Case: 1:09-cv-1012 As of: 04/19/2017 05:24 PM CDT 1 of 2
U.S. District Court Western District of Tennessee (Jackson) CIVIL DOCKET FOR CASE #: 1:09−cv−01012−JDB−egb

CLOSED

United States of America v. The State of Tennessee et al Assigned to: Chief Judge J. Daniel Breen Referred to: Magistrate Judge Edward G. Bryant Cause: 00:0000 Cause Code Unknown
Plaintiff

Date Filed: 01/16/2009 Date Terminated: 01/20/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Harriett M. Halmon U.S. ATTORNEY'S OFFICE Federal Building 167 N. Main St. Ste. 800 Memphis, TN 38103 901−544−4231 Fax: 901−544−0854 Email: Harriett.Halmon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Leigh Grinalds U.S. ATTORNEY'S OFFICE 3rd Floor Federal Bldg. 109 S. Highland Ave. Ste. 300 Jackson, TN 38301 731−422−6220 Fax: 731−422−6668 Email: Vic.Ivy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The State of Tennessee
Defendant The Honorable Phil Bredesen Governor of the State of Tennessee, in his official capacity only
Defendant Executive Director Polly Darnall Tennessee State Veterans' Home Board, in her official capacity only
Defendant Interim Administrato Greg Corvig Tennessee Stae Veterans' Home − Humboldt, in his official capacity only
Defendant Administrator Russell Caughron Tennessee State Veterans' Home − Mufreesboro, in his official capacity only

Case: 1:09-cv-1012 As of: 04/19/2017 05:24 PM CDT 2 of 2

Date Filed 01/16/2009 01/16/2009
01/20/2009

# Docket Text
1 COMPLAINT against all defendants, filed by United States of America. (Attachments: # 1 Exhibit Certificate of the AG, # 2 Civil Cover Sheet, # 3 Judge's Card)(jlw) (Entered: 01/16/2009)
2 Joint MOTION to Dismiss With Entry of Stipulated Conditions Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure (Proposed Order Submitted) by United States of America. (Attachments: # 1 Settlement Agreement)(Grinalds, Richard) (Entered: 01/16/2009)
3 ORDER GRANTING 2 JOINT MOTION FOR CONDITIONAL DISMISSAL PURSUANT TO RULE 41(a)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE. Signed by Judge J. Daniel Breen on 1/20/09. (Breen, J.) (Entered: 01/20/2009)

 
 Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 1 of 9 PageID 1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF TENNESSEE; The

)

Honorable PHIL BREDESEN,

)

Governor of the State of Tennessee,

)

in his official capacity only;

)

POLLY DARNALL, Executive Director,

)

Tennessee State Veterans' Home Board, )

in her official capacity only; GREG

)

CORVIG, Interim Administrator,

)

Tennessee State Veterans'

)

Home - Humboldt, in his official

)

capacity only; and RUSSELL CAUGHRON,

)

Administrator, Tennessee State Veterans')

Home - Murfreesboro, in his official

)

capacity only,

)

)

_____________D__ef_e_n_d_an_t_s.___________))

CIVIL ACTION NO. COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff"), by its undersigned attorneys, hereby alleges upon information and belief:
1. The Attorney General files this Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, to enjoin the Defendants from depriving persons housed at the Tennessee State Veterans' Homes in Humboldt ("TSVH-Humboldt") and Murfreesboro ("TSVH-Murfreesboro"), located in Humboldt and Murfreesboro,

