EXHIBIT A June 15, 2004 Settlement Agreement
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 1 of 27

.•.

EXHIBIT A

...... ,

L i _ . ,.-
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,·\'FI,NQ'R. T;'Hr[,;:EIEUMNNIIDTAEDSDHLEVSTDILAILSTETERDSINCDTIISSOTIORF INTCETNCNOEUSSRETE

IN

RECE'IVED
CLERIC'S OFFICE
APR 2 0 2004

BETH ANN BROWN,
et aL,

)
) )

PLAINTIFFS,

) )

v.

) )

TFWIENANARNNREECSNESE&CE. ANDDEEMEPLAIN,RCITSoMTmREmANisTTsIiOOonNFe,r,and Tennessee Department of Finance & Administration,

) ) ) ) ) )

DEFENDANTS.

)

UMSIDD. ISDTISRTIC. TTECNONU. RT.
Civil Action No. 3:00-0665 Judge Echols

AGREED ORDER

This class action was filed by six individual Plaintiffs and Tennessee

Protection and Advocacy, Inc. on behalf of themselves and individuals with

mental retardation and other developmental disabilities who are similarly situated

to the Plaintiffs in this action, against the Tennessee Department of Finance and

Administration and Dave Goetz, Commissioner of the Tennessee Department of

Finance and Administration. The Brown Plaintiffs alleged that the Defendants

were unlawfully depriving mentally retarded individuals ofmedically necessary

care, resulting in class members' inappropriate hospitalization in state psychiatric

facilities, needless deterioration and regression in health status, and loss of

independence. The Brown Plaintiffs sought declaratory and injunctive relief

under 42 U.S. C. Section 1983 to remedy Defendants' alleged systemic violations

ofthe Medicaid Act. On May 1, 2001, the Court certified a class in Brown under

1 Federal Rule of Civil Procedure 23 (b)(2). Case 3:00-cv-00665 Document

T11h6e6-B1rownTtRFhhcueiillsleaedsddo5soc80cci(oua2emmtn/0idnep9/nrc/iOto2swfem0~sa0psuml7tieaeennn~tcet9eaPre(lwaladyi)gt.hoen

2

of

27

retarded Tennessee residents who are eligible for Medicaid services under the ICF/MR program pursuant to 42 U.S.C. Section 1396a et seq. or for a home and community based services (HCBS) waiver for the mentally retarded and developmentally disabled pursuant to 42 U.S.C. Section 1396n, and who request services under these programs, but who (1) are denied the opportunity to apply for such services; (2) apply for services under these programs and are denied; or (3) are placed on a waiting list for services under these programs. Having been certified under Rule 23 (b)(2), the Brown class is mandatory, and its members
may not opt out of the action. Pending before the Court is the application of the plaintiffs and the
defendants for approval of a settlement agreement resolving all claims. In its order of February 6, 2004, the Court preliminarily approved the agreement and authorized the notice to be sent to class members and the publication ofnotice to
the plaintiff class. (Doc. No. 108). At a fairness hearing held on April12, 2004, the Court considered exhibits
submitted by the parties, letters filed with the Court, testimony of witnesses and parties in support of the settlements, the statements of counsel for the parties, and the record as a whole. There was no testimony presented in opposition or as an objection to the settlements at the hearing. The procedural prerequisites for approval of a class action settlement have been met, Rule 23 (e), F.R.C.P., Williams v. Vuckovich, 720 F.2d 909 (61h Cir. 1983). The present agreement is the product of good faith, arms-length negotiations, is not illegal, and is reasonable.
Stottsv. Memphis Fire Dept., 679 F. 2d 541, 546 (6'h Cir. 1982) revd. on other
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 3 of 27 2

grds. sub nom. Firefighters Local1784 v. Stotts, 467 U.S. 561 (1984); Aro Corp v. Allied Witan Co., 531 F. 2d 1368, 1372 (6th Cir. 1976), cert. den. 429 U.S. 862 (1976). The Court concludes that the following Settlement Agreement is "fair, adequate and reasonable", in light of its "fairness...to those affected, the adequacy of the settlement to the class, and the public interest", and that it should be approved. Williams v. Vuckovich, st,pra, 720 F. 2d at 921; Tenn. Assoc. of Health Maintenance Organization, Inc. v. Grier, 262 F. 3'd 559 (61h Cir. 2001).
Further, the defendants shall pay plaintiffs' reasonable attorney fees as permitted under 42 U.S.C.§1988. The plaintiffs shall submit their application for a fee award for legal services rendered to date within 45 days of the entry of this order.
It is, therefore, ORDERED that the Settlement Agreement as attached as Exhibit A is approved.
UNITED STATES DISTRICT JUDGE
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 4 of 27 3

APPROVED FOR ENTRY:

% F.t.:__ ~,!) ~usepian, B.P.46969

Attorney for Plaintiffs Tennessee Protection &

Advocacy,

Inc.

2416 21't Ave. S., Suite 100

Nashville, TN 37212

615-298-1080

}:;_;t-C, : . ~-~e .£t~·•<~/2~ Kent E. Krause, B.P.R.#6325
Attorney for Plaintiffs

...J7 ~

"/I~. _- _ •

Brewer, Krause & Brooks

Suite 2600, The Tower

611 Co=erce Street

Nashville, TN 37203

615-256-6787

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 5 of 27 4

FIONRTTHHEEUMNIITDEDDLESTDAITSTESRIDCITSTORFITCETNCNOEUSRSTEE NASHVILLE DIVISION

BETH ANN BROWN, et al.,

) )

)

Plaintiffs,

) )

v.

)
)

TENNESSEE DEPARTMF.NT OF FINANCE & ADl\IIINISTRATION, and DAVE GOETZ, Commissioner, Tennessee Department ofFinance & Administration,

) ) )
)
) )

Defendants.

)

. Civil Action No. 3:00-0665
Judge Echols Mag. Judge Knowles

EXHIBIT A

SETTLEMENT AGREEMENT
1. Scope of Settlement This Agreement is entered into by the Tennessee Department of Finance and
Administration and the Commissioner of the Tennessee Department ofFinance .and Administration ("defendants") and Keith Greenwald, by and through his mother and next friend, Carol Greenwald; Shane Mitchell, by and through his. mother and next friend, Arlie Mitchell; Derrick V artan, by and through his mother and next friend, Nancy V artan; Katherine Wilcox, by and through her mother and next friend, Dora Wilcox; and Tennessee Protection and Advocacy, Inc. (''plaintiffs"). The plaintiffs filed this action on their own behalf and on behalf of all other persons similarly situated asserting violations ofMedicaid law by defendants' alleged failure to
1
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 6 of 27

provide Medicaid services with reasonable promptness to eligible individuals with mental retardation. A class has been certified in this matter to include:
MTUtfbw(oo3ne.hreS)n4todt.na2(hCis1erceeUe.)sasMap.§iaeSdplr1eaee.ps3Ccnrled9eei.trcea6sdv§anliaild1oticyioee3enodrnR9snata6teusfhnDtHonwae,rMdrowiodesmtReperhhrdepotSmvhoaairewrcennetenIquddaCstnuiaDCtFuielitnonse/yrMtgvmedtsteeolRamelirrorsatduvptphpanirfmepcootisieltgreoyeysrnnsfpaButeowmarnraorlvdhlsgpisyeeocururdeDacratsmhSshirsuueeesasanrseebivnedsrlliitveepcgdtirderoicebotsenphl4gswiueee2;rrsaadf(seomi;2uvr)oasenrrt
programs.
This agreement is intended to resolve all issues in dispute in this action.
IL Preamble and Guiding Principles The parties enter into this Agreement recognizing that their overriding co=on interest is
in assuring that Tennessee's citizens with mental retardation are provided.reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe enviromnent. The parties also recognize the critical role of families in supporting individuals with mental retardation and want to support families by providing individuals with mental retardation at least a moderate level of services to supplement other natural supports and help reduce the need for crisis-driven, more intensive long-term care services. The system of delivering these services should promote consumer and family choice of available services. The parties recognize that individuals with mental retardation eligible for ICF/MR level of care have
been placed on waiting lists for mental retardation services. This Agreement is intended to
eliminate or substantially reduce the waiting list for services by providing for: (1) the
2
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 7 of 27

development of the mental retardation system infrastructure and provider network capacity

necessary to support the expansion of quality home and community based waiver services; (2)

access to interim services for Medicaid-eligible individuals seeking services; and (3) an

appropriate planning process for the future expansion and/or development ofhome and

community based waiver programs and services for Medicaid-eligible persons with mental

retardation on the DMRS waiting list. Wbile defendants cannot fully anticipate the rate of

growth ofthe DMRS waiting list, the amount oflegislative appropriations for home and

community based MR services, or the m:rximum number of waiver participants that will be

approved by the Centers for Medicare and Medicaid Services (CMS), the goal is to eliminate or

substantially reduce the waiting list for services for Medicaid-eligible persons with mental

.

retardation that meet the ICF/MR level of care criteria. The defendants' commitment is to: 1)

work toward lifting the moratorium on new admissions to the existing home and community based MR waiver program as soon as possible; 2) develop MR service system infrastructure;

3)

apply for new waivers so that the DMRS waiting list will move at a reasonable pace; and 4)

strive to provide services to Medicaid-eligible persons with mental retardation that meet the

ICF/MR level of care criteria on the waiting list with reasonable promptness. It is defendants'

intent to reach the goals ofthis Agreement without reducing the funding for other services to

individuals with mental retardation.

IIL

Definitions and Terms A. "Plaintiffs" means the members

of the

Class

certified under Rule

23,

Federal Rules

of

· Civil Procedure, by Order of this Court:

3

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 8 of 27

MTUftbw(oo3eu.erhSn)4tdotn.2a(hCise1rceeUe.s)asMia§p.aedSp1rleea.eps3Cncrel9de.eitr6ceasvd§aanilidlltociyoi3eeenor9nRdsnat6ateusfhnDtHnoawe,drMrowiodesmtprReehhrdpetoSmvhoaairerwecnentneIqdudaCstuniaCDtFueilitnson/eyrMtgevmdttseeolaRmelrirorsadptuvtphparnifmepcotoiiseltgeroyyesrnnsapfButeowamrnrarolvdhslgpiyseeocruudrDeacratsmSshrhiseuueessaanrseebivnedlsrliitveepcgdtirderiocebostenph4lgswieue2er;rsaafd(seomi2;uvr)aosenrr t
programs. B. "Defendants" means the State of Tennessee and the other named defendants: Tennessee Department ofFinance and Administration and Dave Goetz, Commissioner ofthe

Department of Finance C. "Individual"

and Administration. means a person with

mental

retardation

eligible

for

ICFIMR

level

of

care.

D. "Guardian" means the legal guardian of an individual under the age of 18 or the

conservator of an individuall8 or over. The t = "guardian" and "conservator'' may be used

interchangeably.

E. "Waiting List" refers to the list maintained by the Division ofMental Retardation

Services (DMRS) that includes individuals determined to be eligible for and seeking services

under the ICF/MRprogrampursuantto 42 Services waiver for the Mentally Retarded

U.S.C. §1396a or a Home and Community and Developmentally Disabled pursuant to

Based 42 U.S.C.

§1396n. F. "Complaint" means the First Amended Complaint filed in this lawsuit. G. "Crisis" is a category ofneed which means the individual needs services immediately
due to the most intense needs with one or more ofthe following criteria being met: (1) homelessness; (2) death or incapacitation of all available caregivers; or (3) immediate danger to

self or others.

4

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 9 of 27

H. "Urgent" is a category ofneed which means the individual needs services soon and meets one or more of the following criteria: (1) aging or failing health of caregiver and no palrtoebrnaabtielictyaroefgaivbeurseis oarvnaeilgalbelcet;to(3p)rionvcirdeeassiunpgproirstks;o(f2a) gligvriensgsivsietuoartiaosnsapurletsivene tbseahsaivginoirftioc awnat r d self or others; (4) stability of current living situation is severely threatened due to extensive support needs or family catastrophe; or (5) discharge from other service system (including but

not

limited to: school, DCS, Rlv.ll!I, Forensics) I. "Active" is a category of need which

is imminent. means the person

and/or

conservator/guardian

is

requesting services as ofnow but does nothave the intensive needs which meet the criteria for

J. "Deferred" is a category ofneed which means the individual's need for services is

more

than one year away. The parties recognize

that the

definitions

of "crisis,"

"urgent,"

"active"

and/or

"deferred"

as categories ofneed may need to be modified during the term of this Agreement. The parties

agree that defendants may change and/or modify these definitions during the term ofthis

Agreement with the consent ofthe plaintiffs without requiring Court approval.

N. Expansion ofMedicaid Waiver Program A. By January 1, 2004, defendants will develop, submit and seek approval of an
adcpeoptmelirmcmaetininotantaittoolnetWahsetaC3iv0eendrtapeyrrsosgfporrarimoMr.teodTishcueabramepaipsnlsidicoaMnti.eodDniwecfaieildnl dbSaeenrstvusibcsmehsailt(ltCegdMivtSoe)pgflooaorindatfinaffeistwhfoMcroernedsviidcieaewridataSinoednlft-o
5 Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 10 of 27

comments and recommendations provided by plaintiffs within 30 days and will provide an
explanation in writing if plaintiffs' suggestions are not adopted. This Self-determination Waiver
will emphasize individual and family control and choice and will have a capped cost of$30,000 per person per year in the first year and be at the amount approved by CMS for the remaining years consistent with the approved waiver application. An individual budget will be established for the individual based on the individual's level of need. Once an annual budget is established, he or she may develop and/or modify the service package without defendants review so long as the services selected are based on need and billable under the waiver and the individual's annual budget is not exceeded. Defendants will establish a process pennitting an individual to exceed his or her budget under exceptional circumstances so long as the $30,000 cap per person per year . is not exceeded. The proposed process will be submitted to plaintiffsfor review andco=ent prior to implementation. Defendants shall give good faith comideration to comments and
recommendations provided by plaintiffs within 30 days and will provide an explanation in writing ifplaintiffs' suggestions are not adopted. To the extent that approval from eMS may be obtained, individuals/guardians may control their services under this waiver using selfdetermination principles. Individuals whose needs cannot be met by this Self-determination Waiver will have the option to choose services through any other waiver for which they are
eligible, as provided in paragraph IV. C.
B. Defendants will provide funding for and shall enroll and begin the provision of
services for 600 enrollees in the Self-det=ination Waiver during the first year after approval of such waiver. Enrollment will be phased in throughout the year and potential enrollees will be identified in the crisis and urgent categories with the priority being given to those in the crisis
6
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 11 of 27

cfwuaanteidtgieondrgystlhaonetsdloatvhnageinelsawtbilienth,tththhaeotnscepatireniogtrohirteyy.uwrEgilenlnrbotelclmagtieevgneont rwtyoiwllthibtoehsgetihnienJmtuholeysat1ci,nt2itv0ee0n4sceaotneregueopdrosy.ntIhafpattphhreoarvveaerlebomefeatnhines wWfcttohhrariaoiesvisaniveesneprraiarn,anidopddtdprheiuifltetirieycogunanwerdtganiaioletlnlnn9ctbst0abetc0wyeaggi=tClieolvoMgrpeiloernSlrosey,tvowewwisdithithetthihohcfrtshuthoeheneuviedgnpeimhnrrtighiotoshesrfiiltoasatiryctnWetagtirenv.aindveivDsecseenhuarnat.rteoeillngPetgod=ohrstotyea.hsnetelIhtlfisiaanetathlcnhteeohdarnneevbrdoecreeylrgblimeeisenaeiaesrstinhncawweasftiteplafelruirgtbonaoienvdprygiepisddrtaioheonsvnenldoatloitltofhsfioneesafgdnevteraihwsvnietliiactithnbheesle,

that

category. C. For

State

fiscal

year

2003-04,

defendants

will

continue

to

enroll

eligible

individilals,

meeting the approved exceptions to the moratorium, if applicable, in the existing Rome and

CastSbrharomeemeeqr=umveeuauinilelcrerntebeovstimulehthdWlyrengonoeaBeutfnistgvai,tinhsenioierntp.ftdhchraleoSeudPvneddaaereiirmvmtntwiiigoocceuSneinapnsaeptaltlWfpfnueo-rtlndoasfidevig$ivtieni1enbed2rtgrlmheemaiixisinsnnicplwdtealhripitaoovietoivniivaodn.iennduWrnFseawudlotasoairiivliln:tnlfebhibtrusteh.ehcdemaePglliioeeammyrxtreatpiiiiattsnrceortoiditr2pvnhi0tamegeon0mRnat4isenm,-on0diwmoft5iviufa,eliunlpddantnpeundolefaidieecflnnsda$Cgdbw1tooali2ehnnm,mmottsfshueoiewelernlntiiceiloeetunlneylrrpidrotgrBeosloinlbavcmatisailleedilntodneynwtotihtne

tihomifspawrdodaviietvimeorne.anlFt eofluringfdiibsicnleagliinyndeitavhrei2da0un0anl5su-0ianl6b,thudedegfeeexntidsitnainnttghseHwaoimlmloaeuganantindofpC$roo1mv2imdmeuiltnlhiiteoynsBatomaseaeldlleoSvweelrtvhoiecfeesnWrolalimveenr.t

7

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 12 of 27

Potential enrollees will be identified those in the crisis category and then needs. Ifthere remains funded slots

in the crisis and urgent with those in the urgent available, then priority

categories with the priority given to category with the most :intense will be given to those in the active

category that have been waiting the longest D. Within six months following the

in thai category. approval of this

agreement,

defendants

will

develop

a

mWmawttsplheeaeseaartirnonrihisomvvdvtopadai/eedcoolgecrreosrvrrrtseieteloeosooedtlbinaomtgsethmrephyaydee-enetnaoaaiotdttmnnehmi,t/odxdhooedeniedrptsetdhrotrhwfoiieoeelovnnoanxcdege$igdeivr-o3siHsasteelt0isinoirmsoo,ntst0gmnsoage0ydnwfed0wdeudaeviiaannclvfpenliaddievrlndpdsoorpeesepcrpCwrifsheeooeio.isdoncnrlmsleweIpbefsbnmuesaysiernnfaumttsdosohddonusredeinivdbttmithydtiephmidoefooeaBiuifdvnntrteaato,eecynelslwmaseddeohnaadmigeottrnobnywhSatoetspifeyinbfoulrnamtaevrssdhnitiieaniowecdxvcdtveiecSimaseftdeepeofWuosfnlspfrpsanrfw-oiarlotodnsomihvavergvsmietervitedfarehdaeor.vleebymrliislSmyteSmoieawnhweCimnoaotleiMfdtvaupni-dneolotgdSddhnarte,teoamttcWhhdreseayooreehanmurfa=aoieednvpdirnnetbeptfdd-arroenritao.totefiintomvorosTttpmanhnshhrtloaehiwecorolrasrtirfie-tlsltios

implementation. Defendants shall give good faith recommendations provided by plaintiffs within 30

consideration days and will

to comments and provide an explanation

in

writing ifplaintiffs' suggestions are not addressed.

V.

Service Delivery Timelines and Reasonable Prorrmtness A. The parties agree that individuals determined eligible

for

and

seeking

services under

.

the ICFIMR program pursuant to 42 U.S.C. Section 1396a or a Home and Co=unity Based

8

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 13 of 27

Services waiver should be provided those services that have been detennined to be medically necessazy with reasonable promptness. The parties also agree that, within the limits oftbe federally approved waivers, to the extent that there exists an available waiver slot and funding for that slot, eligible individuals should be enrolled in the Waiver with reasonable promptness. This settlement agreement is intended to accomplish the goal of eliminating or substantially reducing the waiting list for services for all Medicaid-eligible persons with mental retardation that meet the 1CF/MR level of care criteria that seek services under the ICF/MRprograrn pursuant to 42 U.S.C. Section 1396a or a Home and Co=unity Based Services waiver.
Ii: In accordance with the provisions ofSection N for the Self-determination Waiver and
the number of slots funded for Year 1, 600 slots, defendants will identizy, notif'y, and enroll
persons in the waiver. Defendants shall initiate this process in a timely marmer so that 600
individuals can be phased in and enrolled in Year 1. Upon notification being sent to the individual, ''reasonable promptness" means that services will be initiated within 30 days ofthe letter to eligible persons in the "crisis" category choosing to be enrolled in theWaiver. Upon notification being sent to the individual, ''reasonable promptness" means that services will be initiated within 90 days of the letter to eligible persons in the "urgent" or "active" category choosing to be enrolled in the Waiver. This same process and standards for "reasonable
promptness" shall continue in Year 2 so that an additional 900 eligible persons will be enrolled
and receive services with the reasonable promptness from the date of notification by defendants. · The same standard of reasonable promptness shall continue to apply for the duration of this agreement for persons seeking services under the Self-determination Waiver.
9 Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 14 of 27

C. ln accordance with the provisions of Section N for the existing Home and Cymmesfeaiotfhubnlaaerhfemnaeeiyoreettld,trtilmsebiWaietdenlnsietirunerggegtavofnia:do,ietrteifvibDh.mntdwaicnyledede,ta.oorieeBan."tcturnnhTtirarabnthfeStiitihsisetdnafiocheesiYserwsaeor3doirpitnuu0stianirWthlroalmohaloddoomnbceialasfdtleolityeehece"voesnsdrecpsnwepiretsrortimriihhlioinosniffaseoigcmoystnca:cehe"r,rdcupasabentnom"rstitltrolreemoluhonaeeatgrlepeilnnetidyoflsteuYdltmiersymrmbmyy"rsseeae,moeptmonbnaae"nertfardneerotns.nnoedavtrleoacnhnaifoUenfshterneslmitordlporfeeoertnsiooedshewdlcaonlsnqafabsiiotptuatonntnlrifehedisgooutrrteam'phne'htsntrrtiromoaaveidftoasotitnaiimblecscsnwtslniaeheeopgoeistatlon"nesinliiisloigawvmnsngeftbnieheoiibttoliblorsibhrelnl.slsleeelt"tbephewih"Dpmnraediueieoannsgeririei"mdgnfnvnwscaseieuioperevnnttnaainritnhidssitanl.ds"vtieatetsbueteIhnc"sofouatdrhtuasrldcsi"totnasws"agh,wnodsatsreeideewsechteitrgihlditacnitvlfinoithlvooginshlderceagrlyxiicteo"9tnnvo.toes0thoiicrntzdboDenwcahdteuelitifeceiadysenatleyufellghlutetinsrhbboehetmnrrhaoreoeeodiWiyatnnssftlatttseltmtanYhehtiohtdeaveesefryeiaeynrr. 1
ariaennpadtsphYoleyneaafaonbrrnl2euthpsaorelobdtmhuupadr"tagltaneidteo.sdnsiTtofihorfoenthmasilasdmeaalgietgersiebotealfmnendpeoanetrritdfsfiooocnrafstprieweoarnisslbool nnybsaedbseelefeneerpknoridlonlaemgndtspseatwnrnvdeiistcrhseeicfsnoeutrinhvedeeneisrrmoetlrhplvereieocseevxsseihmwsateiilntlnhgct otfHhuneontidmniuenegto

and

Community Based Waiver. E. For any additional waivers

that

are

sought

and

receive

approval

from

CMS

for

the

duration ofthis agreement, the samestandards ofreasonable pr=pmess as provided in

paragraph V.C. will apply.

10

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 15 of 27

I

VclfSiioiuIcsimnft.annnstoaoddnutcpftnarerieotpdmlsvasvierpuocsieomosmPdAhotmnl,nfBourarwaae.ggotetpallt.nhlriaogilgeWtltsoastiarhdWir,hntnaamcooifegdmawctutiaanirhnaauttpbcmihtiraitmItso:eonnghihmtii.nniunfleueaotyoiptdttshlsnnaTwearretirmrpcmsodthxhpeeaetuveeeieaqia,cmsattenmsuatMmicnfmidanoseworobdeesongRosemneesntntmamnrelelhtapwtissltdshssansasicsataalsigdn.foemsosinoefavrtncPdcoaaenlgersollnnnloceeoraualncdtylqmoswdmpinewsuwcvrsteeiieoiioahoinfnicrerlsingacgeplsttcsragrnd,epvapetaat.efrhtereetmniafweohersooodmTid,egpnifraaertptryilmspnahoaleadryppidnoompnptoapraocmflaironrrmaetnnosovhgeridgsaeveenvaameiuseisqlatsctnsdrdi,btluuewoeefaeaeefrorssfnfisdrpirosslftcciw'stmdelhrcetecrrchbiaiutdeesoslhaoinleln;ossusuodAnsbtnanamsAnenengsvosaesegeurdadf,faecpelroivtnonsepleeeharaotdsvirermaobctssocrembtsyaolaeeavrhelertepannsiiseeysneldttposesilh,otetrerr.m,hoeovdtrfardnesdEieaaoeclca,oelfnmfntfoelewnhfeMattrsmeinesrhhgo;linrdieitelpoapwesdshladrlltnmsransesaiaiiocnwnttntitewtvseuhtatofpniisioisiewnatdutdlahrwplgwaetw-imdplbeniflfvilallarlideloilioisolttgclti:cmlb.oiaioanbetncwgTil.oeyh-nuaepnd

'

pwerhceeahaacxcispechpepihedvieenniidvCdndneig.iatvtrtuhfiWiaradrsenomuiluotaaaihglltmfyeihwmnroos,hotuuuhdorntpreetetpifhsteeoohenofrmadty$nnasoe2tena$nh2rtr5te8vs.h0imwwscpefaiiloselil.ltlriilodonpBnewgeve.riglesniEliosognntnpnirtpnhioaneeltlgprhmaryeJpoeuepcgnalrrrytrioaswn1vmiso,ia,l2lttluot0obor0pfge4etrepho,xnhivcctsaieoodasenregedsdaruceacmoienttnimoevsttreheaudrnlmcoitfarueioetsrgerccghdtaJeooiludruryleytysceutbta1hepur,edpta2oynsn0ueron0taptu4wrpac,.oilulrrltrbetoently

11

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 16 of 27

D. There shall be additional interim services provided to the plaintiffs if the defendants

have not obtained CMS approval and began emolling persons in the Self-determination Waiver

by July 1, 2004. For each month that the State has failed to obtain approval and begin

emollment, the defendants will provi Medicaid-eligible individuals on the

de $500,000 per month in state funds to serve D:MRS waiting list who meet ICFIMR level of

care

criteria

as determined through the Pre-Admission Evaluation (PAE) process. No person shall receive

more than $30,000 per year interim services. Persons receiving interim services may be

transitioned to the Self-determination Waiver upon approval of the waiver by E. Defendants will immediately begin implementation ofmeasures to

CMS. address

community

iacwnntdoofeidrmlwaerlesmxbtsaereusdruntmdtchitetciheussaeirsstgieiieroonnrbnneveesd,iecsatdtetoonses.dtfayhffsTseoistshrieectsemsxat ilittnsohdatfeeicronscadbgiosegttuRafnrneiu,onntciamdrntbueaceirlnlleiuiatetsdndyf'ide;fnirvanCogesmoloswoebmptrtehvammliiilsnceuaeinmnsnticgpotpoyrrrlooaBaertvnldoaiiiwserdniefeuai:dlrtfmlirnSooienmanetncr,wvltdquhiocudesrehaekmslamiclWtolayerrpaaaeaaitspsvcousoierurtrriyertu..satmnDoTdcbheetehseyf,ieessgCneptndaMmaekardenteSiahttesosfosoualarrdgeterser e least quarterly the status ofthose efforts. Ifthe defendants have not achieved complete relief

from the moratorium by July 1, 2005, the plaintiffs, at Agreement dissolved and thereafter request the Court

their sole option, may declare this to set a case management conference

to

set

a scheduling order and trial date.

VII. Long Range Planning Within twenty-four months following approval ofthis agreement, plaintiffs and 12
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 17 of 27

defendants will meet and reach agreement on expansion of enrollment and provision of services for fue third, fourth and fifth years following approval of these waivers. Services will be expanded at a reasonable rate such that the waiting list will be eliminated or substantially reduced by the conclusion ofthe term of this agreement. If no agreement is reached for the third, fourth and fifth years expansion of enrollment and provision ofservices within one hundred twenty (120) days after the initial meeting pursuant to this paragraph, either party may request a mediation conference with the Magistrate Judge assigned to this case. Upon declaration of an impasse by the Magistrate Judge, the matter shall be set for a case management conference to set a scheduling order and enter a trial date.
VIII. Application Process A. Defendants will ensure that any individual who wishes to do so may apply for Title
XIX Home and Co=unity Based Waiver Services. Pre-admission evaluation applications will be available in DMRS offices maintained in each of the three grand regions of the State for an eligibility detennination. An eligibility detennination will be made within 90 days ofthe date the application is completed, subject to the provisions of 42 C.F.R. §435.911 (a)-(e). Individuals determined eligible will be served with reasonable promptness after determination of eligibility in accordance with the provisions ofthis Agreement. Within three months ofthe approval of this
Agreement, the Division will establish procedures for intake for individuals who request longterm support services, including classification, as well as procedures for determination ofpriority for services. These procedures will be designed to ensure prompt determination of eligibility for Medicaid ICF/MR and alternative services; ensure a prompt and appropriate assessment ofneed
13 Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 18 of 27

in order to prioritize services; and ensure that persons applying for services are provided adequate and appropriate information to allow a full understanding of the application process. These procedures will be submitted to plaintiffs for review and comment prior to implementation. Defendants shall give good faith consideration to comments and recommendations provided by plaintiffs within 30 days and will provide an explanation in writing ifplaintiffs' suggestions are not adopted.
B. At the time ofthe application, and at the time of any inquiry about services, the
applicant will receive a Statement of Rights. 1n addition, at the time of the application, the
applicant will receive a Consumer/Family Handbook. The Consumer/Family Handbook will provide the applicant with a clear description ofthe waiver program, including information about services, eligibility and appeal rights when eligibility or services are denied or when waiting list classification is disputed. Contact information will be included to provide a mechanism for obtaining additional information as needed. The targeted case manager for the applicant shall provide information consistent with Section V-B and make all reasonable efforts to accomplish the objective that the applicant understands their rights under this agreement and is encouraged to
exercise their rights, consistent with Section V-C. The Consumer/Family Handbook and the Statement ofRights will be devel<iped by defendants within three months following the approval ofthis agreement. Family members and consumers have been involved in the development and review ofthe Consumer/Family Handbook. The Statement ofRights will be -submitted to plaintiffs for review and comment prior to implementation. Defendants shall give good faith consideration to coruments and recommendations provided by plaintiffs within 30 days and will provide an explanation in writing ifplaintiffs' suggestions are not adopted.
14
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 19 of 27

C. If eligibility is denied, services delayed, or the individual objects to his or her

classification

with

/
regard

to

urgency

of need

for

services,

the

individual

has

a

right

to

a

hearing

as provided in the Statement of Rights to appeal such eligibility, delay in services, or

classification decision.

IX. Monitoring and Enforcement
A. Reporting. Upon completion of the assessment as provided in V.A., the defendants will provide a
report to plaintiffS listing the names and addresses of all individuals on the waiting list. The report will include the category ofneed (crisis, urgent, active or deferred)of each individual, as well as the region in which the individual currently lives. Defendants shall provide a monthly written report to the plaintiffs listing the number ofpersons on the waiting list by region and category ofneed; the number of individuals removed from the waiting list by region and the reason for removal; and the number ofindividuals added to the waiting list by region. In
addition, representatives of the defendants and plaintiffs shall meet monthly to discuss the implementation of this agreement. The frequency of these meetings may be reduced by mutual consent of the parties. At these meetings, the defendants will seek input from the intended beneficiaries regarding the effectiveness ofthe steps being taken to implement this agreement. It is envisioned that free, open and frank discussion ofproblems, limitations and successes will further the achievement of the goals ofthis agreement. In the event plaintiffs feel that the
information provided is not sufficient, the parties agree that informal discovery will be available to the plaintiffs and may include inspection of documents and the operations formulated and
15
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 20 of 27

l

ewtspdos:ciitilmlaolaalibpinpgmnleoseitwssnaioehfkceffeeeursdcnbqualabrvucyesyhaesapis.stillthnaaoiTobefinnonlhadetrsebimefalopffepaeslflpna'dpirddeclnoalaiotapsniuiycnrftnio,fstassivdttfeoeesfilshsrkciry'anunoclspolmofhtwuduiaploinllfslenlisycld,belhwgileoanecirrgstagohuabentdchltchmteheeheiraiesrnnstsrraiieeiesnfsqtsfrgruperaaeitsonthrapinedvesosm/eoniocbnebsorianiumlcbbtiroistpldlinyieloettisrirnafeeatntslucohcatpiietopsneorrwdnasoa,gitttmteoruhhecpeaetttohnhmdtnenhieeseefrenereaxitnawng.esdtrrhDeoeacirenniecesmatfhsesbet.esoldnneofdotn.edafsonutTthtneishecoeet,

I'
I
l

Bpwn.aoirtDrthileiitsskhcei1oosn.rveAteshzgseyeri,esrEeDaomnteftfefocoenrirnnttci.dezeayeTmnsnhetswsensitsihtdhahaeanldnlldlotbbiOcteeiureapmdsrueeobarnllfMlitccsciioortzdieseziqtdefsuincwreseasiltsttaiehhotdoaenldu.ltthtbtoaehtcekroieerpplpayteticernomgtnoiofstirshdioeeotnnhdteieearfxlwe,cnieasdpneatdnsttunhspea' itpcttlhohyemeirnpptghlaiterahtnnieecasemmeasy
rdedApiftesheagpcrerrooteteysovevi'emts2aeiro.yndecnntiipssttocui.zoforeDrsvaNnureedeabrofiqnyeystuthncatetodichonsvatetigtnesvhcrtiifsyenitotimFiedrtzhsieaaesidadpysnermu'Asesrtaeiegufsle,irnsrkRetirshoeeutrnemealnesslpaei,osamennorofttaenfifsbremaCholsneamiasdvltolhtitlreplaharPrilsesnletrccsCoriueloncoulbnieaudtmdsitreaiiutsinltra.itgeennt,hntytoetshpuweedacniirehstftvhpyoaeurstfnch,treteiobstmmtuhoSteaetcnnthtotodtenleotemdflrmeiucmanceogdtnimiitatsnentpAgdrtlasgitatoabrden,eedjecluiemitdeiwoevgnneeittat.ahlotI:hr:ie

whom

the 3.

case

is assigned for case management. The Court shall retain jurisdiction

of this

action

for

all purposes

under this

Agre=ent until this action is dismissed.

16

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 21 of 27

4. The parties intend this Agreement to be a binding contract. The parties will attempt to

ridcemelsaspoicllmrevimeboeeafdnnntybaoetcnilloo-acnwiom,omwfoptifhllilinasbnoAecneg-acrwpoeriemetmhrpeetlqihnauitnsitschAietregowruteiogtehhemitnthehenigsetorAotpirgaaartrientoyeynm'sso.ertenhAqteruonedrasiasttntpfeyoumrtoeprtseht lceaiortenifdncfifrseooprrmnumitnetasghlecirmeocsnopoculleeurrmttnifoeionnnrg,taaantsiyon

of this Court

Agreement. The parties agree that before the plaintiffs seek any other relief from the for non-compliance, the plaintiffs shall first obtain an order for specific performance under

the process outlined in IX.B.(5). 5. Before reliefis sought from the court, the following process will be used by the

parties:

a. Either party claiming that non-compliance or any other disputes concerning

implementation has occurred under this Agreement will give notice ofthe claim in

writing to opposing counsel and will propose a resolution ofthe issue to the other party. b. The responding party will have fifteen (15) days following receipt of the written claim

to respond in writing, unless the period is enlarged by agreement ofthe parties.

.

c. If the parties are unable to reach an agreement as to any alleged non-compliance, any party may request a mediation·conference with the Magistrate Judge assigned to this case.

d. In the event that efforts at conciliation and mediation are unsuccessful, the party

asserting the claim ofnon-compliance may, after providing fourteen (14) days written

notice to opposing counsel, pursue reliefbefore the United States District Court for the

Middle District of Tennessee. After two years following the approval ofthis Agreement, defendants may defend any action for non-compliance on the grounds that defendants are

17

Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 22 of 27

in compliance with the federal laws that are the basis of the underlying action which is
the subject of this Agreement. e. As to members of the plaintiff class, the systemic remedy established in this agreement shall not deprive any individual of rights afforded by the laws cited herein. This agreement shall not affect the right of any class member to seek any and all reliefthat is otherwise available through administrative review proceedings authorized by state and federal law, or through proceedings against the state before the Tennessee Claims Commission based upon alleged actions or omissions ofthe defendants. The parties acknowledge that the defendants may assert any and all defenses available in any such
administrative, claims commission or other litigation. This agreement is intended to adjudicate with respect to the plaintiff class and its
individual members those claims for class"wide equitable relief which were made on their behalfin the complaints, and thus to bar separate proceedings against these defendants by
class members seeking the same relief under 42 U.S.C. Section 1983. However, in the
event that it appears that the plaintiff class is threatened with irreparable harm, the plaintiffs may apply for a modification of this agreement, and its implementing order, as necessary to prevent such harm, so long as such modi£cation remains consistent with federal law, the intent of this agreement and its implementing orders, and the applicable standards for modification of such an agreement ordered by the Court.
6. Plaintiffs' counsel shall also monitor the agreement in the companion case ofPeople Firstv. Neel, et. al.,(CaseNo. 3:01-0272, M.D. Tenn., Judge Echols). Defendants agree and
confirm that they will not assert any defenses oflack of standing or similar jurisdictional
18
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 23 of 27

defenses in opposition to the monitoring activities of the People First agreement by plaintiffs counsel or any resulting enforcement action.
X. Attorney Fees. Expenses and Costs. The parties agree that the plaintiffs are prevailing and successful parties for the purposes
of an award of attorney fees under 42 U.S.C. §1988 for legal services rendered by their counsel in
connection with these proceedings. As such, they may seek to recover their reasonable attorneys fees and costs incurred in connection with tbis litigation. Defendants reserve their right to object to all or any part ofplaintiffs' fee request on any basis. In the event that the parties cannot agree to the amount ofreasonable attorney fees, expenses and costs, as defined above, plaintiffs shall file a fee application with the court within ninety (90) days of the effective date of this Agreement Plaintiffs may file subsequent fee applications at later dates and it is acknowledged that plaintiffs will incur reasonable attorney fees, expenses and costs in order to monitor, enforce, and plan for the duration ofthis agreement The Court will retain jurisdiction, pursuant to this Agreement, of all matters, including attorney fees and expenses.
XI. Miscellaneous Provisions A. Tbis Agreement is the compromise of disputed claims and shall not be deemed to be
an admission of liability or wrongdoing by any party for any reason. The relief set forth in this
Agreement constitutes full and final relief for each plaintiff and other similarly-situated individuals, on the claims set forth in plaintiffs' Complaint, as amended, up to and including the
effective date of this Agreement.
19
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 24 of 27

B. The rights and obligations of this Agre=ent shall inure to the successors and assigns
of the parties.

C. Ifany action beyond the control of the defendants, such as a change Jaw or action by a federal governmental agency, prohibits the defendants from material provision ofthis Agreement, the r=aining parts shall not be affected

in State or federal performing a and shall r=ain

in full force and effect. D. Tiris Agreement contains the entire agreement between the parties.

The Agreement

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requirements.

XofepIopfIrrtf.oietophcTntoee.stArmoemDdeeenolTcfitehfmhaAnailindslngygaAarenreteg.etetrwmafeSrreioiedlmmlmnepditelr,inatortsalvnsyMihd,daeteihldnltiihisscneuaAcniogdhotrhseewetvearametpeyneatppnrtlrtthaieeidnjssuo'cAdeocsigvconreeueornteathsmgpeeelreSewnfjtotuairtsdthehsiec'a4srel5vlrpiicgdcleaaheaiystnssoietninrtfoofaastbnhi'icairleniivtgtyeoehrfttam,oaninyeefydxafieosnarruytccecieshsfueaaccnhiidtlsirtiyght
20
Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 25 of 27

,.

exists, to oppose on any gronnds eliminate such optional benefits right, if any such right exists, to

available to thein nnder the law any effort by the defendant to from its Medicaid state plan, nor does it prejudice the plaintiffs' seek any relief available to them under the law with respect to

sAwrudCdeatclreahoilc3oiihfsitgtet1ufeieciirgnc,nrtolfeahtoahgdr2ne,citeasB.0asmtiprenqion0.eloTdsguenat9qnesenPehi.t.ucn'osstrerte.tteAioDiiiestmpnoqfvhdtbilnfueeisapass,didimienrldpmnetne=bheiedttdtsuiyiefhnfssteasbnifdhapnsltsAytiilllddansealmwgaalgetgiAarnniwaimaweotmttgythsesiion.rfu,oomspnefointcesSesrtieofeeotmuionotrnksjnlcatnfuesr,rtthnlsdinieeoytsshoirtqhttcaenciaehuheelfolcngaliaiCtnrostestrthetmehefwonaeidramn=ulyopmillbutrleetlahcteiyignbnynawatetoenaenthnhdi.tetxcleeoeslnpiebIhstpjrdnorutdiboereniinroincwseaasimvDlgtcnssushisdhoyioelsdeuseailicumecvsbwsodegtesanetoiam,htdhosfntafateinibupndssnoanetuetofndludairtrtavfranestt3fweethonuroyh1enstatrae,pcshtuno2cho'dreCitn0tonetiiitcm0ospofntwooiecu9onnpnhimssrs,utbledteeeheuepacdcaadmnplstntnutiiilehrcatodeloeesdeuennnsnjdtrhcsjtuooeVVaueaddnetprwvliIiixitlosuic.esehtnlEmenrde.rresBnteieoioouhcdsdfn.rffets,eueeuipattDfosadhlhlaeelnneiayirnodsyncatodftegtaoofthmrhntfaethetbtapsehek'here
failure to comply with State or Federal law subsequent to December 31,2009.

21 Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 26 of 27

. "''
'2003.

