IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE Z008 SfP 23

P~I 4: 24

Sarah Crabtree, Velma Ledbetter, Carl Anders, )

George Dylan Brown, Willowdeen Burrows,

)

Hazel S. Graham, Harold Lee Murphey, Larry )

Scott Elvin, Megan Allen, Jessica W. Pipkin,

)

Florence Adams, Lena Burgess, Wihna F. Stills, )

Odell Owens, Ellar Lowman, Marvin Ray

)

Beny, Jr. , Carol Smith, Betty Tean Taylor,

)

Delores Baker, Loninda Mabry, Joel DeHaas,

)

Margaret Connelly,

)

3 08 0939·

Plaintiffs,

) )

No .

JUDGE TRAUGEi

)

v

)

)

David Goetz, Commissioner, Tennessee

)

Department of Finance and Administration;

)

Darin Gordon, Deputy Commissionel and

)

Director, Bureau of TennCare

)

)

Defendants.

)

COMPLAINT INTRODUCTION L This case is brought by individuals who range in age from 21 to 97 years old They suffer fiom a variety of chronic and disabling conditions, including cerebral palsy, muscular dystrophy, traumatic brain injury, Parkinson's disease, stroke, and Alzheimer's disease. The Plaintiffs have limited income, and they are all eligible for and obtain their health care selvices through TennCare, Tennessee's Medicaid program. The Department of Finance and Administration, which administers the program, has determined that each Plaintiffneeds home health and/or private duty nursing services. These Medicaid-funded selvices have allowed the Plaintiffs to live successfully at home, participating in family and commUIIity life.

419712C01as79e44-300:001 8-cv-00939 Document 1 Filed 09/23/08 Page 1 of 49 PageID #: 1

2. On or about August 8, 2008, the Department informed Plaintiffs that, starting on September 7, 2008, their home-based nursing services will be reduced and/or eliminated. Most people will qualify for private duty nursing services only ifthey are on a ventilator for at least 12 hours each day or have a tracheotomy. Home health nursing care (from licensed practical nurses (LPNs)) is being capped at no more than 8 hours each day, up to 27 hours each week, and home health aide care (nom certified nurse's assistants (CNAs) is being capped at no more than 8 hours each day These new limits are being imposed without regard to Plaintiffs' medical needs and without regard to whether the reductions in services will necessitate Plaintiffs' institutionalization. Plaintiffs, in order to reside in their homes and communities, have been previously approved for and received more than these capped amounts However, TennCareparticipating managed care organizations (MCOs) are telling providers to change their orders to reflect no more home care than the limited amounts; otherwise, their patients will get no care at all
3. These exclusions and inflexible caps are causing Plaintiffs to lose vital homebased nursing services.. Without these services, Plaintiffs will be forced into more restricted, segregated nursing home settings; some ofthe PlaintiffS have stated they would rather die than go into a nursing home.
4. The Tennessee General Assembly recently approved a new Long-Term Care Community Choices Act to correct Tennessee's acknowledged overreliance on nursing homes, which results in the unnecessary segregation ofpeople with disabilities.. See Long-Term Care Community Choices Act of 2008, Pub. Chap. No. 1180, Senate Bill No. 4181, An Act to amend Tenn. Code annotated, Title 63 and Title 68 and 71 (Long-Term
Case 3:08-cv-00939 Document 1 2Filed 09/23/08 Page 2 of 49 PageID #: 2

Care Community Choices Act) The new program will be implemented beginning next year The new program will broaden the availability of home and community based services (HCBS) that substitute social support services for both home-based nursing and institutional care in nursing facilities
5. The Tennessee General Assembly has recogrrized that "the current long-term care system is heavily dependent on the most costly services with 98 percent oflong-term care funding spent on institutional care and with limited utilization oflower cost home and community-based options even though such options would better meet the needs and preferences ofpeople who need care and their families" Id. Despite this, Defendants are not waiting for the implementation of the Long-Term Care Community Choices Act, but are immediately terminating or reducing commurrity-based services to Plaintiffs who will have no option other then institutional nursing facilities
6. Tennessee currently ranks 51st among state Medicaid programs in the provision of HCBS, the same rank it has held for many years, a problem the Governor and legislators have stated they will address with the new program. Defendants have stated that they are imposing the new limits on home health and private duty nursing services to encourage patients to make gr·eater use ofHCBS, even though the direct effect ofthe new limits will be to unnecessarily institutionalize PlaintiffS PlaintiffS do not oppose the new program or the State's goal of reducing the needless isolation ofpeople with disabilities in nursing facilities However, Defendants are imposing the nursing cuts before the new HCBS services are available and without making an individualized assessment ofthe most integrated setting in which TennCare services can be appropriately provided to the Plaintiffs. Defendants thus exacerbate the problem of
Case 3:08-cv-00939 Document 1 3Filed 09/23/08 Page 3 of 49 PageID #: 3

needless institutionalization by immediately forcing the Plaintiffs to go into nursing homes or face grave risks to their health.
7 The Department's actions violate the Americans with Disabilities Act (ADA), Title II, 42 U S.C § 12132, and its implementing regulations, and Section 504 ofthe Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulations. Among other things, these laws require the Department to administer its services and programs in the most integrated setting appropriate to the needs of the individual with disabilities.
8.. PlaintifIs seek declaratory and il\junctive reliefto preserve their care in the community until adequate HCBS alternatives are available that will ensure that Plaintiffs are able to receive TennCare services in the most integrated setting appropriate to their needs and conditions, which has been demonstrated to be in PlaintifIs' homes.
JURISDICTION AND VENUE 9 The Court has jurisdiction over PlaintiffS' claims under 28 US C §§ 1331 and 1343(a)(3) and (4) Declaratory and injunctive relief is authorized by 28 U S.c. §§ 2201 and 2202 and Fed. R Civ. P 65 Plaintiffs' causes of action for disability discrimination are authorized by 42 US C. § 12133 and 29 U S.C § 794(a}. 10. Venue is proper because a substantial part of the actions and omissions of which PlaintiffS complain occurred in this District 28 U S.C § 139l(b)
DEFENDANTS 11 David Goetz is the Commissioner of Tennessee Department of Finance and Administration He is the cabinet level official responsible for supervising Darin Gordon, the Director of TennCare As such, Commissioner Goetz is responsible for implementing and managing the Tennessee Medicaid program, including Tennessee's contracting with
Case 3:08-cv-00939 Document 1 4Filed 09/23/08 Page 4 of 49 PageID #: 4

Managed Care Organizations and Tennessee's Medicaid Home and Community-based Services (HCBS) Waiver far the Elderly and Disabled, and its fee-far-service nursing home payment system, consistent with federal law, including the Americans with Disabilities Act, Section 504 ofthe Rehabilitation Act, and the Medicaid Act Commissioner Goetz is sued in his official capacity
12 Darin Gordon is the Deputy Commissioner of the Tennessee Department of Finance and Administration and is the Directar ofthe Bureau of TennCare As such, he is responsible for day-to-day management ofTennCare consistent with federal law, including the Americans with Disabilities Act, Section 504 ofthe Rehabilitation Act, and the Medicaid Act Director Gordon is sued in his official capacity
PLAINTIFFS 13 Plaintiff Sarah Crabtree is a 28-year-old Medicaid recipient who lives in Gibson, Tennessee 14 Plaintiff Velma Ledbetter is a 72-year-old Medicaid recipient who lives in Livingston, Tennessee 15. Plaintiff Carl Anders is a 54-year-old Medicaid recipient who lives in Murfreesboro, Tennessee, 16 Plaintiff George Dylan Brown is a 28-year-old Medicaid recipient who lives in Hendersonville, Tennessee, 17, Plaintiff Willowdeen Burrows is a 93-year-old Medicaid recipient who lives in Mt. Juliet, Tennessee 18, Plaintiff Hazel S, Graham is an 89-year-old Medicaid recipient who lives in Crossville, Tennessee,
Case 3:08-cv-00939 Document 1 5Filed 09/23/08 Page 5 of 49 PageID #: 5

19 Plaintiff Harold Lee Murphey is a 30-year-old Medicaid recipient who lives in Rockvale, Tennessee
20. Plaintiff Lany Scott Ervin is a 29-year-old Medicaid recipient who lives in Alexandria, Tennessee
21 Plaintiff Megan Allen is a 21-year-old Medicaid recipient who lives in Portland, Tennessee
22 PlaintiffJessica W. Pipkin is a 27-year-old Medicaid recipient who lives in Lynnville, Tennessee
23. Plaintiff Florence ("Flonie") Adams is a 21-year-old Medicaid recipient who lives in Cookeville, Tennessee
24. Plaintiff Lena Burgess is a 97-year-old recipient of Medicaid who lives in Crossville, Tennessee
25 PlaintiffWihna F Stills is a 76-year-old Medicaid recipient who lives in Gray, Tennessee.
26. Plaintiff Odell Owens is an 80-year-old Medicaid recipient who lives in Columbia, Tennessee
27.. Plaintiff Ellar Lowman is a 74-year-old Medicaid recipient who lives in Chattanooga, Tennessee.
28 Plaintiff Marvin Ray Beny, Jr is a 36-year-old Medicaid recipient who lives in Murfreesboro, Tennessee
29 Plaintiff Carol Smith is a 30-year-old Medicaid recipient who lives in Knoxville, Tennessee
Case 3:08-cv-00939 Document 1 6Filed 09/23/08 Page 6 of 49 PageID #: 6

30 Plaintiff Betty Jean Taylor is a 69-year-old Medicaid recipient who lives in Mt Juliet, Tennessee
31. Plaintiff Delores Baker is a '78-yem-old Medicaid recipient who lives in Nashville, Tennessee
32. Plaintiff Loninda Mabry is a 43-year-old Medicaid recipient who lives in Antioch, Tennessee
33 Plaintiff Joel DeHaas is a 2l-yem-old Medicaid recipient who lives in Chuckey, Tennessee
34 Plaintiff Margaret Connolly is an 84-year-old Medicaid recipient who lives in Bristol, Tennessee
THE AMERICANS WITH DISABILITIES ACT 35 Title II ofthe Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits ofthe services, programs, or activities of a public entity or be subjected to discrimination by such entity. " 42 U S.C § 12132. 36 Regulations implementing Title II ofthe ADA require that a public entity administer its services, programs and activities in "the most integrated setting appropriate" to the needs ofqualified individuals with disabilities. 28 CF R. § 35.J30(d) 37 Regulations implementing Title II provide that "a public entity may not, directly or through contr actual or other mrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the pUlpose or effect of
Case 3:08-cv-00939 Document 1 '7Filed 09/23/08 Page 7 of 49 PageID #: 7

defeating or substantially impairing accomplishment ofthe objectives ofthe entity's program with respect to individuals with disabilities ," 28 CFR § 35130(b)(3)
38 The Department of Finance and Administration is a public entity under I itle II ofthe ADA and its implementing regulations,
SECTION 504 OF IHE REHABILITATION ACI 39 Section 504 ofthe Rehabilitation Act of 1973 provides, "No otherwise qualified individual with a disability in the United States"" " shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" 29 US C. § 794" 40, Regulations implementing Section 504 require a recipient offederal financial assistance to administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities" 28 C.FR § 41 51(d) 41 Regulations implementing Section 504 prohibit recipients of Federal financial assistance from [u]tiliz[ing] criteria or methods of administration, , (i) [t]hat have the effect of subj ecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the", ,effect ofsubstantially impairing accomplishment ofthe recipients' program with respect to handicapped persons" 45 CF R § 844(b)(4); 28 CFR § 4L51(b)(3)(i) 42" The Department of Finance and Administration is a program that receives Federal financial assistance under Section 504 and its implementing regulations Federal Medicaid funds account for approximately 63% of the cost ofthe Tennessee Medicaid program
8 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 8 of 49 PageID #: 8

MEDICAID AND TENNCARE 43 In 1965, Congress enacted Title XIX ofthe Social SecUIity Act, 42 US.c. § 1396-1396v, establishing Medicaid, a medical assistance program cooperatively funded by the federal and state governments The pUIpose of Medicaid is to fumish, as far as practicable, "medical assistance on behalf of.. aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services" and "to help such families and individuals to attain or retain capability for independence or self-care "42 US.c. § 1396 (emphasis added) 44.. The Secretary of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare & Medicaid Services (CMS), which has urged states pursuant to the ADA to avoid unnecessary institutionalization ofperson with disabilities in nursing facilities 45 State participation in Medicaid is voluntary. Once a state elects to participate, it must adhere to the federal legal requirements, as provided by the United States Constitution, the Medicaid Act and implementing regulations, the Americans with Disabilities Act (ADA), and Section 504 ofthe Rehabilitation Act of 1973 46. Coverage of certain services is mandatory under Medicaid for most Medicaid beneficiaries See 42 US.c. § 1396a(a)(1O)(A)(i) (incorporating 42 US.C § 1396d(a)(l)-(5), (17), (21)). Mandatory services include services in a nursing facility ld Mandatory services include home health services for "any individual who, under the state plan, is entitled to nUl sing facility services. " 42 USc. §§ l396a(a)(1O)(D), 1396d(a)(7) Coverage fO! home health services must include nursing services and home
Case 3:08-cv-00939 Document 1 9Filed 09/23/08 Page 9 of 49 PageID #: 9

health aide services, 42 CPR § 440. 70(b)(1) and (2), both of which Defendants are reducing or eliminating for each named Plaintiff
47. In addition, the Medicaid Act allows states to provide for coverage of home health nursing services for persons who are not entitled to nursing facilities services and private duty nursing because they meet the "level of care" requirements established by a state See 42 USc. §§ 1396a(a)(10)(A), 1396d(a)(7), (8), (22). Tennessee covers these services. On information and belief, Plaintiffs meet Defendants' "level of care" for a nursing facility.
48. The Medicaid Act authorizes states to obtain Home and Commnnity-based Services (HCBS) waivers from CMS to provide for alternatives to nursing home care and services. These programs cover a range of home-based services for limited numbers of Medicaid recipients See 42 USC. § 1396n(c) Tennessee covers these services.
49 The Bureau of TennCare is designated as the "single state agency" responsible for the administration and supervision of Tennessee's Medicaid Program under Title XIX of the Social Security Act, including both the managed car e and the long term care components See TeA § 71-5-104.
50 Under the Tennessee Medical Assistance Act of 1968, Defendants are required to administer the TennCare program in conformity with federal law and the terms of any federal waiver granted the state See TeA §§ 71-5-102,104
51 Until 1994, Tennessee operated its Medicaid program on a fee-for-service basis, paying claims submitted directly to the state by health care providers who served eligible individuals.
Case 3:08-cv-00939 Document 1 F1i0led 09/23/08 Page 10 of 49 PageID #: 10

52 In 1993, Tennessee obtained from the Secretmy of Health and Human
Services a Medicaid waiver under Section 1115 of the Social Security Act, 42 ns.c §
1315 The waiver permitted the State to replace its traditional Medicaid program with a program called TennCme
53 The Tennessee Medicaid program provides for coverage through two sepmately administered programs: (l) managed care, which is implemented through private managed care organizations (MCOs) on a pre-paid, capitated basis and which currently provides PlaintiHs with their home nursing services; and (2) long term cme, which is directly administered by the Depmtment and reimburses for both nursing home and Home and Community-based Waiver Services (HCBS) to prevent unnecessmy institutionalization An individual can be emolled in TennCare and receive services through the HCBS long term care program
54 The Depmtment emolls Medicaid recipients, including PlaintiHs, into managed cme organizations (MCOs) The Depmtment pays pmticipating MCOs to provide a medical home to emolled recipients, manage recipients' cme, and assure proper utilization of services, including home health nursing and private duty nursing services. The MCOs' contracts do not include payment for, or management of; emollees' HCBS waiver or institutional nursing home care
55 When deciding the type and scope of services that an individual TennCme emollee needs, the MCOs must apply the Depmtment's definition of medical necessity. That definition explicitly includes a determination ofwhether the requested service will supplant family or natural supports. See T.CA § 71-5-144(b)(1) (requiring the MCO to determine whether the service is for the convenience of an emollee or family member or
Case 3:08-cv-00939 Document 1 F11iled 09/23/08 Page 11 of 49 PageID #: 11

necessary for the eligible individual}. The Department has not terminated, withheld or reduced payments to any MCa nor sanctioned any MCa for misapplying the medical necessity definition by supplanting family or natural supports with TermCare-covered nursing care In order to obtain federal reimbursement, Termessee has repeatedly certified to CMS that it has administered the TermCare program in conformity with all applicable federal Medicaid requirements, which include a requirement that all services must be medically necessary for the patient who receives them.
56 According to the Department, the home care cutbacks are needed because the "unlimited availability ofthese services under the TermCare managed care program has meant that families and other natural caregiver support systems have been supplanted " Letter from Darin J Gordon, Director, Bureau of TermCare, Department of Finance and Administration, to Susan Cuerdon, Acting Director, Family and Children's Health Programs Group, Centers for Medicare & Medicaid Services at 2 (Feb. 29, 2008) (hereinafter "Gordon Letter of Feb. 29, 2008") (Ex A, Mot for Prelim. Inj).
57 The Department informed CMS that the reduction and elimination of home nursing services will result in Medicaid recipients' expanding their use of the Home and Community Based Services waiver for the Elderly and Disabled (HCBS-ED) Id. The State recently received approval from CMS to expand the HCBS-ED waiver to more people
58. The HCBS-ED waiver currently offers services including personal care services, home maker, case management, respite care, personal emergency response systems, home-delivered meals, and minor home modifications.. According to Defendant Gordon, "The State's HCBW waiver programs have never covered home health
Case 3:08-cv-00939 Document 1 F12iled 09/23/08 Page 12 of 49 PageID #: 12

services." Letter from DaIin I Gordon, Deputy Comm'r, to Gordon Bonnyman,
Tennessee Justice Center (Feb. 21, 2008) (Ex B, Mot. for Prelim. Inj)
59 On information and belief, there aIe approximately 4,700 individuals emolled
in the HCBS-ED waiver and 1,300 waiver "slots" that aIe unfilled and available.
Defendants have not referred Plaintiffs to the HCBS waiver slots; assessed the Plaintiffs
to determine ifthey would be eligible for these services; or determined what, if any,
changes might be appropriate in Defendants' existing HCBS waiver services which
would obviate the need for the persons to be institutionalized in nursing facilities
60. Effective July 1,2008, Tennessee's newly enacted Long-Term CaIe
Community Choices Act of2008 provides:
Sec 3 .. (c) The long-term CaIe system shall promote independence, choice, dignity, and quality of life .... and shall include consumer-directed options that offer more choices regarding the kinds oflong-term care services people need.
(e) The long-term CaIe system . .shall offer services delaying or preventing the need for more expensive, institutional CaIe.
Sec. 8(a) The commissioner shall develop level ofcaIe criteria for new nursing facility admissions which ensure that the most intensive level oflongterm CaIe services is provided to persons with the highest level of need.
Sec.9(a) The commissioner shall develop and implement strategies to encourage the utilization of cost-effective home and community-based services in lieu of institutional placement
Sec. l5(a) The commissioner shall, upon approval of a waiver aIllendment gr anting authority from the federal government, develop and make available consumer-directed options for persons receiving home and community-based long-term CaIe services under the long-term CaIe program, which may include, but aI·e not limited to, the ability to select, direct, and/or employ persons .... personal CaIe assistant/attendant .the ability to direct and supervise a paid personal aide in the performance of a health caI·e task
Long-Term CaIe Community Choices Act of2008, Pub. Chap No. 1180, Senate Bill No
4181, An Act to aIllend Tenn. Code Annotated, Title 63 and Title 68 and 71
Case 3:08-cv-00939 Document 1 F13iled 09/23/08 Page 13 of 49 PageID #: 13

61 Despite the enactment ofthe Long-Term Care Community Choices Act of
2008, on or about August 8, 2008, the Bureau ofTennCare sent notices to Medicaid
recipients "about Private Duty Nursing (PDN) and Home Health Care for adults age 21 and older" TennCare August 8, 2008 Notice (Ex C, Mot for Prelim. Inj) The notice
informs recipients that most adults will qualify for PDN only if they are on a ventilator
for at least 12 hours each day or have a tracheotomy 62. In addition, TennCare is capping Home Health Nursing Care for most
people at no more than 8 hours each day up to 27 hours each week, and TennCare is
capping Home Health Aide Care for most people at no more than 8 hours each day
Defendants did not notify the Plaintiffs of existing HCBS waivers, assess them for
placement in an available HCBS waiver slot, or determine what services would be
available to them under the Long-Term Care Community Choices Act
63 The August 8, 2008 notice states, in part: Starting September '7, 2008, TennCare will not cover PDN for adults age 21 and older unless:
• You are ventilator dependent for at least 12 hours each day.
• OR, you have a functioning tracheotomy AND need certain other kids ofnursing care too
You may be able to get Home Health Care. Keep reading to find out about changes to Home Health Care.
You may qualify for part time (intermittent) nursing OR home health aide care. Part-time and intermittent Home Health Nursing Care For most people TennCare will only pay for:
• Up to one nurse visit each day (Each visit must be less than 8 hours.)
• No more than 27 hours ofnursing care each week
Case 3:08-cv-00939 Document 1 F1i4led 09/23/08 Page 14 of 49 PageID #: 14

Home Health Aide Care For most people, TennCare will only pay for:
• Up to 2 home health aide visits each day • No more than 8 hours of home health aide care each day What if you need both Home Health Nursing AND Aide care? For most people TennCare will only pay for:
• No more than 8 hours of nUlsing and home health aide care combined each day
• No more than 35 hoUls of nursing and home health aide care combined each week
If you would qualify for care in a Skilled Nursing Home but want to get care at home, you may be able to get:
• Up to 30 hoUls of nursing care each week • Up to 40 hours of nUlsing and home health aide care
combined each week Id. (Emphasis in originaL)
64. The August 8 notice informs recipients that the only basis for appeal is if the agency has the age wrong and the recipient is actually under age 21 . Id
65 TennCare MCOs are telling health care providers to revise patients' orders to reduce services to the limits set forth in the August 8, 2008 letter and that patients without new orders will not receive any care at alL According to TennCare's counsel, "[t]he practical real world effect of what will occur ifemollees and their doctors refuse to work with home health agencies and the MCOs to design an acceptable plan of care within the limits is that patient will go without any care - a result that might be avoided if the doctor concludes that it is appropriate to write a new prescription within the benefit limits" Letter from Nicole Jo Moss, Cooper & Kirk, to Michele Johnson, Tennessee Justice Center (Sept 17,2008) (Ex D, Mot for Prelim. fuj)
Case 3:08-cv-00939 Document 1 F1i5led 09/23/08 Page 15 of 49 PageID #: 15

66 According to the CMS annual data, Tennessee spends approximately 98 percent of its Medicaid long term care dollars on institutional care and less than 2 percent on Home and Community Based Services.
67 CMS has ranked Tennessee 51st in the country for a number of years with regards to its institutional versus community-based long-term Medicaid care and services.
68.. On information and belief, the Tennessee Medicaid program has cuuently amassed budget sUIpluses that are being held in a TennCare Reserve Fund that total over $500 million These are funds that have been appropriated for the operation ofthe TennCare program but that have not been expended. These funds are distinct from the State of I ennessee's Rainy Day Fund, which, on information and belief; cmrently stands at approximately $750 million
PLAINTIFFS' FACTS 69 Plaintiff Sarah Crabtree is a 28-year-old Medicaid recipient who lives with her family in Gibson, Tennessee Her I ennCare MCO is United American Healthcare Corporation (DARC) Health Plan of Tennessee Ms. Crabtree is the mother ofthree young children 70. Two years ago, Ms. Crabtree was injUIed in a car accident She suffered a tramnatic brain injmy, and, as a result, was left with a sever e seizme disorder and incontinency She is unable to bear weight and is totally bedridden She needs aroundthe-clock attention and care She must be transported to medical appointments via ambulance 71 . After the accident, Ms. Crabtree spent time in two nUIsing homes. In the first one, she almost lost her leg The nmsing home staff did not address the blood clot in Ms
Case 3:08-cv-00939 Document 1 F16iled 09/23/08 Page 16 of 49 PageID #: 16

Crabtree's leg even after her mother brought it to their attention. The clot kept getting bigger, and Ms. Crabtree developed a fever. Ms Crabtree got so sick that her mother took her from the nursing home and to an emergency room Ms. Crabtree had ahnost hemorrhaged to death and was barely able to keep her leg.
72 At the second nursing home, Ms. Crabtree developed seven decubitus ulcers - bedsores caused when a patient is not turned frequently enough. The poison caused by one ulcer is enough to kill someone, but the nursing home allowed seven to develop.. Hel physicians think this is the reason she is not able to bear weight on her feet to this day. At that point, Ms. Crabtree's family decided to take her home.
73 Ms. Crabtree has been receiving home health care from a celtified nurse's assistant (CNA) each day through TennCare. Ms. Crabtree's mother and hither take turns cming for her when the CNA cannot Her pments also raise her tluee children. The children love their mother, and they are a velY happy family together. Ms Crabtree's oldest child is eight, and she looks forwmd evelY day to his mlival home from school. He tells his mothel what he lemned at school each day. Ms Crabtree's two othel children are six and three. Ms. Crabtree and all of her children love to play on the bed togethel, read stories, and laugh. Ms. Crabtree's mother is so burdened with cming for Ms. Crabtree and her children that she has had to send the six-year old ofnor long stays with his patemal grandparents. During these times, Ms. Crabtree misses seeing all of her children regularly; she would be even sadder if she were forced into a nursing home away from her children.
74. On or about August 8, 2008, Ms. Crabtree received a notice from TennCare informing hel that her home health nursing care would be reduced.
Case 3:08-cv-00939 Document 1 F17iled 09/23/08 Page 17 of 49 PageID #: 17

