BAZELON CENTER FOR MENTAl. HEAJ..lli LAW lraA.Dumim Alison Bancoff 1101 Fifteenth Street N.W. Suite 212 Washington D.C. 20005-500 Telephone: (202) 467 5730 Facsimile: (202) 233 0409 Allomcys for Plaintiffs
ARIZONA CENTER FOR LAW IN TilE PUBLIC INTEREST Anne C. Ronan (006041) 202 E. McDowell Rd. Suite !53 Phoenix, Ntwna 85004 Telephone: (602) 258 8850 Facsimile. (602) 258 8757 Anomeys for Plaintiffs
ARIZONA CENTER FOR DISABLITY LAW Robbin M. Coulon (009652) 3839 North Third Suec1, Suile 209 Phoenix, Arizona 85012 Telephone: (602) 274 6287 Facsimile: (602) 274 6779 Attorneys for Plaintiffs

NATIONAL C~NTER FOR YOUTI! LAW Patrick Gardner 405 t4• Street. Suite I500 Oakland, California 94612-2701 Telephone: (41 5) 543 3307 Facsimile: (41 5) 956 9024 Anome)'S for Plaintiffs
JOHNSTON LAW OFFICES PLC Logan T. Johnston (0094&4) One North First Street, Suite 250 Phoenix, Ariwna 85004-2359 Telephone: (602) 452 0615 facsimile: (602) 716 5997 Auorney For AHCCCS Defendants
AR.IZONA ATTORNEY GENERAL'S OFFICE Robert J. Sorce (006976) Assis~t Attorney General
1275 w. Wushinaton
Phoenix. Ni.wna 85007-2926 Telephone: (602) 542 8896 faestmile: (602) 364 0070 Attorneys For ADHS Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

J.K., a minor by and through RK., et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.

No. CIV 91-26 1 TUC JMR STIPULATION TO AMEND SETTLEMENT AGREEMENT
(Honorable John M. Roll)

SUSAN GERARD, in her official capacity as Director of the Arizona Department of Health Services; EDDY BROADWAY, in his official capacity as Director, Division of Behavioral Health Services, Arizona, Department of Health Services; ANTHONY D. RODGERS, in his official capacity as Director, Arizona Health Care Cost Containment System,

Defendants.

Plaintiffs and Defendants, through undersigned counsel, being duly authorized to

2 enter into this stipulation, submit the following in support of the Stipulation to Amend

3 Settlement Agreement.

4

On July 1, 2001, this Court approved a Settlement Agreement negotiated by the

5 parties to resolve this matter in lieu of litigation. On January 9, 2006, Plaintiffs invoked

6 Settlement Agreement, Section IX, Disputes Concerning Implementation. As part of

7 their dispute, Plaintiffs alleged that Defendants failed to implement the terms of the

8 Settlement Agreement, including ~ 15. Defendants denied that they have failed to

9 comply with~ 15 or any other term of the Settlement Agreement. Nevertheless, because

10 the parties wish to resolve the dispute without litigation, they hereby agree to extend the

II applicable dates in ~ 79-81 for three years without prejudice to either party's position.

12 All remaining terms ofthe Settlement Agreement shall remain unchanged.

13

The parties, therefore, stipulate that the following dates set forth in Settlement

14 Agreement,;~ 79-81 may be amended as follows:

15

I. The July 1, 2007 date in~ 79 is changed to July 1, 2010.

16

2. The February 1, 2008 date in~ 79 is changed to February 1, 2011.

17

3. The February 1, 2007 date in~ 79 is changed to February 1, 20 J0.

18

4. The July 1, 2007 date in~ 80 is changed to July 1, 2010.

19

5. All of the February 1, 2008 dates in~ 80 are changed to February I, 2011.

20

6. The May I , 2007 date in ~ 8 I is changed to May 1, 2010.

21

7. The July 1, 2007 date in~ 81 is changed to July l, 2010.

22

8. The February 1, 2007 date in 81 is changed to February 1, 2010.

23

9. The February 1, 2008 date in 8 1 is changed to February 1. 2011.

24

10. All remaining tenns of the Settlement Agreement shall remain unchanged

25

2

DATED this 21st ofNovember, 2006.

2

3

BAZELON CENTER FOR MENTAL HEALTH LAW

Ira A. Burnim

4

Alison Barkoff

1101 Fifteenth StreetN.W. Suite212

5

Washington D.C. 20005-500

6

Telephone: (202) 467 5730

Facsimile: (202) 233 0409

7

Attorneys for Plaintiffs

8

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST

9

Anne C. Ronan (006041)

202 E. McDowell Rd. Suite 153

10

Phoenix, Arizona 85004

11

Telephone: (602) 258 8850

Facsimile: (602) 258 8757

12

Attorneys for Plaintiffs

13

ARIZONA CENTER FOR DISABLITY LAW

14

Robbin M. Coulon (009652)

15

3839 North Third Street, Suite 209

Phoenix, Arizona 85012

16

Telephone: (602) 274 6287

17

s/ Anne C. Ronan

Anne C. Ronan for Plaintiffs
18

19

JOHNSTON LAW OFFICES PLC

20

Logan T. Johnston Ill (009484)

One North First Street, Suite 250

21

Phoenix, Arizona 85004-2359

Telephone: (602) 452 0615

22

Facsimile: (602) 716 5997

23

Attorney For AHCCCS Defendants

24

sl Lorzan T. Johnston

Logan T. Johnston III for AHCCCS

25

3

ARIZONA AITORNEY GENERAL'S OFFICE

Robert J. Sorce (006976)

2

Assistant Attorney General

1275 W. Washington

3

Phoenix, Arizona 85007-2926

Telephone: (602) 542 8896

4

Facsimile: (602) 364 0070

5

Attorneys For ADHS Defendants

6

sf Robert J. Sorce

Robert J. Sorce for ADHS

7

8

9

10

II

12

13

14

IS

16

17

18

19

20

21

22
,.,
_.)

24

25

4

CERTIFICATE OF SERVICE

2

3

1 hereby certify that on November 21. 2006. I electronically transmitted the

4 attached STIPULATION TO AMEND SETTLEMENT AGREEMENT to the Clerk 's 5 Office using the CM/ECF System for filing and transmittal ofNotice of Electronic Filing

6 to the following CMIECF registrants:

7

Andrew M. Mudryk

amudrvck@azdisabilitvlaw.org

8

ConiR. Good

Coni@combslawgroup.com

9

Judi(a1combslawtrroup.com

10

Logan T. Johnston

ltj ohnston@.guest.net

11 Michelle S. Michelson mrnicbelson@.azdisabilitvlaw.org

12
I further certify that on November 21, 2006, I mailed a copy of the foregoing to: 13

Patrick Gardner

14

National Center for Youth Law

IS

405 14th Street, 15th Floor

Oakland, CA 94612

16

Melinda Garrahan

17

Mangum, Wall, Stoops & Warden, PLLC

18

P.O. Box 10

Flagstaff, AZ 86002

19

Amy Joe Leeson

20

Office of the Attorney General

21

125 West Washington

Phoenix, AZ 85007-2926

22

Winn L.Sammons

23

Sanders & Parks, PC

24

3030 North Third Street, Suite J300 Phoenix, AZ 85012-3099

25

5

Margo F. Shein

Maynard, Cronin, Erickson, Curran & Sparks, PLC

2

3200 North Central Avenue, Suite 1800

Phoenix, AZ 85012-2443

3

Ira A. Burnim

4

Alison Barkoff

5

Bazelon Center for Mental Health Law

1101 Fifteenth Street N.W., Suite 212

6

Washington, D.C. 20005

7

8

s/ Robert J. Sorce

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

J.K., a minor by and through R.K., eta!.,
on behalf of themselves and all others similarly situated,
Plaintiffs,

No. crv 91-2611UC JMR
ORDER AMENDING SETTLEMENT AGREEMENT

vs.

(Honorable John M. Roll)

SUSAN GERARD, in her official capacity as Director of the Arizona Department of Health Services; EDDY BROADWAY, in his official capacity as Director. Division of Behavioral Health Services, Arizona, Department of Health Services; ANTHONY D. RODGERS, in his official capacity as Director, Arizona Health Care Cost Contrunment System,

Defendants. The parties having submitted a Stipulation to Amend Settlement Agreement, and good cause appearing, IT IS HEREBY ORDERED, the Settlement Agreement, approved on July 5, 200 l shall be amended as foUows:
l. The July l, 2007 date in, 79 is changed to July I , 20 10.

2. The February 1, 2008 date in~ 79 is changed to February 1, 2011.

2

3. The February 1, 2007 date in~ 79 is changed to February 1, 20 10.

3

4. The July 1, 2007 date in~ 80 is changed to July 1, 2010.

4

5. All of the February 1, 2008 dates in, 80 are changed to February 1, 2011.

5

6. The May 1, 2007 date in , 81 is changed to May 1, 2010.

6

7. The July 1, 2007 date in~ 81 is changed to July 1, 2010.

7

8. The February 1, 2007 date in, 81 is changed to February l, 2010.

8

in, 9. The February 1, 2008 date 81 is changed to February 1, 2011.

9

I0. All remaining terms of the Settlement Agreement shall remain unchanged.

10

ll

12

13

14

IS

16

17

18

19

20

21

22

23

24

25

2

CMIECF- azd

Page I of2

Other Documents 4:91 -cv-00261 -JMR John Doe v. Symington. et al CASE CLOSED on 05/16/2002

U.S. District Court

DISTRICT OF ARIZONA

Notice of Electronic Filing

The following transaction was received from Sorce, Robert entered on 11/21/2006 at 3:46PM MST and filed on ll/21/2006

Case Name:

John Doe v. Symington, et al

Case Number:

4:91 -cv-261

Filer:

Susan Gerard

WARNING: CASE CLOSED on 05/16/2002

Document Number: 443

Docket Text:
STIPULATION To Amend Settlemenr Agreement by Susan Gerard. (Attachments:# (1) Text of
Proposed Order Proposed Order)(Sorce, Robert)

The following document(s) are associated with this transaction:

Document description:Main Document Original filename: nla Electronic document Stamp: (STAMP dcecfStamp_ID=1096393563 [Date=11/21/2006] (FileNumber=13176000] [80ab2d76cb35b032ff7c5fd99a22224acbee49f311 b43cb4d3feb941 cf322e0315 2f6ea3e0def65a07dcc2fe2e5c80cea9fd31 b600d 134e8413732e8cd4998fa]] Document description:Text of Proposed Order Proposed Order Original tilename:nla Electronic document Stamp: [STAMP dcecfStarnp_ID=l096393563 [Date=ll /21/ 2006] [FileNumber=l317600l] [5685fb7bcc24blld2e30ca32bac844e2299cf4e4245992ba4857c51783b659a633 514c23094b637c142dcD6lc7f29a7d7932f599deed64d3c 1b453fb82c8588]]

4:91-cv-261 Notice will be electr onically mailed to: Alison N Barkoff alisonb@bazelon.org

Ira A Burnim irab@bazelon.org Leslie J Cohen lcohen@acdl.com, lfreyer@acd.l.com, lesjan@cox.net

Robbin Michelle Coulon rcoulon@azdisabilitylaw.org Patrick Hall Gardner pgardner@youthlaw.org

https://ecf.azd.uscourts.gov/cg1-bin!Dispatch.pl?723507248382488

11/21/2006

CMIECF - azd

Page 2 of2

Coni R Good Coni@combslawgroup.com, Judi@combslawgroup.com
Logan T Johnston ltjohnston@qwest.net
Michelle S Michelson rnmichelson@acd.l.com, mlauritzen@acd.l.com
Andrew M Mud.ryk amud.ryk@azdisabilitylaw.org, amud.ryk@cox.net
Kevin DRay Kevin.Ray@azag.gov, EducalionHealth@azag.gov
Anne CRonan aronan@aclpi.org, sbanen@aclpi.org
Winn L Sammons winn.sammons@sandersparks.com, louise.becenti@sandersparks.com., kerri.miranda@sandersparks.com
Robert J Sorce robert.sorce@azag.gov, EducationHealth@azag.gov
4:91-cv-261 Notice will be delivered by other means to:
Melinda Garrahan Mangum WalJ Stoops & Warden PLLC PO Box 10 Flagstaff, AZ 86002

https://ecf.azd.uscourts.gov/cgi-bin/Dispatch.pl?723507248382488

11 /21 / 2006

 
 Case 4:91-cv-00261-AWT Document 515 Filed 09/10/10 Page 1 of 4

1 ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST
Anne C. Ronan (006041)

2

202 E. McDowell Road, Suite 153 Phoenix, Arizona 85004

Telephone: (602) 258-8850

3 Facsimile: (602) 258-8757

4

BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim

Alison N. Barkoff

5 1101 Fifteenth Street N.W. Suite 212

Washington D.C. 20005-5002

6

Telephone: (202) 467 5730 Facsimile: (202) 233 0409

7 NATIONAL CENTER FOR YOUTH LAW

Patrick Gardner

8

405 14th Street, Suite 1500 Oakland, California 94612-2701

Telephone: (415) 543 3307
9 Facsimile: (415) 956 9024

10 ARIZONA CENTER FOR DISABILITY LAW
Edward L. Myers III (0018856) 5025 E. Washington Street, Suite 202
11 Phoenix, AZ 85034
Telephone: (602) 274-6287
12 Facsimile: (602) 274-6779
Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF ARIZONA

16 J.K., a minor by and through R.K., et al., on 17 behalf of themselves and all others
similarly situated,
18
Plaintiffs,
19

No. CIV 91-261 TUC JMR
JOINT STATUS REPORT

20

vs.

(Honorable John M. Roll)

21 WILL HUMBLE, in his official capacity as

22

Interim Director of the Arizona Department of Health Services; DR. LAURA NELSON,

23 in her official capacity as Director, Division

of Behavioral Health Services, Arizona,

24 Department of Health Services; THOMAS

25

J. BETLACH, in his official capacity as Director, Arizona Health Care Cost

26 Containment System,

27

Defendants.

28

Case 4:91-cv-00261-AWT Document 515 Filed 09/10/10 Page 2 of 4

1

In response to the Court’s Order of September 3, 2010, the parties have conferred

2 and hereby advise the Court that:

3

1. The issues raised by the parties in their respective motions currently before

4

the Court have not been resolved or rendered moot.

5

2. The parties jointly request the Court schedule a status conference to discuss

6
the scheduling of oral argument on the pending motions. If scheduled, the

7
parties request permission to appear telephonically at this status conference.
8
RESPECTFULLY SUBMITTED this 10th day of September, 2010.
9

10

/s/

11

By:

12
202
13

14

15

16

17

18

19

20

21

22

23

24

25

Phoenix,

Anne C. Ronan Anne C. Ronan Arizona Center for Law in the Public Interest East McDowell Road, Suite 153
Arizona 85004

Ira

A. Burnim

Alison N. Barkoff

Bazelon

Center for Mental Health Law

1101

Fifteenth Street N.W., Suite 212

Washington

D.C. 20005-5002

National 405 Oakland,

Patrick Gardner Center for Youth Law
14th Street, Suite 1500 CA 94612-2701

Arizona 5025 Phoenix,

Edward L. Myers Center for Disability Law
E. Washington Street, Suite 202 AZ 85034
Attorneys for Plaintiffs

26

27

28 2

Case 4:91-cv-00261-AWT Document 515 Filed 09/10/10 Page 3 of 4

1

2

3

4

5

/s/

6

By:

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

/s/ Paul E. Steen By: Paul E. Steen Ryan Rapp & Underwood, P.L.C. 3200 N. Central Ave., Suite 1600 Phoenix, Arizona 85012 Attorneys for AHCCCS Defendants
Gregory D. Honig Gregory D. Honig Arizona Attorney General’s Office 1275 W. Washington Phoenix, Arizona 85007-2926 Attorneys for ADHS Defendants
3

Case 4:91-cv-00261-AWT Document 515 Filed 09/10/10 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on September 10, 2010, I electronically transmitted the

3 attached Joint Status Report to the Clerk’s Office using the CM/ECF System for filing and

4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

5

Edward L. Myers III

emyers@azdisabilitylaw.org

6

Winn L. Sammons

winn.sammons@sandersparks.com

7

Coni R. Good
8

Coni@combslawgrooup.com

Judi@combslawgroup.com
9

10

Alison N. Barkoff

alisonb@bazelon.org

11

Ira A. Burnim

irab@bazelon.org

12

Patrick Hall Gardner

pgardner@youthlaw.org

13

Edward Myers III

emyers@azdisabilitylaw.org

14

Kevin D. Ray

Kevin.ray@azag.gov

15

Gregory Honig

Gregory.honig@azag.gov

16

Joel Rudd

joel.rudd@azag.gov; educationalhealth@azag.gov

17
Paul E. Steen

psteen@rrulaw.com

18

David Niederdeppe

Dniederdeppe@rrulaw.com

19

20

21

s/ Anne C. Ronan

22

23

24

25

26

27

28 4

 
 Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 1 of 9

1 THOMAS C. HORNE

2

ARIZONA ATTORNEY GENERAL Firm Bar No. 14000

3 Gregory D. Honig, State Bar No. 018804

4

Kevin D. Ray, State Bar No. 007485 Assistant Attorneys General

5

1275 West Washington Street Phoenix, Arizona 85007-2926

6

Telephone: (602) 542-8328 Fax: (602) 364-0700

7

E-mail: EducationHealth@azag.gov Attorneys for Defendants Humble and Nelson, ADHS

8 Paul Steen, State Bar No. 011111

9

Ryan, Rapp & Underwood, PLC 3200 N. Central Avenue, Suite 1600

10

Phoenix, Arizona 85012-2424 Telephone: (602) 280-1000

11

Fax: (602) 265-1495 E-mail: psteen@rrulaw.com

12 Attorneys for Defendant Betlach, AHCCCS

UNITED STATES DISTRICT COURT 13

DISTRICT OF ARIZONA 14

15

J.K., a minor by and through R.K., et al., on behalf of themselves and all others similarly

16 situated,

17

Plaintiffs,

18

vs.

No. CV-91-261 TUC JMR
DEFENDANTS’ MOTION TO TERMINATE THE COURT’S JURISDICTION AND TO DISMISS THE CASE

19

WILL HUMBLE, in his official capacity as Interim Director of the Arizona Department of

20

Health Services; DR. LAURA NELSON, in her official capacity as Director, Division of

21

Behavioral Health Services, Arizona Department of Health Services; THOMAS J.

22

BETLACH, in his official capacity as Director, Arizona Health Care Cost Containment System,

(Assigned to the Honorable John M. Roll)

23

Defendants.

24

1

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 2 of 9

1

Defendants respectfully request the C ourt enter an order acknowle dging the

2 termination of its jurisdiction over this matt er. Pursuant to the terms of the Settlement

3 Agreement, as amended, (“Agreement”) ente red into between the parties and approved

4 by the Court and adopted in its entirety, th e Court’s jurisdiction over this c ase ended

5 effective February 1, 2011. 1 See Agreement, Dkt. 397. Pa ragraph 81 of the Agreem ent
6 required Plaintiffs to file a motion to dismiss this acti on without prejudice before
7 February 1, 2011. Plaintiffs failed to do so, thereby necessitating this motion.
8
9 I. RELEVANT PROCEDURAL HISTORY

10

In accordance with paragra ph 59 of the Agreement, Plaintiffs began the di spute

11 resolution process on March 6, 2009 when they delivered to Defendants a written

12 statement of the issues in di spute. The Agreement require d the parties to attempt to
13 resolve these issues in a sequential dispute resolution process (collaborative negotiations, 14
mediation and then judicial involvement). See ¶¶ 56 through 70 of Agreement, Dkt. 397. 15
Accordingly, the parties par ticipated in collaborative nego tiations on A pril 2, 2009 and 16
17 then mediation in June, 2009, wi th no success. Plaintiffs then m oved forward with the

18 judicial phase by filing their Motion for Enforcement of Settlement Agreement (“Motion

19

20 1 See Agreement, Dkt. 397. See also January 1, 2007 Order (Dkt. 445), which approved a 21 stipulation between the parties to continue the term of the Agreement for a period of three
years. Specifically, the Agreem ent and the Court’s jurisdicti on over same was originally 22 set to terminate on J uly 1, 2007 for any matters not submitte d to dispute resolution, an d
by February 1, 2008 for any pending issues timely submitted to dispute resolution. The 23 January 10, 2007 Or der continued these dat es to July 1, 2010 a nd February 1, 2011, 24 respectively.

2

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 3 of 9

1 to Enforce”) almost five months later on November 13, 2009. See ¶¶ 68 and 69 of 2 Agreement, Dkt. 397. Defe ndants filed a Cross-Motion to Dis miss along with their

3 response to the Motion to Enf orce on December 31, 2009. Plaintiffs filed their Reply i n

4 Support of the Motion to Enforce on February 2, 2010, and Defendants filed their Reply

5 in Support of the Cross-Motion on February 26, 2010. On September 24, 2010, the Court
6 denied all of the pending m otions, ordered the parties to subm it new motions addressing
7 all pending issues, and set oral ar gument for Novem ber 22, 2010. See September 24,
8
9 2010 Order, Dkt. 516.

10

On October 15, 2010, Plai ntiffs re-filed their Motion to Enforce and Defendants

11 re-filed their Cross-Motion to Dismiss as well as a Motion t o Transfer V enue from

12 Tucson to Phoenix. Plaintiffs filed their Re ply in Support of the Motion to Enforce and
13 the Opposition to the Motion to Transfer on Oct ober 28, 2010. Defenda nts filed their 14
replies supporting the Cross-Motion as well as the Motion to Transfer on Novem ber 12, 15
2010. Oral argum ent was held on Novem ber 22, 2010, where Judge Roll, in pertine nt 16 17 part, again denied all of the pending motions, narrowed the issues to be determined by the
18 mediator, granted Defendants’ request that the parties again participate in m ediation, and

19 expressed his intention to assign the case to a special master if it was not resolved

20 through mediation. See November 29, 2010 Order, Dkt. 530. 21

22

23

24

3

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 4 of 9

The parties again participated in mediation on Fe bruary 14, 2011. 2 When it 1 2 became clear that an ag reement between the parties that resolved Plaintiffs’ issues was

3 not forthcoming, the parties agreed to stay mediation to allow Defendants to file one or

4 more motions to resolve certain legal issues . The parties further agreed that once the

5 motion(s) were resolved by th e Court they would advise the mediator whether or not the

6 mediation would reconvene.
7 II. LEGAL ANALYSIS
8

9

When analyzing settlement ag reements and conse nt decrees, courts treat thos e

10 documents like contracts in that they onl y (i) look to what is contained within the f our

11 corners of the document and (ii) turn to extrinsic evidence to resolve ambiguities if they

12 exist. U.S. v. Asarco Inc., 430 F.3d 972, 980 (9th Cir. 2005); Marisol v. Giuliani, 157
13 F.Supp.2d 303, 306 ( S.D.N.Y. 2001); Stewart v. O’Neill , 225 F. Supp.2d 6, 8 ( D.D.C. 14
2002); E.E.O.C. v. L ocal 40, 76 F.3d 76, 79-80 (2nd Cir. 1996). It is well settled that 15
“[I]f the agreement is clear, courts must take care not to alter or go beyond the express 16
17 terms of the agreement, or to impose obligat ions on the parties that are not m andated by

18 the unambiguous terms of the agreement itself.” Marisol, 157 F.Supp. at 306 (i nternal

19

20

2 Defendants recognize that mediation occu rred after the term ination date of the Agreement. Defendants, how ever, moved forward with mediation given t heir

21 commitment to the Court at the November 22, 2010 oral argument to attempt to resolve the disputed issues through ne gotiation and collaboration. Had the parties been

22 successful in resolving the dis puted issues through m ediation, this Motion would not be

necessary and Plaint iffs would have presumably filed a Mo tion to Dismi ss in 23 conformance with par agraph 81 of the Agreement. See Dkt. 397. H owever, given the

24

parties’ inability to reach an agreement, it is now appropriate and necessary for Defendants to file the instant Motion.

4

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 5 of 9

1 citations and quotations omitted); E.E.O.C., 76 F.3d at 79- 80. To do other wise would 2 deprive the parties of the benefits they ba rgained for when ente ring into a settlement

3 agreement. Id. at 81.

4

The enforcement of a settleme nt agreement is more than just a continuation or

5 renewal of a dism issed suit and therefore requires its own ba sis for jurisdiction.
6 Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 430 (5th Cir. 2002). “In the presence of
7 the decree’s termination clause, the district court does not have i ndeterminate power to
8
9 ensure compliance with its term s. A c ourt does not ha ve inherent power to enforce an

10 order that has expired. In this case, the court’s enforcement authority expired when the

11 decree expired.” E.E.O.C. at 80. The same is true here.

12

Consent decrees and settlement agreemen ts are not intended to operate in

13 perpetuity. J.G. v. Bd. of Educ. of the Rochester City Sch. Dist., 193 F.Supp.2d 693, 699 14
(W.D.N.Y. 2002) (c onsent decree gover ning the provision of educational services to 15
children in a statutorily and constitutionally acceptable manner in a 22 year-old case 16
17 expired by its own term s without request from any par ty for extension, which divested

18 the court of jurisdiction); see also Labor/Community Strategy Ctr. v. Los Angeles Count y

19 Metro. Transp. Auth., 564 F.3d 1115, 1123 ( 9th Cir. 2009) (federal court intervention in

20 state institutions is a temporary measure that may extend no longer than necessary to cure
21 constitutional violations). It is well settled th at any motions requesting an extension of
22 time or to enforce a s ettlement agreement must be made pr ior to the expiration of the
23
24 court’s jurisdiction. Cherry v. City Coll. of San Francisco, 2011 WL 11471, 3 (N.D. Cal.

5

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 6 of 9

1 2011). The filing a m otion to terminate jurisdiction by De fendants does not open the 2 door for the Plaintiffs to argue that jurisd iction did not expire nor does it provide a basis

3 for the Court to invoke its jurisdiction after the date of expiration. Id., at 4.