THIS SETTLEMENT IS HEREBY AGREED TO:

FOR THE PLAINTIFFS:

~IX1B£sE~· 3~ « -

Attorney for Plaintiffs Tennessee Protection &

Advocacy

2416 21st Ave. S., Suite 100

Nashville, TN 37212

Attorney for Plaintiffs

Brewer, Krause 611 Co=erce

& Brooks Street, Suite

2600

Nashville, TN 37203

FOR THE STATE OF TENNESSEE
Db~dt~~
Deputy Attorney General General Civil Division P.O, Box 20207 Nashville, TN 37243

22 Case 3:00-cv-00665 Document 166-1 Filed 02/09/2007 Page 27 of 27

 
 United States District Court, M.D. Tennessee, Nashville Division.
Lakersko BROWN, et al., Plaintiffs, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. Goetz, Jr., Commissioner, Defendants. No. 3:00-0665.
Sept. 12, 2007.
Kent Ellis Krause, Parks T. Chastain, Brewer, Krause & Brooks, Martha M. Lafferty, Sherry A. Wilds, Disability Law & Advocacy Center of Tennessee, Nashville, TN, for Plaintiffs.
Dianne Stamey Dycus, Tennessee Attorney General's Office, Nashville, TN, Brian Stuart Koukoutchos, Charles J. Cooper, Michael W. Kirk, Cooper & Kirk, Washington, DC, for Defendants.
MEMORANDUM
ROBERT L. ECHOLS, United States District Judge.
*1 Pending before the Court is Defendants' Motion To Vacate The Agreed Order Approving The Settlement Agreement And To Dismiss The Case (Docket Entry No. 155), to which Plaintiffs filed a Response (Docket Entry No. 175), and Defendants filed a Reply (Docket Entry No. 179). Also pending are Plaintiffs' Motion to Amend the Complaint (Docket Entry No. 173), to which Defendants have not filed a response; Plaintiffs' Motion For Modification Of Settlement Agreement (Docket Entry No. 166), to which Defendants filed a Memorandum in Opposition (Docket Entry No. 172), and Plaintiffs filed a Reply (Docket Entry No. 178); and Plaintiffs' Motion For Injunction (Docket Entry No. 182), to which Defendants filed a response in opposition (Docket Entry No. 187).FN1 The Court heard oral argument on these motions on Thursday, August 30, 2007.
FN1. Plaintiffs' Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 183) is also pending, but in a prior Order the Court placed that motion in

abeyance. (Docket Entry No. 188, Order.)
A. Background
On May 1, 2001, the Court certified a class comprised of mentally retarded Tennessee residents who are eligible for Medicaid services through State and privately owned Intermediate Care Facility/Mental Retardation (“ICF/MR”) facilities, pursuant to 42 U.S.C. § 1396a, or who are eligible for home-based services through a Home and Community-Based Services (“HCBS”) waiver for the mentally retarded, pursuant to 42 U.S.C. § 1396n, and who request services under these programs, but who (1) are denied the opportunity to apply for such services; (2) apply for services under these programs and are denied; or (3) are placed on a waiting list for services under these programs. Following denial of the parties' cross-motions for summary judgment and a fairness hearing, the Court entered an Agreed Order on June 15, 2004, approving a Settlement Agreement (“the Agreement”) executed on behalf of the parties.
In the Agreement, the parties verbalized the purpose of their compromise:
The parties enter into this Agreement recognizing that their overriding common interest is in assuring that Tennessee's citizens with mental retardation are provided reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe environment.... The parties recognize that individuals with mental retardation eligible for ICF/MR level of care have been placed on waiting lists for mental retardation services. This Agreement is intended to eliminate or substantially reduce the waiting list for services by providing for: (1) the development of the mental retardation system infrastructure and provider network capacity necessary to support the expansion of quality home and community based waiver services; (2) access to interim services for Medicaid-eligible individuals seeking services; and (3) an appropriate planning process for the future expansion and/or development of home and community based waiver programs and services for Medicaid-eligible persons with mental retardation on the DMRS FN2 waiting list.
FN2. “DMRS” refers to the Tennessee Division of Mental Retardation Services.

(Docket Entry No. 116, Ex. A, Settlement Agreement at 2-3.)
*2 The parties acknowledged in the Agreement that “defendants cannot fully anticipate the rate of growth of the DMRS waiting list, the amount of legislative appropriations for home and community based MR services, or the maximum number of waiver participants that will be approved by ... (CMS) [.]” The parties set as a goal, however, “to eliminate or substantially reduce the waiting list for services for Medicaid-eligible persons with mental retardation that meet the ICF/MR level of care criteria.”(Id. at 3.)
The State agreed to (1) seek approval from the federal Center for Medicare and Medicaid Services (“CMS”) for a new Medicaid self-determination waiver and fund the enrollment of 600 enrollees during the first year after approval and 900 enrollees during the second year; (2) provide $12 million in fiscal years 2003-2004, 2004-2005 and 2005-2006 in HCBS waiver improvement funding; (3) implement a targeted case management program within six months of the approval of the Settlement Agreement; (4) develop a program to provide consumer directed support to individuals on the waiting list in the “crisis,” “urgent,” or “active” categories who are not receiving family support services, with funding capped at $2,280 per person, not to exceed $5 million per year; (5) make best efforts to achieve relief from the moratorium imposed by CMS in May 2001 on new admissions to the HCBS waiver; and (6) implement a series of reforms to the process for applying for MR services. The Agreement provides that
defendants' commitment is to: 1) work toward lifting the moratorium on new admissions to the existing home and community based MR waiver program as soon as possible; 2) develop MR service system infrastructure; 3) apply for new waivers so that the DMRS waiting list will move at a reasonable pace; and 4) strive to provide services to Medicaideligible persons with mental retardation that meet the ICF/MR level of care criteria on the waiting list with reasonable promptness. It is defendants' intent to reach the goals of this Agreement without reducing the funding for other services to individuals with mental retardation.

Id.
In the three years since the Agreement was entered, it appears that some of the parties' goals have been met while others have not.FN3A primary concern identified in the pending motions is the DMRS waiting list. According to Defendants, in 2005 DMRS enrolled from the waiting list 961 individuals into the main HCBS waiver and 361 individuals into the self-determination waiver, for a total of 1,322 enrollments during that year. (Docket Entry No. 170, Norris Decl. ¶ 9.) In 2006, DMRS enrolled from the waiting list 224 individuals in the main HCBS waiver and 481 individuals in the self-determination waiver, for a total of 705 enrollments during that year. Thus, during 2005-2006, DMRS initiated services for 2,027 individuals on the waiting list-1185 in the main HCBS waiver and 842 in the self-determination waiver. (Id.)
FN3.Compare Declaration of Stephen H. Norris (Docket Entry No. 170) (setting forth the State's recent achievements) with Plaintiffs' pending motion seeking specific performance of the Agreement, alleging the State failed to meet certain of its obligations (Docket Entry No. 183).
*3 Plaintiffs evaluate the numbers from a different perspective. Despite the enrollments noted above, they emphasize the rapid growth of the waiting list between January 2005 and June 2007 to a total of 5,834 individuals. They draw special attention to the total of those persons assigned to the “crisis” category-1,015 as of June 2007. According to the Agreement and Defendants' subsequently-adopted policy, persons in need of MR services who are defined as being in “crisis” are either homeless or threatened with homelessness within thirty days; have suffered the death, incapacitation or loss of a primary caregiver and lack an alternate primary caregiver; or present a serious and imminent danger of harm to self or others. (Agreement at 4; Docket Entry No. 166, Ex. E.) The rise in individuals added to the waiting list, coupled with a precipitous decline in the number of those actually served since early 2006 has resulted in more names on the waiting list than existed before the Agreement was entered. (Docket Entry No. 195, Supplement to Motion For Modification of Settlement Agreement, Ex. G, June 2007 Monthly Report of Defendants.)

Defendants counter that the Agreement established targets for new enrollments in the self-determination waiver of 600 in the first year and 900 in the second year. The Agreement did not establish target enrollments for the main HCBS waiver. After the State successfully persuaded CMS to lift the moratorium on new enrollments in the HCBS waiver in April 2005, DMRS prioritized the enrollment of individuals with the most severe needs, as contemplated by the Agreement. Most of these “crisis” individuals could not properly be served in the self-determination wavier, which has an annual expense cap of $30,000, so they were enrolled in the costlier main HCBS waiver. Because of the greater expense of enrollments in the HCBS waiver, the State's expenditures on new enrollments in 20052006 went far beyond the expected costs of complying with the Agreement's enrollment targets in the self-determination waiver. The total number of enrollments for 2005-2006 (2,027 individuals) significantly surpassed the total enrollment targets imposed by the Agreement (1,500 individuals). Defendants believe they have implemented the specific steps envisioned by the Agreement. (Norris Decl. ¶¶ 2-10.) In 2006 the parties attempted to negotiate and submitted to mediation the question of appropriate expansion and provision of MR services for the third, fourth and fifth years covered by the Agreement, but could not reach an acceptable resolution. The Magistrate Judge declared an impasse and referred the matter to this Court. Defendants conclude that the system for MR services is incapable of incorporating large growth in the number of enrollees while still maintaining the necessary quality of services. The provision of lower quality services could trigger CMS to impose another moratorium on waiver services. Additionally, Defendants are concerned about making a financial commitment to the waiver programs that would negatively impact the State's other financial obligations. Defendants state they are committed to do everything they reasonably can, consistent with other financial obligations, to reduce the waiting list for MR services. The proposed budget the Governor submitted to the General Assembly for FY 2007 included funding that will permit DMRS to expand enrollment by 50 per month during that year.FN4 The State promises to maintain this commitment if the Court grants the motion to vacate the Agreement and dismisses the case. (Id. at ¶¶ 12-16.)

FN4. The record does not reveal how the General Assembly voted on this portion of the Governor's proposed budget.
*4 In Plaintiffs' view, Defendants' planning failed to heed Plaintiffs' predictions that the waiting list would grow quickly when families who had long given up hope of receiving services learned that waiver enrollments were occurring. Plaintiffs also question Defendants' commitment noting what they say is inadequate state funding earmarked to meet the objectives of the Agreement. Perhaps most troubling is Plaintiffs' allegation that, despite entering into the Agreement, the Defendants unilaterally and secretively took steps to make compliance with the terms of the Agreement impossible. Specifically, Plaintiffs point to Defendants' March 2006 request, approved by CMS, reducing the number of available slots in the HCBS and self-determination waivers by nearly 1,200 beginning in January 1, 2007 and continuing thereafter (Docket Entry No. 175, Exs. B, C, E & F), and Deputy Commissioner Stephen Norris' June 5, 2006 letter to waiver applicants and their families acknowledging the drop in waiver enrollments. (Docket Entry No. 166, Ex. D.) Having accomplished this feat, Plaintiffs suggest it is no wonder that the State budget to fund fiscal year 2007 waiver enrollments also dropped to 50 per month, and even then, the State enrolled fifty persons in only one month after the new level was established. Plaintiffs charge that, instead of increasing enrollment into the waiver programs as required by the Agreement, Defendants have insured that persons in need will continue to be denied services.
B. Defendants' Motion to Vacate the Agreed Order
Against this backdrop, Defendants move to vacate the Agreement and dismiss the case in its entirety. The argument is made that, at the time the parties negotiated the Agreement, they mutually labored under a fundamental misunderstanding that the phrase “medical assistance” in the Medicaid statute meant that States must provide qualified individuals with medical services, not merely financial reimbursement for such services.
Defendants reason that Plaintiffs' First Amended Complaint alleged the existence of the DMRS waiting list violated 42 U.S.C. § 1396a(a)(8) & (10)

in that the State failed to provide services with reasonable promptness and on equal footing with other Medicaid services. Section 1396a(a)(8) (emphasis added) requires that “[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.”Section 1396a(a)(10)(B) (emphasis added) requires that “[a] state plan for medical assistance must[ ] provide ... 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).”
*5 According to Defendants, federal courts had widely assumed that the phrase “medical assistance” encompassed the direct provision of medical services by the State. See e.g. Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002); Doe v. Chiles, 136 F.3d 709, 716 n. 13 (11th Cir.1998); Sobky v. Smoley, 855 F.Supp. 1123, 1147 (E.D.Cal.1994). Moreover, because courts had held that sections 1396a(a)(8) and (10) applied to the administration of Medicaid waivers, the definition of “medical assistance” had also been applied to the provision of waiver services, at least up to the number of approved available slots within the waiver program. See e.g., Boulet v. Cellucci, 107 F.Supp.2d 61, 77-78 (D.Mass.2000); Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217, 1234 (D .N.M.2000). The only contrary view at the time appeared in dictum in Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003), in which a Seventh Circuit panel observed:
Even if [plaintiffs] did require emergency treatment, their theory of violation would be a considerable stretch because the statutory reference to ‘assistance’ 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 state-provided medical assistance, as through state-owned hospitals. The regulations that

implement the provision 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, see 42 C.F.R. §§ 435.911(a), .930(a)-(b); a requirement of prompt treatment would amount to a direct regulation of medical services.
Defendants assert the landscape changed when the Sixth Circuit decided Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006) (“Westside Mothers II”). In that case, the Sixth Circuit determined that “medical assistance” means states must furnish only “financial assistance” or payment for medical services. Id. at 540.In so holding, the court construed 42 U.S.C. § 1396d(a), which defines “medical assistance” as “payment of part or all of the cost of [listed] care and services” for Medicaid-eligible individuals. Id. at 540-541.The court also relied on the regulations implementing the statute, which require only prompt determination of eligibility and prompt payment to eligible individuals to enable them to obtain necessary medical services. 42 C.F.R. §§ 435.911, 435.930. The Tenth Circuit adopted a similar analysis in Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir.2006), holding that, because the Medicaid statute requires states to provide only prompt and evenhanded payment for medical services, the plaintiffs could not state a legal claim where they asserted they were on a waiting list for services, not on a waiting list for the payment of services.
*6 Likening the Agreed Order adopting the Agreement to a consent decree, Defendants seek vacatur under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 387 (1992), and Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.1994), on the grounds that the intervening change in law shattered the foundation upon which the claim for injunctive relief was based; the intervening change reveals that the Agreement was based on a fundamental, mutual mistake about the meaning of governing law; and the change reveals that the Agreement imposes on state officials obligations that no longer bear any close relation to the requirements of federal law. Backed by the holdings of Westside Mothers II and Mandy R that states must provide payment, not medical services, Defendants postulate further that “sections 1396a(8) and (10) impose no duty on the States to

ensure the provision of medical services.” (Docket Entry No. 156, Memorandum in Support at 14 (underlined emphasis added; italics in original.) Ensuring the provision of medical services is an issue that was not decided in Westside Mothers II and was only briefly addressed in Mandy R.
In the latter case, the plaintiffs argued that Colorado's waiver application indicated “a commitment to ensuring that every eligible patient receives services, either from ICFs/MR or HCBS.” Mandy R, 464 F.3d at 1145. The Tenth Circuit ruled:
Although the waiver application suggests that a developmentally disabled person will have a choice between an ICF/MR and HCBS, it does not assign to the State, or any other party, the responsibility to ensure that such facilities are in fact available. Indeed, the waiver application appears to mean only that the choice among ‘feasible alternatives' is to be made by the recipient-not that the State must make alternatives available. Because it is at best ambiguous on the point, it provides no reason to reject the natural reading of the statutory definition.
Id. Additionally, the Tenth Circuit observed that the plaintiffs in that case did “not suggest that ICF/MR rates [had] been set so low as to prohibit new entrants to the market ... [n]or do the plaintiffs claim that the State has discouraged efforts to build HCBS facilities, which is where the greatest shortfall in facilities exists[,][a]nd the plaintiffs do not claim that the state has denied or effectively denied (through delay or similar means) a formal application to build new ICF/MR facilities.”Id.
In this case, however, the facts are different from those in Mandy R. The State's waiver applications submitted to CMS are not at issue here, but rather the jointly executed and binding contractual Agreement in settlement of litigation which placed a specific duty on Defendants to ensure the provision of needed services, even though Defendants were not required by the Agreement itself or now by Westside Mothers II to provide such services themselves. (Agreement at 17 (“The parties intend this Agreement to be a binding contract.”) The parties jointly promised that the “Agreement is intended to eliminate or substantially reduce the waiting list for services by providing for: (1) the development of the mental retardation system infrastructure and provider

network capacity necessary to support the expansion of quality home and community based waiver services; (2) access to interim services for Medicaideligible individuals seeking services; and (3) an appropriate planning process for the future expansion and/or development of home and community based waiver programs and services for Medicaid-eligible persons with mental retardation on the DMRS waiting list.” (Docket Entry No. 116, Ex. A, Settlement Agreement at 2-3 (emphasis added).) The Agreement specifically provides further that “defendants' commitment is to ...develop MR service system infrastructure [.] ”Id. at 3. Defendants agreed to improve funding for, and delivery of, needed services. Id. at 5-15.There are no provisions in the Agreement obligating the Defendants to provide medical services directly or making the State a “provider of last resort.”

*7 The parties did not make a mutual mistake of law

that would justify terminating this Agreement, nor

has the law changed to such an extent that all of the

provisions of the Agreement now impose a higher

burden on the state Defendants than federal law

requires. In settling the underlying litigation,

Defendants willingly accepted a contractual duty to

ensure the provision of medical services to persons

on the DMRS waiting list to help accomplish the

parties' “overriding common interest” in “assuring

that Tennessee's citizens with mental retardation are

provided reasonable opportunities to grow and

develop, exercise independence, and lead full and

productive

lives

in

a

safe

environment.”FN5(Agreement at 2.) Neither Rufo,

Sweeton, Westside Mothers II nor Mandy R requires

the Court to relieve the Defendants of the solemn

obligations they voluntarily assumed under the

Agreement. Defendants' motion to vacate the

Agreement and dismiss the case will be denied.

FN5.Title 42 U.S.C. § 1396a(a)(30) provides in part that states must

provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care

and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area[.]
Although the Sixth Circuit held that § 1396a(a)(30) does not confer on Medicaid recipients a private right of action under § 1983, Westside Mothers II, 454 F.3d at 542, the statute prescribes the law the states must follow to ensure that enough service providers are available, and the Defendants accepted their responsibility to follow this law and improve the Tennessee provider network when they executed the Agreement. See also42 U.S.C. § 1396a(a)(9) (requiring states to establish and maintain health standards for private and public institutions in which recipients of medical assistance receive care or services; 42 U.S.C. § 1396n(c)(2) (requiring states to assure necessary safeguards to protect health and welfare of individuals provided services under HCBS waiver and to assure financial accountability for funds expended with respect to such services). The federal government retains authority to withhold payment of federal Medicaid funds to any state that changes its plan to such a degree that it no longer complies with the provisions of § 1396a or in the administration of the plan there is a failure to comply substantially with any provision of § 1396a.
C. Plaintiffs' Motion To Amend the Complaint
In the event the Court were inclined to grant Defendants' motion to vacate the Agreement and dismiss the case, Plaintiffs filed an alternative motion to amend the complaint. Because the Court will deny Defendants' motion to vacate, the Court will also deny Plaintiffs' motion to amend the complaint.
D. Plaintiffs' Motion For Modification of Settlement Agreement
In light of the growing number of individuals on the

DMRS waiting list and Defendants' actions in reducing the number of available waiver enrollment slots, Plaintiffs seek modification of the Agreement to require the Defendants by the end of calendar year 2007 to enroll into waiver services all individuals on the waiting list who have been designated in the “crisis” category for more than ninety (90) days. Plaintiffs claim that the pace of enrollment since May 2006 is contrary to the commitment made by the Defendants in the Agreement and the parties' goal to substantially reduce or eliminate the waiting list by the end of year five. Plaintiffs ask the Court to presume that individuals in the “crisis” category face irreparable harm because, by definition, such persons are either homeless, without an adequate primary caretaker, or present a serious risk of danger to self or others. Plaintiffs observe that, once a state elects to provide an optional service, that service becomes part of the state's Medicaid plan and the state is obligated to provide that service in compliance with the requirements of federal law, citing 42 U.S.C. § 1396a(a)(8); 42 C.F.R. §§ 435.911(a), 435.930; Alexander v. Choate, 469 U.S. 287, 289 n. 1 (1985), Weaver v. Reagan, 886 F.2d 194, 197 (8th Cir.1989), and Doe v. Chiles, 136 F.3d 709, 719 (11th Cir.1998).
The Agreement provides: “[I]n the event that it appears that the plaintiff class is threatened with irreparable harm, the plaintiffs may apply for a modification of this agreement, and its implementing order, as necessary to prevent such harm, so long as such modification remains consistent with federal law, the intent of this agreement and its implementing orders, and the applicable standards for modification of such an agreement ordered by the Court.”(Agreement at 18.) Plaintiffs' motion to modify is governed by Federal Rule of Civil Procedure 60(b). Rufo, 502 U.S. at 378. “ ‘[S]ound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.’ “ Id, at 380 (quoted case omitted). Plaintiffs bear the burden to establish that “a significant change in circumstances warrants revision” of the Agreement. Id. at 383.If Plaintiffs meet this standard, the Court “should consider whether the proposed modification is suitably tailored to the changed circumstance.” Id.

*8 The increase in the number of individuals, particularly those in the “crisis” category, on the DMRS waiting list and Defendants' actions in reducing the number of available waiver enrollment slots with CMS approval are troubling to the Court. As the parties recognize, the goal of this Agreement was to substantially reduce or eliminate the entire waiting list within five years. Contrary to initial expectations, however, the waiting list is growing substantially despite the State's enrollment of hundreds of people into waiver services since the Agreed Order was entered. The Court believes that the monthly reports provided by the Plaintiffs in support of their motion to modify establish a significant change in circumstances that may warrant revision of the Agreement.
The Court is not convinced, however, that Plaintiffs' proposed remedy is suitably tailored to the changed circumstance. The most recent information presented by the Plaintiffs, which is the June 2007 monthly report (Docket Entry No. 195, Ex. G), does not indicate how many of the 1,015 persons then included in the “crisis” category had maintained that status for more than 90 days, nor does the Court have any information about how the composition of the “crisis” category waiting list has changed since June 2007. Thus, the Court does not know how many individuals Plaintiffs propose should be mandated into waiver enrollments by the end of the calendar year. The Court surmises that the total number of “crisis” applicants who have waited more than 90 days for enrollment likely surpasses the rate of 50 enrollments per month under which the Defendants are currently operating.
The General Assembly has already determined for fiscal year 2007 the appropriation necessary to pay for waiver enrollments, based on information provided by the Defendants. State budgeting decisions are uniquely within the province of the Governor and the General Assembly. This Court does not sit as a super-legislature to direct the State of Tennessee in the method it should use to set its funding priorities. Such policy matters are exclusively for elected state officials to decide.
Additionally, Plaintiffs present no evidence that the Medicaid services system infrastructure can absorb by the end of the year the number of waiver enrollments Plaintiffs propose. Even if the CMS-

approved cap of 50 slots per month could be disregarded (and the Court does not indicate that it legally could be), Plaintiffs present no evidence that sufficient facilities exist to provide necessary waiver services to these individuals who have wide-ranging and divergent needs, or that the quality of services provided would not suffer due to the unexpected influx of clients. Plaintiffs criticize Deputy Commissioner Norris for stating at his deposition that he did not know what the provider network could withstand and that he often proceeds based on instinct and anecdotal evidence. Yet, Plaintiffs have not presented any evidence in support of the motion to modify showing that the provider network can accommodate Plaintiffs' proposal. The Court must make its findings and conclusions based on the facts and the applicable law, not speculation.
*9 One primary and achieved goal of the parties' Agreement was convincing CMS to lift the moratorium it had placed on Tennessee's waiver services due to quality concerns. In accordance with the Agreement, the Defendants expended much time, effort and funding to persuade CMS to lift the moratorium. The Court would be ill-advised to modify the Agreement on the scant factual record before it to command that Defendants enroll an unspecified number of individuals into waiver services by the end of the year without also giving adequate consideration to the possibility that doing so might prompt CMS to impose a new moratorium that would harm all individuals on the waiting list.
In the Agreement the parties recognized the impediment presented by the earlier CMS moratorium and noted the limitations on enrollment slots available. The Agreement acknowledged that the pace of enrollments would be limited by legislative funding decisions beyond the Defendants' control. Granted, Defendants have since obtained a reduction, not an increase, in available slots, and the allegedly surreptitious manner in which Defendants accomplished that reduction, if true, is disheartening to the Court in light of all the efforts made to encourage openness and conciliation of the parties to achieve the greater good of the developmentally disabled.
Even assuming that Plaintiffs' proposed modification remains consistent with federal law and the intent of the Settlement Agreement and its implementing

orders, nonetheless, there is no evidence before the Court to establish that Plaintiffs' proposal is suitably tailored to meet the challenges of a growing waiting list and declining enrollment availability. Plaintiffs' motion will be denied.
E. Plaintiffs' Motion for Injunction
Plaintiffs seek an injunction to prohibit Defendants from further divulging the substance of the parties' discussions and positions taken during confidential settlement negotiations. Plaintiffs allege that Deputy Commissioner Norris disclosed the Plaintiffs' settlement position while testifying before a committee of the General Assembly during a public hearing.
Plaintiffs are entitled to a permanent injunction only if they can show they have suffered an irreparable injury, that remedies available at law are inadequate to compensate for that injury, that considering the balance of hardships between the Plaintiffs and the Defendants a remedy in equity is warranted, and that the public interest would be served by a permanent injunction. See eBay Inc. v. MercExchange, L.L.C., -- U.S. ----, 126 S.Ct. 1837, 1839 (2006). Plaintiffs have not carried their burden to meet these requirements.
Deputy Commissioner Norris, as a state official, has an obligation to provide truthful testimony to the General Assembly which is charged with funding the Department's programs and its compromises to disputes such as this one. Plaintiffs have not shown irreparable harm as a result of his disclosure, nor have Plaintiffs established that the situation may arise again in the future. Plaintiffs' interest in keeping their settlement position private does not outweigh the hardship faced by the legislature if it is denied information critical to its decisions. Plaintiffs also have not shown that they lack adequate remedies at law, or that the public interest in this lawsuit or in thorough communications between the executive and legislative branches of government would be served by a permanent injunction. This motion will be denied.
F. The Next Step
*10 In light of these rulings, the Court will next proceed to consider Plaintiffs' Motion For An Order

For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 183), which the Court held in abeyance by previous Order. Plaintiffs may reconsider the content of their motion filed on May 9, 2007, and file an amended or supplemented motion as desired. The Court will allow the parties a limited period to conduct discovery. Defendants will then have an opportunity to respond to the amended or supplemented motion, and Plaintiffs will be permitted to file a reply. The Court will then hold a hearing before resolving the motion.
G. Conclusion
For all of the reasons stated, Defendants' Motion To Vacate The Agreed Order Approving The Settlement Agreement And To Dismiss The Case (Docket Entry No. 155), will be denied, as will Plaintiffs' Motion to Amend the Complaint (Docket Entry No. 173), Plaintiffs' Motion For Modification Of Settlement Agreement (Docket Entry No. 166), and Plaintiffs' Motion For Injunction (Docket Entry No. 182). The Court will schedule discovery, briefing, and a hearing on Plaintiff's Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 183), as it may be amended or supplemented.
An appropriate Order will be entered.
M.D.Tenn.,2007. Brown v. Tennessee Dept. of Finance and Admin. Not Reported in F.Supp.2d, 2007 WL 2710704 (M.D.Tenn.), Med & Med GD (CCH) P 302,202
END OF DOCUMENT

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BETH ANN BROWN, ET AL.

)

)

v.

)

)

THE TENNESSEE DEPARTMENT OF

)

MENTAL HEALTH AND DEVELOPMENTAL )

DISABILITIES, ET AL.

)

No. 3:00-0665 Judge Echols

O R D E R Pending before the Court is Plaintiffs’ “Motion for Mediation Conference with the Magistrate Judge Pursuant to Section VII of Settlement Agreement and for a Trial Date in Case an Impasse is Declared by the Magistrate” (Docket Entry No. 132), to which the Defendants have responded (Docket Entry No. 133). The Complaint in this case was filed July 13, 2000. On May 7, 2002, the case was consolidated with People First of Tennessee v. Dr. C. Warren Neel , Civil Action No. 3:01-0272 for pretrial and discovery purposes. (See Docket Entry No. 55). A settlement conference was held in 2002 by the Magistrate Judge, but no settlement was reached. (Docket Entry No. 63). In May of 2003 the parties agreed to mediate the case, Mr. Norris was selected as mediator, and the case was administratively closed pending mediation (Docket Entry No. 105). A Stipulation of Settlements and Order of Provisional Approval of Settlement Agreements was entered on February 6, 2004 and an Agreed Order was entered approving the settlement on June 17, 2004. (Docket Entry Nos. 108, 116). Plaintiffs in Brown now request that the Court refer their case to the Magistrate Judge for an expedited mediation conference pursuant to Section VII of the Settlement Agreement which provides

Case 3:00-cv-00665 Document 134 Filed 07/17/06 Page 1 of 2 PageID #: 51

that either party may request a mediation conference with the Magistrate Judge if no agreement is reached for the third, fourth, and fifth years for expansion of enrollment and pr ovision of services. They also seek a trial date in case they reach an impasse in mediation. Defendants believe mediation and trial are premature but they do not oppose mediation. (Docket Entry No. 133).
As this case is administratively closed, the Motion is hereby GRANTED in that the case is referred to the Magistrate Judge for expedited mediation and recommendation to the Court as to whether the case should be reopened and a trial date set. A separate Order will be entered by the Magistrate Judge setting forth the date of the hearing and any requirements of the parties prior to the hearing. The case shall remain administratively closed, and the parties shall not file any further pleadings without leave of Court.
IT IS SO ORDERED.
ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
Case 3:00-cv-00665 Document 134 Filed 07/17/06 Page 2 of 2 PageID #: 52

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LAKERSKO BROWN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

TENNESSEE DEPARTMENT OF

)

FINANCE AND ADMINISTRATION )

and M.D. GOETZ, Jr., Commissioner, )

)

Defendants.

)

No. 3:00-0665 JUDGE ECHOLS

ORDER

Pending before the Court are the Motion For Leave To AppeaPr ro Hac Vice (Docket Entry

No. 152), filed by Charles J. Cooper,the Motion For Leave To AppearPro Hac Vice (Docket Entry

No. 153), filed by Michael W. Kirk, and the Motion For Leave To Appear Pro Hac Vice (Docket

Entry No. 158), filed by Brian S. Koukoutchos. Plaintiffs object to the admission pro hac vice of

Mr. Koukoutchos.

The Motions filed by Mr. Cooper and Mr. Kirk, of the law firm Cooper & Kirk, PLLC,

(Docket Entry Nos. 152 & 153) are hereby GRANTED on the ground that such Motions com ply

with Local Rule 83.01(d). Mr. Cooper and MrK. irk are permitted to appear in this casepro hac vice

on behalf of the Defendants.

The Motion For Leave To Appear Pro Hac Vice filed by Mr. Koukoutchos, of the law firm

of Cooper & Kirk, PLLC, is hreeby GRANTED on the ground that such Motion complies with Local

Rule 83.01(d). Plaintiffs’ objection to the ad mission of M r. Koukoutchos is overruled. The

authority to admit an attorney to practice before the bar is within the discretion ofthe district court.

1

Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 1 of 3 PageID #: 624

See Stilley v. Bell, 155 Fed.Appx. 217, 219 (6th Cir. 2005); D.H. Overmyer Co. v. First Nat’l Bank of Boston, 750 F.2d 31, 33 (6 th Cir. 1984). Tenn. Code Ann. § 8-6-106 vests in t he Tennessee Governor and Attorney General and Reporter the exclusive judgment to determine, in “all cases where the interest of the state requires,” whethreadditional counsel should be employed and whether such counsel should be
paid such compensation for services as the governor, secretary of state, and attorney general and reporter may deem just, the same to be paid out of any money in the treasury not otherwise appropriated, upon the certificate of such officers certifying the amount to the commissioner of finance and administration. The statute by its terms does not grant this Court any authority to question the decision of the Governor and the Attorney General and Reporter to hire Mr. Koukoutchos to serve as outside counsel in this case, and Plaint iffs have not cited the Court to any case granting the Court such authority. The Court must presume that state officials “will discharge their duties in good faith and in accordance with the law.” State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 775 (Tenn. Ct. App. 2001). “The Attorney General is an officer of the court and has the statutory responsibility to assur e that the various departm ents of state governm ent receive appropriate legal representation when they are entitled to it[.]” Id. This Court must assume that the Attorney General and Reporter will act “professionally, ethically, and in good faith” in exercising his discretion under § 8-6-106 to advise tehGovernor to employ additional counsel in this case. Id. For admission pro hac vice this Court’s Local Rules require no more than a motion for pro hac vice admission, certification of Mr. Koukoutchos’ good standing as a m ember of the bar of another United States District Court, and payment of the pro hac vice admission fee. Because Mr. Koukoutchos has complied with these requirements, the Court exercises its discretion to admit him
2
Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 2 of 3 PageID #: 625

to the bar ofthe Court. Accordingly, the Motion For Leave To AppearPro Hac Vice (Docket Entry No. 158) filed by Mr. Koukoutchos is hereby GRANTED.
It is so ORDERED. __________________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
3 Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 3 of 3 PageID #: 626

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LAKERSKO BROWN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

TENNESSEE DEPARTMENT OF

)

FINANCE AND ADMINISTRATION )

and M.D. GOETZ, Jr., Commissioner, )

)

Defendants.

)

No. 3:00-0665 JUDGE ECHOLS

ORDER

Pending before the Court are the Motion For Leave To AppeaPr ro Hac Vice (Docket Entry

No. 152), filed by Charles J. Cooper,the Motion For Leave To AppearPro Hac Vice (Docket Entry

No. 153), filed by Michael W. Kirk, and the Motion For Leave To Appear Pro Hac Vice (Docket

Entry No. 158), filed by Brian S. Koukoutchos. Plaintiffs object to the admission pro hac vice of

Mr. Koukoutchos.

The Motions filed by Mr. Cooper and Mr. Kirk, of the law firm Cooper & Kirk, PLLC,

(Docket Entry Nos. 152 & 153) are hereby GRANTED on the ground that such Motions com ply

with Local Rule 83.01(d). Mr. Cooper and MrK. irk are permitted to appear in this casepro hac vice

on behalf of the Defendants.

The Motion For Leave To Appear Pro Hac Vice filed by Mr. Koukoutchos, of the law firm

of Cooper & Kirk, PLLC, is hreeby GRANTED on the ground that such Motion complies with Local

Rule 83.01(d). Plaintiffs’ objection to the ad mission of M r. Koukoutchos is overruled. The

authority to admit an attorney to practice before the bar is within the discretion ofthe district court.

1

Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 1 of 3 PageID #: 624

See Stilley v. Bell, 155 Fed.Appx. 217, 219 (6th Cir. 2005); D.H. Overmyer Co. v. First Nat’l Bank of Boston, 750 F.2d 31, 33 (6 th Cir. 1984). Tenn. Code Ann. § 8-6-106 vests in t he Tennessee Governor and Attorney General and Reporter the exclusive judgment to determine, in “all cases where the interest of the state requires,” whethreadditional counsel should be employed and whether such counsel should be
paid such compensation for services as the governor, secretary of state, and attorney general and reporter may deem just, the same to be paid out of any money in the treasury not otherwise appropriated, upon the certificate of such officers certifying the amount to the commissioner of finance and administration. The statute by its terms does not grant this Court any authority to question the decision of the Governor and the Attorney General and Reporter to hire Mr. Koukoutchos to serve as outside counsel in this case, and Plaint iffs have not cited the Court to any case granting the Court such authority. The Court must presume that state officials “will discharge their duties in good faith and in accordance with the law.” State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 775 (Tenn. Ct. App. 2001). “The Attorney General is an officer of the court and has the statutory responsibility to assur e that the various departm ents of state governm ent receive appropriate legal representation when they are entitled to it[.]” Id. This Court must assume that the Attorney General and Reporter will act “professionally, ethically, and in good faith” in exercising his discretion under § 8-6-106 to advise tehGovernor to employ additional counsel in this case. Id. For admission pro hac vice this Court’s Local Rules require no more than a motion for pro hac vice admission, certification of Mr. Koukoutchos’ good standing as a m ember of the bar of another United States District Court, and payment of the pro hac vice admission fee. Because Mr. Koukoutchos has complied with these requirements, the Court exercises its discretion to admit him
2
Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 2 of 3 PageID #: 625

to the bar ofthe Court. Accordingly, the Motion For Leave To AppearPro Hac Vice (Docket Entry No. 158) filed by Mr. Koukoutchos is hereby GRANTED.
It is so ORDERED. __________________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
3 Case 3:00-cv-00665 Document 181 Filed 04/13/07 Page 3 of 3 PageID #: 626

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LAKERSKO BROWN, et al.,
Plaintiffs,
v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. GOETZ, Jr., Commissioner,
Defendants.

) ) ) ) ) No. 3:00-0665 ) JUDGE ECHOLS ) ) ) ) )

ORDER

In accordance with the Memorandum entered contemporaneously herewith, the Court rules

as follows:

(1) Defendants’ Motion To Vacate The Agreed Order Appr oving The Settlem ent

Agreement And To Dismiss The Case (Docket Entry No. 155) is hereby DENIED.

(2) Plaintiffs’ Motion to Amend the Complaint (Docket Entry No. 173) is hereby DENIED.

(3) Plaintiffs’ Motion For Modification Of Settlement Agreement (Docket Entry No. 166)

is hereby DENIED.

(4) Plaintiffs’ Motion For Injunction (Docket Entry No. 182) is hereby DENIED.

(5) Plaintiffs may amend or supplement their pending Motion For An Order For Specific

Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 183) no later

than Friday, September 21, 2007.

1 Case 3:00-cv-00665 Document 200 Filed 09/12/07 Page 1 of 2 PageID #: 769

(6) All discovery on Plaintiffs’ amended or supplemented Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement shall be completed by Wednesday, November 21, 2007.
(7) Defendants will file a response to Plaintiffs’ amended or supplemented Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement no later than Friday, December 7, 2007.
(8) Plaintiffs may file a reply no later than Wednesday, December 19, 2007. (9) The Court will hold a hearnig on the amended or supplemented Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement on Friday, January 4, 2008, at 9:00 a.m. It is so ORDERED.
____________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
2 Case 3:00-cv-00665 Document 200 Filed 09/12/07 Page 2 of 2 PageID #: 770

 
 Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EASI FlFfH SIREET, ROOM 540 POTIER STEWART U SCOURIHOUSE
CINCINNATI, OHIO 45202-3988

leI (513) 564-7000 W\V\\, .ca6. USCOUl ts.gov

Filed: February 08, 2008
Mr. Michael W Kirk Cooper & Kirk 1523 New Hampshire Avenue, N W Washington, DC 20036
Ms Martha M. Lafferty Disability Law & Advocacy Center of Tennessee 2416 21st Avenue, S. Suite 100 PO Box 121257 Nashville, TN 37212

FEB 1 7 2008

Re: No 07-6163,07-6325 Lakersko Brown, et al v. Tennessee Department ofFinane, et al
Originating Case No 00-00665

Dear Counsel,

The Court issued the enclosed order today in these appeals.

Sincerely yours,

cc: Honorable Robert L Echols Mr. Keith Throckmorton
Enclosure

s/Mary Patterson Case Manager Direct Dial No. 513-564-7033 Fax No. 513-564-7094 CA06-Team3@ca6uscourts gov

Case 3:00-cv-00665 Document 247 Filed 02/11/08 Page 1 of 3 PageID #: 2418

Nos. 07-6163/6325
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUlT

LAKERSKO BROWN; KATIE BLACKBURN; )

MATTHEW MCGOWAN; SHALYN KIKER, as )

class representatives; DISABILITY LAW AND

)

ADVOCACY CENTER OF TENNESSEE,

)

)

Plaintiffs-Appellees,

)

)

v

)

)

TENNESSEE DEPARTMENT OF FINANCE

)

ANDADMINISTRATION;M. D.. GOETZ,JR, in )

his official capacity as Commissioner of the

)

Department of Finance and Administration,

)

)

Defi;mdants-Appellants.

)

)

fa £0
FE'B 082008
LEONARD GREEN, Clerk
ORDER

Before: GUY, SUHRHEINRICH, and McKEAGUE, Circuit Judges

In this class action challenging the state's provision of Medicaid services for the mentally

retarded, the defendants appeal the denial of their motion filed pursuant to Fed. R Civ. P. 60(b) to

vacate an agreed order approving an agreement settling the class claims. (Case No. 07- 6163) They

filed a second notice of appeal to "clarify that they appeal as a matter of right pursuant to 28 U S.C

§§ 1291 and 1292(a)(l }." (Case No. 07-6325). The plaintiffs move to dismiss the appeals for lack

of jurisdiction The defendants oppose the motion to dismiss

The plaintiffs argue that the order denying the motion to vacate the agreed order approving

the settlement is not a final, appealable order The agreed order was entered after the district court

held a hearing ~nr1 cnno.l,,"~" +,.-.+ +L - - ,
A~ J/ 01- (,16.J vo
court did not di r;;t;:JJ f~';'" rJ.J...

lent was fair, adequate, and reasonable. The district jurisdiction "for all purposes" UlIder the settlement

J0ti. C~

A TRUE CUi, Attest:

Case 3:00-cv-00665 Document 247 Filed 02/11/08BLyP_Ea_gOe 2No~f 3~PargekID #: 241900 ()OG6_.S'

pu'· Clerk--

Nos 07-6163/6325 -2 -
agreement As such, the agreed order approving the settlement is the functional equivalent of a consent decree. "A consent decree is essentially a settlement agreement subject to continuedjudicial policing." Williams v Vukovich, 720 F 2d 909, 920 (6th Cir 1983); see also Biodiversity Assoc. v Cables, 357 F 3d 1152, 1169 (10th Cir.) (noting that a settlement agreement to enforce statutory directives is equivalent to a consent decree), cert denied, 543 US. 817 (2004). The prospective requirements ofthe settlement agreement approved by the agreed order operate as an injunction, and the order denying the motion to terminate the agreed order is appealable as an order refusing to vacate an injunction under 28 U.S.c. § 1292(a)(1}. See Jeff D v. Kempthorne, 365 F.3d 844, 580 (9th Cit. 2004); Armco, Inc. v United Steelworkers ojAm, 280 F.3d 669,677-78 (6th Cir. 2002); Sweeton v Brown, 27 F3d 1162, 1166 (6th Cir. 1994) (en banc), cert. denied, 513 US 1158 (1995)
The plaintiffs' motion to dismiss is DENIED Case No. 07-6325 is dismissed as duplicative of Case No 07-6163.
ENTERED BY ORDER OF THE COURT

.