75 The registered nurse at Ms. Crabtree's home health agency, ClueAII, believes Ms. Crabtree will end up in a nursing home if she does not get the nursing hours she needs.. Ms. Crabtree needs to be changed, cleaned and turned every two hours.. Ms. Crabtree's mother could do this for Ms Crabtree only if she gave up sleep and caring for Ms. Crabtree's three children Based on her past experiences in a nursing home, Ms Crabtree's par·ents are afraid she will die if she has to go to a nursing home.
76 Plaintiff Velma Ledbetter is a 72-year -old Medicaid recipient who lives in Livingston, Tennessee She is emolled in the Amerigroup MCa
77. Ms. Ledbetter has suffered a stroke.. She broke her hip and carmot walk without a walker She is prone to blood clots in her legs and suffers from congestive heart failure Ms. Ledbetter is insulin dependent and must receive insulin five to six times per day, including in the nighttime She also has a "porti-cath" surgically implanted to administer N solutions, including antibiotics when she gets kidney infections. She weighs 80 pounds It is essential that Ms. Ledbetter receive nursing care. The nurses must flush out her porti-cath, administer her insulin, and help her with all activities of daily life.
78 Last year·, Ms. Ledbetter went to a nursing home for physical therapy. Within one week, she developed blood clots in her legs, causing her feet to swell like balloons Her lungs began to fill up with fluid. Meanwhile, the nursing home was treating her for a kidney infection, which she did not have Ms Ledbetter's daughter eventually persuaded the nursing home to send her mother to a hospital emergency room, even though she was told her mother would never again be welcome in that nursing home. Ms. Ledbetter was admitted to the hospital's intensive care unit for four days and to the recovery wing ofthe
18 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 18 of 49 PageID #: 18

hospital for almost two additional months Since she left the hospital at the end of February 2008, she has received private duty nursing through TennCare
79 On or about August 8, 2008, Ms. Ledbetter received a notice fiom TennCare informing her that her private duty nursing services would be eliminated. She has attempted to appeal by phone. Ifher services are terminated, Ms. Ledbetter will be forced to go to a nursing home Her two daughters cannot provide the constant care that Ms Ledbetter needs One daughter lives far away and the other is caring for a daughter with hydrocephalus.
80 Plaintiff Carl Anders is a 54 year-old Medicaid recipient who lives in Murfreesboro, Tennessee. His I ennCar·e MCO is I ennCare Select Mr.. Anders is a veteran ofthe United States Army
81 Four years ago, Mr. Anders suffered a stroke that left him cognitively intact but completely physically disabled. He lives with his sister, LaMonica Barnett, who cares for Mr Anders with the help of home health nursing assistance
82 Immediately following his stroke, Mr.. Anders spent two years in two different nursing homes, where he sufIered aspiration pneumonia three times Aspiration pneumonia is caused by lung infection due to foreign materials (e. g. food, liquid, vomit) being inhaled into the lungs; this can be fataL His tracheotomy rube was dislodged fiom his neck several times due to stafI neglect, and he was in and out of the hospital emergency room with various infections, including Methicillin-resistant Staphylococcus aureus (MRSA) and Urinary Tract Infections (UTIs) He also had severe eye problems and limited vision. He is now under an ophthahnologist's care and is regaining his vision This specialized care was not available to him in either nursing home.
19 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 19 of 49 PageID #: 19

83.. In 2006, Ms. Barnett moved her brother into her home Since then, Mr Anders has not been hospitalized, has not been to the emergency room, and does not have reoccuning infections. He has access to needed therapies and can take steps now with assistance He no longer has a tracheotomy tube nor is he connected to a ventilator because his nurses perform the frequent suctioning needed to keep his airways clear. He also takes breathing treatments three times a day to aid in tills effort. He can now open his mouth with the assistance of Botox injections and Thera-Bite therapy. These therapies were not available to him in the nursing homes, and his mouth was clinched shut as a result He remains on a feeding tube but is receiving speech and swallowing therapy. Mr. Anders is able to communicate with ills sister and her family and is thriving in her home He has a renewed sense ofpurpose being in a home environment with family and friends Where he once felt devalued and stripped of his dignity, he has regained hope. In Mr. Anders's own words, "When I was in the nursing home, I just laid in the bed and star ed at the walls. I would not even look outside" While in the nursing home, he was unnecessarily in bed for 22 hours a day The nursing home staff did not take illm out ofthe room He had no say in ills treatment plan or the type of car·e he received.. He now is an active participant in his own care
84. Mr. Anders first received a notice ofreduction in July 2008; ills sister filed an appeal on his behalf Ms. Barnett received a continuance while she attempts to find counsel.
85. On or around August 8, 2008, Mr Anders received a notice from TennCare informing him that his home health services would be reduced. According to his sister, if Mr Anders's home health care hours are significantly reduced she will no longer be able
Case 3:08-cv-00939 Document 1 F2i0led 09/23/08 Page 20 of 49 PageID #: 20

to care for him in her home The only alternative will be to put him in a nursing home. Given his past experiences, she is afraid he will not be adequately cared for and concerned about the effect that being separated from her family will have on him. Dr. Garvin, his physician, says that nursing home placement will likely cause Mr. Anders's condition to deteriorate because he remains susceptible to severe infections. Dr Garvin also notes that Mr . Anders is likely to regress physically, despite all of the progress he has made since suffering the stroke
86. Plaintiff George Dylan Brown is a 28-year-old Medicaid recipient who lives in Hendersonville, Tennessee His TennCare MCO is Americhoice, and he also participates in the HCBS waiver
87 Mr. Brown was in a car accident in 2002 and is, as a result, a quadriplegic. His physician has prescribed, and his MCO has covered, private duty nursing as medically necessary His physician also says he needs a Personal Assistant (PA), and this has been covered through the HCBS waiver
88 Mr. Brown recently moved out of his parents' home and into a house with a roommate He is working full-time at the Center for Independent Living and is a strong advocate for individuals with disabilities Mr. Brown sits on the Governor's Council on Independent Living and Developmental Disabilities He is extremely outgoing and enjoys playing poker and discussing politics. His nurses and PAs assist him with all activities of daily living and make it possible for him to be involved in his community.
89 On or around August 8, 2008, Mr. Brown received a notice from TennCare informing him that his private duty nursing would be eliminated.. According to his physician, Dr Carmack, Mr. Brown's life will change drastically ifhe loses this care He
Case 3:08-cv-00939 Document 1 F21iled 09/23/08 Page 21 of 49 PageID #: 21

will be unable to live and work in the community.. He has no family members who can meet his private duty nursing needs If he is forced into a nursing home, his quadriplegia will make him susceptible to infections
90. PlaintiffWillowdeen Burrows is a 93-year-old Medicaid recipient who lives in Mt Juliet, Tennessee with her daughter, Betty Jean Taylor She is emolled in Americhoice MCO.
91 Ms. Burrows is paralyzed on her right side, cannot walk, and has 98 percent hearing loss in both ears She cannot get herself in and out ofthe bed, on OJ offthe toilet, tend to her toilet hygiene alone, walk without assistance, use a telephone to dial a call, bathe, dress herself, or prepare her own meals.. She is insulin dependent Ms. Burrows has been receiving medically necessary private duty nursing.
92 On or about August 8, 2008, Ms. Burrows received a notice from TennCare informing her that her private duty nursing services would be eliminated According to Dr. Enayt, her treating physician, Ms BUITOWS must have appropriate and medically necessary private duty nursing each day. Her home health agency has informed Ms BUITOWS that, after services are reduced by TennCare, her home health nursing care will be significantly reduced.
93 . Without appropriate and medically necessary private duty nursing, Ms Burrows will not be able to live in her home She has no local family to care for her, other than a grandson However, the grandson suffers flum Char·cot Marie Tooth disease, a sever e neuromuscular disease that destroys both nerves and muscles, and he struggles to care for himself Since receiving this notice, Ms. Burrows has been crying and is despondent over the news that she may have to move into a nursing home while her
Case 3:08-cv-00939 Document 1 F2i2led 09/23/08 Page 22 of 49 PageID #: 22

daughter, Betty Jean, is taken to Knoxville, Chattanooga, or Memphis and put in a nursing home in one of those cities. She loves her home and the people who have been caring for her. She and her daughter have lived together for many years and are totally dependent on each other. Their wish is to remain together for as long as they live
94 PlaintiffHazel S. Graham is an 89-year-old Medicaid recipient who lives in Crossville, Tennessee She is emolled in Amerigroup MCO.
95 When she was 55-years-old, Ms. Graham suffered a stroke that left her disabled She is incontinent and unable to put on her own diapers. She is confined to a wheelchair She carmot bathe, cook for or feed herself, dress, lift herselfto transfer from one place to another, or take her own medication. Ms. Graham takes medication for bipolar disorder.
96. Ms. Graham has no family able to assist her. She moved to I ennessee from California some years ago to be close to her friend, Rutharm Booher. As Ms Graham's health deteriorated, Ms. Booher "adopted" Ms. Graham and became her care giver For several years, Ms. Graham was able to live without TennCare assistance By 2006, however, Rutharm had a shoulder injury and could no longer care for Ms. Graham alone.
97 I ennCar·e determined that Ms Graham needs private duty nursing each day. With this assistance, Ms. Graham is alert and recognizes her friends and caregivers
98 On or about August 8, 2008, Ms Graham received a notice informing her that her private duty nursing services would be eliminated. Without home care, Ms Graham's option is to move into a nursing home. Ms. Graham was in a nursing home previously for over two months to receive physical therapy She became depressed and missed her home and two cats. During her last nursing home stay, Ms. Graham was not
Case 3:08-cv-00939 Document 1 F23iled 09/23/08 Page 23 of 49 PageID #: 23

cared for adequately For example, Ms. Booher visited her one moming at lOam, and Ms. Graham's diaper had not been changed from the night before
99 Plaintiff Harold Lee ("Lee") Murphey, is a 30-year-old Medicaid recipient who lives with his mother in Rockvale, Tennessee. His TennCare MCa is Americhoice
100. Mr.. Murphey has Duchene's Muscular Dystrophy. As a result of Duchene's, he has a heart condition.. He also has a chronic lung disorder.. Mr.. Murphey has had a spinal fusion to immobilize his vertebrae and reduce abnormal motions He uses a ventilator.. At night, he is hooked to a breathing machine, called a bi-pap, so that he can get enough air into his lungs.
101 Mr. Murphey eats very little by mouth and CaIUlot chew or swallow, except for an occasional ice cream. He CaIUlot feed, bathe or dress himself He CaIUlot reposition his hands or legs He needs to receive chest percussions to keep his passages clear. He cannot lift his hand to push a call button He CaIUlot be left alone for five minutes Mr Murphey can talk
102 . Mr Murphey's pediatrician, Dr. Little, has continued to be his physician Dr Little has prescribed, and Mr.. Murphey's MCa has covered, appropriate home health services from a licensed practical nurse (LPN). He needs a nurse to take care of his ventilator and mouth piece. Twice, recently, the power went out and the nurse had to bag him-something a less qualified home health aide would not be able to do under the state Nurse Practice Act He lives with his mother, who works to pay the mortgage and put food on the table. There is no nursing home in his commUllity or area that can accommodate his needs
Case 3:08-cv-00939 Document 1 F24iled 09/23/08 Page 24 of 49 PageID #: 24

103 . Mr . Murphey recently graduated from Middle Tennessee State University with a degree in jouma1ism. His dream is to be a sports writer, focusing on car racing. He enjoys sitting in his chair, using his computer, and socializing with friends and neighbors who drop by his house He enjoys playing cards; someone else has to hold the cards.
104. On July 23, 2008, Mr Murphey received a notice from TennCare informing him that his home health services would be reduced Ifhis coverage is reduced, Mr. Murphey will be forced to enter a nursing home, His mother cannot provide all of the additional care both because she works and because she cannot lift him and position him by herself When she is the only one with Mr Murphey, she cannot even take a shower as she cannot be away fiom him that long Mr, Murphey will lose his home and community life and is afraid that he will not be able to pursue his journalistic dreams
105. Mr Murphey appealed the reduction but his hearing was dismissed Services have been continued, with the caveat that his MCO may still send him a reduction notice
106 Plaintiff LallY Scott Ervin is a 29-year-old Medicaid recipient who lives with his parents in Alexandria, Tennessee, He is enrolled in Americhoice MCO
107 Mr Ervin was in a motorcycle accident in 2001 Vertebrae in his neck were broken, and his spinal cord was severed. His diaphragm muscle does not work, so Mr. Ervin cannot cough, sneeze, or laugh, He currently is in a great deal of pain but hopes to get that pain under control soon, His physicians think the pain is the result of spasms from nerve endings that were cut in the accident
Case 3:08-cv-00939 Document 1 F2i5led 09/23/08 Page 25 of 49 PageID #: 25

108. Mr. Ervin is interested in crime work and is considering going to college at Middle I ennessee State University.. Prior to his injury., Mr Ervin worked for the police department and as a full time welder
109 Mr Ervin is outgoing. He enjoys going to church, the movies, and the mall He visits with his nieces and nephews regularly and watches movies or plays games on the laptop with them. He uses a voice-command computer and enjoys scanning the Internet He is a football fim, especially of the Tennessee Volunteers.
110 Mr Ervin's 59-year-old mother and his 60-year-old father have cared for Mr Ervin since the accident His physician has prescribed, and the MCa has covered, home health services so that Mr Ervin can remain in his home. A licensed practical nurse (LPN) helps Mr Ervin with activities of daily life. The LPN works with Mr Ervin on his bowel program and to monitor his occasional dysreflexia, which if not caught will cause a stroke or heart attack The LPN also helps MT. Ervin with his medicines and turns him evelY two to four hours when he is in bed With a hand brace, MT. Elvin can put his spoon into a bowl and lift it up to his mouth. He cannot lower the spoon back into the bowl
III Until June 2008, MT. Ervin was receiving appropriate and medically necessary CNA care each day A gentleman from Elder Care, hired by Americhoice, assessed Mr. Elvin He arlived during shift change and interviewed both of Mr. Ervin's nurses. He then told the family that Mr. Ervin actually needed more care than he was getting and that he was going to go back to Amelichoice and recommend more care.. MT. Elvin then received a notice that his care was to be reduced.
Case 3:08-cv-00939 Document 1 F26iled 09/23/08 Page 26 of 49 PageID #: 26

112. In June 2008, he received a notice from Amelichoice stating that, due to his physician's decision, his hours were being reduced. Indicating that he felt misled by the MCa, Mr. Elvin's physician, Dr. Shelwood, wrote a new order presclibing the minimum care Mr Elvin should receive of LPN crne each day and ofCNA crne Meanwhile, Mr. Elvin's mother appealed the cutback. In early September, she was contacted by Americhoice and infolmed that she had won Mr. Elvin's herning (even though she had never received a notice that a herning was going to occur) Despite "winning," however, an Americhoice representative then infolmed Mrs Elvin that they would be leducing MI Elvin's home care hours pursuant to the policy stated in the August 8, 2008 notice, which he did receive He then got a notice dated September 8, 2008 that said strnting September 22, Mr Elvin's home health aide hours and LPN hours would be reduced
113. IfMr. Elvin's selvices are reduced as set forth in the August 8th policy, then he will have to go into a nursing home. His prnents will not be able to provide the level of care that he needs. According to Mr. Elvin's mothel, "If Scott goes to a nursing home, he'll give up and so will we" Mrs. Elvin ministered at nursing homes fOI five years. She is familirn with life in a nursing home and is concerned that Mr. Elvin will be eaten up with pressure sores within 30 days There are no nursing homes close by that will take him
114 Plaintiff Megan Allen is a 21-yern-old Medicaid recipient who lives in POltland, Tennessee. She is emolled in the Blue Cross MCa.
115. Megan has cerebral palsy. Her physician has prescribed, and the MCa has covered, home crn·e nursing assistance as medically necessrny
Case 3:08-cv-00939 Document 1 F27iled 09/23/08 Page 27 of 49 PageID #: 27

116. Until very recently, Ms Allen was a student at Middle Tennessee State University. She was able to attend and complete her classes with the help of her aides She was majoring in Recreational Administration and hopes to work in the tomism industry in the Nashville area.
117 Ms Allen is confined to a wheelchair and can do very little on her own While in her dorm room, her home care assistants could assist her in taking medication and help her with all activities of daily life Ms. Allen was prohibited from taking an aide with her to class or anywhere else, on or off campus. This restriction presented many challenges. She fell behind in her school work because she was unable to set up for class without an aide's help She could not attend any college function that required assistance ifit took place outside of her dorm room. She could not go to church or eat in the cafeteria with her friends
118. In June 2008, Ms. Allen received a notice from I ennCare informing her that her home health services would be reduced She appealed that reduction, and has appealed subsequent changes in care, as welL She has tried to get along with less home health care in the past, but was left lying in her bed for hours on end with no one to care for her. Due to the stress of her uncertain home health care, Ms Allen was forced to withdraw from college. lithe cuts to her home health care continue, Ms. Allen may be forced into a nmsing home
119 Ms Allen was receiving all of the home and community-based services that she needed through the EPSDT program until she reached age 21
120 Plaintiff Jessica W. Pipkin is a 27-year-old Medicaid recipient who lives in Lynnville, Tennessee. Her TennCare MCa is AmeIichoice.
Case 3:08-cv-00939 Document 1 F28iled 09/23/08 Page 28 of 49 PageID #: 28

121 . Ms Pipkin is the mother of two young children, ages four and nine. She was paralyzed from a car accident in 2004. The accident broke her neck, and she is a quadriplegic Ms. Pipkin has been receiving appropriate home health nursing care through her MCG..
122. Ms Pipkin needs assistance with all activities of daily life, including feeding, bathing, blUshing her teeth, and turning in bed every two hours at night Her hands do not move at alL She moves about in a wheelchair that she controls by blowing into a straw. She requires assistance coughing to clear her lungs. Ms. Pipkin has a condition called "autonomic dysreflexia," which, if it is not treated very quickly (within about 10 minutes), can lead to stroke from skyrocketing blood pressure This can happen at any time One or more times each day, problems are averted by repositioning Ms Pipkin's bowels can become unpredictably obstlUcted and cause her blood pressure to spike. When this happens, she needs a bowel treatment that only a nurse can perform. Each day, Ms Pipkin needs catheter care, a bowel treatment which takes 20 minutes to one hour, and medication administration and monitoring
123 On or about August 8, 2008, Ms Pipkin received a notice from TennCare informing her that her home health care will be reduced Ms. Pipkin's family is already helping as much as they can.. If the hours are reduced, there will be no alternative other than a nursing home. Ms. Pipkin will lose her home life and the vital role she is playing in the lives of her two young children She does homework with her older child, who is a straight "A" student, and goes to all his sports games Ms. Pipkin organizes and plans the children's meals, and hosts a Bible study group each Sunday at her home
Case 3:08-cv-00939 Document 1 F29iled 09/23/08 Page 29 of 49 PageID #: 29

124 PlaintiffFlorence ("F10nie") Adams is a 21-year-old Medicaid recipient who lives in Cookeville, Tennessee. She is emolled in the Amerigroup MCO
125. Ms Adams has muscular dystrophy and is extremely limited in her movements She cannot walk, move her arms or legs, lift or grab items, transfer out of her wheelchair, or turn over when lying down Ms. Adams can move her head and some of her fingers. She is able to use a motorized wheelchair and can use a laptop computer and computer mouse. Ms. Adams can sign documents when a pen is placed in her hand.
126. Ms. Adams's husband has muscular dystrophy, but his condition is not as severe He is in a wheelchair but can transfer himself However, he cannot lift or transfer Ms Adams. Mr. Adams has a specialized van and can drive it The Adams have a 3-year-old daughter who is not disabled.
127. Before October 2007, Ms. Adams received appropriate and medically necessary nursing care from licensed practical nmses (LPNs) She began receiving the care through TennCare as EPSDT when she was 16 years old. Ms. Adams graduated high school and was taking classes at a community college in Cookeville In October 2007, TennCar·e reduced her services, and Ms. Adams appealed the decision Dming the pending appeal, she went without necessary care She was forced to quit schooL She was unable to move or do things, such as use the batluoom In February 2008, Ms. Adams obtained appropriate care as a result of the appeal However, the care is provided by CNAs CNAs are not authorized to leave the house with a patient, so Ms. Adams has not been able to return to college. Ms Adams wants to obtain her college diploma, so she is taking a class on line. CNAs are not authorized to administer medicine, so Ms.
Case 3:08-cv-00939 Document 1 F30iled 09/23/08 Page 30 of 49 PageID #: 30

Adams is experiencing problems opening medicine bottles, getting water, and lifting the pill to her mouth
128 In late May 2008, Ms Adams received a letter from Amerigroup stating that they would reduce her home health services or she could choose to be placed in a nursing home. Ms. Adams filed an appeal, which is still pending. On or about August 8, 2008, Ms. Adams received a notice from TennCare informing her that her home health services would be reduced despite the pending appeal In August, an Amerigroup case worker told Ms Adams that they could force her into a nursing home Ms. Adams became so depressed that she attempted to admit herself to a mental hospitaL Three mental hospitals were called and no hospital would accept her because she required too much care.
129 Plaintiff Lena Burgess is a 97-year-old recipient of Medicaid who lives in Crossville, Tennessee She is emolled in Amerigroup MCO
130 Ms Brugess is the mother often children. She worked on the family farm, cooking and raising her large family Her husband worked in the rock quarries Ms Brugess is incredibly independent and has lived alone since her husband passed away.
131 TennCare has approved medically necessary certified nursing assistant (CNA) care for Ms. Brugess She has numerous health problems, including requiring oxygen 24 hours per day, incontinency, congestive heart failure, arthritis, and some dementia. The CNAs help Ms. Burgess eat, change her diapers, use the restroom, bathe, take medicines, and move from one room to the next
132. On or about September 8, 2008, Ms. Burgess received a notice from
r ennCare informing her that her home health services will be significantly reduced On
September 15, 2008 Ms. Burgess' nurse, ShellY Breeding, was contacted by an
Case 3:08-cv-00939 Document 1 F31iled 09/23/08 Page 31 of 49 PageID #: 31

Amerigroup case manager and told to get new orders to reduce patients' hours. She understood that, as of September 19,2008, patients without new orders would not receive any care and, after September 21, Amerigroup would not reimburse her organization, Highland Run, for any such care On September 16, Ms. Breeding was contacted by the Amerigroup case manager and informed that only the reduced hours will be covered, even if an administrative law judge orders otherwise. Doctors are reducing orders stating they have no choice or the patient will get no care. Dec! of Sherry Breeding (Ex E, Mot for Prelim luj)
133. Without the necessary home health services, Ms. Burgess will not be able to live at home. She will have to go to a nursing home because there are no family members living near enough or unburdened by the necessity of work to care for Ms. Burgess full time. Ms. Wyatt is able to provide only limited assistance because she suffers trom painful arthritis and is not able to transfer or carry her mother Ms. Burgess told her daughter that she would "rather die than go to a nursing home"
134. Plaintiff Wilma F Stills is a 76-year-old Medicaid recipient who lives with her brother in Gray, Tennessee She is emolled in TennCare/BlueCare MCO.
135 Ms. Stills has been disabled, probably since birth. She has always been a bit slow and spastic; however, her physicians recently diagnosed her with Alzheimer's disease.. Ms. Stills needs assistance with all activities of daily living and with her medications She can feed herself but must be watched carefully so that she does not aspirate her food or choke on liquids.. She has required suctioning to remove mucus from her throat. She suffers tram severe acid reflux disease that affects her swallowing and
Case 3:08-cv-00939 Document 1 F3i2led 09/23/08 Page 32 of 49 PageID #: 32

digestion Ms. Stills has been receiving appropriate licensed practical nurse (LPN) care in her home through TennCare
136. On or about August 8, 2008, Ms. Stills received a notice flom IennCare informing her that her home care services would be reduced. TennCarelBlue Care has told her family that her hours will be reduced starting September 18 Ms. Dingus, her sister and power of attomey, has been told she has no appeal rights.. Ms. Dingus appealed anyway. On September 9, Ms. Dingus received a call from a TennCare representative who said to disregard the cutoff date of September 18 and that she would continue her care pending the appeal Ms Dingus has spoken with nmsing homes in the ar·ea, and they have told her they do not have staff to give Ms. Stills the care she needs.
137 Ms Stills lives with a brother, but he is in poor health and cannot help provide the nursing care that Ms Stills needs Ms. Dingus, her sister, is also in poor health and can no longer assist Ms. Stills as she has in the past The family has already spent most of their savings getting health care for Ms Stills
138. Dr Vincent, her treating physician, is ofthe opinion that Ms Stills needs home nmsing care and that nmsing home placement would not be a good option for her, physically or mentally.
139 Ms Stills had surgery eighteen months ago and was put in nursing home for three weeks afterwards. The nursing staff did not help her stand or move conectly, and the meniscus muscle in her knee tore The nmsing staff did not help her get to bed properly dming the post operative period, and she bled all over the bed. The nursing staff did not drain her tubes correctly, and she ended up with an abscess While at the nmsing home, Ms Stills was given such a high dosage of pain medicine that the lower lobes of
Case 3:08-cv-00939 Document 1 F33iled 09/23/08 Page 33 of 49 PageID #: 33

both her lungs collapsed from shallow breathing. Ms. Stills is terrified of going to a nursing home Her current nurses have said that Ms. Stills will die if she is put in a nursing home.
140 Plaintiff Odell Owens is an 80-year-old Medicaid recipient who lives in Columbia, Tennessee. He is emolled in the Amerigroup MCO.
141 Mr. Owens has Alzheimer's disease He cannot bathe, toilet, or cook by himself He walks using a cane or walker. He is hand fed. TennCare has been covering home health aides his doctor ordered as medically necessary.
142 On or about August 8, 2008, Mr.. Owens received a notice from TennCare infOIming him that his home health care would be reduced Mr. Owens does not have family to fill in gaps when nurses cannot be there He is estranged from his three child! en His niece, Ms. Booker, provides as much help to him as she can; however, she wOIks 40+ hours each week and cares for her three young children.
143. Without the home health care, Mr. Owens will have to go to a nursing home Ms. Booker fears he is too fragile to be safe in a nursing home.. In December 2007, Mr. Owens spent three weeks in a nursing home because of a broken hip. On occasions when Ms. Booker would visit, her uncle would be sitting before a full plate of food with no one taking the time to feed him Late one night, Ms. Booker received a telephone call from the nursing home telling her that her uncle had fallen out of his wheelchair Nursing staff had not put him to bed at a reasonable hour, nor were they watching him. While at the nursing home, Mr. Owens was in a daze all the time. He would not talk, and he was very confused Within one week of being back in his home, Mr. Owens perked up and began recoguizing his surroundings, his niece and his home health aides
Case 3:08-cv-00939 Document 1 F34iled 09/23/08 Page 34 of 49 PageID #: 34

