 (11th Cir.2001). However, where “a valid

regulation merely further defines or fleshes out the

content of [a] right, then the statute—‘in conjunction

with the regulation’—may create a federal right as

further defined by the regulation” Harris, 127 F.3d at

1009. The Eleventh Circuit in Harris and Kissimmee

River held that the regulations in issue went “beyond

explicating the specific content of the statutory

provision and impose[d] distinct obligations in order to

further broad objectives underlying the statutory

provision.” Kissimmee River, 250 F.3d at 1326 (quoting

Harris, 127 F.3d at 1009). In Harris the Court held that

a regulation requiring transportation of Medicaid

recipients was too far removed from statutory

reasonable promptness and comparability requirements

and created “distinct obligations.” 127 F.3d at 1007–11.

Here, the relationship between the right-creating

statute and the regulations is much different. The

regulations cited here are contained in a particular

subpart E of the Code of Federal Regulations titled

“Fair Hearings for Applicants and Recipients.” This

Subpart “[i]mplements section 1902(a)(3) of the Act

[codified as 42 U.S.C. § 1396a(a)(3) ], which

requires that a State plan provide an opportunity for a

fair hearing to any person whose claim for assistance

is denied or not acted upon promptly.” 42 C.F.R. §

431.200. The remainder of the Subpart fleshes out

the meaning of “fair hearing.” These regulations do

not create “distinct obligations.” Rather, they simply

explain what it means to have a fair hearing under

the Medicaid Act. The requirements are familiar to

any student of American legal process: notice

containing the reasons and basis for the opinion, a

proceeding that meets the due process standards of

Goldberg v. Kelly, a right to appeal an adverse

decision, an impartial decision maker, access to

evidence to be used against the recipient, et cetera.

Congress intended to provide a “fair hearing.” These

11

Susan J. v. Riley, 254 F.R.D. 439 (2008)
regulations define that term and do not impose “distinct obligations.” Therefore, they detail the federal right created by 42 U.S.C. § 1396a(a)(3) and remediable through § 1983. The Court is also satisfied that 42 C.F.R. § 435.911, which sets a number of days a state has to determine eligibility and is cited in various parts of this Opinion, is enforceable through § 1983 under Harris.

18

Goldberg requires (1) “Timely and adequate notice,”

including notice of adverse evidence; (2) Opportunity

to participate in the decision making; (3) “Effective

opportunity to defend by confronting any adverse

witnesses” and rebutting other information; (4)

Representation by counsel; (5) A record of the

proceedings and some form of reasons for the decision;

and (6) An impartial decision-maker. 397 U.S. at 267–

68, 90 S.Ct. 1011. This constitutional guarantee is

rendered redundant, however, by 42 C.F.R. § 431.205,

which requires that a state’s hearing system “meet the

due process standards set forth in Goldberg v. Kelly,

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).”

See also Hernandez v. Medows, 209 F.R.D. 665, 670

(S.D.Fla.2002); Haymons v. Williams, 795 F.Supp.

1511, 1517 (M.D.Fla.1992).

The implementing regulations specify the content of the notice and the requirements for a fair hearing. The notice must inform the beneficiary of the action the agency intends to take and the reason for the action, of the facts and law that support the action, and of the right to a fair hearing. 42 C.F.R. § 431.210; see also id. § 431.206(b) (requiring agencies to inform every applicant or recipient in writing of the right to a hearing and the method by which one may obtain a hearing any time an individual applies for Medicaid or when an agency takes action affecting benefits).
These procedural protections are applicable to State’s Medicaid Plans, which includes the HCB Waiver program. See Chiles, 136 F.3d at 714 (“when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.”); Parry v. Crawford, 990 F.Supp. 1250, 1258–59 (D.Nev.1998); King v. Fallon, 801 F.Supp. 925, 937–38 (D.R.I.1992). Plaintiffs therefore have alleged a violation of a right remediable through § 1983, which, in turn, can support standing. So long as at least one named member of Subclass Two is among the injured, the standing requirements are met with respect to that subclass.

b. Subclass Two Representative

[13] Beverly W., as named representative of Subclass Two, has personally suffered an alleged violation of § 1396a(a)(3). As detailed above, in 1992 and 1996 Beverly W.’s mother applied for residential and day habilitation services. It was not until 2005 that Beverly’s mother was informed that Beverly was not eligible to receive services because she was found to be functioning above the range of mental retardation.19 Beverly’s mother requested the 310 board reconsider the determination, but she did not receive notice regarding how to object to being denied eligibility.

19

Beverly’s mother received no communication regarding

the status of the application or placement on the waiting

list in the eight years following the 1996 application.

This scenario clearly states a violation of 42 U.S.C. § 1396a(a)(3), which requires state plans “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” Moreover, the notice here did not inform the beneficiary of the action the agency intended to take, the reason for the action, of the facts and law that support the action, of the right to a fair hearing, and of the method by which one may obtain a hearing. Sections 42 C.F.R. §§ 431.210, 431.206(b) require the agency to provide this information any time an individual applies for Medicaid or when an agency takes action affecting benefits.20 Because these requirements were not met with respect to Beverly W., she is a member of Subclass Two with standing to assert claims on behalf of the class.

20

The alleged violations also appear to violate the due

process rights guaranteed by Goldberg v. Kelly, 397

U.S. 254, 267–71, 90 S.Ct. 1011, 25 L.Ed.2d 287

(1970), which apply as a matter both of constitutional

law and by virtue of 42 C.F.R. § 431.205.

c. Count IV: Fourteenth Amendment Substantive Due Process
[14] Count IV of Plaintiffs’ Third Amended Complaint alleges that Defendants violated the Constitutional rights of the putative class members by “fail[ing] or refus[ing] to remedy the known and continuing violation of plaintiffs’ clearly established constitutional *458 rights to habilitation, care, and treatment.”21 (Doc. # 107 ¶ 144.) The Court cannot locate, in caselaw or elsewhere, support for the proposition that there is a “clearly established constitutional right to habilitation, care, [or] treatment.”
12

Susan J. v. Riley, 254 F.R.D. 439 (2008)

Because there is no substantive due process right that guarantees protection from the conduct Plaintiffs complain of, there is no alleged violation of § 1983, and that statute cannot support standing in this case. Accordingly, Plaintiffs’ Motion for Class Certification is DENIED to the extent the subclasses implicate alleged violations of substantive due process rights.

21

Once again it is not clear which subclasses contain

members whose substantive due process rights have

allegedly been violated. Perhaps all of them. In any

event, there is no such right.

B. Rule 23(a) Analysis
One or more persons may sue as representatives of a class if the following four requirements are satisfied:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).
[15] [16] The court must take the allegations in support of the certification as true and refrain from conducting a preliminary assessment of the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Each subclass must independently satisfy the Rule 23 requirements. Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir.1978).22

22

In Bonner v. City of Prichard, Ala., 661 F.2d 1206,

1209 (11th Cir. Nov.3, 1981) (en banc ), the Eleventh

Circuit adopted as binding precedent all Fifth Circuit

decisions handed down prior to the close of business on

September 30, 1981.

1. Numerosity
[17] [18] [19] The Court must examine the facts of each case to assess whether a putative class is sufficiently

numerous. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Generally, however, classes of more than forty members satisfy the numerosity requirement. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986); Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D.Ala.1999). When the exact number of class members cannot be ascertained, the court may make “common sense assumptions” to support a finding of numerosity. Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983).
[20] The primary focus of the numerosity requirement is whether joinder is impracticable. Thus, in cases involving mentally disabled plaintiffs, courts have found that the numerosity requirement is satisfied because joinder would be impracticable due to potential class members’ disabilities, even where the class size is relatively small. Armstead v. Pingree, 629 F.Supp. 273, 279 (M.D.Fla.1986); see D.W. v. Poundstone, 165 F.R.D. 661, 670 (M.D.Ala.1996); Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D.Ala.1993).
a. Subclass One: Persons Who Have Not Received Waiver Services with Reasonable Promptness
[21] Plaintiffs argue that the numerosity requirement is easily satisfied because there were over 1,600 people on the waiting list as of August 2007. (Doc. # 128–3, PX 1, at 3.) Defendants argue that the number of people on the waiting list does not establish numerosity because the list consists of persons who have different levels of need. (Doc. # 129 39.) The Parties’ arguments are both slightly off the mark.
As discussed above, members of Subclass One are those who (1) meet the requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of waiver slots. In other words, if a slot is not available, a person is not eligible, and is therefore not a class member, even if a person otherwise meets the eligibility requirements.
*459 Plaintiffs have not provided the Court with sufficient information to make a determination regarding numerosity. It is not clear whether the Waiver programs are full.23 There are neither allegations nor evidence that there are empty slots, aside from slots that are vacated in the middle of the fiscal year. The Court also lacks information about how many slots are vacated during the fiscal year. In short, if the Waiver programs are full, Plaintiffs’ motion to certify Subclass One must be denied, because the class is a null set. If, on the other hand, there are a number available slots in the waiver program sufficient to meet the numerosity requirement, Plaintiffs’
13

Susan J. v. Riley, 254 F.R.D. 439 (2008)

motion to certify Subclass One should be granted, provided that the other requirements of Rule 23 are met.24

23

In his July 2007 affidavit, Fordyce Mitchell (Doc. #

105 Ex. 1 ¶ 30) states: “The Department requested in

April 2007, and has now been approved, to serve an

additional 60 individuals, bringing the total available

‘slots’ to 5620. Current enrollment in the MR Waiver

program is approximately 5154 and the Department is

in the process of filling the additional slots.” (emphasis

added). The Court cannot determine from this limited

information the size of this putative subclass.

24

The Court notes that the expected gross disparity

between the number of available Waiver slots and the

number of persons on the waiting list (many of whom

are in competition for those slots) causes this subclass

to fail on adequacy grounds. When considering whether

a putative class satisfies the adequacy requirement of

Rule 23(a)(4), a court should consider “whether any

substantial conflicts of interest exist between the

representatives and the class.” Valley Drug Co. v.

Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189

(11th Cir.2003). Named Plaintiffs would be in direct

competition with absent class members for whatever

few Waiver slots are available. The Court finds,

therefore, a “substantial conflict of interest ... between

[Tara L.] and the class.” Id. Subclass One therefore,

lacks both numerosity and adequacy.

While it is true that the Court could make common sense assumptions to estimate the size of the putative subclass, Plaintiffs have not provided even enough information for the Court to guess if the subclass members are too numerous to join. Therefore, Plaintiffs Motion to Certify Class is due to be DENIED with respect to Subclass One.

b. Subclass Two: Persons Deemed Ineligible or Denied Waiver Services Without Notice and Opportunity for
a Hearing
[22] As of August 2007, approximately 1,681 persons were on the waiting list. Since July 1, 2000, at least 2,700 persons have submitted applications for services, including person deemed ineligible. A common sense assumption is that many applicants were denied because they were deemed ineligible for the services that they sought. There is evidence that Defendants did not offer Beverly W. and other named plaintiffs notice of how to object to the decision denying her eligibility. Moreover, numerosity would be satisfied in this subclass because of the impracticability of joining unknown applicants who likely are mentally retarded. Thus, Subclass Two satisfies the numerosity requirement.

c. Subclass Three: Persons Who Applied for Waiver Services and Did Not Receive a Reasonably Prompt
Claims Determination
[23] To establish numerosity for this subclass, Plaintiffs point out that many of the named plaintiffs waited years to receive an eligibility decision. For instance, Kathy W., mother of Plaintiff Krystal W., testified that Krystal waited two years for her first claim determination.
The Department has received at least 2,700 applications in this decade, but it is not clear how many persons, other than some named plaintiffs, did not receive a reasonably prompt claim determination. A common sense assumption is that numerosity is satisfied for this subclass because of the number of potential applicants who have not received reasonably prompt claims determinations and the fact that some named plaintiffs waited years for decisions. As is the case with Subclass Two, the numerosity would be satisfied in this subclass because of the impracticability of joining unknown applicants who likely are mentally retarded. Thus, Subclass Three satisfies the numerosity requirement.
2. Typicality and Commonality
[24] [25] The typicality requirement measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large. Busby *460 v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir.2008). All putative class members are not required to have identical claims, and factual differences among the claims of the putative class members do not defeat certification. Cooper v. Southern Co., 390 F.3d 695, 714 (11th Cir.2004). However, Named Plaintiffs’ claims must still share the same essential characteristics as the claims of the class at large. Id.
[26] [27] [28] The commonality analysis is similar to the typicality analysis because it “measures the extent to which all members of a putative class have similar claims.” Id. at 714. The difference is that commonality refers to the group characteristics of the class as a whole, whereas typicality refers to the individual characteristics of the named plaintiff in relation to the class. Id. Under the commonality requirement, the class action must involve issues that are susceptible to class-wide proof. Id. Moreover, the commonality requirement does not mandate that all putative class members share identical claims, and factual differences among the claims of the putative class members do not defeat certification. Id. The
14

Susan J. v. Riley, 254 F.R.D. 439 (2008)

parties addressed commonality and typicality together in their briefs, and the Court will do the same in this subsection. The Court finds that Subclasses Two and Three easily meet the typicality and commonality requirements.
[29] Plaintiffs argue that the typicality and commonality requirements are satisfied for each of the three subclasses for the following reasons:25

25

The Court will not consider whether Subclass One,

which has not been shown to meet the numerosity and

adequacy requirements, meets the commonality,

typicality, or Rule 23(b)(2) requirements.

All are adults with some degree of mental retardation. All have been determined by the defendants to be eligible for Alabama’s [waiver] services. More than one thousand proposed class members receive no services that they need and for which they are eligible, and hundreds of additional class members are not receiving adequate services for which they are eligible. As a result of their being denied appropriate services, in whole or in part, the named plaintiffs and the proposed class both charge the defendants with the same violations of federal law, and they both seek the same injunctive relief. (Doc. # 128–2, at 14.) Defendants argue that the typicality and commonality requirements are not satisfied for three reasons. First, Defendants argue that Plaintiffs lack standing to bring claims in this action. That argument was considered above.
Second, Defendants point out that nine of the fourteen named plaintiffs, including the three named plaintiffs who represent the subclasses, all reside in Jefferson County and are clients of the Jefferson County 310 Board. Defendants suggest that certification of a statewide class may be inappropriate because the Jefferson County 310 Board may be doing a particularly bad job of serving people. This argument overlooks the fact that the it is the State’s Medicaid plan that is required to comply with Federal Law. With respect to Subclass Two, it is “State plan[s] for medical assistance” that must provide individuals with notice and an opportunity for a hearing. 42 U.S.C. 1396a(a)(3); see also, e.g., 42 C.F.R. §§ 431.206, 431.210. With respect to Subclass Three, 42 U.S.C. § 1396a(a)(8) applies to “State plan[s] for medical assistance,” which must provide assistance with reasonable promptness. Furthermore, it is states that must “establish time standards for determining eligibility.” 42 C.F.R. § 435.911.
Third, Defendants argue that commonality and typicality

are not satisfied “because all of the issues presented by each class require an extensive analysis of each class members’s individual claims before any resolution can be achieved.” (Doc. # 129–1 46.) Defendants point out that the potential class members have a variety of abilities and needs. Despite these factual differences, certification is appropriate because Plaintiffs in Subclass Two seek to force the State to provide the notice and opportunity for a hearing to all applicants who are denied eligibility, including all class members. Likewise, members of Subclass Three seek to force the State to *461 provide reasonably prompt determination of the eligibility of all applicants, including all class members. What Plaintiffs challenge are the “general policies, practices, and procedures of the Defendants.” (Doc. # 128 10.) In other words, “[t]he issue is ... defendants’ compliance with federal law.” (Doc. # 128 11.) As a consequence, it does not appear that class members would have to offer additional proof on their individual claims to obtain the relief they seek. Therefore, having considered the claims, defenses, facts, substantive law, and the degree to which resolution of the classwide issues will further each class member’s claim, it is the determination of the Court that Subclasses Two and Three satisfy the commonality requirement.
Finally, the Court finds that Beverly W.’s claims are typical of Subclass Two and Krystal W.’s claims are typical of Subclass Three. As detailed above Beverly W.’s mother applied for residential and day habilitation services in 1992 and 1996. It was not until 2005 that Beverly’s mother was informed that Beverly was not eligible to receive services because she was found to be functioning above the range of mental retardation. Beverly’s mother did not receive notice regarding how to object to being denied eligibility or assert her right to a hearing. Moreover, the notice she did receive did not inform her of the action the agency intended to take, the reason for the action, of the facts and law that supported the action, of the right to a fair hearing, and of the method by which one may obtain a hearing as required. There are no material differences between Beverly’s claim and the claims of the other subclass members. Therefore, Beverly’s claim is typical—is the very definition of—the claims of members of Subclass Two.
With respect to Subclass Three, in 2000 Krystal’s mother applied for residential and day habilitation services. Krystal’s mother made numerous phone calls between 2000 and 2003 in an attempt to determine Krystal’s status on the waiting list, but she did not receive any updates. Years (2000—2003, 2000—2008) passed without any action on Krystal’s claims. There are no material differences between Krystal’s claim and the claims of the other subclass members. Therefore, Krystal W.’s claim is manifestly typical of the subclass of persons who have applied for services and not received a reasonably prompt claims determination.
15

Susan J. v. Riley, 254 F.R.D. 439 (2008)

3. Adequacy of Representation
[30] The adequacy requirement encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action. Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir.2008).

a. There is no Substantial Conflict Between Named Plaintiffs and Absent Class Members
[31] A substantial conflict occurs when “some party members claim to have been harmed by the same conduct that benefited other members of the class.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir.2003). Plaintiffs argue that Named Plaintiffs’ interests are not antagonistic to the those of the class.
Defendants argue that a substantial conflict exists between Named Plaintiffs and absent class members because there are a limited number of slots in the waiver programs, and thus class members are essentially competing for those slots. If the cap remains fixed and some Plaintiffs are given relief, then other persons who are receiving services would be bumped out of the programs. This argument may well have presented a problem for certification of proposed Subclass One, but the Court decided not to certify that subclass for other reasons.26

26

The Court did note above, however, that the expected

gross disparity between the number of available Waiver

slots and the number of persons on the waiting list

(many of whom are in competition for those slots)

would cause this subclass to fail on adequacy grounds.