Clerk

Case 3:00-cv-00665 Document 247 Filed 02/11/08 Page 3 of 3 PageID #: 2420

 
 Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

2009 WL 211143 Only the Westlaw citation is currently available.
United States District Court, M.D. Tennessee,
Nashville Division.
Lakersko BROWN, et al., Plaintiffs, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. Goetz, Jr., Commissioner, Defendants.
No. 3:00–0665. | Jan. 26, 2009.
Attorneys and Law Firms
Kent Ellis Krause, Parks T. Chastain, Brewer, Krause & Brooks, Martha M. Lafferty, Tennessee Protection and Advocacy, Inc., Sherry A. Wilds, Nashville, TN, for Plaintiffs.
Dianne Stamey Dycus, Tennessee Attorney General’s Office, Nashville, TN, Charles J. Cooper, Cooper & Kirk, Washington, DC, for Defendants.
Opinion
MEMORANDUM
ROBERT L. ECHOLS, District Judge.
*1 The Plaintiff Class filed a First Amended Motion For Fees, Expenses and Costs (Docket Entry No. 257), to which Defendants (hereinafter referred to as “the State”) filed a response in opposition (Docket Entry No. 262) and Plaintiffs filed a reply (Docket Entry No. 263). Plaintiffs seek an award of attorney’s fees and expenses spanning the period January 1, 2007 to October 15, 2007. Plaintiffs ask the Court to award attorney’s fees to Disability Law & Advocacy Center of Tennessee (“DLAC”) in the amount of $72,500.00, along with expenses in the amount of $13,710.12, for a total award of $86,210.12. Plaintiffs also ask the Court to award attorney’s fees to Kent E. Krause at the law firm of Brewer, Krause, Brooks, Chastain & Burrow PLLC in the amount of $28,540.00, along with expenses in the amount of $284.74, for a total award of $28,824 .74. The grand total Plaintiffs seek for

attorney’s fees and expenses is $115,034.86.
The State does not dispute that, under the settlement agreement approved by the Court on June 17, 2004, Plaintiffs are the prevailing party entitled to an award of reasonable attorney’s fees and expenses incurred in monitoring or enforcing the settlement agreement. In fact, the State concedes that Plaintiffs previously received payments of attorney’s fees and expenses through Agreed Orders submitted to the Court by the parties. The previous awards, the State argues, do not make all later work by the Plaintiffs’ attorneys compensable. See Cody v. Hillard, 304 F.3d 767, 773 (8th Cir.2002). The State objects to the current fee motion on the grounds that some of the attorney’s fees and expenses requested are not reasonable or were not incurred “to monitor, enforce and plan for the duration of the agreement.” (Docket Entry No. 262, Defendants’ Response at 2–3.) The State does not challenge the $250 .00 hourly rate charged by Plaintiffs’ attorneys. The State requests that the Court hold in abeyance any decision about whether Plaintiffs are entitled to attorney’s fees and expenses related to the State’s motion to vacate the settlement agreement because the Court’s decision denying that motion is pending on appeal in the Sixth Circuit and any award of attorney’s fees and expenses to Plaintiffs prior to disposition of the appeal would be premature. The State suggests that an appropriate award of attorney’s fees and expenses to DLAC would be $19,119.69 and an appropriate award to Brewer, Krause, Brooks, Chastain & Burrows would be $7,222.24.
The Court will consider each of the State’s objections in turn. In ruling on each particular issue, the Court is guided by the language of the settlement agreement that “[p]laintiffs may file subsequent fee applications at later dates and it is acknowledged that plaintiffs will incur reasonable attorney fees, expenses and costs in order to monitor, enforce, and plan for the duration of this agreement.” (Docket Entry No. 263–1, Settlement Agreement, § X.) The Court is also guided by the proposition that all post-judgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree. Cody, 304 F.3d at 773. Legal services that are unreasonable, redundant, inefficient, or simply unnecessary are not compensable. Id.
A. Plaintiffs’ Opposition to A Motion to Appear Pro Hac Vice
1

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

*2 The State hired three attorneys from the Washington, D.C. law firm of Cooper & Kirk, PLLC to represent the State in post-judgment litigation. Attorneys Charles J. Cooper, Michael W. Kirk and Brian S. Koukoutchos filed motions for pro hac vice admission to the bar of this Court for purposes of appearing in the case. (Docket Entry Nos. 152, 153, 158.) Plaintiffs objected only to the motion filed by Mr. Koukoutchos. (Docket Entry No. 161.) The Court overruled Plaintiff’s objection in a short Order entered on April 13, 2007. (Docket Entry No. 181.) The Court relied on a state statute granting authority to state officials to choose outside counsel as they deem necessary, Tenn.Code Ann. § 8–6–106, and the Court noted that Plaintiffs did not cite a single case granting the Court authority to intervene in the State’s choice of counsel when all other requirements for pro hac vice admission had been met. (Id.)
Plaintiffs now justify the motion as reasonable because of the high hourly rate that Cooper & Kirk would charge to the State at a time when the State claimed it did not have the money to fund waiver services adequately. While Plaintiffs’ concern about the use of state resources has merit, the Court finds the motion objecting to Mr. Koukoutchos’ pro hac vice admission lacked a proper legal foundation. For this reason, any attorney’s fees requested for work on this motion will be denied.
The State represents that Plaintiffs spent 7.6 attorney hours on this motion, and Plaintiffs do not challenge that figure. Of the 7.6 hours, .30 was billed by Mr. Krause, and the remainder was billed by DLAC. (Docket Entry No. 262–1.) Accordingly, the Court will deduct .30 hours at $250.00 for a total of $75.00 from Mr. Krause’s billing statement and 7.3 hours at $250.00 per hour for a total of $1,825.00 from DLAC’s billing statement.
B. Plaintiffs’ Motion for Injunction On May 5, 2007, Plaintiffs filed a Motion For Injunction (Docket Entry No. 182) complaining that the State, particularly DMRS Deputy Commissioner Steve Norris, divulged discussions of the parties during confidential settlement negotiations at public hearings before the House and Senate Budget Committees of the Tennessee General Assembly on March 7, 2007 and on April 18, 2007 respectively. Plaintiffs sought a permanent injunction to prohibit state officials from divulging private settlement negotiations in a public forum in the future.

The Court denied the motion in a Memorandum and Order entered on September 12, 2007 (Docket Entry Nos. 199 & 200), ruling that Deputy Commissioner Norris had an obligation to provide truthful testimony to the General Assembly. The Court also ruled that Plaintiffs did not meet the requirements for obtaining permanent injunctive relief under eBay Inc. v. MercExhange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006).
The Court finds this motion was unnecessary in order for Plaintiffs to engage in their settlement agreement responsibilities to “monitor, enforce, and plan.” Class counsel did not perform a task necessary to address or preclude systemic failure of the settlement agreement’s enforcement mechanisms in order to preserve the “fruits” of the consent decree. See Johnson v. City of Tulsa, 489 F.3d 1089, 1109–1110 (10th Cir.2007). Additionally, the motion lacked the evidentiary showing necessary to obtain permanent injunctive relief.
*3 For these reasons, the Court will deduct the hours devoted to preparing and arguing this motion. The State suggests that Plaintiffs’ billing statements show that the attorneys devoted 17.75 hours to this motion. Plaintiffs do not challenge this figure. Accordingly, the Court deducts 17.75 hours at $250.00 per hour for a total of $4,437.50.
Of the 17.75 hours, 8.45 hours were billed by Mr. Krause, and the remaining 9.3 hours were billed by DLAC. (Docket Entry No. 262–1.) Accordingly, the Court will deduct 8.45 hours at $250.00 for a total of $2,112.50 from Mr. Krause’s billing statement and 9.3 hours at $250.00 per hour for a total of $2,325.00 from DLAC’s billing statement.
C. Motion to Modify Settlement Agreement On February 9, 2007, Plaintiffs filed a Motion for Modification of Settlement Agreement. (Docket Entry No. 166.) Plaintiffs filed the motion in direct response to the State’s earlier Motion to Vacate the Agreed Order Approving the Settlement Agreement (Docket Entry No. 155) filed on January 19, 2007. The State sought to eliminate any further obligation it might have under the settlement agreement in light of Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006) (“Westside Mothers II” ). Plaintiffs reacted to the State’s position that it should no longer have to abide by the settlement agreement by resisting the State’s motion and by seeking affirmatively to modify the settlement agreement to account for changing circumstances after the settlement
2

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

agreement was approved. Specifically, Plaintiffs pointed out that the number of class members in the “crisis” category continued to grow at a rapid rate while the State had reduced the pace of enrollment into waiver services from a rate of 170 individuals per month to 15 to 20 individuals per month. Plaintiffs asked for modification of the settlement agreement to require the State to enroll into waiver services all individuals who had been placed in the “crisis” category for more than 90 days. The State resisted Plaintiffs’ motion, and Plaintiffs filed a reply. The Court heard oral arguments on the motion on August 31, 2007.
The Court denied Plaintiffs’ motion in a Memorandum and Order entered on September 12, 2007. (Docket Entry Nos. 199 & 200.) The Court will not repeat its entire analysis here, but the Court stated it was troubled by the increase in the number of individuals on the DMRS waiting list and the State’s actions in reducing the number of available waiver enrollment slots with CMS approval. (Docket Entry No. 199, Memorandum at 13.) The Court believed “that the monthly reports provided by the Plaintiffs in support of their motion to modify establish[ed] a significant change in circumstances that may warrant revision of the Agreement.” (Id.) The Court ultimately concluded, however, that Plaintiffs’ proposed remedy to force the State to enroll all “crisis” individuals waiting more than 90 days into waiver services, without adequate planning, was not “suitably tailored” to the changed circumstances. (Id. at 13–14.)
*4 Plaintiffs’ motion to modify the settlement agreement, even though ultimately unsuccessful, falls within the kind of post-judgment legal activity that Plaintiffs may pursue to “monitor, enforce and plan” to preclude systemic failure of the decree’s enforcement mechanisms. Faced with the State’s motion to vacate the settlement agreement in its entirety, Plaintiffs were forced to confront more than systemic failure of enforcement mechanisms; Plaintiffs faced the gutting of the entire settlement agreement. Plaintiffs’ attorneys were obligated to take action on behalf of the Plaintiff class to try to preserve the “fruits” of the settlement agreement. See Johnson, 489 F.3d at 1109 (“the role of the plaintiffs’ attorney in protecting the fruits of victory is to ensure that the decree is being honored, not to ensure that the problems motivating the decree have been eliminated.”) Plaintiffs’ motion met the State’s desire to vacate the settlement agreement head on and was inextricably intertwined with Plaintiffs’ response to the State’s motion. Plaintiffs’ motion to modify the settlement agreement established that the State’s reduction of waiver slots worked against the goals of the settlement agreement and caused a dramatic impact on the

Plaintiff class, lengthening the period of time individuals would have to wait to receive waiver services. “The fact that plaintiffs did not prevail before the district court in this phase of litigation does not deprive them of fees. When a remedial consent decree is threatened, ‘plaintiffs’ counsel [are] under clear obligation to make the defensive effort.’ ” Cody, 304 F.3d at 775 (quoting Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir.1990)). As long as the Plaintiffs’ litigation to protect a remedy did not rise to the level of overkill, “ ‘even largely unsuccessful defensive efforts may be compensable.’ ” Id. (quoting Association for Retarded Citizens of North Dakota v. Schafer, 83 F.3d 1008, 1010–1011 (8th Cir.1996)). See also Plyler, 902 F.2d at 280–281 (awarding full compensation for plaintiffs’ largely unsuccessful opposition to attempt to modify consent decree and holding work was essential to preservation of integrity of consent decree as a whole). Therefore, the Court finds that Plaintiffs are entitled to reasonable attorney’s fees for prosecuting the motion to modify the settlement agreement.
The State suggests that the billing statements show Plaintiffs’ attorneys devoted 36.75 hours to preparing the motion, their reply to the State’s response, and the oral argument on the motion. The State does not argue that any of the 36.75 hours were unreasonably expended in and of themselves; only that the hours should not be compensated at all. Plaintiffs do not challenge the State’s calculation that 36.75 hours were devoted to the motion to modify the settlement agreement.
Of the 36.75 hours, 9.95 hours were billed by Mr. Krause, and the remaining 26.8 hours were billed by DLAC. (Docket Entry No. 262–3.) The Court finds that these attorney hours were reasonably expended in seeking to preserve the “fruits” of the settlement agreement, and no deduction for these post-judgment activities will be made.
D. Motion to Amend the Complaint *5 In addition to the Motion to Modify the Settlement Agreement discussed above, Plaintiffs also filed a Motion to Amend the Complaint (Docket Entry No. 173) as an alternative request for relief in the event the Court granted the State’s motion to vacate the settlement agreement under Westside Mothers II. The Court denied the State’s motion to vacate, in essence rendering Plaintiffs’ motion to amend moot and thus, the Court denied the motion. This result does not mean that Plaintiffs’ filing of the motion to amend was in any way redundant, inefficient, or simply unnecessary. See Cody, 304 F.3d at 773. Had
3

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

the Court granted the State’s motion to vacate the settlement agreement, Plaintiffs stood ready with the motion to amend the complaint to protect the rights of the Plaintiff class. For the same reasons discussed in section C above, Plaintiffs are entitled to a reasonable attorney’s fee for filing this short motion.
The State calculates that Plaintiffs’ attorneys spent 16.75 hours in preparing to file and argue this motion. Plaintiffs do not contest this figure. Of the 16.75 hours, 3.35 hours were billed by Mr. Krause, but these hours also included work on other motions and responses, so it is difficult to tell precisely how much time Mr. Krause devoted only to the motion to amend. The remaining 13.4 hours are attributed to an attorney at DLAC. The Court finds that 16.75 hours is unreasonable for the preparation of a one-half page motion and a one-half page supporting memorandum. (Docket Entry Nos. 173 & 174.) Most of the time billed was for oral argument preparation, but the motion to amend was not the focal point of the oral arguments held before the Court. The motion to amend was raised as a strategic backstop in the event the Court were to grant the motion to vacate.
The Court finds that 1.0 hour was sufficient to prepare and file the motion and prepare for oral argument on the motion. The Court will allow .5 hour to Mr. Krause and .5 hour to DLAC. Therefore, the Court will deduct 15.75 hours. Thus, Mr. Krause’s billing will be reduced by 2.85 hours at $250 per hour for a total of $712.50. DLAC’s billing will be reduced by 12.9 hours at $250.00 per hour for a total reduction of $3,225.00.
E. Motion for Specific Performance On November 7, 2007, Plaintiffs filed their Second Amended Motion For An Order For Specific Performance For Non–Compliance With Settlement Agreement. The State opposed this motion and Plaintiffs filed a reply. Numerous attachments were appended to, or provided in support of, the motion, the response or the reply. (Docket Entry Nos. 218–225, 228, 230–234, 244–245.) The Court heard oral argument on the motion on January 23, 2008 and issued a thirty-three page Memorandum denying the motion on the merits on July 8, 2008. (Docket Entry Nos. 250–251.)
Much like Plaintiffs’ motion to modify the settlement agreement, the motion for specific performance, even though ultimately unsuccessful, falls within the kind of post-judgment legal activity that Plaintiffs may pursue to

“monitor, enforce and plan” to preclude systemic failure of the decree’s enforcement mechanisms. Plaintiffs’ motion sought to preserve the “fruits” of the settlement agreement by trying to show that the State had not followed or employed various mechanisms included in the settlement agreement and that the State had not made financial contributions as agreed. See Johnson, 489 F.3d at 1109 (noting role of plaintiffs’ attorney in protecting the fruits of victory is to ensure decree is being honored). The Court recognized that Plaintiffs had legitimate concerns about some of the State’s actions, but ultimately concluded that Plaintiffs had not proved the State breached the settlement agreement in years one and two. The Court finds that the fact the Plaintiffs did not prevail does not deprive them of fees. Plaintiffs’ litigation raised serious concerns and did not rise to the level of overkill. See Cody, 304 F.3d at 775; Plyler, 902 F.2d at 280–281.
*6 The State calculates that Plaintiffs’ attorneys spent 48.50 hours on the motion for specific performance, and this figure is not challenged. Of the 48.50 hours, Mr. Krause billed for 22.40 of them. The remaining 26.10 hours were billed by DLAC. The Court observes that the billing entries indicate the attorneys engaged in meetings, drafting of correspondence, and discovery on the issues raised in addition to the preparation, filing, and argument of the motion itself. The Court finds that these hours were reasonably expended, and the Court will not make any reduction in attorney’s fees requested for the motion for specific performance.
F. Hours Related to Consultants and Expenses for Mailings to Class The State next challenges the 29.50 hours Plaintiffs’ attorneys devoted to meetings and communications with consultants and $8,288.12 in consultant fees and expenses. Of these 29.50 hours, Mr. Krause billed for 8.8 hours. The remaining 20.7 hours were billed by DLAC. The State also takes issue with $5,202.19 charged by Plaintiffs for expenses incurred in making bulk mailings to class members. The State contends that, while Plaintiffs have now provided information to document that these expenses were, in fact incurred, Plaintiffs have not shown why the expenses were reasonable or necessary to monitor or enforce the settlement agreement or plan for future years of the agreement.
The Court has examined the expense receipts and billing statements submitted by the Plaintiffs, as well as the summaries submitted by the State. The State does not
4

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

challenge the $284.74 in expenses requested by Mr. Krause. The Court is unable to determine how the State arrived at the figure of $8,288.12 for consultant fees and expenses. The Court finds that DLAC spent $7,914.17 on consultant fees. The copies of checks provided to substantiate these fees include descriptions showing that $2,100.00 was paid to Richard F. Crowley of Denham Springs, Louisiana, on June 4, 2007 for “Prof Services 4–1/5–13–07 Wait List”; $2,100.00 was paid to The LBH Institute of St. Paul, Minnesota, on June 25, 2007 for “PO# 2917 Waiting List Research, Survey & Data Base Work”; $1,600.00 was paid to The LBH Institute on July 15, 2007 for “PO# 2944 Waiting List Research”; and $2,114.17 was paid to The LBH Institute on August 31, 2007 for “PO# 2976 Waiting List Research.” (Docket Entry No. 257–2, Exhibit B at 8, 9, 12 & 18.)
In addition, DLAC spent $5,576.14 on mailing and postage expenses. Receipts are provided showing that $1,073.42 was spent for data processing and mailing services; $3,622.77 was spent for postage, and $879.95 was spent for printing and envelopes. (Id. at 7, 11, 19, 23–26.) In support of the reply brief, DLAC attaches Exhibit B, which is a copy of a 2–page letter sent to all persons on the DMRS waiting list in the fall of 2007 notifying them of upcoming town hall meetings and soliciting input to help determine systemic problems with the State’s compliance with the settlement agreement. (Docket Entry No. 263–2, Letter.) The State claims that the town hall meetings were not a requirement of the settlement agreement, and it was not necessary for DLAC to expend funds on such a mailing because the State itself provided public notice of the town hall meetings. The State also contends the mailing expenses relate to the unsuccessful motion for specific performance and should be disallowed.
*7 The Court will allow Plaintiffs the $5,576.14 in expenses incurred for communication by mail between class counsel and members of the class. Class counsel have an obligation to keep their clients informed about issues of importance to them, and the Court finds that the mailing to the class members was warranted.
The Court will disallow the $7,914.17 incurred for consultant fees and the attorney hours billed for working with one or more consultants. Plaintiffs sought payment of these consultant fees in a previous motion, which the Court denied. In the Order summarily denying the first motion due to certain deficiencies, the Court observed:

Plaintiffs have not provided any justification for the consultant fees and expenses, which they claim are protected by the work product privilege. Plaintiffs offer to supply such information to the Court for in camera review. Plaintiffs should do so if they expect the Court to consider reimbursement for these charges.
(Docket Entry No. 256, Order at 2.)
In this amended motion, Plaintiffs did not provide any materials to the Court for in camera review. Plaintiffs state briefly in the supporting Memorandum that the “consultant was used to help analyze the results of the provider survey.” (Docket Entry No. 258 .) In the reply brief, Plaintiffs state that they wished to obtain an overview of the status of the infrastructure since the State admittedly had not done comprehensive surveys in this area. Plaintiffs’ attorneys claim they had a duty to take action to develop the provider infrastructure so that it could be ready to handle individuals moving off the waiting list and into funding for waiver services. Plaintiffs state that, if they did not conduct these types of monitoring activities, they would have to rely solely on the State’s opinions on the success or failure of its compliance with the settlement agreement and in regard to necessary planning steps for the remaining years of the settlement agreement. Plaintiffs provide the declarations of attorneys Martha Lafferty, Sherry Wilds, Gary Housepian and Kent Krause that “[t]he fees, expenses, and costs related to the use of a consultant were necessary for monitoring, enforcing, and planning for the fulfillment of the terms of the Settlement Agreement in this case.” (Docket Entry No. 257–3, Exhibit C, Declarations.)
This general information about the use of consultants is not sufficient to satisfy the Court that Plaintiffs are entitled to require the State to pay for the consultant fees and the attorney hours billed for working with the consultant. Plaintiffs have provided the Court with nothing from which the Court can discern how a provider survey was formulated and conducted, how the consultant was utilized to interpret the results of the provider survey, or how these activities were reasonably used to monitor or enforce the settlement agreement or plan for the later years of the settlement agreement. Because the prerequisites of the Court’s prior Order were not satisfied, the Court will disallow 8.8 hours or $2,200.00 on Mr.
5

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

Krause’s billing statement, $5,175.00 for 20.7 attorney hours on DLAC’s billing statement, and $7,914.17 in consultant fees.
*8 Thus, of the $13,710.12 in expenses sought by DLAC, the Court will allow only $5,795.95, which includes the costs of the mailing to members of the class ($5,576.14) and other miscellaneous expenses such as Federal Express ($77.60), copies ($115.21), and parking ($27 .00). The Court will also allow Mr. Krause the entire amount of $284 .74 he billed for miscellaneous expenses.
G. Motion to Vacate Settlement Agreement and Motion to Strike State’s Appeal The State filed its Motion to Vacate the Agreed Order Approving the Settlement Agreement (Docket Entry No. 155) on January 19, 2007, seeking to end any further obligation it might have under the settlement agreement in light of Westside Mothers II. When the Court denied the motion, the State appealed to the Sixth Circuit and Plaintiffs moved in this Court to strike the notice of appeal. The State calculates that Plaintiffs billed for 144.75 hours in responding to the motion to vacate and in moving to strike the State’s appeal.
The State’s motion was indeed significant because, if granted, the motion had the potential to set aside the entire settlement agreement adopted in the case. The Court received extensive briefing, exhibits, and oral arguments from the parties and, on September 12, 2007, the Court denied the State’s motion. (Docket Entry Nos. 199 & 200, Memorandum and Order.) Because the State’s appeal remains pending in the Sixth Circuit, the State contends it would be premature for the Court to entertain Plaintiffs’ request for attorney’s fees incurred in responding to the motion to vacate at this time. The State contends the pending appeal could be decided in the State’s favor and in that event the State would not owe the Plaintiffs any attorney’s fees for litigating the motion to vacate. In the event the Court does not hold this portion of the fee request in abeyance, the State objects to time spent on the unsuccessful motion to strike the appeal (Brewer, Krause—5.4 hours @ $225 ($1,215.00) and 4.3 hours @ $250.00 ($1,075.00) and .60 hours at $250.00 ($150.00) for DLAC) as well as the .80 hour at $250.00 ($200.00) spent by DLAC in seeking an attorney’s admission to the bar of the Sixth Circuit.
The Court agrees with the State that the attorney hours expended on the unsuccessful motion to strike the appeal

and for an attorney to obtain admission to the Sixth Circuit bar should be disallowed. Accordingly, 11.1 hours are deducted from the total of 144.75 hours to reach 133.65 hours. Of these 133.65 hours, Mr. Krause billed for 24.40 hours and the remaining 109.25 hours were billed by attorneys at DLAC.
Plaintiffs’ successful opposition to the State’s motion to vacate the settlement agreement falls squarely within the kind of post-judgment legal activity that Plaintiffs may pursue to enforce the settlement agreement. As stated earlier, faced with the State’s motion to vacate the settlement agreement in its entirety, Plaintiffs were forced to confront more than systemic failure of enforcement mechanisms; Plaintiffs faced the gutting of the entire settlement agreement. Plaintiffs’ attorneys were obligated to take action on behalf of the Plaintiff class to try to preserve the “fruits” of the settlement agreement. See Johnson, 489 F.3d at 1109; Cody, 304 F.3d at 775 (“When a remedial consent decree is threatened, ‘plaintiffs’ counsel [are] under clear obligation to make the defensive effort.’ ” (quoting Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir.1990)). Therefore, the Court finds that Plaintiffs are entitled to reasonable attorney’s fees for opposing the State’s motion to vacate the settlement agreement.
*9 There is some merit to the State’s argument that this portion of the fee request should be held in abeyance pending the outcome of the Sixth Circuit appeal of the Court’s decision denying the motion to vacate. Oral argument on the appellate case was held in September 2008, and an opinion from the Sixth Circuit will be forthcoming. But if the Sixth Circuit holds that the State’s motion to vacate the settlement agreement should have been granted in light of Westside Mothers II, then it would seem that all fees earned by Plaintiffs’ attorneys during this post-judgment litigation might be affected, not just those fees relating to the motion to vacate the settlement agreement. Plaintiffs were required to mount a vigorous defense to the State’s motion to vacate, and the Court sees no reason to postpone its decision on the attorney’s fee issue. Therefore, the Court will award Mr. Krause 24.40 hours or $6,100.00 for his work in opposing the motion to vacate. The Court will award DLAC 109.25 hours or $27,312.50 for its work opposing the State’s motion to vacate.
H. CONCLUSION DLAC sought attorney’s fees of $72,500.00 and expenses
6

Brown v. Tennessee Dept. of Finance and Admin., Not Reported in F.Supp.2d (2009)

of $13,710 .12 for a total of $86,210.12. For the reasons stated above, the Court reduces DLAC’s request for attorney’s fees by a total of 51.6 hours at $250.00 per hour for a total reduction of $12,900.00 in attorney’s fees. The Court also reduces DLAC’s expense request by $7,914.17. This results in an attorney’s fee award to DLAC of $59,600.00 plus expenses of $5,795.95 for a total award of $65,395.95.
Brewer, Krause, Brooks, Chastain & Burrow PLLC sought attorney’s fees of $28,540.00 and expenses of $284.74. For the reasons stated above, the Court reduces Mr. Krause’s request for attorney’s fees by a total of 24.7

hours at $250.00 per hour ($6,175.00) and 5.4 hours at $225.00 per hour ($1,215.00) for a total reduction of $7,390.00 in attorney’s fees. The Court awards the $284.74 requested in expenses. This results in an attorney’s fee award to Brewer, Krause, Brooks, Chastain & Burrow PLLC of $21,150.00 in attorney’s fees and $284.74 in expenses for a total award of $21,434.74.
An appropriate Order will be entered.
	  

7

 
 Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

	  
649 F.Supp.2d 780 United States District Court,
M.D. Tennessee, Nashville Division.
Lakersko BROWN, et al., Plaintiffs, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. Goetz, Jr., Commissioner, Defendants.
No. 3:00-0665. | July 24, 2009.
Synopsis Background: Tennessee Department of Finance moved to vacate its agreed order with class of mentally disabled Tennessee residents regarding Medicaid benefits based upon an intervening Sixth Circuit decision, Westside Mothers v. Olszewski. The District Court, Robert L. Echols, J., 2007 WL 2710704, denied motion and Department appealed. The Court of Appeals, 561 F.3d 542, reversed in part, and remanded.
Holdings: The District Court, Echols, J., held that:
[1] provision of Medicaid statute requiring state to ensure availability of care did not confer private right of action under § 1983;
[2] agreement was enforceable as to Department’s commitment to reduce waiting list for payment for services provided by others; and
[3] class’s claim regarding limit on number of slots for benefits was precluded.
Motion granted in part and denied in part.
Attorneys and Law Firms
*781 Kent Ellis Krause, Parks T. Chastain, Brewer, Krause & Brooks, Martha M. Lafferty, Sherry A. Wilds, Nashville, TN, for Plaintiffs.

Dianne Stamey Dycus, Tennessee Attorney General’s Office, Nashville, TN, Brian Stuart Koukoutchos, Charles J. Cooper, Michael W. Kirk, Cooper & Kirk, Washington, DC, for Defendants.
Opinion
ORDER
ROBERT L. ECHOLS, District Judge.
In accordance with the Memorandum entered contemporaneously herewith, the Court rules as follows:
(1) Defendants’ Motion To Vacate The Agreed Order Approving The Settlement Agreement And To Dismiss The Case (Docket Entry No. 155) is hereby GRANTED, but only to the extent that Defendants need no longer honor their commitment in the Settlement Agreement to develop “provider network capacity” or any commitment they arguably made to eliminate a waiting list for services by December 31, 2009, as determined by the Sixth Circuit in Brown v. Tennessee Dept. of Finance and Admin., 561 F.3d 542 (6th Cir.2009). The motion is hereby DENIED in all other respects.
(2) Defendants’ Motion For Summary Judgment (Docket Entry No. 266) is hereby GRANTED. Within the limits or caps set for the federally approved Medicaid waivers, to the extent there exist available waiver slots and funding for those slots, Defendants shall be required to comply with the Settlement Agreement provisions to enroll eligible individuals on the waiting list into those slots with reasonable promptness before the Settlement Agreement expires on December 31, 2009.
(3) Plaintiffs’ Motion For Summary Judgment (Docket Entry No. 269) is hereby DENIED.
It is so ORDERED.
MEMORANDUM
Pending before the Court are Defendants’ Motion For Summary Judgment (Docket Entry No. 266) and
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

Plaintiffs’ Motion For Summary Judgment (Docket Entry No. 269). The parties fully briefed these motions.
Also, on March 9, 2009, the Sixth Circuit reversed in part and remanded this Court’s Memorandum and Order (Docket Entry Nos. 199 & 200; 2007 WL 2710704 (M.D.Tenn. Sept. 12, 2007)), denying Defendants’ Motion to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case (Docket Entry No. 155). Brown v. Tennessee Dept. of Finance and Admin., 561 F.3d 542 (6th Cir.2009). At the time the Motion to Vacate was originally filed on January 19, 2007, Plaintiffs filed a response (Docket Entry No. 175), and Defendants filed a reply (Docket Entry No. 179). These filings are once again before the Court. The Motion to Vacate must now be ruled upon in light of the Sixth Circuit’s recent opinion and its instructions on remand.
A. Procedural posture On May 1, 2001, the Court certified a class comprised of mentally retarded Tennessee residents. Members of the certified class are eligible for Medicaid services through State and privately owned Intermediate Care Facility/Mental Retardation (“ICF/MR”) facilities, pursuant to 42 U.S.C. § 1396a, or they are eligible for *782 home-based services through a Home and Community-Based Services (“HCBS”) waiver for the mentally retarded, pursuant to 42 U.S.C. § 1396n. The class members complain that they request services under these programs, but (1) they are denied the opportunity to apply for such services; (2) when they do apply for services under these programs, they are denied; or (3) they are placed on a long, slow-moving waiting list for services under these programs. Following denial of the parties’ cross-motions for summary judgment and a fairness hearing, the Court entered an Agreed Order on June 17, 2004, approving a Settlement Agreement (“the Agreement”) executed by the parties. (Docket Entry No. 116.)
In the years after the Agreed Order was entered, some of the parties’ goals as expressed in the Agreement were satisfied, while others were not. The parties have engaged in ongoing litigation about whether the terms of the Agreement have been met or will be met before the Agreement expires on December 31, 2009, absent any written continuation of the Agreement that may be obtained as provided in Section XII.B. of the Agreement.
In September 2007, the Court denied Defendants’ Motion

to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case (Docket Entry No. 155), as well as Plaintiffs’ Motion For Modification of the Settlement Agreement (Docket Entry No. 166). Defendants appealed the Court’s denial of the Motion to Vacate, and as previously mentioned, the Motion to Vacate is the subject of the Sixth Circuit’s recent reversal and remand on March 9, 2009.
Previously, in July 2008, the Court denied Plaintiffs’ Second Amended Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 218). That motion challenged Defendants’ compliance with certain terms relating to years one and two of the Agreement. The Court held that Plaintiffs failed to show that the Defendants breached the terms of the Agreement that applied to years one and two, and thus, the Court denied the motion for specific performance. (Docket Entry Nos. 250 & 251, Memorandum and Order; 2008 WL 2704362 (M.D.Tenn. July 8, 2008).) Plaintiffs did not appeal.
Section VII of the Agreement, entitled “Long-Range Planning,” required the parties to engage in negotiations to try to reach agreement about expansion of enrollment and provision of services in waiver programs for the third, fourth and fifth years of the Agreement. Although the parties engaged in negotiations, they were unable to reach accord, and the Magistrate Judge declared an impasse. As contemplated by Section VII of the Agreement, the Court then set a trial date to determine the extent of the Defendants’ obligations in years three through five. In advance of the trial date, the parties filed cross-motions for summary judgment which are the motions presently pending before the Court. Thus, the summary judgment motions concern the number of individuals who must be enrolled in MR waiver programs and the obligations of the parties in years three through five of the Agreement.
The Sixth Circuit’s recent decision was issued before the Court could rule on the summary judgment motions. In light of the appellate decision, the Court continued the trial date and allowed the parties an opportunity to supplement their summary judgment briefing with discussions about the impact of the Sixth Circuit decision on the case. The Court need not rule on the substance of the summary judgment motions if the Court determines that Defendants’ Motion to Vacate should be granted in its entirety in light of the Sixth Circuit *783 opinion. Therefore, the Court will begin with the Motion to Vacate.
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B. Defendants’ Motion to Vacate the Agreed Order
1. The Defendants’ position Defendants moved to vacate the Agreement and dismiss the case in its entirety. The Defendants argued that, at the time the parties negotiated the Agreement, they mutually labored under a fundamental misunderstanding that the phrase “medical assistance” in the Medicaid statute meant that States must provide qualified individuals with medical services directly, not merely financial reimbursement for such services.
Defendants reasoned that Plaintiffs’ First Amended Complaint alleged the existence of the DMRS1 waiting list violated 42 U.S.C. § 1396a(a)(8) & (10) in that the State failed to provide services with reasonable promptness and on equal footing with other Medicaid services. Section 1396a(a)(8) (emphasis added) requires that “[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.” Section 1396a(a)(10)(B) (emphasis added) requires that “[a] state plan for medical assistance must[ ] provide ... 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).”
According to Defendants, federal courts had widely assumed that the phrase “medical assistance” encompassed the direct provision of medical services by the State. See e.g. Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002); Doe v. Chiles, 136 F.3d 709, 716 n. 13 (11th Cir.1998); Sobky v. Smoley, 855 F.Supp. 1123, 1147 (E.D.Cal.1994). Moreover, because courts had held that §§ 1396a(a)(8) and (10) applied to the administration of Medicaid waiver programs, the definition of “medical assistance” was also applied by courts to the provision of waiver services, at least up to the number of approved available slots within the waiver program. See e.g., Boulet v. Cellucci, 107 F.Supp.2d 61, 77-78 (D.Mass.2000); Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217, 1234 (D.N.M.2000). The only contrary view at the time appeared in dicta in Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003), in which a Seventh Circuit panel

observed:
Even if [plaintiffs] did require emergency treatment, their theory of violation would be a considerable stretch because the statutory reference to ‘assistance’ 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. The regulations that implement the provision 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, see 42 C.F.R. §§ 435.911(a), .930(a)(b); a requirement of prompt *784 treatment would amount to a direct regulation of medical services.
Defendants asserted in their Motion to Vacate that the legal landscape changed when the Sixth Circuit decided Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006) (“Westside Mothers II ”). In describing Westside Mothers II, the Defendants contended that the Sixth Circuit adopted the dicta in Bruggeman and held that “medical assistance” means states must furnish only “financial assistance” or payment for medical services. The appellate court construed 42 U.S.C. § 1396d(a), which defines “medical assistance,” as “payment of part or all of the cost of [listed] care and services” for Medicaid-eligible individuals. Defendants also argued that, after the Westside Mothers II case, the Tenth Circuit decided Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir.2006). Because the “Medicaid Act defines ‘medical assistance’ as ‘payment of part or all of the cost of the [described] care and services[,]’ ” the Tenth Circuit held that a state is required to pay for, but not provide, medical services. Id. Summing up, that court stated: “On its face, then, the Medicaid Act requires any state participating in Medicaid to pay promptly and evenhandedly for medical
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services when the state is presented with the bill. If that is all the statute requires, then the plaintiffs have no claim; they are on a waiting list for [ICF/MR] services, not a waiting list for payment for services.” Id.
In light of these two cases, Defendants characterized the Agreed Order approving the Agreement as a consent decree and sought to vacate the Agreed Order under the authority of Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 387, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), and Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.1994). Defendants contended that the intervening change in law brought about by the Westside Mothers II and Mandy R. decisions shattered the legal foundation upon which Plaintiffs’ claim for injunctive relief was based. Defendants argued that the Agreement was based on a fundamental, mutual mistake about the meaning of governing law and that the Agreement imposed on state officials obligations that no longer bore any close relation to the requirements of federal law. Backed by the holdings of Westside Mothers II and Mandy R that states must provide payment, not medical services, Defendants postulated further that “sections 1396a(a)(8) and (a)(10) imposed no duty on the States to ensure the provision of medical services.” (Docket Entry No. 156, Memorandum in Support at 14 (italics in original).)
2. The Westside Mothers II opinion It is helpful to review the Westside Mothers II opinion in a neutral fashion, without viewing the case through the lens of the Defendants’ position just discussed. In Westside Mothers II, the plaintiffs, both in the briefs filed before the district court and the Sixth Circuit, argued that 42 U.S.C. §§ 1396a(a)(8) and 1396a(a)(10) required the State of Michigan to actually provide, or arrange for, certain medical services, including care, medicine, and equipment. Westside Mothers II, 454 F.3d at 539. Thus, the Sixth Circuit said, “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.” Id. at 539-540 (emphasis added). After examining the text and the structure of the two statutes at issue, the Sixth Circuit panel stated it did “not believe §§ 1396a(a)(8) [and] 1396a(a)(10) require the State to provide medical services directly.” Id. at 540. Rather, the phrase “medical assistance” refers to financial assistance to pay for *785 needed services; not to the actual provision of the services.

The appellate panel said the “most reasonable interpretation” of § 1396a(a)(8) is “that all eligible individuals should have the opportunity to apply for medical assistance, i.e., financial assistance, and that such medical assistance, i.e., financial assistance, shall be provided to the individual with reasonable promptness.” Id. To restate the Sixth Circuit’s ruling, § 1396a(a)(8) means that all eligible individuals are entitled to an opportunity to apply for financial assistance and financial assistance shall be provided to the individual with reasonable promptness.
Further, the panel wrote, the “most reasonable interpretation of § 1396a(a)(10) is that medical assistance, i.e., financial assistance, must be provided for at least the care and services listed in paragraphs (1) through (5), (17) and (21) of § 1396d(a).” Id. In other words, under § 1396a(a)(10), the State must provide to eligible individuals financial assistance to pay for at least the care and services specified in certain paragraphs of § 1396d(a), although the Medicaid statutes permit the State to agree to pay for a broader range of services.
Also, the panel stated, 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. See 42 C.F.R. §§ 435.911, 435.930.” Id. Thus, the panel held that the State of Michigan is not required to provide services to eligible individuals directly, but the State must make a prompt determination of eligibility and make prompt payments to eligible individuals so that they can obtain the services they need.
The plaintiffs in Westside Mothers II tried to raise a new argument on appeal that had not been raised in the district court. At oral argument in the case, the plaintiffs asserted for the first time that the Medicaid payments made by the State “were insufficient to enlist an adequate number of providers, which effectively frustrate[d] §§ 1396a(a)(8) [and] 1396a(a)(10) by foreclosing the opportunity for eligible individuals to receive the covered medical services.” Id. The plaintiffs argued they wanted an opportunity to show that Medicaid payments were so inadequate in the Upper Peninsula of Michigan that there were no available providers. Id. The appellate panel took note of cases that would support plaintiffs’ new claim, citing Health Care for All, Inc. v. Romney, 2005 WL 1660677, at *10-11 (D.Mass. July 14, 2005) (“Setting reimbursement levels so low that private dentists cannot afford to treat Medicaid enrollees effectively frustrates [§
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

1396a(a)(8) ] by foreclosing the opportunity for enrollees to receive medical assistance at all, much less in a timely manner.”); Oklahoma Chapter of Am. Academy of Pediatrics v. Fogarty, 366 F.Supp.2d 1050, 1109 (N.D.Okla.2005) (finding a violation of § 1396a(a)(8) and reasoning that “[w]ithout financial assistance (provider reimbursement) sufficient to attract an adequate number of providers, reasonably prompt assistance is effectively denied”); Sobky v. Smoley, 855 F.Supp. 1123 (E.D.Cal.1994) (holding defendants liable for failure to comply with § 1396a(a)(8) where “insufficient funding ... has caused providers of methadone maintenance to place eligible individuals on waiting lists for treatment”). Id. at 540-541.

In response to plaintiffs’ new argument, the Sixth Circuit panel stated:

Id. at 541.

Because this appeal is from a

dismissal for failure to state a

claim, we are concerned with the

sufficiency of the complaint, which

does not contain this allegation

[that Michigan’s Medicaid waiver

payments are inadequate to attract

providers]. *786 We therefore

affirm the district court’s dismissal

of the claim for violations of §§

1396a(a)(8),

1396a(a)(10).

However, because plaintiffs may be

able to amend the complaint to

allege that inadequate payments

effectively deny the right to

“medical assistance,” we modify

the district court’s order to reflect a

dismissal without prejudice to the

filing of a motion to amend along

with a proposed amendment to the

complaint.