144. Plaintiff Ellar Lowman is a 75-year-old Medicaid recipient who lives with her son in Chattanooga, Tennessee Her TennCare MCO is BlueCare
145 Ms. Lowman has suffered two strokes, which innnobilized the left side of her body. She has Parkinson's disease and diabetes. She cannot walk and cannot transfer or tum herself in bed.. She is incontinent She needs assistance with transferring, skin care, repositioning, bathing, and food preparation.
146. Ms Lowman lives with her 45-year-old son, who is mentally disabled. He cannot read, drive, do paperwOlk, or speak with providers about his mother's care. He can prepare simple meals, change her diapers, and check on her at night and throughout the day Ms Lowman and her son have always lived together, and they share a close psychological bond
147 Ms. Lowman's treating physician has prescribed, and BlueCare has covered, necessary and appropriate home health nursing care as medically necessary. Ms. Lowman's daughter also assists with her care; however, she is also the caretaker for her disabled husband and her father-in-law, who has Alzheimer's disease She lives 30 minutes away and can only provide assistance two days each week
148. On or about August 8, 2008, Ms. Lowman received a notice from TennCare infOiming her that her home health nursing care services would be reduced On August 16, 2008, her home health agency stopped providing the home health nursing services she had been receiving.
149 According to Dr. Johnson, her treating physician, Ms Lowman needs appropriate and medically necessary home health nursing each day Otherwise, she will be forced into a nursing home. According to Dr. Johnson, placing Ms. Lowman in a
35 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 35 of 49 PageID #: 35

nursing home will cause her condition to deteriorate because she will not receive the attentive care she gets at home Separation from her son will be traumatic for them both Ms. Lowman spent three to four weeks in a rehabilitation center after each of her two strokes Her acute distress at being in what she perceived to be a nursing home hindered her physical recovery
150 Plaintiff Marvin Ray BellY, Jr is a 36-year-old Medicaid recipient who lives in Murfreesboro, I ennessee. His TenuCare MCO is Americhoice Mr. BellY is a named plaintiff in the Newberry case, which has required TenuCare to cover his medically necessary home health services but is set to expire in October 2008
151. When Mr BellY was a child, a family member accidentally shot him with a gun His spinal cord was injured He is a quadriplegic, paralyzed from the neck down Mr BellY uses a power wheel chair which he steers using his mouth
152. Mr.. BellY has been able to remain out ofthe hospital recently because ofthe home health services he has received through TennCare, specifically care from a CNA Mr.. BellY needs assistance with all his activities of daily living-eating, bathing, toileting, breathing. Mr. Berry is highly susceptible to infections and needs care to, for example, monitor his condition and reposition him every few hours. Without this care, Mr.. Beny is likely to end up in the hospital, as he did several years ago.
153. In July, two Americhoice nurse practitioners carne to Mr. BellY'S home to assess his need for nursing care. He asked why they were assessing his care and ifhe was likely to lose care He understood them to say that it was obvious that he needed 24 hour care
Case 3:08-cv-00939 Document 1 F36iled 09/23/08 Page 36 of 49 PageID #: 36

154 In September 2008, Mr BellY received a notice from AmeIichoice stating that his home health aide services would be reduced to five homs per day, seven days per week Ifhis coverage is reduced, he will be forced to enter a nmsing home. Mr. BellY does not have any family who can help with his care. His mother is unable to pick him up.. His mother lives more than an hom away, has chronic neck and back pain, and is a single parent raising Mr BellY's eight-year-old brother
155 Several years ago, Mr. Berry graduated from Austin Peay University with a degree in Business AdministrationlFinancial Management He desperately wants to find work and does not see how he can do that if he is in a nursing home. Mr. BellY is afiaid he will get very depressed and mentally shut down ifhe has to go to a nmsing home He is also afraid of getting severe infections that will require hospital care According to his physician, Dr. Junard, Mr. BellY is at gr·eat risk of experiencing deterioration in his physical and mental health or even death ifhe is placed in a nmsing home
156 Plaintiff Carol Smith is a 30-year-old Medicaid recipient who lives with her parents in Knoxville, I ennessee She is emolled in the BlueCare MCO. Ms. Smith is a named plaintiff in the Newberry case, which has required TennCare to cover her medically necessary home health services but is set to expire in October 2008
157 Ms Smith has cerebral palsy She needs assistance with all activities of daily life She uses a communication device to assist with her speech. She is experiencing increased breathing problems and requires someone periodically to clear her airway. Ms Smith also needs percussions approximately three to fom days each week, sometimes all day long
Case 3:08-cv-00939 Document 1 F3i7led 09/23/08 Page 37 of 49 PageID #: 37

158 After being evaluated by I ennCare last year, Ms Smith was recommended for appropriate and medically necessary nursing care. The finnily did not think the nurses were needed at night while Ms Smith was asleep and the MCO agreed
159. On or about September 10, 2008, Ms Smith received a notice dated September 8, 2008 from TennCare informing her that her nursing services would be further reduced effective September 18, 2008 TennCare has proposed to decrease Ms. Smith's nursing hours to about a third of what she currently receives. In addition, TennCare proposed to provide Ms. Smith's home care through CNAs However, CNAs are not typically trained to watch for signs of aspiration and choking on mucus or food. She received a TennCare notice dated September 10, 2008 indicating that there was no adverse action and that the appeal she filed September 4, 2008 was being closed
160 Ms. Smith works part-time for the Association for Retarded Citizens, doing consumer satisfaction surveys In addition to her part-time work, she is frequently visited by fiiends . Ms. Smith is now able to live in the surroundings she grew up in and is able to get around outside in her wheelchair.
161 Ms Smith's parents, Billy and Jean, have physical disabilities Her father has a back injury, a heart condition, and high blood pressure Her mother has muscular dystrophy that has worsened to the point where she has no strength in her hands and has difficulty standing up Ms. Smith's mother can no longer lift her Ms Smith's par·ents are doing all they can to assist with her care A couple of years ago, after having been nominated by Ms Smith, Jean was named mother of the year in Tennessee and made it to the finals in the national competition
Case 3:08-cv-00939 Document 1 F38iled 09/23/08 Page 38 of 49 PageID #: 38

162 Without the appropriate home health services, Ms. Smith faces life in a nursing home.. She gets depressed just thinking about this possibility and the effects it would have on her life with her parents and friends and on her employment at the Association for Retarded Citizens. She is afraid she will not be able to experience the outdoors as she is now and will either be in bed all the time or sitting against a wall in a hallway Now, Ms. Smith is independent and able to do things the way she wants when she wants She would not have this freedom in a nursing home
163 Dr Yarbrough, her treating physician, believes that nursing home placement is inappropriate for Ms. Smith One of her nurses told her that a nursing home is not an appropriate placement for her, that the patient to caregiver ratio is one to thirty during the day and one to sixty at night She is certain that Ms Smith will deteriorate very quickly in a nursing home
164. Plaintiff Betty Jean Taylor is a 69-year-old Medicaid recipient who lives in Mt. Juliet, Tennessee with her mother, Willowdeen Burrows. She is emolled in Americhoice MCO
165 Ms. Taylor has advanced Charcot Marie Tooth disease, a severe neuromuscular disease that destroys both nerves and muscles.. She carmot walk or stand She has 75 percent hearing loss in both ears. She cannot get in or out ofthe bed without assistance, and carmot bathe, toilet, dress herself; or prepare her own meals She uses a ventilator, has a functioning tracheotomy, and otherwise uses an oxygen machine. Ms. Taylor carmot communicate verbally when she is on the ventilator. Ms. Taylor's hands are clawed to the point that she carmot use them to manipulate her ventilator She must
Case 3:08-cv-00939 Document 1 F3i9led 09/23/08 Page 39 of 49 PageID #: 39

be put on and taken ofhhe ventilator, and she requires regular suctioning Her MCa has approved private duty nursing as appropriate and medically necessary
166. On or about August 8, 2008, Ms. Taylor received a notice from TennCare informing her that her private duty nursing services would be eliminated Although she is on a ventilator, her home health agency has informed her that she will lose her current servrces,
167 If her services are reduced, Ms" Taylor will not be able to live in her home, She has no local family to care for her, other than her son, who also suffers from Charcot Marie Tooth disease and struggles to care for himself
168 Ms Taylor's physicians, Dr Butka, a pulmonologist, and Dr Peltier, a neurologist, are both ofthe opinion that nursing home placement is physically dangerous for Ms, Taylor and that it would also take a psychological toll on her., Since receiving the August 8th notice, Ms., I aylor sits with her head down She is afraid to go to sleep in a nursing home for fear that her ventilator will get clogged, and she will choke and die because she will not have adequate nursing car e at the facility. During the night while she is on the ventilator, if something were to happen and no one were there to watch her, Ms, Taylor would have no way of communicating the problem
169 Plaintiff Delores Baker is a 78-year-old Medicaid recipient who lives in Nashville, Tennessee She is emolled in the Americhoice MCa
170, When Ms, Baker was younger and healthier, she helped organize and rUll sports events for children.. She worked in the elementary school cafeteria
171 Ms Baker suffers from diabetes, chronic lower abdominal pain, insulin dependency, dementia, and neuropathy, She is bed-ridden 98 percent ofthe time and
Case 3:08-cv-00939 Document 1 F40iled 09/23/08 Page 40 of 49 PageID #: 40

only gets up to shower and dress. She needs someone to give her medicines and help feed, bathe, and dress her
172 CUlrently, Ms Baker receives private duty nUlsing through her MCa as medically necessary However, the MCa has infOlmed her son, Scott Baker, that she will have her private duty nursing services significantly reduced and will qualify for only a few hours of home health assistance each day Mr.. Baker will not be able to stay home and take care of his mother if her hours are cut He is a fireman, and his schedule does not permit him to remain at home. There is no one else to care for her.. Without the home-based care, Mr.. Baker will have to look for a nUlsing home for his mother..
173 Mr. Baker says that if she were to go to a nursing home, he would "give her six months"
174. Plaintiff Loninda Mabry is a 43-year-old Medicaid recipient who lives alone in her own apartment in Antioch, Tennessee. She is emolled in Anrerigroup MCa and in the Tennessee Home and Community Based Waiver.
175 Ms. Mabry has cerebral palsy, which has resulted in physical and communicative disabilities Since birth, she has required extensive home health services on a daily basis, including assistance with eating and drinking, toileting, bathing, transfening, and commUllicating These services allow Ms. Mabry to manage her medical conditions and maintain her active role in the commUllity Ms. Mabry's mother perfOlmed these duties until she becanJe UIIable to do so three years ago. At that point, her treating physician prescribed home health nursmg services as medically necessary and they have been provided through TennCare and the Home and CommUllity Based Waiver
Case 3:08-cv-00939 Document 1 F41iled 09/23/08 Page 41 of 49 PageID #: 41

176 On or about August 8, 2008, Ms Mabry received a notice from TennCare infOIming her that her home nursing services would be reduced.. She began wOIking through her home health agency to fmd out why She has been told she is on a "no reduction" list for the time being. She does not understand what that is.
177 According to Dr Dallas, Ms. Mabry's treating physician, the reduced home health hours announced in the August 8, 2008 notice will not allow Ms. Mabry to remain safely at home She will need to be institutionalized
178 Institutionalization will significantly restrict Ms. Mabry's life. She is a committed activist for people with disabilities and has advocated before the media, elected officials, in community meetings, and tluough direct actions. She was one ofthe first children with disabilities to integrate the Nashville schools in the 1970s Her advocacy is only possible because she is integrated in the community, due to her home nursing services. Ms. Mabry will also suffer psychologically if placed in a nursing home and has said she would prefer to die rather than be placed in a nursing home.
179. Plaintiff Joel DeHaas is a 21-year-old Medicaid recipient who lives with his finnily in Chuckey, I ennessee. His TennCare MCO is Americhoice
180 Mr. DeHaas was in a car accident a few years ago and suffered a brain and spinal cord injury. He is a quadriplegic. Mr DeHaas needs care, including catheteIization and help with eating, dressing, and bathing. He communicates with a voice interaction computer machine. Mr. DeHaas's mother and father cannot stay home with him all the time because they need to wOIk to support the finnily.
181 . Mr. DeHaas's physician has prescribed four hours a day of caregiver care, which the Tennessee Medicaid Waiver program is covering Mr. DeHaas's physician
Case 3:08-cv-00939 Document 1 F42iled 09/23/08 Page 42 of 49 PageID #: 42

ordered nursing care in mid- July but Mr. DeHaas has not received it Mr.. DeHaas needs someone constantly near him; he has a condition quadriplegics can get called "autonomic dysreflexia" One symptom ofthis disease is that if Mr. DeHaas needs to go to the batluuom and there is no one to catheterize him, his blood pressure will rise to dangerous and life-tlueatening levels. A request for private duty nursing is pending A private duty nurse is needed to perform the medication procedures that Mr DeHaas's caregiver aides cannot do for him, such as catheterization, changing his colostomy bag, and giving him his medications.
182. Mr. DeHaas wants to attend college This dream is the reason he has diligently gone to a rehabilitation clinic. His persistence and the rehabilitation services have paid off Mr DeHaas was recently awarded his GED
183 . On August 8, 2008, Mr. DeHaas received a notice fium TennCare informing him that home health services would be reduced The notice also stated that private duty nursing will be approved for only for a couple of medical conditions, neither of which Mr. DeHaas has If Mr. DeHaas cannot get the nursing care that he needs, he will be forced to enter a nursing home His mother wonies that, at the nursing home, Mr. DeHaas will not be able to obtain the college education that he desperately wants He will be separated fiom his family Mr. DeHaas's physician, Dr Svendsen, is of the opinion that placement in a nursing home will adversely affect Joel's physical and mental health and is inappropriate. Mr. DeHaas will not receive the type of monitoring and catheterization he needs Dr. Svendsen is also ofthe opinion that Mr. DeHaas will suffer psychologically in a nursing home because he will not be around his family, his pet, and other young people.
Case 3:08-cv-00939 Document 1 F43iled 09/23/08 Page 43 of 49 PageID #: 43

184. Plaintiff Margaret Connolly is an 84-year-old Medicaid recipient who lives alone in Hilham, I ennessee Her TennCare MCO is Amerigroup Her daughter and sister visit frequently to take care of Ms. Connolly's affairs.
185 Ms Connolly is diagnosed with Alzheimer's disease, is incontinent, and is bed ridden. She has heart problems, and one heart valve is completely gone Chronic Obstructive Puhnonary Disease obstructs her breathing, causing her to use a breathing machine Ms. Connolly loves animals and cUITently has thr·ee parrots, two dogs, and two cats who keep her company
186 Ms Connolly is a strong-willed, independent woman who values self~ sufficiency It has been difficult for Ms Connolly to have to rely on home health nursing aides.. However, at this point in her life, Ms Connolly is dependent on a certified nursing assistant (CNA) to help her do most things, including using the restroom, taking medicines, eating, and dressing. Her doctor requested 40 hours per week, less than what her doctor thought was appropriate, but what the doctor believed was the maximum the MCO would approve, even though it was less than was medically necessary and appropriate. She is not sure whether this change is the result ofpressure from the MCO, or the home health agency, or because ofthe new TennCare policy. Ms. Connolly cUITently receives an inadequate number of hours ofCNA's peT week.
187 On August 8, 2008, Ms Connolly received a notice from TennCare informing her that her home health nUIsing services would be reduced even more. If Ms. Connolly's nursing care is reduced, she will have to rely on her 78-year-old sister to manage some of her care This sister is clearly aging and is not fit to be lifting another person Ms. Fulton, Ms Connolly's daughter, suffers from a poor back and carmot lift
Case 3:08-cv-00939 Document 1 F4i4led 09/23/08 Page 44 of 49 PageID #: 44

her and give her care she needs The daughter will use her own retirement fund to hire a nurse if Ms. Connolly's only other option is to go into a nursing home. However, these measures are only stop-gap and will not last long. After this, it is unclear what will happen to Ms. Connolly
188. On information and belief, TennCare MCOs are contacting providers and telling them to reduce their orders to come within the limits annonnced in the August 8, 2008 I ennCare notice; otherwise, their patients will get no services at all On September 15, 2008, ShellY Breeding, a home health nurse, was contacted by Amerigroup and told to get new orders to reduce patients' hows. She understood that, as of September 19, 2008, patients without new orders would not receive any care and, after September 21, Amerigroup would not reimburse her organization, Highland Run, for any such care Dec! of Sheny Breeding (Ex. E, Mot fOl Prelim Inj.). On September 10, 2008, Dr Thomas Tenkins was contacted by AmeriChoice and told to write new prescriptions to be consistent with the new quantitative limits for home care He was told ifhe did not change the orders immediately his patients would go without any care at all, beginning September 22,2008 Dec! of Thomas Jenkins, MD.. (Ex. F, Mot FOl Prelim Inj.)
FIRST CLAIM FOR RELIEF (Title II ofthe Americans with Disabilities Act) 189 Plaintiffs adopt and restate the allegations set forth in pmagraphs 1-188 of this complaint 190 Plaintiffs are individuals with disabilities in that they have physical and other impairments that substantially limit one or more oftheir major life activities, including but not limited to breathing, walking, speaking, and standing.
Case 3:08-cv-00939 Document 1 F45iled 09/23/08 Page 45 of 49 PageID #: 45

191 Plaintiffs are qualified persons with disabilities in that they are capable of safely living at home with necessary services and they meet the essential eligibility requirements for the receipt of services hom and participation in the State Medicaid program with reasonable modification to the rules, policies, and practices ofthat program, 42 USC §12131(2)
192 Without reasonable modification ofthe rules, policies, and procedures governing the TennCare program, Plaintiffs will be forcibly isolated and segregated in harmful institutional settings against their will
193 Deftmdants' denial of Medicaid funding for the in-home health services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that are appropriate to their needs constitutes unlawful discrimination in violation of Title II ofthe Americans with Disabilities Act, 42 US.C § 12132, and its implementing regulation, 28 CF R § 130 51 (d)
194 Deftmdants have utilized criteria and methods of administration that subject PlaintiffS to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community, (2) failing to ensure that Plaintiffs have access to Medicaid-covered services that will meet their needs in the community, and (3) compelling health care providers to reduce recommended levels of in home nursing services, in violation of Title II ofthe ADA and implementing regulations
SECOND CLAIM FOR RELIEF (Section 504 of the Rehabilitation Act) 195 Plaintiffs adopt and restate the allegations set forth in paragraphs 1-194 of this complaint
Case 3:08-cv-00939 Document 1 F4i6led 09/23/08 Page 46 of 49 PageID #: 46

196 Plaintiffs are "qualified person[s] with disabilities" within the meaning of Section 504, because they have physical and/or mental impairments that substantially limit one or more major life activities, and they meet the essential eligibility requirements for long term care under TennCare.
197 Defendants' denial of Medicaid funding for the in-home health services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that are appropriate to their needs constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 USc. §794(a), and its implementing regulation, 28 GFR §4L51(d).
198. Defendants have also utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including risk of unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community, (2) failing to ensure that Plaintiffs have access to Medicaid-covered services that will meet their needs in the community, and (3) compelling health care providers to reduce recommended levels of in home nursing services, thereby violating Section 504 and its implementing regulations.
RELIEF REOUESTED WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:
A Declare the Defendants' denial of funding for Plaintiffs' necessary and appropriate in-home nursing services constitutes unlawful discrimination in violation of Title II ofthe Americans with Disabilities Act and Section 504 ofthe Rehabilitation Act
B Declare that the across-the-board reductions in private duty nursing and home health care announced in the TennCare August 8, 2008 notice, as those reductions
47 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 47 of 49 PageID #: 47

are applied to the Plaintiffs, constitute unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 ofthe Rehabilitation Act
C Grant preliminary and permanent injunctions enjoining the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from imposing the across-the-board reductions in home health car'e and private duty nursing services announced in the TennCare August 8, 2008 notice on Plaintiffs and requiring Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them to provide for individualized coverage of Plaintiffs' service needs in the least restrictive, most integrated setting, including making assessments of the extent to which Plaintiffs' service needs can and will be met by emolling them in the existing Home and Community-Based Services waiver
D. Maintain the injunction described in C, above, until such time as home and community based services through the Long Term Care Community Choices Act are expanded to include each Plaintiff and individualized coverage of each PlaintifIs' service needs in the least restrictive, most integrated setting.
E. Waive the requirement for the posting of a bond as security for the entry ofpreliminary relief
F. Award the Plaintiffs the costs of this action and reasonable attorney's fees
pursuant to 29 ns . c § 794a and 42 ns . G. § 12133 and any other applicable provision
oflaw F. All such other and further relief as the Court deems to be just and
equitable
Case 3:08-cv-00939 Document 1 F48iled 09/23/08 Page 48 of 49 PageID #: 48

Dated: September) 3 ,2008

Respectfully submitted,

Michael G Abelow (No 26710) SHERRARD & ROE PLC 424 Church Street, Suite 2000 Nashville, Tennessee 37219 (615) 742-4532 mabelow@shemudroe.com
Counsel for Plaintiffs
Of counsel:
Stephen F . Gold (PA Bar No. 9880) (pro hac vice to be submitted) 125 S 9th Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100, ext 227 stevegoldada@cscom
Jane Perkins (NC Bar No . 9993) (pro hac vice to be submitted) Sarah Somers (NC Bar No 33165) (pro hac vice to be submitted)
NAIIONAL HEAL IH LAW PROGRAM
211 N Columbia Street, 2d FloOl Chapel Hill, NC 27514 (919) 968-6308 perkins@healthlawOlg somers@healthlaw.org

49 Case 3:08-cv-00939 Document 1 Filed 09/23/08 Page 49 of 49 PageID #: 49

 
 Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
2008 WL 5330506 United States District Court, M.D. Tennessee, Nashville Division.
Sarah CRABTREE, et al., Plaintiffs, v.
Dave GOETZ, et al., Defendants.
No. Civ.A. 3:08-0939. | Dec. 19, 2008.
Attorneys and Law Firms
Jane Perkins, Sarah Somers, National Health Law Program, Chapel Hill, NC, Stephen F. Gold, Philadelphia, PA, Kathryn A. Evans, Legal Aid Society of Middle Tennessee, Michael G. Abelow, Sherrard & Roe, Lenny Lee Croce, Nashville, TN, for Plaintiffs.
Carolyn E. Reed, Linda A. Ross, Attorney General’s Office, Nashville, TN, Michael W. Kirk, Nicole J. Moss, Charles J. Cooper, Cooper & Kirk, Washington, DC, for Defendants.
Opinion
MEMORANDUM
HAYNES, J.
*1 Plaintiffs, Sarah Crabtree, Velma Ledbetter, Carl Anders, George Dylan Brown, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphy, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Ellar Lowman, Marvin Ray Berry, Jr., Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry, Joel DeHaas and Margaret Connelly1 filed this action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act (“RHA”) 29 U.S.C. § 794(a) against the Defendants: David Goetz, Commissioner, Tennessee Department of Finance and Administration and Darin Gordon, Deputy Commissioner and Director, Bureau of TennCare.
In essence, Plaintiffs assert claims that the Defendants’ recent cuts of their home health care services will result in their forced institutional placement in nursing homes in violation of the ADA and RHA that prohibit discrimination on the basis of disability, including unjustified institutionalization. Plaintiffs have disabilities, including cerebral palsy, muscular dystrophy, traumatic brain injury, Parkinson’s disease, Alzheimer’s disease, and stroke. With limited incomes, Plaintiffs receive home

health care services through TennCare, Tennessee’s Medicaid waiver program. Plaintiffs satisfied TennCare’s former eligibility criteria for these home health services that were determined to be medically necessary and to represent the “least costly alternative course of diagnosis or treatment that is adequate.” Tenn Comp. R & Regs 1200-13-16-05(1)(e). The State’s eligibility determination also found that these TennCare services would not supplant family or natural supports. Tenn.Code.Ann. § 71-5-144(b)(1). Plaintiffs assert these drastic reductions of their home health services also force Plaintiffs’ doctors to reduce their orders on the hours of in-home nursing care that the Plaintiffs actually need. Under the Defendants’ current policy, medical necessity no longer requires that the medical services be medically adequate.
Before the Court is the Plaintiffs’ motion for a preliminary injunction (Docket Entry No. 2) seeking to enjoin the implementation of these cuts of their in-home medical services, pending an individual assessment of their home health needs consistent with federal and state law. Plaintiffs seek, in essence, to require the Defendants:
(1) to maintain the status quo and refrain from imposing the across-the-board cuts in HH and PDN until the community-based, patient centered system authorized by the State’s Long-Term Care Community Choices Act is implemented and available to Plaintiffs;
(2) to conduct individualized assessments of the Plaintiffs to determine the specific needs of each Plaintiff, including the amount of time required to meet those needs, and the extent to which family or other natural supports are available, and whether the needs could be satisfied in the community at less cost than Defendants are presently paying; and
*2 (3) to determine whether nursing homes will in fact provide the services each Plaintiff requires
(Docket Entry No. 27, Plaintiff’s Reply to Defendants’ Memorandum at pp. 11-12).
Although the Defendants agreed to suspend implementation of these cuts pending the Court’s ruling on Plaintiffs’ motion, Defendants assert, in essence, that Plaintiffs lack standing under the ADA and RHA to assert these claims; that these cuts are fiscally necessary as part of a comprehensive State plan for disabled persons; that the Court’s consideration of costs cannot be limited to the fiscal impact of the Plaintiff’s claims, but upon all disabled enrollees; and that any of the Plaintiffs’ medically necessary services can be provided safely by nursing homes. In addition, as a comprehensive plan, the Court must defer to the Defendants’ determination on the appropriateness of these benefit cuts.
1