[32] There are no substantial conflicts between the subclass representatives of Subclasses Two and Three and their respective subclass members. As for Subclass Two, Beverly W.’s claim for adequate notice and *462 an opportunity for a hearing will not place her in a position adverse to the other members of Subclass Two. Likewise, Krystal W.’s claim for a reasonably prompt claim determination will not place her in a position adverse to other members of Subclass Three.

b. The Representatives Will Adequately Prosecute the Action
[33] [34] Rule 23(a)(4) states that the representative parties must “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy requirement applies to both the named representatives and counsel. London v. Wal–Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir.2003). The Court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed.R.Civ.P. 23(g)(1)(B). A conflict will defeat class certification only if it is “fundamental” with respect to the specific issues in controversy. Valley Drug Co. v. Geneva Pharms., 350 F.3d 1181 (11th Cir.2003). After the present Motion came under submission, Defendants filed a Motion for Leave to File Newly Discovered Evidence (Doc. # 190), which was granted.
The new evidence is minutes from meetings of the board of directors of the Jefferson County 310 Board. The minutes show that Bob Kracke, an attorney for Plaintiffs, has been a director since before this case was initiated in 2000. In a 1999 meeting, Kracke informed the other directors that the Arc of Jefferson County, a service provider that receives grants from the Department, intended to file this lawsuit. The directors voted to join the lawsuit and fund one-half of the legal expenses (Kracke abstained from this vote). Kracke routinely updated the other directors about this case. In 2004, the directors of the Jefferson County 310 Board voted to no longer pursue this case. The directors continued to receive updates on the litigation.
[35] Defendants argue that Named Plaintiffs and their counsel are not capable of providing adequate representation under Rule 23 because of this alleged conflict: The Jefferson County 310 Board helped to initiate this litigation and one of its directors is class counsel, but the 310 Board also serves as a link between the Department and many of the named plaintiffs and putative class members. Defendants suggest that Plaintiffs may have waived claims against the 310 Board that the putative class might have otherwise sought to pursue.
In the Court’s view, the role of the Jefferson County 310 Board is not the fundamental issue in this case. The 310 Board is an advocacy organization that works on behalf of putative class members. The fact that the 310 Board contracts with the Department to manage the provision of services in Jefferson County does not create a fundamental conflict. Plaintiffs’ claims focus on the Department, which has a more fundamental role in determining whether services are provided and eligibility is determined in accordance with the requirements of the Medicaid Act. Section 42 U.S.C. § 1396a(a)(8) applies to “State plan [s] for medical assistance,” which must provide assistance with reasonable promptness. Likewise,
16

Susan J. v. Riley, 254 F.R.D. 439 (2008)
it is “State plan[s] for medical assistance” that must provide individuals with notice and an opportunity for a hearing. 42 U.S.C. 1396a(a)(3); see also e.g., 42 C.F.R. §§ 431.206, 431.210. Furthermore, it is states that must “establish time standards for determining eligibility.” 42 C.F.R. § 435.911. Plaintiffs claims are clearly directed at, and based upon, the actions of the Department of Mental Health and Mental Retardation, an agency of the State.
For these reasons, Named Plaintiffs and their counsel satisfy the adequacy of representation requirement.
C. Rule 23(b)(2) Analysis
[36] In addition to satisfying the prerequisites under Rule 23(a), a potential class must also satisfy one of the requirements listed in Rule 23(b). Rule 23(b)(2), the provision applicable to this case, requires that defendants have “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.” Fed.R.Civ.P. 23(b)(2). While certification under this rule does not preclude money damages, the plaintiffs must be primarily seeking injunctive or declaratory relief for certification *463 under this rule to be proper. Taylor v. Flagstar Bank, 181 F.R.D. 509, 518 (M.D.Ala.1998). In this case, Plaintiffs seek relief that is purely equitable in nature.
Plaintiffs argue that Defendants have acted in a manner generally applicable to the class “[b]y placing the named plaintiffs and many of the proposed class members on a waiting list for many years.” (Doc. # 128–2 22.) Defendants disagree and argue that
[t]he decisions made with respect to putative class members’ eligibility and placement on the waiting list, and what services are in fact appropriate for a putative class member, involve decisions and input from the Division, regional offices, numerous 310 Boards, providers, and (in some cases) the putative class member’s guardian. It is a fluid process, and necessarily so, as the Division seeks to serve those with the most critical needs and in the most

beneficial way.
(Doc. # 129–1 52). Defendants analogize this case to Rhodes v. Cracker Barrel Old Country Store, Inc., in which the plaintiffs challenged “thousands” of hiring decisions “made by numerous local decision-makers over six years” and in many different locations. 213 F.R.D. 619, 683 (N.D.Ga.2003). All of this concerns Subclass One. Again, the Court has declined to certify that subclass.
[37] With respect to Subclasses Two and Three, it is clear that Plaintiffs claim their rights were violated because the Department acted or refused to act on grounds generally applicable to the class. Likewise, the injunctive and declaratory relief Plaintiffs seek will apply to the class as a whole. With respect to Subclass Two, Plaintiffs claim it was the practice of the Department to not provide statutorily adequate notice and an opportunity for a hearing. Their claimed injuries result from this alleged practice, as applied to all members of the subclass. With respect to Subclass Three, Plaintiffs claim it was the practice of the Department to not provide reasonably prompt claims determinations. The claimed injuries of the members of the subclass result from this alleged practice, as applied to all members of the subclass. Thus, Defendants have acted in a manner generally applicable to both Subclasses Two and Three.
V. CONCLUSION
The Plaintiffs have shown that the Court should certify Subclasses Two and Three. Accordingly, it is hereby
ORDERED that the Amended Motion for Class Certification (Doc. # 128) is GRANTED in part and DENIED in part. The Motion is GRANTED with respect to Subclass Two and Subclass Three. The Motion is DENIED with respect to Subclass One and to the extent members of any subclass sought to bring claims under Counts II and IV.
It is further ORDERED that absent class members need not be given notice and an opportunity to opt out of this action.
	  

17

 
 Susan J. v. Riley, Not Reported in F.Supp.2d (2007)
2007 WL 2702073 Only the Westlaw citation is currently available.
United States District Court, M.D. Alabama,
Northern Division.
SUSAN J. et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama et al., Defendants.
No. 2:00-cv-918-MEF. | Sept. 12, 2007.
Attorneys and Law Firms
Deborah Ann Mattison, Rachel Lee McGinley, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, James A. Tucker, James Patrick Hackney, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Robert R. Kracke, Sr., Kracke & Thompson, Birmingham, AL, for Plaintiffs.
James Patrick Hackney, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Defendant John Doe.
Margaret L. Fleming, Office Of The Attorney General, Montgomery, AL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, Chief United States District Judge.
*1 This cause is before the Court on Plaintiff’s Motion for Class Certification (Doc. # 87). Plaintiffs represent a group of adults with mental retardation who are unable to fully care for themselves and thus require varying degrees of care, treatment, and habilitation. Defendants are Bob Riley, in his official capacity as Governor of the State of Alabama, John M. Houston, in his official capacity as Commissioner of the Department of Mental Health/Mental Retardation for the State of Alabama, and the Alabama Department of Mental Health/Mental Retardation.
Plaintiffs claim that Defendants have violated Plaintiffs’ rights under federal law in the following ways:
(a) failing to provide for the development of appropriate residential placement (hereinafter “RPs”) and/or day habilitation (hereinafter “DH”) and/or other

services, and thereby depriving these plaintiffs of those services to which they are entitled; (b) failing to assure that plaintiffs can apply for and receive RP and/or DH and/or other services with reasonable promptness; (c) failing to assure that RP and/or DH and/or other services are made available to eligible individuals, such as plaintiffs, in the same amount, duration and scope as they are provided to other similarly situated Medicaid assistance recipients in the State of Alabama; and (d) failing to assure that plaintiffs receive RP and/or DH and/or other services which could provide vocational and/or job training skills, social interaction, counseling, enhanced peer relationships, and improved mobility services and supports, among others.
Third Amended Complaint (Doc. # 107, 2-3). Plaintiffs seek injunctive relief under the Medicaid Act (Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.), 42 U.S.C. § 1983, and the Due Process Clause of the Fourteenth Amendment.
Plaintiffs seek to bring their claims in a class action. Plaintiffs seek to certify the following class:
All Alabama residents with mental retardation who are eligible for Medicaid services under the ICF/MR program pursuant to 42 U.S.C. § 1396a or a Home and Community Based Services waiver for the Mentally Retarded and Developmentally Disabled pursuant to 42 U.S.C. § 1396n, who request services under these programs but (1) are denied the opportunity to apply for such services; (2) whose application under these programs is denied; or (3) are placed on a DMHMR waiting list for services under these programs.
Plaintiffs’ Motion for Class Certification (Doc. # 87, 2-3).1
The issue of certifying a class of developmentally disabled individuals in a suit against state defendants was
1

Susan J. v. Riley, Not Reported in F.Supp.2d (2007)

presented in Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir.2000). In that case, the district court certified the following class:

[A]ll persons with developmental

disabilities who are presently

receiving

Home

and

Community-Based Waiver Services

or who are eligible to receive Home

and Community-Based Waiver

Services, or who would receive or

be eligible for Home and

Community-Based Waiver Services

in the future.

*2 Id. at 1270. The Eleventh Circuit vacated the class certification order because it found the class to be overly broad. Id. at 1280-81. The court found that the class consisted of individuals with both substantive and procedural claims. The substantive claims involved individuals who were deemed to be eligible for services, but who “challenged their approved services as inadequate, inappropriate, or untimely provided.” Id. at 1281. This subgroup included individuals who claimed to be on “indefinite waiting lists.” Id.

The court found that there were two other subgroups that had procedural claims. One subgroup consisted of persons who “applied for HCBW services but who have been denied such services without notice and opportunity for hearing.” Id. Another subgroup were persons who “applied for HCBW services and still await an adjudication of their HCBW applications.” Id.

reasonably prompt manner. Because these injury claims target different defendant conduct, the type of proof required for each claim necessarily will differ.
Id. The advantage of dividing plaintiffs into subclasses was that members of each subclass would “occupy a similar eligibility status-that is, either approved, denied, or pending adjudication.” Id.
In this case, Plaintiffs’ proposed class contains persons with both substantive and procedural claims. The substantive claims involve the placing of individuals on a waiting list for services. The procedural claims involve the alleged denial of the opportunity to apply for services. Pursuant to the analysis in Prado-Steiman, the class definition that Plaintiffs propose is too broad, and Plaintiffs’ claims would be better addressed by dividing the proposed class into subclasses, as Plaintiffs have proposed in their request for relief in the alternative.
Accordingly, it is hereby ORDERED as follows:
(1) Plaintiffs’ Motion for Class Certification (Doc. # 87) is DENIED.
(2) Plaintiffs are given leave to file an Amended Motion for Class Certification that proposes subclasses, with substantive and procedural claims occupying different subclasses. Plaintiffs shall file this Amended Motion, along with all appropriate supporting factual submissions and legal arguments by no later than September 19, 2007.

The court found it appropriate to divide the certified class into subgroups because

(3) Defendants may file a Response to Plaintiffs’ Amended Motion no later than September 26, 2007.

each group targets a different ‘bad act’ of Defendants whether it be a failure to provide approved services in a reasonably prompt manner, a claims denial, or a failure to adjudicate a claims application in a

(4) Plaintiffs may file a Reply to Defendants’ Response no later than October 1, 2007.
	  

Footnotes

1

As an alternative to the certification of this class, Plaintiffs requested certification of yet unspecified subclasses. Plaintiffs’ Reply to

Defendants’ Response to Plaintiffs’ Motion for Class Certification (Doc. # 114, 7-10).

	  

2

 
 Susan J. v. Riley, Not Reported in F.Supp.2d (2009)
2009 WL 2259524 Only the Westlaw citation is currently available.
This decision was reviewed by West editorial staff and not assigned editorial enhancements.
United States District Court, M.D. Alabama,
Northern Division.
SUSAN J., et al., Plaintiffs, v.
Bob RILEY, in his official capacity as Governor of the State of Alabama, et al., Defendants.
No. 2:00–cv–918–MEF. | July 29, 2009.
Attorneys and Law Firms
Deborah Ann Mattison, Rachel Lee McGinley, Wiggins Childs Quinn & Pantanzis, PC, Robert Russell Kracke, Sr., Kracke & Thompson, LLC, Birmingham, AL, Glenn Nelson Baxter, James Arnold Tucker, James Patrick Hackney, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Plaintiffs.
Misty S. Fairbanks, William G. Parker, Jr., Office of The Attorney General, Montgomery, AL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, Chief Judge.
*1 Today the Court finds itself near the end of a long and trying litigation. The parties to the instant action have, by Herculean effort and amicable cooperation, reached a settlement in this case. The non-confidential settlement agreement provides Plaintiffs with essentially everything they seek to gain from the claims that survived summary judgment. Other individuals who are not plaintiffs stand to benefit too. In particular, the settlement agreement provides for the Department of Mental Health and Mental Retardation to provide additional notices and procedures on a system-wide basis. The relief provided by the settlement will inure to the benefit of all present class members and will also benefit other persons who are not members of the subclasses. As an additional provision, the parties agreed that the previously certified subclasses should be decertified and that they would jointly stipulate to dismiss the case upon decertification of the subclasses

by this Court. The need to decertify is motivated by a desire to avoid binding non-named class members by the judgment for purposes of issue and claim preclusion. The combination of system-wide relief and decertification would have the effect of allowing the benefits of the settlement to reach all class members (and other persons who are not class members) without the otherwise attendant burdens of issue and claim preclusion. Accordingly, and after preliminary discussions with the Court on the matter, the parties jointly moved to decertify the two subclasses. (Doc. # 259).1 The Court subsequently held a hearing where it exhaustively explored the pros and cons of decertification. (Doc. # 260.) Accordingly, this case is now before the Court on the Joint Motion for Decertification of Subclasses. For the reasons set forth below, the Court finds that the Motion is due to be GRANTED.
Questions concerning class certification are rightly left to the sound discretion of the district court. Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1566 (11th Cir.1996). By implication, this Court has discretion to decertify the subclasses pursuant to Fed.R.Civ.P. 23(c)(1)(C). See Buford v. H & R Block, Inc., 168 F.R.D. 340, 346 (S.D.Ga.1996) (“options such as decertification or revised certification are always available to the district court.”). The Court has carefully considered the text of the settlement agreement, which the parties submitted for its review. The Court has also drawn on its deep well of institutional knowledge about this litigation and considered the costs and benefits of decertification. Counsel for the parties have worked hard to guard the interests of the named plaintiffs, class members, and even non-class members. The Court has herd their arguments and is satisfied that decertification is in the best interests of the named plaintiffs and other class members, as decertification (together with the terms of the settlement agreement) results in all plaintiffs receiving the benefits of the settlement but only the named plaintiffs suffering its burdens. The Court also notes the incidental benefits to persons not party to this litigation. The Court has given great pause to this decision and is resolute about its rightness. Therefore, it is hereby
*2 ORDERED that the Motion to Decertify Classes (Doc. # 259) is GRANTED.
It is further ORDERED that this decision is subject to the representation of the parties that they “will file a joint stipulation of dismissal upon entry of” this Order; failure to comply with this representation will result in prompt reconsideration of this Order.
	  
1

Susan J. v. Riley, Not Reported in F.Supp.2d (2009)

Footnotes

1

Defendants John M. Houston and Bob Riley later moved to join the Motion. (Doc # 261.) This Motion was made simply to clarify

the record, and the parties intended John M. Houston and Bob Riley to be movants from the outset.