4

The relevant case law supports our position. In Labor/Community Strategy

5 Center, 564 F.3d at 1123, the Ninth Circuit Court of Appeals affirmed the district court’s
6 denial of plaintiff’s motion to extend the du ration of the court’s jurisdiction prior to
7 expiration of consent decree because de fendant substantially complied with the
8
9 settlement terms. The Court reasoned that a lthough every last wish and hope of the

10 decree was not achieved, the decree accomplishe d its essential purpose and the situation

11 improved greatly. This decision was consiste nt with the princ iple that federal court

12 intervention in state instituti ons is a temporary measure a nd may extend no longer than
13 necessary to cure constitutional violations. See also Cherry, 2011 WL 11471 (Stipulated 14
judgment provided that the court m ight approve an extension of tim e for good ca use 15
shown, however that opti on required that the motion be filed prior to expirat ion, which 16 17 was not done. As a result, the court’ s jurisdiction over the case ended); Stewart, 225
18 F.Supp.2d 6 (If the partie(s) had wanted the district court to take appropriate steps to

19 retain jurisdiction over the enforcement of the settlement agreement they could have

20 made such a request before the expiration date . No such request was tim ely made. As a
21 result, the court found that its jurisdiction had expired); Lipman v. Dye, 294 F.3d 17 (1st
22 Cir. 2002) (Plaintiffs’ motion to enforce se ttlement agreement was denied because the
23
24 court lacked jurisdiction to gran t it and the plaintiffs had faile d to move the court to take

6

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 7 of 9

1 appropriate steps to retain jurisdiction over the enforcement of the terms of the settlement 2 agreement); E.E.O.C., 76 F.3d 76 (C onsent decree expi red under its own unam biguous

3 terms); and Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994) (District Court

4 did not have ancillary jurisd iction to enforce settlement ag reement, where language o f

5 administrative closing order de monstrated intent to dismiss ac tion without retaining

6 jurisdiction and dismissal was not cond
7 agreement).
8

itioned on complian ce with settlement

9

The Agreement provides a lim ited closed-ended period of time to address issues

10 submitted to dispute resolu tion by Plaintiffs. S ee Sections IX and XIV of Agreem ent,

11 Dkt. 397. During the prior two years the parties have been continuously involved in the

12 dispute resolution process - pa rticipating in collaborative negotiations once, m ediation
13 twice, and the judicial phase twice. Couple th is with the fact that duri ng this period of 14
time the Defendants remained re sponsible for paying to Plaintiffs all of their reasonable 15
and appropriate attorneys’ fees and costs incurred in the dispute resolution process, which 16 17 are substantial. Based on the foregoing alone the Agreement should be terminated. Here,
18 however, the issue is much simpler. Th e Agreement expressly and unam biguously

19 provides that the Court’s juri sdiction over this matter termin ated effective February 1,

20 2011. Id., ¶ 80. Pl aintiffs chose not to f ile a m otion with t he Court asking t hat it
21 continue the date of termination before this date, and they cannot file such a m otion after
22 the fact. This matter must be dismissed.
23

24

7

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 8 of 9

1 III. 2

CONCLUSION Based on the foregoing, Defendants resp ectfully request the Court enter an order

3 acknowledging the termination of its jurisdiction over this case and dism issing it without

4 prejudice.

5

RESPECTFULLY SUBMITTED this 4th day of March 2011.

6

7

THOMAS C. HORNE

Attorney General 8

9

s/Gregory Honig

10

Gregory Honig, 018804

Assistant Attorney General for ADHS

11

12

13

s/Paul Steen

.

Paul Steen, 011111

14

Attorney for AHCCCS

15

16

17

18

19

20

21

22

23

24

8

Case 4:91-cv-00261-AWT Document 540 Filed 03/04/11 Page 9 of 9

1

CERTIFICATE OF SERVICE

2 I hereby certify that on March 4th, 2011, I electronically transmitted the attached

3

DEFENDANTS’ MOTION TO TERMINATE THE COURT’S

JURISDICTION AND TO DISMISS THE CASE

4 to the Clerk’s Office using the CM/ECF System for filing and transmittal of Notice of
5 Electronic Filing to the following CM/ECF registrants:

6

Paul E. Steen

psteen@rrulaw.com

7

Michelle S. Michelson mmichelson@azdisabilitylaw.org

8

Winn L. Sammons

winn.sammons@sandersparks.com

9

Tim Hogan

thogan@aclpi.ord

10

Ira A. Burnim

irab@bazelon.org

Leslie J. Cohen

lcohen@azdisabilitylaw.org

11

Patrick Hall Gardner

pgardner@youthlaw.org

12

Edward Myers

emyers@azdisabilitylaw.org

13

Anne C. Ronan

aronan@aclpi.org

14

15

16

/s/ Jeannette Herrera

17
PHX# 1670184
18

19

20

21

22

23

24

9

 
 LCEaWse I4S:91-cv-00261-AWT AND
ROCA
-LLP-
LAWYERS

Document 468

Filed 08/13/09

Page 1 of 3

Richard N. Goldsmith, Mediator
2 LEWIS AND ROCA LLP
40 North Central Avenue
3 Phoenix, Arizona 85004-5311
Telephone: (602) 262-5341
4 Facsimile: (602) 734-3839

5

6

UNITED STATES DISTRICT COURT

7
DISTRICT OF ARIZONA

8

J.K., a minor by and through R.K., et aI., 9 on behalf of themselves and all others

No. CIV 91-261 TUC JMR

10 similarly situated,

11
12
vs.
13

Plaintiffs,

14 WILL HUMBLE, in his official capacity as Interim Director of the Arizona
15 Department of Health Services; DR. 16 LAURA NELSON, in her official
capacity as Director, Division of 17 Behavioral Health Services, Arizona, 18 Department of Health Services;
ANTHONY D. RODGERS, in his 19 official capacity as Director, Arizona 20 Health Care Cost Containment System,

REPORT OF MEDIATOR (Honorable John M. Roll)

21

Defendants.

22

23

I am the mediator selected by the parties pursuant to paragraph 61 of the Settlement

24 Agreement (the "Agreement"). I was also the mediator in 2006. I have now met with

25 the lawyers representing the parties, have reviewed their confidential mediation
26
statements, and had several confidential telephone calls.
27
It is now obvious to me that a mediated settlement is not possible at this time. The
28
parties are too far apart in their positions. Each party holds its position in good faith. It

2059576_1.DOC

LEWIS Case 4:91-cv-00261-AWT Document 468 Filed 08/13/09 Page 2 of 3
ROANCD A
-LLPLAWYERS

is my independent judgment that further mediation efforts would not be productive.

2 Neither party has asked me to terminate the mediation. It is my own conclusion.

3

I find and conclude that both parties have engaged in the dispute resolution process

4 in a good faith attempt to resolve the matter without judicial involvement, all as required

5 by paragraph 57 of the Agreement.
6

7

RESPECTFULLY SUBMITTED this 13th day of August, 2009.

8

\s\ R. Goldsmith -- 003409

9

Richard N. Goldsmith, Mediator

10

11

CERTIFICATE OF SERVICE

12
I hereby certify that on August 13, 2009, I electronically transmitted the attached 13 document to the clerk of the U.S. District Court using the CMlECF system for filing and
14 transmittal of a Notice of Electronic Filing to the following parties, and the copies of the
same mailed to the parties below on June 30, 2009:
15

16 COpy of the foregoing mailed the 30th day of June, 2009, to:
17

18 Anne Ronan Arizona Center of Law
19 in the Public Interest
20 202 East McDowell, Suite 153 Phoenix, Arizona 85004
21

22 Ira Burnim Bazelon Center for Mental Health Law
23 1101 Fifteenth Street N.W., Suite 1212
24 Washington, D.C. 20005-5002

25 Gregory Honig 26 Assistant Attorney General
1275 West Washington 27 Phoenix, Arizona 85007
28 2

2059576_1.DOC

LEWIS Case 4:91-cv-00261-AWT Document 468 Filed 08/13/09 Page 3 of 3 AND
ROCA
-LLP-
LAWYERS

Logan T. Johnston 2 Johnston Law Offices
1402 E. Mescal Street 3 Phoenix, Arizona 85020
4
5 \s\ Sheila D. Marshall Sheila D. Marshall
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3

2059576_1.DOC

 
 Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 1 of 231

1 ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST
Anne C. Ronan (006041)

2

202 E. McDowell Road, Suite 153 Phoenix, Arizona 85004

Telephone: (602) 258-8850

3 Facsimile: (602) 258-8757

4

BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim

Alison N. Barkoff

5 1101 Fifteenth Street N.W. Suite 212

Washington D.C. 20005-5002

6

Telephone: (202) 467 5730 Facsimile: (202) 233 0409

7 NATIONAL CENTER FOR YOUTH LAW

Patrick Gardner

8

405 14th Street, Suite 1500 Oakland, California 94612-2701

Telephone: (415) 543 3307
9 Facsimile: (415) 956 9024

10 ARIZONA CENTER FOR DISABILITY LAW
Edward L. Myers III (0018856) 5025 E. Washington Street, Suite 202
11 Phoenix, AZ 85034
Telephone: (602) 274-6287
12 Facsimile: (602) 274-6779
Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF ARIZONA

16 J.K., a minor by and through R.K., et al., on 17 behalf of themselves and all others
similarly situated,
18
Plaintiffs,
19

20

vs.

No. CIV 91-261 TUC JMR
PLAINTIFFS’ MOTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT

21 WILL HUMBLE, in his official capacity as

22

Interim Director of the Arizona Department of Health Services; DR. LAURA NELSON,

23 in her official capacity as Director, Division

of Behavioral Health Services, Arizona,

24 Department of Health Services; THOMAS

25

J. BETLACH, in his official capacity as Director, Arizona Health Care Cost

26 Containment System,

(Honorable John M. Roll)

27

Defendants.

28

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 2 of 231

1 I. INTRODUCTION

2

Eight years ago, this Court adopted a judicially enforceable Settlement Agreement

3 to protect the right of Arizona’s Medicaid-eligible children to receive necessary mental
4 health and substance abuse services (“behavioral health services”). Settlement Agreement 5 (“Agreement”) at 1 (Agreement “legally binding and enforceable by the Court”); Order
6
June 26, 2001 (Agreement “approved and adopted in its entirety”).
7
Federal law requires States to provide Medicaid-eligible children “necessary …
8
services, treatment and other measures … to correct or ameliorate … physical and mental
9
10 illnesses and conditions.” 42 U.S.C. § 1396(d)(a)(4)(B); 1 Katie A. v. Los Angeles County, 11 481 F.3d 1150, 1154 (9th Cir. 2007). In the Settlement Agreement, the Defendants – the
12 directors of the Arizona Department of Health Services (“ADHS”), the Department’s

13 Division of Behavioral Health Services (“DBHS”), and the Arizona Health Care Cost

14 Containment System (“AHCCCS”) – agreed to meet this obligation by developing and
15 maintaining a service system that meets nationally accepted standards, which are spelled
16 out in what are known as the “J.K. Principles.” The Agreement also includes specific
17
actions Defendants must take to develop and maintain this system, including: developing
18
the array of intensive community-based services that children with serious conditions
19
need, Agreement at ¶ 23; expanding substance abuse services, id. at ¶ 52; developing
20

21
22 1 The cited statute is commonly referred to as the “EPSDT” program of the Medicaid Act. It requires the State to deliver “early and periodic screening, diagnostic, and treatment
23 services,” known as “EPSDT” services, to Medicaid-eligible children and youth under 21. 24 42 U.S.C. § 1396(d)(a)(4)(B). These services include “necessary health care, diagnostic
services, treatment and other measures . . . to correct or ameliorate … physical and mental 25 illnesses and conditions.” 42 U.S.C. § 3396d(r). States must provide these services 26 regardless of whether they are specifically covered in the State’s Medicaid plan. Id.

27

28 2

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 3 of 231

1 training program that ensures that staff have necessary knowledge and skills, id. at ¶¶ 32-

2 39; and changing the state’s quality management (“QM”) system so that it measures

3 whether class members are receiving the services required by the Agreement, id. at ¶ 55.

4

When it became clear three years ago that Defendants were not meeting their

5 obligations, the parties agreed to and the Court approved a three-year extension to July

6
2010 of the term of the Settlement Agreement. Order, January 10, 2007. With this date
7
fast approaching, and Defendants’ compliance still incomplete and inadequate, Plaintiffs
8
seek another extension of the term of the Agreement, as well as other relief needed to
9

10 protect Plaintiffs’ federal law entitlement.

11

A. Supporting Declarations

12

In support of this Motion, Plaintiffs submit ten Declarations detailing Defendants’

13 non-compliance and its tragic consequences for children and families. The declarants

14 include: two national experts who have examined Defendants’ compliance, see
15 Declaration of Knute Rotto (“Rotto Dec.”), attached as Ex. 1, and Declaration of Bruce
16 Kamradt (“Kamradt Dec.”), attached as Ex. 2; a former clinical director of a network of
17
providers serving over 8,000 class members, see Declaration of Matthew Pierce (“Pierce
18
Dec.”), attached as Ex. 3; a former director of children’s behavioral health services for the
19
Maricopa County Regional Behavioral Health Authority, see Declaration of Michael
20
21 Terkeltaub (“Terkeltaub Dec.”), attached as Ex. 4; a former deputy director of Arizona’s
22 Medicaid program, see Declaration of Linda Huff Redman (“Redman Dec.”), attached as
23 Ex. 5; an expert whom Defendants consulted concerning their quality management

24 system, see Declaration of Eric Bruns (“Bruns Dec.”), attached as Ex. 6; and parents of

25 class members, see Declaration of Krista Long (“Long Dec.”), attached as Ex. 7;

26 Declaration of Carol McDermott (“McDermott Dec.”), attached as Ex. 8; Declaration of
27

28 3

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 4 of 231

1 Donna Ifill (“Ifill Dec.”), attached as Ex. 9; Declaration of Lee Bieber (“Bieber Dec.”),

2 attached as Ex. 10.

3

As these declarations show, Defendants have failed to comply with the Agreement.

4 See, e.g., Rotto Dec. at ¶ 46 (“Arizona is not operating a children’s behavioral health
5 system that meets the needs of J.K. class members, as required by the Settlement
6
Agreement and Medicaid law”); Kamradt Dec. at ¶ 4; Pierce Dec. at ¶ 3; Terkeltaub Dec.
7
at ¶ 4. Defendants have not created the intensive community-based services that class
8
members with serious conditions require, and as a result, children are being needlessly
9
10 removed from their homes and placed in out-of-home care. See infra at Section III.B.1.

11 Defendants have not ensured that class members get the substance abuse services they

12 need; the behavioral health system fails to identify substance abuse treatment needs and

13 lacks sufficient substance abuse services. See infra at Section III.B.2. Defendants have

14 not developed the training program required by the Settlement Agreement, that is, one that
15 ensures that behavioral health staff have the knowledge and skills to provide necessary
16 services and that measures the competencies of staff. See infra at Section III.B.3. Class
17
members age 18 to 21 have been denied the benefits of the Settlement Agreement; upon
18
their 18th birthday, they are disenrolled from the children’s behavioral health system and
19
enrolled in the adult system, where they are denied medically necessary services to which
20
21 they are entitled under the Settlement Agreement and federal law. See infra at Section
22 III.B.4. Furthermore, Defendants have failed to develop a quality management system
23 that monitors compliance with the Settlement Agreement and that takes corrective action

24 when deficiencies are found. See infra at Section III.B.5.

25

The declarations also show the tragic consequences of Defendants’ noncompliance

26 for Arizona’s vulnerable children and struggling families. See, e.g., Pierce Dec. at ¶¶ 36-
27

28 4

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 5 of 231

1 56 (describing cases of four representative children); id. at ¶ 35 (“failures … occur

2 repeatedly in our system, to the great detriment of children and their families”);

3 McDermott Dec. at ¶ 3 (“ Families like mine, whose children need, but do not receive,

4 intensive services hang on by our fingernails.”); Long Dec. at ¶ 6 (“constant struggle”);

5 Bieber Dec. at ¶ 5 (“behavioral health system not helping [her daughter] get better”).

6

The story of “Brittany” is a case in point. Brittany, now 18 years old, entered

7
foster care at an early age. Although a longtime client of the behavioral health system,
8
she has never received the treatment she needs. By age 12, she had taken more than 50
9

different medications and been hospitalized on several occasions. Her foster parents were
10

11 told that intensive community-based services were not available; they felt they had no

12 choice but to place her in out-of home care. She ran away from a group home in an effort

13 to return to her foster family and was moved to a residential treatment center where she

14 stayed for the next two years. She returned home and her foster family and again

15 requested intensive community-based services, but again was told these services were not

16 available. Over the next several years, she had more than a dozen different placements.

17 When Brittany was close to turning 18, she was assigned a case manager to plan for her

18
adulthood. The clinician who evaluated whether she qualified for adult services never
19
met Brittany and refused information from the foster parents. Recently, her foster family
20
was informed that no adult services were available for Brittany. Pierce Dec. at ¶¶ 36-42.
21

22

B. Relief

23

With this Motion, Plaintiffs seek to require Defendants to develop and implement a

24 plan that ensures the commitments Defendants made in the Agreement are met and class

25 members receive the services to which they are entitled under federal law. The last eight

26 years have shown that if Defendants are to comply with the Agreement, they must have a
27

28 5

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 6 of 231

1 written plan that reflects a strong commitment, provides meaningful accountability for

2 key participants in the system, and resolves the specific deficiencies described in this

3 Motion. Moreover, Defendants must be accountable to the Court for the plan’s

4 implementation.

5

To ensure that Defendants meet their obligations, Plaintiffs respectfully move the

6
Court to:
7
• Direct Defendants to develop, and secure the Court’s approval, for a plan with
8
specific actions and deadlines for correcting the deficiencies described in this
9

10

Motion,

11

• direct Defendants to implement the plan, and

12

• extend the term of the Settlement Agreement, and the Court’s jurisdiction, for

13

the period required to implement the plan, including the resolution of any

14

disputes over implementation.

15

The parties’ Agreement provides that, when a party by motion asserts a breach of

16 the Agreement, the Court “will … as appropriate, receive evidence” and “resolve the
17 matter in a manner consistent with the purposes and goals of the Settlement Agreement.”2
18
Agreement at ¶¶ 69, 70. Plaintiffs are prepared to prove each of the factual assertions in
19
this Motion. Plaintiffs note, however, that in some instances, proof may require testimony
20

21
22 2 Under the Agreement, either Plaintiffs or Defendants may complain of a breach. Agreement at ¶ 56. “If mediation does not produce a resolution…, the party may file an
23 appropriate motion with the Court. Id. at ¶ 68. Earlier this year, Plaintiffs invoked these 24 provisions. See March 6, 2009 Letter from Plaintiffs to Defendants, attached as Ex. 11.
Mediation failed to produce a resolution. See Report of Mediator to the Court, August 25 13, 2009.
26

27

28 6

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 7 of 231

1 or information from state officials, Regional Behavioral Health Authorities (known as 2 “RBHAs”),3 networks, or providers that can be obtained only through the Court’s

3 compulsory process.

4 II. FACTUAL BACKGROUND

5

A. Pre-Settlement Litigation

6
Plaintiffs, Medicaid-eligible children with emotional and behavioral disorders,
7
filed this class action lawsuit on May 8, 1991. See Complaint, May 8, 1991. Plaintiffs
8
sought to compel Defendants to provide them medically necessary mental health and
9

10 substance abuse services (“behavioral health services”) in compliance with the Medicaid

11 Act, 42 U.S.C. § 1396d(r), et seq. See Second Amended Complaint, April 26, 1993.

12 The certified Plaintiff class includes “all persons, under the age of twenty-one, who are

13 eligible for Title XIX behavioral health services in the State of Arizona and have been

14 identified as needing behavioral health services.”4 Order at 7-8, June 24, 1993.

15

The litigation proceeded from 1991 through 1997.5 In October 1997, the litigation

16 was stayed, following the State’s declaration of an emergency in the provision of
17
children’s behavioral health services, to allow an independent expert to conduct a
18

19
20 3 RBHAs are the managed care entities with whom Defendants contract and who actually operate the system. RBHAs in turn contract with networks of providers (“networks”)
21 and/or individual provider agencies (“providers”).

22 4 “Title XIX” refers to the Medicaid Act. See infra at n. 10.

23
5 Several cross-motions for summary judgment were resolved in Plaintiffs’ favor. See

24 J.K. v. Dillenger, 836 F. Supp. 694 (D. Ariz. 1993) (finding Defendants responsible for

25

alleged failures to provide medically necessary services); Order, May 13, 1996 (finding violations of the notice and fair hearing provisions of the Medicaid Act).

26

27

28 7

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 8 of 231

1 comprehensive study. See Order Approving Parties’ Agreement and Staying Litigation,

2 October 23, 1997. In 1998, the independent expert, Dr. Ivor Groves, submitted his first

3 report, focusing on Maricopa County, which found, inter alia, that more than half of class
4 members were receiving inadequate behavioral health services and that the system’s 5 performance was not acceptable for any age group. June 1998 Report, filed with Pls’
6
Response to Defs’ Motion to Extend Stay, August 21, 2000. Dr. Groves’ reviews of
7
services in the rest of the state confirmed that behavioral services were inadequate
8
statewide, and a follow-up review of Maricopa County in April 2000 found that little had
9
10 changed in two years.6 June 2000 Report, attached to Pls’ Response to Defs’ Motion for
11 Extension of Stay, August 21, 2000. Soon thereafter, newly appointed directors of ADHS
12 and AHCCCS announced their intention to settle the case.

13

B. The Settlement Agreement

14

The J.K. Principles are the foundation of the Settlement Agreement, which was

15 signed in March 2001. Agreement at ¶ 19 (“The Principles … are the foundation of this

16 Settlement Agreement ….). The Principles both reflect and articulate a professional
17
consensus concerning the medically necessary treatment of children with behavioral
18
health disorders, including “partnering with families and children, interagency
19
collaboration, and individualized services aimed at achieving meaningful outcomes for
20
21 families and

22

23
6 After Dr. Groves filed his first report, Plaintiffs agreed to continue the stay of litigation,

24 provided that Dr. Groves would evaluate behavioral health services in the rest of the state

25

and that Defendants would work with Dr. Groves to address the deficiencies identified in his report. Order at ¶¶ 1-4, 8, 8/10/98.

26

27

28 8

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 9 of 231

1 children.” Id. at ¶ 1; 7 see also, e.g., Rotto Dec. at ¶ 18 (“the services required by the J.K.

2 Settlement Agreement are medically necessary to treat class members”); Kamradt ¶¶ 14-

3 17 (same).

4

The Principles were designed to address the deficiencies identified by Dr. Groves.

5 Individual clinicians, due to excessive caseloads and other reasons, worked in isolation

6
from the child’s family and other service providers addressing the child’s condition,
7
including the foster care and juvenile probation systems. Service plans were “cookie-
8
cutter,” with too heavy a reliance on office-based counseling. What are referred to as
9

10 “intensive” community-based services – services provided outside the office and in

11 families’ homes and other natural settings – were largely unavailable. As a result, it was

12 common that children, especially children with serious conditions, did not get better.

13

The Principles required the State to make a “fundamental shift” in the way it

14 treated children and families. See Gov. Hull Press Release, March 20, 2001, Ex. F to Pls’
15

16

17

18 7 A psychiatric expert urged that the Settlement Agreement “provides the basis for developing and implementing a children’s mental health system that provides care at a
19 level at least equivalent to national standards.” Affidavit of Dr. John Scialli at ¶ 3, May 20 29, 2001, Ex. L. to Pls’ Pre-Hearing Mem. In Support of Approval of Settlement
Agreement (hereinafter “Pls’ Pre-Hearing Mem”). The Children’s Action Alliance -- a 21 non-profit research, education, and advocacy organization -- wrote that the “J.K. 22 Principles are widely accepted principles of good practice.” Statement of the Children’s
Action Alliance at ¶ ¶ 3, 7, 6/4/01, Ex. N. to Pls’ Pre-Hearing Mem. Dr. Robert L. 23 Klaehn, a member of the American Academy of Child and Adolescent Psychiatry’s Work 24 Group on Community-Based Systems of Care, endorsed the J.K. Principles as necessary
to the provision of community-based services. Statement of Dr. Robert L. Klaehn at ¶ 5, 25 6/13/01, Ex. P. to Pls’ Pre-Hearing Mem.
26

27

28 9

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 10 of 231
1 Pre-Hearing Mem.8 The Principles committed the State to delivering treatment through
2 “child and family teams” whose membership included the responsible clinician, other 3 involved providers, other systems serving the child, the child’s family, and members of 4 the family’s natural support system. Agreement at ¶¶ 20, 22, 27, 29-31. The Principles 5 also required the State to expand services so that behavioral service plans could be
6
tailored to the individualized needs of the child. Id. at ¶¶ 23-25, 27-31. Of particular
7
importance was the development of intensive community-based services, including
8
intensive case management, direct supports, and therapeutic foster care, which are
9
10 medically necessary services for children with serious behavioral health conditions. See, 11 e.g., Pierce Dec. at ¶¶ 4-8; Rotto Dec. at ¶ 27; Katie A. v. Bonta, 433 F. Supp. 2d 1065 12 (C.D. Cal. 2006), rev’d on other grounds, Katie A. ex rel Ludin v. Los Angeles County, 13 481 F.3d 1150 (9th Cir. 2007); Rosie D. v. Romney, 410 F. Supp.2d 18 (D. Mass. 2006). 14 Without such services, children with serious conditions are unlikely to “achieve success in 15 school, live with their families, avoid delinquency, and become stable and productive 16 adults,” the outcomes sought by the Agreement, Agreement at ¶ 21.9 Id.
17
The Agreement requires Defendants to “move as quickly as is practicable to
18
develop a Title XIX behavioral health system that delivers services according to the J.K.
19
20
21
22
23 8 “If everything in this agreement is implemented, this will be a total system change.” Statement of Maria Hoffman, former executive director of the Arizona Council of Human
24 Service Providers, at ¶ 3, Ex. O. to Pls’ Pre-Hearing Mem. 25 9 See also Agreement at ¶¶ 24-25, 28.
26
27
28 10

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 11 of 231

1 Principles”10 and, “[o]nce developed, … [to] maintain the system in accordance with the

2 Principles for the term of this Agreement.” Id. Additionally, the Settlement obliged

3 Defendants to “conform all contracts, decisions, practice guidelines and policies related to
4 the delivery of Title XIX behavioral health services to be consistent with and designed to 5 achieve the Principles for class members.” Id. at ¶ 16. To this end, the Settlement
6
required Defendants, among other things, to implement a statewide training program to
7
“provide front-line staff and supervisors sufficient knowledge and skills to enable them to
8
plan and provide services consistent with the Principles,” id. at ¶ 35; “develop a plan for
9
10 the expansion of substance abuse treatment services,” id. at ¶ 52, and change “the quality
11 management and improvement system” (the system Defendants use to monitor service
12 planning and delivery) so that it “measures” whether services are being provided as

13 required by the Agreement, id. at ¶ 55.