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
Plaintiffs respond, in sum, that the costs of nursing home care exceed the costs of their necessary home health services, and that under state law, the cost of the nursing home care can be made available to them to pay for such services in their homes. Plaintiffs also cite the administrative costs of the Defendants’ multi-tiered system of Defendants’ Managed Care Organizations (“MCO”), the MCO’s related contractors and their subcontractors for home health services, as creating unnecessary costs for the delivery of the home health services. For some Plaintiffs, their MCOs provided unnecessary and costly services that those Plaintiffs did not deem necessary for their care.
A. Findings of Fact
On July 22, 2008 the Center for Medicare and Medicaid Services (“CMS”) approved2 new limits for the TennCare waiver program that reduced home health services effective, September 8, 2008. On August 8, 2008, the Defendants sent a notice to TennCare enrollees of a cap limiting home services to 35 hours a week for combined home health services, including private duty nurses (Plaintiffs’ Exhibit No. 3). This letter stated, in pertinent part:
Starting September 7, 2008:
1. TennCare will ONLY cover PDN [Private Duty Nurse] services for adults age 21 or older IF:
• You are ventilator dependent.
• OR, you have a functioning tracheotomy AND need certain other kinds of nursing care too.
AND
2. There will be limits on Home Health Care for adults age 21 or older. This letter is for you because our records show you’re age 21 or older.
Are you getting these services now? If so, AND the amount of care you get will change, you’ll get another letter from your health plan. That letter will say how much care you will still get. It will also say when those changes will start for you. AND, it will tell you how you can appeal those changes if you think we’ve made a mistake.
Private Duty Nursing (PDN)

Starting September 7, 2008, TennCare will not cover PDN services for adults age 21 or older
unless:
*3 • Your are ventilator dependent for at least 12 hours each day.
• OR you have a functioning tracheotomy AND need certain other kinds of nursing care too
For your safety, to get Private Duty Nursing, you must have a relative or other person who can:
• Care for you when the private duty nurse is not with you
• AND take care of your other non-nursing needs.
What if you’re age 21 or older and not ventilator dependent or don’t have a tracheotomy AND need the other kind of nursing care? TennCare won’t cover PDN services for you.
You may be able to get Home Health Care. Keep reading to find out about changes to Home Health Care.
Home Health Care
What if you don’t qualify for private duty nursing but still need care at home? Your may qualify for part time (intermittent) nursing OR home health aid care.
Part time and intermittent Home Health Nursing Care For most people, TennCare will only pay for:
• Up to one nurse visit each day (Each visit must be less than 8 hours.)
• No more than 27 hours of nursing care each week.
Home Health Aide Care For most home health aide visits only pay for:
• Up to 2 home health aide visits each day.
• No more than 8 hours of home health aide care each day.
What if you need both Home Health Nursing AND Aide care? For most people, TennCare will only pay for:
2

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
• No more than 8 hours of nursing and home health aide care combined each day.
• No more than 35 hours of nursing and home health aide care combined each week.
If you would qualify for care in a Skilled Nursing Home but want to get care at home, you may be able to ger:
• Up to 30 hours of nursing care each week.
• Up to 40 hours of nursing and home health aide care combined each week.
Important:
TennCare will only pay for nursing services if you need care that can only be given by a nurse (care that can’t be given by an aide). This care like tube feeding or changing bandages, TennCare won’t pay for a nurse if the only reason you need a nurse is because you might need to take medicine. The nurse will only stay with you as long as you need nursing care. Id.
Plaintiff Florence Mary Adams
Florence Mary Adams, who resides in Cookeville, Tennessee, is a 21 year old married woman who has limb-girdle muscular dystrophy. Adams’s mother and sister live in Cookeville, but her mother works from 9:00 a.m. until 6:00 p.m. as a waitress. Adams’s sister, who is 14, attends school at Lebanon High School that is approximately 45 minutes from Cookeville. Until she was 16, Adams’s mother was her full-time caretaker, but for the last five years, Adams has had a combination of her mother and a nurse. Adams cannot prepare her food, but can feed herself once the food is on the table. Adams’s husband has myasthenia gravis, a form of muscular dystrophy. Adams’s husband is also in a motor wheelchair, but he can walk short distances. Adams’s husband cannot pick her up nor turn her nor assist in her toileting needs. Her husband attends Tennessee Tech, full time majoring in mechanical engineering. Adams’s husband handles his daily living needs and does not receive TennCare home health services. Adams has a three years old daughter. Adams’s child climbs into her lap, but her husband provide for the child’s care. Adams is able to take trips, go to the movies and parks.
*4 Adams was diagnosed with muscular dystrophy when she was six and has been in a power wheel chair since she was 11. Adams attended school, but in high school, her

sickness precluded a full school day, and a teacher taught her at Adams’ residence. Under TennCare, Adams has had nurses since she was 16. In the past, Adams has released her aides to attend activities, but on occasions, the CNA helped her “off the clock.” (Docket Entry No. 63, Transcript (“Tr.”) at p. 41).
Adams’s limited lung capacity causes her to tire very easily and requires her to use a bi-pap machine at night to avoid respiratory infection. This bi-pap machine allows Adams’s lungs to expand so she can breathe deeper and maintain her lungs’ capacity. Adams who cannot cough, is susceptible to pneumonia and respiratory infection. Adams has to turn every 30 minutes to an hour due to the pains in her sides and hips and turning requires the assistance of a nurse. At one time, Adams had a hospital bed that would inflate with air to assist in turning her without assistance, but that device no longer works because her arms lack the strength to move or to pull herself. Adams’s ankles and knees must be moved every 30 minutes and before going to bed and at times during the night. Without these exercises, Adams “suffers a lot of pain” and becomes stiff, making any movement difficult. The turning is also necessary to prevent bedsores and the break down of her skin that can cause ulcers.
Until November 2007, Adams had 24 hours care, seven days a week (“24/7”) coverage initially by a Licensed Practical Nurse (“LPN”) that was later changed to Certified Nurse Assistant (“CNA”). The CNA takes Adams to the bathroom, assists her in bathing and brushing her teeth. The CNA assists her with a Hoyer lift that places Adams in a wheelchair to bath her. The CNA performs the same functions as the licensed practical nurse. In Adams’s view, she did not need a nurse provided by the MCO’s contractor, only a CNA.
Between December 2007 and January 2008, a woman interviewed Adams and determined Adams needed a CNA for only 16 hours a day. Adams states that she did not have a time study for her reduced CNA services. Recently, Adams health has deteriorated and she does not sleep well. Adams’s lung capacity is now 22 percent, down from 43 percent in January 2008. The pain in her hips and legs awakes her. Adams cannot lift her arms and can lift her head only in the sitting position, but cannot when she is laying down.
Defendants announced TennCare’s cuts in services in home health in an August 8th letter, Plaintiffs’ Exhibit 3. That letter informed Adams that her home health services would be reduced to 35 hours a week. Between the August 8th letter and the second TennCare letter issued shortly after the first letter, TennCare reduced Adams hours to 35 hours, but did not assess her actual needs for these services nor did the Defendants do so as of December 2008. Adams appealed that decision citing her physician’s assessment that she needs twenty-four hours
3

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
of home care seven days a week. Pending her appeal, Adams’s care returned to 24/7 coverage.
*5 After receiving the Defendants’ notice of reduction of services, Adams also called TennCare Solutions, her case manager who responded that if Adams could not survive on the limited medical services, she would be placed in a nursing home. With prospect of family separation, Adams called the local mental hospital because she would rather die than to go to a nursing home. Adams now receives mental therapy and is on medication for her mental health Adams explained that if her services were reduced to 16 hours, she “could not go to the bathroom for a long period of time” and would have to sit without “much help at all.” (Docket Entry No. 63, Transcript at p. 39).
Dr. Christopher Rayala who is one of Adams’s treating physicians submitted his affidavit. (Docket Entry No. 45) and opines that:
“Without continued care in her home, Mrs. Adams will have to move to a nursing home as staying in her home without any assistance would place her in danger of serious infections, urinary tract infections, skin breakdowns, pressure ulcers and the like due to her inability to move on her own or toilet on her own and perform basic activities of daily living on her own. If Mrs. Adams were forced into a nursing home due to a lack of care in her home, her depression and anxiety issues would be exacerbated.”
Id. at p. 1-2.
Dr. Brenda Butka, who specializes in pulmonary medicine and is a faculty member in the Pulmonary Division at the Vanderbilt School of Medicine, also opined about Adams’s medical condition and needs:
Florence Adams is a 21-year old woman who has been my patient for approximately two years. She has muscular dystrophy and is totally dependent for positioning, toileting, feeding, and all aspects of care. She cannot change position in bed without assistance.
She has respiratory insufficiency, and requires someone to place and adjust her BiPap unit throughout the night. Her BiPap unit is acting as a non-invasive ventilator and is required for her health and continued survival.
She requires assistance and someone present 24 hours daily due to these needs. To my knowledge, there is no care for which she requires a licensed nurse. All other

needs can easily be addressed by a trained personal assistant or home health aide. However, without care 24 hours a day to address these needs, she will not be able to safely remain in her home.
(Docket Entry No. 44 at p. ----).
Dr. Peter Donofrio, a neurologist specializing in neuromuscular disorders is in the Vanderbilt University Medical Center, Department of Neurology, also opines about Adams as follows:
Florence (Carroll) Adams ... is a patient under my care through the Muscular Dystrophy Association Clinic at Vanderbilt University Medical Center.
She has limb-girdle muscular dystrophy, which is severe. I last saw her on July 3, 2008 at which time she had profound atrophy and weakness in the upper and lower extremities, greater in the shoulders and hips than distally. She is wheelchair-bound and is unable to stand or walk effectively.
*6 Mrs. Adams has only slight movement of her fingers and wrist, and no movement of her legs except for slight movement of her knees and ankles. She cannot walk, cannot move her arms or legs on her own, cannot lift or grab items, and cannot turn over by herself when lying down. Mrs. Adams requires assistance with all activities of daily living (ADLs) including preparing and feeding meals, opening doors, transferring from bed to wheelchair, bathing, dressing, toileting, and assistance with personal hygiene.
Mrs. Adams’ husband also has muscular dystrophy but his condition is not as severe. He is in a wheelchair but can transfer himself. However, he does not have the strength to lift or transfer Mrs. Adams out of her motorized wheelchair. Mr. and Mrs. Adams have a three-year old daughter who is not disabled.
Of interest, Mrs. Adams was admitted to Vanderbilt University Medical Center in May 2008 for chest pain and shortness of breath. Unfortunately, she continued to have chest pain after she was discharged home. She characterizes the pain as severe, requiring potent analgesics. On my examination she had clear chest wall pain suggestive of costochondritis.
Due to her condition, without care 24 hours a day, seven days a week, it will be unsafe for Mrs. Adams to remain in her home.
In my opinion, she should be allowed to remain in her home with 24 hour care which would preclude the necessity of placement in a nursing home where the level of care would not be superior and where she would be separated from her husband and three-year old daughter.
4

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
(Docket Entry No. 47 at p. 1-2)
Plaintiff Marvin Ray Berry, Jr.
Marvin Berry is a quadriplegic who has been confined to a wheelchair since he was a child. Berry is paralyzed from the neck down as the result of a stray bullet that struck him as a child. Berry has been paralyzed over 25 years and has had five or six surgeries requiring hospital stays of a week to two weeks. Berry lived with his mother and two younger brothers who cared for him. Berry’s mother who now has degenerative disk disease, back and sciatic nerve problems, cannot assist him any longer. Berry’s 19 year old sister cares for his eight year old brother and his mother. Berry’s other brother, Jeremy is married with three children, works for Black Box Communication and is head of a cabling division for the southeast United States, requiring out-of-town travel for a least five out of seven days a week.
Berry is on supplemental security income and lives in a Section 8 apartment, that is modified to allow him to access his bathroom, shower and kitchen. Berry controls his wheelchair by a device utilizing radio waves to move his head. Berry lacks movement in his fingers or wrist. Berry needs help washing his face, brushing his teeth and applying lotion to his skin to avoid skin breakdown as well as assistance for his bowel movements. Berry’s medication causes his mouth to be really dry, and every 15 minutes, he has to lay back to release pressure. Berry breathes from his diaphragm, but cannot cough nor force anything out of my lungs, without assistance to press his abdomen. Berry attends church and volunteers with Big Brothers and Big Sisters of America. He goes to the movies and out to dinner.
*7 Despite his physical limitations, Berry earned a Bachelor’s degree from Middle Tennessee State University where he received assistance from a vocational education agency. Berry now receives 24/7 coverage from TennCare, through a managed care program with four CNAs that work 12 hours shifts. Berry’s CNA usually repositions him and turns him on his back and checks his leg bag that collects his urine. The CNA provides Berry with range of motion exercises for his ankles, arms, fingers, and knees that include straightening his legs and raising his legs above his head. Berry has a Hoyer lift to roll him on his side and to lift him into his chair.
Since 2005 Berry had to have surgery for a pressure ulcer that resulted in his hospitalization for three months. Berry has also had one to two urinary tract infections a year. Berry has since been hospitalized on the average one to two times a year for pneumonia that requires intravenous antibiotics and breathing treatments. In November 2007,

Benny had a fever with cold chills and based on his experiences these were symptoms of an urinary tract infection. Berry increased his fluid intake and drank cranberry juice, but did not feel better and after a few days went to the hospital. Berry had to have surgery and remains under care for that infection.
Before June 2007, Berry received 12 to 18 hours a day of CNA services. In June of 2007, Berry’s case manager from AmeriChoice visited him and explained that because he was living alone, he would be best served with twenty-four hour care of a nurse. Berry deferred to that determination, but Berry opined that he “could get by with 16 to 17 hours a day” (Docket Entry No. 63, Transcript at p.61). After the August 8th letter, Berry received a call on September 16th from Middle Tennessee Home Health, his home health agency that employs separate staffing agency to supply his CNA care needs. A week later, Berry services were cut. Despite Berry’s doctor’s assessment that Berry needed home care, the State determined that Berry did not meet the definition of medical necessity because he did not need for a skilled nurse, was not on a feeding tube nor respirator nor IV.
In his opinion, Berry cannot survive in his apartment on 35 hours a week and stated, “I’m going to be forced to go into a nursing home.” Id. at pp. 73-74. Berry lacks any other support systems and a nursing home would change his life and deprive him of his privacy and control over his life. Id. at pp. 74-75. Barry would also lose his subsidized apartment and to secure another one would place him on a waiting list.
Plaintiff Megan Danielle Allen
Megan Allen is 21 and has had cerebral palsy since birth. Allen now lives with her parents who adopted her. Allen needs assistance to dress, bathe, brush her teeth, and to go to the bathroom, as well as her other daily living activities, except for feeding herself. Allen has a lift system at home to assist her in getting out of bed. Allen cannot get a drink of water and needs assistance to sit up and to reposition. Allen can use a computer, but needs assistance with positioning the computer and the voice box. Allen has younger brothers at home, but they also require constant care and one is receiving home health services. Allen’s parents who are now older, cannot lift her and have other children who need their care.
*8 Allen was an honor student in high school before she entered college in 2006. Before college, Allen’s parents provided for her care. Before entering college in January 2006, Allen was evaluated and received training for a voice output device to attend college. The college provided only academic assistance such as a note taker for
5

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
her classes. Neither TennCare nor any other State agency referred to her to the vocational rehabilitation agency that actually provided her a personal attendant for college. Allen cannot carry or unpack her books. In her first year of college, Allen had home aide services during the day, but not at night. One of Allen’s college aides told her that they could not accompany her outside of her dorm and that their hours of service would be reduced to six hours a day from 24 hours a day. Allen experienced problems because in the event of an emergency during the night, she cannot get out of bed nor call for assistance nor go to the bathroom nor turn herself to avoid bedsores. On August 20, 2008, Allen withdrew from college and returned to her parents’ home to get the home health services.
In July, 2008, Allen’s care required 24 hours per day of home health services. On July 11th, TennCare Select, Allen’s provider, notified her that she would be provided only $24,000 or 180 hours per month or approximately six hours per day of services and the August 8th letter announced reduction of her home health services to 35 hours. Allen did not receive any assessment of the time required for her care given her limitations. Allen appealed those restrictions, but those appeals were initially denied for lack of a factual dispute. In July 2008, TennCare Select sent Allen a notice that TennCare would pay for 24/7 services for Allen while her appeal is still pending.
Allen opines that she may be able to do with care less than 24 hours a day, but probably would need care between 12 and 24 hours per day. If Allen cannot continue with 24 hours of home and community aide services, she will be forced into a nursing home. Allen has visited two nursing homes where her aunt and grandmother lived and stated that the homes “stunk” Id. at p.89. Allen also explained that “the thing is, ... then I would be really depressed, because I couldn’t go out, I couldn’t do anything, and all the time I would get bedsores and get worse and worse and worse, and I would die in the end because the people won’t help me.” Id. at p.90. As a young adult, Allen wants to be involved in the community, to socialize, to obtain a degree in recreation administration and to live independently. Allen was a Junior Miss Wheelchair for two years and visited schools and made public appearance. Allen volunteers for Meals on Wheels.
On cross examination, the defense counsel elicited that on an out of town visit for a week, Allen’s family provided her care and that Allen once had a special bed that she was unable to turn herself, at night. Although Allen receives Medicare and Medicaid, neither TennCare nor her MCO requested this type of bed for Allen.
*9 Susan Anderson, a family nurse practitioner, described her work with Allen’s medical care over a two year period. According to Anderson, due to spasms and

contractures in all her extremities, Allen is quadriplegic with the exception of some voluntary movement of her left arm and hand. Megan is wheelchair bound and unable to walk or stand or reposition herself during the day without some assistance. Although Allen communicates verbally, due to the effects of the cerebral palsy, Allen’s speech is slurred requiring voice output device at times. As to Allen’s family care options, Anderson stated:
5. Megan’s mother and father are now retired and have health issues themselves. Mrs. Allen is not supposed to lift anything heavy and Megan is now too large for Ms. Allen to lift and move. Mr. Allen can assist some but has medical problems that limit his ability to lift and move Megan. While Megan is at home, her parents do assist with meals for Megan and provide other care that does not require lifting or moving Megan. Also, since Megan is now a young woman and no longer a child, privacy is a greater and more important concern for her.
10. Although Megan Allen may meet the criteria for nursing home care, in my opinion, if Megan were to be placed in a nursing home, she would quickly manifest depressive symptoms due to the lack of interaction with peers her age. Due to the lessened assistance she would receive at a nursing home, her endurance would lessen. Supplanting home health aide services with nursing home services may even adversely impact Megan’s length of life. Megan Allen does have physical disabilities that the limit her mobility (sic), ambulation and dexterity to perform activities of daily living. However, this should not preclude her from living in the community. Home aid services, personal care assistance and other community services would allow her to stay out of institutions like nursing homes and continue to function in a more integrated community setting. In my opinion, it would be against good medical practice to prescribe or place Megan Allen in a nursing home facility. However, without home health aide or personal attendant services in excess of six hours per day, Megan may not be left with any choice but nursing home care.
(Docket Entry No. 50 at pp. 3-5).
Plaintiff Miranda Mabry
Miranda Mabry was diagnosed with cerebral palsy at 18 months and needs assistance in her daily living activities, including dressing, bathing and feeding. At some point, Allen qualified for the waiver services to receive a personal attendant for two hours a week which was later increased to eight hours per week before Mabry left her mother’s residence. Allen’s mother could no longer take
6

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
care of her and became abusive, causing Mabry to move.
Mabry now receives 24 hours of home aide services, seven days a week. To remain in her apartment, Mabry needs home aide services all the time. Mabry continues to receive other services from the home and community based waiver, including homemaker services once a week, and meals delivery five days a week. A representative of the Defendants asked Mabry to accept 20 hours per week for her personal attendant in lieu of her current home health services. Prior to the threatened cuts in her services, Mabry never received an assessment of the time that her aide needs to assists her in her daily activities. Mabry described her aide as busy most of the time.
*10 Mabry told her provider that she would be unable to remain in her apartment with only 20 to 35 hours of such services each week. At the hearing in this action, Mabry testified that if she had to accept .35 hours of home aide services per week, she would “[g]o [to a] nursing home and die.” Id. at p. 104. Mabry has visited nursing homes, does not like them and would lose her pet if she moved into a nursing home.
Mabry is a member of the Accessibility Committee for the Council on Developmental Disabilities and serves on the board of an organization called People First and was named Ms. Wheelchair Tennessee of 2008. Mabry educates the public on the dignity, productivity and basic values of people with disabilities.

catheter was not changed because the nursing home lacked the appropriate personnel to insert a new one. Baker described his mother’s clothes and bed sheets as unchanged. Within ten days after arrival, Baker’s mother fell and broke her hip, for which she spent three days in the hospital. In 2006, Baker’s mother also broke her hip after she fell at home and broke her hip when the nurse was asleep on the couch. Otherwise, his mother had never fallen at any time when she had home health care.
Baker’s mother’s anxiety level is much higher in the nursing home, and she has required increased medications for her nerves. Mrs. Baker does not sleep well because her roommate constantly cries and screams and the overall noise in the nursing home. In Baker’s opinion, the nurses at the nursing home are overworked and understaffed. At times, his mother has had to use the restroom in her bed and lay in her own waste. Based upon his observations, Baker’s mother’s health has declined in the nursing home and her mental capacity has worsened to the level of depression.
Baker, a firefighter paramedic, usually works 24 hours on, then 48 hours off. He shops for his mother’s groceries, maintains her house, cuts the grass, picks up her medications and catheter supplies, and transports her to the doctor’s office. On his off-duty days, Timothy Baker operates a lawn and landscape company, and engages in competitive power lifting. His lawn care business requires seven to eight hours a day. When Baker works the 24 hour shift, no one would be available to care for his mother.