	  

2

 
 Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 1 of 50
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:00−cv−00918−MEF−WC

CLOSED

J., et al v. Riley, et al Assigned to: Hon. Chief Judge Mark E. Fuller Referred to: Honorable Wallace Capel, Jr Demand: $0 Cause: 42:1396 − Tort Negligence
Plaintiff
Susan J.

Date Filed: 07/12/2000 Date Terminated: 08/10/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Deborah Ann Mattison Wiggins Childs Quinn &Pantanzis, PC The Kress Building 301 19th Street North Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: dmattison@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter Alabama Disabilities Advocacy Program 500 Martha Parham West PO Box 870395 Tuscaloosa, AL 35487 205−348−4928 Fax: 205−348−3909 Email: gnbaxter@bama.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker Alabama Disabilities Advocacy Program P. O. Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: jtucker@adap.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr Office Responsive Programs University of Alabama P. O. Box 870104 Tuscaloosa, AL 35487−0104 205−348−7812 Fax: 205−348−8882 Email: lcarr@fa.ua.edu TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley Wiggins, Childs, Quinn &Pantazis LLC The Kress Building 301 19th Street North Birmingham, AL 35203 205−314−0500 Email: rmcginley@wcqp.com LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 2 of 50

ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. Kracke &Thompson, LLC 2204 Lakeshore Drive Suite 306 Birmingham, AL 35209 205−933−2756 Fax: 205−939−1248 Email: rkracke@ktlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss Ogletree, Deakins, Nash, Smoak &Stewart, PC 1819 5th Avenue North Suite 1000 Birmingham, AL 35203 205−328−1900 Fax: 205−328−6000 Email: sandra.reiss@odnss.com TERMINATED: 07/13/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney Alabama Disabilities Advocacy Program P. O. Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: jphackney@adap.ua.edu ATTORNEY TO BE NOTICED

Plaintiff
Ledell R. by his mother and next friend Mary R. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss (See above for address) TERMINATED: 07/13/2001 LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 3 of 50

ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Gregory T. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss (See above for address) TERMINATED: 07/13/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
John H. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 4 of 50

TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss (See above for address) TERMINATED: 07/13/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Jennifer H. by her mother and next friend Myrna H. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss (See above for address) TERMINATED: 07/13/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Shavon H. by her mother and next friend, Marion L.

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 5 of 50

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Beth Reiss (See above for address) TERMINATED: 07/13/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Elizabeth A. by her mother and next friend, Debbie G.

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Beverly W. by her mother and next friend, Clarice W.

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 6 of 50

James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
James E. by his guardian, Donna E. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 7 of 50

Plaintiff Sarah P. by her guardian, Barbara P. TERMINATED: 07/26/2007
Plaintiff Beckie P. by her mother and next friend, Sharon P. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 8 of 50

LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Calvin R. by his guardian, Kathy R. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Elizabeth B. by her mother and next friend, Celeste B. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 9 of 50

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Matthew P. by her mother and next friend, Kay P. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 10 of 50

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Jerries P. by her next friend, Roslyn J. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Tara L. by her mother and next friend, Belinda L.

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 11 of 50

ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ernest B. through his guardian Ruthie F. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 12 of 50

TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Kelly B. by her mother and next friend, Karen B. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Charles D. through his mother and next friend Carolyn D. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 13 of 50

(See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Lindsey P. by her mother and next friend, Vickie P. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 14 of 50

Paula A. by her mother and next friend, Teresa A. TERMINATED: 07/26/2007

Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Krystal W. by her mother and next friend, Kathy W.

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 15 of 50

ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Billy J. through his guardian, Charles N. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Eduardo S. through his mother and next friend, Mable S. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 16 of 50

Plaintiff
Nick P. TERMINATED: 07/26/2007

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 17 of 50

Plaintiff Bradley S. TERMINATED: 07/26/2007
Plaintiff Anthony J. through his mother and next friend, Janice R. TERMINATED: 07/26/2007

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 18 of 50

ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Nicholas A. by his mother and next friend, Melissa T. TERMINATED: 09/30/2008

represented by Deborah Ann Mattison (See above for address) TERMINATED: 09/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 09/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 19 of 50

Plaintiff Shirley R. through her guardian, John W.B. TERMINATED: 07/26/2007
Plaintiff Angie D. through her guardians Michelle and Herbert D.

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 20 of 50

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff
Shea G. TERMINATED: 07/26/2007

represented by Deborah Ann Mattison (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Arnold Tucker (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY

Rachel Lee McGinley (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Russell Kracke , Sr. (See above for address) TERMINATED: 07/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 07/26/2007 ATTORNEY TO BE NOTICED

Plaintiff Paul B

represented by Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 21 of 50

ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rico C

represented by Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Tamara C TERMINATED: 09/30/2008

represented by Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 09/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED

Plaintiff
Dusti M TERMINATED: 09/30/2008

represented by Glenn Nelson Baxter (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lee McGinley (See above for address) TERMINATED: 09/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 09/30/2008 ATTORNEY TO BE NOTICED

Plaintiff Charles P

represented by Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 22 of 50

Plaintiff Brichette W
Plaintiff All Plaintiffs

Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED
represented by Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenn Nelson Baxter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Arnold Tucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Wilson−Carr (See above for address) TERMINATED: 08/11/2006 LEAD ATTORNEY
Rachel Lee McGinley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Russell Kracke , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 23 of 50

Defendant
Don Siegelman in his official capacity as Governor of the State of Alabama TERMINATED: 05/20/2003

represented by Gary Rick Trawick Slaten &O'Connor, PC 5960 Carmichael Place Suite 200 Montgomery, AL 36117 334−396−8882 Fax: 334−396−8880 Email: rtrawick@slatenlaw.com TERMINATED: 05/20/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathy Sawyer in her official capacity as Commissioner of Mental Health/Mental Retardation for the State of Alabama TERMINATED: 08/17/2007

represented by Courtney Wayne Tarver Department of Mental Health &Mental Retardation Bureau of Legal Services P. O. Box 301410 Montgomery, AL 36130−1410 334−242−3038 Fax: 334−242−0924 Email: courtney.tarver@mh.alabama.gov TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Elzy Jackson Department of Mental Health and Mental Retardation PO Box 301410 Montgomery, AL 36130−1410 334−242−3056 Fax: 334−242−0684 Email: david.jackson@mh.alabama.gov TERMINATED: 08/03/2007 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gary Rick Trawick (See above for address) TERMINATED: 10/11/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis State of Alabama Office of the Attorney General 500 Dexter Ave. Montgomery, AL 36130 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Joseph Park , Jr. 3420 South Stafford Street Arlington, VA 22206 703−888−8329 Email: johnpark2006@comcast.net TERMINATED: 07/25/2007

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 24 of 50

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming State of Alabama Office of the Attorney General 500 Dexter Ave. Montgomery, AL 36130 334−353−3738 Fax: 334−353−8440 Email: mfleming@ago.state.al.us TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty S. Fairbanks Office of the Attorney General 11 South Union Street, 3d Floor Montgomery, AL 36130−0152 334−353−8674 Fax: 334−353−8440 Email: mfairbanks@ago.state.al.us TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Eldon Wilson James Eldon Wilson, Attorney−at−Law PO Box 241345 Montgomery, AL 36124−346 334−409−2003 Fax: 334−409−2009 Email: jameseldonwilson@mindspring.com TERMINATED: 08/17/2007 ATTORNEY TO BE NOTICED

Defendant
Alabama Department of Mental Health and Mental Retardation

represented by Courtney Wayne Tarver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Elzy Jackson (See above for address) TERMINATED: 08/03/2007 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gary Rick Trawick (See above for address) TERMINATED: 10/11/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Joseph Park , Jr. (See above for address) TERMINATED: 07/25/2007 LEAD ATTORNEY

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 25 of 50

ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty S. Fairbanks Office of the Attorney General 500 Dexter Avenue Montgomery, AL 36130 334−353−8674 Fax: 334−353−8440 Email: mfairbanks@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Parker , Jr. State of Alabama Office of the Attorney General 500 Dexter Ave. Montgomery, AL 36130 334−242−7997 Fax: 334−353−8440 Email: Wparker@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Eldon Wilson (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Doe TERMINATED: 04/09/2007

represented by James Patrick Hackney (See above for address) TERMINATED: 04/09/2007 ATTORNEY TO BE NOTICED

Defendant
John M. Houston Commissioner of the State of Alabama Department of Mental Health and Mental Retardation

represented by Courtney Wayne Tarver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Eldon Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty S. Fairbanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 26 of 50

William G. Parker , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Non Party MR/DD Health Care Authority of Jefferson County TERMINATED: 06/03/2009

represented by Ezra Jordan , III Jordan Law Firm LLC 205 20th St. Suite 636 Birmingham, AL 35203 205−251−1115 Fax: 205−251−1105 Email: ezrajordan@lawyer.com TERMINATED: 06/03/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bob Riley Governor of the State of Alabama

represented by Courtney Wayne Tarver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Elzy Jackson (See above for address) TERMINATED: 08/03/2007 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Joseph Park , Jr. (See above for address) TERMINATED: 07/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty S. Fairbanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Parker , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Eldon Wilson (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 27 of 50

07/12/2000 07/13/2000
07/14/2000 07/14/2000 07/19/2000 07/19/2000 07/20/2000 07/20/2000 07/24/2000 07/24/2000 09/12/2000 09/12/2000 09/12/2000 09/15/2000
10/10/2000
10/10/2000 10/10/2000 10/13/2000 07/10/2001 07/13/2001

1 COMPLAINT Filing Fee $ 150 Receipt # 82778 (war) (Entered: 07/14/2000)
2 REQUEST FOR WAIVER of Service as to Don Siegelman, Kathy Sawyer, Ala. Dept. of Mental 7/13/00 Waiver of Service due by 8/14/00 for Ala. Dept. of Mental, for Kathy Sawyer, for Don Siegelman Answer deadline projected for 9/11/00 for Ala. Dept. of Mental, for Kathy Sawyer, for Don Siegelman (war) (Entered: 07/14/2000)
Sent Notice of Assignment to U.S. Magistrate Judge to plaintiff's counsel (war) (Entered: 07/14/2000)
File referred to Magistrate Judge Coody (war) (Entered: 07/14/2000)
CASE reassigned to Judge Myron H. Thompson (ajr) (Entered: 07/19/2000)
File referred to Judge Thompson (ajr) (Entered: 07/19/2000)
3 AMENDED COMPLAINT by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. amending [1−1] complaint, referred to Magistrate Judge Thompson (war) (Entered: 07/21/2000)
4 MOTION by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. for Protective Order referred to Judge Myron H. Thompson (war) (Entered: 07/21/2000)
5 ORDER granting [4−1] motion for Protective Order ( signed by Judge Myron H. Thompson ) , copies mailed to counsel; furnished to SC. (war) (Entered: 07/24/2000)
6 WAIVER OF SERVICE Returned Executed as to Don Siegelman, Kathy Sawyer, Ala. Dept. of Mental (war) (Entered: 07/25/2000)
Motion(s) referred to Judge Myron H. Thompson: [7−1] motion to Dismiss, referred originally to MJ Coody in error. (dkt clerk) Modified on 10/16/2001 (Entered: 10/16/2001)
7 MOTION by Don Siegelman, Kathy Sawyer, Ala. Dept. of Mental to Dismiss (Exhibits A−F attached), referred to Mag. Judge Charles S. Coody (war) (Entered: 09/13/2000)
Motion(s) referred to Judge Myron H. Thompson : #7 by dft Siegelman et al to dismiss, referred originally to MJ in error. (yg) (Entered: 09/17/2001)
8 ORDER [7−1] motion to Dismiss by Ala. Dept. of Mental, Kathy Sawyer, Don Siegelman set for submission on 10/10/00 setting Brief deadline to 10/10/20 ( signed by Judge Myron H. Thompson ) , copies provided to counsel for fax as directed. (war) (Entered: 09/15/2000)
9 REPLY (RESPONSE) by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. to response to [7−1] motion to Dismiss by Ala. Dept. of Mental, Kathy Sawyer, Don Siegelman (Exhibits l−2 attached), referred to Judge Myron H. Thompson (war) (Entered: 10/10/2000)
10 MOTION by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. for a continuance to permit discovery (Rule 56(f) referred to Judge Myron H. Thompson (war) (Entered: 10/10/2000)
11 BRIEF by Don Siegelman, Kathy Sawyer, Ala. Dept. of Mental in support of [7−1] motion to Dismiss, referred to Judge Myron H. Thompson (war) (Entered: 10/11/2000)
12 ORDER denying [10−1] motion for a continuance to permit discovery (Rule 56(f) ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (war) (Entered: 10/13/2000)
13 MOTION for Sandra B. Reiss to Withdraw as Counsel for Plaintiffs . Referred to Judge Myron H. Thompson (dkt clerk) (Entered: 07/11/2001)
14 ORDER granting [13−1] motion for Sandra B. Reiss to Withdraw as Counsel for Plaintiffs ( signed by Judge Myron H. Thompson ) , copies provided to counsel.

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 28 of 50

08/30/2001 09/19/2001 10/08/2002 10/11/2002 10/23/2002 12/06/2002 12/06/2002 12/10/2002 05/13/2003 05/20/2003
06/15/2004
06/15/2004 06/15/2004
06/22/2004 06/22/2004 06/30/2004 06/30/2004 06/30/2004

(mfm) (Entered: 07/13/2001)
REFERRAL JUDGE reassigned to Mag. Judge Vanzetta P. McPherson (dkt clerk) (Entered: 08/30/2001)
15 MOTION by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. to allow limited Discovery and other relief (Exhibits A thru C attached). Referred to Judge Myron H. Thompson (djy) (Entered: 09/20/2001)
16 MOTION by Don Siegelman, Ala. Dept. of Mental, Kathy Sawyer for G. R. Trawick to Withdraw as Attorney referred to Judge Myron H. Thompson (djy) (Entered: 10/09/2002)
17 ORDER granting [16−1] motion for G. R. Trawick to Withdraw as Attorney; ( signed by Judge Myron H. Thompson ) , copies provided; furnished to SC. (ydw) (Entered: 10/11/2002)
18 NOTICE of Attorney Appearance for Kathy Sawyer, Ala. Dept. of Mental by Courtney Wayne Tarver, David E. Jackson (ajr) (Entered: 10/24/2002)
CASE reassigned to Judge Mark E. Fuller (djy) (Entered: 12/06/2002)
Motion(s) referred to Judge Mark E. Fuller : [7−1] motion to Dismiss referred to Judge Mark E. Fuller, [15−1] motion to allow limited Discovery and other relief referred to Judge Mark E. Fuller (djy) (Entered: 12/06/2002)
19 ** NOTICE of CASE reassigned to Judge Mark E. Fuller , copies provided. (djy) (Entered: 12/10/2002)
20 MOTION by Susan J., Ledell R., Gregory T., John H., Jennifer H., Shavon H. to Substitute defendant referred to Judge Mark E. Fuller (ajr) (Entered: 05/14/2003)
21 Stamped ORDER granting [20−1] motion to Substitute defendant; terminated Don Siegelman; Added Bob Riley as Governor of the State of Alabama ( signed by Judge Mark E. Fuller ) , copies provided to counsel and Bob Riley. (djy) (Entered: 05/20/2003)
22 ORDER that the caption of this case is changed to reflect that this action is brought against Bob Riley, in his official capacity as Governor of the State of Alabama; the parties are directed to use the new caption as it appears on this order for all future submission to the Court. Signed by Judge Mark E. Fuller on 6/15/04. (vmc, ) (Entered: 06/15/2004)
23 ORDER denying 7 Motion to Dismiss; it is further ordered that on or before 6/30/04 the dfts shall file their answer to the First Amended Complaint . Signed by Judge Mark E. Fuller on 6/15/05. (vmc, ) (Entered: 06/15/2004)
24 ORDER re 15 Motion for Discovery; Defendants' Show Cause Response due by 6/30/2004 as to why the plaintiffs' motion should not be granted ; Plaintiffs' Response due by 7/9/2004.. Signed by Judge Mark E. Fuller on 6/15/04. (vmc, ) (Entered: 06/15/2004)
25 NOTICE of Appearance by James A. Tucker on behalf of Susan J. (vmc, ) (Entered: 06/23/2004)
26 NOTICE of Appearance by Lauren Wilson−Carr on behalf of Susan J. (vmc, ) (Entered: 06/23/2004)
27 ANSWER to Amended Complaint, ANSWER to Complaint by Alabama Department of Mental Health and Mental Retardation, Bob Riley, Kathy Sawyer.(vmc, ) (Entered: 07/01/2004)
***Attorney Courtney Wayne Tarver for Bob Riley, David Elzy Jackson for Bob Riley added. (vmc, ) (Entered: 07/01/2004)
28 Defendant's RESPONSE TO ORDER TO SHOW CAUSE re 24 Order by Alabama Department of Mental Health and Mental Retardation, Bob Riley, Kathy Sawyer (w/attach.)(vmc, ) (Entered: 07/01/2004)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 29 of 50