Thus, the Sixth Circuit concluded that a dismissal for failure to state a claim was proper where the court construed plaintiffs’ claim as alleging that the State of Michigan was required by Medicaid statutes to provide services directly. The State is required only to pay for the services, not provide them directly. The panel recognized, however, that plaintiffs might be able to state viable claims for relief against state officials under § 1983, § 1396a(a) (8) and § 1396a(a)(10), so long as the plaintiffs

alleged that they are eligible individuals who were denied the right to apply for financial assistance; that financial assistance was not provided with reasonable promptness; that any financial assistance received was less in amount, duration or scope than the medical assistance made available to any other such individual; or that inadequate Medicaid payments by the State effectively denied plaintiffs the right to obtain private services from providers.
3. Plaintiffs’ First Amended Complaint in this Case On September 19, 2000, the Plaintiffs in this case filed a First Amended Complaint. When that Complaint’s provisions are compared with the allegations that were before the Sixth Circuit on a motion to dismiss for failure to state a claim in Westside Mothers II, it is apparent that Plaintiffs here have alleged claims against Defendants under § 1983, § 1396a(a)(8) and § 1396a(a)(10) which pass muster under Westside Mothers II.
In reviewing the sufficiency of the First Amended Complaint, the Court must accept as true all of the Plaintiffs’ allegations and resolve all doubts in their favor. See Morgan v. Church’s Fried Chicken, 829 F.2d 10, 1112 (6th Cir.1987). While a complaint need not contain detailed factual allegations, the Plaintiffs must provide the grounds for their entitlement to relief, and this “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The factual allegations supplied must be enough to show a plausible right to relief. Id. at 554-59, 127 S.Ct. at 196468, 167 L.Ed.2d at 940-942. A complaint must contain either direct or inferential allegations respecting all of the material elements to sustain a recovery under some viable legal theory. Id. at 561-63, 127 S.Ct. at 1968-69, 167 L.Ed.2d at 944; Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988).
The Plaintiffs alleged:
The class consists of all current and future Tennessee residents with developmental disabilities who are eligible for Medicaid services under the ICF/MR program or the Medicaid waiver program, but who have been denied entry into those
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programs. At present, 843 individuals from all areas of the state have been placed on waiting lists for the ICF/MR and Medicaid Waiver programs. It is estimated that 5,000 people will need these services over the next five years.
(Docket Entry No. 10, First Amended Complaint ¶ 13 (emphasis added)). The words “program” or “programs” are used *787 four times in paragraph 13. The word “program” encompasses payment for Medicaid services just as easily as it includes the services themselves. Plaintiffs further alleged in paragraph 15 that the question of law and fact common to the class was whether Defendants “illegally deny access to ICF/MR and/or Medicaid Waiver services to eligible individuals.” (Id. ¶ 15 (emphasis added).) While in paragraph 15 Plaintiffs used the word “services” rather than “program” or “programs,” the meaning is the same in this context. Plaintiffs alleged that Defendants denied them access to participation in Medicaid programs. Such access can be denied by the failure to provide financial assistance with reasonable promptness so that Plaintiffs may obtain necessary services from private providers. Rather than provide financial assistance with reasonable promptness, Defendants placed eligible persons on a “waiting list for the ICF/MR and Medicaid Waiver programs.” Plaintiffs did not allege that Defendants failed to provide them with ICF/MR or Medicaid waiver services directly, which was the issue in Westside Mothers II.
That Plaintiffs were complaining about denial of access to financial assistance is confirmed by other allegations of the First Amended Complaint. In paragraph 18, Plaintiffs alleged that the Medicaid program “is a cooperative federal-state program to enable the states to furnish medical assistance to individuals who are unable to meet the costs of necessary medical services. Costs of the program are shared by the federal and state governments.” (Id. ¶ 18, emphasis added.) The Defendants admitted the allegations in paragraph 18 in their Answer to the First Amended Complaint. (Docket Entry No. 11, Answer ¶ 18.) Interpreting the term “medical assistance” used in this paragraph as “financial assistance to eligible individuals to enable them to obtain covered services,” Westside Mothers II, 454 F.3d at 540, Plaintiffs and Defendants both clearly recognized that the Medicaid program enables the State of Tennessee to furnish financial assistance to eligible individuals to enable them to meet the costs of necessary, covered medical services.

Plaintiffs also correctly recognized in the First Amended Complaint that the State of Tennessee is not obligated to participate in the Medicaid program, but having chosen to participate, the State must operate its program in compliance with federal statutory and regulatory requirements, 42 U.S.C. § 1396a. (First Amended Complaint ¶ 19.) Defendants admitted this allegation as well. (Answer ¶ 19.) Further, Plaintiffs alleged that the Medicaid statutes provide “core services that are mandatory for any state participating in the Medicaid program[,]”; that states may choose to cover federally recognized optional services in addition to mandatory services; and that a state choosing to provide an optional service must follow the same statutory and regulatory requirements as apply to mandatory core services. (Id. ¶ 20.) Plaintiffs’ use of the word “cover” was another way of referring to the State’s payment for federally recognized optional services.
Plaintiffs also alleged in paragraph 20 that the requirements of federal law include the right of eligible individuals to apply for services, the right to notice and a fair hearing if an application is denied, the right to have services provided with reasonable promptness, and the right to services of adequate amount, duration, and scope. (Id.) In response, Defendants admitted they are subject to the requirements of the Medicaid Act, and they admitted the allegations of paragraph 20 to the extent the allegations are consistent with the requirements of Medicaid law. Defendants objected to Plaintiffs’ use of *788 the word “adequate,” but Defendants admitted that “Medicaid requirements include the right to service sufficient in amount, duration and scope to reasonably achieve its purpose.” (Answer ¶ 20.) The Sixth Circuit acknowledged all of these requirements of Medicaid law in Westside Mothers II. Plaintiffs alleged in paragraph 20 a “right to have services provided with reasonable promptness” and Defendants admitted in response that Medicaid requirements include the “right to service.” In context with the prior allegations, Plaintiffs obviously meant, and Defendants understood, that Plaintiffs had a right to financial assistance provided by the State through its Medicaid program with reasonable promptness so that Plaintiffs could obtain needed services from private providers. After all, it is well understood that “Medicaid is a payment scheme, not a scheme for state-provided medical assistance, as through state-owned hospitals.” Bruggeman, 324 F.3d at 910.
Similarly, in paragraphs 21 through 25 of the First Amended Complaint, the Plaintiffs explained more fully
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the statutes providing for ICF/MR services and services under the HCBS waiver program. In doing so, Plaintiffs used common parlance like “[t]his section permits states to offer an array of home and community based services that an individual needs to avoid institutionalization [,]” “Tennessee provides services under the Home and Community-Based Waiver program[,]” “[w]hen a state provides services under a Waiver,” and “[s]ervices available in Tennessee under the Waiver program include[.]” The clear meaning of these paragraphs is that, by participating in ICF/MR and Medicaid waiver programs with the federal government, the State of Tennessee agreed to “cover,” as Plaintiffs used that term earlier, or pay for, a range of services as part of its Medicaid plan approved by CMS. The kinds of services covered are listed in paragraph 25. Nowhere in these five paragraphs did Plaintiffs allege that Defendants do provide, or should provide, such services directly to eligible individuals.
In fact, Defendants admitted the allegations of paragraphs 21 through 23 and 25. In response to paragraph 24 Defendants stated: “admit that when a state provides services under a waiver, the state must assure that individuals who are likely to require the level of care provided in an ICF/MR will be informed of any feasible alternatives available under the waiver and given the choice of either institutional or home and communitybased services.” (Answer ¶ 24 (emphasis added).) Like Plaintiffs, Defendants in their Answer used the same shorthand method of describing the State’s role in providing payment for Medicaid services as “providing services.”
Plaintiffs further alleged that the State’s ICF/MR facilities were closed to new admissions due to court orders, opportunity for ICF/MR placement was limited to attrition at existing private facilities due to a bed cap, and access to HCBS waiver services was also severely restricted. (First Amended Complaint ¶¶ 26-27.) Critically, Plaintiffs alleged:
Defendant limits ICF/MR and Waiver services by denying eligible individuals and their families information about the preadmission evaluation process and the right to appeal a denial of services. Eligible individuals and their parents are told that there is no funding for services and that

they must be placed on a waiting list.
(Id. ¶ 28 (emphasis added).) There can be no doubt that Plaintiffs alleged they were denied information about the pre-admission evaluation process, they were denied the right to appeal an unfavorable decision, and eligible individuals were told there was no funding available and as a result *789 they would be placed on a waiting list until such funding became available to them. Plaintiffs did not allege that they were placed on a waiting list to receive services directly from the State. In response to Plaintiffs’ allegations, Defendants stated: “admit that some eligible individuals and their parents have been told that there is no funding for services and that they must be placed on a waiting list. Defendants deny the remaining allegations in paragraph 28.” (Answer ¶ 28, emphasis added.)
Thus, the parties agreed that the waiting list was for persons awaiting payment for services, not the actual provision of services by the State. Such a waiting list for Medicaid payment satisfies Mandy R., 464 F.3d at 1143, for there, the Tenth Circuit acknowledged that placement on a waiting list for payment of services, rather than placement on a waiting list for the provision of services, would state a viable claim under § 1396a(a)(8).
Plaintiffs described the shortcomings in procedures adopted by the State to handle applications from eligible individuals for Medicaid funding, as well as the absence of data management systems for gathering complete information about eligible individuals and maintaining the data in usable forms. Plaintiffs claimed there were problems with identifying “the number of people waiting for Waiver services and questions regarding duplicate or unduplicated counts”. (First Amended Complaint ¶¶ 2930.) The Defendants admitted these allegations. (Answer ¶¶ 29-30.)
Plaintiffs further alleged that the waiting lists were “growing because of the state’s failure to provide the ICF/MR or Waiver level services required by federal law[,]” and they provided statistics concerning the number of people on the waiting list and the expected growth of the waiting list. (First Amended Complaint ¶¶ 31-32.) The Plaintiffs demanded that the State expand its network of community-based services, which included private providers in centers and homes. Defendants admitted there had been some improvements made in the Medicaid program, but there were still problems with
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

obtaining accurate data. (Answer ¶¶ 31-32.) Defendants also acknowledged the difficulty in attracting private providers in some communities with the proper equipment and trained staff.
By describing individuals as “waiting for Waiver services” or alleging that the waiting lists were growing because of the State’s “failure to provide ... services,” Plaintiffs did not claim that only the State could or would provide ICF/MR or waiver services directly. Rather, when these paragraphs are read in conjunction with the preceding paragraph 28, Plaintiffs meant, and Defendants agreed, that individuals were waiting to receive services from a network of community-based private providers which was to be developed by the State and ultimately to be paid by the Tennessee Medicaid program. Plaintiffs alleged that by delaying Plaintiffs’ applications, evaluations for eligibility, and enrollment into the Medicaid program and putting them on a waiting list instead, the State was failing to provide financial assistance to them with reasonable promptness in violation of federal law.
The specific counts of the First Amended Complaint must be understood in light of the foregoing allegations. Plaintiffs alleged in Count I that “Defendant’s failure to provide ICF/MR and Waiver services in an adequate amount, duration, and scope violates 42 U.S.C. § 1396a(a)(10) and implementing regulations.” (Id. ¶ 40.) In Count II, Plaintiffs alleged that “Defendant’s failure to provide eligible individuals a choice between an ICF/MR and Waiver services violates 42 U.S.C. § 1396n(c)(2) and implementing regulations.” (Id. ¶ 41.) *790 In Count III, Plaintiffs alleged that “Defendant’s failure to advise ICF/MR and Waiver applicants of the pre-admission evaluation process denies these applicants the opportunity to apply for medical assistance in violation of 42 U.S.C. § 1396a(a)(8). (Id. ¶ 44.) In Count IV, Plaintiffs alleged that “Defendant’s failure to serve plaintiffs with reasonable promptness violates 42 U.S.C. § 1396a(a)(8) and implementing regulations.” (Id. ¶ 46.) Finally, in Count V, Plaintiffs alleged that “Defendant’s failure to provide written notices and an opportunity to be heard when ICF/MR or Waiver services are denied or not provided with reasonable promptness violates 42 U.S.C. § 1396a(a)(3) and implementing regulations, as well as the Due Process Clause of the United States Constitution.” (Id. ¶ 48.)
Not one of the five specific Counts in the First Amended Complaint includes the phrase “waiting list.” Nowhere in the First Amended Complaint did the Plaintiffs allege that

Defendants had a duty under federal law to provide services directly to the Plaintiffs, a duty the Sixth Circuit held to be nonexistent in Westside Mothers II, 454 F.3d at 539-540 (“the issue presented ... is whether the individual rights to ‘medical assistance’ created by these provisions impose[ ] an obligation on the State to provide services directly.”)
The Court concludes that Plaintiffs’ use of shorthand phrases in the First Amended Complaint such as “the right to have services provided with reasonable promptness” instead of “the right to have financial assistance provided with reasonable promptness” (which nine years after pleading the First Amended Complaint appears to be the more appropriate phraseology in light of Westside Mothers II ) amounts to a distinction without a difference. Defendants obviously understood the pleading and used the same or similar language. Defendants were on fair notice from the allegations of the First Amended Complaint that what Plaintiffs primarily alleged was denial of prompt evaluation of their applications for Medicaid financial assistance, failure to provide payment for necessary Medicaid services with reasonable promptness, failure to provide a means of appeal from a denied application, and failure to gather and utilize information about eligible individuals, all of which had the result of denying Plaintiffs access to Medicaid funding for needed services covered under the State’s Medicaid Plan approved by CMS. See Fed.R.Civ.P. 8(a)(2) (“short and plain statement of the claim” rule).
On May 7, 2003, this Court denied the parties’ crossmotions for summary judgment on all five Counts of the First Amended Complaint. (Docket Entry Nos. 102 & 103, Memorandum and Order.) The Court held in a twenty-five page opinion that each of the five Counts stated a viable claim and that genuine issues of material fact existed to preclude summary judgment for either side. The Sixth Circuit was not asked to decide whether the Court erroneously denied the cross-motions for summary judgment because thereafter the parties decided to settle the case to avoid a trial on the merits and subsequent appeal.
4. The terms of the Settlement Agreement approved by the Court The Settlement Agreement executed by the parties uses the same shorthand language that the parties used in their pleadings. Section 1. Scope of Settlement provides in part:
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

The plaintiffs filed this action ... asserting violations of Medicaid law by defendants’ alleged failure to provide Medicaid services with reasonable promptness to eligible individuals with mental retardation. A class has been certified in this matter to include:
*791 Tennessee 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 DMRS waiting list for services under these programs.
(Docket Entry No. 116, Agreed Order, Ex. A Settlement Agreement.) The Settlement Agreement specifically defined “Waiting List” to refer “to the list maintained by the Division of Mental Retardation Services (DMRS) that includes individuals determined to be eligible for and seeking 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.” (Settlement Agreement at 4 (emphasis added)). The “Waiting List” included names of “individuals determined to be eligible for and seeking services[.]” Since Medicaid is a payment scheme, it is rational to understand the parties’ definition as referring to a waiting list to receive payment for services.
The Sixth Circuit stated expressly in Westside Mothers II that the “most reasonable interpretation of § 1396a(a)(8) is that all eligible individuals should have the opportunity to apply for medical assistance, i.e. financial assistance, and that such medical assistance, i.e. financial assistance, shall be provided to the individual with reasonable promptness.” Westside Mothers II, 454 F.3d at 540. Consistent with these principles, the parties and the Court understood at the close of the pleadings, at the time the class was certified, at the time the cross-motions for summary judgment were denied, and at the time the Settlement Agreement was approved that eligible individuals with mental retardation could request and receive services under Tennessee’s Medicaid ICF/MR or waiver programs only if the Defendants made available to them Medicaid financial assistance to pay for such services. The community-based services are primarily offered by private providers, not the Defendants.

However, services offered by private providers would not exist without the State’s involvement. The State was expected to develop a network of community-based mental health facilities and providers, and the State would contract with those facilities and providers to pay for services under Medicaid. Plaintiffs and Defendants understood that the private providers would not build, equip, and staff such facilities without direct involvement of the State. Neither the individuals in need of services or their family members could persuade private providers to invest money for construction, equipment and staff without the State’s supervision and involvement. There was no understanding on the part of the parties or the Court that Plaintiffs expected the State to provide services directly to Plaintiffs under the waiver program, unless particular Plaintiffs chose to receive care in a state-owned Intermediate Care Facility. The definitions of the certified class and the term “Waiting List” as stated in the Settlement Agreement are thus clearly proper under Westside Mothers II and Mandy R.
In Section II, Preamble and Guiding Principles, the parties recognized their common interests and goals in improving the Medicaid delivery system for eligible persons with mental retardation and they acknowledged that individuals “have been placed on waiting lists for mental retardation services.” (Settlement Agreement at *792 2.) Again, there is no mention that Plaintiffs expected the Defendants to provide services directly, unless particular Plaintiffs chose to receive care in a stateowned facility. Rather, in light of the pleadings and all of the prior proceedings in the case, it is apparent that both sides intended to make efforts to improve the Medicaid delivery system and bring it into compliance with federal law so that the applications of eligible mentally-retarded persons for Medicaid financial assistance would be reviewed and decided more promptly, and Medicaid funding would be made available more quickly for eligible persons to obtain needed services from private providers. The parties expected this would have the concomitant effect of substantially reducing or eliminating the waiting list during the life of the Settlement Agreement.
The parties stated:
This Agreement is intended to eliminate or substantially reduce the waiting list for services by providing for: (1) the development of the mental retardation system
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

infrastructure and provider network

capacity necessary to support the

expansion of quality home and

community based waiver services;

(2) access to interim services for

Medicaid-eligible

individuals

seeking services; and (3) an

appropriate planning process for

the future expansion and/or

development of home and

community based waiver programs

and services for Medicaid-eligible

persons with mental retardation on

the DMRS waiting list. While

defendants cannot fully anticipate

the rate of growth of the DMRS

waiting list, the amount of

legislative appropriations for home

and community based MR services,

or the maximum number of waiver

participants that will be approved

by the Centers for Medicare and

Medicaid Services (CMS), the goal

is to eliminate or substantially

reduce the waiting list for services

for Medicaid-eligible persons with

mental retardation that meet the

ICF/MR level of care criteria. The

defendants’ commitment is to: 1)

work toward lifting the moratorium

on new admissions to the existing

home and community based MR

waiver program as soon as

possible; 2) develop MR service

system infrastructure; 3) apply for

new waivers so that the DMRS

waiting list will move at a

reasonable pace; and 4) strive to

provide services to Medicaid-

eligible persons with mental

retardation that meet the ICF/MR

level of care criteria on the waiting

list with reasonable promptness. It

is defendants’ intent to reach the

goals of this Agreement without

reducing the funding for other

services to individuals with mental

retardation.

(Settlement Agreement at 2-3.) Nowhere in the Preamble did the parties indicate their intent that the State would

provide Medicaid services to the Plaintiff class directly, other than in a state-run facility; rather, the State was to provide services indirectly through the development of community-based private providers. All of these goals were consistent with the parties’ understanding that the State had a duty to provide financial assistance under the Medicaid program, without which the persons on the waiting list for payment could not obtain services from private providers.
Defendants agreed in Section IV to expand the Medicaid Waiver Program by (a) seeking a new Medicaid Selfdetermination Waiver program; (b) providing funding for, enrolling, and beginning the provision of services for 600 enrollees in the Self-determination Waiver program; (c) continuing to enroll eligible individuals into the HCBS waiver with $12 million in improvement funding annually for fiscal years 2003-2004, 2004-2005, and 2005-2006; (d) within six months after approval of the Settlement Agreement, developing a *793 method and process to define how individuals may move from the Selfdetermination Waiver to the existing HCBS waiver; and (e) providing a limited amount of short-term crisis and/or one-time diversion funds that could be used to provide temporary additional services beyond the $30,000 cap per person per year of the Self-determination Waiver. (Settlement Agreement at 5-8.)
Defendants agreed in Section V that (a) to the extent there existed an available waiver slot and funding for that slot, eligible individuals would be enrolled in the waiver with reasonable promptness; (b) they would identify, notify, and enroll persons in the 600 slots for the Selfdetermination Waiver in year 1; and (c) they would identify, notify, and immediately enroll persons, particularly those in crisis, in the HCBS waiver in accordance with its provisions with reasonable promptness. The parties defined “reasonable promptness” for those classified as “in crisis” as “services will be initiated within 30 days of the letter of notification to eligible persons choosing to be enrolled in the Waiver.” Further, should the CMS moratorium be lifted so that individuals in the “urgent” or “active” categories could be enrolled, “reasonable promptness” was defined as “services will be initiated within 90 days of the letter of notification to eligible persons choosing to be enrolled in the funded slot of the Waiver.” (Settlement Agreement at 8-10.)
In Section VI, Defendants agreed to make program improvements, including (a) an independent agency assessment of those persons on the waiting list; (b)
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

implementation of a targeted case management program to be available to all Medicaid-eligible individuals on the waiting list; (c) provision of consumer directed support to each individual on the waiting list in the crisis, urgent or active category but not receiving family support services, capped at no more than a total of $5 million per year; (d) additional interim services if the Defendants failed to obtain CMS approval for the new Self-determination Waiver; and (e) implementation of measures to address community infrastructure needs. (Settlement Agreement at 11-12.) The Settlement Agreement also included provisions on long range planning (Section VII), the application process (Section VIII), monitoring and enforcement (Section IX), attorney’s fees, expenses and costs (Section X), miscellaneous provisions (Section XI), and the term of the Agreement (Section XII). All of the provisions were aimed toward oiling the gears of the State’s Medicaid payment and management mechanisms. This was done so that the State would actually provide the financial assistance it agreed to provide when it opted to participate in the Medicaid program, rather than simply placing eligible people on a waiting list for months and years.
5. This Court’s decision denying Defendants’ Motion to Vacate and to Dismiss In the decision rejecting Defendants’ arguments for dismissal and denying the Motion to Vacate, the Court held that the Agreement was a jointly executed, binding contract reached in settlement of litigation which placed
a specific duty on Defendants to ensure the provision of needed services, even though Defendants were not required by the Agreement itself or now by Westside Mothers II to provide such services themselves.... Defendants agreed to improve funding for, and delivery of, needed services. Id. at 5-15. There are no provisions in the Agreement obligating the Defendants to provide medical services directly or making the State a “provider of last resort.”
*794 Brown, 2007 WL 2710704 at *6. The State was obligated to develop the private provider network and pay those providers for services needed by mentally retarded

individuals. The Court further held that the “parties did not make a mutual mistake of law that would justify terminating this Agreement, nor has the law changed to such an extent that all of the provisions of the Agreement now impose a higher burden on the state Defendants than federal law requires.” Id. at *7. The Court determined that, “[i]n settling the underlying litigation, Defendants willingly accepted a contractual duty to help accomplish the parties’ ‘overriding common interest’ in ‘assuring that Tennessee’s citizens with mental retardation are provided reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe environment.’ (Agreement at 2.)” Id.
Importantly, in footnote 5 of the opinion, this Court observed that, under federal statute, states must
provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area[.]
Id. at *7 n. 5 (quoting 42 U.S.C. § 1396a(a)(30)). The Court went on to say that, although the Sixth Circuit held in Westside Mothers II that § 1396a(a)(30) does not confer on Medicaid recipients a private right of action under § 1983,
the statute prescribes the law the states must follow to ensure that enough service providers are available, and the Defendants accepted their responsibility to follow this law and improve the Tennessee provider network when they executed the Agreement. See also 42 U.S.C. § 1396a(a)(9)
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

(requiring states to establish and maintain health standards for private and public institutions in which recipients of medical assistance receive care or services; 42 U.S.C. § 1396n(c)(2) (requiring states to assure necessary safeguards to protect health and welfare of individuals provided services under HCBS waiver and to assure financial accountability for funds expended with respect to such services). The federal government retains authority to withhold payment of federal Medicaid funds to any state that changes its plan to such a degree that it no longer complies with the provisions of § 1396a or in the administration of the plan there is a failure to comply substantially with any provision of § 1396a.
Id.
To repeat, this Court held that, by executing the Settlement Agreement, the Defendants recognized and reaffirmed their obligations under federal statutory law to: (1) provide payment for mental retardation services in private and State ICF/MR facilities and for HCBS waiver services that the State agreed to include in its Medicaid plan; (2) adopt methods and procedures so that the care and services available under the State’s Medicaid plan are used only by those who need the care or services; (3) assure that payments for care and services are consistent with efficiency, economy and quality of care; (4) assure that payments are sufficient to enlist enough providers so that care and services are available under the plan; (5) establish and maintain health standards for private and public institutions in which recipients of medical assistance *795 payments receive care or services; and (6) assure necessary safeguards to protect the health and welfare of individuals who are provided services under the HCBS waiver.
In short, the State’s responsibility under the Medicaid Act does not start and stop with the act of writing checks to pay for Medicaid services provided by private entities. See Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (“Although participation in the program is voluntary, participating

states must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and Human Services.”); Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir.2004) (noting that § 1396a(a)(30) focuses on the state as “the person regulated” rather than on the individuals protected).
The federal Medicaid statutes and regulations spell out in lengthy detail the responsibilities and obligations the State assumes when it agrees, as part of its Medicaid plan, to spend state funds to pay for private ICF/MR and HCBS waiver services in return for federal financial assistance, even though the State itself does not provide the actual medical services. See Westside Mothers v. Haveman, 289 F.3d 852, 858 (6th Cir.2002) (“Westside Mothers I ”) (quoting Bennett v. Kentucky Dept. of Educ., 470 U.S. 656, 669, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985) for proposition that federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy and “the conditions imposed by the federal government pursuant to statute upon states participating in Medicaid and similar programs are not merely contract provisions; they are federal laws.”) Indeed, the Medicaid statutes and regulations are the supreme law of the land and supersede any conflicting state laws. Id. at 860. Thus, the Sixth Circuit held in Westside Mothers I that the putative plaintiffs, children who were eligible for screening and treatment services under 42 U.S.C. § 1396a(a)(8) and (a)(10), possessed a legal cause of action for alleged noncompliance with the statutory screening and treatment provisions of the Medicaid Act because the “provisions set a binding obligation” on the state and “are couched in mandatory rather than precatory language, stating that Medicaid services ‘shall be furnished’ to eligible children, 42 U.S.C. § 1396a(a)(8) (emphasis added), and that the screening and treatment provisions ‘must be provided,’ id., § 1396a(a)(10)(A), see also 42 C.F.R. § 441.56 (mandatory language).” Id. at 863.
The State’s recognition and acceptance of its obligations under federal law, including through the Settlement Agreement, has been confirmed repeatedly by Stephen Norris, Deputy Commissioner, Division of Mental Retardation Services, in his deposition testimony. As one example, the Court notes that, in denying Plaintiffs’ motion for specific performance, the Court stated:
Because so many DMRS resources were devoted to getting the
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

moratorium lifted2 and achieving

approval of the new [Self-

Determination]

waiver,

Commissioner

Norris

acknowledges that achieving

growth in the provider network was

not a top priority. However,

Defendants took other important

and preliminary steps to improve

the provider network, such as

severing ties with providers giving

substandard services, *796 writing

a provider manual to set service

definitions, rewriting the rate

structure so that the system is more

predictable for providers, and

clarifying the role of support

coordination agencies. With these

critical improvements well

underway, Commissioner Norris

admits that Defendants are “not

very far” in developing the

provider network, but he agrees

that the work must be done,

(Docket Entry No. 219-3 at 24-26,

29, Norris Depo.) and believes that

Defendants can devote more

resources to encouraging growth in

the provider network. (Docket

Entry No. 219-2 at 7-13.) He

harbors serious doubt that the

provider network capacity can

grow to the extent necessary to

eliminate the waiting list by year

five, but he does think the waiting

list can be reduced significantly.

(Id. at 3, 17-18; Docket Entry No.

219-3 at 32, 38, 46, 50, 52.)

Brown, 2008 WL 2704362 at *13. There are many other examples that the Court could draw from the voluminous evidentiary record. Suffice it to say, until the Sixth Circuit decided Westside Mothers II and the Tenth Circuit decided Mandy R., Defendants expressed no confusion about the obligations placed on them by various federal Medicaid statutes and regulations as reaffirmed in the Settlement Agreement itself. Many of the statutory and regulatory provisions which govern the State’s Medicaid program were not even discussed in Westside Mothers II or Mandy R.

6. The Sixth Circuit’s reversal in part of the Court’s decision In reviewing this Court’s decision denying Defendants’ Motion to Vacate, the Sixth Circuit concluded that the Court misapplied Rufo because the Court denied Defendants’ motion on the ground that their obligations under the settlement were contractual and unaffected by Westside Mothers II. Brown, 561 F.3d at 546. The court said “[w]hat matters under Rufo is not that Tennessee agreed to take the actions specified in the settlement, but what those actions were intended to remedy: if the settlement was premised on the understanding that the Medicaid statute imposed upon Tennessee a duty to ensure the provision of medical services, then Rufo counsels that we vacate the agreed order because Westside Mothers II established that no such duty exists.” Id. The appellate court, however, did not vacate the Agreement under Rufo because it was “not convinced that the dramatic relief Tennessee seeks-for us to vacate the settlement in its entirety-is appropriate at this juncture.” Id. at 547.
The Sixth Circuit did not grant Defendants’ Motion to Vacate and Dismiss outright because the parties characterized “the underlying litigation and goals of the settlement in very different ways,” and it was not clear to the court “from the sparse record whether Westside Mothers II completely undermined the settlement.” Id. Defendants argued that “the settlement was intended to eliminate its waiting list for Medicaid services based upon a perceived statutory duty to ensure that services were provided to all eligible individuals.” Id. at 547. Plaintiffs, however, disavowed that characterization and instead contended “that they were seeking information about the waiver program, access to it, and enrollment in available slots (at least up to the statutory cap) so that they could obtain Medicaid funds.” Id. The record did not conclusively show which party’s description of the underlying litigation was correct, and the court stated that Plaintiffs’ “complaint is pleaded generally and could plausibly be read to support either theory.” Id. The appellate court believed the “basis and meaning of the decree are not clear, and the district court has yet to interpret it.” Id. Thus, the appellate court hesitated to vacate the decree in its entirety. The panel stated, *797 however, that if “plaintiffs’ account of the underlying litigation is as revisionist as Tennessee claims, then Tennessee is entitled to full relief from prospective enforcement. But the district court will have to address this matter on remand.” Id.
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

The court also considered that the Settlement Agreement is set to expire at the end of this year, and “given that only part of the settlement is in clear conflict with Westside Mothers II, and that Tennessee’s obligations will soon end, we do not believe that equity necessarily requires that we vacate the decree in its entirety now.” Id.

The court also pointed out that Defendants may be able to obtain relief from the Agreement on the ground that the duty to enroll additional individuals into the waiver program is conditioned on both the availability of a waiver slot and funding for that slot, and also, under the Agreement, after the first two years, Defendants may defend any action for non-compliance on the ground that they are in compliance with the federal laws. The court stated that “Tennessee is currently defending a pending enforcement action on this very ground [,]” presumably referring to the pending motions for summary judgment on long-range planning for years three through five of the Agreement, id. at 547-548, although this Court does not characterize the issue concerning years three through five as an “enforcement action.”

Nonetheless, the Sixth Circuit panel did vacate two aspects of the Agreement:

First, we vacate Tennessee’s

commitment to develop “provider

network capacity,” ... which does

not appear to remedy any violation

of federal law after Westside

Mothers II. Second, any

commitment Tennessee arguably

made to eliminate the waiting list

for services is likewise

unenforceable after Westside

Mothers II. Absent more, a waiting

list for waiver services is not

inconsistent with Tennessee’s duty

to provide “medical assistance” to

individuals eligible for its HCBS

waiver

with

“reasonable

promptness.”

Id. at 548. The panel concluded: “On remand, the district court should consider the agreed order in light of its knowledge of the history of this case and our discussion of Westside Mothers II and Mandy R. to determine whether and to what extent the settlement should be enforced during its final nine months of existence.” Id.

7. Reevaluation of the Motion to Vacate After Remand On remand, the Court has now followed the directions given by the Sixth Circuit. The Court has considered the Agreed Order and the Settlement Agreement in light of the Court’s knowledge of the history of the case and the Sixth Circuit’s discussion of Westside Mothers II and Mandy R. As a result of this review, the Court determines that the Settlement Agreement remains enforceable during its final months of existence, with the exception of the two aspects discussed in the Sixth Circuit Brown opinion and as explained below upon consideration of the parties’ cross-motions for summary judgment on years three through five.
[1] The Sixth Circuit vacated “Tennessee’s commitment to develop ‘provider network capacity,’ ... which does not appear to remedy any violation of federal law after Westside Mothers II.” 454 F.3d at 548. Although the Court is not in full agreement with this directive in light of 42 U.S.C. § 1396a(a)(30), as discussed in footnote 5 of the Court’s prior opinion, Brown, 2007 WL 2710704 at *7 n. 5; Docket Entry No. 199 at 11-12, the Court is bound to follow the Sixth Circuit’s decision on this point. The appellate court has now held that, because § 1396a(a)(30) does not confer on Medicaid recipients a private right of action under § 1983, Westside Mothers *798 II, 454 F.3d at 541, there is no legal right to remedy, and therefore, the Defendants are not bound by the Settlement Agreement’s terms addressing Defendants’ commitment to develop provider network capacity. Any provisions of the Settlement Agreement addressing Defendants’ commitment to develop provider network capacity are no longer enforceable.
It is some comfort that Defendants have accomplished much since the Settlement Agreement was approved in 2004 to improve and develop provider network capacity. Defendants repeatedly mentioned with pride in court filings and testimony of state officials before the Court all of the improvements that have been achieved in this area as a result of this lawsuit. Although the Settlement Agreement no longer exerts any control over Defendants’ conduct in developing provider network capacity, Defendants nonetheless remain subject to the constraints of § 1396a(a)(30) in their dealings with CMS, which oversees and regulates Tennessee’s Medicaid Plan.
[2] The Sixth Circuit also vacated “any commitment Tennessee arguably made to eliminate the waiting list for services[.]” To the extent the Settlement Agreement can
14

Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

be said to include a commitment by Defendants to eliminate the waiting list for services, such a commitment now falls by the wayside. But as the Court has shown in the prior pages of this opinion, Defendants did not make a commitment to eliminate a waiting list for services that the State would provide directly, which was the issue in Westside Mothers II. Here, Defendants made a commitment to substantially reduce or eliminate a waiting list for enrollment in the Medicaid program for payment of financial assistance for services provided by others, and to this extent, the Settlement Agreement shall remain in full force and effect until its expiration.
The Sixth Circuit stated in Brown, 561 F.3d at 547, that “[i]f plaintiffs’ account of the underlying litigation is as revisionist as Tennessee claims, then Tennessee is entitled to full relief from prospective enforcement.” Having reviewed the entire litigation of the case, however, the Court finds that the Defendants hold the revisionist view of the litigation, not the Plaintiffs. According to the Brown opinion, the Defendants argued to the Sixth Circuit that the Settlement Agreement “was intended to eliminate its waiting list for Medicaid services based upon a perceived statutory duty to ensure that services were provided to all eligible individuals.” Id. As shown above, if this was indeed Defendants’ posture on appeal, it was not the position Defendants took in their Answer to the First Amended Complaint or in the proceedings leading up to the motion to vacate or dismiss. The Brown opinion also stated: “Plaintiffs, however, disavow this characterization of the underlying litigation. Instead, they contend that they were seeking information about the waiver program, access to it, and enrollment in available slots (at least up to the statutory cap) so that they could obtain Medicaid funds.” Id.
As the Court’s review demonstrates, the Plaintiffs’ argument to the Sixth Circuit was a faithful description of the litigation as it unfolded in this Court. It was the Defendants who seized upon what is, in the Court’s view, an artificial distinction drawn in Mandy R. between pleading a “waiting list for services” and a “waiting list for payment of services.” Defendants zealously latched onto this unfortunate distinction made in Mandy R. to support their effort to relieve themselves of the obligations imposed by the Settlement Agreement. The Court believes that the Defendants have always known and acted as if what the Medicaid program requires is that the State make funds available on *799 behalf of eligible mentally retarded individuals enrolled in the Medicaid program to pay for services those individuals obtain from private providers.

Accordingly, Defendants’ Motion To Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case (Docket Entry No. 155) will be granted only to the extent that Defendants need no longer honor their commitment to develop “provider network capacity” or any commitment they arguably made to eliminate the waiting list for services, as directed by the Sixth Circuit. The motion will be denied in all other respects.
C. Cross-Motions for Summary Judgment [3] As stated earlier, the pending summary judgment motions concern the number of eligible individuals on the waiting list who should be enrolled in the Medicaid program during years three through five of the Settlement Agreement.3 Because of various delays caused by litigation, this is now year five, with the Settlement Agreement set to expire on December 31, 2009. It is undisputed that the waiting list has continued to grow during the years covered by the Settlement Agreement despite increased funding by the Tennessee General Assembly in the first two years of the Agreement and the enrollment of hundreds of individuals from the waiting list into the waiver programs starting in 2004. (Docket Entry No. 272.)
The Sixth Circuit noted in the Brown opinion that “we do not take the plaintiffs to contend that Tennessee has a[n] unlimited duty to enroll eligible individuals in its HCBS waiver. To the extent that is plaintiffs’ position, we reject it now.” Brown, 561 F.3d at 548 n. 4. The appellate court went on to say that “[w]e express no opinion as to whether Tennessee has a duty to enroll eligible individuals up to the waiver-enrollment cap or whether such a duty was contemplated by the settlement agreement at issue in this case.” Id.
Plaintiffs did initially contend in their pending motion for summary judgment that Defendants should be required “to fulfill the Settlement Agreement by enrolling the number of persons per month necessary to result in the substantial reduction or elimination of the waiting list given the number of months remaining before December 31, 2009[.]” (Docket Entry No. 270, Memorandum at 13.) After the Sixth Circuit entered the Brown decision, however, Plaintiffs narrowed their request for relief and asked that the Court order Defendants “to comply with the Settlement Agreement by enrolling each month a sufficient number of people from the waiting list to fill all currently available waiver slots by no later than the
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

Settlement Agreement’s expiration on December 31, 2009.”4 (Docket Entry No. 290, Plaintiffs’ Supplemental Brief at 1-2.)
The Medicaid Act authorizing the MR waivers states that waiver programs may “contain[ ] a limit on the number of individuals who shall receive home or community-based services.” 42 U.S.C. § 1396n(c)(9). This is subject only to the statutory proviso that CMS “shall not limit *800 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)(10); 42 C.F.R. § 441.303(f)(6) (requiring states to indicate the enrollment limit for its waiver program). The State and CMS have agreed on a specific number of waiver slots, and the State has tied the number of slots authorized by CMS to the availability of legislative appropriations.
As Defendants point out, in addition to the limit or cap on the number of waiver slots, their ability to enroll additional individuals into the MR waivers is controlled by two factors: (1) the capacity of the system for MR services to incorporate additional enrollees while still maintaining the necessary quality of services and (2) the financial resources the State can devote to MR services given the many competing demands for State dollars. (Docket Entry No. 170, Norris Decl. ¶¶ 13-14; Docket Entry No. 265-1, Goetz Decl. ¶¶ 2-5.) The parties recognized in the Preamble and Guiding Principles section of the Settlement Agreement that Defendants “cannot fully anticipate the rate of growth of the DMRS waiting list, the amount of legislative appropriations for home and community based MR services, or the maximum number of waiver participants that will be approved by the Centers for Medicare and Medicaid Services (CMS) [.]” (Settlement Agreement at 3.) The parties agreed that, “within the limits of the federally approved waivers, to the extent that there exists an available waiver slot and funding for that slot, eligible individuals should be enrolled in the Waiver with reasonable promptness.” (Id. at 9 (emphasis added).)
Tennessee Department of Finance and Administration Commissioner, Dave Goetz, attested that the State of Tennessee is experiencing very significant budget shortfalls as a result of the weakening national economy in 2008 and 2009, resulting in substantial budget cuts across state government. (Goetz Decl. ¶¶ 2-3.) Prior to November 1, 2008, DMRS continued to approve fifty (50) persons with mental retardation per month for enrollment into Medicaid waiver services, consistent with the Budget Document and approved Appropriations Act for the

current fiscal year. (Id. ¶ 4.) Effective November 1, 2008, DMRS has been required to restrict intake into Medicaid waiver services to only those persons with mental retardation who are in an emergency situation, persons who are in transition from one of the State’s developmental centers, young adults who are too old for the Department of Children’s Services’ foster care, and persons who are scheduled to transition from mental health facilities and nursing homes. (Id.) Commissioner Goetz avers that the reduction in new enrollments into Medicaid waiver services is required due to the State of Tennessee’s fiscal condition. (Id. ¶ 5.) Based on the current economic crisis, it does not appear that the State will have sufficient revenues next fiscal year to maintain the current rate of growth in enrollments, and to the contrary, DMRS has been directed to take steps to reduce the budget for next fiscal year. (Id.)
Commissioner Goetz further attests that DMRS has already taken steps to reduce personnel and expenditures, including a reduction in the rates for payments to providers. Unless further steps are taken to limit enrollments, DMRS will be forced to further reduce the rates for payments to providers. This could result in providers refusing to provide services at a risk to the health and safety of current service recipients. Therefore, DMRS is focusing its limited available resources on meeting the needs of individuals with the most urgent need for immediate service. (Id.)
*801 [4] Plaintiffs’ response to this testimony is to argue that “the financial resources the State can devote to enrollment of individuals from the waiting list into the Medicaid Waiver program are the result of choices made by the State during the budgeting process, not a result of the State devoting all of its financial resources to fund services for individuals already enrolled in that program or other programs and simply running out of money.” (Docket Entry No. 281, Plaintiffs’ Response to Concise Statement of Material Facts In Support of Defendants’ Motion For Summary Judgment ¶ 1.) Plaintiffs also contend that “the State has chosen to set aside hundreds of millions of dollars in rainy day funds and reserve accounts instead of using those funds to fulfill its agreement to enroll individuals from the waiting list into the Medicaid Waiver program.” (Id.) Plaintiffs provide a November 11, 2008 newspaper article from Tennessean.com in which Governor Bredesen discusses the magnitude of the budget shortfall, the need “to take some very painful action,” and the expectation of the administration to “use some of the rainy-day fund to cushion the state’s shortfall.” (Docket Entry No. 280-3.)
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Brown v. Tennessee Dept. of Finance and Admin., 649 F.Supp.2d 780 (2009)

The Governor is quoted in the article as saying that he wants to be conservative in using $750 million in rainyday funds and other reserve accounts because “[y]ou can’t just make the problem go away with the reserves-you could just run through them in a year and you’d have nothing left.” (Id.)
As presented, the newspaper article is inadmissible hearsay. Further, Plaintiffs are simply contending that state officials are making public policy decisions about budgetary allocations and priorities with which they disagree. But this is not sufficient to survive a summary judgment motion. To gain a trial, Plaintiffs must produce evidence to generate a genuine issue of material fact by showing that Medicaid funding exists to permit additional enrollment of eligible persons with mental retardation into all available waiver slots despite Defendants’ evidence that such funding does not exist and that state officials are making drastic cuts in the DMRS budget. However, Plaintiffs have not produced any such evidence and likely cannot. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Having reviewed the legal memoranda and documents filed in support of the parties’ cross-motions for summary judgment, the Court concludes that, within the limits or caps set for the federally approved waivers, to the extent there exist available waiver slots and funding for those slots, the Settlement Agreement requires the Defendants to enroll eligible individuals into those available slots

with reasonable promptness before the Settlement Agreement expires on December 31, 2009. The Settlement Agreement does not give this Court any authority to order the Defendants to undertake more than the Medicaid Act requires or budgetary funding allows. Accordingly, Defendants’ motion for summary judgment will be granted and Plaintiffs’ motion for summary judgment will be denied.
In conclusion, Westside Mothers II did not completely undermine the Settlement Agreement in this case. The extensive history shows that the intent of the parties was to speed enrollments in the Medicaid program so that eligible persons with mental retardation could receive Medicaid funding to pay private providers for needed services. Defendants’ motion to vacate the Agreed Order and to dismiss will be granted only as necessary to modify the Settlement Agreement in accordance with the Sixth Circuit’s recent decision. As to years three through five of the Agreement, summary judgment will be entered for Defendants. Enrollments in Medicaid waiver *802 programs until December 31, 2009, are limited to available waiver slots and available funding for those slots.
An appropriate Order will be entered.
	  