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 2 of 9 PageID 2
-2Tennessee, (collectively, the "TSVHs") of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein. 5. Venue in this district is proper pursuant to 28 U.S.C. § 1391 (b) (1).
DEFENDANTS 6. Defendant State of Tennessee ("State") owns and operates the TSVHs, and as such has responsibility for the conditions of care and treatment provided to residents living there. 7. Defendant PHIL BREDESEN is the Governor of the State of Tennessee, and, in this capacity, heads the Executive Branch of the State's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 3 of 9 PageID 3
-3-
such as the Tennessee Department of Veterans' Affairs. He appoints the members of the Tennessee State Veterans' Home Board.
8. Defendant POLLY DARNALL is the Executive Director of the Tennessee State Veterans' Home Board ("The Board"). The Executive Committee of the Board has the authority for planning, implementating, and operating the TSVHs.
9. Defendant GREG CORVIG is the Interim Administrator of TSVH-Humboldt and is responsible for the day-to-day operation of TSVH-Humboldt. TSVH-Humboldt is located in Gibson County Tennessee, which is in the Western Judicial District of Tennessee.
10. Defendant RUSSELL CAUGHRON is the Administrator of TSVH-Murfreesboro and is responsible for the day-to-day operation of TSVH-Murfreesboro. TSVH-Murfreesboro is located in Rutherford County Tennessee, which is in the Middle Judicial District of Tennessee.
11. The individual Defendants named in paragraph 7 - 10 above are officers of the State of Tennessee and are sued in their official capacities only.
FACTUAL ALLEGATIONS 12. Defendants are legally responsible, in whole or in part, for the operation of the TSVHs and for the health and safety of the residents residing at the TSVHs.

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 4 of 9 PageID 4
-4 13. The TSVHs are institutions within the meaning of
42 u.s.c. § 1997(1).
14. Defendants are obligated to operate the TSVHs in a manner that does not infringe upon the federal rights of individuals residing at the TSVHs, as protected by the Fourteenth Amendment to the Constitution of the United States and other federal law.
15. The TSVHs are long-term care facilities ("nursing homesH) providing residential, intermediate or long-term skilled nursing care. TSVH residents are primarily elderly residents, most of whom are veterans or family members of a veteran.
16. Defendants are obligated to provide services and activities to individuals residing in the TSVHs in a manner and environment consistent with Title XVIII and Title XIX of the Social Security Act and implementing regulations. 42 U.S.C. § 1395i-3, 42 U.S.C. § 1396r, and 42 C.F.R. § 483.
17. At all times, Defendants have acted or failed to act, as alleged herein, under color of state law.
18. Individuals are admitted to the TSVHs because they require skilled and long-term nursing care and related services and/or rehabilitation services for injuries, disabilities or sickness and require residential medical or nursing care, rehabilitation services, or health care and services for the treatment of such conditions.

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 5 of 9 PageID 5
-5-
19. Defendants have engaged in, and continue to engage in, a pattern or practice of failing to provide constitutionally adequate health care services to TSVHs' residents. Specifically, Defendants are failing to provide TSVHs' residents with:
a. adequate nutrition and hydration care; b. adequate and safe psychotropic medication
practice; and c. adequate pain management and end-of-life care. 20. Defendants have failed, and continue to fail, to provide TSVHs' residents with a safe environment by keeping residents safe from unreasonable harm and risk of harm from falling. 21. The factual allegations set forth in Paragraphs 19 and 20 have been known to Defendants for a substantial period of time; yet Defendants have failed to adequately address constitutionally deficient health care and undue safety risks for residents at the TSVHs.
VIOLATIONS ALLEGED COUNT ONE:
Violations of the Due Process Protections of the Fourteenth Amendment to the United States Constitution
22. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 21 as if fully set forth herein.