07/08/2004 07/12/2004 07/13/2004 07/30/2004 08/06/2004
08/19/2004 08/30/2004
11/02/2004 11/03/2004 11/04/2004 05/25/2005 05/27/2005 06/01/2005 06/02/2005 06/03/2005
06/06/2005

29 Reply to response to order to show cause filed by Jennifer H., John H., Shavon H., Susan J., Ledell R., Gregory T.. (Mattison, Deborah) (Entered: 07/08/2004)
30 ORDER directing the parties file the Rule 26(f) report containing the discovery plan as soon as practicable, as further set out in order; Rule 26 Meeting Report due by 7/30/2004. Signed by Judge Mark E. Fuller on 7/12/04. (djy, ) (Entered: 07/12/2004)
31 ORDER denying as moot 15 Motion for Discovery . Signed by Judge Mark E. Fuller on 7/13/04. (djy, ) (Entered: 07/13/2004)
32 REPORT of Parties' Planning Meeting. (vmc, ) (Entered: 08/02/2004)
33 SCHEDULING ORDER: Final Pretrial Conference set for 9/8/2005 before Hon. Chief Judge Mark E. Fuller. Non−Jury Trial set for 10/24/2005 before Hon. Chief Judge Mark E. Fuller. Amended Pleadings due by 10/27/2004. Discovery due by 8/25/2005. Motions due by 6/10/2005. Mediation Notice due by 7/6/2005. Signed by Judge Mark E. Fuller on 8/6/04. (furn: yg hc kg)(vmc, ) (Entered: 08/06/2004)
34 MOTION to Amend 33 Scheduling Order by Jennifer H., John H., Shavon H., Susan J., Ledell R., Gregory T.. (djy, ) (Entered: 08/20/2004)
35 ORDER granting 34 MOTION to Amend 33 Scheduling Order; It is further Ordered that Section 4 and Section 5 of the Uniform Scheduling Order (Doc. #33) entered on 8/6/04 shall read as follows: SECTION 4. Any motions to amend the pleadings and to add parties shall be filed on or before 6/1/05; Amended Pleadings due by 6/1/2005; SECTION 5. Any motion for class certification shall be filed on or before 6/10/05 as further set out in order. Signed by Judge Mark E. Fuller on 8/30/04. (vmc, ) (Entered: 08/30/2004)
36 STATUS REPORT Joint Report of the Parties' Settlement Attempts by Alabama Department of Mental Health and Mental Retardation, Jennifer H., John H., Shavon H., Susan J., Ledell R., Bob Riley, Kathy Sawyer, Gregory T.. (Tarver, Courtney) (Entered: 11/02/2004)
37 NOTICE of Deficiency re 36 Joint Report of the Parties' Settlement Attempts (vmc, ) (Entered: 11/03/2004)
38 NOTICE of Correction re 36 Joint Report (Attachments: #1 corrected PDF document to doc. entry #36)(vmc, ) (Entered: 11/04/2004)
39 Joint MOTION for Extension of Deadline by Shavon H., Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley, Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Mattison, Deborah) (Entered: 05/25/2005)
40 ORDER Setting Hearing on Motion 39 Joint MOTION for Extension of Deadline: Motion Hearing set for 6/15/2005 09:00 AM by telephone before Hon. Chief Judge Mark E. Fuller as further set out. Signed by Judge Mark E. Fuller on 5/27/05. (furn: yg hc kg)(vmc, ) (Entered: 05/27/2005)
41 First MOTION to Amend/Correct First Amended Complaint by Susan J.. (Attachments: # 1)(Wilson−Carr, Lauren) (Entered: 06/01/2005)
42 ORDER TO SHOW CAUSE as to why 41 Motion to Amend/Correct filed by Susan J., should not be granted. Show Cause Response due by 6/7/2005. Signed by Judge Mark E. Fuller on 6/2/05. (vmc, ) (Entered: 06/02/2005)
43 MOTION for Extension of Deadline for Class Certification, Dispositive Motions and Plaintiffs' Deadline to Disclose Experts due June 10, 2005, and Defendants' Requirement to Show Cause Due by June 7, 2005 by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley, (Jennifer H., John H., Shavon H., Susan J. Ledell R., Gregory T.) . (Tarver, Courtney) Modified on 6/6/2005 − to add additional filers (vmc, ). (Entered: 06/03/2005)
NOTICE of Docket Text Correction re 43 MOTION for Extension of Deadline, etc. − Modified on 6/6/2005 − to add additional filers (vmc, ). (No PDF attached to this notice)(vmc, ) (Entered: 06/06/2005)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 30 of 50

06/06/2005
06/06/2005 06/15/2005 06/21/2005
06/21/2005 06/22/2005 07/07/2005
07/08/2005
07/15/2005 08/01/2005 08/02/2005 08/15/2005

44 ORDER resetting Hearing on 39 Joint MOTION for Extension of Deadline. Motion Hearing set for 6/15/05 is rescheduled for 6/15/2005 03:00 PM in chambers before Hon. Chief Judge Mark E. Fuller; It is further ordered that the Joint Motion to Suspend Certain Filing deadlines doc. 43 is granted. Signed by Judge Mark E. Fuller on 6/6/05. (furn: yg hc kg)(vmc, ) Modified on 6/6/2005 to additional text granting 43 joint motion (vmc, ). (Entered: 06/06/2005)
NOTICE of Docket Text Correction re 44 Order Setting Hearing on Motion − Modified on 6/6/2005 to additional text granting 43 joint motion (vmc, ). (No PDF attached to this docket entry)(vmc, ) (Entered: 06/06/2005)
Minute Entry for proceedings held before Judge Mark E. Fuller : Status Conference held on 6/15/2005. [No PDF is attached] (kcg, ) (Entered: 07/13/2005)
45 ORDER granting 41 First MOTION for leave to file second Amended Complaint and to Join Additional Plaintiffs filed by Susan J.; Plaintiffs shall file the Second Amended Complaint on or before 6/24/05; Amended Pleadings due by 6/24/2005; Dfts shall file an Answer to the Second Amended Complaint on or before 8/1/05; The deadlines set forth in the Scheduling Order entered on 8/6/04 33 are hereby continued generally; The Clerk of the Court is directed to remove the above−styled case from the 10/24/05 Montgomery Non−jury trial term; Parties' modified Rule 26(f) Meeting Report due on or before 9/30/2005 as further set out in order; The parties shall file joint status reports on the 15th of each month, beginning with 7/15/05, as further set out; Status Report due by 7/15/2005: Setting Scheduling Conference for 10/12/2005 10:00 AM in chambers before Hon. Chief Judge Mark E. Fuller.. Signed by Judge Mark E. Fuller on 6/21/05. (furn: yg hc kg)(vmc, ) (Entered: 06/21/2005)
46 SECOND AMENDED COMPLAINT against all defendants, filed by Susan J..(Wilson−Carr, Lauren) (w/Appendix A attached) Modified on 6/22/2005 − to show Second Amended Complaint (w/Appendix A attached) (vmc, ). (Entered: 06/21/2005)
NOTICE of Docket Text Correction re 46 Amended Complaint − Modified on 6/22/2005 − to show Second Amended Complaint (w/Appendix A attached) (No PDF attached to this notice)(vmc, ) (Entered: 06/22/2005)
47 Joint MOTION To File Status Reports Under Seal by Shavon H., Don Siegelman, Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley, Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Mattison, Deborah) (Entered: 07/07/2005)
48 ORDER granting 47 Joint Motion To File Status Reports Under Seal; the parties may file each status report under seal by placing the same in a sealed envelope with the case name and number and labeled as "status reports to be filed under seal."; These reports SHALL NOT be filed electronically but SHALL be submitted to the Clerk of the Court . Signed by Judge Mark E. Fuller on 7/8/05. (vmc, ) (Entered: 07/08/2005)
49 SEALED DOCUMENT − Joint Status Report (Sealed per order of 7/8/05 − Doc. 48 ). (vmc, ) (Entered: 07/18/2005)
50 ANSWER to (Second) Amended Complaint by Bob Riley.(Jackson, David) Modified on 8/2/2005 − make text read Answer to Second Amended Complaint(vmc, ). (Entered: 08/01/2005)
NOTICE of Docket Text Correction re 50 Answer to Amended Complaint − Modified on 8/2/2005 − make text read Answer to (Second) Amended Complaint(vmc, ). (No PDF attached to this docket entry)(vmc, ) (Entered: 08/02/2005)
51 SEALED DOCUMENT − Joint Status Report − Sealed per order of 7/8/05 − doc. 48 . (vmc, ) (Entered: 08/15/2005)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 31 of 50

09/15/2005 09/28/2005 10/12/2005
10/12/2005 10/14/2005 11/14/2005 12/15/2005 12/15/2005 12/19/2005
12/19/2005 12/21/2005 12/23/2005 02/17/2006 02/17/2006
03/20/2006
03/20/2006

52 SEALED DOCUMENT − Joint Status Report − (Sealed per order of 7/8/05 − Doc. 48 . (vmc, ) (Entered: 09/16/2005)
53 Modified REPORT of Parties' Rule 26(f) Planning Meeting. (vmc, ) (Entered: 09/28/2005)
54 ORDER it is hereby Ordered as follows: 1) The parties shall continue to submit a status report on the 15th day of each month; The parties may file each status report under seal by placing the same in a sealed envelope with the case name and number and labeled "status reports to be filed under seal." These reports shall not be filed electronically but shall be submitted to the Clerk of Court; 2) Setting Status Conference for 12/19/2005 10:00 AM in chambers before Hon. Chief Judge Mark E. Fuller. Signed by Judge Mark E. Fuller on 10/12/05. (furn: yg hc kg)(vma, ) (Entered: 10/12/2005)
Minute Entry for proceedings held before Judge Mark E. Fuller : Telephone Scheduling Conference held on 10/12/2005. (no pdf is attached) (kcg, ) (Entered: 11/09/2005)
55 SEALED DOCUMENT − Joint Status Report of the Parties − Sealed per order of 10/12/05 − doc. 54 . (vma, ) (Entered: 10/17/2005)
56 SEALED DOCUMENT − Joint Status Report of the Parties − Sealed per order of 10/12/05 − doc. 54 . (vma, ) (Entered: 11/15/2005)
57 NOTICE of Appearance by John J. Park, Jr on behalf of Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley (Park, John) (Entered: 12/15/2005)
58 SEALED DOCUMENT − Joint Status Report of the Parties − Sealed per order of 10/12/05 doc. − 54 . (vma, ) (Entered: 12/16/2005)
59 ORDER it is hereby Ordered that any dispositive motion concerning the proper standing of any Plantiff before this Court shall be filed on or before 2/17/06; Motions due by 2/17/2006. Response to Motion due by 3/20/2006. Reply Brief due by 3/28/2006; In accordance with this arrangement, it is Ordered that the parties' obligation to file monthly status reports is suspended until further notice from the Court. Signed by Judge Mark E. Fuller on 12/19/05. (vma, ) (Entered: 12/19/2005)
Minute Entry for proceedings held before Judge Mark E. Fuller : Status Conference held on 12/19/2005. [no pdf attached] (kcg, ) (Entered: 01/09/2006)
60 NOTICE of Deficiency re 58 Sealed Document (vma, ) (Entered: 12/21/2005)
61 Plaintiffs' Notice of Assent to Filing of Joint Status Report re 58 Sealed Document (vma, ) (Entered: 12/27/2005)
62 MOTION for Judgment on the Pleadings by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Park, John) (Entered: 02/17/2006)
63 BRIEF/MEMORANDUM in Support re 62 MOTION for Judgment on the Pleadings filed by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Park, John) (Entered: 02/17/2006)
64 RESPONSE to Motion re 62 MOTION for Judgment on the Pleadings filed by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Mattison, Deborah) (Entered: 03/20/2006)
65 BRIEF/MEMORANDUM in Opposition to Defendants' Motion for Judgment on the Pleadings, filed by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Mattison, Deborah) Modified on

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 32 of 50

03/21/2006 03/21/2006 03/28/2006
03/29/2006 06/23/2006
07/07/2006 07/07/2006 07/10/2006
07/24/2006 08/08/2006 08/10/2006 08/11/2006 08/11/2006 08/11/2006 09/13/2006 11/29/2006

3/21/2006 − to create relationship to doc. 62 m/jgm pleadings (vma, ). Additional attachment(s) added on 3/21/2006 (vma, ). (Entered: 03/20/2006)
NOTICE of Docket Text Correction re 65 BRIEF/MEMORANDUM in Opposition − Modified on 3/21/2006 − to create relationship to doc. 62 m/jgm pleadings (No PDF attached to this notice)(vma, ) (Entered: 03/21/2006)
66 NOTICE of Correction attaching corrected PDF (w/corrected signatures) re 65 BRIEF/MEMORANDUM in Opposition,, (Attachments: # 1 corrected PDF)(vma, ) (Entered: 03/21/2006)
67 REPLY BRIEF Memorandum in Support of Motion for Judgment on the Pleadings filed by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Park, John) Modified on 3/29/2006 − to create relationship to doc. 62 m/jgm pleadings (vma, ). (Entered: 03/28/2006)
NOTICE of Docket Text Correction re 67 Reply Brief, − Modified on 3/29/2006 − to create relationship to doc. 62 m/jgm pleadings (No PDF attached to this notice)(vma, ) (Entered: 03/29/2006)
68 OPINION AND ORDER, denying 62 MOTION for Judgment on the Pleadings filed by Alabama Department of Mental Health and Mental Retardation,, Kathy Sawyer,, Bob Riley; In accordance with the Court's ruling, it is further Ordered that the parties shall file by 7/7/06 a joint status report under the same conditions as prescribed in the Court's order doc. 48 of 7/8/05; Status Report due by 7/7/2006. Signed by Judge Mark E. Fuller on 6/23/06. (Attachments: # 1 appeals checklist)(vma, ) (Entered: 06/23/2006)
69 MOTION for Certification by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Park, John) (Entered: 07/07/2006)
70 SEALED DOCUMENT − Joint Status Report of the Parties − Sealed per order of 6/23/06 − doc. 68 . (vma, ) (Entered: 07/10/2006)
71 ORDER TO SHOW CAUSE as to why 69 Motion for Certification filed by Alabama Department of Mental Health and Mental Retardation,, Kathy Sawyer,, Bob Riley, should not be granted. Show Cause Response due by 7/24/2006. Signed by Judge Mark E. Fuller on 7/10/06. (vma, ) (Entered: 07/10/2006)
72 RESPONSE to Motion re 69 MOTION for Certification Plaintiff's Response to Defendants' Extraordinary Motion For Certication for Interlocutory Appeal filed by Susan J.. (Tucker, James) (Entered: 07/24/2006)
73 NOTICE of Appearance by Misty S. Fairbanks on behalf of Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley (Fairbanks, Misty) (Entered: 08/08/2006)
74 MOTION for Lauren Wilson−Carr to Withdraw as Attorney by Susan J.. (Wilson−Carr, Lauren) Modified on 8/11/2006 − to add Atty Lauren Wilson−Carr to text(vma, ). (Entered: 08/10/2006)
NOTICE of Docket Text Correction re 74 MOTION to Withdraw as Attorney − Modified on 8/11/2006 − to add Atty Lauren Wilson−Carr to text. (No PDF attached to this notice)(vma, ) (Entered: 08/11/2006)
75 ORDER granting 74 Motion for Lauren Wilson−Carr to Withdraw as Attorney for plaintiffs . Signed by Judge Mark E. Fuller on 8/11/06. (vma, ) (Entered: 08/11/2006)
*** Attorney Lauren Wilson−Carr terminated − per order of 8/11/06 − doc. 75 . (No PDF attached)(vma, ) (Entered: 08/11/2006)
76 ORDER denying 69 MOTION for Certification . Signed by Judge Mark E. Fuller on 9/13/06. (vma, ) (Entered: 09/13/2006)
Due to the retirement of Judge Vanzetta P. McPherson this case has been reassigned to Judge Wallace Capel, Jr. as referral judge (NO PDF document attached to this notice.)(djy, ) (Entered: 11/29/2006)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 33 of 50

12/01/2006 12/19/2006 12/20/2006 12/20/2006 01/18/2007 01/23/2007
03/28/2007 04/09/2007 04/11/2007
04/18/2007
04/18/2007 04/24/2007
04/24/2007 04/24/2007