Plaintiff Delores Baker
Timothy Scott Baker, Delores Baker’s son, testified about his mother’s limitations Delores Baker is a diabetic and is bedridden, requiring 24/7 nursing services to care for all her personal needs. Baker’s mother needs assistance with meal preparation, bathing, bathroom/dressing, drug administration, maintenance of her catheter, testing of her diabetes, injection of insulin, and other similar services. His mother cannot be left alone safely. Before TennCare’s 35 hours limitation, Baker never received any assessment of the time required to provide her home health care. When informed of the home health hours cut, Baker called a nursing home where his mother has been on a waiting list for a very long time. On the day before her services were cut, the home services provider told him that when she left off work tomorrow, there would not be anyone to provide service. Baker remained with his mother until her placement into the nursing home.
In the nursing home, Baker related that his mother’s catheter had not been flushed nor changed and was full of debris from her kidneys. Despite his request, his mother’s

Plaintiff Carl Anders
*11 Dr. Garvin who has been Anders’s treating physician for over two years, described Anders’s cerebral artery occlusion in July 2004 that left him with paralysis and hemiparesis on his left side. As to Anders’s limitations, Dr. Garvin testified:
2.... [Anders] is unable to walk or transfer. He has extreme difficulties with any movement. He suffers from spasticity, muscle spasms and contractions.
3.... Anders requires feeding and medication administration through a G-tube.
4.... Anders was on a trachea and continues to have a stoma site. That stoma site needs daily monitoring for continual discharge and to determine whether the discharge indicates that there is an infection.
5.... Anders has restriction in his airways. Due to secretions in his airway, he requires constant
7

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
monitoring about necessary suctioning. He is at great risk of aspiration pneumonia. He has a history of aspiration pneumonia, having been hospitalized many times for it. He was hospitalized for aspiration pneumonia multiple times when he was a resident in NHC nursing home in Milan, Tennessee, and multiple times when he was a resident of the VA nursing home in Humboldt, Tennessee.
6.... Anders is on a nebulizer twice a day. The nebulizer assists with keeping his airways clear, however, Mr. Anders still needs to be suctioned throughout the day. Some days he needs suctioning every 2-3 hours and sometimes he only requires it once a day. Every day is different and the nurses never know what to expect from him: whether he’ll need continual suctioning or just once a day. If Mr. Anders is not suctioned promptly, he chokes and cannot breathe. If he starts chocking at his home, his nurse can catch it right away and suction him. Without constant monitoring, if he chokes, he would be unable to ring his call button to summon assistance. At a nursing home he would be at risk of not being able to breathe.
7.... Anders suffers from depression and anxiety and takes Celexa.
8. Because of his deteriorating physical and mental health, his sister and mother took him out of the nursing home. He now lives with his mother and sister and his sister’s family. They are his caregivers 24 hours a day.
9. Mr. Anders’ medical condition requires constant 24 hour a day, 7 days a week skilled care due to continual suctioning, constant monitoring of his blood pressure, and to hydrate him or feed him every two hours. Mr. Anders is given his medicine through his PEG tube.
10.... Anders’ nurses move him when he is awake and when he is asleep in bed. He needs assistance with all transfers. The nurses help him to stand each day. If Mr. Anders doesn’t move around, he can develop blood clots or pneumonia or other respiratory illnesses. If respiratory illnesses occur, Mr. Anders would have to go to a hospital. Hospitalization for Mr. Anders would be lengthy due to his weakened immune system. If Mr. Anders’ private duty nursing is reduced to 5 hours a day, in a very short time, he would end up in the hospital.
*12 11.... If ... Anders had to go to a nursing home, very soon afterwards he would be back in the hospital. This was his past history at NHC and the VA nursing home.
12. Supplanting private duty nursing with nursing home services may even adversely impact Mr. Anders’ length

of life. Although Mr. Anders has physical disabilities that limit his ability to be an independent person, he does not require nursing home care. Mr. Anders would not receive the amount or intensity of care in a nursing home that he now receives from private duty nurses. In a nursing home, Mr. Anders would spend most of his time in bed. Private duty nursing allow him to function in a more integrated setting community setting.
13.... In summary, it is my medical opinion that Mr. Anders is medically fragile and requires 168 hours per week of constant skilled nursing care to monitor, assist and do medical interventions for him. It is my medical opinion that a nursing home would not be sufficient for the treatment of his fragile health.
(Docket Entry No. 65-2, Exhibit B at pp. 1-2) (emphasis added).
Plaintiff Margaret Connelly
Margaret Connelly receives 40 hours of home health care, and challenges the Defendants’ assertion of “little risk” to her, if the reduction in services caused her to be institutionalized, given her lack of any family support. According to Connelly,
Defendants’ statements in their Memorandum in Opposition are incorrect because I do depend on a certified nursing assistant to accomplish most things and a denial in increase of services alone is detrimental; If I also experienced a reduction in services, I would suffer irreparable harm. Currently I depend on other people to prepare my meals and help me eat, give me my medication, help me to dress, and help me into and out of my wheelchair. A reduction in services will force me into a nursing home as there are no family member’s to adequately provide the care that I need, and I have no other resources available.
Docket Entry No. 48, Connelly Affidavit at p. 1) (emphasis added)
Home Health Care Workers
8

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
Plaintiffs presented testimony of home health providers on the implementation of TennCare’s recent cuts in services and on the effect of the Defendants’ cuts on the Plaintiffs
Cassie Miller
Cassie Miller, a certified nursing assistant, works for Compassion Home Health that contracts with Middle Tennessee Home Health Providers, that in turn contracts with AmeriChoice, a MCO that contracts with TennCare. Miller was an aide to Marvin Berry, for whom she was “basically his arms and legs.” (Transcript at p. 107. Miller’s only restriction was that she could not give Berry his medicines. For her shift, Miller estimated that she has an hour and a half to two hours of “downtime”. Miller testified that before Berry got his letter in August 2008, two people from AmeriChoice visited Berry for ten minutes to check on his patient care needs, but did not perform an assessment of Berry’s actual needs. In her opinion, AmeriChoice did not conduct any assessment, but was told Berry his care would remain at 24 hours, seven days a week. In Miller’s experiences, Berry cannot live independently with home care limited to 35 hours a week.
*13 Before her work as a home health aide, Miller worked in two nursing homes for almost five years. Miller described her nursing home work as a “real fast pace” with “extremely high” patient care load of 12 and 18 patients per day. In Miller’s opinion, patients with disabilities similar to Berry, “really were not getting the care that they deserved or needed in the nursing home.” Id. at p. 109.
Sherry Breeding
Sherry Breeding, a registered nurse, has worked for Highland Rim, a home health company for six years. At Highland Rim, Breeding performs case management, clinical supervisory recertifications, admissions, and other duties. As a clinical supervisor, Breeding evaluates patient satisfaction with the staffing agency and determines their health needs. Breeding also works with doctors to obtain any necessary care. Breeding does the intake for referrals to be sure that authorizations are sent for health care services.
Breeding has 58 patients under her supervision, including two Plaintiffs For these Plaintiffs, Breeding does the recertifications and admissions as well as monthly checks. At times, Breeding provides nursing services such as head

to toe assessment, injections, and extractions for laboratory tests. A CNA assists these two Plaintiffs at their homes with their daily living activities, eating, bathing and grooming, but the aides cannot cook meals, transport or accompany patients or perform household activities. CNAs cannot administer medication, but can prompt the patient to take their medication.
As to costs of home health services, Breeding described a home health aide and CNA as performing the same job with different titles. The home health aide actually works with the patient while the nurse supervises. According to Breeding, a CNA’s compensation depends upon experience and seniority within the company and has pay ranging from $9 to $11 per hour MCOs, however, charge TennCare a rate of $21 or $22 per hour for CNAs. Part of the CNAs’ $21 or $22, the TennCare rate, goes the MCOs and other entities or persons who coordinate the patient’s home health services. Licensed practical nurses are paid between $17 to $24 per hour. TennCare pays $35 to $40 an hour for registered nurses. The other part of the TennCare rate goes to the entity that arranges the care. Breeding’s agency has entered into such contracts in the past.
As to the proposed TennCare cuts, Breeding learned of these cuts from case managers when the patient’s doctor requested an increase in services, but the request was denied due to the upcoming cuts. As to the new cuts, Breeding learned from Dr. Wendy Long, TennCare’s Chief Medical Officer, who stated the doctors needed to change their orders for services to conform to the new TennCare cap. Breeding’s understanding is that if doctors did not write an order for a lower number of hours, then private duty home care would cease. In Breeding’s experience, some doctors refused to write the orders based upon the cap and other doctors wrote orders with a notation that they were being forced to write the order because otherwise their patients would not receive any home care. In Breeding’s experience, historically, the treating physician determined the level of home health services with recommendations from the on-site-nurses, but now the MCOs decide the patient’s needs. Now, the MCO decides based upon the patient’s insurance coverage, but the doctor writes the orders. Breeding also disagreed with Dr. Wendy Long, TennCare’s medical director that the doctors write orders for patient case based upon the patient’s insurance coverage. Breeding cited a patient whose doctor wrote orders for home care service, unaware that the patient had limited coverage and the patient’s nephew paid for the uncovered services.
*14 In Breeding’s opinion, her two Plaintiffs cannot survive with the 35 hours limitation. One is 97 years old and does not sleep through the entire night. She has to get up to use the bathroom, as she is on Lasik, a diuretic. Although this Plaintiff has 10 children, who are alive, Breeding has only seen two daughters, one of whom lives
9

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
next door. Yet, that daughter had back surgery, and her husband has Alzheimer’s. Breeding cited another patient whose hours were cut and she was placed in the nursing home the next day. Breeding is aware of only one instance where AmeriGroup performed an individual assessment of their patients under her supervision, and that assessment was only a mental assessment.
When asked for her opinion, based upon her experiences with patients, on the effect of the Defendants’ 35 hours a week limitation for patients with doctor’s orders for 24/7 care, Breeding opined:
I think there are many patients that aren’t going to want to go to the nursing home because of what you heard earlier. So they are going to stay at home, and they are going to lay in their feces and lay in their urine. But if they go to the nursing home, they are in the same situation. The doctors-some of the doctors won’t write orders now for me, because I’ve asked them so many times to write the decrease, and I was told that I needed to get new orders again from them after the initial orders.
(Docket Entry No. 63, Transcript of hearing at p. 141.) Yet, Breeding acknowledged that the impact must be determined by person, but each individual needs a very thorough assessment.
Declaration Thomas Jenkins, M.D.
Dr. Thomas Jenkins, a physician and family practitioner who treats TennCare patients submitted his affidavit on the Defendants’ and MCOs’ administration of these benefit cuts in which his patients were threatened with loss of all benefits, if he wrote orders for benefits above the TennCare cut. According to Dr. Jenkins,
2. I treat TennCare patients who have been receiving and who continue to need extensive home nursing services because of serious chronic medical conditions. I have prescribed care for them based on their medical needs. Until this month, TennCare and its MCOs have agreed that the care I prescribed for these patients was medically necessary and has paid for that care.
3. I was informed on September 10, 2008 by AmeriChoice, a TennCare HMO, that I needed to alter all orders for home health for my TennCare patients.

They told me that a new prescription had to be written to be consistent with the new quantitative limits for home health imposed by TennCare.
4. I was told if I did not change the orders immediately my patients would go without any care at all, beginning Monday, September 22, 2008.
5. I talked to Betty Watkins, a staff person at AmeriChoice by phone on September 10, 2008. I asked if she was asking me to lie about my patients’ needs. She responded that if I did not agree to change the orders AmeriChoice would not pay for any home health care for my patients.
*15 6. I requested that she put this in writing. When I did not get the information in writing, I contacted Dr. Paul Stumb at AmeriChoice on September 12th and 17th. Dr. Stumb told me that he had written the instructions 5 different way and that his “lawyers would not approve” any of their versions. He said I would not get anything in writing, but that I still must prescribed less that the limits, or my patients would get not home nursing care at all.
7. After these conversations, I called my malpractice insurance carrier, State Volunteer Mutual Insurance Company (SVMIC). I asked them what I should do, given the threat of TennCare HMO and my concern for my patients’ safety if they get less care than what I have prescribed, and that TennCare has recognized as medically necessary.
8. The insurance carrier’s representative advised me to write the new order as directed by the HMO, but to sign my orders under duress and to state if I did not sign my patients would get no care at all.
9. I have many patients for whom insurance companies impose quantitative limits. Those limits do not change their medical needs nor my prescriptions for care. It may and does impact the services they receive, but in 34 years of medical practice I have never been asked to misstate a patient’s needs or alter a valid prescription in order to come in line with HMO quantitative limits.
(Docket Entry No. 54, Exhibit 6 at pp. 1-3).
Kelly Dunn
Kelly Dunn is the regional private duty director for Suncrest Home Health of of Middle Tennessee, LLC that provides home health and private duty nursing services to approximately 75 TennCare enrollees in Middle Tennessee. According to Dunn, when TennCare began implementation of the new benefit limits for home health
10

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
and private duty nursing, Suncrest Home Health had concerns that unless the TennCare enrollee’s treating physician prescribed the new benefit limits, Suncrest and its providers may be breaching professional standards of care.
Specifically, Suncrest Home Health could not afford to continue to provide service above the new benefit limits that TennCare would no longer reimburse under the new benefit limits. At the same time, Suncrest Home Health was concerned that if it only provided care up to the amount provided under the new benefit limits notwithstanding an outstanding prescription for a greater amount of care from the treating physician, Suncrest Home Health might not be in compliance with state regulations and might have potential exposure associated therewith.
Because of these concerns, Suncrest Home Health decided that it could not provide home health and/or private duty nursing to TennCare enrollees absent a prescription from the treating physician that complied with the new benefit limits. We communicated our views on this matter to the managed care organizations with which Suncrest Home Health contracts to serve TennCare patients (AmeriChoice, AmeriGroup, and TennCare Select).
*16 In order to implement a smooth transition for those TennCare patients who had been receiving home health and/or private duty nursing benefits above the limits, Suncrest Home Health has told case managers who did not have a new prescription in compliance with the benefit limits that Suncrest Home Health would be willing to contact the treating physician to obtain a new order if the physician believed that to be appropriate.
(Docket Entry No. 60 at p. 1-2).
Defendants’ Proof
Darin Gordon-Fiscal Issues
In his affidavit, Darin Gordon, TennCare’s director, related that prior to the State’s recent cap on private duty nursing services (“PDN”) and home health services (HH”), TennCare offered PDN/HH benefits up to and including 24 hours a day, seven days a week. (Docket Entry No. 39, Gordon Affidavit at p. 1). In the fall of 2007, the TennCare Bureau surveyed the PDN/HH benefits in other States in the Southeastern United States. The Defendants concluded that Tennessee’s unlimited PDN benefit was more generous than all but one of the

twelve Southeastern States. Id. at p. 2. According to Gordon, Tennessee’s spending on PDN and HH increased from $18 million ($6 million State funds) in fiscal year (“FY”) 2000,3 to $313 million ($113 million State funds) in FY 2008. Gordon projects an increase to $447 million ($161 million State) in FY2009, starting July 2008. Gordon cites PDN and HH services as the fastest growing cost driver in the entire TennCare program. Id. at p. 4. Gordon attributed the most significant increase in PDN and HH to the population age 65 and over, for whom expenditures were $454,000 in FY1999 and $81.3 million in FY 2007, and $108 million in FY2008, an increase of three percent of the total HH/PDN expenditures to 35 percent. Id. at pp. 4-5.
According to Gordon, the State had a revenue shortfall of $500 million dollars in fiscal year 2008 and $56.4 million the first month of FY2009 of the budgeted projections. In Gordon’s estimation, the second month of fiscal year 2009 is expected to be $85.5 million short of the budget projections. According to Gordon, the Governor has issued budget limits and spending cuts under which TennCare must return a total of $64 million of its FY2009 budget appropriation to the State as well as an additional three percent reduction for FY2010. Gordon explains that the Tennessee’s Constitution requires a balanced budget, so deficit spending is not an option in Tennessee for the prior funding levels for PDN and HH benefits, or any other program, citing Tenn. Const. art. II, § 24. Id. at p. 5.
In Gordon’s opinion, if the PDN and HH benefits limits are not cut, TennCare will have to make an upward adjustment of nearly $250 million (over $90 million State) for FY2009. To avoid this, the Defendants submitted a proposal to CMS requesting a revised benefit package comparable with other southeastern States. TennCare proposed revision established weekly limitations on HH services and limiting the PDN benefit to technology-dependent adults. The limits do not affect children under the age of 21. TennCare will continue coverage of PDN for adults patients who either: (1) are ventilator dependent for at least 12 hours per day, or; (2) have a functioning tracheotomy requiring suctioning and who need other specified types of nursing care. Around-the-clock care is limited for those technology-dependent individuals who would require the most expensive car, if placed in an institution. Id. at p. 10.
*17 For HH benefits, adult patients who qualify for Level 1 nursing home care are eligible for up to 35 hours of home health care per week, of which no more than 27 hours can be nursing hours.4 Patients who qualify for Level 2 nursing home care may be able receive up to 40 hours of HH care per week, of which no more than 30 hours can be nursing hours. Eligible enrollees can receive more than 1,000 visits per year (and up to three HH visits per day-two by a HH aide and one by a HH nurse). The HH benefits limits considered the cost of nursing home
11

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)

care. The State’s cap of 35 hours a week applies to everyone, regardless of age, including persons over 65.

$62,275 (Docket Entry No. 23, Defendants’ Memorandum at p. 29).

Historically, 98 percent of Tennessee’s expenditures were

As to the Defendants’ comparison of TennCare’s home

to nursing home’s and two percent were for home and

health services to other southeastern states, the

community based services. Prior to 1999, Tennessee did

Defendants did not include those States’ expenditures

not expend funds for a personal care option. In 1999, after

under personal care option waivers, those States’

the Supreme Court decision in Olmstead v. L.C., 527 U.S.

expenditures under aged/disabled waivers not those

581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), Tennessee

States’ expenditures for their managed care waiver

spent $720 million and ranked number 18 nationally with

programs. The State did consider whether the other states

a patient per diem expenditure of $127.80 in 1999. In

paid for private duty nursing through managed care, as

2003, in an agreed order, State agreed that to work with

opposed to a state plan. Under Tennessee’s home and

the Plaintiffs in an action in this Court to improve the

community based service waiver, the State provides a

home health services for TennCare enrollees and to

maximum 1,080 hours of personal care services under the

develop home and community-based alternatives to

waiver. For the combined federal State expenditures for

nursing home placement. In terms of current per capita

Medicaid HCBS waiver, Tennessee is in the middle of all

expenditures for nursing homes, Gordon ranks Tennessee

States.

within the top five or top ten of all States. In fiscal year

2007, Tennessee spent $1,182,654,826 on nursing homes

*18 TennCare has several waivers plan that serve

that includes certified public expenditures and

different types of disabled enrollees: Home and

$943,049,751 in the prior year and in 2005, $906 million.

Community Based Services (“HCBS”); Home Health

Tennessee expends $192.09 per person in a nursing home.

(“HH”); Aged/ Physically Disabled (A/PDH”);

Tennessee has some of the highest overall expenditures in

Developmentally Disabled (“DD”) and Nursing Homes.

the country for institutional care. Florida spent $131 and

See Plaintiffs’ Exhibit Nos. 12, 25, and 35. Tennessee

Georgia $86. The occupancy rate in Tennessee’s nursing

does not offer a Personal Care Option, as do other states

homes is proximately 87 to 88 percent. In Tennessee, the

Plaintiffs’ Exhibit No. 25. A comparison of the

reimbursement system pays a maximum of $50,000 to

expenditures on the State’s waiver plans from 2002 and

nursing homes that is cost-based reimbursement based

2007, based upon CMS data reveals the following:

upon the 65th percentile of all nursing homes costs If an

individual patient in a nursing home had few medical

needs, the State would still pay its per patient costs of

	  

$50,000. Yet, in some instances, this limit can increase to

	  

2002	  

2007	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

	  

Aged/	  Disabled	  

$6,102,958	  

$16,051,823	  

	  	  

	  	  

	  	  

	  

	  

	  

	  	  

	  

	  

	  

Developmentally	  Disabled	  

$261,603,425	  

$588,568,195	  

	  	  

	  	  

	  	  

	  

	  

	  

	  	  

	  

	  

	  

Nursing	  Homes	  

$936,533,890	  

$1,182,654,826	  

	  	  

	  	  

	  	  

	  

	  

	  

Plaintiffs’ Exhibit No. 25. In a report issued in

December, 2003, John Morgan, the State Treasurer issued 12

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
a Report on “Serving the Aged and Disabled: Progress and Issues” and found among other things, that “[t]he state has not served any clients through the 1915(c) home and community-based services program, even though the Centers for Medicaid and Medicare (CMS) approved Tennessee’s application in May 2002” (Plaintiffs’ Exhibit No. 33, at p. I).
As to sources of funds cited by the Plaintiffs to cover these cuts, Gordon explained that the cited TennCare reserve is a non-recurring fund and cannot be a source for recurring expenses. As to the $598,709,60 in the TennCare reserve, the Tennessee legislature has already earmarked $67.1 million for expenses for hospital access, mental health infrastructure, and mental retardation services. TennCare currently has contingent obligations and liabilities of $539,400,000. The State’s Rainy Day Fund is not a viable option as Tennessee has already depleted other available reserves and must be available to meet the State’s existing budget.
As to the distribution of TennCare funds to providers, TennCare contracts with MCOs that are paid agreed person rates multiplied by the number of persons on the MCO’s rolls that was the method for Middle Tennessee in April 2007, for West Tennessee in November 2008, and will be in East Tennessee for January 2009. Gordon describes this method as providing predictability in the budgeting process. Applicable federal regulations require States to pay “actuarially sound” rates, 42 C.F.R. § 438.6(c)(1), meaning that the rates must be actuarially certified as appropriate for the populations and services under the contract. If actual expenses differ from projections, retroactive adjustments are paid to the MCOs. For the period of April 2007 to March 2008, TennCare paid $93 million ($33.8 million State) in retroactive payments Defendant assert that the total cost of providing health care to the 22 Plaintiffs here was $4,129,300 in FY2008. Of this amount, $3,930,100 was for HH and PDN, while only $41,200 was expended for HCBS services provided through the State’s HCBS waiver program and $20,600 for long-term care.
According to Plaintiffs, the weighted average cost for care in a Level 1 nursing home is $50,780 per patient per year, and the weighted average cost for care in a Level 2 nursing home is only $55,250 per patient per year. The savings from implementing the HH and PDN limits are being used to fund other Medicaid programs.
Dr. Wendy Long-Program Issues
*19 Dr. Wendy Long, TennCare’s Chief Medical Officer, explained that in 2004, the Tennessee General Assembly redefined medical necessity under the TennCare program

that conflicted with the Consent Decree in Newberry v. Goetz, Civil Action No. 3:98cv1127, Docket Entry No. 334, Order, but the Court modified the decree to conform the two documents. (Plaintiffs’ Exhibit No. 59). In 2006, TennCare enacted rules that provide for coverage of a particular benefit only if the service is “medically necessary” Rule 1200-13-16-05(1). To be “medically necessary,” a medical item or service must satisfy each of the following criteria:
1. It must be recommended by a licensed physician who is treating the enrollee or other licensed healthcare provider practicing within the scope of his or her license who is treating the enrollee;
2. It must be required to diagnose or treat an enrollee’s medical condition;
3. It must be safe and effective;
4. It must not be experimental or investigational; and
5. It must be the least costly alternative course of diagnosis or treatment that is adequate for the enrollee’s medical condition.”
Id.
Dr. Long asserts that the TennCare medical necessity rule has been ineffective in reigning in the overutilization of HH/PDN services, but those reasons lack any empirical study that the approved medical care was not justified. As discussed below, the fifth component of this regulation, the adequate medical care element, was abandoned According to Dr. Long, under the revised version of this regulation, 1,000 adult enrollees were receiving amounts of HH/PDN that did not appear on the surface to be the least costly alternative, and only 90 cases made it through the entire fifth prong process through late October 2008. Dr. Long conceded that the defendants did not conduct any studies for its standardized cap on the amount of actual time people might need for home medical care services.
With the new cuts, to control costs, Dr. Long instructed the MCOs not to apply the fifth prong of the medical necessity definition to requests for HH and PDN Dr. Long wrote a letter to physicians and advised them as follows:
It is critical that you work with your patients who are receiving amounts of care in excess of the limits to determine the best course of action which may include:
1. A new order for an amount of home health that is covered by TennCare
2. A continued order for the same amount of home health, with the understanding that the patient will be financially liable for amounts of care exceeding the
13

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
limits.
3. An order for nursing home care, if you and the patient/patient’s family believe this is needed.
(Docket Entry No. 40, Long Declaration, attachment thereto, Exhibit A). Dr. Long admitted that her letter asked the doctors to issue a new order for the amount of benefits covered by TennCare. Dr. Long’s letter did not refer to whether the order would meet the patient’s needs and reflects that under the new cuts, TennCare’s services for the disabled are not based upon medical standards, but financial standards.
*20 As to the caps, Dr. Long asserts that in TennCare’s experience, with the revised cuts, “the vast majority of [enrollees] will unlikely to require nursing home care” and will retain “wrap around” support from family members and/or other non-paid caregivers (Docket Entry No. 40, Long Affidavit at p. 13). Dr. Long has not assessed the actual availability of family assistance for all affected enrollees, but of the 1,000 enrollees reviewed, 581 enrollees remained at home with the reduced care level and family assistance Id at p.13. Yet, there is not any proof to determine if Dr. Long’s survey is statistically reliable nor that the evaluation of this reduced level of care met the enrollee’s needs or how the cuts affected the enrollee’s health. Dr. Long’s observations on family support are contradicted by the Plaintiffs’ proof on the absence of family support for their needs, if these cuts are implemented.
According to Dr. Long, “[f]or those few enrollees who do require nursing home care, the facilities available in Tennessee will be able to safely provide for their health needs.” Id. at pp. 18-19 Tennessee has two levels of nursing home care, Level 1 care primarily provide home health aides rather than a nurse. Level 1 nursing homes also provide “administration of oral medications, ophthalmics, otics, inhalers, subcutaneous injections, topicals, and suppositories, oxygen administration, nebulizer treatments, routine catheter, bowel and ostomy care and routine nursing observation and assessment.” Id. at p. 19. Based on her review of some of Plaintiffs’ records, Dr Long opines that 10 Plaintiffs will receive either nursing care or a combination of HH aide and nursing care require nursing services that are routinely provided in Level 1 nursing facilities.” Id.
Level 2 nursing home care provides skilled nursing care, including “gastostomy tube feeding, sterile dressings for Stage 3 or 4 pressure sores, total parenteral nutrition, management of unstable blood sugar with sliding scale insulin, intravenous fluid administration, peritoneal dialysis, nasopharyngeal and tracheostomy suctioning (when suctioning is required multiple times each shift) and ventilator services.” Id at p. 20. Three Plaintiffs appear to qualify for Level 2 care with two Plaintiffs

likely requiring care in a specialized respiratory unit of a nursing home and will be eligible to receive private duty nursing as a cost effective alternative to nursing home care.
Dr. Long states that a state agency investigates complaints about nursing facilities and that agency has not received any complaints regarding any of Plaintiffs’ allegations. Plaintiffs submitted a national study that included among other data, the percentages of deficiencies in Tennessee nursing homes in 2007 Of particular note, 23.5% of Tennessee nursing home had deficiencies in “Incontinence/Urinary Care” and 18.4% had deficiencies in “Infection Control”. (Plaintiffs’ Exhibit No. 23 at p. 84)5
*21 As to the Plaintiffs’ complaints about nursing homes, Dr. Long conducted a paper review of their medical records One Plaintiff complained of developing ulcers, but Dr. Long notes that the ulcers did not occur at a nursing home, but at a rehabilitation hospital. Another two Plaintiffs cited fractured hips, but those also occurred while those Plaintiff were under private duty nursing care. Dr. Long cited another Plaintiff who was hospitalized, but her doctor recommended a nursing home upon discharge and a consulting physician recommended against home confinement Dr Long also noted some periods of time when the patient was asleep while the CNA was present, but there is not any extensive review to determine if the cited instances are representative of the patients’ total experiences.
Rhonda Smith is a Staff Education/Authorization Nurse with Quality Private Duty Care, that provides home health services to both private pay and TennCare patients in Jamestown and Fentress County, Tennessee. (Docket Entry No. 52 at ¶ ¶ 1-2). According to Smith, “Dr. Long misstates the process by which Quality Private Duty Care was compelled to obtain new doctors’ orders for our home health patients”. Id. According to Smith,
We were instructed by Amerigroup to work with our TennCare home health patients to obtain doctors orders that were within the new TennCare limits.
For many of our patients, this meant Quality Private Duty Care asking the doctor to change his order from 24/7 home health care to 35 hours per week at home health care.
It has never been our policy to tell doctors to change their orders based upon an insurance coverage policy. We serve private pay patients whose orders exceed that which their health insurance plan actually covers. In those cases, we do not ask doctors to change orders to coincide with the coverage limits.
We would have provided our TennCare patients at least
14