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 6 of 9 PageID 6
- 623. The acts and omissions alleged in paragraphs 19 and 20 constitute a pattern or practice that violates the federal rights of individuals residing in the TSVHs, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law. 24. Unless restrained by the Court, Defendants will continue to engage acts and omissions set forth in paragraphs 19 and 20 that deprive the TSVHs' residents of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
COUNT TWO: Violations of the Social Security Act 25. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 21 as if fully set forth herein. 26. The acts and omissions alleged in paragraphs 19 and 20 violate Titles XVIII and XIX of the Social Security Act and implementing regulations. 42 U.S.C. § 1395i-3, 42 U.S.C. § 1396r, and 42 C.F.R. § 483. 27. Unless restrained by the Court, Defendants will continue to engage in the acts and omissions set forth in paragraphs 19 and 20 that deprive the TSVHs' residents of rights,

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 7 of 9 PageID 7
- 7privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.
PRAYER FOR RELIEF 28. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable relief. WHEREFORE, the United States of America respectfully requests that this Court:
a. Declare that the acts, omissions, and practices set forth in paragraphs 19 and 20 above constitute a pattern or practice of resistance to the TSVHs' residents' full enjoyment of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States;
b. Permanently enjoin Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts and omissions set forth in Paragraphs 19 and 20 above, and require Defendants to take such actions as will ensure that lawful conditions of institutionalization are afforded to the TSVHs' residents; and

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 8 of 9 PageID 8
-8-
c. Grant such other and further equitable relief as the Court may deem just and proper.
Respectfully submitted, 9F'~M~RICA, Plaintiff
Attorney General of the United States

Case 1:09-cv-01012-JDB-egb Document 1 Filed 01/16/09 Page 9 of 9 PageID 9 - 9-

LAWRENCE J. LAURENZI United States Attorney
riJU:Cnne~

GRACE CHUNG BEC R Assistant Attorney

BY: s/ Harriett Halmon
Harriett Halmon Assistant United States Attorney 800 Federal Building
~.~I vtc"r:J~~S;1~7v'[~:eSr~~~~ tf''."~ '1 ;

s c
pecial Litigation Section
JUDY~
Deputy C ief Special Litigat' n Section

Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 601 D. St. NW PHB - Room 5928 Washington, DC 20004 (202) 514-6255 (202) 514-6273 (fax)

 
 MEMORANDUM OF AGREEMENT BETWEEN THE UNITED STATES AND THE STATE
 OF TENNESSEE REGARDING THE TENNESSEE STATE VETERANS’ HOMES

I. INTRODUCTION
 1. This Memorandum of Agreement (“MOA”) is entered into by

the United States and the State of Tennessee (“State”). This MOA
 addresses certain aspects of the United States’ investigation
 into the conditions of care and treatment of the residents in the
 Tennessee State Veterans’ Homes in Humboldt and Murfreesboro,
 Tennessee (collectively, “TSVHs”), pursuant to the Civil Rights
 of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. 

2. The United States’ investigation began on February 12,
 2007, when the United States notified the State, pursuant to
 CRIPA, that it was initiating an investigation into the
 conditions of care and treatment of TSVHs residents.

3. As part of the investigation, the United States toured
 the TSVHs in April, May, and July 2007. On February 5, 2008, the
 United States notified the State of the findings of its
 investigation, and thereafter, conducted another tour of the
 facilities in October and November 2008.

4. This MOA addresses certain concerns raised by the United
 States in its February 5, 2008 findings letter.

5. It is the position of the United States that the care,
 living conditions, and the treatment of TSVHs’ residents
 implicate rights of these residents that are secured or protected
 by the Constitution of the United States and the laws of the
 United States.


-2­
6. The State does not agree that conditions at the TSVHs
 implicate constitutional rights for the residents of the TSVHs. 
 Nothing in this MOA in any way impacts the State from raising
 such a defense in any legal proceeding.

7. The parties entering into this MOA recognize, that
 since the initiation of this investigation, the State has made
 efforts to improve the care it provides to TSVHs residents.

8. The parties agree to the provisions set forth in this
 MOA to ensure that these ongoing improvements continue to be
 implemented and maintained at the TSVHs. This MOA provides for
 actions, practices, and procedures that the State agrees to
 implement.

9. Each and every provision of this MOA is entered into by
 clear agreement of the parties.

10. In entering into this MOA, the State does not admit any
 violation of state or federal law, and this MOA may not be used
 as evidence of liability in any legal proceeding.