77 ORDER Setting Scheduling Conference for 12/19/2006 02:00 PM in chambers before Hon. Chief Judge Mark E. Fuller. Signed by Judge Mark E. Fuller on 12/1/06. (furn: yg hc kg)(vma, ) (Entered: 12/01/2006)
Minute Entry for proceedings held before Judge Mark E. Fuller : Status Conference held on 12/19/2006. [no pdf attached]. (kcg, ) (Entered: 12/22/2006)
78 ORDER directing the parties file the Rule 26(f) report containing the discovery plan as soon as practicable, as further set out in order; Rule 26 Meeting Report due by 1/19/2007. Signed by Judge Mark E. Fuller on 12/20/06. (djy, ) (Entered: 12/20/2006)
79 NOTICE of Appearance by James Patrick Hackney on behalf of all plaintiffs (Hackney, James) (Entered: 12/20/2006)
80 REPORT of Rule 26(f) Planning Meeting. (Tarver, Courtney) (Entered: 01/18/2007)
81 SCHEDULING ORDER: Final Pretrial Conference set for 1/4/2008 before Hon. Chief Judge Mark E. Fuller. Non−Jury Trial set for 2/4/2008 before Hon. Chief Judge Mark E. Fuller. Amended Pleadings due by 4/9/2007. Discovery due by 12/21/2007. Motions due by 10/5/2007. Mediation Notice due by 10/31/2007. Signed by Judge Mark E. Fuller on 1/23/07. (furn: yg hc kg)(vma, ) (Entered: 01/23/2007)
82 NOTICE of Appearance by James Eldon Wilson on behalf of all defendants (Wilson, James) (Entered: 03/28/2007)
83 First MOTION to Amend/Correct 3 Amended Complaint, 1 Complaint by Paul B, Rico C, Tamara C, John Doe, Dusti M, Charles P, Brichette W, Elizabeth A., Beverly W., Tara L., Kelly B., Krystal W., Nicholas A., Angie D.. (Attachments: # 1 Exhibit 3rd Amended Complaint)(Hackney, James). (Entered: 04/09/2007)
84 ORDER TO SHOW CAUSE as to why 83 Motion to Amend/Correct, filed by John Doe,, Elizabeth A.,, Beverly W.,, Tara L.,, Kelly B.,, Krystal W.,, Nicholas A.,, Angie D.,, Brichette W,, Charles P,, Rico C,, Tamara C,, Paul B,, Dusti M, should not be granted. Show Cause Response due by 4/18/2007. Signed by Judge Mark E. Fuller on 4/11/07. (vma, ) (Entered: 04/11/2007)
85 RESPONSE in Opposition To 83 Plaintiffs' Motion To File Third Amended Complaint and To Join Additional Plaintiffs by Alabama Department of Mental Health and Mental Retardation, Bob Riley, Kathy Sawyer. (Wilson, James) Modified on 4/18/2007 − to add Bob Riley &Kathy Sawyer as additional filers(vma, ). Modified on 4/19/2007 − to create relationship to doc. 83 (vma, ). (Entered: 04/18/2007)
NOTICE of Docket Text Correction re 85 Response in Opposition − Modified on 4/18/2007 − to add Bob Riley &Kathy Sawyer as additional filers. (No PDF attached to this notice)(vma, ) (Entered: 04/18/2007)
86 First MOTION to Strike 85 Response in Opposition, to Plaintiffs' Motion for Leave to File Third Amended Complaint and to Join Additional Plaintiffs by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Hackney, James) (Entered: 04/24/2007)
87 MOTION to Certify Class by Susan J. (Attachments: # 1 Supplement Attachment−Memorandum of Law# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3 # 5 Exhibit 4)(Tucker, James). Modified on 4/25/2007 to reflect as filed on behalf of all plaintiffs (qc/djy, ). (Entered: 04/24/2007)
MEMORANDUM of Law in Support of 87 MOTION to Certify Class filed by All Plaintiffs. (NO PDF Document attached−See Docket Entry 87 ). (djy, ) (Entered: 04/25/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 34 of 50

04/25/2007 05/01/2007 07/11/2007
07/12/2007
07/12/2007 07/13/2007
07/13/2007 07/13/2007 07/16/2007 07/16/2007 07/17/2007
07/18/2007 07/18/2007

NOTICE of Docket Text Correction re 87 MOTION to Certify Class to reflect as filed on behalf of all plaintiffs (NO PDF document attached to this notice.) (djy, ) (Entered: 04/25/2007)
88 RESPONSE in Opposition To Plaintiffs' Motion To Strike (Doc 86 ) by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Wilson, James). (Entered: 05/01/2007)
89 VACATED PER ORDER OF 7/12/07 − doc. 91 ***ORDER re 87 MOTION to Certify Class filed by John Doe,, Susan J.,, Ledell R.,, Gregory T.,, John H.,, Jennifer H.,, Shavon H.,, Elizabeth A.,, Beverly W.,, James E.,, Sarah P.,, Beckie P.,, Calvin R.,, Elizabeth B.,, Matthew P.,, Jerries P.,, Tara L.,, Ernest B.,, Kelly B.,, Charles D.,, Lindsey P.,, Paula A.,, Krystal W.,, Billy J.,, Eduardo S.,, Nick P.,, Bradley S.,, Anthony J.,, Nicholas A.,, Shirley R.,, Angie D.,, Shea G.,, Brichette W,, Charles P,, Rico C,, Tamara C,, Paul B,, Dusti M, Brief in Support due by 7/25/2007. Reply Brief due by 8/1/2007.. Signed by Judge Mark E. Fuller on 7/11/07. (vma, ) Modified on 7/12/2007 (vma, ). (Entered: 07/11/2007)
90 ORDER re 87 MOTION to Certify Class filed by John Doe,, Susan J.,, Ledell R.,, Gregory T.,, John H.,, Jennifer H.,, Shavon H.,, Elizabeth A.,, Beverly W.,, James E.,, Sarah P.,, Beckie P.,, Calvin R.,, Elizabeth B.,, Matthew P.,, Jerries P.,, Tara L.,, Ernest B.,, Kelly B.,, Charles D.,, Lindsey P.,, Paula A.,, Krystal W.,, Billy J.,, Eduardo S.,, Nick P.,, Bradley S.,, Anthony J.,, Nicholas A.,, Shirley R.,, Angie D.,, Shea G.,, Brichette W,, Charles P,, Rico C,, Tamara C,, Paul B,, Dusti M, Response to Motion due by 7/25/2007. Reply Brief due by 8/1/2007.. Signed by Judge Mark E. Fuller on 7/12/07. (vma, ) Modified on 7/12/2007 (vma, ). . (Entered: 07/12/2007)
91 ORDER that this court's order dated 7/11/07 − doc. 89 is vacated. Signed by Judge Mark E. Fuller on 7/12/07. (vma, ) (Entered: 07/12/2007)
92 MEMORANDUM OPINION AND ORDER, denying 83 First MOTION to Amend/Correct 3 Amended Complaint 1 Complaint to the extent it seeks to join either Kelly B. or other Joe Doe Party; granting in all other respects; denying 86 First MOTION to Strike 85 Response in Opposition. Signed by Judge Mark E. Fuller on 7/13/07. (Attachments: # 1 appeals checklist)(vma, ) (Entered: 07/13/2007)
93 NOTICE of Appearance by Rachel Lee Mcginley on behalf of all plaintiffs (Mcginley, Rachel) (Entered: 07/13/2007)
***Attorney Rachel Lee Mcginley for All Plaintiffs added − per doc. 93 . (No PDF attached)(vma, ) (Entered: 07/16/2007)
94 DISREGARD THIS DOCKET ENTRY − SEE CORRECTION DOC. 95 ***Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to all parties. Corporate Disclosures due by 7/30/2007. (vma, ) Modified on 7/16/2007 (vma, ). (Entered: 07/16/2007)
95 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to all parties. Corporate Disclosures due by 7/30/2007. (Attachments: # 1 standing order &sample format)(vma, ) (Entered: 07/16/2007)
96 Corporate/Conflict Disclosure Statement by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, All Plaintiffs, Susan J., Ledell R., Gregory T., John H., Jennifer H. re 95 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Mcginley, Rachel) (Entered: 07/17/2007)
97 NOTICE of Change of Address by Robert R. Kracke, Sr (Kracke, Robert) Additional attachment(s) added on 7/18/2007 (vma, ). (Entered: 07/18/2007)
98 NOTICE of Correction correcting PDF re 97 Notice of Change of Address (Attachments: # 1 corrected PDF)(vma, ) (Entered: 07/18/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 35 of 50

07/20/2007 07/20/2007 07/24/2007 07/24/2007 07/24/2007 07/25/2007 07/25/2007 07/25/2007 07/25/2007
07/25/2007 07/26/2007
07/27/2007 07/27/2007 07/27/2007
08/01/2007 08/03/2007 08/03/2007 08/08/2007 08/08/2007

99 MOTION to Substitute Party Substitute Commissioner John M. Houston for Kathy Sawyer by Kathy Sawyer. (Wilson, James) (Entered: 07/20/2007)
100 Corporate/Conflict Disclosure Statement by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Wilson, James) (Entered: 07/20/2007)
101 MOTION to Withdraw as Attorney by Bob Riley. (Park, John) (Entered: 07/24/2007)
102 NOTICE of Appearance by James William Davis on behalf of Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley (Davis, James) (Entered: 07/24/2007)
***Attorney James William Davis for Kathy Sawyer and Alabama Department of Mental Health and Mental Retardation added − per doc. 102 . (No PDF attached) (vma, ) (Entered: 07/25/2007)
103 ORDER granting 101 Motion to Withdraw as Attorney . Signed by Judge Mark E. Fuller on 7/25/07. (vma, ) (Entered: 07/25/2007)
*** Attorney John J. Park, Jr terminated − per order of 7/25/07 − doc. 103 . (No PDF attached)(vma, ) (Entered: 07/25/2007)
104 NOTICE of Appearance by Margaret L. Fleming on behalf of Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley (Fleming, Margaret) (Entered: 07/25/2007)
105 BRIEF/MEMORANDUM in Opposition re 87 MOTION to Certify Class, 90 Order,,, Set Deadlines,, filed by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Affidavit Affidavit of Fordyce Mitchel)(Davis, James) (Entered: 07/25/2007)
106 MOTION to Seal Documents filed in opposition to the plantiffs' motion for class certification (doc. 87 by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (vma, ) (Entered: 07/25/2007)
107 AMENDED COMPLAINT 3rd against all defendants, filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Nicholas A., Angie D., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, Susan J..(Hackney, James) (Entered: 07/26/2007)
108 First MOTION for Extension of Time to File Response/Reply as to 90 Order,,, Set Deadlines,, by All Plaintiffs. (Hackney, James) (Entered: 07/27/2007)
109 ORDER TO SHOW CAUSE as to why 99 Motion to Substitute Party filed by Kathy Sawyer, should not be granted. Show Cause Response due by 8/8/2007. Signed by Judge Mark E. Fuller on 7/27/07. (vma, ) (Entered: 07/27/2007)
110 ORDER granting 108 First MOTION for Extension of Time to File Response/Reply as to 90 Order,,, Set Deadlines,, filed by All Plaintiffs,. Reply Brief due by 8/8/2007. Signed by Judge Mark E. Fuller on 7/27/07. (vma, ) (Entered: 07/27/2007)
111 MOTION to Withdraw Attorney by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Jackson, David) (Entered: 08/01/2007)
112 ORDER granting 111 Motion to Withdraw . Signed by Judge Mark E. Fuller on 8/3/07. (vma, ) (Entered: 08/03/2007)
*** Attorney David Elzy Jackson terminated − per order of 8/3/07 − doc. 112 . (No PDF attached)(vma, ) (Entered: 08/03/2007)
113 RESPONSE to Motion re 99 MOTION to Substitute Party Substitute Commissioner John M. Houston for Kathy Sawyer filed by All Plaintiffs. (Hackney, James) (Entered: 08/08/2007)
114 REPLY to Response to Motion re 87 MOTION to Certify Class filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Hackney, James) (Entered: 08/08/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 36 of 50

08/09/2007
08/09/2007 08/17/2007 08/17/2007 08/31/2007 08/31/2007 08/31/2007
08/31/2007 09/04/2007
09/05/2007 09/11/2007 09/11/2007 09/12/2007

115 MOTION to Seal documents filed in response to dfts' opposition to the plaintiff's motion for class certification (doc. 105 ) by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, All Plaintiffs, Susan J., Ledell R., Gregory T., John H., Jennifer H.. (vma, ) (Entered: 08/09/2007)
116 ANSWER to Amended Complaint by Kathy Sawyer, Alabama Department of Mental Health and Mental Retardation, Bob Riley.(Fleming, Margaret) (Entered: 08/09/2007)
117 ORDER granting 99 Motion to Substitute Defendant Party. Signed by Judge Mark E. Fuller on 8/17/07. (vma, ) (Entered: 08/17/2007)
*** Attorney Courtney Wayne Tarver terminated for dft Sawyer − per order of 8/17/07 − doc. 117 . (No PDF attached)(vma, ) (Entered: 08/17/2007)
118 ORDER granting 106 Motion to Seal; granting 115 Motion to Seal. Signed by Judge Mark E. Fuller on 8/31/07. (vma, ) (Entered: 08/31/2007)
119 SEALED DOCUMENT − NOTICE OF FILING of Affidavit of Eranell McIntosh−Wilson in Opposition to the plaintiffs' Motion for Class Certification (Doc. 87 ) − SEALED PER ORDER OF 8/31/07 − doc. 118 . (Attachments: # 1 affidavit)(vma, ) (Entered: 08/31/2007)
120 SEALED DOCUMENT − A Summary of the Individual Circumstances of the named plaintiffs in opposition to the plaintiffs' motion for class clertification (Doc. 87 ). − DISREGARD THESE ATTACHMENTS − THESE AFFIDAVITS ARE NOT PART OF THIS DOCUMENT − THEY ARE BEING STRICKEN FROM THIS DOCKET ENTRY***(Attachments ARE STRICKEN****: # 1 Affidavit − Lang# 2 Affidavit − Gipner# 3 Affidavit − Wade# 4 Affidavit − Wood)(vma, ) Modified on 9/4/2007 − to show that Affidavits Lang, Gipner, Wade and Wood should be filed as separate documents &not as attachments to this document; See doc. no. 121 for filing of corrected docket entry for Affidavits Lang, Gipner, Wade and Wood (vma, ). Modified on 9/4/2007 (vma, ). (Entered: 08/31/2007)
121 SEALED DOCUMENT − AFFIDAVITS SEALED PER ORDER OF 8/31/07 − doc. 118 . (Attachments: # 1 Affidavit of Wade# 2 Affidavit of Wood# 3 Affidavit of Lang# 4 Affidavit of Gipner)(vma, ) (Entered: 09/04/2007)
NOTICE of Docket Text Correction re 120 Sealed Document − Modified on 9/4/07 re 120 Sealed Document − PLEASE DISREGARD THESE AFFIDAVITS FILED AS ATTACHMENT TO THIS DOCUMENT − THEY ARE BEING STRICKEN FROM THIS DOCKET ENTRY***(Attachments ARE STRICKEN****: # 1 Affidavit − Lang# 2 Affidavit − Gipner# 3 Affidavit − Wade# 4 Affidavit − Wood)(vma, )***See doc. 121 for filing of Plaintiffs' affidavits (vma, ) (Entered: 09/04/2007)
122 First MOTION to Amend/Correct 81 Scheduling Order, by All Plaintiffs. (Hackney, James) (Entered: 09/05/2007)
123 Objection to re 122 First MOTION to Amend/Correct 81 Scheduling Order, filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 09/11/2007)
RESPONSE in Opposition re 122 First MOTION to Amend/Correct 81 Scheduling Order, filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (No PDF attached; see doc. 123 for PDF)(vma, ) (Entered: 09/12/2007)
124 AMENDED SCHEDULING ORDER: Resetting Final Pretrial Conference from 1/4/08 to 5/8/2008 before Hon. Chief Judge Mark E. Fuller. Resetting Non−Jury Trial from 2/4/08 to 6/9/2008 before Hon. Chief Judge Mark E. Fuller. Discovery due by 4/24/2008. Motions due by 12/19/2007. Mediation Notice due by 1/14/2008. Signed by Judge Mark E. Fuller on 9/12/07. (furn: yg hc kg)(vma, ) (Entered: 09/12/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 37 of 50

09/12/2007 09/12/2007
09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/26/2007 10/01/2007 10/04/2007 10/16/2007
10/16/2007
10/18/2007 10/19/2007