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
the amount of care covered by TennCare under the new limits (for example 35 hours per week), even if the doctor’s order was for more than that amount, as long as we had authorization from the MCO.
Id. at ¶¶ 4-8. Tamara Watson, the Director of Cumberland River Homecare in Celina, Clay County, Tennessee, a provider of home health services to both private pay and TennCare patients, corroborates Smith’s assertion that Dr. Long “misstates the process .... to obtain new doctors’ orders for home health patients.” (Docket Entry No. 53, Watson Declaration at ¶¶ 1-2).
Tennessee’s Long Term Community Care Act
Effective July 9, 2008, the General Assembly of Tennessee enacted the “Long-Term Care Community Choices Act of 2008” and made the following findings:
WHEREAS, in Tennessee, the current long-term care system for persons who are elderly and/or adults with physical disabilities is fragmented, with access to the various types of long-term care services scattered across different points of entry with no coordination between services, making it difficult for people who need care and their families to understand their options, make informed decisions, and access services in a timely manner; and
*22 WHEREAS, people who need long-term care and their families have little opportunity to exercise any choice of decision-making with respect to the types of long-term care services they need and who will provide them; and
WHEREAS, the current long-term care system is heavily dependent on the most costly services with 98 percent of long-term care funding spent on institutional care and limited utilization of lower cost home and community-based options even though such options would better meet the needs and preferences of people who need care and their families....
Tenn. Public Acts, Chapter No. 1190 at p. 1.
Of particular significance here, this Act authorizes the Plaintiffs to receive TennCare funding to effect their own home health care plan, including the hiring of a family member or friend at their residence or in a community setting.
(c) Notwithstanding any provision of law or rule to the contrary, a competent adult with a functional disability living in his or her own home or a caregiver acting on behalf of a minor child or incompetent adult living in his or her own home may choose to direct and

supervise a paid personal aide in the performance of a health care task.
(d) For purposes of this section, a competent adult is a person age 18 or older who has the capability and capacity to evaluate knowledgeably the options available and the risks attendant upon each and to make an informed decision, acting in accordance with his or her own preferences and values. A person is presumed competent unless a determination to the contrary is made.
(e) For purposes of this section, a caregiver is a person who is (1) directly and personally involved in providing care for a minor child or incompetent adult; and (2) is the parent, foster parent, family member, friend or legal guardian of such minor child or incompetent adult.
(f) For purposes of this section, a person’s home is the dwelling in which the person resides, whether the person owns, leases, or rents such residence, or whether the person owns, leases, or rents such residence, or whether the person resides in a dwelling owned, leased, or rented by someone else. A person’s home may include specified community-based residential alternatives to nursing facility care as promulgated in rules and regulations by the commissioner, but shall not include a nursing facility or assisted-care living facility setting.
(g) For the purposes of this section, a paid personal aide is any person providing paid home care services, such as personal care of homemaker services, which enable the person receiving care to remain at home whether such paid personal aide is employed by the person receiving care, a caregiver, or by a contracted provider agency that has been authorized to provide home care services to that person.
Id, at Section 15(c) through (g).
Gordon conceded that the State’s recently enacted Long-Term Care Community Choices Act of 2008, allowed qualified persons to elect to remain at home for health care services and to promote independence, choice, dignity, and quality of life based upon their decisions, not those of the State. The Governor’s press release on that Act, Plaintiffs’ Exhibit Number 65, describes consumers’ choice as a option under the Act, including nursing homes. Once operational, the Act authorizes grants to a qualified individual for the amount of that consumer’s elected service. CMS must approve these initiatives, but the record is unclear on the status of such approval. In any event, TennCare will continue to contract with managed care organizations to coordinate a citizen’s care.
*23 As an example, Berry’s MCO determined that Berry needed 24/7 care. Yet, in Berry’s view, he could live with
15

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
only 16 hours a day. Another Plaintiff testified that the MCO provided her a private duty nurse when a CNA would have been sufficient. Under this new Act, Berry would determine that he needed only eight hours in the morning and eight hours at night and hire his own worker for those hours. Berry could also request his MCO to change his hours to fit his schedule.
B. Conclusions of Law
In enacting the ADA, Congress made certain findings: “(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; (3) discrimination against individuals with disabilities persists in such critical areas as institutionalization ... (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, ... failure to make modifications to existing facilities and practices, ... [and] segregation ...” 42 U.S.C. §§ 12101(a)(2), (3), (5). In the ADA, Congress declared that “segregation” of persons with disabilities is a “for[m] of discrimination,” and that such discrimination persists in the area of “institutionalization.” 42 U.S.C. §§ 12101(a)(2), (3), (5).
Title II protects “qualified individual[s] with a disability” who are “subjected to discrimination.” 42 U.S.C. § 12132. “Qualified individuals,” under the ADA are persons with disabilities who, “with or without reasonable modifications to rules, policies, or practices, ... mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The ADA applies to “any State or local government,” and “any department, agency, [or] special purpose district,” 42 U.S.C. §§ 12131(1)(A), (B), and prohibits denial of “the benefits of the services, programs, or activities of a public entity, or [to] be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
The ADA designated the Attorney General to promulgate regulations to enforce the ADA Among those regulations is the “integration mandate regulation,” that provides: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d) (1998). The preamble to these regulations defines “the most integrated setting appropriate to the needs of qualified individuals with disabilities” as, “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 CFR § 35, App. A, p. 450 (1998). Moreover, the ADA regulations provide that:

“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”
*24 28 CFR § 35.130(b)(7) (1998).
1. Standing
As a threshold issue, the Defendants contend that the Plaintiffs lack standing to enforce these regulations under the ADA. The Defendants rely upon the rationale of Alexander v. Sandoval, 532 U.S. 286 (2001), which involved Title VI of the Civil Rights Act and held that “a failure to comply with regulations promulgated under [a statute] that is not also a failure to comply with [the statute itself] is not actionable.”
The Supreme Court has held that a private right of action exists under Title 11 of the ADA, and Section 504 is enforceable. Barnes v. Gomn, 536 U.S. 181, 185, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (citing Olmstead, 527 U.S. at 600 and 42 U.S.C. § 12010(a)(2), (a)(5)). In Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Supreme Court expressly recognized the right of a private plaintiff to assert an ADA claim for injunctive relief against a state official in federal court Other Circuits and district courts disagree about whether Sandoval applies to the ADA mandate regulations. Penn. Prot. & Advocacy Inc. v. Penn. Dep’t of Public Welfare, 402 F.3d 374, 379 (3d Cir.2005) (enforcing ADA and RHA integration mandate regulations); Radszewski v. Maram, 383 F.3d 599, 615 (7th Cir.2004). In Frederick L. v. Dep’t of Public Welfare, 157 F.Supp.2d 509, 536 (E.D.Pa.2001), that District Court held:
The ADA, like section 504 and unlike Title VI, prohibits disparate-impact discrimination. The Defendants would be correct if the integration mandate required action or inaction beyond what is required by the statute itself. That is not the case here. The ADA regulations at issue here are merely rules for the implementation of the statutory directives; they do not prohibit otherwise permissible
16

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
conduct.
Id. at 529 (emphasis added). Congress designated the Attorney General to enforce the ADA and the Attorney General advocates for an implied right of action under the ADA. See Docket Entry No. 27, Exhibit A thereto, Brief of the United States in a Florida action.
The Court concludes that under these precedents on the ADA and RHA, the Defendants’ contention that Plaintiffs lack standing under the ADA and RHA lacks merit.

2. Plaintiffs’ Institutionalization Claims

In Olmstead, the Supreme Court addressed “whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes. Such action is in order when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” 527 U.S. at 587. The Supreme Court also held, “Unjustified isolation is properly regarded as discrimination based on disability. But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States’ obligation to administer services with an even hand.” Id. at 597. Yet, the “States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. at 603.

*25 In deciding this issue, the Supreme Court described the adverse effects that occur with a State’s institutional placement of persons with qualifying disabilities:

First, institutional placement of

persons who can handle and benefit

from community settings

perpetuates

unwarranted

assumptions that persons so

isolated are incapable or unworthy

of participating in community

life.... Second, confinement in an

institution severely diminishes the

everyday life activities of

individuals, including family

relations, social contacts, work

options, economic independence,

educational advancement, and

cultural enrichment.... In order to

receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.
Id. at 600-01.
The Court concludes that Plaintiffs’ proof establishes that as persons with disabilities, the Defendants’ new benefits cuts for home health services will cause their institutionalization into nursing homes. Here, the Defendants’ cuts will eliminate services that enable Plaintiffs to remain in their community placement. The Defendants previously determined that Plaintiffs’ community placement was medically necessary and was the least costly method to deliver such services. Plaintiffs’ proof is that the Defendants are now forcing Plaintiffs into nursing homes without any mechanisms to determine whether their medical needs can be met in the community or the nursing home. Plaintiffs’ physicians and other health care providers describe the Defendants’ cuts as forcing these Plaintiffs into nursing homes that would be detrimental to their care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death. This categorical approach is to reduce the demand side of the community services market without any efforts to adjust the supply side of the home services market (where the MCOs are generating administrative costs that represent half of the Plaintiffs’ health care costs), and without individual evaluations of Plaintiffs’ actual medical needs.
For these Plaintiffs, the isolating and deleterious effects described by the Supreme Court in Olmstead are present: loss of individual lives, community activities and separation from their communities and loved ones. Plaintiffs’ treating physicians attest to these adverse effects if Plaintiffs’ current home care services are so drastically cut. Moreover, as the Supreme Court stated: “[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Olmstead, 527 U.S. at 600. Reduced benefits are not based on a standard of adequate medical care, but solely on fiscal considerations. Dr. Long’s general references that nursing homes can provide adequate care based upon paper review of Plaintiffs’ medical record and the limited survey of enrollees is insufficient. Under the ADA, “[t]he opinion of a responsible treating physician in determining the appropriate conditions for treatment ought to be given
17

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)

the greatest of deference.” Id. at 610 (Kennedy, J., concurring).
*26 With Defendants’ current cuts, these Plaintiffs would also be deprived of their individual choices that the 2008 Long-Term Community Care Act grants them. For example, Berry and Adams need 16 to 24 hours of services, and those Plaintiffs could each receive up to $62,275 in State funds that represent the cost of nursing home cost for a year. Both of these Plaintiffs cite the need for only a CNA whose pay ranges from $9 to $11 per hour. At these rates, these Plaintiffs could hire a CNA to provide home health care for 6,889 hours that for 20 hours per day would cover 344 days.
Circuit and district courts have held that the fact that increased State expenditures may be necessary to provide home medical services and accommodations required by the ADA and RHA does not automatically bar relief under these Acts. Radaszewski, 383 F.3d at 613-15; Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487, 500 (3rd Cir.2004); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1182-83 (10th Cir.2003); Iownsend v. Quasim, 328 F.3d 511, 516-20 (9th Cir.2003); and Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017, 1034 (D.Haw.1999). As the Third Circuit stated, “if the District Court opinion is read as focusing only on immediate costs [of community medical care], as Appellants contend, it would be inconsistent with Olmstead and the governing statutes.” Frederick L., 364 F.3d at 495. The Third Circuit also observed, “The [Fisher ] Court has reviewed the legislative history of the ADA and concluded that Congress contemplated that states sometimes would be required to make short-term financial outlays, even in the face of mounting fiscal problems.” Id. (citing Fisher, 335 F.3d at 1183). The Third Circuit has also held that:

[a] state cannot meet an allegation

of noncompliance simply by

replying that compliance would be

too costly or would otherwise

fundamentally

alter

its

noncomplying programs. Any

program that runs afoul of the

integration mandate would be

fundamentally altered if brought

into compliance. Read this broadly,

the fundamental alteration defense

would swallow the integration

mandate whole.

Penn. Prot. & Advocacy, Inc. v. Penn. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir.2005)

The Court concludes that these decisions reflect that the controlling issue requires an analysis of the effect of the

relief sought by the Plaintiffs on TennCare’s other programs for disabled persons and whether such effects would fundamentally alter the TennCare program for disabled persons.
Fundamental-Alteration Defense
Defendants assert the fundamental-alteration defense that the Plaintiffs’ relief, if granted, would fundamentally alter the TennCare program, and therefore, with the State’s comprehensive plan for community health services, the Court must defer to the Defendants’ decision on these benefits cuts.
The fundamental alteration defense arises under the ADA regulation, 28 C.F.R. § 35.130(b)(7). In Olmstead, the Supreme Court stated:
*27 Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.
527 U.S. at 604.
Here, there are only twenty-two (22) Plaintiffs and the funds for their home care services will be only a fraction of the $50 million that Defendants identify as necessary for the changes Tennessee proposes. (Docket Entry No. 27, Defendants’ Memorandum at p. 19). In measuring the impact of the Plaintiffs’ relief for the defense, the Court must compare the impact of the relief sought by the named Plaintiffs to the overall cost of the State’s programs similarly situated enrollees: “If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State’s entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail. Id. at 603. Thus, where:
the District Court compared the cost of caring for the plaintiffs in a community-based setting with the cost of caring for them in an institution ... a comparison so simple overlooks costs the State cannot avoid; most notably, a “State ... may experience increased overall expenses by funding community placements without
18

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
being able to take advantage of the savings associated with the closure of institutions.”
Id. at 604.
Thus, in considering Plaintiffs’ cost arguments, this Court must consider the financial impact of providing PDN and HH benefits not only to Plaintiffs, but also to the substantially similar enrollees receiving home health care prior to the implementation of the Defendants’ cuts. In Frederick L., the Third Circuit explained that “Olmstead lists several factors that are relevant to the fundamental-alteration defense, including but not limited to the [1] State’s ability to continue meeting the needs of other institutionalized mental health patients for whom community placement is not appropriate, [2] whether the State has a waiting list for community placements, and [3] whether the state has developed a comprehensive plan to move eligible patients into community care settings.” 364 F.3d at 495 (citing Olmstead, 527 U.S. at 605-06).
In Radaszewski, where the plaintiff was a minor who required 24/7 coverage at a cost of $15,000 to $20,000 month for home medical care, the Seventh Circuit defined the appropriate cost comparison:
A court must therefore take care to consider the cost of a plaintiff’s care not in isolation, but in the context of the care it must provide to all individuals with disabilities comparable to those of the plaintiff ... with similar needs ... If the State would have to pay a private facility to care for Eric, for example, and the cost of that placement equaled or exceeded the cost of caring for him at home, then it would be difficult to see how requiring the State to pay for at-home care would amount to an unreasonable, fundamental alteration of its programs and services.
*28 383 F.3d at 614 (emphasis added).
In Fisher, the Tenth Circuit rejected the state’s fundamental-alteration defense, stating that Oklahoma’s fiscal problems did not establish a per se fundamental-alteration defense because “[i]f every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.” 335 F.3d at 1183. The Third Circuit held that “states cannot sustain a fundamental-alteration defense based solely upon the conclusory invocation of vaguely-defined fiscal constraints.” Frederick L., 364 F.3d at 496 (citing Makin, 114 F.Supp.2d at 1034). In Makin, Hawaii

invoked the fundamental-alteration defense, contending that increasing community placements would violate state and federal funding limits and change its existing programs with “unlimited” state funding for community mental health services. 114 F.Supp.2d at 1034. The district court rejected that defense, reasoning that a potential funding problem, without more, would not establish the fundamental-alteration defense. Id.

As applied here on the first Olmstead factor, the Defendants have not shown that the expenditures of home health services threaten similarly disabled persons in nursing homes. The enrollees in nursing homes are similar because to qualify for home care services under this waiver, the enrollee must be eligible for a nursing home. As found earlier, TennCare overwhelmingly relies on nursing homes. In 2007, TennCare spent about $1.2 billion dollars on nursing homes. Defendants concede that some enrollees will have to go into nursing homes, but agree their benefit cap limit “should not significantly increase the use of nursing home care for persons who have been receiving PDN or HH benefits.” (Docket Entry No. 27, Defendants’ Memorandum, p. at 24).

As to the second factor, the new state law may create a waiting list for community health services for 2000 persons, but that Act has not been implemented to establish the extent of consumer demand for home health care under that statute and at rates set by the Defendants. The Plaintiffs’ proof is that with the structure of the TennCare program, such services cannot be provided at those rates.

As to the third factor, “whether the State has developed a comprehensive plan to move eligible patients into community care settings,” Frederick L., 364 F.3d at 495 (citing Olmstead, 527 U.S. at 605-06), the Olmstead plurality provided a specific example of the limited reach of the integration mandate:

If, for example, the State were to

demonstrate that it had a

comprehensive,

effectively

working plan for placing qualified

persons with .... disabilities in less

restrictive settings, and a waiting

list that moved at a reasonable pace

not controlled by the State’s

endeavors to keep its institutions

fully

populated,

the

reasonable-modifications standard

would be met.

*29 Id. at 498 (quoting 527 U.S. at 584) (emphasis added).

The Defendants’ “comprehensive plan” is the State’s

19

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)
Long-Term Care Community Choices Act of 2008. Yet, defense counsel conceded that this Act is not operational and lacks any projected date for implementation as well as CMS’s approval. For the fundamental-alteration defense, a state must show that the plan “demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which [it] may be held accountable.” Frederick L. v. Dep’t of Public Welfare, 422 F.3d 151, 157 (2005). The measures that the Defendants identify, including the phasing-in HCB waiver slots and effective home and community-based alternatives to institutional care-are all promissory. The new waiver slots would not be phased in until February of 2009. (Docket Entry No. 23, Defendant’s Memorandum, at p. 14). Further, Tenn Code Ann. § 71-5-1404(a) requires that “[t]he commissioner shall develop and implement a statewide fully integrated risk-based long-term care system” and shall rebalance “[t]he long-term care services by expanding access to and utilization of cost-effective home and community-based alternatives to institutional care.” There is not any evidence of a draft of a plan as required by this law. For the same reasons stated on the second factor, it is unclear to the Court this Act can be deemed effective given these circumstances as well as TennCare’s structure and past performance.
Here, the Court concludes that the “Defendants have not demonstrated that they have a comprehensive effectively working plan for placing qualified persons with mental disabilities in less restrictive settings”. Frederick L., 364 F.3d at 500. At this stage of the proceedings, the Court is not persuaded that this new Act will be effectively implemented. Prior to these current cuts, the Defendants did not conduct comprehensive individual assessments to determine whether Plaintiffs will have to go into institutions or whether they can be adequately cared for in the community. Moreover, Defendants cite only “the potential for more efficient and cost-effective care” sometime in the future (Docket Entry No. 23 at p. 27). “[V]ague assurance of future deinstitutionalization” does not establish an acceptable plan. Frederick L., 422 F.3d at 156.
As an example of a comprehensive working plan, in Sanchez v. Johnson, 416 F.3d 1051 (9th Cir.2005), the Ninth Circuit found an effectively working plan where: (1) a 30 year old state law required coverage of services for people with developmental disabilities to prevent or minimize institutionalization; (2) a significant decrease in institutionalized individuals occurred over a decade; (3) the State significantly increased community based spending, home and community based waiver slots over the course of a decade; (4) the State had a system of individualized community placement plans with extensive databases containing disabled citizens in the system. Id. at 1064-66. In Are of Washington v. Braddock, 427 F.3d 615, 621 (9th Cir.2005), the HCB waiver program had

increased more that 600 percent and the State doubled the budget for community-based programs, and had a 20 percent reduction in its institutionalized population. In Frederick L., the Third Circuit rejected Pennsylvania’s deinstitutionalization plan for lack of time frames for patients’ discharge from institutions, the lack of criteria of eligibility for discharge as well as the absence of defined arrangements with local authorities for housing, transportation, care and education to effectuate the disabled person’s integration into the community. 422 F.3d at 160.
*30 Without a plan for implementation of the LTCCC, the Court concludes that the Defendants lack a cognizable comprehensive plan and in effect, the Defendants’ lack of implementation has had the reverse effect to institutionalize these Plaintiffs and deny them the individual choice that the new state law provides. In this context, the reduction of services to add enrollees for inadequate services is not an effective plan.
The Defendants cite the Sixth Circuit precedent that the Court cannot grant relief for continued benefits in a similar context:
When a State to its credit achieves the status of becoming one of the most generous providers of Medicaid services in the nation, it may occasionally happen that the zero-sum fiscal realities of administering a state budget will prohibit the State from sustaining that level of support. If that should happen, it is not for the federal courts to compel the State to maintain non-mandatory Medicaid programs that it can no longer support.
Rosen v. Goetz., 410 F.3d 919, 933 (6th Cir.2005) (emphasis added).
As to the latter, in Rosen, this Court did not require spending the State could not afford, but instead limited the State’s spending to the level the State selected. Rosen v. Goetz, 3:98-0627 (Docket Entry No. 748, Order at p. 4). As to the former statement in Rosen, the Plaintiffs’ proof casts serious doubts on the Defendants’ comparison of Tennessee’s waiver benefits to other southeastern states’ benefits. Other states’ waiver plans with similar services were not counted. In addition, as the State Treasurer found in 2003, despite receipt of federal waiver funds in 2002, the Defendants did not provide home health services to the disabled and elderly that year.
20

Crabtree v. Goetz, Not Reported in F.Supp.2d (2008)

Preliminary Injunctive Relief
On the award of preliminary injunctive relief, the court must consider four factors: (1) likelihood of Plaintiffs’ success on the merits; (2) any irreparable harm to the Plaintiffs; (3) any adverse effect on other parties or persons; and (4) the public interest. See Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620, 632 (6th Cir.2000).
For the reasons stated above, the Court concludes that Plaintiffs have demonstrated a strong likelihood of success on the merits of their claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes. This is based upon the proof, including Plaintiffs’ health care providers that such institutionalization will cause Plaintiffs to suffer injury to their mental and physical health, including a shortened life, and even death for some Plaintiffs. That proof demonstrates irreparable injury.

individual choice and control of home health services; and maintain these Plaintiffs’ current home health services until the first two conditions are satisfied. These measures do not harm others as this remedy is consistent with state law. The enrollment of others under the recent state law cannot be done until the plan requirements of the Act are met. The public interest is served by the enforcement of the ADA and the RHA, as found by other courts. See e.g. Fisher, 335 F.3d 1175, 1180; Heather K. v. Mallard, 887 F.Supp. 1249, 1260 (N.D.Iowa 1995).
*31 For the above stated reasons, the Court concludes that the Plaintiffs’ ‘motion for a preliminary injunction should be granted.
An appropriate Order is filed herewith.
Entered this the 18th day of December, 2008.

As to the harm to others, given the limited relief sought by the Plaintiffs, the Defendants would conduct individual assessments for the remaining Plaintiffs; prepare a plan to implement the State’s recent home health Act promoting

Parallel Citations
21 A.D. Cases 1103, 38 NDLR P 102
	  

Footnotes

1

Plaintiffs Murphy and Taylor and the defendants agreed to dismiss those Plaintiffs’ claims (Docket Entry No. 74).

2

Two enrollees filed a discrimination complaint with the DHHS’s Office of Civil Rights that has not been resolved. Because DHHS

has a designated office for such complaints, the Court finds that CSM’s approval of TennCare’s revised rates did consider the

merits of those discrimination claim.

3

Because the federal government “matches” Tennessee State Medicaid expenditures, generally at a ratio of 64 percent federal/36

percent State, expenditures are generally expressed in terms of the total dollar amount with the State expenditure net of the federal

match noted in parentheses.

4

Level 1 nursing care is provided to individuals who primarily require assistance with activities of daily living, while Level 2

nursing care is provided to those with more intensive nursing needs such as ventilator care, enternal tube feeding, total parental

nutrition, peritoneal dialysis, catheter and ostomy care, intravenous fluids administration, and wound care.

5

A recent report is that a CMS study ranked Tennessee’s nursing homes 47th among the States. The Tennessean, December 18, 2008

at p.1.

	  

21

 
 Crabtree v. Goeiz
United States District Court for the Middle District of Tennessee, Nashville Division December 18, 2008, Decided; December 19, 2008, Filed NO. 3:08-0939

Reporter: 2008 U.S. Dist. LEXIS 103092

SARAH CRABTREE, et al., Plaintiffs, v. DAVE GOEIZ, et

al., Defendants.

Opinion by: WILLIAM J. HAYNES, JR.

Prior History: Crabtree v. Goetz, 2008 U.S. Dist. LEXIS Opinion 103097 (M.D. Tenn., Dec. 18, 2008)

Counsel: [*1] For Sarah Crabtree, Velma Ledbetter, Carl Anders, George Dylan Brown, Willowdeen Burrows, Hazel S. Graham, Jessica W. Pipkin, Lena Burgess, Wilma F. Stills, Odell Owens, Ellar Lowman, Carol Smith, Joel DeHaas, Margaret Connelly, Plaintiffs: Jane Perkins, Sarah Somers, LEAD ATTORNEYS, PRO HAC VICE, National Health Law Program, Chapel Hill, NC; Michael G. Abelow, LEAD ATTORNEY, Sherrard & Roe, Nashville, TN; Stephen F. Gold, LEAD ATTORNEY, PRO HAC VICE, Philadelphia, PA.
For Larry Scott Ervin, Megan Allen, Florence Adams, Marvin Ray Berry, Jr., Delores Baker, Lorrinda Mabry, Plaintiffs: Jane Perkins, Sarah Somers, LEAD ATTORNEYS, PRO HAC VICE, National Health Law Program, Chapel Hill, NC; Michael G. Abelow, LEAD ATTORNEY, Sherrard & Roe, Nashville, TN; Stephen F. Gold, LEAD ATTORNEY, PRO HAC VICE, Philadelphia, PA; Kathryn A. Evans, Legal Aid Society of Middle Tennessee, Nashville, TN; Lenny Lee Croce, Tennessee Justice Center, Inc., Nashville, TN.
For David Goetz, Commissioner, Tennessee Department of Finance and Administration, Darin Gordon, Deputy Commissioner and Director, Bureau of TennCare, Defendants: Carolyn E. Reed, Linda A. Ross, LEAD ATTORNEYS, Tennessee Attorney General's Office, [*2] Nashville, TN; Charles J. Cooper, Michael W. Kirk, Nicole J. Moss, LEAD ATTORNEYS, PRO HAC VICE, Cooper & Kirk, Washington, DC.