11. The provisions of this MOA are a lawful, fair,
 adequate, and reasonable resolution of part of this
 investigation.

12. The purpose of this MOA is to achieve the substantive
 outcomes set forth within this MOA.

13. This MOA is binding on the State and its agencies
 and/or departments that may have an effect, either directly or
 indirectly, either currently or in the future, on the operations
 of the TSVHs.


-3­
14. This MOA is not intended to impair or expand the right
 any person or organization to seek relief against the State, or
 its officials, employees, or agents for their conduct or the
 conduct of State employees; accordingly, this MOA does not alter
 legal standards governing such claims, including those under
 Tennessee law.

II. DEFINITIONS
 As used in this MOA Agreement, the following definitions
 apply to the terms below.
 15. "Adequate" or “appropriate” shall mean the level of
 service required for compliance with all applicable federal,
 state, and local laws, regulations, and codes, and with generally
 accepted professional standards; and also means that level of
 service required by a resident to attain or maintain the
 resident’s highest practicable physical, mental, and psychosocial
 well-being possible, given the resident’s functional status, as
 required by 42 C.F.R. § 483.25.
 16. “Care Plan” shall mean a written plan of care that meets
 the requirements of 42 U.S.C. § 1395i-3(b)(2) and (3), 42 U.S.C.
 § 1396r(b)(2) and (3), and 42 C.F.R. § 483.20(k). 
 17. “The TSVHs” shall mean the Tennessee State Veterans’
 Homes in Humboldt and Murfreesboro, Tennessee. 
 18. “Highest Practicable” shall mean the highest level of
 function and well-being possible consistent with generally 
 accepted standards, limited only by the individual’s presenting 


-4­
functional status and potential for improvement or reduced rate
 of functional decline.

19. “Incident” shall mean any unusual or unexplained
 occurrence that results in actual or potential physical harm,
 pain, or mental anguish to a resident; any known, alleged, or
 suspected event of abuse, neglect, or exploitation of a resident;
 or any unexpected death of a resident. 

20. “Qualified Professional or Qualified Staff” shall mean
 an individual who is competent, whether by education, training,
 or experience, to make the particular decision at issue.

21. “Resident” shall mean any person residing at the TSVHs
 during the operation of this MOA.

22. “Substantial Compliance” shall mean a level of
 compliance that does not significantly deviate from the terms of
 this MOA, provided that such deviation poses no significant risk
 to a resident’s health or safety. Noncompliance with mere
 technicalities, or temporary failure to comply during a period of
 otherwise sustained compliance, shall not constitute failure to
 maintain substantial compliance. At the same time, temporary
 compliance during a period of otherwise sustained noncompliance
 shall not constitute substantial compliance.
 III. SUBSTANTIVE REMEDIAL MEASURES

A. HEALTH CARE ASSESSMENTS AND CARE PLANS
 23. At six months from the effective date of this MOA, or
 shortly thereafter, the United States will assess the TSVHs to
 determine if the State is ensuring that adequate and appropriate


-5­
health care services are offered to the residents of the TSVHs.
 24. The State shall continue to conduct comprehensive

assessments of each TSVH resident’s functional capacity
 consistent with 42 U.S.C. § 1395i-3(b)(3), 42 U.S.C.
 § 1395r(b)(3), and 42 C.F.R. § 483.20(b).

25. Consistent with the aforementioned statutes and
 regulation, the TSVHs shall continue to ensure that residents are
 provided, and have implemented by qualified staff, a care plan,
 developed by an appropriately comprised interdisciplinary team of
 qualified professionals, including a physician, a registered
 nurse, and a dietitian, and where appropriate, a psychiatrist, a
 pharmacist, or a rehabilitation/restorative therapist(s). The
 care plan shall describe the medical, nursing, and psychosocial
 needs of the resident and how such needs will be met. 