125 ORDER as follows: 1) denying 122 Motion to Amend the Uniform Scheduling Order; 2) An Amended Uniform Scheduling Order has been entered (Doc. 124 to allow for supplemental submissions relating to class certification issues that will be addressed by a separate Memorandum Opinion and Order. Signed by Judge Mark E. Fuller on 9/12/07. (vma, ) (Entered: 09/12/2007)
126 MEMORANDUM OPINION AND ORDER as follows: 1) Denying Plaintiffs' 87 MOTION for Class Certification; 2) Plaintiffs are given leave to file an Amended Motion for Class Certification that proposes subclasses, with substantive and procedural claims occupying different subclasses; Plaintiff's shall file this Amended Motion, along with all appropriate supporting factual submissions and legal arguments by no later than 9/19/07; 3) Defendants may file a Response to Plaintiffs' Amended Motion no later than 9/26/07; 4) Plaintiffs may file a Reply to Defendants' Response no later than 10/1/07. Signed by Judge Mark E. Fuller on 9/12/07. (Attachments: # 1 appeals checklist)(vma, ) (Entered: 09/12/2007)
127 MOTION for Summary Judgment as to All Claims Brought by Paul B. by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Brief in Support of Motion for Summary Judgment as to all Claims Brought by Paul B.# 2 Affidavit of Ed Dorsey)(Fairbanks, Misty) (Entered: 09/19/2007)
128 Second MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Supplement Brief in Support of Motion# 2 Exhibit #1# 3 Exhibit #2# 4 Exhibit #3# 5 Exhibit #4# 6 Exhibit #5)(Hackney, James) (Entered: 09/19/2007)
BRIEF/MEMORANDUM in Support re 127 MOTION for Summary Judgment as to All Claims Brought by Paul B. filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (No PDF attached; contained within doc. 127 )(vma, ) (Entered: 09/20/2007)
SUPPLEMENT BRIEF/MEMORANDUM in Support re 128 Second MOTION to Certify Class filed by All Plaintiffs. (No PDF attached; contained within doc. 128 )(vma, ) (Entered: 09/20/2007)
129 RESPONSE in Opposition re 128 Second MOTION to Certify Class filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Affidavit (2d) of Eranell McIntosh−Wilson)(Fleming, Margaret) (Entered: 09/26/2007)
130 REPLY to Response to Motion re 128 Second MOTION to Certify Class Plaintiffs' Reply To Defendants' Response To Plaintiffs' Amended Motion For Class Certification filed by All Plaintiffs. (Tucker, James) (Entered: 10/01/2007)
131 NOTICE of Appearance by William G. Parker, Jr on behalf of John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley (Parker, William) (Entered: 10/04/2007)
132 MOTION to Compel Discovery Responses by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Parker, William) Modified on 10/22/2007 − to show EXHIBITS B &F SEALED PER ORDER OF 10/22/07 − doc. 138 (vma, ). (Entered: 10/16/2007)
133 ORDER Setting Hearing on Motion 132 MOTION to Compel Discovery Responses : Motion Hearing set for 10/22/2007 10:30 by telephone before Honorable Wallace Capel Jr.; Counsel for the parties shall coordinate the telephone call; It is further Ordered that the Clerk of Court shall overnight this order to the parties. Signed by Judge Wallace Capel Jr. on 10/16/07. (furn: yg hc wr) (order mailed overnight as directed to parties)(vma, ) (Entered: 10/16/2007)
134 First MOTION to Dismiss Individual Claims by Tamara C, Dusti M. (Hackney, James) (Entered: 10/18/2007)
135 RESPONSE in Opposition re 132 MOTION to Compel Discovery Responses filed by All Plaintiffs. (Hackney, James) (Entered: 10/19/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 38 of 50

10/19/2007
10/19/2007 10/22/2007 10/31/2007 11/07/2007
11/08/2007 11/08/2007 11/15/2007
11/20/2007 11/29/2007 11/30/2007 12/04/2007

136 ORDER granting 132 MOTION to Compel Discovery Responses filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley; Plaintiffs are to provide all supplemental responses by 10/26/07, with the exception of responses concerning plaintiff Dusti M.; It is further Ordered that the telephone conference to be held on 10/22/07, at 10:30 am is Cancelled. Signed by Judge Wallace Capel Jr. on 10/19/07. (furn: yg hc wr)(vma, ) (Entered: 10/19/2007)
137 MOTION to Seal Exhibits Previously Filed Electronically by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Davis, James) (Entered: 10/19/2007)
138 ORDER granting 137 Motion to Seal Exhibits B and F Previously Filed Electronically; The Clerk of Court is directed to seal Exhibits B and F attached to Defendants' Motion to Compel (Doc. 132 ) until further order of this Court. Signed by Judge Wallace Capel Jr. on 10/22/07. (vma, ) (Entered: 10/22/2007)
139 ORDER TO SHOW CAUSE as to why 134 Motion to Dismiss filed by Tamara C, Dusti M should not be granted. Show Cause Response due by 11/9/2007. Signed by Judge Mark E. Fuller on 10/31/07. (vma, ) (Entered: 10/31/2007)
140 [STRICKEN PER NOTICE OF NON−COMPLIANCE] *This pleading is discovery and is not allowed pursuant to Local Rule 5.1 NON−FILING OF CIVIL DISCOVERY]***NOTICE by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, All Plaintiffs, Susan J., Ledell R., Gregory T., John H., Jennifer H. of Filing Expert Report (Attachments: # 1)(Mattison, Deborah) Modified on 11/8/2007 (vma, ). (Entered: 11/07/2007)
141 NOTICE of Non−Compliance re 140 Notice (Other)(vma, ) (Entered: 11/08/2007)
142 RESPONSE to Motion re 134 First MOTION to Dismiss Individual Claims filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 11/08/2007)
143 REPLY BRIEF re 142 Response to Motion filed by Shavon H., Elizabeth A., Beverly W., James E., Sarah P., Beckie P., Calvin R., Elizabeth B., Matthew P., Jerries P., Tara L., Ernest B., Kelly B., Charles D., Lindsey P., Paula A., Krystal W., Billy J., Eduardo S., Nick P., Bradley S., Anthony J., Nicholas A., Shirley R., Angie D., Shea G., Paul B, Rico C, Tamara C, Dusti M, Charles P, Brichette W, All Plaintiffs, Susan J., Ledell R., Gregory T., John H., Jennifer H.. (Mattison, Deborah) (Entered: 11/15/2007)
144 MOTION for Extension of Deadline Expert Disclosure and Dispositive Motions by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A)(Davis, James) (Entered: 11/20/2007)
145 ORDER TO SHOW CAUSE as to why 144 for Extension of Deadline filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley should not be granted. Show Cause Response due by 12/3/2007. Signed by Judge Mark E. Fuller on 11/29/07. (vma, ) (Entered: 11/29/2007)
146 RESPONSE in Opposition re 144 MOTION for Extension of Deadline Expert Disclosure and Dispositive Motions filed by All Plaintiffs. (Hackney, James) (Entered: 11/30/2007)
147 ORDER that: 1)granting in part and denying in part 144 MOTION for Extension of Deadline Expert Disclosure and Dispositive Motions filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley; 2) Defendants' expert disclosure deadline in Section 8 of the Amended Scheduling Order (doc. 124 ) is extended to 1/11/08; 3) The dispositive motions deadline in Section 2 of the Amended Scheduling Order is extended to 1/23/08. Motions due by 1/23/2008. Signed by Judge Mark E. Fuller on 12/4/07. (vma, ) (Entered: 12/04/2007)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 39 of 50

12/14/2007 12/14/2007 12/17/2007 12/18/2007 12/28/2007 12/28/2007 01/02/2008 01/03/2008 01/04/2008 01/04/2008 01/04/2008 01/08/2008
01/14/2008 01/14/2008

148 NOTICE of Appearance by Ezra Jordan, III on behalf of MR/DD Health Care Authority of Jefferson County (Jordan, Ezra) (Entered: 12/14/2007)
149 First MOTION to Quash Subpoena by MR/DD Health Care Authority of Jefferson County. (Attachments: # 1 Exhibit MRDD NON PARTY Exhibit A# 2 Exhibit MRDD NON PARTY Exhibit B# 3 Exhibit MRDD NON PARTY Exhibit C)(Jordan, Ezra) (Entered: 12/14/2007)
150 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to MR/DD Health Care Authority of Jefferson County. Corporate Disclosures due by 1/2/2008. (Attachments: # 1 standing order &sample format)(vma, ) (Entered: 12/17/2007)
151 Corporate/Conflict Disclosure Statement by MR/DD Health Care Authority of Jefferson County. (Jordan, Ezra) (Entered: 12/18/2007)
152 MOTION for Summary Judgment by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 12/28/2007)
153 BRIEF/MEMORANDUM in Support re 127 MOTION for Summary Judgment as to All Claims Brought by Paul B., 152 MOTION for Summary Judgment as to Claims of Susan J., Angie D., Elizabeth A., Charles P., and NIcholas A. filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 12/28/2007)
154 ORDER directing that the 152 MOTION for Summary Judgment be set for Motion Submission Deadline on 1/23/2008; plfs Response to Motion due by 1/16/2008; defendants Reply Brief due by 1/23/2008, as further set out in order. Signed by Judge Mark E. Fuller on 1/2/08. (djy, ) (Entered: 01/02/2008)
155 ORDER re 152 MOTION for Summary Judgment filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley; Motion Submission Deadline set for 1/23/2008; Response to Motion due by 1/16/2008. Reply Brief due by 1/23/2008 as further set out. Signed by Judge Mark E. Fuller on 1/3/08. (vma, ) (Entered: 01/03/2008)
156 MOTION to Compel by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Davis, James) (Entered: 01/04/2008)
157 MOTION to Strike 149 First MOTION to Quash Subpoena by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A)(Parker, William) (Entered: 01/04/2008)
158 MOTION to Compel Production of Documents by the MR/DD Health Care Authority of Jefferson County by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Parker, William) (Entered: 01/04/2008)
159 ORDER re 158 MOTION to Compel Production of Documents by the MR/DD Health Care Authority of Jefferson County filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley, 156 MOTION to Compel filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley, 149 First MOTION to Quash Subpoena filed by MR/DD Health Care Authority of Jefferson County, 157 MOTION to Strike 149 First MOTION to Quash Subpoena filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley Response to Motion due by 1/15/2008.; It is Ordered that the Clerk of Court shall overnight this order to the parties. Signed by Judge Wallace Capel Jr. on 1/8/08. (mailed overnight express mail as directed)(vma, ) (Entered: 01/08/2008)
160 Notice of Mediation and Settlement Conference by all plaintiffs (Hackney, James) (Entered: 01/14/2008)
161 RESPONSE in Opposition re 158 MOTION to Compel Production of Documents by the MR/DD Health Care Authority of Jefferson County, 157 MOTION to Strike

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 40 of 50

01/14/2008 01/15/2008 01/15/2008 01/16/2008
01/16/2008 01/17/2008 01/18/2008
01/18/2008
01/21/2008

149 First MOTION to Quash Subpoena filed by MR/DD Health Care Authority of Jefferson County. (Attachments: # 1 Exhibit MRDD Exhibit A# 2 Exhibit MRDD Exhibit B# 3 Exhibit MRDD Exhibit C# 4 Exhibit MRDD Exhibt D# 5 Exhibit MRDD Exhibit E)(Jordan, Ezra) (Entered: 01/14/2008)
162 First MOTION for Protective Order by MR/DD Health Care Authority of Jefferson County. (Attachments: # 1 Exhibit MRDD Exhibit A)(Jordan, Ezra) (Entered: 01/14/2008)
163 RESPONSE in Opposition re 162 First MOTION for Protective Order filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Parker, William) (Entered: 01/15/2008)
164 RESPONSE to Motion re 156 MOTION to Compel filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 01/15/2008)
165 ORDER Setting Hearing on Motion 157 MOTION to Strike 149 First MOTION to Quash Subpoena, 158 MOTION to Compel Production of Documents by the MR/DD Health Care Authority of Jefferson County, 149 First MOTION to Quash Subpoena, 156 MOTION to Compel, 162 First MOTION for Protective Order : Motion Hearing set for 1/18/2008 09:00 AM in Courtroom 5A before Honorable Wallace Capel Jr.; It is further Ordered that the Clerk of Court shall overnight this order to the parties, as well as MR/DD Health Care Authority of Jefferson County. Signed by Judge Wallace Capel Jr. on 1/16/08. (furn: yg hc wr) (mailed overnight as directed)(vma, ) (Entered: 01/16/2008)
166 RESPONSE in Opposition re 127 MOTION for Summary Judgment as to All Claims Brought by Paul B., 152 MOTION for Summary Judgment filed by Elizabeth A., Nicholas A., Angie D., Paul B, Charles P, Susan J.. (Attachments: # 1 Exhibit A# 2 Exhibit C# 3 Exhibit D# 4 Exhibit E# 5 Exhibit F# 6 Exhibit G# 7 Exhibit H# 8 Exhibit I# 9 Exhibit J# 10 Exhibit K# 11 Exhibit # 12 Exhibit M# 13 Exhibit N# 14 Exhibit P# 15 Exhibit Q)(Hackney, James) (Entered: 01/16/2008)
167 RESPONSE to Motion re 156 MOTION to Compel Supplement filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 01/17/2008)
168 ORDER granting 158 Motion to Compel Production of documents; MR/DD Health Care Authority of Jefferson County shall provide all outstanding discovery on or before 1/25/08; denying 149 Motion to Quash Subpoena Duces Tecum; granting 156 Motion to Compel; Denying as moot 157 Motion to Strike; granting 156 Motion to Compel; Plaintiff shall provide further specification (i.e., citations to the Complaint, statute citations, etc.) on or before 1/21/08; denying 162 Motion for a Protective Order. Signed by Judge Wallace Capel Jr. on 1/18/08. (vma, ) (Entered: 01/18/2008)
169 Minute Entry for proceedings held before Judge Wallace Capel Jr.: Motion Hearing held on 1/18/2008 re 158 MOTION to Compel Production of Documents by the MR/DD Health Care Authority of Jefferson County filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley, 162 First MOTION for Protective Order filed by MR/DD Health Care Authority of Jefferson County, 156 MOTION to Compel filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley, 149 First MOTION to Quash Subpoena filed by MR/DD Health Care Authority of Jefferson County, 157 MOTION to Strike 149 First MOTION to Quash Subpoena filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley (PDF available for court use only). (Recording Time FTR: 9:25 − 9:38.) (war, ) (Entered: 01/18/2008)
170 STRICKEN FROM DOCKET − PER ORDER OF 1/23/08 − DOC. 175 ***Response to Order re 168 Order on Motion to Quash,,, Order on Motion to Compel,,, Order on Motion to Strike,,,,,, Order on Motion for Protective Order,, by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) Modified on 1/23/2008 (vma, ). (Entered: 01/21/2008)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 41 of 50

01/22/2008 01/22/2008 01/22/2008
01/22/2008 01/22/2008 01/23/2008 01/23/2008 01/23/2008 01/23/2008 01/23/2008 01/24/2008 01/24/2008

171 MOTION to Strike and for Other Appropriate Relief by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Davis, James) (Entered: 01/22/2008)
172 MOTION for Summary Judgment by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 01/22/2008)
173 Evidentiary Submission re 172 MOTION for Summary Judgment filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C−1# 4 Exhibit C−2# 5 Exhibit C−3# 6 Exhibit C−4# 7 Exhibit C−5# 8 Exhibit C−6# 9 Exhibit C−7# 10 Exhibit C−8# 11 Exhibit C−9# 12 Exhibit C−10# 13 Exhibit C−11# 14 Exhibit D−1# 15 Exhibit D−2# 16 Exhibit D−3# 17 Exhibit D−4# 18 Exhibit D−5# 19 Exhibit D−6# 20 Exhibit D−7# 21 Exhibit D−8# 22 Exhibit D−9# 23 Exhibit D−10# 24 Exhibit D−11# 25 Exhibit E−1# 26 Exhibit E−2# 27 Exhibit E−3# 28 Exhibit E−4# 29 Exhibit E−5# 30 Exhibit E−6# 31 Exhibit E−7# 32 Exhibit E−8# 33 Exhibit E−9# 34 Exhibit E−10# 35 Exhibit E−11# 36 Exhibit F# 37 Exhibit G# 38 Exhibit H# 39 Exhibit I# 40 Exhibit J# 41 Exhibit K# 42 Exhibit L# 43 Exhibit M# 44 Exhibit N# 45 Exhibit O# 46 Exhibit P# 47 Exhibit Q# 48 Exhibit R# 49 Exhibit S)(Fleming, Margaret) (Entered: 01/22/2008)
174 REPLY to Response to Motion re 127 MOTION for Summary Judgment as to All Claims Brought by Paul B., 152 MOTION for Summary Judgment filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 01/22/2008)
MOTION to Strike Unverified Exhibits attached thereto by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (No PDF attached; contained within doc. 174 (vma, ) (Entered: 01/23/2008)
175 ORDER granting 171 Motion to Strike; Plaintiffs shall comply fully with this Court's Order of 1/18/08 (Doc. 168 on or before close of business on 1/24/08; It is further Ordered that the Clerk of Court shall strike Doc. 170 entitled Plaintiff's Response to Order and Defendants' Motion to Compel from the record. Signed by Judge Wallace Capel Jr. on 1/23/08. (vma, ) (Entered: 01/23/2008)
176 Minute Entry for proceedings held before Judge Wallace Capel Jr.: Telephone Conference held on 1/23/2008 (PDF available for court use only). (Recording Time FTR: 3:00 − 3:02.) (war, ) (Entered: 01/23/2008)
177 Evidentiary Submission re 172 MOTION for Summary Judgment (Supplement) filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit T−1# 2 Exhibit T−2# 3 Exhibit T−3# 4 Exhibit T−4# 5 Exhibit T−5# 6 Exhibit T−6# 7 Exhibit T−7# 8 Exhibit T−8# 9 Exhibit T−9# 10 Exhibit T−10# 11 Exhibit T−11)(Fairbanks, Misty) (Entered: 01/23/2008)
178 BRIEF/MEMORANDUM in Support re 172 MOTION for Summary Judgment filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 01/23/2008)
179 First MOTION for Summary Judgment by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit A# 2 B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 # 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O)(Hackney, James) (Entered: 01/24/2008)
180 ORDERED that the 172 MOTION for Summary Judgment be submitted without oral argument on 2/13/2008; further ORDERED that the plf file a response which shall include a brief and any evidentiary materials on or before 2/6/2008; The dfts may file a reply brief on or before 2/13/2008, as further set out in order. Signed by Judge Mark E. Fuller on 1/24/2008. (wcl, ) (Entered: 01/24/2008)
181 ORDER TO SHOW CAUSE as to why the 174 Motion to Strike Unverified Exhibits should not be granted; Plfs Show Cause Response due by 2/1/2008. Signed by Judge Mark E. Fuller on 1/24/2008. (wcl, ) (Entered: 01/24/2008)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 42 of 50