14

Defendants’ obligations under the Agreement were to end on July 1, 2007. Id. at

15 ¶¶ 79-83. By this time, the required system of services was to have been developed. Id.

16 at ¶ 15 (“Once developed, Defendants will maintain the system in accordance with the
17
Principles for the term of this Agreement.”). Additional time was provided for resolving
18
disputes concerning implementation. Id. at ¶ 80 (through February 1, 2008). 11
19

20

21
10 “Title XIX,” as used in the Agreement, refers to the Medicaid Act. Agreement at ¶ 12. 22 The term “Title XIX behavioral health system,” as used in the Agreement, refers to the 23 behavioral health system “supervised and administered by Defendants for delivering Title
XIX behavioral health services to class members.” Id. at ¶5.
24
11 In 2006, the date was extended to July 1, 2010. Order, January 10, 2007. The date for 25 resolving disputes concerning implementation was extended to February 1, 2011. Id.
26

27

28 11

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 12 of 231

1

C. Implementation 2001-2006

2

Plaintiffs were intimately involved in the implementation of the Settlement

3 Agreement. See Pls’ Pre-Hearing Memo at 10 (referencing parties’ “joint commitment to

4 collaborative action”). Plaintiffs’ counsel participated in numerous meetings and working
5 committees with State officials, representatives of the RBHAs, private providers, and
6
parents of class members, as well as official reviews of compliance with the Settlement
7
Agreement.12 Plaintiffs regularly raised issues of concern with Defendants and met with
8
Defendants to attempt to resolve these issues.13 However, these efforts by Plaintiffs were
9
10 unavailing in securing compliance.

11

In January 2006, Plaintiffs invoked the dispute resolution procedures in the

12 Agreement. Based on an interim agreement reached in mediation, the parties tried to

13 reach agreement on a plan for securing compliance with the Agreement. A team of

14 Defendants’ staff met with Plaintiffs and family organizations and agreed on the outline of
15 a plan. See June 6, 2006 Planning Meeting, Combined Issues, attached as Ex. 12.
16 Unfortunately, Defendants rejected the plan. Ultimately, the parties agreed on a three-
17
year extension of the Settlement Agreement. See Stipulation to Amend the Settlement
18
Agreement, November 21, 2006. The Court ordered the extension on January 10, 2007.
19
Order, January 10, 2007.
20

21

22

23
12 Plaintiffs’ counsel also regularly advocated on behalf of individual class members 24 denied needed services.

25 13 In all these efforts, Plaintiffs collaborated with two major family advocacy 26 organizations.

27

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1

D. Events Following the Extension

2

Although the parties had not reached agreement on a written implementation plan,

3 Defendants began to address some of the deficiencies Plaintiffs had identified as top

4 concerns. These were that:

5

• Defendants had not created adequate performance expectations for RBHAs or

6
held RBHAs accountable for poor performance.
7
• Intensive community-based services – required by the 25-35% of class with
8
serious conditions – were in short supply, including intensive case
9

10

management, direct supports, respite, and therapeutic foster care.

11

• Substance abuse services were inadequate.

12

• There was no effective training program.

13

• Youth 18-21 were systematically denied the benefits of the Agreement. When

14

children turned 18, they were transferred to providers in the adult system unable

15

to meet their needs or, worse, denied services altogether.

16

• Defendants lacked a reliable method for determining whether RBHAs and

17
providers were delivering services according to the Agreement.
18
The parties met on a regular basis. Of significant concern during this time was a
19
finding in the third quarter of Fiscal Year 2008 that only 33% of the children in Maricopa
20

21 County were receiving appropriate services. Cf. Redman Dec. at ¶ 18. Plaintiffs wrote a

22 series of letters setting forth their views and confirming their understanding of actions that

23 Defendants planned to take. See letters from Plaintiffs to Defendants, attached as Ex. 13.

24

Ultimately, the parties were unable to resolve their differences. Defendants

25 asserted that they would be in full compliance with the Settlement Agreement by July

26 2010, and that no actions in addition to those already planned and being implemented
27

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1 were necessary for Defendants to meet their obligations. In March 2009, Plaintiffs

2 invoked the dispute resolution provisions of the Settlement Agreement. See March 6,

3 2009 Letter from Plaintiffs to Defendants, attached as Ex. 10.

4 III. ARGUMENT

5

A. This Court Has the Power to Enforce the Settlement Agreement and

6

Grant the Relief Requested

7

The Settlement Agreement, by its terms, is judicially enforceable. See Agreement

8
at 1 (“legally binding and enforceable by the Court.”). The Court approved and adopted

9
the Agreement in its entirety, maintaining jurisdiction for enforcement purposes. Order,
10

July 5, 2001. Plainly, this Court has the authority, as well as the obligation, to enforce the
11

12 Agreement. Frew v. Hawkins, 540 U.S. 431 (2004); Rufo v. Inmates of Suffolk County

13 Jail, 502 U.S. 367 (1992); cf. Spallone v.United States, 493 U.S. 265, 276 (1990)

14 (referencing courts’ inherent powers).

15

A court may use its enforcement powers even absent a finding of contempt.

16 Holland v. N.J. Dept. of Corrections, 246 F.3d 267, 283 n. 14 (3rd Cir. 2001); Berger v.

17 Heckler, 771 F.2d 1556, 1569 (2nd Cir. 1985). A district court “is invested with broad

18 equitable powers and simply should not be compelled to operate in a punishment or
19
nothing atmosphere. Alleviation rather than sanction [is] properly the goal on which the 20 district court concentrate[s] its attention.” Alexander v. Hill, 707 F.2d 780, 783 (4th Cir.
21
1983).
22
A Court may require Defendants to undertake specific corrective actions required
23
24 for compliance. See, e.g., David C. v. Leavitt, 242 F.3d 1206, 1209 (10th Cir. 2001)

25 (affirming order for defendants to implement a detailed remedial plan to remedy non-

26 compliance); Alexander v. Hill, 707 F.2d 780, 783 (4th Cir. 1983) (affirming order

27

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1 directing remedial actions to address defendants non-compliance). Moreover, where as

2 here the Defendants’ obligations are time-limited, the Court may extend the term of the

3 obligations to remedy non-compliance. See, e.g., Thompson v. U.S. Dept. of Housing and
4 Urban Dev., 404 F.3d 821, 831 (4th Cir. 2005) (extending term of consent decree to 5 address defendants’ non-compliance). This Court has already done so by agreement of
6
the parties. See Order, January 10, 2007. It may take the same action upon motion of
7
Plaintiffs when such an extension is required to secure the benefit of the bargain struck
8
with Defendants. “[T]he power to modify in appropriate circumstances is inherent in the
9
10 equity jurisdiction of the court.” Keith v. Volpe, 784 F.2d 1457, 1461 (9th Cir. 1986); 11 accord SEC v. Worthen, 98 F.3d 480, 482 (9th Cir. 1996) (“inherent power of a court
12 sitting in equity to modify its decrees prospectively to achieve equity”). A failure of

13 compliance with a judicial decree “would justify the decree’s extension.”

14 Labor/Community Strategy Center v. Los Angeles Metropolitan Transportation Authority,

15 564 F.3d 1115, 1120-21 (9th Cir. 2009).

16

B. Defendants Are Violating the Settlement Agreement and the Medicaid

17

Act

18

As demonstrated below, Defendants have not moved “as quickly as practicable” to

19
develop the system of services required by the Agreement. See e.g., Rotto Dec., at ¶ 7
20
(“Defendants have not … moved as quickly as practicable to develop a behavioral health
21
system that provides services according to the J.K. Principles.”); Kamradt Dec. at ¶ 4;
22
Pierce Dec. at ¶ 57; Terkeltaub Dec. at ¶ 27. That system is not yet developed and, given
23

24 what remains to be done, Defendants cannot finish the job by the July 2010 deadline. See,

25 e.g., Rotto Dec. at ¶ 4 (Arizona’s behavioral health system “is not operating as required by

26 the J.K. Settlement Agreement and thus is not providing the medically necessary services

27

28 15

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1 that class members require.”); id. at ¶ 45, 46 (“If the State were to develop a good

2 remedial plan and implement it with focused and sustained effort, I expect that the State

3 could address the deficiencies in its current system in three years.”); Pierce Dec. at ¶ 3;

4 Terkeltaub Dec. at ¶ 4 Kamradt Dec. at ¶¶ 42, 43; Long Dec. at ¶ 11.

5

Among other problems, Defendants have never developed a comprehensive plan to

6
implement the Agreement. See, e.g., Kamradt Dec. at ¶ 43 (Arizona lacks “the clear
7
implementation plan … necessary for a large system-reform effort….”). Nor have
8
Defendants held the key participants in the system – RBHAs, provider networks, and
9

10 provider agencies accountable for delivering services according to the Principles. See,

11 e.g., Kamradt Dec. at ¶ 29 (“The State does not have clear expectations for performance

12 and meaningful benchmarks related to the Settlement Agreement…”); Rotto Dec. at ¶ 32

13 (“There are no consequences for poor practice…”); Pierce Dec. at ¶ 29 (“The State

14 continues to distribute money to the same providers, in the same way, no matter how

15 providers have performed….”). These failures are significant causes of Defendants’ non-

16 compliance. See, e.g., Rotto Dec.at ¶ 7.

17

1. There are too Few Intensive Community Services for Children

18

with Complex Needs

19
Due to poverty, life circumstances, and other causes, a significant proportion of the

20 children in the Plaintiff class have serious conditions and hence complex needs.14
21
Defendants have estimated that number to be in the range of 25%. Based on their
22

experience nationally, Plaintiffs’ experts believe the number to be in the range of 25%-
23

24

25

14 As is common in the field of children’s mental health, Plaintiffs and their declarants use interchangeably the terms “serious conditions,” “complex needs,” and “high needs.”

26

27

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1 35%. See, e.g., Rotto Dec. at ¶ 24. These children require intensive community services

2 for their conditions to improve, especially the intensive community services known as
3 “intensive case management” and “direct supports.”15 See, e.g., Rotto Dec. at ¶ 27
4 (“essential to serving high needs children”); Pierce Dec. at ¶¶ 5, 8 (same); Kamradt ¶ 19 5 (“I am not aware of any effective children’s mental health system that does not provide
6
intensive case management and an array of intensive community-based services and
7
supports to its high needs children.”); DBHS Protocol, Child and Adolescent Service
8
Intensity Instrument (CASII) (“CASII Protocol”), at 9, available at www.azdhs.gov/bhs.
9
10 guidance.casii.pdf; DBHS Practice Protocol, Support and Rehabilitation Services for
11 Children Adolescents and Young Adults (“Direct Supports Protocol”) at 7, available at
12 www.azdhs.gov/bhs/guidance/ supportrehab.pdf. Accord Katie A. v. Bonta, 433 F. Supp.

13 2d 1065 (C.D. Cal. 2006), rev’d on other grounds, Katie A. ex rel Ludin v. Los Angeles
14 County, 481 F.3d 1150 (9th Cir. 2007); Rosie D. v. Romney, 410 F. Supp.2d 18 (D. Mass.
15 2006). Other needed services include respite care for their parents and, for those children
16 who cannot be supported in their own homes, therapeutic foster care. See, e.g., Rotto
17
Dec. at ¶ 27; Kamradt Dec. at ¶ 21; Pierce Dec. at ¶ 7 (“Home-based respite is another
18
service that is essential for meeting the needs of complex children and keeping them at
19
home or in family settings. They often need a place to go for a few days to help de-
20
21 escalate crisis situations that otherwise might lead to their removal from their home.”); id
22 at ¶ 6 (“Children with high needs who cannot be served in their own home or a regular

23

24 15 In Arizona, direct supports are sometimes referred to as “direct support services” or

25

“support and rehabilitation services,” see Direct Supports Protocol at 2. Nationally, they are part of what is often called “intensive community-based services.”

26

27

28 17

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 18 of 231

1 foster home need therapeutic foster care to avoid institutional out-of-home care.”); DBHS

2 Practice Protocol, Home Care Training to Home Care Client Services for Children (“TFC

3 Protocol”),16 at 3, available at http://azdhs.gov/bhs/guidance/hctc.pdf (“in the absence of

4 such services the child or youth would be at risk of placement into a restrictive residential

5 setting such as a hospital, psychiatric center, correctional facility, residential treatment

6
program …”). Accord Katie A. v. Bonta, 433 F. Supp. 2d 1065 (C.D. Cal. 2006), rev’d on
7
other grounds, Katie A. ex rel Ludin v. Los Angeles County, 481 F.3d 1150 (9th Cir. 2007)
8
(therapeutic foster care).
9

10

If these services are not available, effective treatment plans for these children

11 cannot be designed or implemented, and children will not improve their functioning and

12 “achieve success at school, live with their families, avoid delinquency, and become stable

13 and productive adults,” that is, they will not achieve the outcomes sought in the

14 Agreement, Agreement at ¶ 21. See, e.g., Rotto Dec. at ¶ 27; Kamradt Dec. at ¶ 19 Pierce
15 Dec. at ¶¶ 5-6, 8; cf. Direct Supports Protocol at 7; TFC Protocol at 11. Additionally,
16 without these services, children cannot be maintained “in the home or community” or in
17
the “most-integrated and home-like setting appropriate to their needs” as required by the
18
Agreement, Agreement at ¶ 25. See, e.g., Terkeltaub Dec. at ¶ 17 (“Many children are
19
still ending up in out-of-home care because there is a lack of intensive community-based
20
21 services to meet their needs.”); Rotto Dec. at ¶ 19 (“the services required by the J.K.
22 Settlement Agreement . . . prevent the over-reliance on restrictive placements”); Kamradt
23 Dec. at ¶¶ 15, 21; Direct Supports Protocol at 7 (direct supports “increase [the] number of

24

25 16 In Arizona, the official Medicaid title for the service of therapeutic foster care was 26 recently changed to “Home Care Training to Home Care Client Services for Children.”

27

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Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 19 of 231

1 children …living successfully at home with their families or in the community”); TFC

2 Protocol at 12 (TFC allows “home-based” and “community-based” care).

3

The need for these services was understood when the Agreement was entered into

4 and implementation began. However, Defendants have failed to develop them. Before the
5 2006 dispute resolution process, intensive case management, direct supports, and
6
therapeutic foster care were essentially unavailable outside Maricopa County. In
7
Maricopa County, intensive case management that had been developed in early
8
implementation efforts had withered away, and direct supports were unavailable to most
9
10 children who required them. After the 2006 dispute resolution, Defendants began to

11 address these problems. However, Defendants failed to move with dispatch. See, e.g.,

12 Kamradt Dec. at ¶ 20-22; Rotto Dec. at ¶ 27. The result is that intensive case

13 management, direct supports, and respite continue to be in short supply.17 Rotto Dec. at ¶

14 27 (“not enough intensive services for high needs children, and this lack of services
15 continues to stymie the ability of child and family teams to develop and implement 16 effective plans”); Pierce Dec. at ¶ 4; Terkeltaub Dec. at ¶ 17; Kamradt Dec. at ¶ 21.
17
Long Dec. at ¶¶ 12-13; Ifill Dec. at ¶¶ 5-6; McDermott Dec. at ¶ 12, 14-15; Bieber Dec. at
18

19

20

21

22

23

24 17 In addition, there are not “enough quality services, including psychiatric and clinical

25

services, for children with less complex needs, with the result that many needlessly become children with high needs.” Pierce Dec. at ¶ 4.

26

27

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1 ¶ 5.18 There is little therapeutic foster care outside Maricopa County, and much of the

2 therapeutic foster care in Maricopa County is of poor quality, Terkeltaub Dec. at ¶ 18

3 (“quality of TFC is uneven and services are often not delivered consistent with the J.K.

4 Principles”); Pierce Dec. at ¶ 6 (TFC providers lack ability to support children with high

5 needs and manage crisis situations); Ifill Dec. at ¶ 8. This is the case despite Defendants’

6
commitment that “[c]hildren have access to a comprehensive array of behavioral health
7
services” sufficient to ensure needed treatment and that services be adapted or created
8
when they are needed but not available.” Agreement at ¶ 23.
9

10

It was not until 2007 that Defendants set as a goal that every child with complex

11 needs would have an intensive case manager. It took another year for Defendants to settle

12 on a process for identifying these children and a plan for expanding intensive case

13 management. Defendants have not yet met their goal. Defendants have no plan for

14 developing the requisite amount of direct supports, respite, or therapeutic foster care.

15

With too few intensive community services for children with complex needs,

16 Defendants continue to needlessly institutionalize children, serving far too many in
17

18

19

20
18 See McDermott Dec. at ¶ 12 (“Although my [child and family team] agreed that other 21 direct supports … were needed, and those supports were included in my treatment plan…, 22 I was not referred for such services. The case manager could not find a service provider.
Instead…we were given catalogues identifying parks and recreation programs in the area 23 and told to try different sports. My grandson tried 5 different sports, but, without needed 24 support from the behavioral health system, he failed at each. In fact, the situation became
worse. My grandson was disliked by other kids and parents, was excluded and isolated, 25 and was even bullied.”)
26

27

28 20

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 21 of 231

1 expensive and ineffective residential centers.19 Rotto Dec. at ¶ 28 (State “has not made

2 sufficient efforts to keep high needs children from going into out-of-home care”);

3 Terkeltaub Dec. at ¶ 17 (“The State has never made a serious commitment to move money

4 from congregate care to intensive community based services.”); Ifill Dec. at ¶¶ 5-6.
5 (“They did not … provide intensive supports. … It was recommended that we place [my
6
stepson] at Canyon State Academy, a residential school. Because we cannot afford it,
7
Cenpatico suggested that we terminate our parental rights and turn our son over to the
8
state so that they can send him to Canyon State.”); Bieber Dec. at ¶ 5 (Daughter was not
9
10 receiving “adequate services for a high needs child” and was “languishing in group

11 homes”).

12

Although a stated goal of the Agreement is to avoid needless institutionalization,

13 Agreement at ¶¶ 21, 25, the State consistently spends too much money on ineffective

14 institutional care. See, e.g., Terkeltaub Dec. at ¶ 15 (“State still spends an inordinate
15 percentage of its children's mental health budget on these congregate placements”). In
16 addition to the harm done children and their families, this has impeded the behavioral
17
health system’s ability to make necessary financial investments in intensive community
18
services.
19

20

21 19 “Currently, the State still spends more than $20 million dollars on out-of-home placements. The State could easily set a goal to reduce the number of children in out-of-

22 home placements or to reduce their lengths of stay and reallocate the savings to an

23 expansion of needed community based services.” Rotto Dec. at ¶ 28. To do so, the State must address “the financial incentives that lead to many children needlessly ending up in

24 congregate care: that providers are not responsible for congregate care costs, so they have

25

no real financial incentive to serve children with complex needs in the community.” Terkletaub Dec. at ¶ 17.

26

27

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1

2. Substance Abuse Services are Inadequate

2

Substance abuse services in Arizona have long been inadequate. The Agreement

3 required that, early on, Defendants “develop a plan for the expansion of substance abuse

4 services.” Agreement at ¶52; see also id. at ¶ 23 (“comprehensive array of behavioral

5 health services”).

6

Defendants have convened committees to conduct research and identify best

7
practices. But little has actually been done to ensure that children get the substance abuse
8
services they need. Substance abuse problems are not identified, there are not enough
9

substance abuse services, and the services that do exist are often inadequate and fail to
10

11 comply with the J.K. Principles. See, e.g., Rotto Dec. at ¶¶ 41-43 (“The substance abuse

12 issues of class members are often not identified, and substance abuse services are

13 inadequate to meet children’s needs when issues are identified…. The substance abuse

14 programs that exist are full and have waiting lists, and there are very few aftercare

15 programs. … Also, many of the substance abuse services that exist are not sound.…”);

16 Pierce Dec. at ¶¶ 18-19 (“The number of children in the system with substance abuse

17 issues is high, but very few providers have received training or technical assistance in how
18
to identify and address those needs. … [T]here is rarely an appropriate response when
19
children have significant substance abuse needs. … There are very few substance abuse
20
services available to children, and virtually no community-based programs focused on
21
22 substance abuse.”); Kamradt Dec. at ¶¶39-41; Terkeltaub Dec. at ¶ 22.

23

3. Training is Inadequate

24

The Agreement reflects the importance the parties placed on having a sound

25 training program in order to secure compliance. It includes detailed requirements for the

26 training program that Defendants must design and implement statewide. Agreement ¶¶
27

28 22

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1 32-39. The training program must be designed to provide front-line staff … and

2 supervisors sufficient knowledge and skills to enable them to plan and provide services

3 consistent with the Principles.” Id. at ¶ 35. It must have a “sufficient number of qualified

4 trainers,” id. at ¶ 39, and a “hands-on” component in which “trainers … coach and mentor

5 front-line staff and supervisors in effective techniques and approaches,” id. at ¶ 36.

6
Moreover, Defendants are required to have “[t]ools to evaluate the ongoing effectiveness
7
of the training program” and a “methodology for measuring core-competencies of front-
8
line staff.” Id. at ¶ 38. Defendants’ training program meets none of these standards.
9

10

There are too few qualified trainers, inadequate hands-on training opportunities,

11 and there is no methodology for evaluating either the effectiveness of training or the

12 competencies of staff. See, e.g., Rotto Dec. at ¶¶ 34-37 (“Arizona has not developed a

13 training system that ensures that behavioral health staff practice according to the J.K.

14 Principles. … [M]ost of the system’s training efforts have focused on classroom training
15 instead of the hands-on coaching and mentoring that is necessary for good practice. …
16 [W]hile there has been extensive training on the J.K. Principles themselves, there has been
17
inadequate training for staff on developing the skills necessary to deliver services
18
according to the Principles, as required by the Settlement Agreement. Moreover, the State
19
has failed to develop measures to assess the effectiveness of training. ”); Pierce Dec. at ¶¶
20
21 30-32 (“The State has spent a lot of time and money on training but the training has not
22 been effective. Most of the training has been in the classroom and focused on values and
23 a theoretical orientation to the system. Practitioners often leave these trainings excited but

24 they are not subsequently given the hands-on coaching and mentoring they need to learn

25 necessary skills. There has not been enough training for supervisors and agency

26

27

28 23

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 24 of 231

1 leadership, which is essential to ensuring that front-line practitioners deliver services as 2 required by the Principles.”); Terkeltaub Dec. at ¶¶ 23-25; Kamradt Dec. at ¶¶ 31-35 .20

3

Given the central role of training, it is not surprising that Defendants have been

4 unable to come into compliance with the Agreement.

5

4. Youth Aged 18 to 21 Have Been Denied the Benefits of the

6

Agreement

7

Youth aged 18 to 21 are class members, entitled to needed services under both the

8 Agreement and the EPSDT program of Medicaid.21 Defendants have estimated that there

9
are more than 6,000 class members in this age group. Until recently, Defendants largely
10

ignored their obligations to these class members. The result is that these youth are very
11

12 poorly served by Defendants.

13

In most instances, when a youth turns 18, the youth is dismissed, or “disenrolled,”

14 from the children’s behavioral health system and, if the youth wants to continue to receive

15 mental health or substance abuse services, he or she must enroll in the adult behavioral

16 health system. If the youth has a well-functioning child and family team supervising and
17 planning his care, that team is disbanded. If the youth has been receiving intensive 18 services, such as direct supports or therapeutic foster care, from the children’s system,
19
those services are typically discontinued. See, e.g., Rotto Dec. at ¶ 38 (“When class
20

21

22 20 The training program is also “hampered by the lack of a working QM [quality 23 management] system on which they can rely for data regarding performance.” Terkletaub
Dec. at ¶ 25.
24
21 See supra at note 1. A youth exits the plaintiff class when he or she reaches the age of 25 21. The parties have consistently referred to the older youth in the plaintiff class as “aged 26 18 to 21.” For this reason, Plaintiffs use the term here.

27

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Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 25 of 231

1 members turn 18, they are being disenrolled from the children’s mental health system. As

2 a result, they lose their child and family teams and whatever intensive community-based

3 services and supports they may be receiving from children’s providers. Moreover, when

4 the youth reaches out to the adult system, he or she is likely to find that system ill-

5 equipped to meet his needs.); Terkeltaub Dec. at ¶ 26 (“In my experience, serving 18 to

6
21 year olds has never been a priority or focus for the State. When class members enter
7
the adult system, they are served badly. … [T]hey are denied needed services by the
8
adult system.”); Long Dec. at ¶ 14.
9

10

Youth must be determined by the adult system to be “seriously mentally ill” (SMI)

11 in order to get access to meaningful services from the adult system. See, e.g., Rotto Dec.

12 at ¶ 17 (those not found SMI “get few if any of the services they require”); Pierce Dec. at

13 ¶ 15 (those not SMI “get little to no services from the adult system”); Long Dec. at ¶ 14;

14 Bieber Dec. at ¶¶ 9-10. However, a substantial number of class members do not obtain
15 SMI status. Pierce Dec. at ¶ 15 (“The majority of the children in the J.K. class do not
16 meet the eligibility criteria for ‘seriously mentally ill’ in the adult system.”). Even youth
17
with serious conditions may be denied an “SMI” determination. See id. at ¶ 40-42.
18
Hence, a large number of class members are denied needed services. See, e.g., Rotto Dec.
19
at ¶ 17; Pierce Dec. at ¶ 15; Terkeltaub Dec. at ¶ 26 (describing situation of foster children
20
21 not deemed SMI). For these class members, reaching the age of majority is tantamount to
22 losing an entitlement to services, despite the contrary mandate in the Settlement
23 Agreement and under federal law. Furthermore, even if a youth obtains an SMI

24 determination, he or she may not receive needed services. Given the focus and history of

25 the adult system, it lacks many of the services required by transition age youth. See, e.g.,

26 Rotto Dec. at ¶ 17 (“The 18 year olds who are determined to be “seriously mentally ill”
27

28 25

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 26 of 231

1 are enrolled in the adult system but cannot access many of the services they need.”);

2 Pierce Dec. at ¶ 15 (“The children who are determined to be SMI get some services from

3 the adult system, but these children are routinely denied services required by the J.K.