Footnotes

1

“DMRS” refers to the Tennessee Division of Mental Retardation Services.

2

In May 2001, the Federal Center for Medicare and Medicaid Services (“CMS”) imposed a moratorium on the enrollment of

individuals under the State’s HCBS waiver due to extensive problems with the State’s management of the program.

3

To the extent Defendants contend they are entitled to summary judgment because the Agreed Order approving the Settlement

Agreement should be vacated, the motion for summary judgment is denied for the same reasons the motion to vacate or dismiss is

denied in most respects.

4

Plaintiffs appear to have dropped their alternative request that the Court extend the settlement period by at least thirty-six (36)

months from the date of this Court’s Order on the instant motions. Any such request would have to be made in accordance with

Section XII B. of the Settlement Agreement and show substantive noncompliance in the Defendants’ implementation of the

Agreement.

	  

17

 
 LAKERSKO BROWN, et al., Plaintiffs, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. GOETZ, Jr., Commissioner, Defendants.
No. 3:00-0665.
United States District Court, M.D. Tennessee, Nashville Division.
February 5, 2010.
ORDER
ROBERT L. ECHOLS, District Judge.
The Settlement Agreement approved by the Court on June 17, 2004, apparently expired by its terms on December 31, 2009, since no written motion was filed to continue the Settlement Agreement pursuant to Section XII.B of the Settlement Agreement. No other motions are pending in the case.
Accordingly, the Clerk is hereby directed to close the case administratively.
It is so ORDERED.

 
 CASE−MANAGER−BRYANT, CASE−REFERRED, CASE−REOPENED, LEAD−CASE−FOR−PRETRIAL
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:00−cv−00665

Brown, et al v. Finance &Administration, Tennessee Department Date Filed: 07/13/2000

of, et al

Jury Demand: None

Assigned to: Senior Judge Robert Echols

Nature of Suit: 890 Other Statutory

Referred to: Magistrate Judge John S. Bryant

Actions

Demand: $0

Jurisdiction: Federal Question

Member case:

3:01−cv−00272

Case in other court: 07−06325

Cause: 42:1396 Medicaid

Plaintiff

Beth Ann Brown by and through her father and next friend, Shelby Brown TERMINATED: 01/17/2007

represented by Kent Ellis Krause Brewer, Krause &Brooks P O Box 23890 Nashville , TN 37202−3890 (615) 256−8787 Email: kkrause@bkblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan Tennessee Protection and Advocacy, Inc. P O Box 121257 2416 21st Avenue, S Nashville , TN 37212 (615) 298−1080 TERMINATED: 02/19/2002

Gary D. Housepian Tennessee Protection and Advocacy, Inc. P O Box 121257 2416 21st Avenue, S Nashville , TN 37212 (615) 298−1080 Email: garyh@dlactn.org TERMINATED: 08/21/2007

J. Page Garrett 5133 Harding Road Suite 112 Nashville , TN 37205 (877) 624−5108 Email: jpg@johnpagegarrett.com TERMINATED: 10/10/2002

Parks T. Chastain Brewer, Krause &Brooks P O Box 23890 Nashville , TN 37202−3890 (615) 256−8787 Email: pchastain@bkblaw.com ATTORNEY TO BE NOTICED

Case: 3:00-cv-665

Suzanne Michelle Blackburn &McCune, PLLC 101 Lea Avenue Nashville , TN 37210
As of: 06/10/2009 09:47 AM CDT 1 of 39

(615) 254−7770 TERMINATED: 02/21/2002

Plaintiff Shelby Brown

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty Disability Law &Advocacy Center of Tennessee 2416 21st Avenue South Suite 100 Nashville , TN 37212 (615) 298−1080 Fax: (615) 298−2046 Email: marthal@dlactn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds Disability Law &Advocacy Center of Tennessee 2416 21st Avenue South Suite 100 Nashville , TN 37212 (615) 298−1080 Fax: (615) 298−2046 Email: sherryw@dlactn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Keith Greenwald by and through his mother and next friend, Carol Greenwald TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 2 of 39

(See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Carol Greenwald

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Erin McNamara by and through her mother and next freind, Betty McNamara TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Case: 3:00-cv-665

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007
As of: 06/10/2009 09:47 AM CDT 3 of 39

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Betty McNamara

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Shane Mitchell by and through his mother and next friend, Arlie Mitchell TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 4 of 39

(See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Arlie Mitchell

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Derrick Vartan by and through his mother and next friend, Nancy Vartan TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

Case: 3:00-cv-665

J. Page Garrett (See above for address) TERMINATED: 10/10/2002
As of: 06/10/2009 09:47 AM CDT 5 of 39

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Nancy Vartan

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Katherine Wilcox by and through her mother and next friend, Dora Wilcox TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 6 of 39

(See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Dora Wilcox

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff
Tennessee Protection and Advocacy, Inc. TERMINATED: 01/17/2007

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buchanan (See above for address) TERMINATED: 02/19/2002

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

J. Page Garrett (See above for address) TERMINATED: 10/10/2002

Case: 3:00-cv-665

Parks T. Chastain (See above for address) ATTORNEY TO BE NOTICED
As of: 06/10/2009 09:47 AM CDT 7 of 39

Suzanne Michelle (See above for address) TERMINATED: 02/21/2002

Plaintiff Lakersko Brown

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

Plaintiff Katie Blackburn

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

Plaintiff Matthew McGowan

represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-665

Gary D. Housepian (See above for address)
As of: 06/10/2009 09:47 AM CDT 8 of 39

Plaintiff Shalyn Kiker
Plaintiff Disability Law and Advocacy Center of Tennessee

TERMINATED: 08/21/2007
represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary D. Housepian (See above for address) TERMINATED: 08/21/2007
represented by Kent Ellis Krause (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha M. Lafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary D. Housepian (See above for address) TERMINATED: 08/21/2007

V.
Defendant
Tennessee Department of Mental Health and Developmental Disabilities, The TERMINATED: 09/11/2000

represented by Dianne Stamey Dycus Tennessee Attorney General's Office P O Box 20207 Nashville , TN 37202 (615) 741−6420 Email: dianne.dycus@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. Cooper Cooper &Kirk 1523 New Hampshire Avenue, NW Washington , DC 20036 (202) 220−9600 Email: ccooper@cooperkirk.com

Defendant

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 9 of 39

Elisabeth Rukeyser Commissioner of the TN Department of Mental Health and Developmental Disabilities TERMINATED: 09/11/2000 Defendant Finance &Administration, Tennessee Department of
Defendant Warren C. Neel Commissioner of Tennessee Department of Finance and Administration

represented by Charles J. Cooper (See above for address)
represented by Dianne Stamey Dycus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Stuart Koukoutchos Cooper &Kirk 1523 New Hampshire Avenue, NW Washington , DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: bkoukoutchos@cooperkirk.com ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED
Michael W. Kirk Cooper &Kirk 1523 New Hampshire Avenue, NW Washington , DC 20036 (202) 220−9600 Email: mkirk@cooperkirk.com ATTORNEY TO BE NOTICED
represented by Dianne Stamey Dycus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
Community Rehabilitation Agencies of Tennessee

represented by William Matthew Barrick Hubbard, Berry, Doughty, Harris &Barrick, PLLC SunTrust Bank Building 201 Fourth Avenue, N Sutie 1420 Nashville , TN 37219 (615) 251−5444 Email: wbarrick@hubbardberry.com

William Beesley Hubbard Hubbard, Berry &Harris, PLLC SunTrust Bank Building 201 Fourth Avenue, N Suite 1420 Nashville , TN 37219

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 10 of 39

Date Filed 07/13/2000 07/13/2000 08/08/2000 08/08/2000 08/14/2000 08/15/2000 08/24/2000
08/24/2000
08/24/2000 09/06/2000 09/11/2000
09/19/2000 09/19/2000 10/02/2000

(615) 251−5444 Email: whubbard@hubbardberry.com ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT (Summons(es) issued) Filing fee paid in the amount of : $150 Receipt # 75017 (dcap) (Entered: 07/13/2000)

2 NOTICE of Initial Case Management Conference Case referred to Magistrate Judge E. C. Knowles , ; Case Management Conference set for 9:30 a.m. on 8/24/00 (dcap) (Entered: 07/13/2000)

ATTORNEY APPEARANCE for deft Mental Health &Dev by Dianne Stamey Dycus per signature on agreed order. (dlt) Modified on 08/08/2000 (Entered: 08/08/2000)

PROPOSED Agreed Order re: defts shall have until 9/25/00 in which to respond to the complaint in this matter. (dlt) (Entered: 08/08/2000)

3 AGREED ORDER by Magistrate Judge E. C. Knowles; The defts may have an additional 45 days until 9/25/00 in which to respond to the complaint [1−1]. (cc: all counsel) (EOD 8/15/00) (jb) (Entered: 08/15/2000)

4 ATTORNEY APPEARANCE for pltfs by Suzanne Michelle. (dlt) (Entered: 08/17/2000)

5 CLERK'S RESUME: Case Management Conference held on 8/24/00. Discovery will not be stayed, but will be limited to discoery on the issue of class certification. Parties are to pursue mediation, and have agreed to a settlement conference in approximately 90 days. CMO to enter. C/R : Tape No. 2000−2007 (dlt) (Entered: 08/24/2000)

6 JOINT CASE MANAGEMENT ORDER by Magistrate Judge E. C. Knowles: Discovery ddl set for 11/1/00; Settlement conference will be scheduled approximately 90 days after entry of the CMO; Pltf will file a mtn for class certification and a brief in support of the mtn on 11/15/00. Defts will file briefs in response on 12/1/00. EOD 8/24/00 (cc: all counsel) (dlt) (Entered: 08/24/2000)

7 ATTORNEY APPEARANCE for pltfs by Kent Ellis Krause and Parks T. Chastain of Brewer, Krause &Brooks. (dlt) (Entered: 08/25/2000)

PROPOSED Agreed Order re: substitution of defts. (dlt) (Entered: 09/07/2000)

8 ORDER by Magistrate Judge E. C. Knowles: Tennessee Department of Finance and Administration and Dr. Warren C. Neel, Commissioner of the Tennessee Department of Finance and Administration are hereby substituted as the defts in this matter. EOD 9/11/00 (cc: all counsel) (dlt) (Entered: 09/11/2000)

9 NOTICE by pltfs of filing first amended complaint (tlc) (Entered: 09/20/2000)

10 FIRST AMENDED COMPLAINT [1−1] by pltfs (amended to substitute the Dept of Finance and Administration and Warren C. Neel as defts, to add a cause of action under 42 USC Section 1983 and a prayer for preliminary injunction (tlc) (Entered: 09/20/2000)

PROPOSED Order re: joint case management order amended. (dlt) (Entered: 10/03/2000)

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 11 of 39

10/05/2000 10/11/2000
11/13/2000 11/13/2000 11/13/2000 11/13/2000 11/13/2000 11/22/2000 11/29/2000 11/29/2000 12/01/2000 12/01/2000
12/01/2000
12/01/2000 12/08/2000 12/12/2000

11 ANSWER by defts TN Dept of Finance and Warren C. Neel to first amended complaint [10−1]. (dlt) (Entered: 10/06/2000)
12 ORDER by Magistrate Judge E. C. Knowles: Joint CMO shall be amended as follows: defts shall present a settlement proposal to the pltfs by 11/15/00; pltfs shall have until 12/1/00, in which to file a mtn for class certification; defts will file briefs in response by 12/15/00. EOD 10/11/00 (cc: all counsel) (dlt) (Entered: 10/11/2000)
13 MOTION to intervene as pltf of the Community Rehabilitation Agencies of Tennessee . (w/ attached exhibits A−C and complaint in intervention) (dlt) Modified on 11/14/2000 (Entered: 11/14/2000)
14 AFFIDAVIT of Robin Atwood re [13−1] (dlt) (Entered: 11/14/2000)
15 AFFIDAVIT of Mike Cook re [13−1]. (w/ attachments) (dlt) (Entered: 11/14/2000)
16 AFFIDAVIT of Walter Hunt re [13−1]. (w/ attachment) (dlt) (Entered: 11/14/2000)
17 MEMORANDUM by intevenor pltf Community Rehab Agen in support of motion to intervene as pltf of the Community Rehabilitation Agencies of Tennessee [13−1]. (dlt) (Entered: 11/14/2000)
PROPOSED Agreed Order for additional time until 12/20/00 to respond to motion to intervene. (dlt) (Entered: 11/29/2000)
18 RESPONSE by defts TN Department of Finance and Warren C. Neel to motion to intervene as pltf of the Community Rehabilitation Agencies of Tennessee [13−1]. (dlt) (Entered: 11/30/2000)
19 ORDER by Magistrate Judge E. C. Knowles: Pltf shall have until 12/20/00 to file a response to motion to intervene as pltf of the Community Rehabilitation Agencies of Tennessee [13−1]. EOD 11/30/00 (cc: all counsel) (dlt) (Entered: 11/30/2000)
20 MOTION by pltfs Keith Greenwald, Carol Greenwald, Shane Mitchell, Arlie Mitchell, Derrick Vartan, Nancy Vartan, Katherine Wilcox, Dora Wilcox, and TN Protection to certify this case as a class action . (dlt) (Entered: 12/04/2000)
21 MEMORANDUM by pltfs Keith Greenwald, Carol Greenwald, Shane Mitchell, Arlie Mitchell, Derrick Vartan, Nancy Vartan, Katherine Wilcox, Dora Wilcox, TN Protection in support of motion to certify this case as a class action [20−1] (dlt) (Entered: 12/04/2000)
22 NOTICE by pltfs Keith Greenwald, Carol Greenwald, Shane Mitchell, Arlie Mitchell, Derrick Vartan, Nancy Vartan, Katherine Wilcox, Dora Wilcox, TN Protection of filing of documents in support of mtn for class certification. (w/ attached exhibits 1−10) (dlt) (Entered: 12/04/2000)
23 STIPULATIONS of the parties w/ respect to class certification issues [20−1]. (dlt) (Entered: 12/04/2000)
24 RESPONSE by defts to motion to certify this case as a class action [20−1]. (dlt) (Entered: 12/11/2000)
25 MOTION by intevenor pltf Community Rehab Agen for additional time to reply to response to mtn to intervene . (dlt) (Entered: 12/12/2000)

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 12 of 39

12/20/2000

26 RESPONSE by pltfs to motion to intervene by Community Rehabilitation Agencies of Tennessee [13−1]. (dlt) (Entered: 12/21/2000)

12/28/2000

27 AMENDED MOTION by intevenor pltf Community Rehab Agen for additional time until 1/9/01 to reply to response to motion to intervene (jb) (Entered: 12/29/2000)

01/03/2001

28 ORDER by Magistrate Judge E. C. Knowles granting motion for additional time to reply to response to mtn to [25−1]. EOD 1/4/01 (cc: all counsel) (dlt) (Entered: 01/04/2001)

01/09/2001

29 REPLY (Response) by intevenor pltf Community Rehab Agen to response to motion to intervene as pltf of the Community Rehabilitation Agencies of Tennessee [13−1] (dlt) (Entered: 01/10/2001)

01/31/2001

30 MOTION by intevenor pltf Community Rehab Agen of proposed intervenor CMRA to participate in settlement discussions . (w/ attached exhibit A) (dlt) (Entered: 02/01/2001)

01/31/2001

31 AFFIDAVIT of Robin L. Atwood re [30−1]. (w/ attached exhibit 1) (dlt) (Entered: 02/01/2001)

02/06/2001

32 RESPONSE by intevenor pltf Community Rehab Agen to motion of proposed intervenor CMRA to participate in settlement discussions [30−1]. (dlt) (Entered: 02/07/2001)

02/08/2001

33 RESPONSE by pltfs to motion of proposed intervenor CMRA to participate in settlement discussions [30−1]. (dlt) (Entered: 02/09/2001)

02/21/2001

34 ORDER by Magistrate Judge E. C. Knowles denying motion to intervene as pltf of the Community Rehabilitation Agencies of Tennessee [13−1]; finding the motion of proposed intervenor CMRA to participate in settlement discussions [30−1] moot.; finding the motion for additional time until 1/9/01 to reply to response to motion to intervene [27−1] moot. EOD 2/21/01 (cc: all counsel) (dlt) (Entered: 02/21/2001)

03/05/2001

35 OBJECTIONS by intevenor pltf Community Rehab Agen to Order [34−1]. (dlt) (Entered: 03/06/2001)

03/05/2001

36 APPENDIX filed by intevenor pltf Community Rehab Agen in support of objection to the Order of the Mag. Judge denying intervention [35−1]. (w/ attached exhibits 1−3) (dlt) (Entered: 03/06/2001)

03/15/2001

37 RESPONSE by defts to objections to Mag. Judge's order denying intervention [35−1] (tlc) (Entered: 03/16/2001)

03/20/2001

38 RESPONSE by pltfs to objection to Mag Judge's Order denying intervention [35−1]. (dlt) (Entered: 03/21/2001)

04/11/2001

39 SUPPLEMENT by intevenor pltf Community Rehab Agen to objection to the Order of the Magistrate Judge denying intervention [35−1]. (dlt) (Entered: 04/12/2001)

04/16/2001

40 MOTION by pltfs for ascertain status of mtn for class certification . (w/ att'd exhibit 1) (dlt) (Entered: 04/17/2001)

04/30/2001

41 ORDER by Judge Robert L. Echols granting motion to certify this case as a class action [20−1]. Motion for ascertain status of mtn for class certification [40−1] is deemed moot. Pltfs are directed to file w/ the Court a proposed ntc &a proposed consent form by the close of business on 5/4/01. Defts are directed to disclose to pltfs, by 5/15/01, the names and last known mailing addresses of all persons who meet the criteria for class certification. EOD 5/1/01 (cc: all counsel) (dlt) (Entered: 05/01/2001)

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 13 of 39

05/04/2001 05/04/2001 05/09/2001 05/09/2001 05/09/2001 05/15/2001 06/12/2001 01/25/2002 02/19/2002 03/31/2002 03/31/2002
04/12/2002
04/24/2002 04/26/2002

42 MOTION by pltfs to alter and amend Court Order dated 5/1/01 , and to establish "OPT OUT" requirements for class as opposed to consent to participate requirements . (w/ att'd exhibit 1) (dlt) (Entered: 05/07/2001)
43 NOTICE by pltfs of filing of proposed ntc and consent forms pursuant to order of 5/1/01. (w/ attachments) (dlt) (Entered: 05/07/2001)
44 MOTION by defts TN Dept of Finance and Warren C. Neel to reconsider Order granting pltfs' mtn for class certification . (dlt) (Entered: 05/10/2001)
44 OBJECTIONS by defts to [43−1] in the alternative of mtn to reconsider. (contained w/in same pleading as the mtn to reconsider) (dlt) (Entered: 05/10/2001)
45 MEMORANDUM by defts in support of motion to reconsider [44−1] or, in the alternative, objection to proposed ntc [44−1]. (dlt) (Entered: 05/10/2001)
46 RESPONSE by pltf to motion to reconsider Order granting pltfs' mtn for class certification [44−1]. (dlt) (Entered: 05/16/2001)
47 MOTION by intevenor pltf Community Rehab Agen for order placing counsel for CMRA on the service list . (dlt) (Entered: 06/13/2001)
48 MOTION by pltfs for an order granting permission to substitute attorney J. Page Garrett for Gary D. Buchanan . (dlt) (Entered: 01/28/2002)
49 ORDER by Judge Robert L. Echols granting motion for an order granting permission to substitute attorney J. Page Garrett for Gary D. Buchanan [48−1] attorney for the pltfs. EOD 2/20/02 (cc: all counsel) (dlt) (Entered: 02/20/2002)
50 MEMORANDUM OF THE COURT (cc: all counsel) (EOD 4/2/02) (dlt) (Entered: 04/02/2002)
51 ORDER by Judge Robert L. Echols: For reasons explained in the Memorandum entered contemporaneously herewith, the Court rules as follows: CMRA's Objection to the Order of the Magistrate Judge denying intervention and request for the Court to set aside the Order [35−1] is denied. Pltfs' motion to alter [42−1] or amend [42−2], [42−3] is denied. Defts' motion to reconsider [44−1] is granted. Court's Order [41−1] entered 5/1/01, is modified insofar as pltfs shall not be required to file a proposed ntc &consent form w/ the Court. Further, as this class has been certified under Rule 23(b)(2), class members have no absolute right to opt−out. CMRA's motion for order placing counsel for CMRA on the service list [47−1] is denied as moot. Case referred to Magistrate Judge E. C. Knowles to immediately schedule a CMC. EOD 4/2/02 (cc: all counsel) (dlt) (Entered: 04/02/2002)
52 ORDER by Magistrate Judge E. C. Knowles: Case Management Conference set for 10:30 a.m. on 4/25/02 . Prior to the hearing, counsel for the parties are directed to confer on a proposed amended CMO, which shall be submitted prior to the CMC. EOD 4/12/02 (cc: all counsel) (dlt) (Entered: 04/12/2002)
53 ATTORNEY APPEARANCE for pltfs by Gary D. Housepian (dlt) (Entered: 04/24/2002)
PROPOSED Agreed Order to reset case management conference. (dlt) (Entered: 04/29/2002)

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04/30/2002 05/07/2002
05/15/2002 05/16/2002 05/16/2002 05/20/2002
06/19/2002 06/27/2002
07/08/2002 07/09/2002 08/28/2002

54 AGREED ORDER by Magistrate Judge E. C. Knowles: Case Management Conference reset for 11:00 a.m. on 5/16/02 . EOD 5/1/02 (cc: all counsel) (dlt) (Entered: 05/01/2002)
55 ORDER by Judge Robert L. Echols: By Memorandum &Order entered 3/31/02in 3:01−0272, pltfs' mtn to consolidate was granted, and was consolidated for pretrial and discovery purposes w/ 3:00−0665. After discovery has concluded, the Court will determine whether these cases should be consolidated for trial. As the case are not consolidated for trial purposes at this time, all pleadings filed in each case shall retain the caption &case # of that case &shall be filed only in the case to which each pleading pertains. EOD 5/7/02 (cc: all counsel) (dlt) (Entered: 05/07/2002)
PROPOSED Amended Case Management Order (gi) (Entered: 05/15/2002)
56 CLERK'S RESUME: Case Management Conference held 5/16/02. Proposed amended case management order submitted. Dispositive mtn ddl is 1/13/03; non−jury trial set for 5/27/03 before Judge Echols; order to enter. Settlement conference set before Magistrate Judge Knowles on 7/9/02; order to enter. C/R: Tape No. 2002−33 MK (gi) (Entered: 05/17/2002)
57 AMENDED CASE MANAGEMENT ORDER by Magistrate Judge E. C. Knowles: Fact discovery to be completed by 12/2/02; dispositive mtn filing ddl is 1/13/03. Non−jury trial set for 9:00 on 5/27/03 before Chief Judge Echols. EOD 5/17/02 (cc: all counsel) (gi) (Entered: 05/17/2002)
58 ORDER by Magistrate Judge E. C. Knowles: Settlement conference set for 9:30 a.m. on 7/9/02 . By noon on 7/5/02, pltf and deft shall deliver under seal ex parte separte settlement conference stmts which shall specify their respective settlement positions. Parties shall exchange offers and demands prior to the settlement conference. EOD 5/20/02 (cc: all counsel) (dlt) (Entered: 05/20/2002)
59 ORDER by Judge Robert L. Echols: Non−jury trial set for 9:00 on 5/27/03; pretrial conference set 1:00 on 4/28/03; pretrial order ddl 4/23/03 . Parties shall also file by 6/23/03, the following: witness lists; exhibit lists; &stipulations. By 6/14/03, parties shall file any mtns in limine &any mtns objecting to expert testimony. EOD 6/19/02 (cc: all counsel) (dlt) (Entered: 06/19/2002)
60 ORDER by Judge Robert L. Echols: Order entered 6/19/02 is modified to reflect the following: Parties shall file by 4/23/03, the following: witness lists, exhibit lists, &stipulations. By 4/14/03, parties shall file any mtns in limine &any mtns objecting to expert testimony. Responses to such mtns shall be filed on 4/23/03. In all other respects, the Order (DE# 59) shall remain in full force &effect. EOD 6/28/02 (cc: all counsel) (dlt) (Entered: 06/28/2002)
PROPOSED Agreed Order to reset settlement conference. (dlt) (Entered: 07/09/2002)
61 ORDER by Magistrate Judge E. C. Knowles: Settlement conference reset for 9:30 a.m. on 9/13/02 . EOD 7/10/02 (cc: all counsel) (dlt) (Entered: 07/10/2002)
62 ORDER by Magistrate Judge E. C. Knowles: Settlement conference set for 9:30 a.m. on 9/13/02 . By noon on 9/11/02, pltf &deft shall deliver under seal, ex parte, separate settlement conference stmts which shall specify their respective settlement positions. EOD 8/29/02 (cc: all counsel) (dlt) (Entered: 08/29/2002)

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09/13/2002
09/27/2002 10/10/2002 12/02/2002 12/04/2002
02/18/2003 02/18/2003
02/18/2003 02/18/2003 02/18/2003 02/18/2003
02/25/2003 02/26/2003 02/26/2003 02/26/2003
02/26/2003 02/26/2003 02/26/2003

63 CLERK'S RESUME: Settlement conference held on 9/13/02 . Parties were unable to reach a settlement agreement at this time; however, parties will continue to talk, &plan to meet informally again on 10/1/02. Parties will contact the Court if further settlement assistance is needed. C/R : (dlt) (Entered: 09/17/2002)
64 MOTION by pltfs for J. Page Garrett to withdraw as attorney in this case . (dlt) (Entered: 09/30/2002)
65 ORDER by Magistrate Judge E. C. Knowles granting motion for J. Page Garrett to withdraw as attorney in this case [64−1] for pltfs. EOD 10/11/02 (cc: all counsel) (dlt) (Entered: 10/11/2002)
PROPOSED Joint Amended Case Management Order (dlt) (Entered: 12/02/2002)
66 JOINT AMENDED CASE MANAGEMENT ORDER by Magistrate Judge E. C. Knowles: Fact discovery to be completed by 1/3/03. Expert witnesses to be deposed by 2/17/03. Dispositive mtn filing ddl is 2/18/03. EOD 12/4/02 (cc: all counsel) (gi) (Entered: 12/04/2002)
67 MOTION by pltfs for summary judgment (w/proposed order) (gi) (Entered: 02/19/2003)
68 MOTION by pltfs for leave to file memorandum in excess of 25 pages (w/attached memorandum in support of mtn for summary judgment, statement of uncontested material facts, ntc of filing of documents 1−14 &proposed order) (gi) (Entered: 02/19/2003)
69 MOTION by deft TN Dept of Finance for summary judgment . (dlt) (Entered: 02/19/2003)
70 MEMORANDUM by deft TN Dept of Finance in support of motion for summary judgment [69−1]. (w/ attachment) (dlt) (Entered: 02/19/2003)
71 STATEMENT of undisputed material facts by deft TN Dept of Finance in support of [69−1]. (dlt) (Entered: 02/19/2003)
72 NOTICE by deft TN Dept of Finance of filing documents in support of their mtn for summary judgment. (w/ att'd copy depositions Damons, Dungan, Martins, &Tighe) (dlt) (Entered: 02/19/2003)
73 ORDER by Magistrate Judge E. C. Knowles granting motion for leave to file memorandum in excess of 25 pages [68−1]. EOD 2/26/03 (cc: all counsel) (gi) (Entered: 02/26/2003)
74 MEMORANDUM by pltfs in support of motion for summary judgment [67−1] (gi) (Entered: 02/26/2003)
75 STATEMENT of uncontested material facts by pltfs in support of [67−1] (gi) (Entered: 02/26/2003)
76 JOINT NOTICE by pltfs of filing of documents (1−14) in support of mtns for summary judgment in civil action nos. 3:00−0665 and 3:01−0272 (documents 1−14 are filed in this case) (gi) (Entered: 02/26/2003)
77 DEPOSITION of Joanna Damons taken on the following date(s): 11/14/02 (gi) (Entered: 02/26/2003)
78 DEPOSITION of Joanna Damons (Volume II) taken on the following date(s): 12/18/02 (gi) (Entered: 02/26/2003)
79 DEPOSITION of Kathleen Dungan taken on the following date(s): 12/3/02 (gi) (Entered: 02/26/2003)

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02/26/2003 02/26/2003 02/26/2003 02/26/2003 02/26/2003 02/26/2003 03/05/2003 03/07/2003
03/07/2003 03/10/2003
03/17/2003 03/17/2003 03/17/2003 03/17/2003
03/17/2003 03/17/2003 03/26/2003
03/31/2003 04/14/2003
04/23/2003 04/23/2003

80 DEPOSITION of Kathleen Dungan taken on the following date(s): 1/2/03 (gi) (Entered: 02/26/2003)
81 DEPOSITION of Richard kellogg taken on the following date(s): 11/26/02 (gi) (Entered: 02/26/2003)
82 DEPOSITION of Patti Killingsworth taken on the following date(s): 11/20/02 (gi) (Entered: 02/26/2003)
83 DEPOSITION of Patti Killingworth (Volume II) taken on the following date(s): 12/11/02 (gi) (Entered: 02/26/2003)
84 DEPOSITION of Manny Martins taken on the following date(s): 11/21/02 (gi) (Entered: 02/26/2003)
85 DEPOSITION of John Tighe taken on the following date(s): 12/30/02 (gi) (Entered: 02/26/2003)
PROPOSED Agreed Order for submission of response and replies to mtns for summary judgment. (dlt) (Entered: 03/06/2003)
86 AGREED ORDER by Judge Robert L. Echols: Ddl to file a response to mtns for summary judgment [67−1] and [69−1] is 3/17/03; ddl to file a reply is 3/31/03. EOD 3/10/03 (cc: all counsel) (gi) (Entered: 03/10/2003)
PROPOSED Agreed Order for submission of responses and replies to motions for summary judgment (ot) (Entered: 03/11/2003)
87 AGREED ORDER by Judge Robert L. Echols: Parties shall have until 3/17/03 w/in which to file responses to motions for summary judgment [69−1] [67−1]. Replies shall be filed by 3/31/03. EOD 3/11/03 (cc: all counsel) (dlt) (Entered: 03/11/2003)
88 RESPONSE &MEMORANDUM by pltfs to motion for summary judgment [69−1]. (w/ attachments) (dlt) (Entered: 03/18/2003)
89 RESPONSE IN OPPOSITION by defts to motion for summary judgment [67−1]. (w/ attachments) (dlt) (Entered: 03/18/2003)
90 RESPONSE by defts to pltf's stmt of uncontested material facts [75−1]. (dlt) (Entered: 03/18/2003)
91 NOTICE by defts of filing documents in support of response in opposition to pltfs' mtn for summary judgment: Damons &Dungan Declarations. (w/ att'd declarations) (dlt) (Entered: 03/18/2003)
92 DECLARATION of Kathleen Dungan by defts in support of [89−1]. (dlt) (Entered: 03/18/2003)
93 RESPONSE by pltfs to defts' stmt of undisputed material facts [75−1]. (dlt) (Entered: 03/18/2003)
94 NOTICE by defts of filing documents in support of their response in opposition to pltfs' mtn for summary judgment. (w/ attachments) (dlt) (Entered: 03/27/2003)
95 REPLY by pltfs to response to motion for summary judgment [67−1]. (dlt) (Entered: 04/01/2003)
96 ORDER by Magistrate Judge E. C. Knowles: Court has been advised that the parties are ready for trial, &that there is no need for further case management proceedings before the Magistrate Judge. Clerk is directed to forward this file to Judge Echols. EOD 4/15/03 (cc: all counsel) (dlt) (Entered: 04/15/2003)
JOINT PROPOSED Pretrial Order (dlt) (Entered: 04/23/2003)
97 STIPULATIONS by parties re: health care (dlt) (Entered: 04/23/2003)

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04/23/2003

98 WITNESS/EXHIBIT list by pltfs (dlt) (Entered: 04/23/2003)

04/23/2003

99 WITNESS/EXHIBIT list by defts (dlt) (Entered: 04/24/2003)

04/24/2003

100 ORDER by Judge Robert L. Echols: Final pretrial conference reset for 1:00 p.m. on 5/2/03 . EOD 4/24/03 (cc: all counsel) (dlt) (Entered: 04/24/2003)

05/02/2003

101 CLERK'S RESUME: Final Pretrial conference held 5/2/03; Court is prepared to issue orders denying pending motions for summary jgm. Court proposed discussion of consolidating cases which are presently consolidated for discovery for trial. Trial time estimated 6−8 days. Court will contact mediator Norris and set up meeting at mutually convenient time. Parties to list top 5 priorities for relief in preparation for this meeting. Trial date will probably be continued with the understanding that trial could be reset to the end of Sept. or mid November. C/R : Cathy Leigh (ot) (Entered: 05/05/2003)

05/07/2003

102 MEMORANDUM OF THE COURT (cc: all counsel) (EOD 5/7/03) (dlt) (Entered: 05/07/2003)

05/07/2003

103 ORDER by Judge Robert L. Echols: Presently pending before the Court are defts' motion for summary judgment [69−1] &pltf's motion for summary judgment [67−1]. For the reasons explained in the Memorandum entered contemporaneously, both mtns are denied. EOD 5/7/03 (cc: all counsel) (dlt) (Entered: 05/07/2003)

05/16/2003

104 TRANSCRIPT filed of proceedings held before Judge Echols on 5/2/03. C/R: Cathy Leigh (dlt) (Entered: 05/19/2003)

06/04/2003

105 ORDER by Judge Robert L. Echols: Court has contacted Mr. Steve Norris who is willing to serve as mediator in this case. A meeting is set for 6/16/03 at 9:00 a.m. for all counsel to meet w/ Mr. Norris &discuss his participation in this case. This case is administratively closed pending the outcome of mediation proceedings. Parties are directed not to file any further mtns. Parties are directed to submit a report on the status of mediation by 9/1/03. If the case is not successfully mediated, it will be reopened &the trial will commence on 11/17/03; terminating case . EOD 6/4/03 (cc: all counsel) (dlt) (Entered: 06/04/2003)

09/22/2003

106 ORDER by Judge Robert L. Echols: Status conference set for 11:00 a.m. on 10/6/03 . EOD 9/22/03 (cc: all counsel, Steve Norris) (dlt) Modified on 09/22/2003 (Entered: 09/22/2003)

10/06/2003

107 CLERK'S RESUME: Status conference held on 10/6/03 . Parties announced they have almost reached settlements in these cases; it was suggested that the parties continue efforts to settle &not focus on the suggested trial date of 11/17/03. Court approved the request. Parties given 30 days to resolve the issue of defining reasonable promptness. Deft then has 30 days to obtain settlement approval. W/in the second 30−day period, the parties should submit the proposed ntc for a fairness hearing to the Court. Proposed trial date: 5/18/04. C/R: Cathy Leigh (dlt) (Entered: 10/14/2003)

12/17/2003

PROPOSED Stipulation of Settlements and Order of Provisional Approval of Settlement Agreements (w/attached exhibits A−C)(Exhibit A−Settlement Agreement in 3:00−0665; Exhibit B−Settlement Agreement in 3:01−0272; Exhibit C−Ntc of Proposed Settlements of Class Action Lawsuits in both actions) (gi) (Entered: 01/07/2004)

01/27/2004

108 STIPULATION OF SETTLEMENTS and ORDER OF PROVISIONAL APPROVAL OF SETTLEMENT AGREEMENTS by Judge Robert L. Echols: The form of ntc att'd hereto as Exhibit C is hereby approved. W/in 7 days following entry of this Order, State of Tennessee shall furnish to counsel for the other parties an electronic file containing the names &last

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03/03/2004 03/12/2004 03/19/2004 03/31/2004 04/01/2004 04/02/2004 04/12/2004
04/20/2004 06/17/2004
08/30/2004 09/20/2004 09/27/2004
09/28/2004

known addresses of the individuals. W/in 14 days of the entry of this Order, the State will send the ntc of proposed class action settlement att'd hereto as Exhibit C to all individuals. Class members shall have 10 days prior to the date of the Fairness hearing to file written objections to the proposed settlement. Fairness hearing set for 1:30 p.m. on 4/12/04 . Any objections to the final approval of the settlement agreements must be filed w/ the Clerk's office 10 days prior to the fairness hearing. (w/ att'd exhibits A Settlement Agreement, B Settlement Agreement, C Ntc of Proposed Settlements of Class Action Lawsuits) (EOD 2/6/04) (cc: all counsel) (dlt) (Entered: 02/06/2004)
109 LETTER from Cynthia Trantham re: her daughter's care in a group home. (dlt) (Entered: 03/16/2004)
110 LETTER from Connie Johnson re: Fairness hearing. (dlt) (Entered: 03/16/2004)
111 LETTER from Deborah J. Cooper re: Her son Jack Cooper needing mental healthcare services. Ms. Cooper requesting a copy of the proposed settlement agreement. (xc: copy clerk) (dlt) (Entered: 03/22/2004)
112 LETTER from Nancy Vanderlan re: the proposed settlement agreement. (dlt) (Entered: 04/01/2004)
113 LETTER from Shirley Rutland to the Clerk's office re: ntc of proposed settlement. (dlt) (Entered: 04/05/2004)
114 LETTER (facsimile) from Andrea A. White to the Clerk of Court re: proposed settlement (original received 4/5/04) (dlt) Modified on 04/06/2004 (Entered: 04/05/2004)
115 CLERK'S RESUME: Fairness hearing held on 4/12/04 . Pltf's Witnesses: Nancy Vartan, Carol Greenwald, Carol Westlake. Pltf's exhibit 1: afdt of Carol Westlake. The Court is inclined to approve the proposed settlement in this case; order to enter. After the hearing, counsel for pltf was directed to submit a proposed final settlement order. C/R: Cathy Leigh. (w/ attachments) (dlt) (Entered: 04/15/2004)
PROPOSED Agreed Order re: settlement agreement. (w/ att'd exhibit A) (dlt) (Entered: 04/20/2004)
116 AGREED ORDER by Judge Robert L. Echols: Settlement Agreement as attached as exhibit A is approved. Deft shall pay pltfs' reasonalbe attorney fees. pltfs shall submit their application for a fee award for legal services rendered to date w/in 45 days of the entry of this order. EOD 6/17/04 (cc: all counsel) (dlt) (Entered: 06/17/2004)
PROPOSED Agreed Order for extension of time to apply for atty fees. (hv) (Entered: 08/31/2004)
PROPOSED Order for award of atty fees &expenses. (hv) (Entered: 09/20/2004)
117 AGREED ORDER by Judge Robert L. Echols for attorney fees &expenses in the amount of $377,132.49 to be awarded to Beth Brown, et al. to be paid by the State of TN for the time period of 7/13/00 to 6/17/04. (cc: all counsel) EOD 9/27/04 (hv) (Entered: 09/27/2004)
118 ORDER by Judge Robert L. Echols extending time until 11/1/04 for the pltfs to submit an application for atty fees (cc: all counsel) EOD 9/28/04 (hv) (Entered: 09/28/2004)

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02/17/2005

119 JOINT MOTION by parties for attorney fees and expenses (w/attached proposed agreed order) (km) (Entered: 02/17/2005)

02/24/2005

120 ORDER by Judge Robert L. Echols granting motion for attorney fees and expenses [119−1]. Pltfs Beth Brown, et al. are awarded attorneys fees and litigation expenses in the amount of $54,173.23 to be paid by the State of Tennessee. This award shall be in satisfaction of all hours expended and costs incurred in connection w/ the work of pltfs' counsel during the period from 6/18/04 − 12/31/04. EOD 2/25/05 (cc: all counsel) (dlt) (Entered: 02/25/2005)

06/09/2005

121 JOINT MOTION by pltfs for attorney fees and expenses to counsel for the pltfs (with attached proposed order) (hv) (Entered: 06/09/2005)

06/16/2005

122 ORDER by Judge Robert L. Echols granting motion for attorney fees and expenses to counsel for the pltfs [121−1]. Pltfs Beth Brown, et al. are awarded attorneys fees and litigation expenses in the amount of $11,050.00 to be paid by the State of Tennessee. This award shall be in statisfaction of all hours expended and costs incurred in connection w/ the work pltfs' counsel during the period from 1/1/05 through 3/31/05. EOD 6/16/05 (cc: all counsel) (dlt) (Entered: 06/16/2005)