01/24/2008 01/24/2008 01/24/2008 01/25/2008 01/25/2008 01/25/2008 02/01/2008 02/06/2008
02/06/2008 02/07/2008 02/07/2008
02/08/2008 02/11/2008

182 First MOTION for Leave to file Plaintiff's Motion for Partial Summary Judgment re 147 Order,,, Terminate Motions,,, Set Deadlines,, 179 First MOTION for Summary Judgment by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit A)(Hackney, James) (Entered: 01/24/2008)
183 Response to Order re 175 Order on Motion to Strike, &Motion to File Verified Respones by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 01/24/2008)
MOTION for Extension to file Verified Responses by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (No PDF attached; contained within doc. 183 ) (vma, ) (Entered: 01/25/2008)
184 ORDER granting 183 Motion for Extension to File Verified Responses; Plaintiff shall have until 1/31/08, in which to provide supplemental responses to Defendants' discovery. Signed by Judge Wallace Capel Jr. on 1/25/08. (vma, ) (Entered: 01/25/2008)
NOTICE of Docket Text Correction re 182 First MOTION for Extension of Deadline Dispositive Motion, etc. Modified on 1/25/2008 − to make text read "First MOTION for Leave to file Plaintiff's Motion for Partial Summary Judgment". (No PDF attached to this notice)(vma, ) (Entered: 01/25/2008)
185 ORDER granting 182 Motion for Leave to file Plaintiff's Motion for Partial Summary judgment. Signed by Judge Mark E. Fuller on 1/25/08. (vma, ) (Entered: 01/25/2008)
186 RESPONSE in Opposition re MOTION to Strike filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit A)(Hackney, James) (Entered: 02/01/2008)
187 BRIEF/MEMORANDUM in Opposition re 180 Order,, Set Deadlines, 172 MOTION for Summary Judgment filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit C# 2 Exhibit D−STRICKEN PURSUANT TO 214 ORDER; # 3 Exhibit E# 4 Exhibit G# 5 Exhibit H# 6 Exhibit I# 7 Exhibit J# 8 Exhibit K# 9 Exhibit L# 10 Exhibit M# 11 Exhibit N# 12 Exhibit O# 13 Exhibit P# 14 Exhibit Q# 15 Exhibit R# 16 Exhibit S# 17 Exhibit T# 18 Exhibit U# 19 Exhibit V# 20 Exhibit W# 21 Exhibit X# 22 Exhibit Y)(Hackney, James) Modified on 2/7/2008 to reflect that Exhibits A, B &F not attached to this filing are referenced in exhibit list as having been filed previously with other pleadings (qc/djy, ). Modified on 9/30/2008 TO REFLECT THAT EXHIBIT D HAS BEEN STRICKEN PURSUANT TO 214 ORDER (QC/djy, ). (Entered: 02/06/2008)
188 First MOTION to Dismiss all claims voluntarily by Nicholas A.. (Hackney, James) (Entered: 02/06/2008)
NOTICE of Docket Correction re 187 BRIEF/MEMORANDUM in Opposition to reflect that Exhibits A, B &F not attached to this filing are referenced in exhibit list as having been filed previously with other pleadings (NO PDF Document attached to this notice). (djy, ) (Entered: 02/07/2008)
189 MOTION to Strike 187 BRIEF/MEMORANDUM in Opposition,,, 166 Response in Opposition to Motion, 186 Response in Opposition to Motion (Defendants' Motion to Strike the Report of Celia Feinstein, attached as an exhibit to Docs. 166, 186 &187) by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A# 2 Exhibit B (part I)# 3 Exhibit B (part II))(Davis, James) (Entered: 02/07/2008)
190 MOTION for Leave to File Newly Discovered Evidence by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 02/08/2008)
191 ORDER TO SHOW CAUSE as to why 188 Motion to Dismiss filed by Nicholas A. should not be granted. Show Cause Response due by 2/19/2008. Signed by

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 43 of 50

02/11/2008 02/11/2008 02/13/2008 02/13/2008 02/14/2008
02/19/2008 02/19/2008 02/20/2008 03/10/2008 03/26/2008 03/28/2008
07/24/2008 07/25/2008

Judge Mark E. Fuller on 2/11/08. (vma, ) (Entered: 02/11/2008)
192 ORDER TO SHOW CAUSE as to why 189 Motion to Strike the Report of Celia Feinstein should not be granted; Show Cause Response due by 2/19/2008. Signed by Judge Mark E. Fuller on 2/11/08. (vma, ) (Entered: 02/11/2008)
193 ORDER TO SHOW CAUSE as to why 190 Motion for Leave to File filed by Alabama Department of Mental Health and Mental Retardation, John M. Houston, Bob Riley should not be granted. Show Cause Response due by 2/19/2008. Signed by Judge Mark E. Fuller on 2/11/08. (vma, ) (Entered: 02/11/2008)
194 RESPONSE to Motion re 188 First MOTION to Dismiss all claims voluntarily filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Parker, William) (Entered: 02/13/2008)
195 REPLY BRIEF re 172 MOTION for Summary Judgment filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Fleming, Margaret) (Entered: 02/13/2008)
196 RESPONSE to Motion re 190 MOTION for Leave to File Newly Discovered Evidence filed by MR/DD Health Care Authority of Jefferson County. (Attachments: # 1 Exhibit MRDD Exhibit A: By−Laws# 2 Exhibit MRDD Exhibit B: Individual Rights# 3 Exhibit MRDD Exhibit C: Providers# 4 Exhibit MRDD Exhibit D: Waiting List# 5 Exhibit MRDD Exhibit E: Evaluation# 6 Exhibit MRDD Exhibit F: Grievance Policy# 7 Exhibit MRDD Exhibit G: Dissatisfaction# 8 Exhibit MRDD Exhibit H: Plan of Care)(Jordan, Ezra) (Entered: 02/14/2008)
197 BRIEF/MEMORANDUM in Support of Plaintiffs' Response to Defendants' Motion for Leave to File Newly Discovered Evidence filed by Susan J.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4)(Mcginley, Rachel) Modified on 2/20/2008 − to create relationship to doc. 190 M/Leave to file Newly disc. evid.(vma, ). (Entered: 02/19/2008)
198 BRIEF/MEMORANDUM in Opposition to Motion to Strike (Doc. 189 ) filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Hackney, James) . (Entered: 02/19/2008)
199 NOTICE by Susan J. Notice of Filing (Attachments: # 1 Exhibit 5)(Mcginley, Rachel) (Entered: 02/20/2008)
200 ORDER Resetting Final Pretrial Conference from 5/8/08 to 10/9/2008 before Hon. Chief Judge Mark E. Fuller. Resetting Non−Jury Trial from 6/9/08 to 11/10/2008 before Hon. before Hon. Chief Judge Mark E. Fuller as further set out in order; Signed by Judge Mark E. Fuller on 3/10/08. (furn: yg hc kg) (vma, ) (Entered: 03/10/2008)
201 First MOTION for Hearing for Status Conference and other relief by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 03/26/2008)
202 ORDER granting in part and denying in part 201 First MOTION for Hearing for Status Conference and other relief filed by Paul B, Krystal W., Brichette W, Shavon H., Elizabeth A., Angie D., Beverly W., Susan J., Charles P, Rico C, Tara L.; the discovery deadline in Section 7 of the Scheduling Order (doc. 124 is extended to 8/1/08; All other respects, the motion is denied; Discovery due by 8/1/2008. Signed by Judge Mark E. Fuller on 3/28/08. (vma, ) (Entered: 03/28/2008)
203 MOTION to Quash a re−notice of deposition, MOTION for Protective Order requiring that the deposition be conducted pursuant to the original notice by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Davis, James) (Entered: 07/24/2008)
204 MOTION to Withdraw 203 MOTION to Quash a re−notice of deposition MOTION for Protective Order requiring that the deposition be conducted pursuant to the original notice by John M. Houston, Alabama Department of Mental Health

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 44 of 50

07/25/2008 08/26/2008 08/28/2008
09/11/2008
09/18/2008
09/19/2008 09/19/2008 09/19/2008
09/22/2008 09/30/2008 09/30/2008 10/03/2008

and Mental Retardation, Bob Riley. (Fairbanks, Misty) (Entered: 07/25/2008)
205 ORDER granting 204 Motion to Withdraw; withdrawing 203 Motion to Quash; withdrawing 203 Motion for Protective Order. Signed by Honorable Wallace Capel, Jr on 7/25/08. (vma, ) (Entered: 07/25/2008)
206 ORDER granting 190 Motion for Leave to File newly discovered evidence as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 8/26/08. (vma, ) (Entered: 08/26/2008)
207 Evidentiary Submission re 206 Order on Motion for Leave to File Newly Discovered Evidence filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A: 1999, # 2 Exhibit B: 2000, # 3 Exhibit C: 2001, # 4 Exhibit D: 2002, # 5 Exhibit E: 2003, # 6 Exhibit F: 2004, # 7 Exhibit G: 2005, # 8 Exhibit H: 2006, # 9 Exhibit I: 2007, # 10 Exhibit J: 2008)(Parker, William) (Entered: 08/28/2008)
208 ORDER setting Pretrial Conference for 10/9/2008 10:30 AM in chambers A−300, USC, Montgomery, Al. before Hon. Chief Judge Mark E. Fuller; directing the parties submit a jointly prepared Proposed Pretrial Order due by 10/6/2008; Non−Jury Trial set for 11/10/2008 before Hon. Chief Judge Mark E. Fuller, in Montgomery, Al, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 9/11/08. Furnished to YG, HC &KG.(djy, ) (Entered: 09/11/2008)
209 ORDER to the extent Plaintiffs still intend to move for partial summary judgment in this case, they are hereby Ordered to file the previously allow Motion for Partial Summary Judgment on or before 9/22/08; Dfts' Response in opposition shall be filed no later than fourteen days after the motion is filed; Because of the delay in filing of this motion, the parties should not expect a ruling on this motion prior to the 10/9/08 pretrial conference, nor should Plaintiffs seek leave to file a reply. Signed by Hon. Chief Judge Mark E. Fuller on 9/18/08. (vma, ) (Entered: 09/18/2008)
210 Response to Order re 209 Order,, by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 09/19/2008)
211 First MOTION for Partial Summary Judgment by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Hackney, James) (Entered: 09/19/2008)
212 BRIEF/MEMORANDUM in Support re 211 First MOTION for Partial Summary Judgment filed by Shavon H., Elizabeth A., Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Charles P, Brichette W, Susan J.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Hackney, James) (Additional attachment(s) added on 9/22/2008 to correct the main PDF document as the BRIEF PDF document and not a duplicate of the motion 211 : # 16 corrected main document) (qc/djy, ). (Entered: 09/19/2008)
213 NOTICE of Correction re 212 BRIEF in Support to correct the main PDF document as the BRIEF PDF document and not a duplicate of the motion (Attachments: # 1 corrected Brief main document to docket entry 212 )(djy, ) (Entered: 09/22/2008)
214 MEMORANDUM OPINION AND ORDER granting defs' 189 motion to strike the report of Celia Feinstein submitted in support of 187 response. Signed by Hon. Chief Judge Mark E. Fuller on 9/30/08. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 09/30/2008)
215 ORDER GRANTING 134 and 188 MOTIONS to Dismiss; DISMISSING WITHOUT PREJUDICE the claims of plaintiffs Tamara C., Dusti M. and Nicholas A.. Signed by Hon. Chief Judge Mark E. Fuller on 9/30/08. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 09/30/2008)
216 BRIEF/MEMORANDUM in Opposition re 211 First MOTION for Partial Summary Judgment filed by John M. Houston, Alabama Department of Mental

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 45 of 50

10/07/2008 10/08/2008 10/09/2008 10/14/2008 10/20/2008 10/21/2008 10/24/2008
10/27/2008 10/27/2008 10/28/2008 10/28/2008 10/28/2008 10/29/2008

Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A)(Fleming, Margaret) (Entered: 10/03/2008)
217 ORDER granting in part and denying in part 174 Motion to Strike; It is granted with respect to the report of Celia Feinstein (doc. 166 −10, Ex. J) and denied with respect to the draft meeting minutes (doc. 166 −16, Ex. Q). Signed by Hon. Chief Judge Mark E. Fuller on 10/7/08. (vma, ) (Entered: 10/07/2008)
218 MOTION for Reconsideration re 214 Memorandum Opinion and Order by All Plaintiffs. (Mcginley, Rachel) (Entered: 10/08/2008)
Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Pretrial Conference held on 10/9/2008 (No PDF attached). (kcg, ) (Entered: 10/09/2008)
219 ORDER TO SHOW CAUSE as to why 218 Motion for Reconsideration filed by All Plaintiffs should not be granted; Show Cause Response due by 10/21/2008. Signed by Hon. Chief Judge Mark E. Fuller on 10/14/08. (djy, ) (Entered: 10/14/2008)
220 RESPONSE to Motion re 218 MOTION for Reconsideration re 214 Memorandum Opinion and Order Defendants' Response to Plaintiffs' Motion for Reconsideration (Doc. 218) filed by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Davis, James) (Entered: 10/20/2008)
221 PRETRIAL ORDER setting Non−Jury Trial, which is to last two weeks, for 11/10/2008 09:00 AM before Hon. Chief Judge Mark E. Fuller, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 10/21/08. Furnished to YG, HC &KG.(djy, ) (Entered: 10/21/2008)
222 MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART the 128 amended motion for class certification; GRANTING the motion with respect to Subclass Two and Subclass Three; DENYING the motion with respect to Subclass One and to the extent members of any subclass sought to bring claims under Counts II and IV; further ORDERING that absent class members need not be given notice and an opportunity to opt out of this action. Signed by Hon. Chief Judge Mark E. Fuller on 10/24/08. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 10/24/2008)
223 Objections to Defendants' Trial Exhibits by All Plaintiffs.. (Hackney, James) [Modified on 10/28/2008 to remove the Exhibit List text and to correct text to read the same as the title on the actual pleading.−DMN] (Entered: 10/27/2008)
224 (Objections to Plaintiffs' Amended Exhibit List) by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Parker, William) [Modified on 10/28/2008 to remove the Exhibit List text and to correct text to read the same as the title on the actual pleading.−DMN] (Entered: 10/27/2008)
NOTICE of Docket Text Correction re 223 Exhibit List ("Plaintiffs' Objections to Defendants' Trial Exhibits"). The wrong event code was used when originally docketed. The referenced docket text was modified to remove the Exhibit List text and to correct text to read the same as the title on the actual pleading.(dmn) (Entered: 10/28/2008)
NOTICE of Docket Text Correction re 224 Exhibit List ("State Defendants' Objections to Plaintiffs' Amended Exhibit List"). The wrong event code was used when originally filed. The referenced docket entry was modified to remove the Exhibit List text and to correct text to read the same as the title on the actual pleading. (dmn) (Entered: 10/28/2008)
225 Joint MOTION to Continue or in the Alternative, Stay by All Plaintiffs, Alabama Department of Mental Health and Mental Retardation, John M. Houston, and Bob Riley. (Mattison, Deborah) [Modified on 10/29/2008 to add additional filers who were omitted at the original time of filing.−DMN] (Entered: 10/28/2008)
226 ORDER STAYING CASE, Granting 225 Joint MOTION to Continue or in the Alternative, to Stay filed by Alabama Department of Mental Health and Mental

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 46 of 50

12/12/2008 12/12/2008 12/23/2008 01/09/2009
01/09/2009 01/14/2009 01/14/2009 01/16/2009 03/10/2009 03/31/2009
04/06/2009 04/09/2009
04/24/2009 04/24/2009 04/29/2009