4 Principles.”).

5

In 2006, Defendants developed policy guidance (“Transition to Adulthood

6
Protocol”) to address youth transitioning to the adult system. More recently, Defendants
7
have initiated some pilot projects to address the problems described above. However,
8
these pilots have as of yet had only a small impact. Overall, Defendants have made little
9

10 progress overall in ensuring that youth aged 18 to 21 are served according to the

11 Principles. See, e.g., Rotto Dec. at ¶ 40 (the State has made “little progress” in serving

12 18-21 year olds); Kamradt Dec. at ¶ 38 (“Children age 18 to 21 continue to be denied

13 medically necessary services.”); Pierce Dec. at ¶ 17 (State’s “policy document is good,

14 but the State has done little to ensure that the policy is followed and, for the most part, it is

15 not being followed ….”).

16

5. Defendants Lack a System for Determining Whether Children are

17

Being Served According to the Settlement Agreement

18

Paragraph 55 of the Agreement requires changes to Defendants’ “quality

19
management and improvement system.” Agreement at ¶ 55. Far from being a technical

20
requirement, this provision goes to the heart of Defendants’ responsibilities. The job of a
21
“quality management and improvement system” (“QM system”) is to inform leaders how
22

well a behavioral health the system is functioning. See, e.g., Redman Dec. at ¶ 9; Bruns
23

24 Dec. at ¶ 8; Rotto Dec. at ¶ 30. Information from the QM system is used to correct

25 deficiencies that may be found. Id. A sound QM system is essential to the system’s

26 developing and maintaining the capacity to meet its clients’ needs. See, e.g., Redman

27

28 26

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 27 of 231

1 Dec. at ¶ 9 (“A functioning QM system is essential for ensuring that Medicaid-eligible

2 children receive medically necessary behavioral health services.”); Rotto Dec. at ¶ 30

3 (“An effective quality management system is essential to a children’s mental health

4 system. A QM system must be able to identify whether good practice and outcomes are

5 being achieved and to collect and analyze data to identify problems and areas of needed

6
improvement. … Successful communities establish their QM systems early in their
7
implementation process and use information from their QM system to drive their
8
decision-making.”).22
9

10

The Agreement requires Defendants to “change their quality management and

11 improvement system so that it measures whether services to class members are consistent

12 with and designed to achieve the Principles.” Agreement at ¶ 55. The purpose,

13 understood by all parties, is to ensure that Defendants’ QM system generates the

14 information that Defendants need to monitor compliance with the Agreement and to take
15 corrective action when required. To ensure that Defendants have rich information, the 16 Agreement requires that Defendants conduct “an in depth case review of a sample of
17
individual children’s cases that includes interviews of relevant individuals in the child’s
18

19
22 “To work effectively, a QM system must identify measurements that reflect desired

20 program outcomes and goals. It then must collect and analyze data to identify where

21 established program outcomes and goals are being met and where there are areas of needed improvement. Finally, it must ensure that identified problems are addressed and

22 that improvements are sustained over time.” Redman Dec. at ¶ 9. “A QM system must be

23 able to identify whether good practice and outcomes are being achieved and to collect and analyze data to identify problems and areas of needed improvement. Information from

24 the QM system must be used to make informed decisions, including to incentivize good

25

practice and consequence poor practice.” Rotto Dec. at ¶ 30; accord Terkeltaub Dec. at ¶ 6.

26

27

28 27

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 28 of 231

1 life,” id., a process that the independent expert Dr. Groves used and on which he had

2 trained stakeholders in the State.

3

Defendants have not complied with Paragraph 55 of the Agreement. See, e.g.,

4 Redman Dec. at ¶ 7 (“[T]there are significant deficiencies in DBHS’ QM system,
5 including in monitoring and measuring implementation of the J.K. Settlement Agreement.
6
DBHS’ lack of leadership, lack of staff with QM expertise, and lack of a culture focused
7
on improvement are serious weaknesses in its QM system.”);23 Terkeltaub Dec. at ¶ 5
8
(“the State’s QM system is one of the biggest failures in its implementation of the
9
10 Settlement Agreement”); Kamradt Dec. at ¶ 27 (“Arizona has not implemented key

11 components of an effective QM system.”). Defendants did not even begin to turn their

12 attention to making changes to their QM system until after the 2006 dispute resolution

13 process.

14

In 2007, Defendants added to their QM system a review process known as the

15 Wraparound Fidelity Index (“WFI”). Plaintiffs, family organizations, and many in the

16 provider community voiced concerns about the WFI, including questioning whether it
17 measured service delivery according to the Principles.24 The Maricopa County RBHA
18

19
23 Dr. Redman notes that “DBHS has not prioritized or assured the reliability of measures 20 it claims evaluate compliance with the Settlement Agreement. …DBHS has not used the 21 data it collects to improve practice. …DBHS is unable to examine data trends over time
to identify problems because it has repeatedly changed the measures it collects, the 22 intervals for which it reports the measures, and the QM tools it employs.” Redman Dec. at 23 ¶ 7.
24 24 The WFI lacks measures of, among other things, whether services are designed and implemented to achieve desired outcomes, Agreement at ¶ 21, whether children have
25 access to a comprehensive array of services, id. at ¶ 23, and whether services are provided 26 in the most integrated setting, id at. ¶ 25.

27

28 28

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 29 of 231
1 had developed its own process for implementing Paragraph 55, known as the “Maricopa
2 County review process.” Unlike the WFI, it was specifically designed to focus on service 3 delivery according to the J.K. Principles, it included mental health professionals in the 4 review process, and it included an in-depth review of cases. See Terkeltaub Dec. at ¶ 8; 5 Pierce Dec. at ¶ 24. Plaintiffs and many stakeholders urged Defendants to adopt a review
6
process similar to the Maricopa County process instead of the WFI; however, Defendants
7
rejected this advice. Terkeltaub Dec. at ¶ 10; Pierce Dec. at ¶ 25. Disturbingly, there is
8
significant evidence that Defendants did so specifically to avoid meaningful reviews of
9
10 their performance in implementing the Agreement. See Terkletaub Dec. at ¶ 10 (“What 11 became clear to me at that time is that leadership in the State was not committed to a 12 meaningful review process. At one point, I was specifically told by the State to stop
13 developing and implementing the Maricopa County practice review. I understand that 14 soon after I had left my job as Director of Children’s Behavioral Health Services at [the 15 Maricopa County RBHA], a wide range of stakeholders, including family organizations, 16 Plaintiffs’ counsel, and providers, tried to encourage the State to adopt the Maricopa
17
County practice review statewide. Not only did the State refuse to expand this review
18
practice statewide, but it stopped the review process in Maricopa County.”); cf. Bruns
19
Dec. at ¶ 8 (“The WFI is not designed to measure the adequacy of the behavioral health
20
21 services in a children’s behavioral health system or outcomes for children receiving those 22 services.”); Pierce Dec. at ¶ 25 (WFI does not measure “whether children’s needs are 23 being adequately identified and met. Providers who went through the ‘ritual’ of the child 24 and family team process but who nonetheless failed to deliver needed services could do
25 well on the WFI.”).
26
27
28 29

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 30 of 231

1

The reviews using the WFI were poorly implemented and, hence, there was little

2 confidence in the results. See Pierce Dec. at ¶¶ 25-27. To the extent the reviews

3 generated reliable information, the information was not used for its intended purpose,

4 namely, to identify and correct system deficiencies. Id. Moreover, Defendants did not
5 apply the WFI to the class as a whole. Instead, the WFI reviews were limited to “high
6
needs” children. As a result, Defendants lacked a QM process for determining whether
7
the approximately two-thirds of class members identified by Defendants as having
8
“moderate” or “low” needs were receiving services according to the Principles.25
9
10 Recently, the Defendants announced they were abandoning the WFI. Their new review

11 process is not yet being implemented.

12

Defendants’ failure to implement the QM process required by Paragraph 55 has

13 severely limited their ability to monitor and ensure compliance with the Agreement. See,

14 e.g., Rotto Dec. at ¶ 7 (lack of effective QM process has contributed to “Arizona’s
15 failures”); Kamradt Dec. at ¶ 27 (“The State … does not appear to have an adequate
16 understanding of the outcomes being achieved or whether services are being delivered
17
according to the J.K. Principles.”); Terkeltaub Dec. at ¶ 5 (“[T]he State’s QM system … is
18
a major barrier to its ability to provide children with the services they need for their
19
mental health conditions to improve.”). Defendants lack reliable data on whether children
20
21 are being served according to the Principles, as well as the rich information that in-depth
22 reviews would provide on root causes of deficiencies in the system. Id.

23

24

25 25 Moreover, it is uncertain whether Defendants’ QM system can reliably distinguish 26 between children with “high needs” and those with lower needs.

27

28 30

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1

Defendants themselves appear to recognize these deficiencies. They have never

2 used QM data to hold RBHAs, provider networks, or provider agencies accountable for

3 their performance in serving children according to the Principles. See Pierce Dec. at ¶ 29;
4 Terkeltaub Dec. at ¶ 13. It is unlikely that the deficiencies described in this motion will be 5 corrected without Defendants using QM data to promote improved performance and to
6
establish accountability when expectations are not met. See, e.g., Kamradt Dec. at ¶ 44
7
(To remedy the deficiencies, State must “create accountability, including by using its QM
8
system to drive changes”); Rotto Dec. at ¶ 7 (State must address “lack of accountability
9
10 and lack of data decision-making” to remedy the failures in its implementation of the
11 Agreement). Terkeltaub Dec. at ¶ 5 (“State’s QM system is … a major barrier…”)

12

C. This Court Should Order Defendants to Correct Their Non-

13

Compliance and Extend the Term of the Settlement Agreement

14

This Court has broad discretion to fashion a remedy for Defendants’ non-

15 compliance, including ordering specific remedial steps and extending the term of the

16 Agreement. See, e.g., Horne v. Flores, 129 S. Ct. 2579, 2594 (2009) (“It goes without

17 saying that federal courts must vigilantly enforce federal law and must not hesitate in

18 awarding necessary relief.”). “Deference to the district court’s use of discretion is

19
heightened in a case, like this one, when “complex institutional reform” is at issue. Jeff D.

20 v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 2004); accord Labor/Community Strategy
21
Center, 564 F.3d at 1121.
22

Plaintiffs hereby request that the Court:
23

24

• Direct Defendants to develop, and secure the Court’s approval, for a plan with

25

specific actions and deadlines for correcting the deficiencies described in this

26

motion,

27

28 31

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 32 of 231

1

• direct Defendants to implement the plan, and

2

• extend the term of the Settlement Agreement, and the Court’s jurisdiction, for

3

the period required to implement the plan, including the resolution of any

4

disputes over implementation.

5

Plaintiffs’ requested remedy is carefully tailored to bring Defendants into

6
compliance. See Labor/Community Strategy Center, 564 F.3d at 1120. Moreover, it
7
gives Defendants broad latitude in fashioning a plan, so long as the plan is reasonably
8
calculated to secure compliance. It extends the Settlement Agreement only so long as is
9

10 required to secure class members the services to which they are entitled under the

11 Agreement and federal law.

12

This Court has ample power to require and direct Defendants to implement a

13 remedial pan. See David C., 242 F.3d at 1209 (requiring defendants to implement a

14 detailed remedial plan to correct non-compliance with a settlement agreement);
15 Alexander, 707 F.2d at 783 (imposing additional obligations on defendants to secure
16 compliance with judicial decree). Moreover, extending the Settlement Agreement is well
17
within the Court’s power. Such an extension is “not itself an imposition of additional,
18
material obligations on [the state],” but rather a device “to allow … [the state] to fulfill the
19
very obligations it voluntarily undertook when it entered into the Agreement.” David C.,
20
21 242 F.3d at 1211-12; see also id. at 1213 (“it would defy logic for [plaintiffs] to agree to
22 include the four-year Termination Provision in the Agreement if they actually foresaw
23 that [Defendants] would not be in substantial compliance with the terms of the Agreement

24 at the end of the four-year period”); Thompson, 404 F.3d at 832 (extension of term of

25 consent decree was “necessary to approximate the positions the parties would have

26 occupied had the Defendants lived up to their obligations); id. at 828 (“If the parties had
27

28 32

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 33 of 231

1 actually anticipated that the Defendants would be so far behind on their obligations at this

2 stage in the proceedings, the Consent Decree would never have been executed.”)

3

Plaintiffs respectfully submit that the Court should exercise its broad powers to

4 ensure that Defendants live up to the commitments they made in the Settlement

5 Agreement and to their commitments under federal law.

6
IV.
7
8

CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant their

Motion for Enforcement of the Settlement Agreement and order the relief requested
9

10 herein. RESPECTFULLY SUBMITTED this 13th day of November, 2009.
11

12

13

Anne

14

202

15

Phoenix,

s/Anne C. Ronan C. Ronan
Arizona Center for Law in the Public Interest East McDowell Road, Suite 153 Arizona 85004

16

Ira

A. Burnim

17

Alison N. Barkoff

Bazelon

Center for Mental Health Law

18

1101

Fifteenth Street N.W., Suite 212

Washington

D.C. 20005-5002

19

20

Patrick Gardner

National

Center for Youth Law

21

405

14th Street, Suite 1500

22

Oakland,

CA 94612-2701

Edward L. Myers

23

Arizona

Center for Disability Law

24

5025

E. Washington Street, Suite 202

Phoenix,

AZ 85034

25

26

Attorneys for Plaintiffs

27

28 33

Case 4:91-cv-00261-AWT Document 491 Filed 12/02/09 Page 34 of 231

1

CERTIFICATE OF SERVICE

2

I hereby certify that on November 13, 2009, I electronically transmitted the

3 attached Plaintiffs’ Motion for Enforcement of Settlement Agreement to the Clerk’s

4 Office using the CM/ECF System for filing and transmittal of a Notice of Electronic

5 Filing to the following CM/ECF registrants:

6

Logan T. Johnston

ltjohnston@johnstonlawoffices.net

7

Edward L. Myers III

emyers@azdisabilitylaw.org

8

Winn L. Sammons

winn.sammons@sandersparks.com

9

10

Coni R. Good

Coni@combslawgrooup.com

11

Judi@combslawgroup.com

12

Alison N. Barkoff

alisonb@bazelon.org

13

Ira A. Burnim

irab@bazelon.org

14

Patrick Hall Gardner

pgardner@youthlaw.org

15

Edward Myers III

emyers@azdisabilitylaw.org

16

Kevin D. Ray

17
Gregory Honig

18
Joel Rudd
19

Kevin.ray@azag.gov Gregory.honig@azag.gov joel.rudd@azag.gov; educationalhealth@azag.gov

20

21

s/ Anne C. Ronan

22

23

24

25

26

27

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 Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 1 of 128

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF ARIZONA

3

4 J.K., a minor by and

)

through R.K., et al,

)

5

)

Plaintiff, )

6

)

vs.

) CIV-91-261-TUC-JMR

7

)

CATHERINE EDEN,

)

8 LESLIE SCHWALBE ,

)

PHYLLIS BIEDESS,

)

9

)

Defendants. ) Tucson, Arizona

10 ______________________________) June 26, 2001

11

12 TRANSCRIPT OF PROCEEDINGS
13 BEFORE HONORABLE JOHN M. ROLL
14

15 On Behalf of the Plaintiff: 16 17

MR. IRA BURMIN Attorney at Law
MS. ANNE C. RONAN Attorney at Law

18 On Behalf of the Defendant:
19

MR. ROBERT SOURCE Attorney at Law

20

MR. LOGAN JOHNSTON

Attorney at Law

21

22 Court Reporter: 23 24

MS. CHRIS CALLES Official Court Reporter U.S. District Court 405 W. Congress Tucson, AZ 85701

25

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 2 of 228

1

P R O C E E D I N G S

2

THE CLERK: In civil matter 91-261, John Doe versus

3 Symington, on for court hearing.

4

Counsel, please state your appearance for the

5 court.

6

MR. BURMIN: Your Honor, I am Ira Burmin for the

7 plaintiffs.

8

MS. RONAN: I am Anne Ronan with the Arizona Center

9 for Disability Law for the plaintiffs.

10

MR. SOURCE: Robert Source, Assistant Attorney

11 General, for the Arizona Department of Health Services.

12

MS. JOHNSTON: Logan Johnston for the defendant,

13 Phyllis Biedess.

14

THE COURT: Good morning.

15

This is the date and time set for the fairness

16 hearing in connection with this matter.

17

Are the parties ready to proceed?

18

MR. BURMIN: Yes, we are, Your Honor.

19

MR. SOURCE: Yes, Your Honor.

20

THE COURT: Counsel, perhaps the first thing that I

21 should mention, the first order of business is to indicate

22 efforts that were taken by the parties to publicize the

23 proposed settlement in this case as well as the hearing in

24 this matter.

25

In addition to publication notice, I believe in the

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 3 of 328

1 Arizona Republic and in the Arizona Daily Star, the

2 primary -- for the record, the primary Phoenix and Tucson

3 newspapers, but the Arizona Republic has a statewide

4 distribution -- in addition to that, there were forums that

5 were conducted publicizing this particular matter.

6

I understand that the Arizona Center for Disability

7 Law notified individuals, parents who had been involved in

8 these types of claims or seeking treatment in connection

9 with children, to advise them of this proposed settlement

10 and what was taking place, and also there were notices that

11 were sent to various agencies and various individuals

12 involved in this particular area, all to publicize notice of

13 the settlement.

14

There also has been some substantial publicity

15 connected with it.

16

In the materials that the plaintiffs submitted,

17 there were news articles in the Arizona Republic describing

18 this particular lawsuit and also discussions concerning the

19 settlement, and as far as amongst professionals the American

20 Psychiatric Association newsletter, which was also part of

21 the materials that were submitted by plaintiffs, in the

22 pleading that was styled plaintiff's pre-hearing memorandum,

23 urging approval of the parties' settlement agreement of

24 March 30th, 2001.

25

In that newsletter, the proposed settlement was

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 4 of 428

1 described, and as a result of that there have been a number

2 of individuals who have either offered comments at the

3 hearings that were conducted -- the public forum, actually,

4 that were conducted in connection with this, as well as

5 letters from various organization. And most recently --

6 either yesterday or this morning -- I received

7 correspondence from the American Academy of Child and

8 Adolescent Psychiatrist concerning the proposed settlement.

9 So there has been extensive publicity surrounding the

10 proposed settlement as well as feedback concerning that.

11

And really, in all candor, as far the feedback, the

12 only negative feedback that I have detected has been

13 concerns regarding funding and implementation. The idea of

14 the settlement and what the settlement seeks to accomplish

15 and the principals -- the twelve principals that will guide

16 Title 19 here in the district of Arizona -- all were greeted

17 with approval. Those were the individuals or groups that

18 expressed reservations focused on that, and also a possible

19 change in administration and, therefore, a different view

20 point at a later time. But, again, this is just a thumbnail

21 summary of what has been a very extensive and very complex

22 case.

23

Does any counsel wish to add anything concerning

24 what I have indicated regarding the notice procedure in this

25 case?

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 5 of 528

1

MR. BURMIN: No, Your Honor.

2

MR. SOURCE: No, Your Honor.

3

THE COURT: Let me invite counsel at this time to

4 be heard, and begin with plaintiff's counsel.

5

Counsel.

6

Now as I indicated, I have read the pre-hearing

7 memorandum that you submitted and reviewed the attachments

8 to that memorandum, so I have -- I have considered that and

9 that is part of the record in this fairness hearing.

10

MR. BURMIN: Thank you, Your Honor, and we intend

11 to rely on the memoranda.

12

Mostly what I want to do is make a few

13 introductions, and be available to the court, in case the

14 court has any questions.

15

Let me make those introductions first.

16

We have in the courtroom the mother of named

17 plaintiff, JK Regina Koch-Mart, who is also commented on the

18 settlement, and her comments are attached as a document.

19

THE COURT: And JK is now 25 I think I read in her

20 comments.

21

MR. BURMIN: That's correct, and we certainly

22 welcome her.

23

Dena Epstein, who is another lawyer in this case,

24 not at counsel table is here with us; Patrick Gardner, a

25 lawyer at the National Center for Youth Law in San

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 6 of 628

1 Francisco, who has been working on this case; and Leslie

2 Cohen from the Arizona Center for Disability Law, who I

3 think was the original counsel in this case many years ago

4 here in Tucson; and Joe McGarry, who is with Lewis and Roca,

5 and has joined the plaintiff team some years ago and has

6 been of great assistance to us.

7

We have set out in our memorandum to which several

8 exhibits are attached why we think this settlement is fair

9 and reasonable and why, in comparison with the alternative

10 force of going to trial and taking our chances, we think it

11 is a good idea and we have recommended to the class that the

12 settlement be offered to the court for final approval.

13

I really have no remarks to add to what I put in my

14 memorandum, and I would only ask the court if there are any

15 questions it would like to address the plaintiffs, and we

16 will try to respond.

17

THE COURT: I thought that the memorandum was very

18 thorough and outlined just point by point the various

19 matters that I would need to consider in deciding whether to

20 accept the settlement agreement in this case.

21

And I thought that the attachments to that

22 memorandum were very helpful, also, so I really -- having

23 reviewed those, I really didn't have any other questions.

24

MR. BURMIN: Thank you.

25

I will let defendant's counsel introduce their

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 7 of 728

1 clients, but I do want to say publically and here, once

2 again, how thankful we are to the defendants coming forward

3 and working with us to devise a solution in which I think we

4 all have confidence.

5

Thank you.

6

THE COURT: Thank you.

7

Counsel.

8

MR. SOURCE: Good morning, Your Honor, Robert

9 Source for the Arizona Department of Health Services.

10

I would like to introduce some people here today

11 from ADHS.

12

Director Cathy Eden is here in the courtroom. She

13 is one of the named defendants, and directly to her right is

14 Leslie Schwalbe, who is the deputy director of the Division

15 of Behavioral Health Services.

16

Leslie was very involved in the negotiations and

17 contributed a great deal to making this settlement come to

18 fruition.

19

Also here is Michael Franczak who participated in

20 the settlement negotiations. Mike is a health policy

21 adviser for Director Eden. And in the back of the courtroom

22 is Robin Trussell. She is the director of the Bureau of

23 Children Services, of the divisions of Behavioral Health

24 Services.

25

Like plaintiff's counsel, I don't have a whole lot

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 8 of 828

1 to say, other than we believe that the agreement is fair, we

2 are in the process now of beginning implementation.

3

Many of the points raised in the agreement are well

4 underway. In fact, some of them have even been completed.

5 So we are prepared to go forward. The department has put

6 its full force and energy behind this agreement, and we

7 would ask that the court approve it so that we can move

8 forward and improve the Arizona health system in Arizona.

9

I did want to raise one minor issue, Your Honor.

10 It had to do with plaintiff's pre-hearing memorandum. There

11 is a statement on page 10, line 17 that says that Governor

12 Hull personally approved the agreement. And I did speak

13 with the Governor's counsel, and they wanted me to make a

14 statement on the record that the Governor is not a party to

15 this action and she did not legally approve the agreement;

16 she does support it, however, and is a hundred percent

17 committed to implementing it.

18

THE COURT: I assume that the plaintiff's statement

19 was based upon the news release from the Governor's office

20 that was part of the file in the case, as well as other

21 matters.

22

MR. BURMIN: That is correct, and we have no

23 disagreement with the statement that has been made.

24

MR. SOURCE: So we would ask that the court approve

25 the agreement and we are prepared to move forward with

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 9 of 928

1 implementing its terms.

2

Thank you.

3

THE COURT: And you did submit a joint statement in

4 which you urge -- on behalf of the defendants in which you

5 urge acceptance of the settlement agreement.

6

We discussed this at the previous hearing that

7 addressed this, that requested preliminary approval, and at

8 that time the defendants inquired what I would expect of

9 them, and I indicated unless they had something specific

10 there really wasn't any need to submit anything in detail,

11 and at that time I believe that the defendants indicated

12 that they were going to review what was submitted by

13 plaintiff's counsel, and if they thought anything else

14 needed to be added that they would do that, and I assume

15 that is the reason why counsel did exactly what I suggested.

16

They didn't have anything else to add, so it was a

17 request for approval.

18

MR. BURMIN: That is correct, Your Honor.

19

THE COURT: Thank you.

20

Counsel.

21

MR. BURMIN: There is one small procedural matter I

22 wanted to raise with the court.

23

THE COURT: Certainly.

24

MR. BURMIN: I wanted to bring the court's

25 attention to one provision of the settlement agreement,

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 10 o1f028

1 which is paragraph 78, that addresses attorneys fees, and

2 just alert the court to the fact that the parties have

3 agreed between themselves to extend the time for filing the

4 application for attorneys' fees from the -- I believe the 14

5 days provided in the local rule 2.02, up to 150 days. And

6 that extension of time would require court approval, and our

7 understanding is that by approving -- if this court were to

8 approve the settlement agreement would also be approving

9 that agreement that plaintiffs would have additional time,

10 up to 150 days, to file a fee application.

11

THE COURT: And I understand that the defense has

12 no objection to that extension?

13

MR. SOURCE: No objection, Your Honor.

14

THE COURT: In the typical case, obviously I would

15 have reservations about that. This is not the typical case.

16 I was appointed in 1991, and this case was filed in 1991; it

17 has ten years of history, and assuming I accept the

18 agreement, it will have another seven years while the matter

19 is assigned to me. And, obviously, it has had different

20 stages where it has been more active than at other times,

21 but I don't think under the circumstances 150 days is

22 unreasonable, so I would grant that request.

23

MR. BURMIN: One reason for the request is that the

24 parties do intend to discuss this matter, so we hope we can

25 resolve it by agreement and the additional time gives us

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 11 o1f128

1 some opportunity to do that.

2

Thank you.

3

THE COURT: Thank you.

4

Let me ask if either side wish to present testimony

5 in connection with this fairness hearing?

6

MR. BURMIN: No, we don't, Your Honor.

7

We offered exhibits in support of our arguments and

8 we assume that those will be made part of the record.

9

We have no live testimony to offer at this time.

10

MR. SOURCE: We do not have any testimony as well.

11

THE COURT: Then am I correct in assuming there are

12 no witnesses here in the courtroom who wish to testify at

13 this time concerning the fairness of the agreement?