08/29/2005

123 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 9/15/2005 (Attachments: # 1 Text of Proposed Order)(Krause, Kent) (Entered: 08/29/2005)

09/30/2005

124 ORDER granting 123 Joint Motion for Attorney Fees. Plaintiffs are awarded attorneys fees and litigation expenses in the amount of $55,170.15 to be paid by the State of Tennessee. Signed by Judge Robert Echols on 9/30/05. (dt) (Entered: 10/03/2005)

01/31/2006

125 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 2/17/2006 (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 01/31/2006)

02/13/2006

126 AGREED ORDER: Pltfs Beth Brown, et al. are awarded attys fees and litigation expenses in the amount of $15,760.55 to be paid by the State of Tennessee . Signed by Judge Robert Echols on 2/9/06. (km, ) (Entered: 02/14/2006)

02/21/2006

127 Mail Returned as Undeliverable. 126 Order on Motion for Attorney Fees. Mail sent to Suzanne Michelle; envelope marked return to sender unable to forward. (dt) (Entered: 02/23/2006)

04/06/2006

128 Joint MOTION for Attorney Fees by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 4/24/2006 (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 04/06/2006)

04/13/2006

129 ORDER granting 128 Motion for Attorney Fees. Plaintiffs are awarded attorneys fees and litigation expenses in the amount of $41,460.52 to be paid by the State of Tennessee. This award shall be in satisfaction of all hours expended and costs incurred in connection with the work of Plaintiffs' counsel during the period

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from 10/1/05 through 12/31/05. Signed by Judge Robert Echols on 4/12/06. (dt) (Entered: 04/13/2006)

04/28/2006

130 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 5/15/2006 (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 04/28/2006)

05/05/2006

131 AGREED ORDER FOR AWARD OF ATTORNEYS FEES AND EXPENSES re 130 : The pltfs Beth Brown, et al., are awarded attorneys fees and litigation expenses in the amount of $28,975.83 to be paid by the State of Tennessee. This award shall be in satisfaction of all hours expended and costs incurred in connection with the work of pltfs' counsel during the period from 1/1/06 through 3/31/06. Signed by Judge Robert Echols on 5/5/06. (jb) (Entered: 05/05/2006)

06/02/2006

132 MOTION for Mediation Conference with the Magistrate Judge and for a Trial Date in case an Impasse is Declared by the Magistrate by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 6/19/2006 (Krause, Kent) (Entered: 06/02/2006)

06/12/2006

133 RESPONSE to Motion re 132 MOTION for Mediation Conference with the Magistrate Judge and for a Trial Date in case an Impasse is Declared by the Magistrate filed by Finance &Administration, Tennessee Department of. (Dycus, Dianne) (Entered: 06/12/2006)

07/17/2006

134 ORDER: As this case is administratively closed, the Motion for Mediation Conference with the Magistrate Judge and for a Trial Date in case an Impasse is Declared by the Magistrate 132 is Granted in that the case is REFERRED to the Magistrate Judge E. Clifton Knowles for expedited mediation and recommendation to the Court as to whether the case should be reopened and a trial date set. A separate Order will be entered by the Magistrate Judge setting forth the date of the hearing and any requirements of the parties prior to the hearing. The case shall remain administratively closed, and the parties shall not file any further pleadings without leave of Court. Signed by Judge Robert Echols on 7/17/06. (dt, ) (Entered: 07/17/2006)

08/22/2006

135 ORDER: The parties have requested a Settlement Conference. Settlement Conference is set for 9/20/2006 at 9:30 AM before Magistrate Judge E. Clifton Knowles. By noon on 9/18/06, Plaintiffs and Defendants shall deliver under seal, directly to Ms. Knoch, Courtroom Deputy to Magistrate Judge Knowles, ex parte, separate settlement conference statements which shall specify their respective settlement positions. Parties shall exchange offers and demands prior to the settlement conference. Signed by Judge E. Clifton Knowles on 8/22/06. (dt, ) (Entered: 08/22/2006)

08/29/2006

136 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. Responses due by 9/15/2006 (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 08/29/2006)

09/01/2006

137 AGREED ORDER FOR AN AWARD OF ATTORNEYS FEES AND EXPENSES: granting 136 Motion for Attorney Fees. Plaintiffs are awarded attorneys fees and litigation expenses in the

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09/20/2006 09/27/2006
09/28/2006 10/13/2006 10/16/2006 10/17/2006
10/19/2006 10/19/2006 10/30/2006 10/30/2006 10/31/2006

amount of $45,262.92 to be paid by the State of Tennessee. This award shall be in satisfaction of all hours expended and costs incurred in connection with the work of Plaintiffs' counsel during the period from 4/1/06 through 6/30/06. Signed by Judge Robert Echols on 8/31/06. (dt) (Entered: 09/01/2006)
Minute Entry for proceedings held before Judge E. Clifton Knowles : Settlement Conference held on 9/20/2006 The parties did not reach a settlement of the issues on this date. Parties to return on Wednesday, 9/27/06 @ 9:30 a.m. for further settlement conference proceedings. (Knoch, Marcia) (Entered: 09/20/2006)
Minute Entry for proceedings held before Judge E. Clifton Knowles : Further Settlement Conference proceedings held on 9/27/2006. Defendants to submit a written response to Plaintiff's latest settlement proposal. Parties to contact the Courtroom Deputy for a date in approximately two weeks for further proceedings. (Knoch, Marcia) (Entered: 09/27/2006)
138 ORDER: Further Settlement Conference is set for 10/13/2006 at 9:30 AM before Magistrate Judge E. Clifton Knowles. Signed by Judge E. Clifton Knowles on 9/28/06. (dt) (Entered: 09/28/2006)
Minute Entry for proceedings held before Judge E. Clifton Knowles : Further Settlement Conference proceedings held on 10/13/2006. Parties to call Courtroom Deputy to schedule further proceedings. (Knoch, Marcia) (Entered: 10/13/2006)
139 ORDER: Settlement Conference set for 10/31/2006 at 9:30 AM in Courtroom 661 before Magistrate Judge E. Clifton Knowles. Signed by Judge E. Clifton Knowles on 10/16/06. (dt) (Entered: 10/16/2006)
140 MOTION for Leave to to File Motion to Substitute Class Representatives by Nancy Vartan, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. (Attachments: # 1 Exhibit Proposed Motion to Substitute Class Representatives# 2 Proposed Order)(Krause, Kent) (Entered: 10/17/2006)
141 ORDER granting 140 Motion for Leave to File Motion for Substitution of Class Representatives. Clerk is directed to give Plaintiffs' Motion to Substitute Class Representatives a separate docket entry number. Signed by Judge Robert Echols on 10/19/06. (dt) Modified Text on 10/19/2006 (dt). (Entered: 10/19/2006)
142 MOTION to Substitute Class Representatives by Plaintiffs. (Attachments: # 1 Proposed Order)(dt) (Entered: 10/19/2006)
143 TRANSCRIPT prepared by OCR Cathy Leigh for Fairness Hearing held on 4/12/04 before Judge Echols.(This document is NOT available on−line. Contact the court reporter at 615−726−8697 to purchase a copy) (hv) (Entered: 10/30/2006)
144 TRANSCRIPT prepared by OCR Cathy Leigh for Proceedings held on 4/12/04 before Judge Echols.(This document is NOT available on−line. Contact the court reporter at 615−726−8697 to purchase a copy) (dt) (Entered: 11/03/2006)
Minute Entry for proceedings held before Judge E. Clifton Knowles : Settlement Conference held on 10/31/2006. Parties have tentatively agreed upon a proposal, which will be presented to State authorities. Parties will report progress to the Court on 11/13/06. (Knoch, Marcia) (Entered: 11/01/2006)

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12/04/2006

145 ORDER: Pursuant to Section VII of the Settlement Agreement quoted within this order, Magistrate Judge Knowles declares an impasse. Pursuant to Judge Echols' Order 134 , Magistrate Judge Knowles recommends that the case should be reopened and a trial date set. Signed by Judge E. Clifton Knowles on 12/4/06. (dt) (Entered: 12/04/2006)

12/04/2006

146 ORDER OF RECUSAL. Judge E. Clifton Knowles recused. Case reassigned to Judge John S. Bryant for further proceedings. Signed by Judge E. Clifton Knowles on 12/4/06. (dt) (Entered: 12/05/2006)

12/08/2006

147 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 12/08/2006)

12/19/2006

148 AGREED ORDER: Motion for Attorney Fees 147 is granted. Plaintiffs are awarded attorneys fees and litigation expenses in the amount of $46,861.45 to be paid by the State of Tennessee. This award shall be in satisfaction of all hours expended and costs incurred in connection with the work of Plaintiffs' counsel during the period from 7/1/06 through 9/30/06. Signed by Judge Robert Echols on 12/19/06. (dt) (Entered: 12/20/2006)

01/17/2007

149 AGREED ORDER SUBSTITUTING CLASS REPRESENTATIVES AND RENAMING TENNESSEE PROTECTION AND ADVOCACY: The parties have agreed that plaintiffs' Complaint may be amended to substitute Lakersko Brown, Katie Blackburn, Matthew McGowan, and Shalyn Kiker as class representatives in place of Beth Ann Brown, Keith Greenwald, Erin McNamara, Shane Mitchell, Derrick Vartan, and Kathryn Wilcox and to substitute Disability Law and Advocacy Center of Tennessee in place ofTennessee Protection and Advocacy, Inc. Signed by Judge Robert Echols on 1/17/07. (dt) (Entered: 01/17/2007)

01/18/2007

150 MOTION for Permission to File Motion for Modification of Settlement Agreement by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. (Attachments: # 1 Exhibit Exhibit 1 − Motion for Modification of Settlement Agreement# 2 Exhibit Exhibit 1 − Memorandum# 3 Exhibit Exhibit A to Motion − June 15, 2004 Settlement Agreement# 4 Exhibit Exhibit B May 2006 Monthly Report# 5 Exhibit Exhibit C − Nov 2006 Monthly Report# 6 Exhibit Exhibit D − June 5 2006 Letter# 7 Exhibit Exhibit E DMRS Policy# 8 Exhibit Exhibit F June 2006 Monthly Report)(Krause, Kent) (Entered: 01/18/2007)

01/19/2007

151 MOTION for Leave to File Accompanying Motions by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 01/19/2007)

01/19/2007

152 MOTION for attorney Charles J. Cooper to Appear Pro Hac Vice by Finance &Administration, Tennessee Department of. (Attachments: # 1 Exhibit Certificate of Good Standing)(Cooper, Charles) (PHV FEE NOT PAID) Modified Text on 1/22/2007 (dt). (Entered: 01/19/2007)

01/19/2007

153 MOTION for attorney Michael W. Kirk to Appear Pro Hac Vice by Finance &Administration, Tennessee Department of.

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02/05/2007

(Attachments: # 1 Exhibit Certificate of Good Standing)(Cooper, Charles) (PHV FEE PAID on 2/5/07) Modified Text on 1/22/2007 (dt). Modified Text on 2/5/2007 (dt). (Entered: 01/19/2007)
154 MOTION for Leave to File Excess Pages by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 01/19/2007)
155 MOTION to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 01/19/2007)
156 MEMORANDUM in Support of 155 MOTION to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case filed by Finance &Administration, Tennessee Department of. (Attachments: # 1 Exhibit Declaration of Stephen H. Norris)(Cooper, Charles) (Entered: 01/19/2007)
Note to Filer re DE# 152−156: These documents should have been filed as attachments to the Motion for Leave to File 151 , not as separate entries. Also, Signed declarations should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 01/22/2007)
157 ORDER: Clerk is directed to reopen this case and place it on the active docket. A Status Conference set for 2/5/2007 at 10:30 AM, at which time the parties should be prepared to discuss what, if any, discovery needs to be completed and a final trial date. Signed by Judge Robert Echols on 1/25/07. (dt) (Entered: 01/25/2007)
158 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice by Finance &Administration, Tennessee Department of. (Attachments: # 1 Exhibit Proposed Order)(Cooper, Charles) (PHV FEE PAID on 2/1/07) Modified Text on 1/31/2007 (dt). Modified Text on 2/5/2007 (dt). (Entered: 01/31/2007)
159 AFFIDAVIT of Brian S. Koukoutchos by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 01/31/2007)
160 CERTIFICATE OF GOOD STANDING filed by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 01/31/2007)
162 RECEIPT #113373 in the amount of $75.00 posted by Cooper &Kirk for Brian Koukoutchos, attorney for Finance &Administration, Tennessee Department of, re 158 Motion to Appear Pro Hac Vice. (dt) (Entered: 02/05/2007)
161 RESPONSE to Motion re 158 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice filed by Nancy Vartan, Katherine Wilcox, Dora Wilcox, Tennessee Protection and Advocacy, Inc., Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Beth Ann Brown, Shelby Brown, Keith Greenwald, Carol Greenwald, Erin McNamara, Betty McNamara, Shane Mitchell, Arlie Mitchell, Derrick Vartan. (Attachments: # 1 Exhibit A − December 2006 Monthly Report Prepared by Defendant# 2 Exhibit B − Tennessean Articles of February 10, 2006)(Krause, Kent) (Entered: 02/02/2007)
163 RECEIPT #113413 in the amount of $75.00 posted by Michael W. Kirk, attorney for Finance &Administration, Tennessee Department of, re 153 Motion to Appear Pro Hac Vice. (dt) (Entered: 02/05/2007)

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02/05/2007

164 Minute Entry for proceedings held before Judge Robert Echols: Status Conference held on 2/5/2007. Order to enter regarding pending motions and setting response/reply schedule. (Court Reporter Dorothy Stiles.) (dt) (Entered: 02/05/2007)

02/09/2007

165 ORDER: Several motions are pending, which the Court addressed at a status conference held on 2/5/07. Consistent with the Court's oral statements from the bench, the Court rules as follows: Plaintiffs' Motion for Permission to File Motion for Modification of Settlement Agreement 150 is Granted. The Clerk is directed to file under separate docket entry numbers (a) Plaintiffs' Motion For Modification of Settlement Agreement with Exhibits A through F and (b) Plaintiffs' Memorandum In Support Of Motion For Modification Of SettlementAgreement, all of which are attached to Docket Entry No. 150. Defendant shall file their response by 3/9/07. Defendants' Motion for Leave to File accompanying Motions 151 is Granted. Plaintiffs shall file their response to Defendants' Motion to Vacate the Agreed Order Approving Settlement Agreement and to Dismiss the case by 3/9/07. The Court Reserves it Ruling on the Motions to Appear Pro Hac Vice 152 , 153 , 158 . Defendants may file any reply to Plaintiffs' response to Motion for Pro Hac Vice Status of Brian Koukoutchos, by 2/16/07. Defendants' Motion for Leave to File Excess Pages 154 is Granted. Due to the recent substitution of parties, all pleadingsfiled in the future shall use the caption as shown in this Order. Signed by Judge Robert Echols on 2/9/07. (dt) Modified Text on 2/12/2007 (dt). (Entered: 02/12/2007)

02/09/2007

166 MOTION for Modification of Settlement Agreement filed by Plaintiffs. (Attachments: # 1 Exhibit A−June 15, 2004 Settlement Agreement# 2 Exhibit B−May 2006 Monthly Report# 3 Exhibit C−Nov 2006 Monthly Report# 4 Exhibit D−June 5 2006 Letter# 5 Exhibit E−DMRS Policy# 6 Exhibit F−June 2006 Monthly Report)(dt) (Entered: 02/12/2007)

02/09/2007

167 MEMORANDUM in Support of 166 MOTION for Modification of Settlement Agreement filed by Plaintiffs.(dt) (Entered: 02/12/2007)

02/14/2007

168 Joint MOTION for Attorney Fees and Expenses by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Proposed Order)(Krause, Kent) (Entered: 02/14/2007)

02/16/2007

169 REPLY to Response to Motion re 158 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 02/16/2007)

02/16/2007

170 DECLARATION of Stephen H. Norris − Revised filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 02/16/2007)

02/26/2007

171 TRANSCRIPT prepared by OCR Dorothy Stiles for Proceedings held on 2/5/07 before Judge Echols.(This document is NOT available on−line. Contact the court reporter at 615−330−1764 to purchase a copy) (dt) (Entered: 02/28/2007)

03/09/2007

172 RESPONSE in Opposition re 166 MOTION for Modification of Settlement Agreement filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser,

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Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 03/09/2007)
173 MOTION to Amend/Correct Complaint by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 03/09/2007)
174 MEMORANDUM in Support of 173 MOTION to Amend/Correct Complaint filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 03/09/2007)
175 RESPONSE to Motion re 155 MOTION to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Exhibit A − CMS letter of 12/27/04 re HCBS Waiver# 2 Exhibit B − CMS letter of 6/30/06 re HCBS Waiver Amendment# 3 Exhibit C − State Request for Amendment of HCBS Waiver − cover page 3/30/06# 4 Exhibit D − CMS letter of 12/27/04 re Self Determination Waiver# 5 Exhibit E − CMS letter of 6/30/06 re Self Determination Waiver Amendment# 6 Exhibit F − State Request Amendment of Self Determination Waiver − cover page 3/30/06# 7 Exhibit G − June 2004 Monthly Report, page 3# 8 Exhibit H − March 2006 Monthly Report, page 4# 9 Exhibit I − December 2006 Monthly Report, page 5# 10 Exhibit J − CMS letter of 1/10/01 re Olmstead Update #4)(Krause, Kent) (Entered: 03/09/2007)
176 MEMORANDUM in Support of 175 Response to Motion,,,, filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 03/09/2007)
177 AGREED ORDER: Joint Motion for Attorney Fees 168 is granted. Signed by Judge Robert Echols on 3/12/07. (dt) (Entered: 03/12/2007)
178 REPLY to Response to Motion re 166 MOTION for Modification of Settlement Agreement filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Exhibit A − Norris Depo of 10−4−06, pp 162−163; 166−177; 181# 2 Exhibit B − Monthly Report, page 5# 3 Exhibit C − Press Release "Rainy Day Fund"# 4 Exhibit D − Press Release "February Revenues"# 5 Exhibit E − Norris Deposition of 9−15−06, pp 87−88; 106−107)(Krause, Kent) (Entered: 03/16/2007)
179 REPLY to Response to Motion re 155 MOTION to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 03/16/2007)

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03/23/2007

180 RECEIPT #114113 in the amount of $75.00 posted by Cooper &Kirk for Charles Cooper, atty for Finance &Administration, Tennessee Department of re 152 Motion to Appear Pro Hac Vice. (dt) (Entered: 03/23/2007)

04/13/2007

181 ORDER: The Motions filed by Charles Cooper and Michael Kirk, for the law firm Cooper &Kirk, PLLC, 152 153 are Granted on the ground that such Motions comply with Local Rule 83.01(d). Mr. Cooper and Mr. Kirk are permitted to appear in this case pro hac vice on behalf of the Defendants. Plaintiffs' objection to the admission of Mr. Koukoutchos is overruled. The authority to admit an attorney to practice before the bar is within the discretion of the district court. The Motion for Leave to Appear Pro Hac Vice 158 filed by Brian S. Koukoutchos is Granted. Signed by Judge Robert Echols on 4/13/07. (dt) Modified Text on 4/19/2007 (dt). (Entered: 04/13/2007)

05/07/2007

182 MOTION for Permanent Injunction by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Exhibit A − September 14, 2006 and October 9, 2006 Settlement Proposal Letters from Office of Attorney General designated "Confidential − for Settlement Purposes Only")(Krause, Kent) (Entered: 05/07/2007)

05/09/2007

183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Exhibit A − June 15, 2004 Settlement Agreement# 2 Exhibit B − Annual Report for FY 2005 prepared by Defendant# 3 Exhibit C − Annual Report for FY 2006 prepared by Defendant# 4 Exhibit D − May 2005 Monthly Report prepared by Defendant# 5 Exhibit E − March 2007 Monthly Report prepared by the Defendant# 6 Exhibit F − Declaration of Stephen H. Norris)(Krause, Kent) (Entered: 05/09/2007)

05/09/2007

184 MEMORANDUM in Support of 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 05/09/2007)

05/10/2007

Note to Filer re Docket Entry No. 183: Signed affidavits/declarations should be filed as separate events, not as attachments to other pleadings.This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 05/10/2007)

05/16/2007

185 MOTION to Suspend Briefing on Plaintiffs' Motion for Specific Performance by Finance &Administration, Tennessee Department of. (Cooper, Charles) (Entered: 05/16/2007)

05/18/2007

186 RESPONSE to Motion re 185 MOTION to Suspend Briefing on Plaintiffs' Motion for Specific Performance for Non−Compliance with Settlement Agreement filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 05/18/2007)

05/21/2007

187 RESPONSE in Opposition re 182 MOTION for Permanent Injunction filed by Finance &Administration, Tennessee

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Department of. (Cooper, Charles) (Entered: 05/21/2007)
188 ORDER granting 185 Motion Suspend Briefing on Plaintiffs' Motion for Specific Performance. Briefing on Plaintiff's Motion for Order for Specific Performance for Non−Compliance with Settlement Agreement 183 is hereby suspended until the Court has ruled on Defendants' Motion to Vacate the Settlement Agreement and to Dismiss the Case 155 . Signed by Judge Robert Echols on 6/11/07. (dt) (Entered: 06/11/2007)
189 ORDER: Counsel for the parties shall appear to present oral argument on these pending Motions 155 , 166 , 173 &182 on 8/30/2007 at 01:00 PM. Signed by Judge Robert Echols on 6/28/07. (dt) (Entered: 06/28/2007)
190 MOTION to Substitute Attorney by Lakersko Brown. (Housepian, Gary) (Entered: 07/12/2007)
191 DECLARATION of Gary D. Housepian filed by Lakersko Brown re: 190 MOTION to Substitute Attorney. (Attachments: # 1 Exhibit Letter to class representative McGowan# 2 Exhibit Letter to Class Representative Voss# 3 Exhibit Letter to Class Representative Blackburn# 4 Exhibit Letter to Class Representative Kiker)(Housepian, Gary) (Entered: 07/12/2007)
192 DECLARATION of Martha M. Lafferty filed by Lakersko Brown re: 190 MOTION to Substitute Attorney. (Housepian, Gary) (Entered: 07/12/2007)
193 DECLARATION of Sherry A. Wilds filed by Lakersko Brown re: 190 MOTION to Substitute Attorney. (Housepian, Gary) (Entered: 07/12/2007)
194 NOTICE of Change of Address by Charles J. Cooper (Cooper, Charles) (Entered: 07/26/2007)
195 SUPPLEMENT filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell re 166 Motion for Miscellaneous Relief,. (Attachments: # 1 Exhibit G − June 2007 Monthly Report)(Krause, Kent) (Entered: 08/14/2007)
196 NOTICE to Remove Counsel from Certificate of Service by Community Rehabilitation Agencies of Tennessee (Hubbard, William) Modified Text on 8/16/2007 (dt). (Entered: 08/15/2007)
Note to Filer re DE# 196: This document should have been filed using the "Notice (other)" event. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 08/16/2007)
197 ORDER granting 190 Motion to Substitute Attorney. Mr. Housepian is hereby allowed to withdraw as counsel of record for the Plaintiff class. Attorney Gary D. Housepian terminated. Martha M. Lafferty and Sherry A. Wilds are hereby substituted as counsel of record for said class and shall participate in Oral Argument on 8/30/07 189 . Signed by Judge Robert Echols on 8/21/07. (dt) (Entered: 08/21/2007)
198 Minute Entry for proceedings held before Judge Robert Echols: Oral Argumentheld on 8/31/07. Motions 155 166 173 182 taken under advisement. Order to enter. (Court Reporter Charlotte Sloan.) (jb) (Entered: 09/10/2007)
199 MEMORANDUM AND OPINION. Signed by Judge Robert Echols on 9/12/07. (dt) (Entered: 09/13/2007)

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09/12/2007

200 ORDER: In accordance with the Memorandum entered contemporaneously herewith, the Court rules as follows: Defendants' Motion To Vacate The Agreed Order Approving The Settlement Agreement And To Dismiss The Case 155 is Denied. Plaintiffs' Motion to Amend the Complaint 173 is Denied. Plaintiffs' Motion For Modification Of Settlement Agreement 166 is Denied. Plaintiffs' Motion For Injunction 182 . Plaintiffs may amend or supplement their pending Motion For An Order For Specific Performance For Non−Compliance With Settlement Agreement 183 by 9/21/07. All discovery on Plaintiffs' amended or supplemented Motion For An Order For Specific Performance For Non−Compliance With Settlement Agreement shall be completed by 11/21/07. Defendants will file to Plaintiffs' amended or supplemented Motion for An Order For Specific Performance for Non−Compliance with Settlement Agreement by 12/7/07. Plaintiffs may file a reply by 12/19/07. The Court will hold a hearing on the amended or supplemented Motion For An Order For Specific Performance For Non−Compliance With Settlement Agreement on Friday, 1/4/08, at 9:00 a.m. Signed by Judge Robert Echols on 9/12/07. (dt) (Entered: 09/13/2007)

09/17/2007

201 NOTICE OF APPEAL as to 200 Order by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Attachments: # 1 Exhibit A − Order and Memorandum)(Cooper, Charles) Modified text on 9/18/2007 (km, ). (Entered: 09/17/2007)

09/17/2007

202 MOTION to Stay re 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement, 199 Memorandum &Opinion by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 09/17/2007)

09/18/2007

203 USCA Appeal Fees received $ 455 receipt number 100 116454 re 201 Notice of Appeal, filed by Finance &Administration, Tennessee Department of, Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Warren C. Neel, (km, ) (Entered: 09/19/2007)

09/21/2007

204 MOTION for Extension of Time to Amend 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement by Lakersko Brown. (Lafferty, Martha) (Entered: 09/21/2007)

09/21/2007

205 MOTION to Strike 201 Notice of Appeal, by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 09/21/2007)

09/21/2007

206 MEMORANDUM in Support of 205 MOTION to Strike 201 Notice of Appeal, filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 09/21/2007)

09/21/2007

207 MEMORANDUM in Support of 204 MOTION for Extension of Time to Amend 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Lakersko Brown. (Lafferty, Martha) (Entered: 09/21/2007)

09/21/2007

208 RESPONSE in Opposition re 202 MOTION to Stay re 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement, 199 Memorandum

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&Opinion filed by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 09/21/2007)
209 MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement by Lakersko Brown. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I)(Wilds, Sherry) (Entered: 09/21/2007)
210 MEMORANDUM in Support of 209 MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Lakersko Brown. (Wilds, Sherry) (Entered: 09/21/2007)
211 ORDER denying 205 Motion to Strike Notice of Appeal, denying Motion to Stay Pending Appeal 202 , and granting 204 Motion for Extension of Time to Amend the Motion for an Order for Specific Performance for Non−compliance with the Settlement Agreement. Pltfs may submit any additional evidence in support of the pending mtn no later than 11−7−07. Signed by Judge Robert Echols on 9/26/07. (mk, ) (Entered: 09/26/2007)
212 AMENDED NOTICE OF APPEAL as to 200 Order and 199 Memorandum &Opinion by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified text on 9/28/2007 (km, ). (Entered: 09/27/2007)
213 TRANSCRIPT prepared by OCR Dorothy Stiles for Proceedings held on 8/30/07 before Judge Echols.(This document is NOT available on−line. Contact the court reporter at 615−330−1764 to purchase a copy) (dt) (Entered: 10/10/2007)
214 MOTION to Set Case for Trial by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Exhibit 1 − Letters Between CMS and the Department of Finance and Administration)(Krause, Kent) (Entered: 10/23/2007)
215 MOTION for Attorney Fees by Lakersko Brown. (Attachments: # 1 Exhibit Exhibit A to Fee Motion)(Lafferty, Martha) (Entered: 10/26/2007)
216 MEMORANDUM in Support of 215 MOTION for Attorney Fees filed by Lakersko Brown. (Lafferty, Martha) (Entered: 10/26/2007)
217 RESPONSE to 214 MOTION to Set Case for Trial filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 11/7/2007 (dt). (Entered: 11/06/2007)
218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement by Lakersko Brown. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E)(Lafferty, Martha) (Entered: 11/07/2007)

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11/07/2007

219 Additional Attachments to Main Document re: 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement. (Attachments: # 1 Exhibit Exhibit F# 2 Exhibit Exhibit G# 3 Exhibit Exhibit H# 4 Exhibit Exhibit I# 5 Exhibit Exhibit J# 6 Exhibit Exhibit K)(Lafferty, Martha) (Entered: 11/07/2007)

11/07/2007

220 Additional Attachments to Main Document re: 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement. (Attachments: # 1 Exhibit Exhibit L# 2 Exhibit Exhibit M# 3 Exhibit Exhibit N# 4 Exhibit Exhibit O# 5 Exhibit Exhibit P# 6 Exhibit Exhibit Q)(Lafferty, Martha) (Entered: 11/07/2007)

11/07/2007

221 Additional Attachments to Main Document re: 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement. (Attachments: # 1 Exhibit Exhibit R# 2 Exhibit Exhibit S# 3 Exhibit Exhibit T# 4 Exhibit Exhibit U# 5 Exhibit Exhibit V# 6 Exhibit Exhibit W)(Lafferty, Martha) (Entered: 11/07/2007)

11/07/2007

222 Additional Attachments to Main Document re: 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement. (Attachments: # 1 Exhibit Exhibit X# 2 Exhibit Exhibit Y# 3 Exhibit Exhibit Z)(Lafferty, Martha) (Entered: 11/07/2007)

11/07/2007

223 MEMORANDUM in Support of 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Lakersko Brown. (Lafferty, Martha) (Entered: 11/07/2007)

11/08/2007

224 MOTION for Extension of Time to File Response as to 215 MOTION for Attorney Fees by Finance &Administration, Tennessee Department of. (Dycus, Dianne) Modified Text on 11/8/2007 (dt). (Entered: 11/08/2007)

11/08/2007

225 NOTICE of Filing by Lakersko Brown re 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement (Attachments: # 1 Exhibit Redacted Exhibit V# 2 Exhibit Redacted Exhibit W)(Lafferty, Martha) (Entered: 11/08/2007)

11/08/2007

226 MOTION for Leave to File Document Under Seal by Lakersko Brown. (Lafferty, Martha) (Entered: 11/08/2007)

11/19/2007

USCA Case Number 07−6325 for 212 Notice of Appeal, filed by Finance &Administration, Tennessee Department of, Warren C. Neel, Elisabeth Rukeyser, Tennessee Department of Mental Health

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11/19/2007 11/20/2007 11/30/2007
12/03/2007 12/07/2007
12/07/2007 12/19/2007

and Developmental Disabilities and assignment of Mary Patterson as case mgr (mk) (Entered: 11/19/2007)
227 MOTION for Leave to To File Reply to Response to 214 Motion to Set Case for Trial, by Lakersko Brown. (Attachments: # 1 Plaintiffs' Reply Motion to Set)(Wilds, Sherry) Modified Text on 11/20/2007 (dt). (Entered: 11/19/2007)
228 NOTICE of Filing by Lakersko Brown re 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement (Attachments: # 1 Exhibit J−Late Filed Excerpts of Deposition of Stephen Norris, 10/29/07 # 2 Exhibit K−Late Filed Excerpts of Deposition of Stephen Norris, 10/30/07)(Wilds, Sherry) Modified Text on 11/20/2007 (dt). (Entered: 11/20/2007)
229 RESPONSE in Opposition re 215 MOTION for Attorney Fees filed by Finance &Administration, Tennessee Department of. (Attachments: # 1 Exhibit A, Summary of Hours Related to pro hac vice Motion# 2 Exhibit B, Summary of Hours Related to Motion for Injunction# 3 Exhibit C, Summary of Hours Related to Motion to Modify Settlement Agreement# 4 Exhibit D, Summary of Hours Related to Motion to Amend# 5 Exhibit E, Summary of Hours Related to Consultants# 6 Exhibit F, Summary of Hours Related to Survey# 7 Exhibit G, Summary of Hours Related to Individual Class Members# 8 Exhibit H, Summary of Hours Related to Clerical Work# 9 Exhibit I, Summary of Hours Related to Research and Writing# 10 Exhibit J, Summary of Hours Related to Motion to Vacate# 11 Exhibit K, Summary of Hours Related to Motion for Specific Performance)(Dycus, Dianne) (Entered: 11/30/2007)
Note to Filer re DE #229: There are no footers on the exhibits. These documents do not need to be re−filed unless otherwise directed by the Court. (km) (Entered: 12/03/2007)
230 RESPONSE in Opposition re 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Attachments: # 1 Exhibit A: Policy No. 04.300.10.13# 2 Exhibit B: 8−5−04 Memo# 3 Exhibit C: 2−16−05 Memo# 4 Exhibit D: 7−11−05 Memo# 5 Exhibit E: DMRS Summary of Budgets# 6 Exhibit F: DMRS Annual Report FY 2005# 7 Exhibit G: DMRS Annual Report from 7−1−05 to6−30−06# 8 Exhibit H: Interim Services to Brown Class Members# 9 Exhibit I: Blueprint Workplan)(Cooper, Charles) (Entered: 12/07/2007)
231 DECLARATION of Stephen H. Norris filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Attachments: # 1 Exhibit A: Policy No. 04.300.10.13# 2 Exhibit B: 8−5−04 Memo# 3 Exhibit C: 2−16−05 Memo# 4 Exhibit D: 7−11−05 Memo# 5 Exhibit E: DMRS Summary of Budgets# 6 Exhibit F: DMRS Annual Report FY 2005# 7 Exhibit G: DMRS Annual Report from 7−1−05 to 6−30−06# 8 Exhibit H: Interim Services to Brown Class Members# 9 Exhibit I: Blueprint Workplan)(Cooper, Charles) (Entered: 12/07/2007)
232 REPLY to Response to Motion re 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific

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Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement filed by Lakersko Brown. (Attachments: # 1 Exhibit A CDS Draft Policy# 2 Exhibit B Declaration of Carter# 3 Exhibit C Marcellino Declaration# 4 Exhibit D 6/10/05 Latham Memo# 5 Exhibit E 4/14/05 Correspondence# 6 Exhibit F First Set Excel Totals)(Lafferty, Martha) (Entered: 12/19/2007)

12/19/2007

233 Additional Attachments to Main Document re: 232 Reply to Response to Motion,,. (Attachments: # 1 Exhibit G Second Set Excel Totals# 2 Exhibit H Deposition Linda Maurice# 3 Exhibit Late Filed Exhibit I# 4 Exhibit J Excerpts 10/29 Norris Depo# 5 Exhibit K Excerpts 10/30 Norris Depo# 6 Exhibit L 12/4/07 Correspondence# 7 Exhibit M Collection of Correspondence)(Lafferty, Martha) (Entered: 12/19/2007)

12/20/2007

234 NOTICE of Filing by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell re 232 Reply to Response to Motion,, 233 Additional Attachments to Main Document, Late Exhibit I to Reply Memorandum in Support of Plaintiffs' Motion for Specific Performance (Attachments: # 1 Exhibit I−1 (Maurice Deposition Exhibits)# 2 Exhibit I−2 (Maurice Deposition Exhibits)# 3 Exhibit I−3 (Maurice Deposition Exhibits)# 4 Exhibit I−4 (Maurice Deposition Exhibits)# 5 Exhibit I−5 (Maurice Deposition Exhibits)# 6 Exhibit I−6 (Maurice Deposition Exhibits)# 7 Exhibit I−7 (Maurice Deposition Exhibits))(Krause, Kent) (Entered: 12/20/2007)

12/21/2007

235 Joint MOTION Requesting Permission to File a Reply and Sur−Reply Regarding Plaintiffs' Motion for Fees, Expenses and Costs by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Attachments: # 1 Proposed Order Permitting Filing of a Reply and Sur−Reply Regarding Plaintiffs' Motion for Fees, Expenses and Costs)(Krause, Kent) (Entered: 12/21/2007)

12/26/2007

236 ORDER: The hearing on Motion For An Order For Specific Performance For Noncompliance With Settlement Agreement scheduled for Friday, 1/4/08, is continued and will be reset by separate order. Signed by Judge Robert Echols on 12/26/07. (jb) (Entered: 12/26/2007)

01/07/2008

237 ORDER Setting Hearing on 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement: Hearing is set for 1/23/2008 at 09:00 AM before Senior Judge Robert Echols. Signed by Judge Robert Echols on 1/5/08. (dt) (Entered: 01/07/2008)

01/09/2008

238 ORDER granting 227 Motion for Leave to file Reply to Defts' Response to Motion to Set Case for Trial. Signed by Judge Robert Echols on 1/9/08. (km) (Entered: 01/10/2008)

01/09/2008

240 AGREED ORDER granting Joint Motion requesting permission to file a reply and sur−reply regarding pltfs' motion for fees, expenses and costs 235 is granted. Signed by Judge Robert Echols on 1/8/08. (km) (Entered: 01/10/2008)

01/10/2008

239 PLAINTIFFS' REPLY to Response to 214 MOTION to Set Case for Trial (km) (Entered: 01/10/2008)

01/18/2008

241 REPLY to Response to Motion re 215 MOTION for Attorney Fees filed by Lakersko Brown. (Attachments: # 1 Exhibit A

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01/22/2008 01/22/2008
01/23/2008 01/24/2008
02/01/2008 02/11/2008
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Documentation of Fees/Costs)(Lafferty, Martha) (Entered: 01/18/2008)
242 ORDER granting 226 Motion for Leave to File Document Under Seal. Clerk is directed to seal the pleadings (Docket Entry Nos. 221−5 and 221−6) which the Plaintiffs filed on 11/7/07. Signed by Judge Robert Echols on 1/22/08. (dt) (Entered: 01/22/2008)
243 ORDER: Pltfs' Motion for an order for specific performance for non−compliance with settlement agreement 183 is denied as moot. First Motion for an order for specific performance for non−compliance with settlement agreement 209 is denied as moot. Second MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement 218 is reserved for ruling following the hearing set for 1/23/08. Signed by Judge Robert Echols on 1/22/08. (km) (Entered: 01/23/2008)
244 NOTICE of Filing by Finance &Administration, Tennessee Department of Late−Filed Exhibit 2 (Attachments: # 1 Exhibit 2−−Blueprint Workplan Revised Dec.25, 2007)(Dycus, Dianne) (Entered: 01/23/2008)
245 NOTICE of Filing by Lakersko Brown re 218 Second MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement AgreementSecond MOTION to Amend/Correct 183 MOTION for an Order for Specific Performance for Non−Compliance with Settlement Agreement (Attachments: # 1 Exhibit 1 Excerpts Norris Deposition Oct 30)(Lafferty, Martha) (Entered: 01/24/2008)
246 SURREPLY in Opposition to 215 MOTION for Attorney Fees, Expenses and Costs filed by Finance &Administration, Tennessee Department of. (Dycus, Dianne) Modified Text on 2/4/2008 (dt). (Entered: 02/01/2008)
247 ORDER of USCA as to 212 AMENDED Notice of Appeal, filed by Finance &Administration, Tennessee Department of, Warren C. Neel, Elisabeth Rukeyser, Tennessee Department of Mental Health and Developmental Disabilities. Pltfs' motion to dismiss is denied. Case no. 07−6325 is dismissed as duplicative of Case No. 07−6163. (km) (Entered: 02/11/2008)
248 Minute Entry for proceedings held before Judge Robert Echols : Hearing on Motion for an order for specific performance for non−compliance with settlement agreement 218 held 1/23/08. Exhibit list to be filed. Matter taken under advisement. (Court Reporter Becky Cole.) (km) (Entered: 02/12/2008)
249 WITNESS/EXHIBIT LIST prepared by Deputy Clerk. re: 248 Motion Hearing held 1/23/08.(km) (Entered: 02/12/2008)
250 MEMORANDUM AND OPINION. Signed by Senior Judge Robert Echols on 7/8/08. (dt) (Entered: 07/08/2008)
251 ORDER: In accordance with the Memorandum entered contemporaneously herewith, Plaintiffs' Second Amended Motion For An Order For Specific Performance For Non−Compliance With Settlement Agreement 218 is hereby DENIED. Signed by Senior Judge Robert Echols on 7/8/08. (dt) (Entered: 07/08/2008)
252 ORDER: Plaintiff's Motion to Set Case for Trial 214 is Granted. The case is hereby REFERRED to the Magistrate Judge to hold a status conference with counsel for the parties, enter a Case Management Order, and set the case for trial on years three (3) through five (5) of the Settlement Agreement. Signed by Senior Judge Robert Echols on 7/8/08. (dt) (Entered: 07/08/2008)

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07/17/2008 07/23/2008 07/23/2008
07/30/2008
08/19/2008 08/19/2008 08/21/2008 08/25/2008 08/25/2008 09/02/2008 09/16/2008