ORDER
In accordance with the Memorandum filed herewith, the Plaintiffs' motion for a preliminary injunction (Docket Entry No 2) is GRANTED Accordingly, pending further Order of the Court, it is ORDERED that
(1) the Defendants shall refrain from imposing the cuts in Home Health and Private Duty Nurse upon the Plaintiffs until the community-based, patient centered system authorized by the State's Long-Term Care Community Choices Act is implemented and available to Plaintiffs;
(2) the Defendants shall conduct individualized assessments of the Plaintiffs to determine the specific needs of each Plaintiff, including the amount of time required to meet those needs, and the extent to which family or other natural supports are available, and whether the needs could be satisfied in the community at less cost than Defendants are presently paying; and
(3) [*3] the Defendants shall determine whether nursing homes will in fact provide the services each Plaintiff requires.
It is so ORDERED.
Entered this the 18th day of December, 2008.

For John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Intervenor Plaintiffs: Michael G. Abelow, Sherrard & Roe, Nashville, TN.
Judges: WILLIAM J. HAYNES, JR., United States District Judge.

/s/ William J. Haynes, Jr. WILLIAM J. HAYNES, JR. United States District Judge

 
 U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:08−cv−00939

CASE−CLOSED

Crabtree et al v. Goetz et al Assigned to: District Judge William J. Haynes, Jr related Case: 3:10−cv−00178 Cause: 42:12131 Americans with Disabilities Act
Plaintiff

Date Filed: 09/23/2008 Date Terminated: 01/22/2010 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Sarah Crabtree

represented by Jane Perkins National Health Law Program 101 E Weaver Street Suite G−7 Chapel Hill, NC 27510 (919) 968−6308 Email: perkins@healthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans Legal Aid Society of Middle Tennessee 300 Deaderick Street Nashville, TN 37201 (615) 780−7119 Fax: (615) 244−4920 Email: kevans@las.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow Sherrard &Roe 150 Third Avenue South Suite 1100 Nashville, TN 37201 (615) 742−4532 Fax: (615) 742−4539 Email: mabelow@sherrardroe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy Sherrard &Roe 150 Third Avenue South Suite 1100 Nashville, TN 37201 (615) 742−4200 Fax: (615) 742−4539 Email: prambsy@sherrardroe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Sarah Somers National Health Law Program 101 E Weaver Street Suite G−7 Chapel Hill, NC 27510 (919) 968−6308 Fax: (919) 968−8855
As of: 03/08/2011 03:11 PM CST 1 of 31

Email: somers@healthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 Email: stevegoldada@cs.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Velma Ledbetter

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Carl Anders

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/08/2011 03:11 PM CST 2 of 31

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff George Dylan Brown

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Willowdeen Burrows

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 3 of 31

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Hazel S. Graham

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Harold Lee Murphey TERMINATED: 12/19/2008

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael G. Abelow Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 4 of 31

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

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Larry Scott Ervin

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce Tennessee Justice Center, Inc. 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: lcroce@las.org ATTORNEY TO BE NOTICED

Plaintiff Megan Allen
Case: 3:08-cv-939

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
As of: 03/08/2011 03:11 PM CST 5 of 31

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jessica W. Pipkin

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE
As of: 03/08/2011 03:11 PM CST 6 of 31

ATTORNEY TO BE NOTICED

Plaintiff Florence Adams

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lena Burgess

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 7 of 31

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Wilma F. Stills

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Odell Owens

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Phillis H. Rambsy (See above for address) LEAD ATTORNEY
As of: 03/08/2011 03:11 PM CST 8 of 31

ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ellar Lowman

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Marvin Ray Berry, Jr.

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/08/2011 03:11 PM CST 9 of 31

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carol Smith

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Betty Jean Taylor TERMINATED: 12/19/2008

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael G. Abelow Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 10 of 31

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

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Delores Baker

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lorrinda Mabry

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Kathryn A. Evans (See above for address) LEAD ATTORNEY
As of: 03/08/2011 03:11 PM CST 11 of 31

ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joel DeHaas

represented by Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Margaret Connelly Case: 3:08-cv-939

represented by As of: 03/08/2011 03:11 PM CST

12 of 31

Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Somers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen F. Gold (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
David Goetz Commissioner, Tennessee Department of Finance and Administration

represented by Carolyn E. Reed Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 532−9632 Fax: (615) 532−1120 Email: carolyn.reed@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 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Linda A. Ross Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: Linda.Ross@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/08/2011 03:11 PM CST 13 of 31

Defendant
Darin Gordon Deputy Commissioner and Director, Bureau of TennCare

Michael W. Kirk Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Email: mkirk@cooperkirk.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole J. Moss Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: nmoss@cooperkirk.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Carolyn E. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Linda A. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. Kirk (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole J. Moss (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff John Chadwick
Case: 3:08-cv-939

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/08/2011 03:11 PM CST 14 of 31

Intervenor Plaintiff Michael Chisholm

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Pamela Goodin

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff David Scott

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Anna Swindle

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Mildred A. Davis

represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lenny Lee Croce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-939

Michael G. Abelow (See above for address)
As of: 03/08/2011 03:11 PM CST 15 of 31

Intervenor Plaintiff Shawn Fairburn

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn A. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lenny Lee Croce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael G. Abelow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillis H. Rambsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/23/2008
09/23/2008
09/23/2008
09/23/2008 09/24/2008

# Docket Text
1 COMPLAINT against David Goetz, Darin Gordon, filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (filing fee paid $350.00) Summons issued. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(rm) (Entered: 09/24/2008)
2 MOTION for a Preliminary Injunction by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(rm) (Entered: 09/24/2008)
3 MEMORANDUM in Support of 2 MOTION for Preliminary Injunction filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachment: # 1 Exhibit A)(rm) (Entered: 09/24/2008)
4 *VACATED per Order 12 * NOTICE of Initial Case Management Conference set for Monday, 11/24/2008 at 9:30 AM in Chambers 825 before District Judge Aleta A. Trauger. (rm) Modified text on 10/1/2008 (tmw). (Entered: 09/24/2008)
Bar status for attys Michael Geoffrey Abelow of TN, Stepehn F. Gold of PA and Sarah Jane Somers of NC verified as active this date. Unable to verify status of atty Jane Perkins of NC. (rm) (Entered: 09/24/2008)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 16 of 31

09/25/2008

5 ORDER recusing District Judge Aleta A. Trauger. Case reassigned to Chief Judge Todd J. Campbell for all further proceedings. Signed by District Judge Aleta A. Trauger on 9/25/08. (tmw) (Entered: 09/25/2008)

09/25/2008

6 ORDER referring case to Magistrate Judge Juliet E. Griffin for customized case management. Discovery is not stayed absent order of the District Judge. No party shall file more than one motion to dismiss or more than one motion for summary judgment except upon order of the District Judge. This case shall be set for trial upon completion of the initial case management conference by order of the District Judge. Signed by Chief Judge Todd J. Campbell on 9/25/08. (tmw) (Entered: 09/25/2008)

09/26/2008

7 NOTICE of Appearance by Linda A. Ross on behalf of David Goetz, Darin Gordon (Ross, Linda) (Entered: 09/26/2008)

09/26/2008

8 NOTICE of Appearance by Carolyn E. Reed on behalf of all defendants (Reed, Carolyn) (Entered: 09/26/2008)

09/29/2008

9 MOTION for Hearing re 2 MOTION for Preliminary Injunction by Florence Adams. (Abelow, Michael) (Entered: 09/29/2008)

09/29/2008

10 MOTION for attorney Stephen F. Gold (PHV FEE PAID) to Appear Pro Hac Vice by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing)(Abelow, Michael) Modified text on 10/22/2008 (tmw). (Entered: 09/29/2008)

09/30/2008

11 ORDER: Pltfs' Consent MOTION to Set Preliminary Injunction Hearing 9 , is GRANTED as follows: Defts shall file a Response to Pltfs' Motion for Preliminary Injunction by 10/10/08. Pltfs shall file any Reply by 10/17/08. A hearing to consider the Pltfs' Motion for Preliminary Injunction is set for 11/5/08, at 9:00 a.m. in Courtroom A826 before Chief Judge Todd J. Campbell. The Magistrate Judge is directed to schedule the Initial Case Management Conference for a time prior to 10/31/08. Signed by Chief Judge Todd J. Campbell on 9/30/08. (tmw) (Entered: 09/30/2008)

10/01/2008

12 ORDER: Initial Case Management Conference set for 10/15/2008, at 1:00 PM, in Courtroom 764 before Magistrate Judge Juliet E. Griffin. The Notice 4 scheduling the ICMC before the Honorable Aleta A. Trauger on 11/24/08, is hereby VACATED. As per Order 6 , the stay of discovery is LIFTED. Prior to the ICMC, parties shall exchange initial disclosures, and shall prepare a proposed, joint initial case mgmt order. Counsel shall e−file the proposed order no later than 10/14/08. Signed by Magistrate Judge Juliet E. Griffin on 10/1/08. (tmw) (Entered: 10/01/2008)

10/02/2008

13 MOTION for attorney Michael W. Kirk (PHV FEE PAID) to Appear Pro Hac Vice by David Goetz, Darin Gordon. (Attachments: # 1 Copy of Certificate of Good Standing)(Ross, Linda) Modified text on 10/22/2008 (tmw). (Entered: 10/02/2008)

10/02/2008

14 MOTION for attorney Nicole J. Moss (PHV FEE PAID) to Appear Pro Hac Vice by David Goetz, Darin Gordon. (Attachments: # 1 Copy of Certificate of Good Standing)(Ross, Linda) Modified text on 10/22/2008 (tmw). (Entered: 10/02/2008)

10/02/2008

15 MOTION for attorney Charles J. Cooper (PHV FEE PAID) to Appear Pro Hac Vice by David Goetz, Darin Gordon. (Attachments: # 1 Copy of Certificate of Good Standing)(Ross, Linda) Modified text on 10/22/2008 (tmw). (Entered: 10/02/2008)

10/02/2008

16 MOTION for attorney Jane Perkins (PHV FEE PAID) to Appear Pro Hac Vice by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) Modified text on 10/22/2008 (tmw). (Entered: 10/02/2008)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 17 of 31

10/02/2008

17 AFFIDAVIT re 16 MOTION for attorney Jane Perkins to Appear Pro Hac Vice by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 10/02/2008)

10/02/2008

18 MOTION for attorney Sarah Somers (PHV FEE PAID) to Appear Pro Hac Vice by Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Jessica W. Pipkin, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Carol Smith, Betty Jean Taylor, Lorrinda Mabry. (Abelow, Michael) Modified text on 10/22/2008 (tmw). (Entered: 10/02/2008)

10/02/2008

19 DECLARATION of Sarah Somers filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry re: 18 MOTION for attorney Sarah Somers to Appear Pro Hac Vice. (Abelow, Michael) (Entered: 10/02/2008)

10/10/2008

20 SUMMONS returned executed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. Darin Gordon served on 9/24/2008. (Abelow, Michael) (Entered: 10/10/2008)

10/10/2008

21 SUMMONS returned executed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. David Goetz served on 9/24/2008. (Abelow, Michael) (Entered: 10/10/2008)

10/10/2008

22 MOTION for Leave to To Exceed Page Limit by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 10/10/2008)

10/10/2008

23 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit Ohio Republican Party v. Brunner)(Cooper, Charles) (Entered: 10/10/2008)

10/10/2008

24 ORDER granting 22 Motion for Leave to Exceed Page Limit. Signed by Chief Judge Todd J. Campbell on 10/10/08. (tmw) (Entered: 10/14/2008)

10/14/2008

25 PROPOSED CASE MANAGEMENT ORDER filed by all parties. (Abelow, Michael) (Entered: 10/14/2008)

10/15/2008

Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Initial Case Management Conference held on 10/15/2008; ORDER to enter. (Tape #G2008−114.) (jwc) (Entered: 10/17/2008)

10/16/2008

26 ORDER OF RECUSAL. Chief Judge Todd J. Campbell recused. Case reassigned to Senior Judge Robert Echols for all further proceedings. Signed by Chief Judge Todd J. Campbell on 10/16/08. (tmw) (Entered: 10/16/2008)

10/16/2008

28 RECEIPT #34675004540 in the amount of $225, PHV fees for Attys Kirk, Moss &Cooper, posted by David Goetz &Darin Gordon re 13 , 14 &15 Motions to Appear Pro Hac Vice. (tmw) (Entered: 10/20/2008)

10/17/2008

27 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry,

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 18 of 31

10/20/2008 10/20/2008 10/20/2008 10/21/2008 10/21/2008 10/23/2008 10/24/2008 10/28/2008 10/29/2008 10/29/2008 10/29/2008
10/30/2008
10/31/2008
10/31/2008

Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Abelow, Michael) (Entered: 10/17/2008)
Note to filer re DE 27 : Each exhibit should be filed as a separate attachment to the main document, and the mandatory description field should be used to accurately describe the contents of your attachment (labeling as Exhibit A, B, C or Exhibit 1, 2, 3 is not sufficient). (tmw) (Entered: 10/20/2008)
Bar status for Attys Michael Kirk, Nicole J. Moss and Charles Cooper of Washington, DC, verified as active this date. (tmw) (Entered: 10/20/2008)
29 ORDER granting 13 , 14 &15 Motions for Attys Michael W. Kirk, Nicole J. Moss &Charles J. Cooper to Appear Pro Hac Vice. Signed by Magistrate Judge Juliet E. Griffin on 10/20/08. (tmw) (Entered: 10/20/2008)
30 ORDER reassigning case. Senior Judge Robert Echols no longer assigned to case. Case reassigned to Senior Judge John T. Nixon for all further proceedings. Signed by Senior Judge Robert Echols on 10/21/08. (tmw) (Entered: 10/21/2008)
31 RECEIPT #34675004619 in the amount of $225, PHV fees for Attys Gold, Perkins and Somers, posted by pltfs re 10 , 16 &18 Motions to Appear Pro Hac Vice. (tmw) (Entered: 10/22/2008)
32 ORDER granting 10 , 16 &18 Motions to Appear Pro Hac Vice re Attys Stephen F. Gold, Jane Perkins &Sarah Somers. Signed by Magistrate Judge Juliet E. Griffin on 10/23/08. (tmw) (Entered: 10/23/2008)
33 ORDER reassigning case to District Judge William J. Haynes, Jr., for all further proceedings. Senior Judge John T. Nixon no longer assigned to case. Signed by Senior Judge John T. Nixon on 10/24/08. (tmw) (Entered: 10/27/2008)
34 Joint MOTION to Amend/Correct 11 Order, Set Hearings, Set Hearing on Preliminary Injunction Motion and Amend the Pre−Hearing Schedule. (Attachments: # 1 Exhibit Proposed Agreed Pre−Hearing Order)(Abelow, Michael) Modified text on 11/3/2008 (tmw). (Entered: 10/28/2008)
35 NOTICE of Appearance by Lenny Lee Croce on behalf of Megan Allen (Croce, Lenny) (Entered: 10/29/2008)
36 NOTICE of Appearance by Kathryn A. Evans on behalf of Megan Allen (Evans, Kathryn) (Entered: 10/29/2008)
37 AGREED PRE−HEARING ORDER re 34 Joint MOTION to Amend/Correct 11 Order. Motion Hearing set for 11/7/2008, at 9:00 AM, in Courtroom A859 before District Judge William J. Haynes, Jr. Pre−hearing filings previously ordered by the Court shall be due no later than 5 days before the hearing. Signed by District Judge William J. Haynes, Jr., on 10/29/08. (tmw) (Entered: 10/29/2008)
38 ORDER: Because Judge Haynes conducts his own case management, the Magistrate Judge will not enter the parties' proposed case management order or any order reflecting other matters addressed on 10/15/08. The case management conference scheduled on 11/21/08, is CANCELLED, and, unless otherwise directed by the Court, there will be no further proceedings before the Magistrate Judge in this case. Signed by Magistrate Judge Juliet E. Griffin on 10/30/08. (tmw) (Entered: 10/30/2008)
39 DECLARATION of Darin Gordon filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Home Health and PDN State Comparison, # 2 Exhibit B −− Medicare and Home Health Care, # 3 Exhibit C −− Amendment 6 to the Tennessee Medicaid Section 1115 Demonstration, TennCare II, # 4 Exhibit D −− Total Spending on Home Health &Private Duty Nursing, # 5 Exhibit E −− Home Health &PDN Spending Growth ages 65 and older, # 6 Exhibit F −− Letter Re: Complaint against the State of Tennessee's federally funded TennCare propgram for violation of the Americans with Disability Act)(Cooper, Charles) (Entered: 10/31/2008)
40 DECLARATION of Wendy Long filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Important Information for Physicians Concerning

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 19 of 31

10/31/2008 10/31/2008 10/31/2008 11/03/2008 11/03/2008 11/03/2008 11/03/2008 11/03/2008 11/03/2008

TennCare Changes in Coverage of Private Duty Nursing and Home Health, # 2 Exhibit B −− Nursing Facility Utilization of Southeastern States, # 3 Exhibit C −− Redacted Case Notes for Plaintiff N, # 4 Exhibit D −− Redacted Case Notes for Plaintiff C, # 5 Exhibit E −− Redacted Case Notes for Plaintiff A, # 6 Exhibit F −− Redacted Case Notes for Plaintiff G, # 7 Exhibit G −− Redacted Case Notes for Plaintiff O, # 8 Exhibit H −− Redacted Case Notes for Plaintiff V, # 9 Exhibit I −− Redacted Medical Records for Plaintiffs G and O, # 10 Exhibit J −− Redacted Medical Records for Plaintiff D, # 11 Exhibit K −− Redacted Medical Records for Plaintiff U, # 12 Exhibit L −− Redacted Medical Records for Plaintiff T, # 13 Exhibit M −− Redacted Medical Records for Plaintiff V)(Cooper, Charles) (Entered: 10/31/2008)
41 DECLARATION of Patti Killingsworth filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Redacted HCBS Waiver Intake and Referral Records, # 2 Exhibit B −− Redacted HCBS Waiver Intake and Referral Records, # 3 Exhibit C −− 2007 Tennessee Nursing Facilities Minimum Data Set Extracts)(Cooper, Charles) (Entered: 10/31/2008)
42 Witness List by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 10/31/2008)
43 Exhibit List by David Goetz, Darin Gordon.. (Attachments: # 1 Exhibit List)(Cooper, Charles) (Entered: 10/31/2008)
44 DECLARATION of Dr. Brenda Butka filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
45 DECLARATION of Dr. Christopher Rayala filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
46 DECLARATION of Dr. Joseph Little filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
47 DECLARATION of Dr. Peter Donofrio filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
48 DECLARATION of Plaintiff Margaret Connelly filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
49 DECLARATION of Scott Baker filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 20 of 31

11/03/2008
11/03/2008
11/03/2008
11/03/2008
11/03/2008
11/05/2008 11/05/2008 11/05/2008 11/06/2008 11/06/2008 11/06/2008 11/07/2008 11/10/2008
11/10/2008

50 DECLARATION of Susan Anderson, FNP filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
51 Witness List for Preliminary Injunction Hearing by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
52 DECLARATION of Rhonda Smith, RN filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
53 DECLARATION of Tamara Watson filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/03/2008)
54 Exhibit List for Preliminary Injunction Hearing by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry.. (Abelow, Michael) (Entered: 11/03/2008)
55 DECLARATION of Rosemary Lippincott filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 11/05/2008)
56 DECLARATION of Teresa Alexander filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 11/05/2008)
57 DECLARATION of Rana H. Wise filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 11/05/2008)
58 MOTION for Leave to File Document Under Seal Defendants' Notice of Filing by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 11/06/2008)
59 Sealed Document Defendants' Notice of Filing, re 58 Motion for Leave to File Document Under Seal, filed by David Goetz, Darin Gordon. (Cooper, Charles) Modified text on 11/10/2008 (tmw). (Entered: 11/06/2008)
60 DECLARATION of Kelly Dunn filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 11/06/2008)
61 Pltfs' Amended Exhibit List. (Abelow, Michael) Modified text on 11/10/2008 (tmw). (Entered: 11/07/2008)
62 DECLARATION of Anita Porter, RN filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Abelow, Michael) (Entered: 11/10/2008)
63 Transcript filed for date of 11/7/08, before Judge William J. Haynes, Jr. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 21 of 31

before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 11/20/2008. Redaction Request due 11/28/2008. Redacted Transcript Deadline set for 12/8/2008. Release of Transcript Restriction set for 2/5/2009. (tmw) (Entered: 11/10/2008)

11/13/2008

64 ANSWER to 1 Complaint,, by David Goetz, Darin Gordon.(Cooper, Charles) (Entered: 11/13/2008)

11/13/2008

65 DECLARATION of Barbara Futter filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Exhibit A (Notice of Hearing), # 2 Exhibit B (Affidavit of Dr. Richard Garvin))(Evans, Kathryn) (Entered: 11/13/2008)

11/14/2008

66 Additional Attachments to Main Document re: 65 Declaration,,. (Abelow, Michael) (Entered: 11/14/2008)

11/17/2008

67 ORDER granting Defts' 58 Motion for Leave to File Under Seal Defts' Notice of Filing. Signed by District Judge William J. Haynes, Jr., on 11/17/08. (tmw) (Entered: 11/17/2008)

11/17/2008

68 Exhibit And Witness List. (tmw) (Entered: 11/18/2008)

11/17/2008

69 Minute Entry for proceedings held before District Judge William J. Haynes, Jr.: Preliminary Injunction Hearing held on 11/7/2008. Counsel presented their evidence before the Court. The Court will take the matter under advisement.(Court Reporter Peggy Turner.) (tmw) (Entered: 11/18/2008)

12/08/2008

70 MOTION to Strike by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 12/08/2008)

12/08/2008

71 MEMORANDUM in Support of 70 MOTION to Strike filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 12/08/2008)

12/16/2008

72 MOTION to Intervene by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Abelow, Michael) (Entered: 12/16/2008)

12/16/2008

73 Intervenor COMPLAINT, filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Attachments: # 1 Exhibit TennCare Budget Presentation)(Abelow, Michael) (Entered: 12/16/2008)

12/16/2008

74 PROPOSED ORDER OF DISMISSAL as to Plaintiffs Murphey and Taylor filed by Harold Lee Murphey, Betty Jean Taylor. (Abelow, Michael) (Entered: 12/16/2008)

12/18/2008

75 RESPONSE to Motion re 72 MOTION to Intervene filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 12/18/2008)

12/19/2008

76 AGREED ORDER DISMISSING PLTFS MURPHEY AND TAYLOR. Harold Lee Murphey and Betty Jean Taylor terminated. Signed by District Judge William J. Haynes, Jr., on 12/19/08. (tmw) (Entered: 12/19/2008)

12/19/2008

77 MEMORANDUM OF THE COURT. Signed by District Judge William J. Haynes, Jr on 12/19/08. (af) (Entered: 12/19/2008)

12/19/2008

78 ORDER granting 2 Motion for Preliminary Injunction. It is ORDERED that (1) the Defendants shall refrain from imposing the cuts in Home Health and Private Duty Nurse upon the Plaintiffs until the community−based, patient centered system authorized by the State's Long−Term Care Community Choices Act is implemented and available to Plaintiffs; (2) the Defendants shall conduct individualized assessments of the Plaintiffs to determine the specific needs of each Plaintiff, including the amount of time required to meet those needs, and the extent to which family or other natural supports are available, and whether the needs could be satisified in the community at less cost than Defendants are presently paying; and (3) the Defendants shall determine whether nursing homes will in fact

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 22 of 31

provide the services each Plaintiff requires. It is so ORDERED. Signed by District Judge William J. Haynes, Jr on 12/19/08. (af) (Entered: 12/19/2008)

12/19/2008

79 MOTION for Preliminary Injunction by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Attachments: # 1 Exhibit Declaration of Dr. McLerron, # 2 Exhibit Declaration of John Chadwick)(Abelow, Michael) (Entered: 12/19/2008)

12/22/2008

80 ORDER granting 72 Motion to Intervene by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott &Anna Swindle. Signed by District Judge William J. Haynes, Jr on 12.22.08. (af) (Entered: 12/22/2008)

12/23/2008

81 Agreed MOTION for Extension of Time to File Response/Reply as to 79 MOTION for Preliminary Injunction by David Goetz, Darin Gordon. (Cooper, Charles) Modified text on 12/24/2008 (tmw). (Entered: 12/23/2008)

12/30/2008

82 ORDER granting 81 Agreed Motion for Extension of Time, of 30 days, to Respond re 79 MOTION for Preliminary Injunction. Signed by District Judge William J. Haynes, Jr., on 12/30/08. (tmw) (Entered: 12/30/2008)

01/08/2009

83 SEALED ORDER re 59 Sealed Document − Defts' Notice of Filing. This list shall be maintained under seal. Signed by District Judge William J. Haynes, Jr on 1/8/09. (tmw) (Entered: 01/08/2009)

01/12/2009

84 ANSWER to 73 Intervenor Complaint by David Goetz, Darin Gordon.(Cooper, Charles) (Entered: 01/12/2009)

01/22/2009

85 DECLARATION of Michael Craig Chisholm filed by Michael Chisholm re: 79 MOTION for Preliminary Injunction. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

86 DECLARATION of Barbara Turner filed by Pamela Goodin re: 79 MOTION for Preliminary Injunction. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

87 DECLARATION of Lola Scott filed by David Scott re: 79 MOTION for Preliminary Injunction. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

88 DECLARATION of Judy McGuire filed by Anna Swindle re: 79 MOTION for Preliminary Injunction. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

89 CERTIFICATE of service for 85 , 86 , 87 &88 , filed by Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) Modified text on 1/27/2009 (tmw). (Entered: 01/22/2009)