14

MR. BURMIN: I think that that is correct, the

15 people said what they had to say in their statements as the

16 court suggested.

17

MR. SOURCE: That is correct.

18

THE COURT: And seeing no indication to the

19 contrary from anyone else, the record will so indicate.

20

In assessing the settlement proposal in this case,

21 I am required to weigh several factors, and this is not an

22 exclusive list, but the list includes the strength of the

23 plaintiff's case, the risk expense, complexity and likely

24 duration of further litigation, the risk of maintaining

25 class action status throughout the trial, the amount offered

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 12 o1f228

1 in settlement, the extent of discovery completed and the

2 stage of the proceedings, the experience and the views of

3 counsel, the presence of the governmental participant and

4 the reaction of the class members to the proposed

5 settlement.

6

In looking at these various factors, I think that

7 the plaintiff's case is strong and I think that it is

8 certainly a factor, a significant factor in how this

9 settlement was ultimately proposed to the court.

10

I think it reflects the very real needs that are

11 here in the district of Arizona as far as the type of care

12 that law provides should be available and needs that are not

13 currently being met, and I think that the plaintiffs have

14 demonstrated that.

15

As far as the risk expense and complexity, and the

16 likely duration of further litigation, if this matter were

17 to actually proceed forward without a settlement at this

18 time, it would be very costly, it would be very extensive,

19 and I think that that is an important factor, because it

20 would result in diversion of substantial money that could

21 otherwise be used in connection with implementing this

22 settlement agreement that would be diverted toward

23 litigation expenses.

24

And, for that reason, I think that that is a factor

25 favoring the settlement in the case.

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 13 o1f328

1

I don't think that there is really a risk of

2 maintaining a class. That is not a factor in connection

3 with this matter.

4

And, frankly, these matters are addressed at length

5 in the plaintiff's memorandum, pre-hearing memorandum that

6 was submitted, and that is one reason why I am not going

7 into them at length at this time.

8

The amount offered in settlement involves much more

9 than just an amount being offer, but actually a full

10 procedure and, in fact, I think it is twelve guiding

11 principles as far as the administration of Title 19 in the

12 district of Arizona.

13

Although certainly there is an amount that is

14 involved as far as implementing the particular program, as

15 well as a pilot program involving 300 youths here in the

16 district of Arizona, and I think that that also tends to

17 favor settlement in this case.

18

The extent of discovery completed in the stage of

19 the proceedings -- as the parties have pointed out there

20 have been extensive studies regarding how the program has

21 been here in the state of Arizona, as well as shortcomings

22 of the program and needs that are required, and that is just

23 one aspect of it -- I think it is Dr. Groves who has been

24 cited repeatedly regarding findings that he has made at at

25 least two different intervals and, unfortunately, he hasn't

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 14 o1f428

1 indicated more recently significant improvement, and

2 plaintiffs have suggested deterioration, in fact, as far as

3 the providing of services, but this is not -- this

4 settlement agreement is not occurring prematurely in light

5 of the development of the case and what has taken place as

6 far as studying the case.

7

The experience and views of counsel, I think that

8 both sides have been very well served, their clients have

9 been well served by the counsel in this case who are very

10 experienced, very familiar with the various contours of this

11 type of litigation and realistically appraising what is

12 required by law and what could be done to bring Arizona in

13 compliance with the demands for these types of services.

14

So I certainly give great weight to the experience

15 and the views of counsel, and counsel are unanimous in

16 urging the court to accept this settlement.

17

I am not aware of any significant disagreement

18 regarding the terms of the settlement agreement where one

19 party has suggested that there is something unfair about the

20 agreement. There is unanimity as far as the very

21 experienced counsel is concerned.

22

The presence of governmental participant is

23 obvious, and I touched upon the reaction of the class

24 members already, which again has not -- at least as I see

25 the materials, in having considered the reactions of the

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 15 o1f528

1 class members, I do not see opposition to acceptance of the

2 agreement; I see hope that the agreement will accomplish

3 what it purports to seek to accomplish and the goals that

4 are set out in the twelve guiding principles as far as the

5 settlement and maybe I won't say cynicism, but some

6 scepticism regarding whether those goals will be

7 accomplished and whether the group of 300 will ultimately be

8 extended state wide so that the entire group -- which I

9 think was estimated at as high as 20,000 children here in

10 the district of Arizona -- would receive the type of care

11 that they need.

12

But I didn't see objections from the class members

13 indicating that they think this is a bad idea or that the

14 settlement agreement is fatally flawed for one reason or

15 another.

16

Let me invite counsel to address those particular

17 matters, anything that I touched on up to this point that

18 they feel needs further elaboration.

19

MR. BURMIN: We have no disagreement with anything

20 you said.

21

MR. SOURCE: No, Your Honor, I think you covered

22 it.

23

THE COURT: The linchpin really -- as I see it --

24 in the settlement agreement and at least as reflected by

25 what the parties have indicated include the guiding

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 16 o1f628

1 principles for the settlement agreement and those are, of

2 course, set out in the agreement and described at length in

3 the plaintiff's pre-hearing memorandum. They focus upon

4 various guiding principals, including collaboration with the

5 child and family; focusing on functional outcomes;

6 collaboration with others, including collaborating and

7 orchestrating multiple systems in agencies where needed in

8 connection with the attention that is required; and, also,

9 monitoring implementation of the plan, making services

10 accessible and providing the best practices possible;

11 seeking the most appropriate setting; focusing on

12 timeliness, and providing services promptly to children;

13 tailoring the services to the particular child and family;

14 providing stability as far as -- for example, avoiding or

15 minimizing multiple placements and also anticipating crisis;

16 according respect for the child and the family's unique

17 cultural heritage in providing these particular services;

18 recognizing a need for independence insofar as the providing

19 of the services, including support and training for parents

20 and meeting the needs of their children in connections to

21 natural supports.

22

All of these principals -- it has been suggested,

23 obviously, these are principals intended to govern the way

24 that the Title 19 would be implemented and administered.

25 They are not specific in the sense of providing hard-core

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 17 o1f728

1 nuts and bolts remedies for each of these, but I don't know

2 that that is possible when you are considering the number of

3 children, the number of different situations that can arise

4 and the medical needs -- the mental health needs of the

5 children and the unique features that can arise, and the

6 different geographical locations, and the different

7 community needs.

8

And for all of these reasons, I think that the

9 principals which have been hailed by experts as being

10 guiding principals as far as providing mental health care --

11 I think that the principals are appropriate and certainly

12 have received the blessing of individuals in the field.

13

There are specific provisions, and I have touched

14 on these a little bit, concerning specific actions that

15 would be taken under the settlement agreement, including

16 developing statewide training program and designating some

17 over a three-year period for the program to train staff and

18 supervisors, to provide the services consistent with the

19 settlement agreement.

20

Adding respite care to the list of services covered

21 by Title 19 within just a 30-day period of entry of the

22 settlement agreement, implementing within a specific period

23 of time, a means of allowing independent Masters level

24 behavioral health professionals to provide services, and to

25 bill in a way that will make certain that the individual

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 18 o1f828

1 services that can be provided by those individuals will be

2 provided, evaluating with the aid of an expert whether

3 additional services are needed, designating a sum of money

4 for use as flex funds to provide the services that are not

5 reimbursable under Title 19, developing practice guidelines

6 for monitoring and addressing the effects of medications,

7 and then there is the 300 kids project that I referred to

8 previously, and developing a plan for expansion of substance

9 abuse treatment services, providing plaintiffs with an

10 annual action plan so that progress can be charted or

11 ascertained, and changing and improving overall the quality

12 of the management system.

13

These are all, I think, more specific things than

14 the principals themselves that are part of the settlement

15 agreement, and I take those into consideration in deciding

16 whether to accept the agreement.

17

Does any counsel want to be heard in connection

18 with those?

19

MR. BURMIN: No, Your Honor.

20

MR. SOURCE: No, Your Honor.

21

THE COURT: Counsel, I have touched upon the

22 reactions, comments and the like to the proposed settlement

23 agreement.

24

Does any counsel feel that needs to be explored at

25 greater length?

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 19 o1f928

1

As I said, I think that the plaintiffs pre-hearing

2 memorandum attachments focus upon those and really

3 articulate those, and they are also summarized in the

4 memorandum itself.

5

Does any counsel think it is necessary for me to

6 address those further at this point?

7

MR. BURMIN: No, Your Honor, we don't.

8

MR. SOURCE: No, Your Honor.

9

THE COURT: I suppose a common denominator for all

10 settlement agreements -- it doesn't give both sides

11 everything that they might desire, but I am impressed at

12 this hearing with the cooperation of counsel to try to

13 accomplish a common good as far as the administering the

14 program, and I think both sides have compromised, not to the

15 detriment of their clients or seriously undermining their

16 respective positions in order to submit the settlement

17 agreement in this case.

18

Does any counsel feel, aside from the last matter

19 which we are about to turn to, which is continued

20 jurisdiction of the court -- other than that, does any

21 counsel feel there is anything else that the court has

22 failed to address that needs to be addressed at this

23 fairness hearing?

24

MR. BURMIN: No, Your Honor, we don't.

25

MR. SOURCE: No, Your Honor.

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 20 o2f028

1

THE COURT: The parties propose that the court

2 retain jurisdiction and keep this matter open until, I think

3 it is alternatively 2007 or 2008. Obviously, this matter

4 has -- first of all, this matter has been active for a

5 decade now.

6

On the other hand, I recognize that the settlement

7 agreement has many facets to it, there are many directions

8 that implementation of the settlement agreement could

9 ultimately take.

10

We are all optimistic that it will take a favorable

11 and desirable course, but there could be some bumps in the

12 road as far as the implementation and enforcement of the

13 agreement.

14

For that reason -- first of all, as far as

15 retaining jurisdiction, I think it is appropriate -- and I

16 also get the impression of the parties that they see that as

17 being a critical feature of the settlement agreement.

18

For that reason, it is not something that is

19 peripheral and that I would feel comfortable indicating that

20 I accept the settlement agreement in all other respects

21 except for that.

22

I think that the parties have stated a case that is

23 compelling as far as retention of jurisdiction.

24

That having been decided, there are two approaches

25 to accomplish that, one is to just keep the case open,

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 21 o2f128

1 consistent with the settlement agreement; the other is to

2 conclude the case, but to retain jurisdiction, and there is

3 some authority for this court retaining jurisdiction, even

4 after the case has been concluded.

5

Now, the cleanest way to make certain that there

6 cannot be an assertion at a later time -- and I am not

7 thinking of the individuals here in the courtroom at this

8 time -- but over the period of time that the court has lost

9 jurisdiction because of dismissal of the case, that is

10 always a risk if dismissal takes place, but the court

11 attempts to retain jurisdiction.

12

If the court case is kept open, that concern is not

13 present.

14

I will hear counsel regarding your comments

15 regarding the court's retention of jurisdiction and what you

16 suggest.

17

I think I have an idea what you are going to

18 suggest, but I will certainly hear you at this time.

19

MR. BURMIN: Fortunately, Your Honor, I think that

20 you have described in a nutshell what our concern is.

21

There is a risk in our view, if the case is closed

22 in the sense that there is a dismissal on the record.

23

As the court knows, both parties have agreed to

24 this particular aspect of the settlement, and both the

25 retention of jurisdiction and the case remaining open as a

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 22 o2f228

1 continuing case, and I think both parties -- I won't speak

2 for the defendants, but it is my understanding that both

3 parties consider this a substantive part of the agreement.

4

With respect to the dismissal, the plaintiffs do

5 think that there is some risk. I have been doing this for

6 somewhat over 20 years, these kinds of complex cases, and

7 looking at the law and how it is developing, I am concerned

8 that the defendants could make an argument of the sort that

9 this court just described, that despite the fact that there

10 is an attempt to retain jurisdiction; dismissal deprives the

11 court of anything over which to exercise jurisdiction.

12

And the law of sovereign immunity and the Eleventh

13 Amendment has been undergoing rapid change.

14

The Supreme Court, in our view, has begun to

15 express really increasing impatience with what they consider

16 to be legal fictions, Ex parte Young actions is one example,

17 but we all kind of understand what is happening. But when

18 you look at the plain language, it seems somehow off, which

19 is how I kind of experience a dismissal retention of

20 jurisdiction.

21

And perhaps the matter that is of most concern to

22 us is the court has also shown some willingness, at least in

23 recent years to -- perhaps not inappropriately, but to upset

24 settled understandings when they are based on dicta as

25 opposed to explicit statements in a Supreme Court case.

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 23 o2f328

1

And we just recently with the Buckhannon case,

2 which involved the attorneys' fees had an instance where the

3 courts dicta over the years suggested that a particular

4 procedure was appropriate; eleven of the twelve Courts of

5 Appeals followed that procedure, but because of plain

6 language of the statute or rules seemed inconsistent, the

7 court said we are sorry, maybe we suggested that you could

8 do this, but now that we looked at it carefully, we are not

9 so sure.

10

And for all these reasons, we think that there is a

11 risk to the plaintiff class if the case does not remain

12 open, which is part of the reason we negotiated the current

13 arrangement, and I think it would be very difficult for us

14 to recommend to the class this settlement if it were

15 structured around the dismissal.

16

Thank you.

17

THE COURT: Thank you.

18

Counsel.

19

MR. SOURCE: We would support plaintiff's counsel's

20 argument. The retention of jurisdiction was a major point

21 in negotiations. And trying to put ourselves in the

22 plaintiff's shoes, they do want that no way to come back to

23 court if necessary.

24

We think that won't happen; and if it does happen,

25 it will be a very rare occurrence because of the dispute

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 24 o2f428

1 resolution we felt in the agreement.

2

So given the concerns that plaintiff's counsel

3 expressed, it is our position that we would ask the court to

4 retain jurisdiction.

5

THE COURT: There are mediation provisions.

6

MR. SOURCE: That is correct, it is a three-stage

7 dispute resolution process, informal resolution, mediation,

8 and the court. And we expect that the vast overwhelming

9 majority of disputes to be resolved either at the first or

10 the second stage.

11

THE COURT: Well, considering everything, I think

12 it is appropriate to retain jurisdiction and to have the

13 case remain open as requested by respective counsel and

14 parties in this matter.

15

I think that they have articulated ample grounds

16 for the retention and safeguard against any significant

17 changes in the law, which as plaintiff's counsel have

18 pointed out can happen, especially in settlement agreements

19 as certain provisions come in and out of both.

20

There wouldn't be any question regarding the

21 jurisdiction if the case remains open, so I will accept that

22 portion of the settlement agreement.

23

Does any counsel feel there is anything else that

24 we need to address before I rule on acceptance of the

25 settlement agreement at this time?

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 25 o2f528

1

MR. BURMIN: No, Your Honor.

2

MR. SOURCE: No, Your Honor.

3

THE COURT: Well, I would just incorporate all of

4 my previous comments and commend counsel for their joint

5 efforts to resolve a very serious situation, and I will

6 accept the settlement agreement in this case.

7

MR. BURMIN: Thank you.

8

MR. SOURCE: Thank you, Your Honor.

9

THE COURT: There will be a written order so

10 indicating.

11

Counsel.

12

MR. BURMIN: I was going to ask the question if the

13 court would like us to try our hand at a draft order.

14

THE COURT: Well, you can do that, or by minute

15 entry, a minute entry reflecting simply that the settlement

16 agreement that has been submitted in this case is accepted

17 by the court and the court makes a determination following

18 hearing from counsel and considering written submissions at

19 a fairness hearing that the settlement is appropriate.

20

MR. BURMIN: That is fine, Your Honor.

21

THE COURT: It might be a way of making certain

22 that nothing is overlooked and also just not requiring

23 further detail.

24

I think it is covered in the agreement, unless

25 counsel feel something more is needed.

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 26 o2f628

1

MR. SOURCE: No, Your Honor.

2

I think that covers it. In fact, I think the

3 agreement pretty much speaks for itself, so an order

4 confirming the agreement is sufficient.

5

MR. BURMIN: That is fine.

6

THE COURT: Is there anything further at this time?

7

MR. BURMIN: No.

8

MR. SOURCE: No.

9

THE COURT: Thank you very much.

10

We will stand at recess.

11

(Thereupon, the proceedings adjourned.)

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 27 o2f728

1

C E R T I F I C A T E

2

3

BE IT KNOWN that the foregoing proceedings were taken

4 before me, CHRIS WALLACE, and that the foregoing 26 pages

5 are a true and correct transcript of all proceedings had,

6 all done to the best of my skill and ability.

7

8

s/Chris Wallace

9

10

11 Dated: March 23, 2010

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 4:91-cv-00261-AWT Document 501 Filed 03/31/10 Page 28 of 28

 
 Case 4:91-cv-00261-AWT Document 516 Filed 09/24/10 Page 1 of 2

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6

7 J.K., a minor by and through R.K., e t al.,) No. 91-cv-261-TUC-JMR

on behalf of them selves and all others )

8 similarly situated,

) ORDER

)

9

Plaintiff,

)

)

10 vs.

)

)

11

)

WILL HUMBLE, in his official capacity )

12 as Interim Director of the Arizona )

Department of Health Services; DR. )

13 LAURA NELSON, in her official capacity)

as Director, Division of Behavioral Health)

14 Services, Arizona, Department of Health)

Services; THOMAS J. BETLACH, in his)

15 official capacity as Director, Arizona )

Health Care Cost Containment System, )

16

)

Defendants.

)

17

)

)

18

19

Pending before the Court are two motions: Plaintiffs’ Motion to Enforce Settlement

20 Agreement (Doc. 491) and Defendants’ Cross-Motion to Dism iss Plaintiffs’ Motion for

21 Enforcement of Settlement Agreement or, in the Alternative, to Rem and for Dispute

22 Resolution Pursuant to the Settlement Agreement (Doc. 483). For the reasons stated below,

23 both of these motions are denied.

24

The motions in this case were filed more than seven months before the expiration of

25 the settlement agreement period. In the intervening months, it appears that some additional

26 substantive issues have arisen that were not discussed within the motions listed above. See,

27 e.g., Plaintiffs’ Request for Status Conference (Doc. 503). Because the motions were filed

28 so early in this case, it would be disadvantageous to rule on the motions now without a full

Case 4:91-cv-00261-AWT Document 516 Filed 09/24/10 Page 2 of 2

1 briefing on the issues. The parties m ust apprise the Court of these new or different

2 substantive issues in new pleadings.

3

4

Accordingly, IT IS ORDERED:

5

The Plaintiffs’ Motion to Enforce Settlement Agreement (Doc. 491) is denied.

6

The Defendants’ Cross-Motion to Dism iss Plaintiffs’ Motion f or Enforcement of

7 Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to

8 the Settlement Agreement (Doc. 483) is denied.

9

Plaintiffs’ Request for Status Conference (Doc. 503) isdenied as moot in light of this

10 order.

11

12

IT IS FURTHER ORDERED:

13

Oral argument is scheduled for this case on Monday, November 22, 2010 at 1:30

14 p.m. The parties shall submit briefs on the issues by October 15, 2010. Responses will be due

15 on October 29, 2010. Optional replies will be due on November 12, 2010. Parties are ordered

16 to address any remaining issues, including those originally mentioned in the motions listed

17 above. The parties are reminded that all filings should conformwith the Local Rules of Civil

18 Procedure regarding the length of briefs and the requirements for exhibits to the briefs. See

19 L.R. Civ. 7.2.

20

21

DATED this 23rd day of September, 2010.

22

23

24

25

26

27

28

- 2 -

 
 Case 4:91-cv-00261-AWT Document 530 Filed 11/29/10 Page 1 of 3

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6

7 J.K., a minor by and through R.K., e t al.,) No. CV-91-261-TUC-JMR

on behalf of them selves and all others )

8 similarly situated,

) ORDER

)

9

Plaintiff,

)

)

10 vs.

)

)

11

)

WILL HUMBLE, in his official capacity )

12 as Interim Director of the Arizona )

Department of Health Services; DR. )

13 LAURA NELSON, in her official capacity)

as Director, Division of Behavioral Health)

14 Services, Arizona, Department of Health)

Services; THOMAS J. BETLACH, in his)

15 official capacity as Director, Arizona )

Health Care Cost Containment System, )

16

)

Defendants.

)

17

)

)

18

19

A hearing was held on this m atter on November 22, 2010. In light of the pa rties’

20 arguments, the Court issues the following order.

21

IT IS ORDERED:

22

1. Defendants’ Motion to Change Venue (Doc. 517) is denied.

23

2. Plaintiffs’ Motion to Enforce Settlement Agreement (Doc. 518) is denied.

24

3. Defendants’ Motion to Dismiss Plaintiffs’ Motion for Enforcement of Settlement

25 Agreement or, in the alternative, Motion to Rem and for Dispute Resolution (Doc. 522) is

26 denied.

27

4. This matter shall be referred to a mediator for the parties to attempt a settlement of

28 the issues.

Case 4:91-cv-00261-AWT Document 530 Filed 11/29/10 Page 2 of 3

1

5. Within 14 days of the filing of this Order, each party shall subm it to the Court a

2 suggested mediator to resolve this dispute. Alternatively, the parties m ay jointly submit a

3 stipulation that they will proceed with a particular mediator.

4

5

IT IS FURTHER ORDERED:

6

6. The issues that are to be determined by a mediator are the six issues contained in

7 Plaintiffs’ letter of March 6, 2009:

8

- Whether the “Defendants have failed to meet their core obligation under the

9

Settlement Agreement to develop . . . a Title XIX behavioral health systemthat

10

delivers services according to the J.K. principles”;

11

- Whether the Defendants have im plemented a process that sufficiently

12

measures its progress in the delivery of services;

13

- Whether Defendants have “a functioning system for identifying enrolled

14

children who have high needs”;

15

- Whether the state is adequately addressing “substance abuse among high needs

16

children”;

17

- Whether the Defendants are me eting their obligations under the Settlem ent

18

Agreement to serve 18-21 year olds; and

19

- Whether the Defendants have implemented a training program that meets the

20

specifications outlined in the Settlement Agreement.

21

22

7. The parties shall also confer and submit a stipulation to the Court regarding the

23

payment of attorneys’ fees, including fees involved in the mediation process.

24

8. The parties shall submit to the Court a stipulation regarding a date until which

25

the Settlement Agreement, and the Court’s jurisdiction over it, needs to be

26

extended.

27

9. The parties are hereby on notice that should this matter not be resolved through

28

the mediation process, it will be referred to a Special Master under Fed. R.

- 2 -

Case 4:91-cv-00261-AWT Document 530 Filed 11/29/10 Page 3 of 3

1

Civ. P. 53.

2

DATED this 29th day of November, 2010.

3

4

5 6 7 8 9 10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25

26

27 28

- 3 -

 
 Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 1 of 27 1

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF ARIZONA

3

4 JOHN DOE,

)

)

5

Plaintiff, )

)

6 vs.

) CV-91-261-TUC-JMR

)

7 JOHN FIFE SYMINGTON, III, )

et al.,

)

8

)

Defendants. ) Tucson, Arizona

9 ____________________________) November 22, 2010

10

TRANSCRIPT OF MOTIONS HEARING

11

BEFORE THE HONORABLE JOHN M. ROLL

UNITED STATES DISTRICT JUDGE

12

13 APPEARANCES:

14 On Behalf of the Plaintiff:
15
16
17 On Behalf of Defendant ADHS:
18
19

Ms. Anne C. Ronan Arizona Center for Law in the Public Interest 202 East McDowell Road, Ste 153 Phoenix, AZ 85004
Mr. Gregory D. Honig Office of the Attorney General 1275 West Washington Street Phoenix, AZ 85007

20 On Behalf of Defendant Thomas J. Betlach:
21
22

Mr. Paul E. Steen Ryan Rapp & Underwood PLC 3200 N. Central Ave. Ste 1600 Phoenix, AZ 85012

23 Court Reporter: 24 25

Aaron H. LaDuke Official Court Reporter U.S. District Court 405 W. Congress St. Tucson, AZ 85701

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 2 of 27 2

1

P R O C E E D I N G S

2

THE CLERK: In civil matter 91-261, John Doe versus

3 Symington, et al., on for a motions hearing.

4

Counsel, please state your appearance.

5

MS. RONAN: Anne Ronan, attorney for the plaintiffs.

6

MR. HONIG: Greg Honig, counsel for defendant Arizona

7 Department of Health Services.

8

MR. STEEN: And Paul Steen, appearing for defendant

9 John Betlach.

10

THE COURT: Good afternoon. This is the time set for

11 the hearing on some pending matters in this case.

12

Are the parties ready to proceed?

13

MS. RONAN: We are, Your Honor.

14

MR. HONIG: Yes, Your Honor.

15

MR. STEEN: Yes.

16

THE COURT: Thank you.

17

I have had a chance to consider the briefing that the

18 parties have made in connection with issues presented in this

19 matter.

20

As a preliminary matter, I would note that this month I

21 celebrate my 19th year on the district court, and this case is

22 19 years old. This case started when I was first appointed to

23 the district court. I know that early on I had indicated

24 concerns about the possibility that it would see me to senior

25 status, and I am only two years from that and we are on track

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 3 of 27 3

1 to do that. I am concerned about that.

2

In reading the parties' contentions, it appears that

3 there is considerable disagreement regarding some of the basic

4 premises and goals that are involved in the

5 settlement agreement and as to whether they have been

6 satisfied. The defense maintains that they have, and the

7 plaintiff argues that they have not been satisfied and, in

8 fact, have proffered expert witnesses who have said that there

9 were objectives that the defense were to meet and that they

10 have failed to do that with appropriate dispatch. I consider

11 all of that.

12

I would like to hear from the parties first regarding the

13 defense contention that Section 9 of the settlement agreement

14 has not been complied with at this point, and that is, there

15 is a progressive number of steps that have to be followed

16 before the time that the matter is brought to the district

17 court for consideration. Section 9 refers to collaborative

18 negotiation, and the defense argues that that did not occur in

19 this case, that just the mere exchange of some correspondence

20 without notification, that this was in the stage -- this was

21 pursuant to Section 9 and as a preliminary step to bringing

22 the matter to the Court has not been complied with.

23

After I have heard from that, I will discuss with you the

24 possibility of mediation, unless you have something you want

25 to add concerning mediation. And I know that you have met in

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 4 of 27 4

1 the past with an individual for the purpose of seeing whether

2 resolution of the case was possible. I understand it was

3 somewhat limited in that you met with this individual

4 separately and then the conclusion was drawn that there was no

5 possibility of resolution. Perhaps a more aggressive

6 mediation could be utilized in this matter.