253 ORDER SETTING CASE MANAGEMENT CONFERENCE: Case Management Conference set for 7/30/2008 at 10:00 AM in Courtroom 776 before Magistrate Judge John S. Bryant. Proposed case management order shall be filed by 7/28/08. Signed by Magistrate Judge John S. Bryant on 7/17/08. (km) (Entered: 07/18/2008)
254 MOTION to Continue Case Management Conference by Nancy Vartan, Dora Wilcox, Lakersko Brown, Katie Blackburn, Matthew McGowan, Shalyn Kiker, Disability Law and Advocacy Center of Tennessee, Shelby Brown, Carol Greenwald, Betty McNamara, Arlie Mitchell. (Krause, Kent) (Entered: 07/23/2008)
255 ORDER: Plaintiffs' MOTION to Continue Case Management Conference 254 is Granted. Case Management Conference is reset for 8/25/08 at 1:30 p.m. Counsel are hereby reminded that prior to this conference they shall confer and submit a proposed case management order containing appropriate pretrial deadlines governing the progress of this case toward a trial. This proposed case management order shall be filed on or before the end of business on 8/21/08. Signed by Magistrate Judge John S. Bryant on 7/23/08. (dt) (Entered: 07/24/2008)
256 ORDER: Plaintiffs' Motion for Attorney Fees 215 , as currently formulated, is Denied without prejudice to Plaintiffs' right to file a renewed motion that complies with this Order within 20 days. Any response to such renewed motion by the Defendants, and any reply by the Plaintiffs will be filed in accordance with the Local Rules. Signed by Senior Judge Robert Echols on 7/30/08. (dt) (Entered: 07/30/2008)
257 First MOTION to Amend 215 MOTION for Attorney Fees by Lakersko Brown. (Attachments: # 1 Exhibit A Plaintiffs' Attorneys' Fees, Costs, and Expenses, # 2 Exhibit B Documentation of Costs and Expenses, # 3 Exhibit C Declarations)(Wilds, Sherry) Modified Text on 9/3/2008 (dt). (Entered: 08/19/2008)
258 MEMORANDUM in Support of 257 First MOTION to Amend/Correct 216 Memorandum in SupportFirst MOTION to Amend/Correct 216 Memorandum in Support filed by Lakersko Brown. (Wilds, Sherry) (Entered: 08/19/2008)
259 PROPOSED CASE MANAGEMENT ORDER filed by Lakersko Brown. (Lafferty, Martha) (Entered: 08/21/2008)
260 Minute Entry for proceedings held before Magistrate Judge John S. Bryant: Case Management Conference held on 8/25/2008. ICM Order to Enter (Tape #2008−29.) (dt) (Entered: 08/25/2008)
261 JOINT CASE MANAGEMENT ORDER: Discovery due by 10/31/2008. Dispositive Motions due by 11/21/2008. Signed by Magistrate Judge John S. Bryant on 8/25/08. (dt) (Entered: 08/25/2008)
262 RESPONSE in Opposition to 257 First MOTION to Amend 215 MOTION for Attorney Fees filed by Finance &Administration, Tennessee Department of. (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)(Dycus, Dianne) Modified Text on 9/3/2008 (dt). (Entered: 09/02/2008)
263 REPLY to Response to Motion re 257 First MOTION to Amend/Correct 216 Memorandum in SupportFirst MOTION to Amend/Correct 216 Memorandum in Support filed by Lakersko Brown. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wilds, Sherry) (Entered: 09/16/2008)

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10/07/2008

264 ORDER: Judge Echols' Chambers has advised the Magistrate Judge's office that this case is set for a one to two−day nonjury trial on 4/28/09, at 9:00 a.m., with a final pretrial conference on 3/30/09 at 1:00 p.m. Judge Echols will issue a separate order setting out his requirements for both the trial and final pretrial conference at a later date. Signed by Magistrate Judge John S. Bryant on 10/7/08. (dt) (Entered: 10/07/2008)

11/05/2008

265 NOTICE of Filing by Finance &Administration, Tennessee Department of Declaration of Dave Goetz (Attachments: # 1 Exhibit Declaration of Dave Goetz)(Dycus, Dianne) (Entered: 11/05/2008)

11/06/2008

Note to Filer re Docket Entry No. 265: A signed declaration should be filed as a separate event, not as an attachment to a pleading. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 11/06/2008)

11/21/2008

266 MOTION for Summary Judgment by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 11/21/2008)

11/21/2008

267 CONCISE STATEMENT of Material Facts in support of 266 Motion for Summary Judgment filed by Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 11/24/2008 (dt). (Entered: 11/21/2008)

11/21/2008

268 MEMORANDUM in Support of 266 MOTION for Summary Judgment filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) (Entered: 11/21/2008)

11/21/2008

269 MOTION for Summary Judgment by Lakersko Brown. (Lafferty, Martha) (Entered: 11/21/2008)

11/21/2008

270 MEMORANDUM in Support of 269 MOTION for Summary Judgment filed by Lakersko Brown. (Lafferty, Martha) (Entered: 11/21/2008)

11/21/2008

271 STATEMENT of Undisputed Facts filed by Lakersko Brown in support of 269 Motion for Summary Judgment. (Lafferty, Martha) Modified Text on 11/24/2008 (dt). (Entered: 11/21/2008)

11/21/2008

272 NOTICE of Filing by Lakersko Brown re 269 MOTION for Summary Judgment Documents In Support (Attachments: # 1 Exhibit Defendants' Responses To Plaintiffs' First Set Of Interrogatories, Requests For Production Of Documents, and First Requests For Admissions, # 2 Exhibit Excerpt August 2004 DMRS Monthly Progress Report, # 3 Exhibit Demographics For HCBS Waiver Recipients, # 4 Exhibit Excerpt From June 2008 DMRS Monthly Report)(Lafferty, Martha) (Entered: 11/21/2008)

11/21/2008

273 MOTION for Leave to File Under Seal Documents in support of 269 Motion For Summary Judgment, re 272 Notice filed by Lakersko Brown. (Lafferty, Martha) Modified Text on 11/24/2008 (dt). (Entered: 11/21/2008)

12/01/2008

274 ORDER granting 273 Motion to Seal Document. Plaintiffs are granted leave to file under permanent seal a CD containing electronic documents numbered 5−16 on Plaintiffs' Notice of Filing 272 . Signed by Senior Judge Robert Echols on 12/1/08. (dt) Modified Text on 12/1/2008 (dt). (Entered: 12/01/2008)

12/03/2008

275 MOTION for Entry of Agreed Order to Extend Filing Deadlines for Responses to Motions for Summary Judgment and Replies re 261 Order, 266 Motion for Summary Judgment and 269 Motion for

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12/05/2008 12/11/2008 01/16/2009
01/16/2009 01/16/2009
01/16/2009 01/20/2009 01/26/2009 01/26/2009 01/28/2009
01/28/2009 02/24/2009

Summary Judgment by Lakersko Brown. (Attachments: # 1 Proposed Order Agreed Order to Extend Filing Deadlines for Responses to Motions for Summary Judgment and Replies)(Lafferty, Martha) Modified Text on 12/4/2008 (dt). (Entered: 12/03/2008)
276 Letter from Atty Martha Lafferty re: filing a CD under seal per Order 274. (w/ attached CD). (dt) (Entered: 12/08/2008)
277 ORDER granting 275 Motion for Extension of Time to File Response to 266 269 MOTIONS for Summary Judgment. Signed by Senior Judge Robert Echols on 12/11/08. (dt) (Entered: 12/11/2008)
278 RESPONSE in Opposition to 269 MOTION for Summary Judgment filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 1/20/2009 (dt). (Entered: 01/16/2009)
279 RESPONSE to 271 STATEMENT of Undisputed Facts. (Cooper, Charles) Modified Text on 1/20/2009 (dt). (Entered: 01/16/2009)
280 RESPONSE in Opposition to 266 MOTION for Summary Judgment filed by Lakersko Brown. (Attachments: # 1 Exhibit A Excerpts of 2008 Deposition of Stephen H Norris, # 2 Exhibit B Excerpt from DMRS November 2008 Monthly Report, # 3 Exhibit C November 11 2008 Tennessean Article, # 4 Exhibit D Benjamin H v Ohl, # 5 Exhibit E Excerpt from the September 15 2006 Depositon of Stephen Norris)(Lafferty, Martha) Modified on 1/20/2009 (dt). (Entered: 01/16/2009)
281 RESPONSE TO 267 CONCISE STATEMENT of Material facts filed by Lakersko Brown. (Lafferty, Martha) Modified Text on 1/20/2009 (dt). (Entered: 01/16/2009)
Note to Filer re Docket Entry Nos. 279 and 281: These documents should have been filed using the "Response (Non−Motion)" event. These documents do not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 01/20/2009)
282 MEMORANDUM. Signed by Senior Judge Robert Echols on 1/26/09. (dt) (Entered: 01/26/2009)
283 ORDER: In accordance with the Memorandum entered contemporaneously herewith, Plaintiffs' First Amended Motion For Fees, Expenses and Costs 257 is hereby GRANTED IN PART and DENIED IN PART. Signed by Senior Judge Robert Echols on 1/26/09. (dt) (Entered: 01/26/2009)
284 REPLY to Response to 266 MOTION for Summary Judgment filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 1/29/2009 (dt). (Entered: 01/28/2009)
285 REPLY to Response to 269 MOTION for Summary Judgment filed by Lakersko Brown. (Wilds, Sherry) Modified Text on 1/29/2009 (dt). (Entered: 01/28/2009)
286 ORDER: Bench Trial set for 4/28/2009 at 9:00 AM before Senior Judge Robert Echols. Proposed Pretrial Order due by 3/25/2009. Final Pretrial Conference set for 3/30/2009 at 1:00 PM before Senior Judge Robert Echols. Signed by Senior Judge Robert Echols on 2/24/09. (dt) (Entered: 02/24/2009)

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03/09/2009 03/10/2009 03/17/2009
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287 INFORMATION COPY from 6CCA that the district court's decision is reversed in part and remanded for further proceedings (Attachments: # 1 Cover letter)(km) (Entered: 03/09/2009)
288 SUPPLEMENTAL BRIEF in Support of 266 MOTION for Summary Judgment filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 3/11/2009 (dt). (Entered: 03/10/2009)
289 ORDER: In light of the decision issued by the Sixth Circuit on 3/9/2009, and the Defendants' filing on 3/10/2009 of a Supplemental Brief In Support Of Their Motion For Summary Judgment 288 , the Court hereby continues the dates previously set for the Final Pretrial Conference and the non−jury trial. Plaintiffs may file a response to Defendant's Supplemental Brief within 14 days after entry of this Order. Any reply by Defendant will be due within 5 days after service of Plaintiff's response. Plaintiffs may file a supplement to their own pending motion for summary judgment, if desired, within 14 days after entry of this Order. Defendants may then file a response within 14 days after service of Plaintiff's supplement. Any reply by Plaintiff will be due within 5 days after service of Defendants' response. The Court will not take any further action on the case until the Court receives the mandate from the Sixth Circuit. Signed by Senior Judge Robert Echols on 3/17/09. (dt) (Entered: 03/18/2009)
290 SUPPLEMENTAL BRIEF in Support of 269 MOTION for Summary Judgment filed by Lakersko Brown. (Lafferty, Martha) Modified Text on 4/1/2009 (dt). (Entered: 03/31/2009)
RESPONSE filed by plaintiffs to 288 Supplemental Brief. (Filed for In−Court Tracking Purposes−See 290 for PDF) (dt) (Entered: 04/01/2009)
291 INFORMATION COPY and JUDGMENT from 6CCA that the judgment of the district court is reversed in part and the case is remanded for further proceedings consistent with the opinion of this court (Attachments: # 1 Judgment)(km) (Entered: 04/01/2009)
292 MANDATE of USCA as to 201 Notice of Appeal, 212 Notice of Appeal, filed by Finance &Administration, Tennessee Department of, Warren C. Neel, Elisabeth Rukeyser, Tennessee Department of Mental Health and Developmental Disabilities, The (Attachments: # 1 Cover Letter)(km) (Entered: 04/15/2009)
293 RESPONSE filed by Finance &Administration, Tennessee Department of, Warren C. Neel to 290 Supplemental Brief in support Motion for Summary Judgment filed by Lakersko Brown. (Cooper, Charles) Modified Text on 4/16/2009 (dt). (Entered: 04/15/2009)
294 REPLY filed by Lakersko Brown to 293 Response to 290 Supplemental Brief in support of Motion for Summary Judgment. (Wilds, Sherry) Modified Text on 4/23/2009 (dt). (Entered: 04/22/2009)
295 *MOTION STRIKEN PER ORDER 298 * RENEWED MOTION to Vacate 116 Agreed Order Approving the Settlement Agreement and to Dismiss the Case filed by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Attachments: # 1 Memorandum in Support of Defendants' Renewed Motion to Vacate Agreed Order Approving the Settlement Agreement and Dismiss the Case, # 2 Exhibit A to Memorandum in Support of Motion: Transcript of April 12, 2004

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 38 of 39

04/27/2009 05/06/2009 05/06/2009 05/06/2009 05/13/2009 05/14/2009
05/29/2009

Fairness Hearing Excerpt, # 3 Declaration of Stephen H. Norris, # 4 Exhibit A to Declaration of Stephen Norris: Goetz Memo)(Cooper, Charles) Modified Text on 5/6/2009 (dt). Modified on 5/13/2009 (dt). (Entered: 04/24/2009)
Note to Filer re DE# 295: The memorandum in support of motion and declaration should have been filed as separate events, not as attachments to a document. This document does not need to be re−filed unless otherwise directed by the Court (dt) Modified Text on 4/27/2009 (dt). (Entered: 04/27/2009)
296 MOTION to Strike 295 RENEWED MOTION to Vacate 116 Agreed Order Approving the Settlement Agreement and to Dismiss the Case, or, in the alternative, MOTION for Additional Time to Respond to Said Motion by Lakersko Brown. (Wilds, Sherry) Modified Text on 5/6/2009 (dt). (Entered: 05/06/2009)
297 MEMORANDUM in Support of 296 MOTION to Strike 295 RENEWED MOTION to Vacate 116 Agreed Order Approving the Settlement Agreement and to Dismiss the Case, or, in the alternative, MOTION for Additional Time to Respond to Said Motion filed by Lakersko Brown. (Wilds, Sherry) Modified Text on 5/6/2009 (dt). (Entered: 05/06/2009)
Note to Filer re DE No. 296: The motion filed is for multiple reliefs. This is filed by holding down the control key, scrolling down and highlighting the appropriate reliefs. See Chapter 5(I) of the User Manual for instructions. This document does not need to be re−filed unless otherwise directed by the Court. (dt) (Entered: 05/06/2009)
298 ORDER: Plaintiffs' Motion to Strike 296 is Granted. For these reasons, the Court will not entertain Defendant's Renewed Motion with its accompanying Memorandum and documents, (Docket Entry No. 295 &295−1 through 295−4) andthe Clerk is directed to strike the entries from the record. Signed by Senior Judge Robert Echols on 5/13/09. (dt) (Entered: 05/13/2009)
299 MOTION for Leave to File a Supplemental Memorandum and Supporting Documents in Support of their Motion to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case by Tennessee Department of Mental Health and Developmental Disabilities, The, Elisabeth Rukeyser, Finance &Administration, Tennessee Department of, Warren C. Neel. (Cooper, Charles) Modified Text on 5/15/2009 (dt). (Entered: 05/14/2009)
300 RESPONSE to 299 MOTION for Leave to to File a Supplemental Memorandum and Supporting Documents in Support of their Motion to Vacate the Agreed Order Approving the Settlement Agreement and to Dismiss the Case filed by Lakersko Brown. (Wilds, Sherry) Modified Text on 5/29/2009 (dt). (Entered: 05/29/2009)

Case: 3:00-cv-665 As of: 06/10/2009 09:47 AM CDT 39 of 39

 
 United States Court of Appeals, Sixth Circuit.
Lakersko BROWN; Katie Blackburn; Matthew McGowan; Shalyn Kiker, as class representatives; Disability Law and Advocacy Center of Tennessee,
Plaintiffs-Appellees, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION; M.D. Goetz, JR., in his official
capacity as Commissioner of the Department of Finance and Administration, Defendants-Appellants.
No. 07-6163.
Argued: Sept. 22, 2008. Decided and Filed: March 9, 2009.FN*
FN* This decision was originally issued as an “unpublished decision” filed on March 9, 2009. On March 30, 2009, the court designated the opinion as one recommended for full-text publication.
Background: Tennessee Department of Finance moved to vacate its agreed order with class of mentally disabled Tennessee residents regarding Medicaid benefits based upon an intervening Sixth Court decision, Westside Mothers v. Olszewski. The United States District Court for the Middle District of Tennessee, Robert L. Echols, J., 2007 WL 2710704, denied the motion. The Department appealed.
Holding: The Court of Appeals, Boyce F. Martin, Jr., Circuit Judge, held that waiting list for waiver services was not inconsistent with Tennessee's duty to provide “medical assistance.”
Reversed in part, and remanded.
*543 ARGUED: Michael W. Kirk, Cooper & Kirk, Washington, DC, for Appellants. Samuel R. Bagenstos, Ann Arbor, MI, for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Cooper & Kirk, Washington, DC, Dianne Stamey Dycus, Office of the Tennessee Attorney General, Nashville, TN, for Appellants. Samuel R. Bagenstos, Ann Arbor, MI, Martha Michele Lafferty, Sherry Ann Wilds, Disability Law & Advocacy Center of Tennessee, Nashville, TN, Kent E. Krause, Brewer, Krause, Brooks, Chastain & Burrow, Nashville, TN, Martha Jane Perkins, National Health Law Program, Chapel Hill, NC, for Appellees.

Before: MARTIN, ROGERS, and SUTTON, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge.
The Tennessee Department of Finance appeals the district court's denial of its motion to vacate a settlement between the parties in a suit for Medicaid benefits. Tennessee argues that the agreed order approving the settlement should be treated as a consent decree and vacated under Federal Rule of Civil Procedure 60(b)(5) because an intervening decision of this Court, Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006) (“ Westside Mothers II”), eliminated the legal basis for the settlement and thus made it inequitable to enforce prospectively. We REVERSE in part and REMAND for further proceedings consistent with this opinion.
I.
This appeal stems from the settlement of a § 1983 suit brought by a class of mentally disabled Tennessee residents. In the underlying suit, the class members alleged they were eligible for services under the Medicaid Act either in an Intermediate Care Facility for the Mentally Retarded (ICF/MR) or in a host or group home through Tennessee's “home and community based services” Medicaid waiver program (HCBS),FN1 but had been denied the opportunity to apply for waiver services, had their applications denied, or had been determined to be eligible for services but were put on a waiting list. In so doing, the plaintiffs argued that Tennessee violated Medicaid law in five ways: (1) by failing to provide medical assistance in “adequate amount, duration, and scope” in violation of 42 U.S.C. § 1396a(a)(10); (2) by failing to provide eligible defendants a choice between ICF/MR and HBCS waiver services in violation of 42 U.S.C. § 1396n(c)(2); (3) by failing to inform eligible individuals of the application process with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8); (4) by failing to serve individuals with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8); and (5) by failing to provide written notices *544 and an opportunity to be heard when services are denied in violation of 42 U.S.C. § 1396a(a)(3) and the due process clause of the Fourteenth Amendment.

FN1. Medicaid is a federal “grant-in-aid” program that helps states pay for health services for the needy. Grant-in-aid programs are contractual in nature-that is, states that accept federal Medicaid funding must develop a state Medicaid plan that complies with the terms and conditions upon which the federal funds were offered. State plans must include certain services, and may include others if the state chooses, but the services offered must meet the requirements of the Medicaid Act unless a waiver of certain requirements is approved by the Federal Center for Medicaid Services in the Department of Health and Human Services (CMS) under 42 U.S.C. § 1396n. The provisions at issue in this case arise within the “home and community-based services” waiver. Enrollment in this waiver program is capped at the number of slots proposed by the state and approved by CMS. 42 C.F.R. § 441.303(f)(6); see generally State Medicaid Directors Letter No. 01-006 (Jan. 10, 2001), available at http:// www. cms. hhs. gov/ smdl/ downloads/ smd 011001 a. pdf.
Following the district court's denial of cross-motions for summary judgment, the parties negotiated a settlement that was later approved by the district court in an agreed order it issued June 15, 2004. Under this settlement, Tennessee agreed that it would overhaul its administrative system, expand funding and programs for the mentally disabled, and develop program infrastructure with the goal of increasing program enrollment and substantially reducing or eliminating the waiting list for waiver services. J.A. 103. The agreement prescribed Tennessee's objectives for the first two years of the agreement, and provided that its goals for years three through five would be negotiated within two years. J.A. 10607, 112-13. The agreement would then expire at the end of the fifth year, on December 31, 2009. J.A. 121
After the initial two year period, the parties disagreed as to whether Tennessee had met the goals set for the first two years and they were unable to reach an agreement as to goals for years three through five. The magistrate judge supervising the case thus declared an impasse and referred the matter back to the district court (as provided in the settlement). Tennessee then moved to vacate the agreed order

approving the settlement and dismiss the suit based upon an intervening Sixth Circuit decision, Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006) (“ Westside Mothers II”). In Westside Mothers II, this Court rejected a suit alleging that Michigan had violated the Medicaid Act by failing to ensure the provision of diagnostic services to eligible children because Medicaid is a reimbursement scheme, not a scheme for state-provided medical services. 454 F.3d at 539-41; cf. 42 U.S.C. § 1396d(a) (“The term ‘medical assistance’ means payment of part or all of the cost of [covered] care and services.”). In its motion, Tennessee argued that the settlement was intended to remedy its alleged noncompliance with the Medicaid statute by failing to ensure eligible individuals had access to waiver services, but that Westside Mothers II had since established that no such duty exists. This, Tennessee argued, constituted a change in circumstances that entitled it to relief from prospective enforcement of the agreement under the Supreme Court's decision in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), which held that it is inequitable under Rule 60(b)(5) to enforce a consent decree when the violation it intends to remedy has ceased to be illegal due to a change in law. See J.A. at 049, 052053. The district court denied this motion, and Tennessee now appeals.
II.
A.
Medicaid requires participating states to provide “medical assistance” to eligible individuals, 42 U.S.C. § 1396a(a), and that it be provided with “reasonable promptness.” 42 U.S.C. § 1396a(a)(8). But what “medical assistance” means in this context has been the subject of disagreement in the federal courts. The district courts that initially addressed this issue took the view that “medical assistance” means “medical services,” and held that states had a duty to ensure that eligible individuals received medical services with “reasonable promptness.” See, e.g., Sobky v. Smoley, 855 F.Supp. 1123, 1147 (E.D.Cal.1994) (“ § 1396a(a)(8) requires ‘Medical assistance under the plan’ to be furnished with reasonable promptness, and this can only mean medical services.”).
*545 The initial courts of appeals to address this

issue followed suit without much discussion. See Doe v. Chiles, 136 F.3d 709, 715 n. 13 (11th Cir.1998) (following Sobky); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002) (following Doe). But in Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir.2003), the Seventh Circuit offered an alternative interpretation. Observing that “medical assistance” is defined in the statute as “financial assistance,” Judge Posner suggested that the state has no duty to ensure that individuals receive services, but only to provide reimbursement for their costs. Id. at 910. This distinction, he noted, “was missed in Bryson v. Shumway and Doe v. Chiles.” Id.
In Westside Mothers II, this Court followed Judge Posner's dicta in Bruggeman and rejected a suit by a class of Medicaid-eligible children who argued that Michigan was violating federal law by failing to provide or arrange for the provision of certain screening, diagnostic, and treatment services. 454 F.3d at 540. Observing that the Medicaid Act defined “medical assistance” as “payment of part or all of the cost of ... care and services,”42 U.S.C. § 1396d(a), we concluded: “The most reasonable interpretation of § 1396a(a)(8) is that all eligible individuals should have the opportunity to apply for medical assistance, i.e., financial assistance, and that such medical assistance, i.e. financial assistance, shall be provided to the individual with reasonable promptness.” Id. at 540. Thus, we held that plaintiffs had failed to state a claim under either section 1396a(a)(8) because they sought to compel the state to arrange for the provision of such services or provide them itself. Id.
Most recently, in Mandy R. v. Owens, 464 F.3d 1139 (10th Cir.2006), the Tenth Circuit applied our reasoning in Westside Mothers II to a suit brought by a class of eligible individuals seeking services under a Home and Community-Based Services waiver program (the same program as here). Explaining that “medical assistance” is defined as “financial assistance,” the Mandy R. court held that the state's duty was limited to “pay[ing] promptly and evenhandedly for medical services when presented with the bill.” Id. at 1143. Thus, the class members failed to state a claim because they were on a waiting list for services, not payment. Id. at 1143.
[1] We believe that the Tenth Circuit's application of Westside Mothers II in Mandy R. accurately states the law of our circuit on a state's obligations to provide

“medical assistance” under the Medicaid statute and applies with equal force to this case: absent more, a waiting list for waiver services does not violate federal law because the state's duty is to pay for services, not ensure they are provided.
B.
[2][3] Federal Rule of Civil Procedure 60(b)(5) authorizes a court to grant relief from final judgment if “applying it prospectively is no longer equitable.” Whether prospective enforcement is no longer equitable under Rule 60(b)(5) is a fact-intensive inquiry within the broad equitable powers of a district court. Accordingly, we review a district court's denial of a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(5) for abuse of discretion. Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir.2007). Under this standard, we defer to the district court's ringside view of the proceedings, including its understanding of the underlying complaint and the meaning and purpose of the settlement, and we will affirm absent “a definite and firm conviction that the trial court committed a clear error of judgment.” *546Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 132-33 (6th Cir.1990) (citations omitted).
In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Supreme Court explained that under Rule 60(b)(5), “A party seeking modification of a consent decree may meet its initial burden by showing a significant change either in factual conditions or in law,” id. at 384, 112 S.Ct. 748 and that consequently, “modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree is designed to prevent.” Id. at 388, 112 S.Ct. 748; see also Agostini v. Felton 521 U.S. 203, 238, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“It is true that the trial court has discretion, but the exercise of discretion cannot be permitted to stand if we find it rests upon a legal principle that can no longer be sustained.”). The Rufo rule flows from the insight that a consent decree designed to remedy violations of federal law is not a private contract; it is a judicial decree enforcing rights created by federal law through means agreed upon by the parties. So if a change in law eliminates the rights and duties the consent decree is designed to enforce, then it should not be enforced simply because the parties agreed to

it. See Biodiversity v. Cables, 357 F.3d 1152, 116970 (10th Cir.2004).
The district court in this case misapplied Rufo, as it denied Tennessee's motion on the grounds that its obligations under the settlement were contractual and thus unaffected by Westside Mothers II:
In settling the underlying litigation, Defendants willingly accepted a contractual duty to ensure the provision of medical services to persons on the DMRS waiting list to help accomplish the parties' “overriding common interest” in “assuring that Tennessee's citizens with mental retardation are provided reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe environment.” Neither Rufo, Sweeton, Westside Mothers II, nor Mandy R. requires the Court to relieve the defendants of the solemn obligations they voluntarily assumed under the Agreement.
As explained above, the fact that Tennessee settled this case is beside the point. What matters under Rufo is not that Tennessee agreed to take the actions specified in the settlement, but what those actions were intended to remedy: if the settlement was premised on the understanding that the Medicaid statute imposed upon Tennessee a duty to ensure the provision of medical services, then Rufo counsels that we vacate the agreed order because Westside Mothers II established that no such duty exists.FN2 So the remaining question is whether Tennessee has carried its burden of proof.
FN2. The district court retained jurisdiction over the settlement agreement “for all purposes” and it is thus the functional equivalent of a consent decree. See Vanguards of Cleveland v. Cleveland, 23 F.3d 1013, 1018 (6th Cir.1994) (observing that an agreed order “places the prestige of the court behind the agreement reached by the parties” and that the prospective provisions of such operate as an injunction).
C.
[4] There can be little doubt that Westside Mothers II represents an important change in law. Prior to Westside Mothers II, it was an open question in our

circuit whether a state's duty to provide “medical assistance” required it to ensure that all eligible individuals received services, and the weight of authority in other circuits favored such an interpretation. After Westside Mothers II and Mandy R., it is *547 clear that no such duty exists. But, even acknowledging the significance of this change in law, we are not convinced that the dramatic relief Tennessee seeks-for us to vacate the settlement in its entirety-is appropriate at this juncture.
First, the parties characterize the underlying litigation and goals of the settlement in very different ways, and it is not clear from the sparse record whether Westside Mothers II completely undermined the settlement. Tennessee argues that the settlement was intended to eliminate its waiting list for Medicaid services based upon a perceived statutory duty to ensure that services were provided to all eligible individuals. Plaintiffs, however, disavow this characterization of the underlying litigation. Instead, they contend that they were seeking information about the waiver program, access to it, and enrollment in available slots (at least up to the statutory cap) so that they could obtain Medicaid funds.
The record does not conclusively show which party's description of the underlying litigation is correct. Plaintiffs' complaint is pleaded generally and could plausibly be read to support either theory. We have no record of the settlement discussions between the parties or their pre-settlement arguments to the district court. The district court's initial order was brief and denied summary judgment on all five of plaintiffs' claims. And Tennessee's duties under the settlement agreement are not clearly intended to remedy one theory but not the other. As a result, we cannot say with certainty that Westside Mothers II had the effect Tennessee contends or warrants the relief it requests. In our view, it is difficult to determine whether this consent decree was undermined to a degree sufficient to justify relief when the basis and meaning of the decree are not clear and the district court has yet to interpret it. As a result, we hesitate to vacate the decree in its entirety at this stage. If plaintiffs' account of the underlying litigation is as revisionist as Tennessee claims, then Tennessee is entitled to full relief from prospective enforcement. But the district court will have to address this matter on remand.

Second, the settlement is about to expire-its five year term runs out at the end of this year, and Tennessee's duties under it will then cease. So, given that only part of the settlement is in clear conflict with Westside Mothers II, and that Tennessee's obligations will soon end, we do not believe that equity necessarily requires that we vacate the decree in its entirety now.
Third, Tennessee may be able to obtain relief from enforcement of the settlement during its final nine months even if we do not fully grant it here. Tennessee has two safety valves available to it under the settlement itself. First, the agreement provides that Tennessee's duty to enroll additional individuals into the waiver program is conditioned on both the availability of a waiver slot and funding for that slot. J.A. 109. Second, and more significantly, section IX.B.5.d of the settlement agreement provides that if the parties return to court to litigate claims of noncompliance, “[a]fter two years following the approval of this Agreement, defendants may defend any action for non-compliance on the grounds that defendants are in compliance with the federal laws that are the basis of the underlying action which is the subject of this Agreement.” FN3 J.A. at 117-18. Tennessee *548 is currently defending a pending enforcement action on this very ground. If the district court accepts Tennessee's view of the case on remand, Tennessee will avoid all of its obligations under the settlement anyway. Because the district court has yet to rule on this motion or otherwise interpret the provisions of the settlement, we feel it is premature to vacate the settlement in its entirety at this time.
FN3. Tennessee argues in the alternative that we should vacate the settlement based upon its own terms, but the basis for this appeal is the district court's denial of Tennessee's motion to vacate the agreed order under Rule 60(b)(5), so Tennessee is not “defend[ing] an[ ] action for noncompliance” and this provision does not apply here.
[5] These things considered, we do not believe the district court abused its discretion in refusing to vacate the settlement in its entirety. But it did misapply Rufo, and it did abuse its discretion in refusing to modify the agreement at all. At this time,

we will modify the decree in two ways. First, we vacate Tennessee's commitment to develop “provider network capacity,” J.A. 112, which does not appear to remedy any violation of federal law after Westside Mothers II.Second, any commitment Tennessee arguably made to eliminate the waiting list for services is likewise unenforceable after Westside Mothers II.Absent more, a waiting list for waiver services is not inconsistent with Tennessee's duty to provide “medical assistance” to individuals eligible for its HCBS waiver with “reasonable promptness.”
FN4
FN4. We acknowledge that enrollment in the waiver program is capped at the number of slots proposed by the state and approved by CMS, and we do not take the plaintiffs to contend that Tennessee has a unlimited duty to enroll eligible individuals in its HCBS waiver. To the extent that is plaintiffs' position, we reject it now. We express no opinion as to whether Tennessee has a duty to enroll eligible individuals up to the waiver-enrollment cap or whether such a duty was contemplated by the settlement agreement at issue in this case.
On remand, the district court should consider the agreed order in light of its knowledge of the history of this case and our discussion of Westside Mothers II and Mandy R. to determine whether and to what extent the settlement should be enforced during its final nine months of existence.
III.
For the foregoing reasons, we REVERSE in part and REMAND for further proceedings.
C.A.6 (Tenn.),2009. Brown v. Tennessee Dept. of Finance and Admin. 561 F.3d 542, Med & Med GD (CCH) P 302,769
END OF DOCUMENT

 
 (2008)
LAKERSKO BROWN, et al., Plaintiffs, v.
TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION and M.D. GOETZ, Jr., Commissioner, Defendants.
No. 3:00-0665.
United States District Court, M.D. Tennessee, Nashville Division.
July 8, 2008.
MEMORANDUM
ROBERT L. ECHOLS, District Judge
Pending before the Court is Plaintiffs' Second Amended Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 218), to which Defendants filed a response in opposition (Docket Entry No. 230) and Plaintiffs filed a reply (Docket Entry No. 232). The Court heard oral argument on the motion on January 23, 2008.
I. PROCEDURAL HISTORY
On May 1, 2001, the Court certified a class comprised of mentally retarded Tennessee residents who are eligible for Medicaid services through State and privately owned Intermediate Care Facility/Mental Retardation ("ICF/MR") facilities, pursuant to 42 U.S.C. § 1396a, or who are eligible for home-based services through a Home and Community-Based Services ("HCBS") waiver for the mentally retarded, pursuant to 42 U.S.C. § 1396n, and who request services under these programs, but who (1) are denied the opportunity to apply for such services; (2) apply for services under these programs and are denied; or (3) are placed on a waiting list for services under these programs. Following denial of the parties' crossmotions for summary judgment and a fairness hearing, the Court entered an Agreed Order on June 15, 2004, approving a Settlement Agreement ("the Agreement") executed by the parties.
In the Agreement, the parties verbalized the purpose of their compromise:
The parties enter into this Agreement recognizing that their overriding common interest is in assuring that Tennessee's citizens with mental retardation are provided reasonable opportunities to grow and develop, exercise independence, and lead full and productive lives in a safe environment. . . . The parties recognize that individuals with mental retardation eligible for ICF/MR level of care have been placed on waiting lists for mental retardation services. This Agreement is intended to eliminate or substantially reduce the waiting list for services by providing for: (1) the development of the mental retardation system infrastructure and provider network capacity necessary to support the expansion of quality home and community based waiver services; (2) access to interim services for Medicaid-eligible individuals seeking services; and (3) an appropriate planning process for the future expansion and/or development of home and community based waiver programs and services for Medicaid-eligible persons with mental retardation on the DMRS[1] waiting list.

(Docket Entry No. 218-1, Ex. A, Settlement Agreement at 2-3.)
The parties acknowledged in the Agreement that "defendants cannot fully anticipate the rate of growth of the DMRS waiting list, the amount of legislative appropriations for home and community based MR services, or the maximum number of waiver participants that will be approved by . . . (CMS)[.]"[2] The parties set as a goal, however, "to eliminate or substantially reduce the waiting list for services for Medicaid-eligible persons with mental retardation that meet the ICF/MR level of care criteria." (Id. at 3.)
The State agreed to (1) seek approval from CMS for a new Medicaid Self-Determination Waiver[3] ("SD waiver") and fund the enrollment of 600 enrollees during the first year after approval and 900 enrollees during the second year; (2) provide $12 million in each of fiscal years 2003-2004, 2004-2005 and 20052006 in HCBS waiver improvement funding; (3) implement a targeted case management program within six months of the approval of the Settlement Agreement; (4) develop a program to provide consumer directed support to individuals on the waiting list in the "crisis," "urgent," or "active" categories who are not receiving family support services, with funding capped at $2,280.00 per person, not to exceed $5 million per year; (5) make best efforts to achieve relief from the moratorium imposed by CMS in May 2001 on new admissions to the HCBS waiver; and (6) implement a series of reforms to the process for applying for MR services. The Agreement provides that:
defendants' commitment is to: 1) work toward lifting the moratorium on new admissions to the existing home and community based MR waiver program as soon as possible; 2) develop MR service system infrastructure; 3) apply for new waivers so that the DMRS waiting list will move at a reasonable pace; and 4) strive to provide services to Medicaid-eligible persons with mental retardation that meet the ICF/MR level of care criteria on the waiting list with reasonable promptness. It is defendants' intent to reach the goals of this Agreement without reducing the funding for other services to individuals with mental retardation.
Id.
Defendants met or exceeded some of these goals, most notably achieving the removal of the moratorium on new admissions to the HCBS waiver, receiving the approval for the new SD waiver, and enrolling over 2,200, rather than 1,500, individuals in the waivers during the first two years of the Agreement.[4] At the time the Agreement was approved by the Court in June 2004, there were approximately 3,200 individuals on the DMRS waiting list. (Docket Entry No. 228-1, Oct. 29, 2007 Norris Depo. at 91.) By August 2007, the statewide DMRS waiting list had grown to 6,032, and of those, 1,091 persons were included in the "crisis" category. (Docket Entry No. 218-5 Ex. E, Aug. 2007 Brown Data Report.) An individual in need of MR services is considered to be in "crisis" if that person is either homeless or threatened with homelessness within thirty days; has suffered the death, incapacitation or loss of a primary caregiver and lacks an alternate primary caregiver; or presents a serious and imminent danger of harm to self or others. (Agreement at 4.) Also, as of August 2007, of the 6,032 persons on the waiting list, 473 individuals were placed in the "urgent" category. (Ex. E, Aug. 2007 Report.) "Urgent" means the individual "needs services soon and meets one or more of the following criteria: (1) aging or failing health of caregiver and no alternate caregiver is available to provide supports; (2) living situation presents a significant probability of abuse or neglect; (3) increasing risk of aggressive or assaultive behavior toward self or others; (4) stability of current living situation is severely threatened due to extensive support needs or family catastrophe; or (5) discharge from other service system (including but not limited to: school, DCS, RMHI, Forensics) is imminent." (Agreement at 5.) Thus, as of August 2007, there were a total of 1,564 "crisis" and "urgent" cases awaiting enrollment in MR services. Of the 6,032 on the waiting list in August 2007, 3,158 persons were included in the "active" category. (Ex. E, August 2007 Report.) The term "active" defines "a category of need which means the person and/or conservator/guardian is requesting services as of now but does not have the intensive needs which meet the criteria for "crisis" or "urgent."[5] (Agreement at 5.)

The parties attempted to negotiate and submitted to mediation the question of appropriate expansion and provision of MR services for the third, fourth and fifth years covered by the Agreement, but they could not reach an acceptable resolution. The Magistrate Judge declared an impasse and referred the matter to this Court. Thereafter, Defendants sought to vacate the Agreement, and the Court denied that request. (Docket Entry Nos. 199-200, Memorandum and Order.) The Court's decision refusing to vacate the Agreement is currently on appeal to the Sixth Circuit.
II. PLAINTIFFS' MOTION TO ENFORCE THE SETTLEMENT AGREEMENT
Now before the Court is Plaintiffs' motion to enforce provisions of the Agreement relating to years one and two. Plaintiffs contend that Defendants failed to satisfy the terms of the Agreement in three ways: (1) Defendants failed to spend $5 million per year on consumer directed support ("CDS funds") in violation of Section VI. C. of the Agreement; (2) Defendants failed to spend $500,000.00 per month for interim support services in the nine (9) months between July 2004 and April 2005, in violation of Section VI. D. of the Agreement; and (3) Defendants failed to implement measures to address community infrastructure needs, including provider network capacity, in order to substantially reduce the waiting list or eliminate it entirely, as contemplated by the Agreement. The Court will summarize the parties' positions on each issue in turn.
A. Consumer Directed Support
Section VI. of the Agreement is entitled "Program Improvements." Paragraph "C." of Section VI. provides:
Within three months following the approval of this agreement or July 1, 2004, whichever is later, defendants will develop a program to provide consumer directed support to each individual who is on the waiting list in the crisis, urgent or active category but not currently receiving family support services. Beginning July 1, 2004, consumer directed support will be capped at an amount of $2280 per person per year not to exceed a total fiscal year annual expenditure of more than $5 million.
Enrollment will be phased in throughout the year. This Court approved the Agreement on June 15, 2004. Three months after the approval date, September 15, 2004, was later than July 1, 2004. Therefore, Defendants were obligated to develop by September 15, 2004 a program to provide CDS funds to individuals who were on the waiting list in the crisis, urgent or active categories, but not then receiving family support services.
In conjunction with Section VI.C. of the Agreement, DMRS adopted Policy #: 04.300.10.13, effective July 1, 2004 and revised October 21, 2004. This policy states that its purpose is to "ensure compliance with the Brown Lawsuit and to meet the needs of the individuals on the DMRS Waiver Waiting List[.]" (Docket Entry No. 220-1, Ex. L at 1.) The policy further states that "DMRS has established a statewidestandardized process for the utilization of Consumer Directed Supports." (Id.) The policy defines consumer directed supports as "[s]ervices, equipment or supplies not otherwise available to the individual through the Medicaid State Plan or other community resources that address an identified need, including those that improve and maintain the individual's opportunities for full membership in the community." (Id.)
Applicants for CDS funds were required to meet certain other eligibility requirements in addition to satisfying the criteria of the "crisis," "urgent" or "active" categories of the waiting list. (Id. at 3 C.) Also, services requested by applicants were required to (1) likely prevent the need for emergency or crisis services; (2) decrease the need for other services; (3) promote inclusion in the community; or (4) increase the individual's safety or welfare. (Id. at 2, VI.A.) CDS funds could be used for, but were not limited to, respite care, personal assistance, day care, home modifications, vehicular modifications,

communication/adaptive equipment and repair/maintenance, health care supplies, transportation, health related services, nursing, family counseling, recreational activities, evaluation, behavioral supports, and training. (Id. at 2-3, VI. B.)
The policy also stated:
D. The Regional Office case managers must follow the procedures outlined below for accessing Consumer Directed Supports:
D.1. Beginning July 1 of each fiscal year, DMRS will identify all current individuals on the DMRS Waiver Waiting List who are eligible to receive Consumer Directed Supports. DMRS will then distribute $4,500,000 of the state's total fiscal year obligation of $5,000,000 to all identified individuals, ensuring no single individual receives more than $2280. The Regional Office case managers may authorize payment for any service, supply or piece of equipment that meets the established criteria up to the maximum allotted for each person.
D.2. The Regional Office case managers may request payment for Consumer Directed Supports from the State's reserve funds of $500,000 if the following criteria are met:
a. The individual was determined eligible and received certain approved funds for Consumer Directed Supports on July 1 of the current fiscal year and now has additional needs that exceed or will exceed the amount of funds received; or
b. The individual was placed on the DMRS Waiver Waiting List after July 1 of the current fiscal year; and
c. The requested service, equipment or supply will likely prevent the need for emergency or crisis services; and
d. The individual's total fiscal year allotted funds will not exceed $2280.
(Id. at 3 (emphasis in original).) Although the Agreement did not specifically call for it, the DMRS policy on CDS funds provided that $500,000.00 of the $5 million yearly appropriation would be held in reserve to ensure that some CDS funds would remain for those applicants who applied late in the fiscal year. All requests for reserve funds were required to be submitted to the Central Office for review and approval. Significant to the pending motion is paragraph E. of Section VI. of the policy, which provides:
Within no more than ninety (90) days prior to the end of the fiscal year, all unused and unencumbered funds will be redistributed on a first come first served basis to all eligible individuals using the criteria set forth in section IV.A.
(Id. at 4.)
Plaintiffs contend that Defendants did not comply with the Agreement in the disbursement of CDS funds. In the first year of the Agreement, fiscal year 2004-2005, Defendants spent a total of $2,456,975.00 in CDS funds. (Docket Entry No. 218-2, Ex. B, Annual Report for FY 2005.) This means that Defendants spent less than half of the amount for consumer directed support contemplated by the Agreement for that fiscal year. In the second year of the Agreement, fiscal year 2005-2006, Defendants spent a total of $3,899,727.00 in CDS funds or about seventy-eight percent (78%) of the amount contemplated by the Agreement.
Plaintiffs ask the Court to order specific enforcement of the Agreement and require Defendants to pay a prorated amount of the total deficiency from the first two years ($3,643,398.00) in addition to the $5

million in CDS funds earmarked for each remaining fiscal year of the Agreement, 2007-2008, 2008-2009, and 2009-2010. In other words, the total amount available for CDS funds should be increased in each of the three remaining fiscal years of the Agreement (one of which, year three, is nearing its end in July 2008) to a total of $6,214,466.00 per year ($5 million plus $1,214,466.00 (one-third of the total amount not paid out in years one and two)).
Additionally, Plaintiffs ask the Court to order that, during the ninety-day period prior to the end of each fiscal year remaining in the Agreement, a DMRS case manager will verbally explain the availability of CDS funds to each class member in the crisis, urgent or active categories and/or his or her legal representative. Plaintiffs also ask that such explanation include information about the difference between CDS funds and family support funds and the requirement for choosing one or the other. Further, Plaintiffs ask the Court to require that, after a case manager has provided this explanation, the case manager provide a form for the class member or his or her legal representative to complete and sign in order to indicate a choice between CDS funds and family support funds. Plaintiffs also ask that the Court direct that Defendants provide the completed forms to Plaintiffs' counsel for review and monitoring purposes. Finally, Plaintiffs ask that, within the thirty (30) day period after the beginning of each fiscal year remaining in the Agreement, a DMRS case manager provide an invoice to all class members who chose to receive CDS funds and verbally explain how to complete that invoice in order to receive timely payment.
Plaintiffs propose these measures because they say Defendants failed to identify persons eligible to receive CDS funds in years one and two, Defendants failed to explain clearly to individuals on the waiting list during those years how to apply for CDS funds, Defendants did a poor job of publicizing the availability of CDS funds, particularly the availability of funds from the $500,000.00 reserve held until the last 90 days of each fiscal year, Defendants had technical problems processing invoices for those who did apply, and Defendants did not give an adequate explanation to Plaintiffs as to how the unexpended CDS funds appropriated for the first and second years were ultimately disbursed.
Plaintiffs produce two declarations of parents whose children are on the DMRS waiting list. Penny Carter attests that her son eventually received CDS funds after her initial difficulty in obtaining the funds, and the case manager did not tell her about the availability of reserve funds. Ms. Carter learned about CDS reserve funds only when she attended a regional meeting. She requested the funds thereafter, but she does not reveal whether her application was approved. (Docket Entry No. 232, Ex. B, Carter Decl.)
Brenda Marcellino attests that she, also, had difficulty in obtaining CDS funds for her son after they moved to Tennessee from Florida in October 2006. The first case manager did not provide information about the funds, and Ms. Marcellino first learned about the funds from her son's second case manager sometime during 2007. When Ms. Marcellino contacted the second case manager to request additional services, he did not return her calls. Next, Ms. Marcellino contacted a DMRS regional supervisor on November 29, 2007, who informed her that if she placed her son in a residential setting he would receive more services. Ms. Marcellino replied that she did not wish to place her son in a residential setting. At that time the supervisor informed Ms. Marcellino of the CDS funds and assigned a third case manager, who informed Ms. Marcellino that her son might be eligible for reserve funds. When Ms. Marcellino asked if everyone on the waiting list was notified by DMRS about the reserve funds, he said "no." He explained that "this is discretionary and that only those who call in will receive reserve funds." (Docket Entry No. 232, Ex. C, Marcellino Decl.)
Such difficulties in obtaining CDS funds can be traced, Plaintiffs suggest, to Defendants' failure to explain clearly to members of the class how to apply for these funds early in year one, fiscal year 2004-2005.[6] On August 5, 2004, Stephen Norris, Deputy Commissioner, Division of Mental Retardation Services, wrote a memorandum to individuals then on the waiting list explaining the consumer directed support program, the amount of funds that would be available during the fiscal year, and the process by which the funds would be distributed. (Docket Entry No. 220-5, Norris Memorandum.) Plaintiffs fault Commissioner Norris for failing to include "instructions regarding steps that need to be taken to apply for these funds or any explanation that plaintiffs had a right to enroll at that time." (Docket Entry No. 223, Memorandum at 4.)