01/22/2009

90 Second MOTION to Intervene by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

91 Second Intervenor COMPLAINT, filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Exhibit Declaration of Brenda Daniels (Rachel Clayton), # 2 Exhibit Declaration of Virginia Brannum (Geneva Cope), # 3 Exhibit Declaration of Sandra York (Alex Earls), # 4 Exhibit Declaration of Christina Fullington, # 5 Exhibit Declaration of James Hill, # 6 Exhibit Declaration of Giacomo Lijoi, # 7 Exhibit Declaration of Gatlin McPherson, # 8 Exhibit Declaration of Mack Moody (Alan Moody), # 9 Exhibit Declaration of Helen Moon, # 10 Exhibit Declaration of Diane Garner (Joseph Mullins), # 11 Exhibit Declaration of Angie Walker (Vivian Neal), # 12 Exhibit Declaration of Catherine Perkins, # 13 Exhibit Declaration of Frances Purvis, # 14 Exhibit Declaration of Robert Terry (Jordan Terry), # 15 Exhibit Declaration of Peter VanDyk, # 16 Exhibit Declaration of Diane Whitfield (Allison Wilkerson), # 17 Exhibit Declaration of Marilyn Burke (Larry

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 23 of 31

Burke))(Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

92 Second MOTION for Preliminary Injunction by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry. (Evans, Kathryn) (Entered: 01/22/2009)

01/22/2009

Note to filer re 91 : Affidavits/declarations should be filed as separate events rather than attachments to other pleadings. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 01/27/2009)

01/23/2009

93 Consent MOTION for Extension of Time to File Response/Reply as to 79 MOTION for Preliminary Injunction, 92 Second MOTION for Preliminary Injunction by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 01/23/2009)

02/05/2009

94 RESPONSE in Opposition re 79 MOTION for Preliminary Injunction filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 02/05/2009)

02/10/2009

95 Joint MOTION for Case Management Order by David Goetz, Darin Gordon. (Attachments: # 1 Proposed Order for Case Management)(Cooper, Charles) Modified text on 2/12/2009 (tmw). (Entered: 02/10/2009)

02/12/2009

96 ORDER denying as moot 93 Agreed Motion for Extension of Time to Respond to Motion for Preliminary Injunction. Signed by District Judge William J. Haynes, Jr on 2/12/09. (tmw) (Entered: 02/12/2009)

02/12/2009

97 ORDER granting 95 Joint Motion for Entry of Agreed CMO. Signed by District Judge William J. Haynes, Jr on 2/12/09. (tmw) (Entered: 02/12/2009)

02/12/2009

98 AGREED CASE MANAGEMENT ORDER: Pltf−Intervener David Scott shall file an amended complaint by 2/20/09. Cross Motions due by 4/17/2009. Further litigation of the claims presented by all of the other pltfs, interveners, and proposed interveners shall be held in abeyance pending the outcome of Mr. Scott's case. Signed by District Judge William J. Haynes, Jr on 2/12/09. (tmw) (Entered: 02/12/2009)

02/18/2009

99 Third MOTION to Intervene by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry. (Evans, Kathryn) (Entered: 02/18/2009)

02/18/2009

100 Third Intervenor COMPLAINT, filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry.(Evans, Kathryn) (Entered: 02/18/2009)

02/18/2009

101 DECLARATION of Teresa Alston filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)

02/18/2009

102 DECLARATION of Linda Cagle (Billy Cagle) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin,

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 24 of 31

02/18/2009 02/18/2009 02/18/2009 02/18/2009 02/18/2009 02/18/2009 02/18/2009

Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
103 DECLARATION of Katrice Brown (Shirley Edmiston) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
104 DECLARATION of Candie Ferrell (William Ferrell, III) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
105 DECLARATION of Priscilla Hewgley (Ashley Self) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
106 DECLARATION of Lisa Sexton (Erik Sexton) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
107 DECLARATION of Bonnie Smiley filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
108 DECLARATION of Belinda Johnson (Darrell Johnson) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
109 DECLARATION of Tara Wilborn (Jeremy Wilborn) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 25 of 31

02/18/2009
02/20/2009 03/12/2009 03/30/2009 03/30/2009 03/30/2009 03/30/2009 03/30/2009 03/30/2009 03/30/2009 04/10/2009 04/14/2009 04/14/2009 04/17/2009 04/17/2009 04/20/2009 04/20/2009
04/20/2009

110 DECLARATION of Robbie Bostic (Rachel Bostic and Rebecca Bostic) filed by Joel DeHaas, Margaret Connelly, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry re: 100 Intervenor Complaint,. (Evans, Kathryn) (Entered: 02/18/2009)
111 AMENDED COMPLAINT of Intervener David Scott against all defendants, filed by David Scott.(Evans, Kathryn) (Entered: 02/20/2009)
112 ANSWER to 111 Amended Complaint by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit 1 −− Initial Order, # 2 Exhibit 2 −− Final Administrative Order)(Cooper, Charles) (Entered: 03/12/2009)
113 Third MOTION for Preliminary Injunction for plaintiffs−interveners by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
114 DECLARATION of Perkins, Catherine filed by David Scott re: 113 Third MOTION for Preliminary Injunction for plaintiffs−interveners. (Croce, Lenny) (Entered: 03/30/2009)
115 DECLARATION of Breeding, Sherry filed by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
116 DECLARATION of Bunch, Kim filed by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
117 DECLARATION of Schulz, Virginia filed by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
118 DECLARATION of Lim, Robert filed by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
119 MEMORANDUM in Support of 113 Third MOTION for Preliminary Injunction for plaintiffs−interveners filed by David Scott. (Croce, Lenny) (Entered: 03/30/2009)
120 Joint MOTION for Entry of Agreed Amendment to Case Management Order by David Scott. (Attachments: # 1 Exhibit A: [Proposed] Agreed Amended Case Management Order)(Evans, Kathryn) (Entered: 04/10/2009)
121 ORDER granting 120 Motion for Entry of Agreed Amendment to Case Mgt Order. Signed by District Judge William J. Haynes, Jr on 4/14/09. (tmw) (Entered: 04/14/2009)
122 AGREED AMENDED CASE MANAGEMENT ORDER. Signed by District Judge William J. Haynes, Jr on 4/14/09. (tmw) (Entered: 04/14/2009)
123 Pltfs' SUGGESTION OF DEATH of Plaintiff James Hill. (Rambsy, Phillis) Modified text on 4/20/2009 (tmw). (Entered: 04/17/2009)
124 Pltfs' SUGGESTION OF DEATH of Plaintiff Odell Owens. (Rambsy, Phillis) Modified text on 4/20/2009 (tmw). (Entered: 04/17/2009)
125 MOTION for Temporary Restraining Order on behalf of Plaintiff−Interveners by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) (Entered: 04/20/2009)
126 MEMORANDUM in Support of 125 MOTION for Temporary Restraining Order on behalf of Plaintiff−Interveners filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) (Entered: 04/20/2009)
127 DECLARATION of Belinda Johnson (Darrell Johnson) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 26 of 31

04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/24/2009 04/27/2009 05/01/2009
05/01/2009
05/01/2009 05/01/2009 05/01/2009
05/01/2009 05/04/2009 05/05/2009 05/05/2009 05/05/2009

128 DECLARATION of Bonnie Smiley filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)
129 DECLARATION of Sewana Collins (Bonnie Smiley) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)
130 DECLARATION of Tammarra Baker (Rachel and Rebecca Bostic) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)
131 DECLARATION of Dr. Ben Kerny (Rachel and Rebecca Bostic) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)
132 DECLARATION of Dianne Whitfield (Allison Wilkerson) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 126 Memorandum in Support. (Evans, Kathryn) (Entered: 04/20/2009)
133 ORDER: This 125 MOTION for Temporary Restraining Order on behalf of Plaintiff−Interveners is set for 5/4/2009 at 9:00 AM. Signed by District Judge William J. Haynes, Jr on 4/24/09. (dt) (Entered: 04/24/2009)
134 DECLARATION of Marta Wayt, D.O. filed by David Scott re: 125 MOTION for Temporary Restraining Order on behalf of Plaintiff−Interveners. (Croce, Lenny) (Entered: 04/27/2009)
135 MOTION for Leave to File Document Under Seal Defendants' Response to Proposed Intervenors' Motion for a Temporary Restraining Order and Supporting Declarations by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 05/01/2009)
136 Sealed Document Defendants' Response to Proposed Intervenors' Motion for a Temporary Restraining Order filed by David Goetz, Darin Gordon. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A −− Unpublished Cases)(Cooper, Charles) (Entered: 05/01/2009)
137 Sealed Document Declaration of Darin Gordon filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 05/01/2009)
138 Sealed Document Declaration of Patti Killingsworth filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Bostic AAD Record Excerpts)(Cooper, Charles) (Entered: 05/01/2009)
139 Sealed Document Declaration of Dr. Wendy Long filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Wilkerson Medical Record Excerpts, # 2 Exhibit B −− Bostic Medical Record Excerpts, # 3 Exhibit C −− Smiley Medical Record Excerpts, # 4 Exhibit D −− Johnson Medical Record Excerpts)(Cooper, Charles) (Entered: 05/01/2009)
140 NOTICE of Filing by David Scott (Attachments: # 1 Exhibit Excerpt from the State of Tennessee's Budget for Fiscal Year 2009−2010)(Evans, Kathryn) (Entered: 05/01/2009)
141 ORDER granting 135 Unopposed Motion for Leave to File Response Under Seal. Signed by District Judge William J. Haynes, Jr on 5/1/09. (tmw) (Entered: 05/04/2009)
142 ORDER granting 90 Second Motion to Intervene. Signed by District Judge William J. Haynes, Jr on 5/5/09. (tmw) (Entered: 05/05/2009)
143 ORDER granting 99 Third Motion to Intervene. Signed by District Judge William J. Haynes, Jr on 5/5/09. (tmw) (Entered: 05/05/2009)
144 Transcript filed for date of 5/4/09, before Judge Haynes. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 27 of 31

05/06/2009 05/06/2009 05/13/2009 05/13/2009 05/13/2009 05/18/2009 05/18/2009 05/18/2009 05/18/2009
05/18/2009
05/18/2009
05/18/2009
05/18/2009 05/18/2009
05/18/2009 05/18/2009

before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 5/14/2009. Redaction Request due 5/26/2009. Redacted Transcript Deadline set for 6/2/2009. Release of Transcript Restriction set for 7/31/2009. (tmw) (Entered: 05/05/2009)
145 Minute Entry for proceedings held before District Judge William J. Haynes, Jr: Temporary Restraining Order and Preliminary Injunction Hearing held on 5/4/2009. (Court Reporter Peggy Turner.) (tmw) (Entered: 05/06/2009)
146 WITNESS/EXHIBIT LIST prepared by Courtroom Deputy, re: 145 Temporary Restraining Order and Preliminary Injunction Hearing.(tmw) (Entered: 05/06/2009)
147 *DISREGARD per 148 Notice* MOTION for Leave to File Excess Pages by David Scott. (Evans, Kathryn) Modified text on 5/14/2009 (tmw). (Entered: 05/13/2009)
148 NOTICE to Withdraw 147 MOTION for Leave to File Excess Pages by David Scott. (Abelow, Michael) Modified text on 5/14/2009 (tmw). (Entered: 05/13/2009)
149 Joint MOTION for Leave to File Excess Pages by David Goetz, Darin Gordon, David Scott. (Abelow, Michael) (Entered: 05/13/2009)
150 MOTION for Summary Judgment by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 05/18/2009)
151 MOTION for Leave to File Document Under Seal by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 05/18/2009)
152 Sealed Document Concise Statement of Material Facts filed by David Goetz, Darin Gordon. (Cooper, Charles) (Entered: 05/18/2009)
153 Sealed Document Memorandum in Support of Defendants' Motion for Summary Judgment filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Dr. Davis Deposition, # 2 Exhibit B −− Dr. Huddleston Deposition, # 3 Exhibit C −− Grier Motion, # 4 Exhibit D −− Grate v. Barnhart)(Cooper, Charles) (Entered: 05/18/2009)
154 Sealed Document Declaration of Dr. Wendy Long filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− HH−PDN Least Costly MCO Training, # 2 Exhibit B −− Home Health Medical Review Documentation Form, # 3 Exhibit C −− MCO Notes, # 4 Exhibit D −− McLerran Letter)(Cooper, Charles) (Entered: 05/18/2009)
155 Sealed Document Declaration of Patti Killingsworth filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− AAAD Case Management Notes, # 2 Exhibit B −− GAO Report Excerpts, # 3 Exhibit C −− LA Times Article, # 4 Exhibit D −− Boston Globe Article)(Cooper, Charles) (Entered: 05/18/2009)
156 Sealed Document Declaration of Tracy Purcell filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Grier, # 2 Exhibit B −− Initial Order, # 3 Exhibit C −− Final Order, # 4 Exhibit D −− Order Denying Reconsideration Motion)(Cooper, Charles) (Entered: 05/18/2009)
157 Sealed Document Declaration of Darin Gordon filed by David Goetz, Darin Gordon. (Attachments: # 1 Exhibit A −− Budget Excerpts, # 2 Exhibit B −− TennCare Oversight Presentation Slides)(Cooper, Charles) (Entered: 05/18/2009)
158 DECLARATION of Laurie Lee filed by David Goetz, Darin Gordon re: 153 Sealed Document,. (Attachments: # 1 Exhibit A −− State Plan Document, # 2 Exhibit B −− Local Education Plan Document, # 3 Exhibit C −− Local Government Plan Document)(Cooper, Charles) (Entered: 05/18/2009)
159 MOTION for Summary Judgment by David Scott. (Abelow, Michael) (Entered: 05/18/2009)
160 MEMORANDUM in Support of 159 MOTION for Summary Judgment filed by David Scott. (Abelow, Michael) (Entered: 05/18/2009)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 28 of 31

05/18/2009 05/18/2009 05/18/2009
05/18/2009
05/18/2009 05/28/2009

161 STATEMENT of facts filed by David Scott in support of 159 Motion for Summary Judgment. (Abelow, Michael) (Entered: 05/18/2009)
162 NOTICE of Filing by David Scott re 159 MOTION for Summary Judgment (Attachments: # 1 Exhibit David Scott Declaration, # 2 Exhibit Lola Scott Declaration, # 3 Exhibit Nursing homes contacted, # 4 Exhibit Dr. Powers Declaration, # 5 Exhibit Dr. Powers CV, # 6 Exhibit Dr. Harrington declaration, # 7 Exhibit Dr. Harrington CV, # 8 Exhibit Manning declaration, # 9 Exhibit Hunter letter, # 10 Exhibit Donovan declaration, # 11 Exhibit Donovan letter, # 12 Exhibit Dr. McLerran letter, # 13 Exhibit McLerran and Smith email, # 14 Exhibit Dr. McLerran letter, # 15 Exhibit Dr. McLerran declaration, # 16 Exhibit Pierce deposition, # 17 Exhibit Ledbetter deposition, # 18 Exhibit Warren deposition, # 19 Exhibit Davis deposition, # 20 Exhibit Huddleston deposition)(Abelow, Michael) (Entered: 05/18/2009)
163 Additional Attachments to Main Document re: 162 Notice (Other), Notice (Other), Notice (Other), Notice (Other), 159 MOTION for Summary Judgment. (Attachments: # 1 Exhibit Administrative Hearing Transcript, # 2 Exhibit Initial Order, # 3 Exhibit Final Administrative Order, # 4 Exhibit Order denying stay and reconsideration, # 5 Exhibit Amerigroup notice, # 6 Exhibit Amerigroup notice, # 7 Exhibit Amerigroup notice, # 8 Exhibit Tenncare notice, # 9 Exhibit Amerigroup notice, # 10 Exhibit Tenncare notice, # 11 Exhibit Amerigroup notice, # 12 Exhibit Amerigroup notice, # 13 Exhibit Tenncare directive notice, # 14 Exhibit Letter from Darin Gordon to Gordon Bonnyman, # 15 Exhibit Letter from Darin Gordon to Susan Cuerdan, # 16 Exhibit Letter from Darin Gordon to Kathleen Ferrell, # 17 Exhibit Letter from Darin Gordon to Kelly Heilman, # 18 Exhibit Letter from Kerry Weems to Darin Gordon, # 19 Exhibit Jackson letter, # 20 Exhibit Long Freeman email with powerpoint, # 21 Exhibit Long email to Shelton, # 22 Exhibit Long Hollis email, # 23 Exhibit Monthly cost of NF care email, # 24 Exhibit Long email to Anderson, # 25 Exhibit Long email to Lang, # 26 Exhibit New instructions HH PDN email, # 27 Exhibit, # 28 Exhibit Scarbrough email to Long, # 29 Exhibit Killingsworth Hildreth email)(Abelow, Michael) (Entered: 05/18/2009)
164 Additional Attachments to Main Document re: 162 Notice (Other), Notice (Other), Notice (Other), Notice (Other), 159 MOTION for Summary Judgment. (Attachments: # 1 Exhibit Home health certification and plan of care, # 2 Exhibit Advanced Neurosciences Institute medical history, # 3 Exhibit CareAll Supplemental Orders, # 4 Exhibit Home Health Certification and Plan of Care, # 5 Exhibit Amerigroup In−Home Assessment, # 6 Exhibit Home Health Certification and Plan of Care, # 7 Exhibit Ledbetter Story Assessment Summary, # 8 Exhibit Referral and Authorization Request, # 9 Exhibit Home health certification and plan of care, # 10 Exhibit Prospective UM notes, # 11 Exhibit Home health medical review documentation form, # 12 Exhibit PDN cost sheet, # 13 Exhibit CareAll Supplemental Order, # 14 Exhibit TennCare Medical Review, # 15 Exhibit Cookeville Regional Medical Center Medical History, # 16 Exhibit CareAll Supplemental Order, # 17 Exhibit Nurse's observations, # 18 Exhibit Private Duty Nursing Clinical Progress Notes, # 19 Exhibit Continuous Nursing Care Progress Notes, # 20 Exhibit David Scott Prescription, # 21 Exhibit Private Duty Nursing Clinical Progress Notes, # 22 Exhibit Nurse's observations, # 23 Exhibit Private Duty Nursing Clinical Progress Note, # 24 Exhibit Private Duty Nursing Clinical Progress Note, # 25 Exhibit Continuous Nursing Care Progress Note, # 26 Exhibit Continuous Nursing Care Progress Note, # 27 Exhibit Private Duty Nursing Clinical Progress Notes, # 28 Exhibit PDN Clinical Progress Note, # 29 Exhibit PDN clinical progress note, # 30 Exhibit Prospective UM notes and continuation of CNA documentation notes)(Abelow, Michael) (Entered: 05/18/2009)
165 Additional Attachments to Main Document re: 159 MOTION for Summary Judgment, 162 Notice (Other), Notice (Other), Notice (Other), Notice (Other). (Attachments: # 1 Exhibit Home Health/PDN changes, # 2 Exhibit Stimulus Act, # 3 Exhibit Deposition Exhibit 3, # 4 Exhibit Application for demonstration waiver, # 5 Exhibit Newberry Order, # 6 Exhibit Governor's budget speech)(Abelow, Michael) (Entered: 05/18/2009)
166 Fourth MOTION to Intervene by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) (Entered: 05/28/2009)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 29 of 31

05/28/2009

167 Fourth Intervenor COMPLAINT, filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle.(Evans, Kathryn) (Entered: 05/28/2009)

05/28/2009

168 MOTION for Preliminary Injunction for Fourth Interveners by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) (Entered: 05/28/2009)

05/28/2009

169 MEMORANDUM in Support of 168 MOTION for Preliminary Injunction for Fourth Interveners filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle. (Evans, Kathryn) (Entered: 05/28/2009)

05/28/2009

170 DECLARATION of Mildred Davis filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 167 Intervenor Complaint. (Evans, Kathryn) (Entered: 05/28/2009)

05/28/2009

171 DECLARATION of Sharon Fairburn Velluto (Shawn Fairburn) filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 167 Intervenor Complaint. (Evans, Kathryn) (Entered: 05/28/2009)

05/28/2009

172 DECLARATION of Donald Tucker, M.D. filed by John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle re: 167 Intervenor Complaint. (Evans, Kathryn) (Entered: 05/28/2009)

06/09/2009

173 ORDER granting 166 Fourth MOTION to Intervene. Mildred A. Davis, and Shawn Fairburn added. Signed by District Judge William J. Haynes, Jr on 6/9/09. (tmw) (Entered: 06/09/2009)

06/09/2009

174 NOTICE of Filing by David Goetz, Darin Gordon (Attachments: # 1 Exhibit A − Order in Daniels, # 2 Exhibit B − Notification)(Cooper, Charles) (Entered: 06/09/2009)

06/09/2009

175 Joint MOTION to Amend/Correct 122 Order, Set Deadlines/Hearings by Joel DeHaas, Margaret Connelly, David Goetz, Darin Gordon, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, Harold Lee Murphey, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Mildred A. Davis, Shawn Fairburn, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Betty Jean Taylor, Delores Baker, Lorrinda Mabry. (Attachments: # 1 Proposed Order)(Abelow, Michael) (Entered: 06/09/2009)

06/10/2009

176 ORDER granting 175 Joint Motion to Amend Case Mgmt Order. Signed by District Judge William J. Haynes, Jr on 6/10/09. (tmw) (Entered: 06/10/2009)

06/10/2009

177 AGREED AMENDED CASE MANAGEMENT ORDER. Signed by District Judge William J. Haynes, Jr on 6/10/09. (tmw) (Entered: 06/10/2009)

06/16/2009

178 NOTICE of Filing by David Goetz, Darin Gordon (Attachments: # 1 Exhibit A −− Burgess Notice, # 2 Exhibit B −− Ledbetter Notice, # 3 Exhibit C −− Adams Notice)(Cooper, Charles) (Entered: 06/16/2009)

06/17/2009

179 ORDER granting 149 Joint Motion for Leave to File Excess Pages. Signed by District Judge William J. Haynes, Jr on 6/17/09. (tmw) (Entered: 06/18/2009)

06/17/2009

180 ORDER granting 151 Unopposed Motion for Leave to File Documents Under Seal. Signed by District Judge William J. Haynes, Jr on 6/17/09. (tmw) (Entered: 06/18/2009)

06/23/2009

181 ORDER: Before the Court are Plaintiff−Intervenors' third motion for preliminary injunction 113 and Plaintiff−Intervenors' motion for temporary restraining order 125 . For the reasons stated in open court on 5/4/09, these motions are GRANTED as to Plaintiff−Intervenors Darrell Johnson, Bonnie Smiley, Rebecca Bostic, and Rachel Bostic. It is so ORDERED. Signed by District Judge William J. Haynes, Jr on 6/23/09. (tmw) Modified on 6/24/2009 (tmw). (Entered: 06/24/2009)

07/08/2009

182 ORDER: A hearing is set on the motions for preliminary injunction (Docket Entry Nos. 79 and 92 ) for Monday, 7/27/09, at 9:30 a.m. in Courtroom A859 before District Judge William J. Haynes Jr. Signed by District Judge William J. Haynes, Jr

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 30 of 31

07/14/2009
07/15/2009 08/12/2009 09/08/2009 09/08/2009 09/08/2009 01/21/2010 01/22/2010
01/22/2010

on 7/8/09. (tmw) (Entered: 07/08/2009)
183 Joint MOTION to Clarify re 182 Order Setting Hearing on Motion, by Joel DeHaas, Margaret Connelly, David Goetz, Darin Gordon, Carl Anders, George Dylan Brown, Sarah Crabtree, Willowdeen Burrows, Hazel S. Graham, John Chadwick, Michael Chisholm, Pamela Goodin, David Scott, Anna Swindle, Larry Scott Ervin, Megan Allen, Jessica W. Pipkin, Florence Adams, Lena Burgess, Wilma F. Stills, Mildred A. Davis, Shawn Fairburn, Odell Owens, Velma Ledbetter, Ellar Lowman, Marvin Ray Berry, Jr, Carol Smith, Delores Baker, Lorrinda Mabry. (Evans, Kathryn) (Entered: 07/14/2009)
184 ORDER granting 183 Joint MOTION to Clarify. The July 27th hearing is CANCELLED. The motions 79 and 92 are DENIED without prejudice to renew if the parties do not settle their disputes. Signed by District Judge William J. Haynes, Jr on 7/15/09. (tmw) (Entered: 07/15/2009)
185 NOTICE of Filing by David Goetz, Darin Gordon (Attachments: # 1 Exhibit A −− Self Notice)(Cooper, Charles) (Entered: 08/12/2009)
186 ORDER re Pltf−Interveners' 168 Motion for Preliminary Injunction. Based upon the parties' joint report, this motion is DENIED without prejudice to renew. Signed by District Judge William J. Haynes, Jr on 9/8/09. (tmw) (Entered: 09/08/2009)
187 ORDER re Defts' 150 Motion for Summary Judgment. Based upon the parties' joint report, this motion is DENIED without prejudice to renew. Signed by District Judge William J. Haynes, Jr on 9/8/09. (tmw) (Entered: 09/08/2009)
188 ORDER re Pltf David Scott's 159 Motion for Summary Judgment. Based upon the parties' joint report, this motion is DENIED without prejudice to renew if this action does not settle. Signed by District Judge William J. Haynes, Jr on 9/8/09. (tmw) (Entered: 09/08/2009)
189 PROPOSED ORDER OF DISMISSAL filed by all parties. (Abelow, Michael) (Entered: 01/21/2010)
190 AGREED ORDER OF DISMISSAL. Pursuant to the agreement of the parties, as evidenced by the signatures of counsel below, the parties having informed the Court that they have reached a settlement agreement, it is hereby ORDERED that this action be and hereby is dismissed without prejudice with each party bearing its own attorneys' fees and costs except as set forth in the settlement agreement. Court costs, if any, are taxed to Plaintiffs. It is so ORDERED. Signed by District Judge William J. Haynes, Jr on 1/22/10. (tmw) (Entered: 01/22/2010)
191 Final judgment is hereby entered for purposes of Rule 58 and/or Rule 79(a) of the Federal Rules of Civil Procedure on 1/22/10, by tmw. (tmw) (Entered: 01/22/2010)

Case: 3:08-cv-939 As of: 03/08/2011 03:11 PM CST 31 of 31