7

But the first question is whether the collaborative

8 negotiation has actually been met. The defense argues that it

9 has not.

10

MR. HONIG: Good afternoon, Your Honor.

11

THE COURT: Good afternoon.

12

MR. HONIG: I wouldn't say that that's quite the

13 defendants' position here. I think that that was included in

14 the briefs for illustrative purposes. The defendants haven't

15 raised the issue with plaintiffs or in the briefs that have

16 been filed in any way, shape, or form arguing that the

17 plaintiffs participated in bad faith in collaborative

18 negotiations, and I think that --

19

THE COURT: Oh, I didn't mean that it was in bad

20 faith.

21

MR. HONIG: Sure.

22

THE COURT: I just meant that it hadn't been

23 satisfied, that the requirement hadn't been satisfied.

24

MR. HONIG: I don't think that's one of our arguments

25 here today. I think, in essence, our argument essentially

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 5 of 27 5

1 boils back down to the March 6th, 2009 letter, which began the

2 dispute resolution process, which under the settlement

3 agreement the plaintiffs were required to present essentially

4 what's tantamount to a complaint, give us notice of their

5 concerns/complaints regarding the implementation of the

6 settlement agreement, and provide at least enough of a factual

7 basis to support those claims.

8

If you go back to the March 6th letter, I think that the

9 plaintiffs -- the argument essentially is that, at the

10 absolute worst for the defendants, the plaintiffs are limited

11 to the arguments that are set forth or the points set forth in

12 that March 6th letter.

13

THE COURT: If you'll give me just one moment,

14 please.

15

Thank you. You may proceed.

16

MR. HONIG: I think in hindsight now, 17 months later

17 after the mediation and 18, 19 months after the collaborative

18 negotiation process, I think one thing at least to me is

19 perfectly clear. I think the parties had diametrically

20 different views on what was being submitted to collaborative

21 negotiations and mediation, and that didn't become readily

22 apparent, at least to the defendants, until we saw the motion

23 to enforce the settlement agreement which brought us here

24 today.

25

I think at the absolute worst from the defendants'

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 6 of 27 6

1 standpoint, the issues need to be limited to what was in that

2 March 6th letter, those four or five specific issues. Whether

3 or not there's enough of a factual basis in there to state a

4 claim, more or less, Medicaid, and whether or not there are

5 intensive community services in place for children with high

6 needs, I think those are nonissues.

7

THE COURT: Why wouldn't the parties at least be

8 required to submit something to the Court before we get to

9 this point where you indicate specifically what you agree on

10 and what you don't agree on? Because it's very difficult to

11 fathom that from what has been submitted in the respective

12 pleadings.

13

MR. HONIG: Sure. At what point is Your Honor asking

14 when something like that should be submitted?

15

THE COURT: Well, I guess before we arrived here

16 today, where I'm being asked to enforce the agreement and you

17 are arguing that the agreement has been complied with and

18 there hasn't been perhaps the specific discussion regarding

19 what still remains to be done.

20

MR. HONIG: Sure.

21

Now going back a step, I think whether or not the

22 specific provisions in the agreement that the plaintiffs have

23 raised had been completed by the defendants, I think that's a

24 factual issue that would be vetted through the course of a

25 trial or an evidentiary hearing. I don't think that's what we

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 7 of 27 7

1 are here arguing today.

2

The defendants are arguing here that one of three things

3 should happen: one, that this matter should be dismissed, that

4 even though there were hundreds of pages of pleadings and

5 exhibits filed, the plaintiffs have essentially failed to

6 state a claim under the settlement agreement with enough

7 specificity and enough facts to be able to tell the defendants

8 exactly what areas the issues lie in and what the basis for

9 those issues are. So under that assumption, we are asking

10 that this matter be dismissed for failure to state a claim.

11

As a second matter, I think if this thing moves forward,

12 the Court needs to pare down the issues in dispute to what's

13 in that March 6th letter. We will litigate those issues if it

14 goes down that path later on when we get to an evidentiary

15 hearing or a trial, and I think some of those issues that are

16 in that letter could be further whittled down through some

17 prehearing or pretrial motions, whether it's a motion to

18 dismiss or motion for summary judgment.

19

The settlement agreement is very specific. I think if

20 you read it objectively, it's fairly clear that it anticipated

21 that much smaller issues may be presented through the dispute

22 resolution process. It wasn't really designed to address all

23 of the issues under the settlement agreement or a large part

24 of the issues under the settlement agreement in dispute

25 resolution. That's why it references a hearing or an

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 8 of 27 8

1 evidentiary hearing, when in reality I think if this thing

2 moves forward we are talking about a fairly lengthy trial that

3 probably is, at a minimum, a week or two, depending on the

4 amount of issues in dispute.

5

But I think if this thing moves forward, the issues need

6 to be pared down to what's in the letter so both parties are

7 clear about what issues are on the table. And I think that

8 that issue alone, to me and to Mr. Steen, I think, explain why

9 the parties were so unable to get to the table and discuss the

10 issues objectively during the last mediation, because the

11 plaintiffs were on one side thinking that Medicaid and

12 everything else was involved in this lawsuit, and we thought

13 the issues were isolated to the five issues that were in that

14 letter. With those two perspectives, it was doomed to fail

15 from the start.

16

So I think if the issues are pared down and we are sent

17 back to mediation, we could mediate for a short period in

18 January. We could have a status conference with the Court at

19 the end of January and discuss the issues of the potential

20 expiration of the settlement agreement on February 1st, 2011,

21 and any other issues, whether we need additional mediation

22 time, whether we need to extend the settlement agreement and

23 those types of things, I think it might be a little premature

24 to address those issues at this point.

25

THE COURT: All right. Counsel, do you wish to be

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 9 of 27 9

1 heard?

2

MR. STEEN: I concur wholly. We are on the same

3 page, Your Honor.

4

THE COURT: All right. Counsel.

5

MS. RONAN: Your Honor, if I could respond to your

6 question about the collaborative negotiation process --

7

THE COURT: Yes.

8

MS. RONAN: -- that is required by the dispute

9 resolution provisions in the agreement.

10

I firmly believe that we did make an attempt. I think

11 both parties made an attempt to try to collaborate in

12 resolving this. As we said in our papers, we had been meeting

13 every two to three months, and if issues came up during those

14 meetings, we sent letters to the department explaining why we

15 were still concerned about the decisions they were making or

16 the lack of progress on the specific items that we identified.

17

We met. We wrote a long letter in December of 2008 to

18 the department and said to them in that letter, "We really

19 would like to avoid dispute resolution and we would like to

20 talk to you about these issues." They have been the

21 same issues probably for the last two years, Your Honor, and

22 we've had many discussions with the department and with their

23 lawyers about the issues we are concerned about.

24

What happened in March when we filed our dispute

25 resolution letter was that we then were confronted with the

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 10 of 27 10

1 response of the department, which was, "We don't know what it

2 is you are concerned about." And, Your Honor, quite frankly,

3 we had been meeting with them for two years about some of

4 these issues. For example, our concerns about the quality

5 management system, we had numerous meetings and numerous

6 communications about that specific provision. We did have one

7 meeting with the department and their attorneys after the

8 letter was sent. It was not a very collaborative meeting, I

9 would say, I think from both sides. But it was clear, at

10 least from our perspective, that this fundamental disagreement

11 which I think you have alluded to, which is what exactly were

12 the defendants supposed to do under this agreement, was

13 raising its head again.

14

When we were in dispute resolution the last time, Your

15 Honor, that prevented us from getting very far in our

16 mediation as well. The defendants characterize their

17 obligations under the settlement agreement to simply improve

18 the service delivery system. We believe the language of the

19 settlement agreement is very clear. They made a commitment to

20 actually develop and maintain the system that served kids

21 according to the principles. It's a fundamental disagreement

22 and it's kept us from actually dealing with the harder,

23 specific issues that we've raised throughout the several

24 years.

25

The other thing, Your Honor, is that once we went to

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 11 of 27 11

1 mediation, we all agreed to use the same mediator we had used

2 before because he was familiar with the issues in the case.

3 Many of those issues were raised again in our March 2009

4 letter. He advised us to prepare for him, based on the

5 request from the department's lawyers, very specific details

6 as to what we were concerned about and how we hoped to resolve

7 it. We did that on each of the issues that we raised in our

8 March letter. He came back to us and said, "I believe you are

9 too far apart on your fundamental understanding of what this

10 obligation is for us to go forward with mediation."

11

So I think both sides did the best they could given where

12 they currently were at the time. I think we still need the

13 Court's direction on what the obligations of the department

14 are if we are going to go back to mediation. I do think we

15 can make progress in mediation, but I don't think we can make

16 progress in mediation if we still have this fundamental

17 difference between what the obligation in the

18 settlement agreement is.

19

The defendants continue to look to the recitals clause of

20 the settlement agreement, which says that it's the parties'

21 intention that this agreement will result in improvements in

22 the system rather than the specific obligations in the section

23 of the settlement agreement that deal with their obligations,

24 and that has been the single most, I think, barrier to us

25 actually working through these, the more nuts-and-bolts

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 12 of 27 12

1 concerns.

2

THE COURT: I'm not encouraged about the use of a

3 mediator in light of what you have said.

4

Again I recall back many years ago when this was

5 discussed, and it's my recollection I expressed some concern

6 about the lack of precision as far as exactly what was

7 contemplated by the agreement, and I was assured that it would

8 come together and that details would be worked out, but

9 obviously, after all these years, they have not been worked

10 out.

11

Another solution could be the use of a special master in

12 this. You know, we are a southwest border district. We are

13 buried to the extent that we are preparing a letter to ask the

14 chief judge of the Ninth Circuit to declare Arizona a judicial

15 emergency as a result of the criminal caseload in the

16 district, and most of that falls on Tucson.

17

I do not have two or three weeks for this, and the case

18 is very important. It deserves attention. Perhaps we should

19 look to the use of a special master, who would be able

20 to arrive at exactly what the issues are in this case and then

21 to advance some recommendations to me as far as the

22 interpretation of the agreement and what has been accomplished

23 so far and what would still need to be done, and maybe that

24 would position us then to go back to mediation or possibly to

25 some settlement if you had the benefit of that.

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 13 of 27 13

1

What are your thoughts on that?

2

MS. RONAN: Well, Your Honor, I think if the special

3 master was charged with ultimately declaring what the

4 settlement agreement provides that the defendants' obligations

5 are, I think that would be helpful. I really do believe that

6 a mediator, one who is familiar with the issues in the case,

7 could be helpful. But if we get to the same place in

8 mediation, which is -- let me give you an example.

9

One of the issues we have been raising for several years

10 is the concern when a child turns 18, despite the fact that

11 they are eligible under the federal Medicaid law for

12 children's services until they are 21, the system in Arizona

13 oftentimes drops those children at 18. There have been a lot

14 of policy papers written about it, but I'm involved right

15 today with a little girl who is going to lose all of her

16 services. And when we raise that issue with them, the

17 department's lawyers say, "That's not part of the case.

18 There's nothing in the settlement agreement that says anything

19 about 18 to 21-year-olds."

20

Well, they are class members and it's a serious issue.

21 So if we could get the direction from a special master that

22 said "These are your obligations," we could move forward. But

23 I think if we continue in this gray area, it's going to be

24 very difficult.

25

THE COURT: A special master may very well, in

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 14 of 27 14

1 looking at that, conclude that it does end at 18, and although

2 it would be a very difficult and unfortunate situation as far

3 as what happens after the age of 18, if that's what the action

4 is and that's the class --

5

MS. RONAN: Well, Your Honor, the department doesn't

6 take the position that the services end after 18. The problem

7 is they haven't changed their system so that the services

8 continue. So it's --

9

THE COURT: Are you talking about for purposes of

10 this lawsuit?

11

MS. RONAN: Yes, Your Honor. The class of children

12 goes up to the age of 21 in this lawsuit, and the federal law

13 protects them under the Medicaid Act up until age 21, and

14 there's no dispute between the parties that they are members

15 of the class and they are entitled to the services. The

16 problem has been in implementing a system that ensures they

17 receive those services after they turn 18. We would like to

18 get to resolution of those kind of concrete issues, but we

19 have been stymied by this question of whether they have an

20 obligation to actually develop a system that serves children

21 according to the principles.

22

THE COURT: All right. Let me hear from the defense

23 regarding some of the things we've been discussing, including

24 a special master.

25

MR. HONIG: Your Honor, I think the Court is well

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 15 of 27 15

1 aware that we are more than open to entertaining the notion of

2 a special master. We were the ones who raised it to

3 Ms. Ronan, and Ms. Ronan is the one who said no. So we are

4 open to that. We still remain open to that.

5

With respect to Ms. Ronan's complaints, I think obviously

6 at this point addressing factual issues in the

7 settlement agreement, it's entirely premature to do so. I

8 think the issue here today is if this moves forward in dispute

9 resolution, what is the scope --

10

THE COURT: I wasn't planning on doing that. I think

11 I ended up being drawn into that.

12

MR. HONIG: Sure. I understand. I appreciate that.

13 But I think we need to figure out what's on the table for

14 dispute resolution. And this issue is very, very simple.

15 The agreement requires a clear and concise statement of

16 the issues in dispute when dispute resolution starts. It

17 began on March 6th of 2009. The issues are limited to what's

18 in that letter, period.

19

Whether those issues remain moving forward, whether it's

20 through the dispositive motions or whether it's through

21 evidence, whether from the plaintiff's side or the defense

22 side, that's an entirely separate issue that comes in later on

23 down the road. I think those issues need to be decided before

24 we discuss anyone, whether it be this Court, a court in

25 Phoenix, or a special master, stepping --

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 16 of 27 16

1

THE COURT: It won't be a court in Phoenix because

2 Phoenix does not have the time to address this, either. They

3 are in a very difficult situation as well.

4

MR. HONIG: Sure.

5

THE COURT: So I wouldn't even consider transferring

6 the case to Phoenix as you suggest.

7

MR. HONIG: Okay. But I think we need to decide

8 those issues. I think we need the Court's help to decide

9 what issues are on the table for dispute resolution before we

10 take the next step and discuss a special master and

11 specifically what a special master is going to do.

12

THE COURT: And I guess my view is that perhaps that

13 could be the great value of a special master, as far as having

14 the parties formulate exactly what the issues are as far as

15 what remains to be done or where the disputes are in that

16 regard.

17

MR. HONIG: But, Your Honor, that was done 19 months

18 ago. That was done in March of 2009. It's not complicated.

19 One only needs to look at the letter that the plaintiffs sent

20 on March 6th to determine what issues are in dispute.

21 Everything else in the settlement agreement goes away. If

22 there's an issue about whether a specific paragraph ties into

23 one of those four or five areas, obviously at that point it

24 becomes relevant, but as far as the specific areas of content,

25 the 18 to 21-year-olds, QM training and the other areas, those

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 17 of 27 17

1 remain. The rest of the settlement agreement goes away.

2

THE COURT: Do you agree with that?

3

MS. RONAN: Your Honor, the March 6th letter

4 specifically states that the defendants have not met their

5 obligations under paragraph I believe it's 15, which is the

6 obligation to develop a system that delivers services

7 according to the principles.

8

I absolutely agree that we are bound by the parameters of

9 the issues we raised in dispute, but the fundamental issue

10 that we raised in dispute is whether they have developed a

11 system that serves these children, and that is their

12 obligation under the agreement and that's where the

13 disagreement is. They disagree that that's their obligation.

14 It's not a matter that we didn't set it out. It's

15 specifically set out in the March letter. They don't agree

16 that they have an obligation under the settlement agreement to

17 develop the system.

18

MR. HONIG: I disagree with that.

19

THE COURT: You see, this is exactly why --

20

MR. HONIG: I --

21

THE COURT: Counsel, just a minute. It's exactly why

22 we are not making any progress, because you tell me there's no

23 dispute, everything can be looked to in the letter and that's

24 a bright-line guide to what has to be considered in this, and

25 yet you don't even agree what's in the letter or what the

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 18 of 27 18

1 letter means or what the scope of the letter is.

2

MR. HONIG: Your Honor, I think the Court can

3 probably look at the letter and decide what content areas the

4 plaintiffs raised and make a ruling consistent with the

5 letter. That's all we're asking for.

6

THE COURT: It depends on whether I give an expansive

7 or restrictive interpretation to what is in the letter.

8

MR. HONIG: Right.

9

THE COURT: Because you argue for the one and

10 plaintiffs argue for a much broader approach.

11

MR. HONIG: Right.

12

THE COURT: Which anything that is implicated in the

13 letter would be an issue.

14

MR. HONIG: That's correct. Medicaid is not in the

15 letter, Your Honor. And the next sentence that follows

16 Ms. Ronan's recitation of "We basically said everything in the

17 settlement agreement is in dispute," it says, "The major

18 failings are described below." And it lists the four specific

19 categories. It lists substance abuse, 18 to 21, training, and

20 high-needs children. That's it. That's all it has. There's

21 nothing in there about Medicaid. That's it. It's those four

22 areas that are in dispute.

23

I'm not arguing about whether or not the plaintiffs can

24 prove that, whether we have complied with the

25 settlement agreement in those areas. I don't think that's

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 19 of 27 19

1 the issue here today. I think the issue is the scope of what

2 the plaintiffs have presented in dispute resolution. I think

3 it's clear that what happened was this was submitted in March,

4 and then as time went by, in the six, seven, eight months

5 until the motion to enforce the settlement agreement got

6 fired -- filed, excuse me, the plaintiffs expanded the scope

7 of the issues in dispute.

8

THE COURT: Okay. Let's assume hypothetically that

9 you are correct and that those are the narrow areas. What is

10 there that I need to determine then before the matter goes to

11 a special master on those issues?

12

MR. HONIG: I think I would ask consistent with what

13 Ms. Ronan and what the Court suggested earlier. I think that

14 we would be in a much better position at that point to

15 mediate. And even if we use a more aggressive mediator, the

16 defendants are interested in trying to resolve this thing

17 amicably, but we were obviously so diametrically opposed when

18 we mediated this the last time that it was a foregone

19 conclusion that it wouldn't be successful.

20

THE COURT: Okay. Let me hear from the plaintiff

21 regarding what the defense has said about these four areas

22 setting out where the disputes are.

23

Is that the extent of the dispute?

24

MS. RONAN: I don't know, Your Honor. I have the

25 March 6th letter in front of me, and on the third page it has

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 20 of 27 20

1 a heading that is in all bold, capital letters which says,

2 "ISSUES IN DISPUTE," and it lists them. The very first issue

3 is that the defendants have failed to meet their core

4 obligations under the settlement agreement to develop a Title

5 19 -- which is the section of the Social Security Act

6 that applies to Medicaid that delivers services according to

7 the principles.

8

So I'm at a loss to understand -- I actually agree with

9 Mr. Honig that if we were to take this letter in its entirety

10 and try to work through it, we would be okay. We could get to

11 the issues. But the first two issues listed, No. 1 and No. 2,

12 he's just told you aren't in the letter. That's our problem.

13

THE COURT: Counsel.

14

MR. HONIG: Your Honor, that's not quite what I said.

15 I think issue No. 2 can be summarized as being quality

16 management. I think quality management is contained in the

17 settlement agreement. The scope of it is an issue. That's

18 something to deal with later, but quality management is

19 an issue; high-needs children is an issue; substance abuse; 18

20 to 21; and training. Excuse me. There were five areas

21 instead of four. I apologize for that.

22

The first paragraph, delivering services according to the

23 JK principles, is obviously in the settlement agreement and it

24 says, "Major failings are described below." It's those five

25 areas. I don't know how you expand it beyond those five

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 21 of 27 21

1 areas.

2

THE COURT: What are your thoughts regarding what

3 defense counsel mentioned about perhaps a more aggressive

4 mediator, a different mediator that the parties perhaps

5 nominate and the Court selects from or the parties stipulate

6 to, since you wouldn't know who I would end up picking and you

7 might feel more comfortable with someone that you both

8 stipulate to? What are your thoughts on that?

9

MS. RONAN: Your Honor, I think it would be a good

10 idea to have a mediator try to resolve these issues. I think

11 it would be very important, though, that this question of what

12 the fundamental obligation is under the agreement be one of

13 the issues the mediator is required to work through, because

14 I've been with this case, Your Honor, almost as long as you

15 have and I really fundamentally believe that is the sticking

16 point, and we can get this resolved if a mediator is asked

17 specifically to resolve this question that's between the

18 parties.

19

MR. HONIG: Your Honor, I think I'm in agreement with

20 Ms. Ronan. I think that if we present this issue to the

21 mediator, both sides can present their positions and maybe the

22 mediator can bring us together and reach some sort of an

23 accord on whatever issues might remain beyond these four or

24 five issues that are in the letter below.

25

THE COURT: Returning to a point that you made

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 22 of 27 22

1 earlier, which is that more would still need to be done before

2 it goes to a mediator, what else needs to be done?

3

MR. HONIG: I think one of the central issues that we

4 are here today for, Your Honor, is for the Court's

5 interpretation of what are the issues in dispute, whether it's

6 limited to those five or whether the Court has a more broad

7 understanding of what the issues in dispute are.

8

If the Court wants to refer those to a mediator, we can

9 certainly get an objective perspective from a mediator on

10 the issues and try and work those out for ourself, and maybe

11 there's a chance we can come to some sort of a stipulation on

12 what the issues in dispute are. It sounds like we were a lot

13 closer than I thought we were before we came here today from

14 Ms. Ronan.

15

THE COURT: Well, plaintiff does not seem to dispute

16 that those five areas are the areas in dispute. The dispute

17 is exactly what those five areas encompass. With that in

18 mind, would it be helpful to refer this to a mediator?

19

MS. RONAN: Your Honor, if I could --

20

THE COURT: Yes.

21

MS. RONAN: -- just correct the record. There are

22 six areas in dispute listed in the March 6th letter.

23

And, yes, I think if that was the direction of the Court,

24 to refer this to a mediator to resolve the issues raised in

25 the March 6th letter, identifying as one of the

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 23 of 27 23

1 fundamental issues that is identified in the letter and

2 continues to be an issue in dispute is what's the core

3 obligation in the agreement, then I think we could get it

4 resolved.

5

THE COURT: Did you have anything to add?

6

MR. HONIG: No, Your Honor. I think I agree with

7 Ms. Ronan.

8

THE COURT: Without looking too much further down the

9 highway, I think both sides are on notice that if we are

10 unable to resolve this matter through the mediator, that a

11 special master will probably be the next step in this.

12

What I would propose to do is, after this hearing, to

13 come up with some language which would indicate that the areas

14 in dispute, which have progressively gone from four to five to

15 six, six areas of dispute as described by plaintiff in the

16 March 6th letter, be referred to a mediator and requesting and

17 setting a deadline for the parties to either nominate or

18 submit a stipulation as to a particular mediator. After that

19 has been received, the matter would be referred for further

20 mediation with that particular individual, and we'll see what

21 happens after that.

22

Okay. Let me address a few other matters with you. I

23 have already mentioned the fact that I do not think it's

24 appropriate to transfer the venue to Phoenix in this case.

25

I did want to discuss attorneys' fees, and the cap that

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 24 of 27 24

1 had previously been imposed has expired. Since the costs are

2 being paid by the defense and because of budget

3 considerations, the defense may find it helpful to know

4 exactly what the likely cost is going to be. I think we need

5 to consider whether to, for a finite period of time, expand

6 the cap that was previously imposed or look to a different cap

7 or some other formulation as far as attorneys' fees.

8

Does either party want to be heard?

9

MS. RONAN: I think we would be okay with working

10 through another capitated agreement.

11

MR. HONIG: I think that's something Ms. Ronan and I

12 and Mr. Steen could probably discuss and maybe present back to

13 the Court, if necessary.

14

THE COURT: Well, I think it should be addressed one

15 way or the other so that there is at least some idea as far as

16 what the fees are, and again this is very important

17 litigation. I think the payments have totaled almost $800,000

18 to date.

19

MR. HONIG: More than that, Your Honor.

20

THE COURT: Okay. Well, that's the calculations from

21 what appears in the materials that I have, and previously I

22 think the cap was $58,000 per quarter.

23

MR. HONIG: It was $58,000 for monitoring, and it was

24 uncapped for dispute resolution.

25

MS. RONAN: I think, Your Honor, are you suggesting

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 25 of 27 25

1 that we try to come up with a capitated agreement that would

2 include whatever the mediation and dispute resolution process

3 is?

4

THE COURT: Yes. Yes.

5

MS. RONAN: I'm sure we can talk through that.

6

MR. HONIG: I'm sure we can put our heads together

7 and come up with something.

8

THE COURT: All right. And again I don't want to

9 look too far down the road again as far as the possibility of

10 a special master. If we get to that, I think that it probably

11 would be important for there to be at least some division

12 regarding the payment of the special master, even if it was a

13 disproportionate amount, such as 25 percent from the plaintiff

14 and 75 percent from the defense.

15

All right. What else did we need to discuss at this

16 time?

17

MS. RONAN: I don't believe there's anything else,

18 Your Honor.

19

MR. HONIG: I think the only issue is, which we don't

20 need to address today, obviously, is the potential expiration

21 of the settlement agreement, which I know the Court probably

22 isn't inclined to enforce. But I think our goal would be,

23 with the Court's approval, to hopefully get this mediation or

24 at least start mediation before the end of January.

25

THE COURT: I would hope as soon as possible.

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 26 of 27 26

1

MR. HONIG: Right. Okay.

2

MS. RONAN: Thank you for bringing that up, because

3 by the terms of the agreement, the Court's jurisdiction

4 expires in February of next year, so that would only be about

5 two months from now.

6

MR. HONIG: Maybe after we agree on a mediator and

7 start the process, we could have a status conference with the

8 Court at the end of January --

9

MS. RONAN: To extend the --

10

MR. HONIG: -- to at least preserve the issue for

11 whatever the status is at that point in time.

12

THE COURT: That would be fine; or if the parties,

13 after considering everything, stipulate to a specific

14 extension of the agreement, I would certainly consider that,

15 of course.

16

MR. HONIG: Thank you, Your Honor.

17

THE COURT: All right. Was there anything else we

18 needed to address?

19

MR. HONIG: No, Your Honor.

20

THE COURT: All right. Thank you.