The Court notes, however, that Commissioner Norris' memorandum informed eligible plaintiffs that the consumer directed support program was part of the settlement in the Brown lawsuit and would be "phased in over the next year beginning September 17, 2004." (Docket Entry No. 220-5 at 1.) This beginning date of the program coincided with the expiration of the 90 days after the Court's approval of the Agreement as stated in Section VI.C. of the Agreement. Further, in his memorandum Commissioner Norris listed Plaintiffs' counsel at that time, Mr. Gary Housepian, as the first contact person to call with any questions about the settlement. He also gave toll-free telephone contact information for Paula McHenry in the DMRS Central Office and similar contact information for the local regional offices in West, Middle, and East Tennessee. Recipients of the memorandum were encouraged to call these individuals with any questions. (Id.)
On February 16, 2005, Commissioner Norris sent out a follow-up memorandum to individuals on the waiting list and repeated the information he included in his earlier August 2004 memorandum. He also stated that, as part of the phase-in of the program, case managers in each grand region were working with individuals on the waiting list to let them know about the program and whether or not a particular individual was eligible. He explained that individuals receiving his memorandum may be eligible to receive funds through consumer directed support. He explained that each person would have a case manager to assist them in accessing the funds, and he listed the types of services that would be covered. Commissioner Norris listed names, titles, and telephone numbers for contacts in each grand region and asked recipients of the memorandum to contact their local regional offices to confirm their eligibility. He also stated that such funds had to be accessed no later than June 30, 2005. (Docket Entry No. 220-6, Norris Memorandum.)
Again on June 10, 2005, Larry Latham, Assistant Commissioner, Community and Facility Services of DMRS, sent a memorandum to individuals on the waiting list notifying them of the availability of consumer directed support funds in year two of the Agreement, fiscal year 2005-2006. (Docket 221-1, Ex. R, Latham Memorandum.) He explained that the consumer directed support program and the family support program both utilized state funds only and therefore, individuals could be approved for funds under one program only. He estimated that each eligible person on the waiting list would be entitled to $1,623.00 in CDS funds[7] and the Family Support Coordinator could explain upon request how much funding might be available to an individual under that program. Latham included much of the same information Norris had included in his prior memoranda, and Latham asked the reader to contact a person named in the memorandum to make a choice between the two funds for the upcoming fiscal year. Latham stated that if "we do not hear from you, we will consider that you have chosen Family Support funds." (Id. at 2 (emphasis in original).)
On July 11, 2005, after the fiscal year began, Commissioner Norris sent out another memorandum to individuals on the waiting list containing much of the same information and increasing the per-person amount available to $1,852.00 for fiscal year 2005-2006. (Docket Entry No. 221-2, Ex. S, Norris Memorandum.) He again included contact information for each grand region and the DMRS central office. On January 24, 2006, Latham sent out another memorandum, reminding readers that they may be eligible for CDS funds during the fiscal year and that such funds had to be accessed by June 30, 2006. (Docket Entry No. 221-3, Ex. T, Latham Memorandum.)
Defendants counter that they followed the terms of the Agreement in formulating and implementing the consumer directed support program, the General Assembly appropriated $5 million for the consumer directed support program in each of the first two years of the Agreement, and DMRS made aggressive attempts through mail, town hall meetings, and case manager contacts to notify potentially eligible persons of the availability of CDS funds. Defendants also contend that they enlisted the help of Tennessee's MR advocate community to inform individuals on the waiting list about the CDS funds. Defendants state that DMRS expanded the infrastructure of each regional office to process registrations and requests for assistance, as well as provide case management to every person on the DMRS waiting list. Defendants contend that the Agreement capped the amount payable to each eligible person at $2,280.00, and consequently, the large number of individuals on the waiting list required proration of the available funds so that in each fiscal year the amount available to each individual was $2,280.00 or less.

Because eligible participants did not apply for CDS funds available to them, Defendants claim they could not pay out all of the appropriated $5 million. Finally, Defendants point out that Plaintiffs never suggested in the first two years of the Agreement that Defendants' outreach efforts were inadequate. Indeed, Plaintiffs' counsel played an integral role in the communications effort.
Commissioner Norris avers in a declaration that during both years, "to the best of [his] knowledge, no individual on the Waiting List was denied reimbursement for any qualifying supplies, equipment, or services up to the individual maximum." (Docket Entry No. 231, Norris Decl. ¶¶ 12, 15.) However, he acknowledged in his October 29, 2007 deposition that the unexpended CDS funds were used at the end of the fiscal year to "close the books on the agency"; in other words, on the last day of the fiscal year the funds were moved to other line items in the agency's budget to balance the books for the fiscal year, and the CDS funds were not carried over into the next fiscal year. (Docket Entry No. 228-1 at 19, Norris Depo.) DMRS received supplemental appropriations from the legislature in fiscal years 2004-2005 and 20052006. These supplemental appropriations were needed to cover budgetary overages caused by enrolling more individuals from the waiting list than required by the Agreement or anticipated in the budget and to pay for a much higher percentage than anticipated that was enrolled in the existing and more expensive HCBS waiver. (Docket Entry No. 231, Norris Decl. ¶¶ 12-17.) The existence of these supplemental appropriations ($21.5 million in fiscal 2004-2005 and $56.9 million in fiscal 2005-2006) led Commissioner Norris to conclude that CDS funds did not revert to the state's general fund at the end of the fiscal year, but rather, "each spare dollar that we had at the end of the fiscal year did, in fact, go to community services." (Docket Entry No. 228-1 at 21-27, Norris Depo.) He avers in a declaration that the $21.5 million budget shortfall for Community Services in fiscal year 2004-2005 was net of the budget savings resulting from the fact that the State spent only $2.457 million of the $5 million budgeted for the CDS program. He further avers that the $52 million overage in fiscal year 2005-2006 was net of the budget savings resulting from the fact that the State spent $3.9 million of the $5 million budgeted for the CDS program. As a result, the savings from the CDS program in years one and two were effectively utilized to enroll additional individuals from the waiting list. (Docket Entry No. 231, Norris Decl. ¶¶ 14-17.) Commissioner Norris also attests that any invoicing payment issues were resolved and did not impact the services provided to any individual on the waiting list. (Id. ¶ 18.)
According to Commissioner Norris, the addition of more than 2,200 enrollees from the waiting list over two fiscal years had an enormous impact on DMRS' Community Services program. In July 2004, the HCBS waiver served a total of 4,370 enrollees and the SD waiver did not yet exist. By the end of fiscal year 2006, a total of 6,806 persons were enrolled in the two waivers, an increase of 2,436. Thus, the program grew by over fifty-five percent (55%) during those two years, with the vast majority of the growth due to the enrollment of individuals from the waiting list. DMRS' success in recruiting additional providers has enabled the program to accommodate such a large influx of new enrollees. Despite these efforts, the waiting list continues to increase. (Id. ¶¶ 26-27.)
Thus, it appears DMRS admits that the CDS funds remaining at the end of fiscal years 2004-2005 and 2005-2006 were not spent specifically on services to eligible persons on the waiting list as contemplated by the Agreement. Rather, the CDS funds were used generally to meet DMRS' community services budget needs for persons receiving waiver services.
In reply Plaintiffs respond that the sheer size of the total of unexpended CDS funds in years one and two$3,643,398.00-shows that Defendants did not make a concerted, good-faith effort to identify and disburse the CDS funds to the members of the class for whom the funds were intended. Plaintiffs emphasize that DMRS' admission that it spent CDS funds to provide services to people enrolled in waivers establishes a clear violation of the Agreement because state money intended for the members of the plaintiff class were spent on individuals outside the class. Plaintiffs point to Defendants' own policy, which provides that, during the last 90 days of a fiscal year, all unused CDS funds will be distributed to class members on a first come, first served basis. Plaintiffs state they "would have no objection to Defendants' failure to disburse the full CDS amount if, after Defendants made a good faith effort to identify and inform all persons eligible for CDS funds, that failure were based on a technicality such as only 2000 class members needing these funds." (Docket Entry No. 232, Reply Memorandum at 4.) But Plaintiffs deny that

Defendants made a good faith effort to distribute the CDS funds to those entitled to them, and Plaintiffs again point to the Carter and Marcellino declarations as evidence of this.
B. Interim Support Services
Section VI. D. of the Agreement provides:
There shall be additional interim services provided to the plaintiffs if the defendants have not obtained CMS approval and began enrolling persons in the Self-Determination Waiver by July 1, 2004. For each month that the State has failed to obtain approval and begin enrollment, the defendants will provide $500,000 per month in state funds to serve Medicaid-eligible individuals on the DMRS waiting list who meet ICF/MR level of care criteria as determined through the Pre-Admission Evaluation (PAE) process. No person shall receive more than $30,000 per year interim services. Persons receiving interim services may be transitioned to the Self-Determination Waiver upon approval of the waiver by CMS.
(Docket Entry No. 218-1 at 17.) This provision was placed in the Agreement to encourage DMRS to act quickly to obtain approval of the new SD waiver from CMS. DMRS received approval for the new waiver and began enrolling individuals into the waiver on April 14, 2005. Thus, under Section VI. D. of the Agreement, Plaintiffs claim that DMRS was obligated to spend $4.5 million in state funds for interim services for persons on the waiting list between July 2004 and April 2005. DMRS reported in May 2005, however, that as of April 2005, it had distributed a total of only $536,908.00 in state funds for interim services. (Docket Entry No. 218-4.) According to Plaintiffs, this results in a deficiency of $3,963,092.00 that should have been spent on interim services. Plaintiffs claim the money that should have been spent on them for interim services, like the money earmarked for consumer directed support, was instead used to provide waiver services for individuals who had already been removed from the waiting list. (Docket Entry (Docket Entry No. 228-1 at 29-30, Norris Depo.)
Defendants report that the State provided interim services to 453 members of the Plaintiff class during the period, expending approximately $5,269,556.19 in state funds through March 31, 2005 to do so.[8] (January 23, 2008 Hr'g, Def. Ex. 1; Docket Entry No. 230-8.) Defendants also reveal that the State spent another $160,703.90 in state funds providing interim services to individuals who were subsequently determined to be outside of the plaintiff class (most of whom turned out to be not eligible for Medicaid), for a grand total of $5,430,260.09 expended on interim services.
Commissioner Norris indicates he is aware Plaintiffs point to a DMRS document showing that the State spent only $536,908 in state funds for interim services during the applicable time period, but he attests that the document on which Plaintiffs rely does not capture the full amount that the State spent providing additional interim services, utilizing state funds, to Medicaid-eligible individuals on the waiting list. He says that the expenditures referenced by Plaintiffs are limited to state funds expended on individuals enrolled in the precursor of what became the SD waiver upon approval by CMS. In addition to those expenditures, however, the State provided state-funded interim services to many other individuals during the period between July 1, 2004 and April 14, 2005 who were subsequently converted to the HCBS or SD waivers. (Docket Entry No. 231, Norris Decl. ¶¶ 20-21.)
Moreover, Norris attests, the State enrolled many more individuals in the crisis category from the waiting list into the HCBS waiver during this period, and spent far greater amounts of state funds providing services to them. Expenditures under the SD waiver are capped at $30,000 per year, and as a result, individuals on the waiting list with the greatest needs could not be appropriately serviced on the SD waiver. Accordingly, DMRS enrolled as many of those individuals as possible into the HCBS waiver. While the CMS moratorium on the HCBS waiver was still in place during this period, CMS did permit the State to enroll individuals in crisis in the HCBS waiver notwithstanding the moratorium. As a result, the State was able to deploy the bulk of the state funds that it agreed to spend in Section VI. D. of the

Agreement in a manner that served far more people because each state dollar spent on the HCBS waiver was matched by two federal dollars and served those persons on the waiting list with the greatest needs. (Id. at ¶ 21.)
Plaintiffs respond that the information Defendants provided to them prior to December 4, 2007 showed that the State spent only $536,908.20 in interim support services. It was not until December 4, 2007 that Defendants provided to the Plaintiffs the accounting for interim support services (Docket Entry No. 231-8) attached as an exhibit to Commissioner Norris' Declaration. (Docket Entry No. 233-6, Cover Letter.) Plaintiffs claim it is improper for the State to take credit for money paid for HCBS waiver services that were matched by federal funds. The Agreement was written so that the State would provide $500,000 per month in its own money in interim support services in the months before the SD waiver was approved. Additionally, the Agreement capped the amount to be spent on each person at $30,000 a year, and Plaintiffs argue that Defendants should not be allowed to take credit for state money spent on those individuals who received more than $30,000 per year. Taking the information from Defendants' accounting exhibit, Plaintiffs devised their own exhibit (Docket Entry Nos. 232-6, 233-1, Exs. F & G), and recalculated the total amount of interim support services they believe should be counted. They reached a figure of $1,254,777.86, rather than the State's total figure of $5,430,260.09. Subtracting what they say the State actually paid for interim services under the Agreement-$1,254,777.86-from the $4.5 million the State should have paid, Plaintiffs ask that the Court to award them the difference-$3,245,222.14.
In conducting this calculation, Plaintiffs eliminate any of the funds, state or federal, included in the column "Waiver Payment to Provider-6 & 9" on the ground that this column represents money the State improperly spent on HCBS waiver services in order to receive matching federal dollars prior to the time CMS approved the new SD waiver. Plaintiffs point to the column titled "Payment to Provider — 5 & 8 Service Codes" as showing pure state dollars spent on interim services. However, they reason that any individual who received more than $30,000 per year, in excess of the cap established by Section VI. D. of the Agreement, must be eliminated from the calculation. Thus, Plaintiffs turn to the "Total cost" column and calculate the totals for each person listed. For those who received more than $30,000 per year, Plaintiffs add up the amounts of pure state payments made for those individuals, shown in the column "Payment to Provider — 5 & 8 Service Codes." This total equals $1,485,771.77 in state dollar payments Plaintiffs say were improperly spent, and they do not count them toward the State's $4.5 million obligation in interim support services. Subtracting $1,485,771.77 from $2,733,549.63, the total that Defendants claim to have made in state payments (Docket Entry No. 233-1 at 62), Plaintiffs reach a figure of $1,254,777.86, which is the most they say Defendants can claim credit for paying out in interim support services.
C. Community Infrastructure Development
Plaintiffs contend that the Defendants made a commitment in the Preamble and Guiding Principles section of the Agreement (Docket Entry No. 218-1 at 7-8, Agreement) to pursue two avenues: (1) develop the mental retardation system infrastructure and provider network capacity necessary to support the expansion of quality home and community based waiver services; and (2) develop an appropriate planning process for the future expansion and/or development of home and community based waiver programs and services for Medicaid-eligible persons with mental retardation on the DMRS waiting list and to develop MR services system infrastructure. Specifically, Plaintiffs contend that in years one and two, Defendants violated Section VI. E. of the Agreement, which provides:
Defendants will immediately begin implementation of measures to address community infrastructure needs. The infrastructure development plan will include measures designed to address the service system design, including service coordination, quality assurance, stakeholder communication, and fiscal accountability; as well as provider network capacity. These measures will be designed to assist the defendants[] in obtaining relief from the moratorium by CMS for new admissions to the existing Home and Community Based Services Waiver. Defendants agree to exert their best efforts to obtain relief from this

moratorium and shall report to the parties at least quarterly the status of those efforts. If the defendants
have not achieved complete relief from the moratorium by July 1, 2005, the plaintiffs, at their sole option,
may declare this Agreement dissolved and thereafter request the Court to set a case management
conference to set a scheduling order and trial date. Plaintiffs assert that the State was required to begin
immediately to implement measures to address community infrastructure needs, including provider
network capacity. Plaintiffs take the position that infrastructure development is a continuing obligation
which is necessary for achievement of the Agreement's goal of substantially reducing or eliminating the
waiting list.
Despite these commitments of the Defendants in the Agreement and the explicit language of Section VI. E., Plaintiffs claim that Defendants engaged in few, if any, meaningful efforts in the first two years of the Agreement to assess or increase the capacity of the provider network in Tennessee. In addition, Plaintiffs state, the few efforts that Defendants did make occurred near the end of the two-year period when it was already too late for such efforts to result in an increased provider network capacity for years three, four, and five of the Agreement. Despite the West Tennessee Community Development Planning Taskforce's June 2006 issuance of a plan designed to ensure development of the provider network in that region, DMRS did not respond to the taskforce recommendations and failed to implement virtually all of the recommendations. (Docket Entry No. 219-4, Ex. I.) Commissioner Norris stated that DMRS had not implemented the recommendations of the taskforce because DMRS had not gotten to it yet. (Docket Entry No. 228-2 at 14, 17, Norris Depo.) He further acknowledged that DMRS regional directors were not given goals or quotas regarding growth of the provider network or required to document their efforts to contact existing providers regarding expansion of the network. He also agreed that Defendants have not performed any comprehensive survey of growth capacity of current or new providers and stated the idea to conduct such a survey had not occurred to him. He expressed surprise that one survey of existing providers apparently was conducted by regional DMRS staff, and he was not aware of a document called the 2006-2007 DMRS GAPS in Services Form which indicated that surveys concerning new provider development were responded to by nine providers in the East Region, eight in the Middle Region, and three in the West Region. (Docket Entry No. 222-3.) DMRS' assessment of the ability of the provider network to grow is not based on empirical evidence, but on nothing more than Commissioner Norris' instincts that a certain number of persons can be served by the provider network. (Docket Entry No. 2193 at 34-35, 41-44, Norris Depo.)
Plaintiffs complain that to date, Defendants have failed to even create a comprehensive list of existing service providers, and Defendants have undertaken unilateral efforts to restrict enrollment into waivers to fifty (50) persons per month because of limited provider network capacity. During March 2006 and February 2007, Defendants themselves submitted revisions to CMS that requested a reduction in the number of available waiver slots and thereby ensured that there would be a reduction in the maximum number of waiver participants approved by CMS. This caused the number of individuals on the waiting list to increase and virtually assures that the goals of the Agreement will not be met by the end of year five.
Commissioner Norris testified that a reduction in waiver slots in fiscal year 2006-2007 was imperative to give the State "breathing space" after enrolling so many people into the waivers in the first two years of the Agreement at greater cost to the State than anticipated. (Docket Entry No. 219-2 at 2, 5, Norris Depo.; Docket Entry No. 219-3 at 48, Norris Depo.) Because so many DMRS resources were devoted to getting the moratorium lifted and achieving approval of the new SD waiver, Commissioner Norris acknowledges that achieving growth in the provider network was not a top priority. However, Defendants took other important and preliminary steps to improve the provider network, such as severing ties with providers giving substandard services, writing a provider manual to set service definitions, rewriting the rate structure so that the system is more predictable for providers, and clarifying the role of support coordination agencies. With these critical improvements well underway, Commissioner Norris admits that Defendants are "not very far" in developing the provider network, but he agrees that the work must be done, (Docket Entry No. 219-3 at 24-26, 29, Norris Depo.) and believes that Defendants can devote more resources to encouraging growth in the provider network. (Docket Entry No. 219-2 at 7-13.) He harbors serious doubt that the provider network capacity can grow to the extent necessary to eliminate the waiting

list by year five, but he does think the waiting list can be reduced significantly. (Id. at 3, 17-18; Docket Entry No. 219-3 at 32, 38, 46, 50, 52.)
Defendants take the position that Section VI. E. obligated them to develop and implement an infrastructure development plan "designed to assist the defendants in obtaining relief from the moratorium by CMS for new admissions to the existing Home and Community Based Services Waiver[,] and they claim that they did so. Specifically, DMRS developed the Blueprint Workplan and implemented it during the second half of 2004 and the first half of 2005. (January 23, 2008 Hr'g, Def. Ex. 2.) Defendants contend that, in accordance with the Blueprint Workplan, DMRS put into place a host of infrastructure improvements during fiscal year 2004-2005, including implementation of: (1) a new Quality Management System that included a Protection from Harm segment and a revised Quality Assurance assessment; (2) a new service system design in the form of a provider oversight structure that includes compliance monitoring and technical assistance on a regional and statewide basis; (3) a standardized assessment process using the Inventory for Client and Agency Planning to determine individual level of service needs for each individual in the service delivery system; (4) a revision of the Individual Support Planning process, which now includes a risk assessment component and a streamlined format; (5) a new rate structure system designed to attract new providers; (6) a new Provider Manual designed to capture all provider requirements in a single document; (7) a "Real Systems Change Grant" awarded by CMS to initiate a new Consumer and Family Satisfaction Survey; and (8) Satisfaction Surveys for Direct Support Professionals and Independent Support Coordinators. In addition, DMRS created an Advisory Council consisting of stakeholders including parents, service recipients, providers, advocates, TennCare representatives, and DMRS staff to improve communications concerning systems implementation, policies and procedures, data management, and new ideas. (Docket Entry No. 231, Norris Decl. ¶ 23. & Ex. F.) As a result of these efforts, Defendants contend, CMS lifted the moratorium on new admissions into the HCBS waiver and approved the SD waiver effective April 14, 2005. (Id. ¶ 24.) Thus, Defendants contend they are in compliance with Section VI. E. of the Agreement.
In reply, Plaintiffs suggest that Defendants cannot have their cake and eat it, too. They cannot claim that they took adequate steps to develop a provider network and yet also claim that they can enroll only 50 individuals a month into waiver services because the provider network cannot handle higher growth. In order to develop a provider network sufficient to meet the needs of years three through five, Plaintiffs contend that Defendants should have done more to assess the provider network comprehensively and develop it in years one and two, but Defendants failed to engage in this fundamental task. Plaintiffs rely on the testimony and exhibits introduced at the deposition of Linda Maurice, DMRS' provider enrollment coordinator, in support of the argument that only one small-scale survey was done that showed a capacity for provider growth, no one at DMRS followed up on the survey, and Commissioner Norris was not even aware of the survey. Expansion or recruitment of new providers fell to regional directors or Brian Dion of the DMRS central office, but Defendants did not require these persons to keep any records reflecting what efforts they made to improve the provider network in the first two years of the Agreement. No goals were set for recruiting new providers or expanding existing ones. Defendants did not change the structure for recruiting providers until July 2007, over three years into the Agreement. Plaintiffs contend that they raised concerns with DMRS early in years one and two about steps to be taken to evaluate and develop the provider network and they deny Defendants' current position that Plaintiffs did not make their concerns known until now. (Docket Entry No. 233-7, Ex. M.) Although Defendants argue that they were required only to grow infrastructure in order to obtain relief from the moratorium, Plaintiffs emphasize that the language of the Agreement makes clear that infrastructure development is an ongoing obligation for the purpose of substantially reducing or eliminating the waiting list.
III. STANDARD OF REVIEW
District courts retain inherent power to enforce agreements entered into in settlement of litigation pending before them. Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992). In this case, the Court retained jurisdiction over the parties' Settlement Agreement according to its express terms. (Docket Entry No. 218-1, Settlement Agreement, Section IX.B.3.)

"Settlement agreements are a type of contract subject to principles of state contract law." Bamerilease Capital Corp., 958 F.2d at 152; Sweeten v. Trade Envelopes, Inc. 938 S.W.2d 383, 385 (Tenn. 1996). Under Tennessee law, the essential elements of a breach of contract claim are: (1) the existence of an enforceable contract; (2) nonperformance amounting to a breach of the contract; and (3) damages caused by the breach of contract. ARC Lifemed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005). A contract must be interpreted and enforced according to its clear, plain, and unambiguous terms. Gates, Duncan & Vancamp v. Levatino, 962 S.W.2d 21, 25 (Tenn. Ct. App. 1997). "When the language of the contract is unambiguous and there is no claim of fraud or mistake, the court must give effect to the intention of the parties as expressed in the language used in the agreement." Id. Moreover, the "law conclusively presumes that the parties to a contract understood its obligations, and evidence is not admissible to show that their understanding was in fact otherwise." Id. If the contract is deemed ambiguous, then the court may weigh extrinsic evidence to aid in the construction of the contract. Hamilton v. Gibson County Util. Dist., 845 S.W.2d 218, 224 (Tenn. Ct. App. 1992).
Specific performance is an equitable remedy, and generally a court will not award specific performance of a contract unless an award of damages is deemed an inadequate remedy. Hillard v. Franklin, 41 S.W.3d 106, 111 (Tenn. Ct. App. 2000). Before a court may grant specific performance of a contract, the court must find the contract is clear, complete and definite in all its essential terms. Id. The agreement must show beyond doubt that the minds of the parties actually met, and the agreement must be free from any suspicion of fraud or unfairness. Id. The determination whether a settlement agreement should be enforced lies within the discretion of the court and depends on the facts of each case. Id.
IV. ANALYSIS
Preliminary to the contract analysis, Defendants raise once again their contention that the Agreement should now be vacated under Section IX.B.5.d., more than two years after approval of the Agreement, on the ground that Defendants are in compliance with federal law as stated in Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006) and Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006). According to Defendants, these cases establish that Plaintiffs cannot state a claim under 42 U.S.C. §§ 1396a(a)(8) and (a)(10), the statutes underlying this lawsuit, because Defendants' only duty under those statutory provisions is to provide "financial assistance" to Medicaid beneficiaries, and Defendants have satisfied that duty. Defendants contend they are under no duty to ensure that service providers are actually available; their only obligation is to furnish reimbursement to those beneficiaries who do, in fact, procure providers, and this the State has done.
The Court addressed the argument previously in a Memorandum and Order (Docket Entry Nos. 199 & 200) denying Defendants' Motion To Vacate The Agreed Order Approving The Settlement Agreement And To Dismiss The Case. Defendants appealed the Court's Order, and the appeal is currently pending in briefing before the Sixth Circuit. The Court will not reiterate its entire analysis here, but will rely on the prior Memorandum and Order to again reject Defendants' argument for the same reasons stated previously.
Turning to the remaining issues before the Court, there is no question that the parties to this suit fairly negotiated their Agreement, that the parties reached a meeting of the minds as to the terms of the Agreement expressed therein, and that an enforceable contract in settlement of litigation was made and approved by the Court. At issue is whether Plaintiffs have established Defendants' nonperformance amounting to a breach of the contract and if so, whether specific performance is an appropriate equitable remedy for the Court to apply to remedy any breach.
A. Consumer Directed Support
The Court concludes that Plaintiffs have not established by evidence Defendants' nonperformance of Section VI. C. of the Agreement to warrant specific performance of that provision. In accordance with the

Agreement, Defendants devised and launched the consumer directed support program on time beginning in mid-September 2004. The program was phased in over the 2004-2005 fiscal year as contemplated by the Agreement. Defendants made various efforts through case manager contacts, town hall meetings and mail to reach individuals eligible for consumer directed support and to urge them to apply for the funds. Defendants provided contact information, including that for Plaintiffs' counsel, so that individuals could call to ask any questions about consumer directed support and family support services.
Defendants adopted a written policy, No. 04.300.10.13, to ensure compliance with the Agreement and to meet the needs of individuals on the waiting list. The policy established a statewide and standardized process to assure fairness in the distribution of consumer directed support funds. Those persons who applied received funds, and Plaintiffs produce no evidence otherwise. The Agreement did not require Defendants to expend $5 million each year; the Agreement provided that consumer directed support funds "will be capped at an amount of $2280 per person per year not to exceed a total fiscal year annual expenditure of more than $5 million."
Plaintiffs allege that Defendants did not make good faith efforts to identify eligible participants and expend $5 million in services for them in each of the first two years of the Agreement. There are several difficulties with Plaintiffs' position. First, Plaintiffs produced no evidence that Defendants failed to act in good faith to identify eligible participants, while Defendants produced evidence that they did act in good faith to reach and inform eligible participants. Plaintiffs have not suggested what more Defendants should have done to communicate the availability of consumer directed support funds to the appropriate constituency. Second, Plaintiffs fail to produce evidence that there were sufficient numbers of individuals in the "crisis," "urgent," and "active" categories in fiscal years 2004-2005 and 2005-2006 who specifically needed consumer directed support services, as opposed to family support services, to justify the expenditure of $5 million per year on those individuals. Third, Plaintiffs did not address Defendants' position that funds remained at the end of the first two fiscal years simply because eligible participants did not apply. Plaintiffs appear to suggest that Defendants should have awarded each eligible individual the maximum capped amount in services annually, regardless of whether each person applied or actually needed the services. The general language of Section VI. C. of the Agreement did not impose any such affirmative obligation on the Defendants; rather, that section of the Agreement provided only that Defendants would develop a program to provide consumer directed support funds, capped at $2,280 per person per year not to exceed a total fiscal year annual expenditure of more than $5 million. The Defendants complied with the letter of this provision.
Plaintiffs also allege that Defendants did not manage properly the funds remaining in the consumer directed support program, including the money left in the reserve fund, at the end of each fiscal year and that Defendants spent leftover funds to benefit waiver enrollees, not plaintiff class members. The Agreement is completely silent as to how leftover consumer directed support funds would be spent. Thus, Plaintiffs face an insurmountable obstacle in convincing the Court that Defendants breached Section VI. C. of the Agreement when the parties did not include in that section any term expressly addressing the issue of leftover consumer directed support funds.
The policy Defendants adopted did provide that "ninety (90) days prior to the end of the fiscal year, all unused and unencumbered funds will be redistributed on a first come first served basis to all eligible individuals using the criteria set forth in section IV.A." Other than Ms. Marcellino's declaration indicating that one case manager reported the State would disburse reserve funds only on request of an eligible individual, Plaintiffs did not produce any evidence that Defendants universally failed to award reserve funds on a first come first served basis. For all the Court knows from this factual record, every eligible individual who applied for reserve funds received them and there was still money left over. Even Plaintiffs' declarants do not state under oath that they were denied reserve funds. Plaintiffs have not produced sworn testimony of any eligible recipient who was denied consumer directed supports from the reserve fund.
But all of this is really beside the point in any event. Plaintiffs state in their Reply Memorandum that they "are not asking this Court to require Defendants to comply with their own policy. Instead, Plaintiffs are

simply asking this Court to require Defendants to comply with the Settlement Agreement that Defendants willingly entered." (Docket Entry No. 232, Reply Memorandum at 4.) As the Court previously stated, the evidence before the Court shows that the Defendants complied with Section VI. C of the Agreement. The Agreement was silent on the year-end disposition of consumer directed support funds. Defendants used the leftover funds to benefit HCBS waiver participants, many of whom had been recently enrolled from the waiting list (the plaintiff class) upon approval of the Agreement. Therefore, the Court declines to order specific performance on this issue.
B. Interim Services
This issue boils down to a factual dispute about the amount Defendants spent on interim services between July 2004 and April 2005. Information given to the Plaintiffs by the Defendants varies greatlyfrom $536,908.00 expended during the relevant period (according to the May 2005 monthly report) to $5,269,556.19 expended during the relevant period (according to the document first provided to Plaintiffs on December 4, 2007).
Due to the extraordinary difference between these two figures provided at different times by the Defendants, the Court can understand the Plaintiffs' frustration in receiving what appears to be incomplete or inaccurate accounting information from the Defendants. Also, like the Plaintiffs, the Court is inclined to conclude that, by claiming the larger figure in December 2007 while the instant motion was being briefed by the parties, the Defendants appear to be trying to take credit for state expenditures that may not be properly categorized as interim support services. Plaintiffs do not ask the Court to disregard the December 2007 accounting document in its entirety, but to rewrite it so that the figures favor the Plaintiffs.
Having carefully considered Plaintiffs' calculations and Defendants' explanation of the exhibits, the Court finds that Defendants expended $4,571,134.01 on interim services during the applicable period of July 2004 to April 2005, as shown on Defendants' Exhibit 1 produced at the January 23, 2008 hearing. As shown in that exhibit, Defendants subtracted $698,422.18 that the State spent on individuals who received more than the $30,000 cap in a given year. Even deducting this amount, Defendants expended over $4.5 million on interim services. Thus, the Court determines that Plaintiffs failed to show that Defendants breached Section VI. D. of the Agreement, and an Order of specific performance is not warranted.
C. Community Infrastructure Development
Finally, the Court reaches the issue of whether Defendants' seeming delay in taking steps to expand capacity of the current provider network or to recruit new providers so that more individuals can be accommodated from the waiting list is a violation of Section VI. E. of the Agreement. Defendants claim that their commitment to developing community infrastructure was really made only, as Section VI. E. states in part, to "assist the defendants[] in obtaining relief from the moratorium by CMS for new admissions to the existing Home and Community Based Services Waiver." Having accomplished the lifting of the moratorium in the Spring of 2005, Defendants seem to suggest that their obligation to develop the provider network was then at an end.
The Court does not accept Defendants' narrow view of Section VI. E. because, at the time the Agreement was executed, Defendants' commitment to community infrastructure development was broader and was memorialized in the Agreement itself. Section VI. E. must be read in light of the Agreement's Preamble and Guiding Principles, in which Defendants made a commitment to develop the mental retardation system infrastructure and provider network capacity necessary to support the expansion of quality home and community based waiver services, and to develop an appropriate planning process for the future expansion and/or development of home and community based waiver programs and services for eligible individuals on the waiting list. Commissioner Norris has repeatedly acknowledged under oath DMRS'

obligation under the Agreement to pursue these goals. In fact, in response to this motion, Defendants highlighted all of the steps they took, starting even before the Agreement took effect, to improve quality management of the provider network, streamline procedures, and re-write the rate structure, among other achievements. Commissioner Norris has continually emphasized that it was necessary to make these fundamental changes first in order to lay a proper groundwork for capacity expansion in the provider network. He candidly stated more than once under oath that DMRS simply "hasn't gotten to" many of the additional planning steps that are needed to improve community infrastructure development.
Plaintiffs are understandably frustrated because they have been making known to Defendants since shortly after the Agreement went into effect their concern that failure to plan for and develop the provider network adequately in years one and two would seriously impact DMRS's ability to substantially reduce or eliminate the waiting list by the end of year five. Defendants have not acted as quickly as Plaintiffs would like and at times it seems the left hand of DMRS does not know what the right hand is doing. There has not been a comprehensive empirical analysis of what the provider network can bear; rather, DMRS proceeds on the instincts of Commissioner Norris as to what the system can bear. DMRS staff have identified gaps in available services in various counties and regions of the State, but little to nothing has been done to close the gaps. In the meantime, the waiting list grows larger and the number of eligible persons enrolled every month from the waiting list decreases.
While the Court does not disparage any of Plaintiffs' legitimate concerns, the Court's role is simply to determine whether Plaintiffs have shown that Defendants breached Section VI. E. as it is written. The Court concludes that Plaintiffs have not shown a breach. Section VI. E. is very general in its terms and does not set any specific time limits by which Defendants should accomplish particular tasks in developing community infrastructure. The pertinent part of the Section states:
Defendants will immediately begin implementation of measures to address community infrastructure needs. The infrastructure development plan will include measures designed to address the service system design, including service coordination, quality assurance, stakeholder communication, and fiscal accountability; as well as provider network capacity.
All of the steps Defendants took in years one and two fell within the named categories, and Defendants undertook some of the steps even before the Agreement was signed. Defendants drew up the Blueprint Workplan and implemented it during late 2004 and early 2005.
Like Plaintiffs, the Court is left with the sense that perhaps Defendants could have done more in years one and two to analyze the provider network capacity, recruit new providers, and encourage expansion by current providers. On the other hand, the Court understands Commissioner Norris' point that all of the steps DMRS did take were necessary to correct fundamental flaws in the system and to make it more predictable so that providers would be willing to join the system or expand it. Such developments take time, money and effort and they often evolve at a snail's pace. But it is not the Court's job to tell the State how to prioritize its resources to develop community infrastructure faster when the parties themselves have not specified in their Agreement any dates or methods by which particular tasks must be done. The Court is powerless to rewrite the parties' bargain as stated in the Agreement. Consequently, the Court concludes in light of the broad language of Section VI. E. that Plaintiffs have not shown a breach by the Defendants.
In light of these conclusions, it is not necessary for the Court to reach Defendants' remaining arguments that the State is immune under the Eleventh Amendment from suit for failure to follow its own policy, that the relief sought would usurp Tennessee's control of its budget, or that the relief sought would entail modification of the Agreement.
V. CONCLUSION

For all of the reasons stated, Plaintiffs' Second Amended Motion For An Order For Specific Performance For Non-Compliance With Settlement Agreement (Docket Entry No. 218) will be denied.
An appropriate Order will be entered.
[1] "DMRS" refers to the Tennessee Division of Mental Retardation Services.
[2] "CMS" refers to the federal Center for Medicare and Medicaid Services.
[3] The Self-Determination Waiver "affords participants the opportunity — based on individual preference and the willingness to assume the responsibilities that accompany self-determination — to lead the person-centered planning process and directly manage certain services, including the recruitment and management of service providers." (Docket Entry No. 220-1, DMRS Policy #04.300.10.13 at 2.)
[4] By August 2007, a total of 2,405 individuals had been enrolled in the SD waiver (981) and the HCBS waiver (1,424).
[5] In year two, fiscal year 2005-2006, DMRS determined that nearly half of the individuals on the waiting list then were between the ages of 0-22, or "school-aged." (Docket Entry No. 218-3.)
[6] It is not clear to the Court how notification about CDS funds in 2004 or 2005 would have assisted Ms. Marcellino, who did not contact Tennessee about services for her son until October 2006, just before her move from Florida.
[7] This figure was obtained by dividing the $5 million appropriated by the total number of individuals on the waiting list in the "crisis," "urgent," and "active" categories. (Docket Entry No. 228-1, Norris Depo. at 10.)
[8] This figure and the exhibit support it were revised between the time the Defendants responded to the motion and the hearing. Thus, the outline of the parties' positions is based on their briefs, not the hearing exhibit, although the Court relies on the hearing exhibit in making its decision.