26. The State shall continue to ensure TSVHs’ staff are
 trained in TSVHs’ policies and procedures that reflect current
 standards of evaluating, monitoring, and treating the needs of
 the residents of the TSVHs. 

27. The State shall require that the TSVHs’ continue to
 adequately evaluate residents’ acute and ongoing medical status
 to ensure that residents’ health status is monitored accurately,
 and that residents who experience a significant change of status
 are evaluated and treated.

28. The State shall require that the TSVHs’ staff use all
 available data in their assessments (such as lab/diagnostic
 studies, other health professions’ data, etc.) to identify


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residents’ problems/conditions and revise care plans to address
 abnormal laboratory findings and any other problems/conditions.

29. The State shall continue to ensure that there are
 sufficient numbers of nursing staff, present and on duty on each
 shift at the TSVHs as required by 42 U.S.C. § 483.30; 42 U.S.C.
 § 1395i-3(b)(4)(C), (5), and (8); and 42 U.S.C.
 § 1395r(b)(4)(C),(5), and (8).

30. The State shall ensure that qualified professionals
 conduct morbidity reviews for every resident transferred to an
 acute care setting and that these morbidity reviews are reviewed
 to determine whether the TSVHs provided adequate care to the
 resident prior to the transfer. If a morbidity review identifies
 any deficiencies in care provided by the TSVHs, the TSVHs shall
 institute reasonable and appropriate corrective measures to
 address any such deficiency. 

31. The State shall ensure that qualified professionals
 conduct mortality reviews for residents who die at the TSVHs or
 who die at an acute care facility after being transferred there
 from the TSVHs, to the fullest extent that the TSVHs’s access to
 residents’ medical records from the acute care facilities
 permits. If a mortality review identifies any deficiencies in 
 care provided by the TSVHs, the TSVHs shall institute reasonable
 and appropriate corrective measures to address any such
 deficiency.

32. The TSVHs shall continue their ongoing efforts to
 implement adequate quality assurance mechanisms to monitor the


-7­
delivery of health care services to residents of the TSVHs,
 consistent with 42 C.F.R. § 483.75(o), 42 U.S.C. 
 § 1395i-3(b)(1)(B), and 42 U.S.C. § 1395r(b)(1)(B).

B. PRESSURE SORE PREVENTION AND CARE
 33. At six months from the effective date of this MOA, or
 shortly thereafter, the United States will assess the TSVHs to
 determine if the State has implemented measures to ensure that
 residents do not develop otherwise preventable pressure sores and
 that adequate and appropriate treatment is provided to residents
 who have pressure sores, as required by 42 C.F.R. § 483.25(c). 
 34. Consistent with the aforementioned regulation, the
 State shall continue to assess and identify residents who are at
 risk of developing pressure sores.
 35. The State shall continue to develop and implement
 adequate and appropriate skin care plans for residents identified
 as at risk of skin breakdown or with actual skin breakdown.
 36. The State shall continue to ensure that staff,
 especially staff dedicated to wound care treatment, are trained 
 adequately in current professional standards, practices, and
 techniques regarding pressure sore assessment and methods of
 care.
 C. REHABILITATIVE AND RESTORATIVE CARE
 37. At six months from the effective date of this MOA, or
 shortly thereafter, the United States will assess the TSVHs to 
 ensure that all residents receive adequate and appropriate 


-8­
rehabilitative and restorative care consistent with 42 C.F.R.
 §§ 483.25(a), 483.25(d), 483.25(e), and 483.45.

38. The State shall continue to ensure that residents
 receive adequate adaptive equipment, including wheelchairs, and
 that residents are appropriately positioned in wheelchairs.

39. The State shall continue to ensure that residents who
 need assistance with feeding or bathing, receive such assistance.

40. The State shall continue to ensure that residents who
 can ambulate with assistance, receive such assistance and are not
 unduly restrained.