21

We'll stand at recess.

22

(Court recessed at 2:19 p.m.)

23

24

25

Case 4:91-cv-00261-AWT Document 535 Filed 12/30/10 Page 27 of 27 27

1

C E R T I F I C A T E

2

I, Aaron H. LaDuke, do hereby certify that I

3 reported the foregoing proceedings to the best of my skill

4 and ability, and that the same was transcribed by me via

5 computer-aided transcription, and that the foregoing pages

6 of typewritten matter are a true, correct and complete

7 transcript of all the proceedings had, as set forth in the

8 title page hereto.

9

Dated this 30th day of December, 2010.

10

11

12

______s/Aaron H. LaDuke_____

Aaron H. LaDuke, RMR, CRR

13

Official Court Reporter

14

15

16

17

18

19

20

21

22

23

24

25

 
 Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 1 of 13

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 J.K., a minor by and through R.K., et al.,)

on behalf of themselves and all others)

10 similarly situated,

)

)

11

Plaintiffs,

)

)

12 vs.

)

)

13

)

WILL HUMBLE, in his official capacity)

14 as Interim Director of the Arizona)

Department of Health Services; DR.)

15 LAURA NELSON, in her official capacity)

as Director, Division of Behavioral Health)

16 Services, Arizona Department of Health)

Services; THOMAS J. BETLACH, in his)

17 official capacity as Director, Arizona)

Health Care Cost Containment System, )

18

)

Defendants.

)

19

)

)

20

)

No. CV 91-261 TUC-AWT

ORDER RE MOTIONS:

(1)

TO TERMINATE THE

COURT’S JURISDICTION;

and

(2)

FOR ATTORNEYS’ FEES

21

Pending before the Court are Defendants’ Motion to Terminate the Court’s

22 Jurisdiction and to Dismiss the Case (Doc. 540) and Plaintiffs’ Motion for Attorneys’

23 Fees (July 1 through September 30, 2009 and October 1 through December 31, 2009)

24 (Doc. 548). For the reasons stated, Defendants’ Motion to Terminate (Doc. 540) will be

25 denied and Plaintiffs’ Motion for Attorneys’ Fees (Doc. 548) will be granted in part and

26 denied in part.

27 I. Defendants’ Motion to Terminate the Court’s Jurisdiction

28

Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 2 of 13

1

Defendants argue that, pursuant to the terms of the Settlement Agreement (Doc.

2 397) (the “Agreement”) entered into by the parties, approved by the Court and adopted in

3 its entirety, the Court’s jurisdiction over this case ended effective February 1, 2011.

4 Paragraph 81 of the Agreement, as amended, required Plaintiffs to file a motion to

5 dismiss the action without prejudice before February 1, 2011, but Plaintiffs did not file

6 such a motion.

7

Plaintiffs respond that an order dismissing the case has not been entered and that

8 there is a pending dispute over whether Defendants have violated the Agreement and, if

9 so, whether the terms of the Agreement should be extended. Plaintiffs argue that the

10 Court has subject matter jurisdiction to decide whether Defendants’ alleged non-

11 compliance entitles Plaintiffs to an extension of the Agreement and the process to be

12 followed to resolve the disputed issues.

13 A. Background

14

A fairness hearing was held on June 26, 2001, and “[p]ursuant to statements made

15 on the record, ORDERED Settlement Agreement is approved and adopted in its entirety”

16 (Doc. 397). At the time of its approval and adoption, the Agreement set forth certain

17 deadlines concerning resolution of pending disputes and termination of Defendants’

18 obligations and the Court’s jurisdiction (Id., Agreement XIV ¶¶ 79-81).

19

In January 2006, Plaintiffs invoked the Agreement’s dispute resolution procedures,

20 a three-stage process involving collaborative negotiation, mediation and judicial process

21 (Doc. 443 at 2; Doc. 397, Settlement Agreement IX). On November 21, 2006, the parties

22 filed a Stipulation stating they wished to resolve their dispute without litigation and had

23 agreed to extend applicable dates in the Agreement (Doc. 443). On January 10, 2007, the

24 Court approved the parties’ stipulated amendments to the Agreement (Doc. 445). The

25 Agreement’s terms were modified to provide that the Agreement would terminate on July

26 1, 2010, except the parties would continue through February 1, 2011, to resolve any

27 pending disputes initiated before February 1, 2010; from July 1, 2010, to February 1,

28

- 2 -

Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 3 of 13

1 2011 the Court’s jurisdiction would be limited to resolving any pending disputes; through

2 February 1, 2011, the Court was authorized to enter appropriate relief, if the parties were

3 unable to resolve a dispute by agreement; and the Court’s jurisdiction would end on

4 February 1, 2011 (Id.; see Doc. 543 at 6). The Agreement also was modified to provide a

5 deadline for Plaintiffs to file a motion to dismiss upon termination of Defendants’

6 obligations under the Settlement Agreement (Doc. 443; Doc. 397, Agreement XIV ¶ 81).

7

In March 2009, Plaintiffs again invoked the Agreement’s dispute resolution

8 process, alleging Defendants’ non-compliance in six areas (Doc. 543 at 6-7). When the

9 parties’ attempt at mediation failed to resolve the dispute, Plaintiffs in November 2009

10 filed a motion to enforce the Settlement Agreement, seeking, inter alia, another extension 11 of the term of the Agreement (Doc. 473; Doc. 491 at 3).1 Defendants filed a cross-motion

12 to dismiss Plaintiffs’ motion to enforce or, in the alternative, to remand for dispute

13 resolution pursuant to the Settlement Agreement (Doc. 483). On September 10, 2010,

14 pursuant to a Court Order (Doc. 514), the parties reported their disputes had not been

15 resolved or rendered moot (Doc. 515). On September 24, 2010, the Court denied the

16 parties’ motions (Doc. 491 & 483), set oral argument for November 22, 2010, and

17 directed the parties to brief the issues (Doc. 516).

18

In October 2010, Plaintiffs filed a motion to enforce the Settlement Agreement

19 (Doc. 518) and Defendants filed a cross-motion to dismiss Plaintiffs’ motion to enforce

20 or, in the alternative, to remand for dispute resolution pursuant to the Settlement

21 Agreement (Doc. 522). During oral argument held on November 22, 2010, the parties

22 discussed the disputed issues, with the Court commenting that their dispute would be

23 referred to a mediator and possibly to a special master (Doc. 535 at 23, 25). At the

24 conclusion of the hearing, the Agreement’s potential expiration was discussed with the

25

26

1

Plaintiffs’ motion to enforce was lodged on November 13, 2009 (Doc. 473) and

27 filed on December 2, 2009 (Doc. 491).

28

- 3 -

Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 4 of 13

1 goal of mediation by the end of January and possibly a status conference by that same 2 time after the parties agreed on a mediator (Doc. 535 at 25-26).2 The Court remarked, “if

3 the parties, after considering everything, stipulate to a specific extension of the

4 agreement, I would certainly consider that, of course” (Doc. 535 at 26).

5

On November 29, 2010, the Court denied the parties’ October 2010 motions

6 (Docs. 517, 518, 522), referred the matter to a mediator to attempt a settlement of the

7 issues, and listed the issues to be determined by the mediator (Doc. 530). The Order

8 provided in part that “[t]he parties shall submit to the Court a stipulation regarding a date

9 until which the Settlement Agreement, and the Court’s jurisdiction over it, needs to be

10 extended” (Doc. 530 at 2). The Order gave the parties “notice that should this matter not

11 be resolved through the mediation process, it will be referred to a Special Master under

12 Fed.R.Civ.P.53" (Doc. 530 at 2-3).

13

The matter proceeded to a two-day mediation on February 14, 2011, but the

14 mediation lasted only one day with the disputed issues not resolved (Doc. 540 at 4; Doc.

15 543 at 9). The parties agreed to suspend mediation to allow Defendants to file a motion

16 to resolve legal issues (Doc. 540 at 4; Doc. 543 at 9 & Ex. 3). On March 4, 2011,

17 Defendants filed their pending motion to terminate and dismiss (Doc. 540). Plaintiffs did

18 not file a motion, and the parties did not file a stipulation, to extend the Settlement

19 Agreement or the Court’s jurisdiction.

20 B. Discussion

21

The Agreement provides that none of its provisions “limit, in any way, the Court’s

22 authority, power, or jurisdiction to enforce this Settlement Agreement during its

23 pendency” (Doc. 397, Agreement XIV ¶ 83). It further provides that “[t]his Agreement

24 may be amended, modified or supplemented only by a duly executed writing which has

25

26

2

Defense counsel commented during the discussion, “I think the only issue is,

which we don’t need to address today, obviously, is the potential expiration of the settlement

27 agreement, which I know the Court probably isn’t inclined to enforce” (Doc. 535 at 25).

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 5 of 13

1 been presented to and approved by this Court” (Id., XV ¶ 84). The Court approved and

2 adopted the Settlement Agreement (Doc 397). The Court, however, is not a party to the

3 Agreement.

4

The district court’s approval of a settlement agreement along with its retention of

5 jurisdiction has been held to be the functional equivalent of a consent decree which the

6 district court has the authority to modify and interpret in light of changed circumstances.

7 See Am. Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1320-21 (11th Cir. 2002); see

8 also United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990) (“A consent decree is

9 essentially a settlement agreement subject to continued judicial policing.”) (internal

10 quotation marks omitted). Where a decree contains an express expiration date for the

11 court’s retention of jurisdiction, any change to that date involves a modification of the

12 decree. Labor/Community Strategy Ctr. v. L,A. Cnty. Metro. Transp. Auth., 564 F.3d

13 1115, 1120 (9th Cir. 2009). Even in the absence of express authorization in the decree or

14 request from the parties, the power to modify in appropriate circumstances is inherent in

15 the equity jurisdiction of the court. Keith v. Volpe, 784 F.2d 1457, 1461 (9th Cir. 1986)

16 (citation omitted); see also Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 860

17 (9th Cir. 2007) (“It is well established that the district court has the inherent authority to

18 enforce compliance with a consent decree that it has entered in an order, to hold parties in

19 contempt for violating the terms therein, and to modify a decree.”).

20

Plaintiffs gave notice of the pending dispute prior to the amended Agreement’s

21 February 1, 2010, deadline and moved for an extension of the Agreement, which the

22 District Court later denied. Nonetheless, the Court and the parties contemplated resolving

23 the present dispute. The discussion during the November 2010 hearing reveals the

24 parties’ disagreement regarding the scope of the Agreement and whether and to what

25 extent Defendants had complied with the Agreement’s terms (Doc. 535 at 5-23). The

26 parties and the Court were aware of the Agreement’s February 1, 2011, deadline because

27 they discussed setting mediation and a status conference by the end of January 2011. The

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 6 of 13

1 Court’s Order expressly directed the parties to submit a stipulation to extend the

2 Agreement’s termination deadline and the Court’s jurisdiction (Doc. 530). Additionally,

3 the Court’s Order identified disputed issues and notified the parties that the dispute would

4 be referred to a special master if not resolved by mediation (Id.). The parties did not

5 object and, in fact, proceeded to mediation after the termination deadline. Implied in the

6 Court’s Order is the finding that a dispute existed regarding substantial compliance, that

7 jurisdiction to ensure compliance was extended, and the Agreement would be modified

8 accordingly pursuant to the parties’ stipulation. See Thompson v. Enomoto, 915 F.2d

9 1383, 1389 (9th Cir. 1990) (implicit in the court’s order directing the parties to negotiate

10 modifications to the decree was the ruling that jurisdiction to assure compliance was

11 extended).

12

With respect to judicial process to resolve disputes, the Agreement provides that

13 “[t]he Court will resolve the matter in a manner consistent with the purposes and goals of

14 the Settlement Agreement” (Doc. 397, Agreement IX ¶ 70). The Agreement further

15 provides that “[t]he parties understand and agree that until such time as this action is

16 dismissed pursuant to paragraph 81, the Court’s jurisdiction will continue for the purpose

17 of enforcing, should it become necessary, the obligations of the parties under the

18 Settlement Agreement” (Id., Intro.). The Agreement also states that no party “may

19 engage in activities which delay, prolong or frustrate performance of the obligations of

20 this Agreement with the aim of taking advantage of the time-limited nature of this

21 Settlement Agreement” (Id., Agreement XIV ¶ 82). The Court’s determination to extend

22 the Agreement and its jurisdiction is consistent with the Agreement’s terms and goals.

23 See, e.g., Keith, 784 F.2d at 1460 (consent decree may be modified if experience with its

24 administration shows the need for modification to accomplish its goals) (citation

25 omitted); Labor/Community Strategy Ctr., 564 F.3d at 1120-21 (a party’s failure of

26 substantial compliance with a consent decree’s terms can qualify as a significant change

27 in circumstances that would justify the decree’s temporal extension). Allowing

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 7 of 13

1 Defendants to terminate the Agreement, and the Court’s jurisdiction, would permit

2 Defendants to frustrate performance of the Agreement’s obligations with the aim of

3 taking advantage of the Agreement’s time limits, even though the Court’s November

4 2010, Order made clear that the parties were to stipulate as to an extension of the Court’s

5 jurisdiction. In light of the present dispute, Defendants’ obligations cannot be said to

6 have terminated and the Court’s jurisdiction continues for the purpose of enforcing the

7 Agreement.

8

Finally, the Court notes that a settlement agreement is treated as a contract for

9 purposes of interpretation. United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962

10 F.2d 853, 856 (9th Cir. 1992) (citing Adams v. Johns-Manville Corp., 876 F.2d 702, 704

11 (9th Cir. 1989)). Its construction and enforcement are governed by principles of local law

12 that apply to contract interpretation generally even though the cause of action is federal.

13 Id. A party to a contract by express agreement or by his own course of conduct may

14 waive his legal right to insist on strict performance of the contract’s terms. 13 Williston

15 on Contracts § 39:27 (4th ed. 2011). In Arizona, an essential element of waiver is the

16 intention to waive the right involved “and where not expressed, one’s conduct must be

17 such as to warrant the inference of such intention.” Ariz. Title Guar. & Trust Co. v.

18 Modern Homes, Inc., 330 P.2d 113, 114 (Ariz. 1958) (citation omitted). To infer a

19 waiver of right, such right must exist at the time the claimed waiver occurred. Id. “There

20 also must be an opportunity of choice between the relinquishment and the enforcement of

21 the right in question.” Id. Given the content of the Court’s November 2010, Order,

22 Defendants’ participation in mediation after February 1, 2011, constitutes a course of

23 conduct that waived their right to insist on strict performance of the termination date in

24 the Agreement.

25

For the reasons set forth above, Defendants’ Motion to Terminate the Court’s

26 Jurisdiction and Dismiss the Case (Doc. 540) is denied.

27 II. Plaintiffs’ Motion for Attorneys’ Fees

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 8 of 13

1

Plaintiffs seek attorneys’ fees for the calendar quarters July 1 through September

2 30, 2009; and October 1 through December 31, 2009 (Doc. 548). The parties’ Third

3 Stipulation As To Court Award of Attorneys’ Fees to Plaintiffs (Doc. 450), approved by

4 the Court on December 19, 2007 (Doc. 451, Order), governs the payment of attorneys’

5 fees to Plaintiffs for the relevant time periods (see Doc. 548 at 3; Doc. 450 at 3 ¶ 7). The

6 Third Stipulation provides for a general quarterly cap on Plaintiffs’ attorneys’ fees at

7 $58,000 for work performed to monitor implementation of Court orders and for additional

8 fees under certain circumstances (Doc. 450 at ¶¶ 7-12; Doc. 548 at 3). Plaintiffs seek a

9 total of $102,197.50 in uncapped attorneys’ fees resulting from their dispute resolution

10 efforts over the two identified periods. Except as noted, the parties have been unable to

11 resolve their dispute regarding these uncapped fees (Doc. 548 at 4-5).

12 A. Time Spent on “Court Involvement”

13

Plaintiffs seek fees for time spent by counsel on “court involvement” after

14 September 8, 2009. Plaintiffs argue they informed Defendants’ counsel on August 20,

15 2009, that they planned to file a motion to enforce the Agreement and that they filed their

16 motion on November 13, 2009. Having carried through their intention, Plaintiffs contend

17 they are entitled to attorneys’ fees (Doc. 548 at 6-7). Defendants argue that attorneys’

18 fees should be awarded only for work on “court involvement” during the twenty-day

19 period of August 20 to September 8, 2009 because Plaintiffs did not file their motion

20 within twenty days of their August 20, 2009, notice as Defendants assert is required by 21 the Third Stipulation’s terms (Doc. 549 at 5-7).3

22

As set forth in the Third Stipulation and Order, if any party invokes the dispute

23 resolution provision set forth in Section IX of the Settlement Agreement, fees and

24 expenses incurred for court involvement may be billed separately notwithstanding the cap

25

26

3

Defendants also object to fees for mediation after June 20, 2009 (Doc. 549 at

4-5) but this issue has been resolved as Plaintiffs have clarified they are seeking only fees for

27 “court involvement” after August 20, 2009 (Doc. 552 at 2).

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 9 of 13

1 amount (Doc. 450 at ¶ 12; Doc. 451 at ¶ 4). The beginning and ending time frames for

2 billing purposes are described as follows:

3

(b) Attorneys’ fees and expenses incurred for court involvement shall

begin on the day either party informs the other party of their

4

intention to file an appropriate motion with the U.S. District Court to

enforce the terms of the Settlement Agreement. If no motion is filed,

5

attorneys’ fees and expenses incurred for court involvement shall

end twenty (20) days from the date a party informs the other party in

6

writing of their intention to file a motion in . . . Court. If a motion is

filed, attorneys’ fees and expenses incurred for court involvement

7

shall end on the day the . . . Court enters a final order resolving the

dispute.

8

(Doc. 450 at ¶ 12(b); Doc. 451 at ¶ 4(b)).

9

Defendants construe this provision as meaning that Plaintiffs are entitled to

10

recover fees for “court involvement” work as of August 20, 2009, when notice was

11

provided, and for a period of 20 days thereafter, that is, until September 8, 2009, because

12

Plaintiffs did not file their motion to enforce until November 13, 2009 (Doc. 549 at 6).

13

According to Plaintiffs, Defendants have conceded that Plaintiffs are entitled to fees for

14

time spent on “court involvement” after Plaintiffs filed their November 2009 motion to

15

enforce (Doc. 548 at 8). Based on the plain meaning of the cited provision, it cannot be

16

construed as providing for a twenty-day expiration window unless the party giving notice

17

does not actually file a motion. Plaintiffs did in fact file a motion to enforce, and

18

pursuant to the cited provision, attorneys’ fees are recoverable from the notice date until

19

the date on which the Court rules. Defendants’ objection is overruled and Plaintiffs’

20

request for attorneys’ fees is granted.

21

B. Karen Bower’s Fees

22

Plaintiffs seek $17,610 in fees for 58.7 hours of work performed by attorney Karen

23

Bower between August 20 and December 31, 2009, securing supporting declarations for

24

Plaintiffs’ motion to enforce the Settlement Agreement (Doc. 548 at 5, 8). Defendants

25

object that Plaintiffs failed to provide notice of their intent to submit billing statements for

26

lawyers other than those named in the Third Stipulation prior to their quarterly request at

27

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 10 of 13

1 issue (Doc. 549 at 7-9). Plaintiffs argue they provided notice of attorney Bower in a fee

2 request for a prior period (April through June 2009), the parties stipulated to the amount

3 paid (citing a July 9, 2010 stipulation (Doc. 511 at 2-3)), and the matter of attorney

4 Bower’s hourly rate was resolved (Doc. 552 at 5). Plaintiffs contend that on August 2,

5 2009, one of Plaintiffs’ attorneys notified a defense attorney by letter of Plaintiffs’ intent

6 to seek fees for attorney Bower at $300 per hour (Doc. 548 at 8-9). Plaintiffs concede

7 they have been unable to locate a signed copy of the purported letter (Doc. 548 at 9) and

8 Defendants claim the letter was not received (Doc. 549 at 9 & Ex. B).

9

Paragraph 11 of the Third Stipulation, as adopted by the Court’s Order, provides

10 that “Plaintiffs shall have the sole discretion to determine what lawyers should submit

11 billing statements and in what amounts,” followed by specified billing rates for four

12 named Plaintiffs’ attorneys. It also provides that “[i]f other lawyers are to be included in

13 the quarterly billings, Plaintiffs shall notify Defendants of their intent to submit billing

14 statements for the other lawyers and propose the hourly rate for such lawyers prior to

15 submitting a request for fees and expenses” (Doc. 450 at ¶ 11; Doc. 451, Order at ¶ 3).

16

Plaintiffs’ alleged notice in a prior quarter and their failure to produce a signed

17 letter sent to defense counsel in a manner noting receipt is insufficient to comply with the

18 Third Stipulation’s notice requirement. Plaintiffs’ request for a fees award for work

19 performed by attorney Bower is therefore denied.

20 C. Time Securing Expert Declarations

21

Plaintiffs request attorneys’ fees for time spent securing declarations from Linda

22 Redman and John Vandenberg, two “consultants/experts” previously employed by the

23 Arizona Department of Health Services (“ADHS”) (Doc. 548 at 10). Plaintiffs offered

24 these declarations in support of their November 2009 motion to enforce (Doc. 491) and

25 February 2010 reply (Doc. 493) (see Doc. 491, Ex. 5 [Redman Declaration]; Doc. 494,

26 Ex. 2 [Redman Supplemental Declaration]; & Doc. 493, Ex.1 [Vandenberg Declaration]).

27 Defendants object because Redman and Vandenberg, who both parties agree are experts

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 11 of 13

1 in their respective behavioral health fields, had an employment relationship with ADHS

2 that included work on the present case and in an ongoing state court case against several

3 state defendants, including ADHS, that concerns the adult behavioral health system in

4 Maricopa County (Doc. 549 at 10). Redman and Vandenberg each were paid in excess of

5 $600,000 by ADHS for their work in their respective areas of quality management and

6 training over a five-year period (Doc. 549 at 11-14 & Ex. C). Plaintiffs argue in their

7 reply that Defendants have not offered any evidence that the contracts between these two

8 experts and ADHS precluded a consulting arrangement with Plaintiffs or that Redman

9 and Vandenberg relied on confidential information in their declarations (Doc. 552 at 5-6).

10

Defendants have not moved to strike the Redman and Vandenberg declarations4

11 and have not produced evidence showing the consulting arrangements were not allowed

12 or that confidential information has been revealed. Plaintiffs’ request for attorneys’ fees

13 for work securing the Redman and Vandenberg declarations will be denied, but without

14 prejudice subject to Defendants moving to strike the declarations.

15 D. “Incomplete Entries”

16

Defendants object to “incomplete entries” for time billed by attorney Barkoff

17 (Doc. 549 at 14-16) but according to Plaintiffs’ reply, Defendants’ concern was satisfied

18 when Plaintiffs explained that the entries referred to telephone calls (Doc. 552 at 6-7).

19 Plaintiffs have submitted with their reply a corrected printout of attorney Barkoff’s time

20 statement showing that each “incomplete” entry refers to a telephone call (Doc. 552 at 7

21 & Ex. 1). This dispute appears to be resolved. To the extent Defendants further object to

22

23

24 4 In their motion to transfer venue (Doc. 517) filed on October 15, 2010, Defendants
25 discussed that Redman and Vandenberg were potential witnesses and indicated in a footnote
26 that if the case is not dismissed or remanded to collaborative negotiations/mediation, Defendants anticipated moving to strike Vandenberg and Redman as expert witnesses for
27 Plaintiffs (Doc. 517 at 7 n.3).

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 12 of 13

1 the timeliness of Plaintiffs’ disclosure of the time records, Defendants’ objection is

2 overruled.

3 E. Time Spent on the “Horne Briefs”

4

Defendants object to $725 in fees for 2.9 hours of work performed by attorney

5 Barkoff referring to “Horne briefs.” Defendants contend Plaintiffs have not explained

6 how this research aided counsel regarding claims advanced in dispute resolution since the

7 time was billed in December 2009 while Plaintiffs’ motion to enforce was pending and

8 none of the parties were seeking relief from or dismissal of the Settlement Agreement

9 (Doc. 548 at 11; Doc. 549 at 16-17). Defendants urge that fees should not be awarded

10 because Plaintiffs have not timely provided justification for the request (Doc. 549 at 17).

11 Plaintiffs have explained that the entries refer to Horne v. Flores, 557 U.S. 433, 129 S.Ct.

12 2579 (2009), which concerned relief from court orders and it was unknown whether

13 Defendants would seek relief from the Settlement Agreement when the work was

14 performed (Doc. 548 at 11; Doc. 552 at 7). Plaintiffs’ explanation lacks sufficient detail

15 to justify a fees award; therefore, their request is denied.

16 F. Defendants’ Request for Fees

17

Defendants request that the Court award ADHS its reasonable attorneys’ fees

18 incurred in filing its response to Plaintiffs’ motion for attorneys’ fees and deny Plaintiffs’

19 counsel the right to request attorneys’ fees incurred in filing their motion and reply (Doc.

20 549 at 18). Defendants’ request is denied without prejudice to the right of either party to

21 file appropriate motions on the matter.

22 III. Conclusion

23

For the reasons set forth above,

24

IT IS HEREBY ORDERED:

25

1. Defendants’ Motion to Terminate the Court’s Jurisdiction and Dismiss the

26

Case (Doc. 540) is denied.

27

28

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Case 4:91-cv-00261-AWT Document 561 Filed 02/27/12 Page 13 of 13

1

2. Plaintiffs’ Motion for Attorneys’ Fees (Doc. 548) is granted in part and

2

denied in part as set forth above in this Order.

3

3. The parties shall submit to the Court a stipulation regarding a date until

4

which the Settlement Agreement, and the Court’s jurisdiction over the

5

pending dispute, needs to be extended within fourteen (14) days of this

6

Order.

7

4. A status conference will be held on March 19, 2012 at 2:00 p.m. at the Evo

8

A. De Concini United States Courthouses, 405 W. Congress, Tucson,

9

Arizona. The parties should be prepared to discuss the referral of this

10

matter to a Special Master under Fed. R. Civ. P. 52. The parties may file

11

briefs on this issue; if they elect to file such briefs, they shall be filed by

12

March 12, 2012.