Retardation, All Plaintiffs, John M. Houston, Bob Riley; The proceedings in this case are STAYED pursuant to FRCP 23(f) until further order of this Court; The Clerk is therefore directed to terminate all hearings and deadlines in this case; The Court will reset the trial in this matter following a ruling by the Eleventh Circuit Court of Appeals on the Parties' interlocutory appeals. Signed by Hon. Chief Judge Mark E. Fuller on 10/29/08. (furn: yg hc kg) (Term: Non−Jury Trial 11/10/2008)(vma, ) (Entered: 10/29/2008)
227 USCA ORDER that The petition for permission to appeal pursuant to Fed.R.Civ.P.Rule 23(f)is DENIED. before: Birch, Black and Hull, Circuit Judges. BY THE COURT: (ydw, ) (Entered: 12/12/2008)
ORDER: Plaintiffs' motion to file the certificate of interested persons under seal is DENIED. /s/ Susan Black, UNITED STATES CIRCUIT JUDGE. SEE DOC. # 227 FOR PDF. (ydw, ) (Entered: 12/12/2008)
228 ORDER that a Status Conference is set for 1/9/2009 09:00 AM in Courtroom 2A before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 12/23/2008. (cc, ) (Entered: 12/23/2008)
229 SECOND AMENDED SCHEDULING ORDER setting Pretrial Conference for 5/29/2009 before Hon. Chief Judge Mark E. Fuller, Courtroom 2A, USC, Montgomery, AL: Non−Jury Trial set for 6/29/2009 before Hon. Chief Judge Mark E. Fuller, Montgomery, AL; all Discovery completed by 5/1/2009, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 1/9/09. Furnished to YG, HC, KG.(djy, ) (Entered: 01/09/2009)
230 Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Status Conference held on 1/9/2009 (PDF available for court use only). (Court Reporter Patricia Starkie.) (kcg, ) (Entered: 01/09/2009)
231 NOTICE of Appearance by Glenn Nelson Baxter on behalf of all plaintiffs (Baxter, Glenn) (Entered: 01/14/2009)
*** Attorney Glenn Nelson Baxter terminated as to terminated plaintiffs who were inadvertently selected in error when notice of appearance filed on 1/14/09 (NO PDF Document attached). (djy, ) (Entered: 01/15/2009)
232 ORDER LIFTING STAY, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 1/16/09. (djy, ) (Entered: 01/16/2009)
233 ORDER denying 218 Motion for Reconsideration. Signed by Hon. Chief Judge Mark E. Fuller on 3/10/09. (djy, ) (Entered: 03/10/2009)
234 MOTION for Leave to File by Defendants' to Submit Additional Authority in Support of Their Motion for Summary Judgment by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Attachments: # 1 Exhibit A)(Davis, James) (Entered: 03/31/2009)
235 ORDER denying defendants' 234 Motion for Leave to Submit Additional Authority in Support of their Motion for Summary Judgment. Signed by Hon. Chief Judge Mark E. Fuller on 4/6/2009. (cc, ) (Entered: 04/06/2009)
236 ORDER: Final Pretrial Conference set for 5/29/2009 09:00 AM in chambers before Hon. Chief Judge Mark E. Fuller; Proposed Pretrial Order due by 5/26/2009; Non−Jury Trial set for 6/29/2009 trial term in Montgomery before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 4/9/2009. (cc, ) (Entered: 04/09/2009)
237 Joint MOTION for Protective Order by All Plaintiffs. (Tucker, James) (Entered: 04/24/2009)
238 PROTECTIVE ORDER as further set out in order. Signed by Honorable Wallace Capel, Jr on 4/23/09. (vma, ) (Entered: 04/24/2009)
239 MEMORANDUM OPINION AND ORDER, ORDERED as follows:(1) Defendants Motions (Doc. ## 127 , 152 , 172 ) for Summary Judgment are DENIED to the extent they argue Plaintiffs lack standing;(2) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 47 of 50

05/06/2009 05/06/2009 05/06/2009

of all claims against the Alabama Department of Mental Health and Mental Retardation and all of Plaintiffs claims against that defendant are DISMISSED;(3) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to prevent this Court from compelling state officials to comply with state law;(4) Defendants Motion for Summary Judgment as to All Claims Brought by Paul B.(Doc. # 127 ) is DENIED;(5) Defendants Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is GRANTED to the extent it seeks to have the claims of Elizabeth A. and Charles P. dismissed and all claims brought by Elizabeth A. and Charles P. are DISMISSED;(6) Defendants Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is DENIED to the extent it seeks dismissal of the claims of Angie D. and Susan J.;(7) Defendants Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152 ) is DENIED as moot to the extent it seeks to have the claims of Nicholas A. dismissed;(8) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it seeks to have the claims of Tara L., Beverly W., Krystal W., Brishette W. and Rico C.dismissed;(9) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to have the claims of Shavon H. dismissed and all claims brought by Shavon H. are DISMISSED;(10) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to have Count II dismissed;(11) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks to have Count IV dismissed;(12)Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of Plaintiffs claims that seek placement in an ICF/MR institution;(13) Defendants Motions (Doc. ## 127 , 152 , 172 ) are GRANTED to the extent they seek dismissal of all or part of the claims of Plaintiffs who (1) seek services not provided for in the documents that govern the terms of the HCB Waiver programs, and/or (2) cannot prove that they are one of the eligible recipients;(14) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of claims of Plaintiffs that seek alterations to the administration of the waiting list and to the extent Plaintiffs claim an entitlement to the provision of medical assistance with reasonable promptness but are not either in a Waiver slot or entitled to one;(15) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of Plaintiffs claims for the provision of services with reasonable promptness, rather than payment for services with reasonable promptness;(16) Defendants Motion for Summary Judgment (Doc. # 172 ) is GRANTED to the extent it seeks dismissal of Plaintiffs claims for the reasonably prompt payment for services;(17) Plaintiffs Motion for Partial Summary Judgment on Reasonable promptness Claim (Doc. # 211 ) is DENIED;(18) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED as moot to the extent it seeks dismissal of Plaintiffs claims for failure to join indispensable parties;(19) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it argues 42 U.S.C. § 1396a(a)(8) does not create privately enforceable rights;(20) Defendants Motion for Summary Judgment (Doc # 172 ) is DENIED to the extent it seeks dismissal of the claims of Subclass Two; and (21) Defendants Motion for Summary Judgment (Doc. # 172 ) is DENIED to the extent it seeks dismissal of the claims of Subclass Three as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 4/29/09. (Attachments: # 1 appeals checklists)(vma, ) (Entered: 04/29/2009)
240 First MOTION to Quash Plaintiffs' Subpoena by MR/DD Health Care Authority of Jefferson County. (Attachments: # 1 Exhibit MRDD Exhibit A: Subpoena)(Jordan, Ezra) (Entered: 05/06/2009)
241 NOTICE by MRDD Health Care Authority of Jefferson County Conflict Disclosure Statement (Jordan, Ezra) Modified on 5/7/2009 to select correct party MR/DD already in case as movant, deleted party added in error by E−Filer MRDD (qc/djy, ). (Entered: 05/06/2009)
Corporate/Conflict Disclosure Statement by MR/DD Health Care Authority of Jefferson County (NO PDF document attached to this notice−See Docket Entry 241 ). (djy, ) (Entered: 05/07/2009)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 48 of 50

05/06/2009 05/07/2009 05/13/2009
05/20/2009
05/27/2009
05/29/2009 06/02/2009 06/03/2009 06/03/2009 06/04/2009
06/12/2009 06/12/2009 06/17/2009
06/18/2009 06/19/2009

MOTIONS REFERRED to Magistrate Judge Capel: 240 First MOTION to Quash Plaintiffs' Subpoena. (NO PDF ATTACHED) (wcl, ) (Entered: 05/27/2009)
242 NOTICE of Appearance by Ezra Jordan, III on behalf of MR/DD Health Care Authority of Jefferson County (Attachments: # 1 Supplement Conflict Disclosure Statement)(Jordan, Ezra) (Entered: 05/07/2009)
243 Response to Order Doc. # 239 by Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Brichette W, Susan J.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Hackney, James) (Entered: 05/13/2009)
244 Response to Order Defendants' Response to Plaintiffs' Identification of the Named Representatives of Subclasses Two and Three by John M. Houston, Bob Riley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Davis, James) (Entered: 05/20/2009)
245 ORDER TO SHOW CAUSE as to why 240 Motion to Quash should not be granted. Show Cause Response due by 6/3/2009; directing plfs to also certify to the court that the parties have attempted to, in good faith, resolve the issue without intervention by the Court. Signed by Honorable Wallace Capel, Jr on 5/27/09. (djy, ) (Entered: 05/27/2009)
Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Pretrial Conference held on 5/29/2009 (No PDF attached). (kcg, ) (Entered: 05/29/2009)
246 ORDER directing that the Court will reserve ruling on the issues presented by the above referenced submissions 243 , 244 until the non−jury trial of this case, which is to commence on June 29, 2009, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 6/2/09. (djy, ). (Entered: 06/02/2009)
247 RESPONSE TO ORDER TO SHOW CAUSE by All Plaintiffs. (Hackney, James) (Entered: 06/03/2009)
248 ORDER denying as moot 240 Motion to Quash by MR/DD Health Care Authority of Jefferson County. Signed by Honorable Wallace Capel, Jr on 6/3/09. (djy, ) (Entered: 06/03/2009)
249 PRETRIAL ORDER setting Non−Jury Trial, which is to last ten days, for 6/29/2009 09:00 AM before Hon. Chief Judge Mark E. Fuller, at the US Courthouse, Montgomery, AL; directing the parties file their Trial Briefs by 6/22/2009, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 6/4/09. Furnished to YG, HC &KG.(djy, ) (Entered: 06/04/2009)
250 Objections to Plaintiffs' Exhibit List by John M. Houston, Bob Riley. (Parker, William) Modified on 6/15/2009 to clarify text (cc, ). (Entered: 06/12/2009)
251 Objection to Defendants' Exhibit List filed by Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Brichette W, Susan J.. (Hackney, James) (Entered: 06/12/2009)
252 Consent MOTION for Extension of Deadline by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Davis, James) (Additional attachment(s) added on 6/18/2009: # 1 Corrected Document) (cc, ). Modified on 6/18/2009 to replace the pdf document for one with the e−signature attached to the Certificate of Service (cc, ). (Entered: 06/17/2009)
253 NOTICE of Correction: 252 Consent MOTION was modified on 6/18/2009 to replace the pdf document for one with the e−signature attached to the Certificate of Service. (Attachments: # 1 Corrected Document)(cc, ) (Entered: 06/18/2009)
254 ORDERED that the 252 Consent MOTION for Extension of Deadline is GRANTED; Non−Jury Trial set for 6/29/2009 is continued to 7/6/2009 at 09:00 AM in Courtroom 2A before Hon. Chief Judge Mark E. Fuller; All pretrial

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 49 of 50

06/24/2009 06/25/2009 06/25/2009
06/25/2009 06/26/2009
06/26/2009 07/08/2009 07/10/2009 07/10/2009 07/10/2009 07/13/2009 07/13/2009 07/13/2009

deadlines set forth in the 229 Amended Scheduling Order are adjusted accordingly. Signed by Hon. Chief Judge Mark E. Fuller on 6/19/2009. (furn: yg, hc, kg)(wcl, ) (Entered: 06/19/2009)
255 Response to OBJECTIONS for Plaintiffs to Respond to Defendants' Objections to Plaintiffs' Exhibits by Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Brichette W, Susan J.. (Hackney, James) Modified on 6/25/2009 to reflect as a response to the 250 objections to plfs' exhibits NOT response to order (qc/djy, ). (Entered: 06/24/2009)
NOTICE of Docket Text Correction re 255 Response to Order to reflect as a response to the 250 objections to plfs' exhibits NOT response to order (NO PDF document attached to this notice). (djy, ) (Entered: 06/25/2009)
256 ORDER directing that this case is set for a telephonic Status Conference on 6/26/2009 @ 01:00 PM before Hon. Chief Judge Mark E. Fuller; directing counsel for the plfs to initiate the conference call; further ORDERING that, to the extent they intend to make legal arguments or request rulings on legal issues, the parties shall file a brief explanation of any such arguments and issues, together with citations to applicable authority where necessary, before 3:00 p.m., June 25, 2009; To the extent the parties intend to propose language for any future orders, they are likewise ORDERED to file that language, any alternative language, and appropriate citations to legal authority where necessary, again before 3:00 p.m., June 25, 2009. Signed by Hon. Chief Judge Mark E. Fuller on 6/25/09. Furnished to YG, HC &KG.(djy, ) (Entered: 06/25/2009)
257 Response to Order re 256 Order,,,, Set Hearings,,, Defendants' Response to Order (DOC. 256) by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley. (Davis, James) (Entered: 06/25/2009)
258 ORDER directing that the trial of this cause, currently scheduled to commence 7/6/09 and all attendant pretrial deadlines are continued generally; further ORDERING that a Status Conference is set for 7/10/2009 10:00 AM in Courtroom 2A, USC, Montgomery, AL, before Hon. Chief Judge Mark E. Fuller. Signed by Hon. Chief Judge Mark E. Fuller on 6/26/09. Furnished to YG, HC &KG(djy, ) (Entered: 06/26/2009)
Minute Entry for proceedings held before Hon. Chief Judge Mark E. Fuller: Telephone Status Conference held on 6/26/2009 (No PDF attached). (kcg, ) (Entered: 06/26/2009)
259 MOTION to Modify Joint Motion for Decertification of Subclasses by All Plaintiffs. (Hackney, James) (Entered: 07/08/2009)
ORAL MOTION for Alabama Dept. of Mental Health and Mental Retardation to join in as a party on the Joint Motion for Decertification by Alabama Department of Mental Health and Mental Retardation. (ag, ) (Entered: 07/10/2009)
ORDER granting ORAL MOTION for Alabama Dept. of Mental Health and Mental Retardation to join in as a party on the Joint Motion for Decertification filed by Alabama Department of Mental Health and Mental Retardation. Entered by Hon. Chief Judge Mark E. Fuller on 7/10/2009. (ag, ) (Entered: 07/10/2009)
260 Minute Entry for proceedings held before Judge Hon. Chief Judge Mark E. Fuller: Status Conference held on 7/10/2009 (PDF available for court use only). (Court Reporter Patricia G.Starkie.) (ag, ) (Entered: 07/10/2009)
261 MOTION Join Motion for Decertification by John M. Houston, Bob Riley. (Davis, James) (Entered: 07/13/2009)
262 ORDER setting Status Conference before Hon. Chief Judge Mark E. Fuller for 8/26/2009 08:30 AM by conference call arranged by counsel for the plfs. Signed by Hon. Chief Judge Mark E. Fuller on 7/13/09. Furnished to YG, HC &KG.(djy, ) (Entered: 07/13/2009)
JOINDER re 259 Joint Motion for Decertification by John M. Houston, Bob Riley. (NO PDF document attached to this notice−See Docket Entry 261 ). (djy, ) (Entered: 07/14/2009)

Case: 2:00-cv-918 As of: 12/20/2010 10:01 PM CST 50 of 50

07/14/2009 07/16/2009
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08/03/2009 08/10/2009

263 ORDER granting 261 Motion to join in the Joint Motion for decertification. Signed by Hon. Chief Judge Mark E. Fuller on 7/14/09. (djy, ) (Entered: 07/14/2009)
264 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on July 10, 2009, before Judge Fuller. Court Reporter/Transcriber Starkie, Telephone number 334−262−1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 8/6/2009. Redacted Transcript Deadline set for 8/17/2009. Release of Transcript Restriction set for 10/14/2009. (djy, ) (Entered: 07/16/2009)
265 NOTICE by John M. Houston, Alabama Department of Mental Health and Mental Retardation, Bob Riley Notice of Execution of Settlement Agreement (Davis, James) (Entered: 07/29/2009)
266 MEMORANDUM OPINION AND ORDER granting 259 Motion to Decertify Classes; further ORDERED that the decision is subject to the representation of the parties that they "will file a joint stipulation of dismissal upon entry of" this Order; failure to comply with the representation will result in prompt reconsideration of this Order. Signed by Hon. Chief Judge Mark E. Fuller on 7/29/2009. (wcl, ) (Entered: 07/29/2009)
267 STIPULATION of Dismissal (Joint Stipulation of Dismissal with Prejudice) by Beverly W., Tara L., Krystal W., Angie D., Paul B, Rico C, Brichette W, John M. Houston, Bob Riley, Susan J.. (Davis, James) (Entered: 08/03/2009)
268 FINAL JUDGMENT, pursuant to the 267 joint stipulation of dismissal, it is ORDERED and ADJUDGED that this case is DISMISSED in its entirety with prejudice, each party to bear their own costs and expenses, based upon the settlement agreement entered into by the parties; directing the clerk to enter this document on the civil docket as a final judgment pursuant to Rule 58 FRCP. Signed by Hon. Chief Judge Mark E. Fuller on 8/10/09. Furnished to YG, HC &KG (terminates Status Conference 08/26/2009).(djy, ) (Entered: 08/10/2009)