41. The State shall continue to ensure that residents
 receive exercises, such as range-of-motion and walking, to
 prevent unnecessary loss of function. 

42. The State shall continue to ensure that residents who
 wander are provided the means to do so safely.

43. The State shall continue to ensure that residents who
 have behavior difficulties receive treatment to address such
 behaviors in as non-intrusive a manner as possible. 

44. The State shall continue to ensure that residents who
 could benefit from continence care programs, receive such
 programs.

D. ACTIVITIES AND PSYCHOSOCIAL PROGRAMS
 45. At six months from the effective date of this MOA, or
 shortly thereafter, the United States will assess the TSVHs to
 determine if residents are provided an adequate and appropriate 
 ongoing program of meaningful activities consistent with 


-9­
42 C.F.R. § 483.1(f), 42 U.S.C. § 1395i-3(b)(4)(A)(v), and 
 42 U.S.C. § 1395r(b)(4)(A)(v).

46. Consistent with the aforementioned statutes and
 regulation, the State shall ensure that activities and 
 psychosocial programs are directed by qualified professional(s).

47. The State shall continue to ensure that adequate and
 appropriate activities shall take place on weekends and evenings,
 as well as during the weekdays.

G. PROTECTION FROM OTHER HARM 
 48. At six months from the effective date of this MOA, or
 shortly thereafter, the United States will assess the TSVHs to
 ensure that the TSVHs’ residents are adequately and appropriately
 protected from harm, particularly harm resulting from the
 behavior of other residents. 
 49. The State shall, immediately upon the signing of this
 MOA, take reasonably effective steps to provide adequate and
 appropriate supervision of the residents of the TSVHs to protect
 them from harm resulting from instances of resident-on-resident
 assaults.
 50. The State shall continue to identify residents who are
 at risk of harm, or who pose a risk of harm to other residents,
 based upon residents’ cognitive impairments or dangerous
 behaviors, and develop and implement measures to protect
 residents from the potential of self-harm or harm to other
 residents.


-10­
51. The TSVHs shall continue to identify residents who are
 at risk of being victimized and take adequate steps to protect
 them. 

52. The TSVHs shall continue to ensure that whenever a
 resident suffers an injury or experiences any event that exposes
 the resident to mental, physical, or psychological harm, the
 State shall ensure that following occurs:

a. An incident report shall be completed at the time of
 the occurrence and submitted to the Medical Director and the
 Director of Nursing;

b. The Medical Director and the Director of Nursing shall
 review and sign all incident reports and initiate any appropriate
 administrative and/or clinical action;

c. At the time of the occurrence, a RN shall assess the
 resident to determine if there is actual or suspected injury and
 implement necessary and appropriate care to prevent further
 complications; 

d. A physician shall be notified immediately of any change
 in the resident’s condition as a result of the incident and shall
 evaluate the resident’s condition and the circumstances
 surrounding the incident and prescribe medical care as needed;

e. The resident’s family shall be promptly notified of the
 incident whether the resident suffers an injury or not; and

f. All incidents shall be investigated by the Director of
 Nursing or a competent designee.


-11­
53. The Administrator and the Director of Nursing or their 
 designee shall meet daily to discuss any incidents as well as any
 measures that should be taken to prevent further occurrences. 
 Further, the Administrator shall ensure that such incidents,
 including incidents of unknown origin, are reported to State
 authorities in accordance with state statutes and regulations. 
 See 42 C.F.R. § 483.13(c)(2).

54. For residents who sustain more than one injury during 
 any three-month period of time, the Director of Nursing, or the
 Director’s designee, shall refer the record(s) of each incident
 to an appropriately compromised interdisciplinary team for
 review.
 IV. IMPLEMENTATION OF THE MOA

55. This MOA will be effective on the date it is fully
 executed by the parties. 

56. Within one month of the effective date of this MOA, the
 State shall communicate to TSVH employees and any independent
 contractors involved in providing residents’ care of the
 conditions set forth in this MOA that are applicable to their
 respective job duties.

57. The United States and its expert consultants and agents
 may, at its discretion, tour the TSVHs to assess compliance with
 this MOA.

58. Prior to any tour, the United States shall provide
 reasonable notice to the State. Within a reasonable time in 


-12­
advance of the tour, the United States shall identify any expert
 consultants it plans to use on the tour.

59. The United States and its attorneys, expert
 consultants, and agents shall have reasonable access to the
 facilities, documents, records, residents, and employees of the
 TSVHs upon reasonable notice to the State for the purpose of
 ascertaining compliance with this MOA. Such access shall
 continue until this MOA is terminated as set forth in paragraph
 62 below.

60. Throughout the duration of the MOA, the United States
 and its expert consultants and agents will maintain the
 confidentiality of TSVH residents’ medical and personal
 information, to the fullest extent allowed by law.

61. Within a reasonable period of time after the conclusion
 of any visit, the United States shall make available to the State
 any post-tour reports prepared by its expert consultants.

62. This MOA will terminate 18 months after the effective
 date of the MOA. The MOA may terminate prior to the 18 month
 date if the parties agree that the TSVHs are in substantial
 compliance with each of the provisions of this MOA, and that the
 TSVHs have maintained substantial compliance for at least six
 months. 

63. Nothing in this MOA shall prevent the State from
 modifying or closing the TSVHs or from developing alternative
 community placements for the residents of the TSVHs


-13­
64. All parties shall bear their own costs, including
 attorneys’ fees, related to assessing compliance with this MOA.
 V. DISPUTE RESOLUTION

65. The parties will work in good faith to meet the terms
 of this MOA and maintain the goal of ensuring appropriate care
 for the residents of the TSVHs.

66. This MOA is binding upon the parties, by and through
 their officials, agents, employees, assigns, and successors.

67. If the State fails to comply with this MOA in whole or
 in part, the United States retains the right to seek appropriate
 judicial relief in federal court if, after sixty (60) days prior
 written notice to the State of the breach, the State has failed
 to cure such breach during the sixty (60) day period. Nothing in
 this MOA shall be construed to preclude the State from asserting
 any legal defense or theory in any legal proceeding. 

68. Failure by any party to enforce this entire MOA, or any
 provision thereof, with respect to any deadline or any other
 provision herein, shall not be construed as a waiver of its right
 to enforce other deadlines and provisions of this MOA.
 VI. MODIFICATION OF THE MOA

69. If, at any time, any party to this MOA desires to
 modify it for any reason, that party will notify the other party 


-14­
in writing of the proposed modification and the reasons therefor. 
 No modification will occur unless there is written agreement by
 the parties.

AGREED TO:

FOR THE UNITED STATES:
 /s/ Grace Chung Becker
 _________________________ GRACE CHUNG BECKER
 Acting Assistant Attorney
 General
 Civil Rights Division

/s/ Shanetta Y. Cutlar

SHANETTA Y. CUTLAR
 Chief
 Special Litigation Section

/s/ Judy Preston
 __________________________ JUDY PRESTON
 Deputy Chief
 Special Litigation Section 


-15­
/s/ Corey M. Sanders

________________________ VERLIN H. DEERINWATER
 COREY M. SANDERS
 Attorneys
 U.S. Department of Justice
 Civil Rights Division
 Special Litigation Section
 601 D. St. NW
 PHB - Room 5928
 Washington, DC 20004
 (202) 514-6255
 (202) 514-6273 (fax)

FOR THE STATE OF TENNESSEE:

ROBERT E. COOPER JR.
 Attorney General
 State of Tennessee

/s/ Pamela A. Hayden-Wood

PAMELA HAYDEN-WOOD
 WARREN JASPER
 Senior Counsel
 State of Tennessee
 Cordell Hull Building 524
 524 Fifth Avenue North 
 Nashville, TN 37243-0499