13

DATED this 27th day of February, 2012.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 13 -

 
 Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 1 of 7

1 THOMAS C. HORNE

2

ARIZONA ATTORNEY GENERAL Firm Bar No. 14000

3

Gregory D. Honig, State Bar No. 018804

4 Kevin D. Ray, State Bar No. 007485

Assistant Attorneys General

5 1275 West Washington Street

Phoenix, Arizona 85007-2926 6 Telephone: (602) 542-8328

7

Fax: (602) 364-0700 E-mail: EducationHealth@azag.gov

8 Attorneys for Defendants Humble and Nelson, ADHS

9 Logan T. Johnston, AZ Bar #009484 JOHNSTON LAW OFFICES, P.L.C.

10 1402 E. Mescal Street Phoenix, Arizona 85020

11 Telephone: (602) 452-0615

12

Facsimile: (602) 716-5997 ltjohnston@johnstonlawoffices.net

13 Attorneys for Defendant Betlach, AHCCCS

14

15

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

16

17 J.K. a minor by and through R.K., et al.,

CASE NO. CIV-91-261-TUC-AWT

18 19 v.

Plaintiffs,

20 21

WILL HUMBLE, in his official capacity as interim Director of the Arizona Department of Health Services; DR. LAURA NELSON, in her

DEFENDANTS’ MOTION TO CLARIFY AND RECONSIDER

22 official capacity as Director, Division of

23

Behavioral Health Services, Arizona Department of Health Services; THOMAS J.

24 BETLACH, in his official capacity as Director

of the Arizona Health Care Cost Containment 25 System,

26 Defendants
27

28

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 2 of 7

1

Defendants respectfully 1) move for clarification of the Court’s “Order re:

2 Motions to Terminate the Court’s Jurisdiction and for Attorneys’ Fees” (Dkt. 561) (“the 3
Order”) and 2) ask the Court to reconsider the portion of the Order that requires the 4
5 parties to stipulate to jurisdiction that the Defendants dispute.

6

I. Motion to Clarify

7

The Court’s February 27, 2012 Order denied Defendants’ Motion to Terminate the

8 Court’s jurisdiction and ordered the parties to consider the appointment of a special
9

10 master. The Court also ordered the parties to submit a stipulation “regarding a date until

11 which the Settlement Agreement, and the Court’s jurisdiction over the pending dispute,

12 needs to be extended.” The Order is ambiguous with respect to the scope of the

13 jurisdiction the Court intends. The Order states, in pertinent part:
14

15

In light of the present dispute, Defendants’ obligations cannot be said to have

terminated and the Court’s jurisdiction continues for the purpose of enforcing the

16

Agreement. . . . Given the content of the Court’s November 2010 Order,

17

Defendants’ participation in mediation after February 1, 2011 constitutes a course of conduct that waived their right to insist on strict performance of the termination

18

date in the Agreement.

19 Dkt. 561, p.7. Defendants are concerned that the Order’s language could be read to
20 mean the Court is extending jurisdiction over resolution of “the present dispute” or,
21 22 alternatively, that the Court is doing this and extending the entire Agreement. The latter
23 interpretation seems unlikely, since the Court denied Plaintiffs’ motion (Dkt. 518)

24 seeking to extend the existence of the Settlement Agreement (Dkt. 530) and since even
25 Plaintiffs’ counsel had agreed at the end of the November 22, 2010 hearing before Judge
26 Roll that the Agreement itself, as opposed to any pending dispute that had to be resolved,
27

28 2

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 3 of 7

1 was about to terminate by its own terms: “Thank you for bringing that up, because by the

2 terms of the agreement, the Court’s jurisdiction expires in February of next year.” Dkt.
3 535, p. 26. The Plaintiffs thereafter made no request to extend the Agreement.
4

5

The Defendants’ motion to terminate the Court’s jurisdiction was directed at

6 terminating the dispute resolution process and recognizing the expiration of the

7 Agreement. The question raised by the language of the Order is whether the Court ruled 8
that it has jurisdiction to resolve the dispute it concluded was still pending or whether the 9
10 Court intended to go beyond this and keep the Agreement in existence for all purposes,

11 despite its termination provisions.

12

Underscoring the ambiguity of the Order, Plaintiffs have now tendered

13 Defendants a proposed stipulation regarding extension of the Court’s jurisdiction. This
14

15 proposed stipulation suffers from the same ambiguities. Exhibit A hereto. Defendants

16 asked Plaintiffs’ counsel to clarify the nature of the jurisdiction they are proposing in this

17 stipulation, but counsel refused to respond, except to say there is no ambiguity in the

18 Court’s order. Exhibits B and C hereto.
19

20

Obviously there is a difference between extending the Court’s jurisdiction for the

21 purpose of enforcing the dispute resolution provisions and extending the entire

22 Agreement. The Settlement Agreement unambiguously states that the Court’s
23 jurisdiction is limited to disputes that were timely submitted and pending as of July 1,
24
25 2010. See Agreement, Dkt. 397, as amended in 2007, Dkt. 445. That this is so has never

26 been challenged by either side. Even if the Court finds the dispute resolution process

27 must continue because Defendants engaged in one session of unsuccessful mediation 28
3

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 4 of 7

1 after February 1, 2011, the Order does not suggest that this act constituted a waiver of the

2 broader argument that Defendants have vigorously pursued for the last three years that at 3
the very least the provisions of the Agreement other than the dispute resolution process 4
5 terminated on July 1, 2011.

6

The Plaintiffs’ unwillingness to discuss this issue and the ambiguity of their

7 proposed stipulation demonstrate the need for clarification. Defendants therefore request 8
the Court to clarify whether it is ordering the parties to stipulate to (1) the extension and 9
10 continued existence for all purposes of the Settlement Agreement or (2) to an extension

11 of jurisdiction only for the purpose of resolving disputes Plaintiffs properly raised prior to

12 July 1, 2010 pursuant to paragraphs 79 and 80 of the Agreement, as amended in 2007.

13 II. Motion to Reconsider
14

15

Defendants further request that the Court reconsider the requirement of its Order

16 that the parties stipulate to a jurisdiction that the Defendants dispute. Especially since

17 Defendants’ efforts to comply with Judge Roll’s November 22, 2010 order (Dkt. 530) by
18 engaging in the mediation that wound up falling after February 1, 2011 has been deemed
19
20 a waiver, Defendants are concerned that the required stipulation could also be interpreted

21 as a waiver of their right to contest these matters in the future. Defendants therefore

22 respectfully ask the Court to reconsider the requirement for a stipulation and instead enter

23 an order extending jurisdiction on the basis it believes appropriate.
24

25

RESPECTFULLY SUBMITTED this 12th day of March 2012.

26

THOMAS C. HORNE

Attorney General 27

28 4

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 5 of 7

1

By:__S/Greg Honig____________

2

Gregory D. Honig, State Bar No. 018804 Kevin D. Ray, State Bar No. 007485

3

Assistant Attorneys General 1275 West Washington Street

4

Phoenix, Arizona 85007-2926 Attorneys for Defendants Humble and

5

Nelson, ADHS

6

By: s/Logan Johnston

Logan T. Johnston

7

JOHNSTON LAW OFFICE, PLC

8

1402 E. Mescal Street

Phoenix, AZ 85020

9

Attorney for Defendant Betlach

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 6 of 7

1

CERTIFICATE OF SERVICE

2

I, Logan Johnston, an attorney, hereby certify that on March 12, 2012, I

3 electronically transmitted the foregoing Defendants’ Motion to Clarify and Reconsider,

4 using the ECF System for filing and transmittal of a Notice of Electronic filing and to

5 ECF registrants. I further certify that a copy of the foregoing Motion was mailed this 6 March 12, 2012, to the following:

7 Honorable A. Wallace Tashima
8 U.S. District Court

9

405 W. Congress Street Tucson, AZ 85701

10 Anne C. Ronan
11 Arizona Center for Law in the Public Interest

12 202 E. McDowell Road, Suite 153 Phoenix, AZ 85004
13

14

Ira A. Burnim Alison N. Burkoff

15 BAZELON CENTER FOR MENTAL HEALTH LAW 1101 Fifteenth Street N.W., Suite 212
16 Washington, D.C. 20005-5002

17 Patrick Gardner

18 NATIONAL CENTER FOR YOUTH LAW

19

405 14th Street, Suite 1500 Oakland, California 94612-2701

20 Edward L. Myers III
21 ARIZONA CENTER FOR DISABILITY LAW
22 5025 E. Washington Street, Suite 202 Phoenix, AZ 85034
23 Attorney for Plaintiffs

24

25

26 ___s/ Logan Johnston__________

27

28 6

Case 4:91-cv-00261-AWT Document 568 Filed 03/12/12 Page 7 of 7

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 J.K. a minor by and through R.K., et al.,

9 10 v.

Plaintiffs,

CASE NO. 4:09-CV-00558-PHX-JMR

11 12 13

WILL HUMBLE, in his official capacity as interim Director of the Arizona Department of Health Services; DR. LAURA NELSON, in her official capacity as Director, Division of

ORDER GRANTING DEFENDANTS’ MOTION TO CLARIFY AND RECONSIDER

14 Behavioral Health Services, Arizona Department of Health Services; THOMAS J.
15 BETLACH, in his official capacity as Director

16 of the Arizona Health Care Cost Containment System,

17

Defendants. 18

19

Having considered Defendants’ Motion to Clarify and Reconsider, IT IS

20 HEREBY ORDERED GRANTING said motion and clarifying its order substituting

21 Logan T. Johnston of Johnston Law Offices PLC in place of David L. Niederdeppe and

22 Paul E. Steen of Ryan Rapp Underwood, PLC. as counsel for Defendants. 23

24

By:

Judge, United States District Court 25

26

27

28 7

 
 Case 4:91-cv-00261-AWT Document 575 Filed 04/09/12 Page 1 of 1

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 J.K., a minor by and through R.K., et al.,)

on behalf of themselves and all others)

10 similarly situated

)

)

11

Plaintiffs,

)

)

12 vs.

)

)

13

)

WILL HUMBLE, et al.,

)

14

)

Defendants.

)

15

)

)

16

No. 91-CV-261-TUC-AWT ORDER

17

The parties have moved for an extension of time to submit a list of possible candidates

18 to recommend to the Court to be appointed as a Special Master in this case (Doc. 574).

19

IT IS HEREBY ORDERED that the parties’ motion for an extension of time (Doc.

20 574) is granted. The parties shall have until April 17, 2012 to submit their proposed list to

21 the Court.

22

DATED this 7th day of April, 2012.

23

24

25

26

27

28

 
 Case 4:91-cv-00261-AWT Document 576 Filed 04/09/12 Page 1 of 1

""AO 435 (Rev 10/05)
Read InstructIOns on Back

Administrative Office ofthe United States Courts TRANSCRIPT ORDER

FOR COURT USE ONLY DUE DATE:

I NAME
Anne Ronan

2 PHONE NUMBER
(602) 258-8850

3 DATE
4/9/2012

4 FIRM NAME
Arizona Center for Law in the Public Interest

5. MAILING ADDRESS
202 E. McDowell Road, Suite 153

9 CASE NUMBER
CIV91-261

/10 JUDGE Wallace Tashima

13 CASE NAME
J.K. v. Will Humble

o16. ORDER FOR APPEAL D NON-APPEAL

D CRIMINAL
IZI CIVIL

6. CITY
Phoenix
II. 3/19/2012
14.

7. STATE
AZ

18. ZIP CODE
85004

DATES OF PROCEEDINGS 12.
LOCATION OF PROCEEDINGS
IS. STATE Tucson AZ

D CRIMINAL JUSTICE ACT D IN FORMA PAUPERIS

D BANKRUPTCY
D OTHER (Speqfy)

17 TRANSCRIPT REQUES TED (SpecifY portiones) and daters) ofproceeding(s) for which transcript is requested)

3/19/12 - All

PORTIONS DVOIRDIRE

D OPENING STATEMENT (Plaintiff)

D OPENING STATEMENT (Defendant)

D CLOSING ARGUMENT (Plaintiff)
o CLOSING ARGUMENT (Defendant) o OPINION OF COURT o JURY INSTRUCTIONS o SENTENCING

D BAIL HEARING

18. ORDER CATEGORY 30 DAYS

ORIGINAL + I
(original to COUlt, CODV to ordering nartv)
D

14 DAYS

D

7 DAYS

0

DAILY

0

HOURLY

0

REALTIME

0

DATE(S)

FIRST COPY
D
D
D
0 0
D

#OF ADDITIONAL
COPIES

CERTIFICATION (19 & 20)

By signing below, I certifY that I will pay all charges

\
\
19 Sf P~TURE
1~.tJ

(deposit plus additional)
(!1M!J1;V

20. DATE 4/9/2012
TRANSCRIPT TO BE PREPARED BY

PORTIONeS)
D TESTIMONY (Specify

DATE(S)

D PRE-TRIAL PROCEEDING

III OTHER (SpecifY)
Entire Transcript of Heariw 3/19/12

DELIVERY INSTRUCTIONS (check all that apply)

PAPER COPY

D

E-MAIL

IZI

DISK

D

PDF FORMAT

D

ASCII FORMAT

D

E-MAIL ADDRESS
aronan@aclpi . org

ESTIMATED COSTS
,
,.,
--

NOTE: IF ORDERING BOTH PAPER AND

ELECTRONIC COPIES, THERE WILL BE AN

,

ADDITIONAL CHARGE.

ESTIMATE TOTAL

0.00

ORDER RECEIVED

DATE

BY

PROCESSED BY

PHONE NUMBER

DEPOSIT PAID

,.

TRANSCRIPT ORDERED

TRANSCRIPT RECEIVED ORDERING PARTY NOTIFIED TO PICK UP TRANSCRIPT

PARTY RECEIVED TRA"ISCRIPT

DEPOSIT PAID TOTAL CHARGES LESS DEPOSIT TOTAL REFUNDED TOTAL DFE

0.00 0.00
0.00

DlSIRIBU nON:

CUUKI (OPY

I KANS( KIP IIUN <- upy

ORmR RECEIPT

URDER COpy

 
 Case 4:91-cv-00261-AWT Document 582 Filed 04/20/12 Page 1 of 5

1 THOMAS C. HORNE

2

ARIZONA ATTORNEY GENERAL Firm Bar No. 14000

3

Gregory D. Honig, State Bar No. 018804

4 Kevin D. Ray, State Bar No. 007485

Assistant Attorneys General

5 1275 West Washington Street

Phoenix, Arizona 85007-2926 6 Telephone: (602) 542-8328

7

Fax: (602) 364-0700 E-mail: EducationHealth@azag.gov

8 Attorneys for Defendants Humble and Nelson, ADHS

9 Logan T. Johnston, AZ Bar #009484
10 JOHNSTON LAW OFFICES, P.L.C. 1402 E. Mescal Street
11 Phoenix, Arizona 85020
Telephone: (602) 452-0615 12 Facsimile: (602) 716-5997
13 ltjohnston@johnstonlawoffices.net Attorneys for Defendant Betlach
14

15

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

16

J.K. a minor by and through R.K., et al., 17

CASE NO. CIV-91-261-TUC-AWT

18 v.
19

Plaintiffs,

20 21 22 23 24

WILL HUMBLE, in his official capacity as interim Director of the Arizona Department of Health Services; DR. LAURA NELSON, in her official capacity as Director, Division of Behavioral Health Services, Arizona Department of Health Services; THOMAS J. BETLACH, in his official capacity as Director of the Arizona Health Care Cost Containment

NOTICE OF FILING DEFENDANTS’ PROPOSED ORDER REGARDING REFERENCE TO A SPECIAL MASTER AND OBJECTION TO ONE OF PLAINTIFFS’ CANDIDATES FOR SPECIAL MASTER

25 System,

26

Defendants

27

28

Case 4:91-cv-00261-AWT Document 582 Filed 04/20/12 Page 2 of 5

1 The Defendants submit 1) the attached proposed order appointing a Special Master
2 pursuant to Rule 53 of the Federal Rules of Civil Procedure, in accordance with the
3
4 objections and briefing of this issue (Dkt. 569) and the discussion in court on March 19,

5 2012 (See transcript at Dkt. 577) and 2) their objection to consideration of former judge

6 Rebecca Albrecht as the special master.

7

1. Reference Order. The Court’s Order re: Motions to Terminate the Court’s

8 Jurisdiction and for Attorneys’ Fees (Dkt. 561) (“the Order”) raised the subject of

9 referring this matter to a special master pursuant to Rule 53, Federal Rules of Civil
10 Procedure, and permitted the parties to file briefs on the subject. The Defendants filed a
11
12 brief (Dkt. 569) stating they did not object to the appointment of a special master for the

13 limited purpose of “determining 1) whether Plaintiffs must state with greater particularity

14 how they claim the Defendants have violated the terms of the Settlement Agreement; 2)
15 determining whether Plaintiffs state a claim; and, if so, 3) making a recommendation to
16
17 the Court as to how best to proceed, e.g. the mediation that has never been realistically

18 possible for lack of resolution of issues 1 and 2 or the extensive discovery that would be

19 necessary if the claims must be litigated.” If discovery proves necessary, Defendants also

20 said they would consent to a special master to oversee discovery.
21

22

As the Defendants explained, their position was consistent with Judge Roll’s

23 comments on the subject in November 2010, which were:

24

Perhaps we should look to the use of a special master, who would be able to arrive

25

at exactly what the issues are in this case and then to advance some

recommendations to me as far as the interpretation of the agreement and what has

26

been accomplished so far and what would still need to be done, and maybe that

27

would position us then to go back to mediation or possibly to some settlement if you had the benefit of that. . . .

28 2

Case 4:91-cv-00261-AWT Document 582 Filed 04/20/12 Page 3 of 5

1

2

[Responding to Defendants’ counsel’s argument that “we need the Court's help to decide what issues are on the table for dispute resolution”] And I guess my view is

3

that perhaps that could be the great value of a special master, as far as having the

parties formulate exactly what the issues are as far as what remains to be done or

4

where the disputes are in that regard.

5 Transcript, November 22, 2010, Dkt. 535, pp. 12, 16.
6

7

Plaintiffs filed no brief. At the March 19, 2012 status conference, Defendants

8 reiterated their position. The Plaintiffs did not object or propose an expansion of the

9 scope. They even agreed there was a threshold issue that needed resolution. Dkt. 577,
10 pp. 4-5. This afternoon, however, Plaintiffs have lodged a proposed order characterizing
11 12 Defendants’ claims, characterizing the prior history between the parties, authorizing the

13 special master to hire experts, authorizing the special master to try the case, allocating

14 themselves no part of the cost of the special master or his/her expenses, permitting ex
15 parte discussions between the special master and the parties, and raising other matters
16 17 far beyond the scope of anything discussed with the Court or that Defendants would ever

18 consent to.

19

Defendants, by the attached proposed order, have reduced Plaintiffs’ proposed

20

order to elements they would consent to and that were discussed with the Court. 21

22

2. Even though they acknowledged on March 19, 2012 that the Defendants

23 had informed them former judge Rebecca Albrecht was unacceptable (Dkt. 577, pp. 1124
12), they have nonetheless proposed her as a possible special master in this case. Judge 25
26 Albrecht acted briefly as a mediator in this dispute in 2010 and therefore has already had

27 access to confidential information about the parties’ settlement positions that may not be

28 3

Case 4:91-cv-00261-AWT Document 582 Filed 04/20/12 Page 4 of 5

1 appropriate for a special master. The Defendants respectfully submit any special master

2 should address this case with a blank slate. Presumably, any of the other three qualified 3
candidates would do so. In addition, the undersigned was not counsel of record in 2010 4
5 when the parties agreed to Judge Albrecht’s role as a mediator. AHCCCS would not

6 consent to her playing that role (or the role of special master) today.

7 RESPECTFULLY SUBMITTED this 20th day of April 2012.
8

9 THOMAS C. HORNE

10

Attorney General

11

By:__s/Greg Honig________

12

Gregory D. Honig, State Bar No. 018804 Kevin D. Ray, State Bar No. 007485

13

Assistant Attorneys General

1275 West Washington Street

14

Phoenix, Arizona 85007-2926

Attorneys for Defendants Humble and

15

Nelson, ADHS

16

By: s/ Logan Johnston

17

Logan T. Johnston

JOHNSTON LAW OFFICE, PLC

18

1402 E. Mescal Street

Phoenix, AZ 85020

19

Attorney for Defendant Betlach

20

21

22

23

24

25

26

27

28 4

Case 4:91-cv-00261-AWT Document 582 Filed 04/20/12 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I, Logan Johnston, an attorney, hereby certify that on April 20, 2012, I

3 electronically transmitted the foregoing Notice, using the ECF System for filing and

4 transmittal of a Notice of Electronic filing and to ECF registrants. I further certify that a

5 copy of the foregoing Motion was mailed this April 20, 2012, to the following:

6

Honorable A. Wallace Tashima 7 U.S. District Court

8 405 W. Congress Street Tucson, AZ 85701

9

10

Anne C. Ronan Arizona Center for Law in the Public Interest

11 202 E. McDowell Road, Suite 153 Phoenix, AZ 85004
12

13 Ira A. Burnim Alison N. Burkoff
14 BAZELON CENTER FOR MENTAL HEALTH LAW 1101 Fifteenth Street N.W., Suite 212
15 Washington, D.C. 20005-5002

16 Patrick Gardner
17 NATIONAL CENTER FOR YOUTH LAW 18 405 14th Street, Suite 1500
Oakland, California 94612-2701
19
Edward L. Myers III 20 ARIZONA CENTER FOR DISABILITY LAW
21 5025 E. Washington Street, Suite 202 Phoenix, AZ 85034
22 Attorney for Plaintiffs

23

24 _____s/ Logan Johnston___________

25

26

27

28 5

 
 Case 4:91-cv-00261-AWT Document 582-1 Filed 04/20/12 Page 1 of 4

1
UNITED STATES DISTRICT COURT
2

3

DISTRICT OF ARIZONA

4 J.K., a minor by and through R.K., et al., on behalf of themselves and all others
5 similarly situated,

6
7
vs.
8

Plaintiffs,

9 WILL HUMBLE, in his official capacity as Interim Director of the Arizona Department
10 of Health Services; DR. LAURA NELSON, in her official capacity as Director, Division
11 of Behavioral Health Services, Arizona, 12 Department of Health Services; THOMAS
J. BETLACH, in his official capacity as 13 Director, Arizona Health Care Cost
Containment System,
14

15

Defendants.

No. CIV 91-261 TUC-AWT
[PROPOSED] ORDER APPOINTING SPECIAL MASTER PURSUANT TO RULE 53 OF FEDERAL RULES OF CIVIL PROCEDURE
(Honorable A. Wallace Tashima)

16

17
APPOINTMENT OF SPECIAL MASTER
18
1. The Court finds that it is necessary to appoint [NAME OF SPECIAL
19

20 MASTER] as Special Master in this matter.

21

2. The Court finds that the appointment of a Special Master is required here to

22 resolve the threshold dispute described in paragraph 8 below.

23

3. The Special Master’s appointment will become effective upon her/his filing

24 an affidavit disclosing that there is no ground for disqualification under 28 U.S.C.§ 455.

25 See Fed. R. Civ. P. 53(a)(2) &(b)(3).

26

4. The Special Master’s term of service will end when her/his duties are

27 completed or the Court terminates the appointment, whichever comes first.

28

Case 4:91-cv-00261-AWT Document 582-1 Filed 04/20/12 Page 2 of 4

1
5. The Special Master shall proceed with all reasonable diligence to perform
2
her/his duties. See Fed. R. Civ. P. 53(b)(2). As appropriate, the Special Master shall seek,
3

4 and try to promote, the resolution of issues by agreement.

5

6. [NAME OF SPECIAL MASTER] is well-qualified to serve as the Special

6 Master in this matter.

7

7. Plaintiffs and Defendants have consented to the Court’s appointing a Special

8 Master in this case for the limited purpose of recommending a resolution of the dispute

9 described in paragraph 8 below.

10

SPECIAL MASTER’S DUTIES

11

8. The parties differ in their interpretation of the Settlement Agreement.

12 Plaintiffs assert that the Settlement Agreement requires development of a behavioral

13 health system that delivers services according to the “J.K. Principles, including by

14 expanding intensive-community-based services, creating an effective training program,

15 and changing the quality management system. (Dkt. 473, Ex. 11). As more fully set forth

16 in Defendants’ Cross-Motion to Dismiss (Dkt. 473), the Defendants assert that the

17 Plaintiffs have not stated a claim for violation of the Settlement Agreement and the

18 dispute resolution process required by the Agreement was aborted by the Plaintiffs.

19

9. By [DATE], the Special Master shall issue a written report recommending

20 to the Court a resolution of the parties’ differences concerning the interpretation of the

21 Settlement Agreement and whether and, if so, how to proceed in resolving any legitimate

22 dispute under the Agreement. Before issuing her/his report, the Special Master Special

23 may meet with the parties together to discuss and better understand the nature of their

24 differences, and may require the parties to file briefs and present oral argument.

25

26

27

28 2

Case 4:91-cv-00261-AWT Document 582-1 Filed 04/20/12 Page 3 of 4

1
10. The Special Master shall file with the Court a complete record of the
2
information and documents considered in issuing his or her findings and recommendation.
3
In her/his discretion, the Special Master may file parts of the record under seal.
4
SPECIAL MASTER’S AUTHORITY
5
11. The Special Master shall have the authority to take appropriate measures to
6
perform her/his duties fairly and efficiently, and regulate all proceedings before her/him..
7
8 See Fed. R. Civ. P. 53(c).

9

12. The Special Master may communicate ex parte with the Court. When

10 practicable, the Special Master will give the parties advance notice of such

11 communications. If advance notice is not practicable, the parties will be informed that an

12 ex parte communication has occurred.

13 OBJECTIONS TO ORDERS, FINDINGS, OR RECOMMENDATIONS

14

13. Any party may file objections to or a motion to adopt or modify an order,

15
report, or recommendation of the Special Master. Objections shall be filed no later than
16
10 days after the order, report, or recommendation is filed, unless the Special Master or
17
the Court enters an order allowing a greater period of time. Objections shall be specific
18
19 and accompanied by a memorandum describing the legal and factual basis for the

20 objection.

21

14. The Court will decide de novo objections to finding of facts or conclusions

22 of law made or recommended by the Special Master. The Court will modify or set aside

23 the Special Master’s decisions with respect to procedural matters only for abuse of

24 discretion.

25

BUDGET AND COMPENSATION

26

27

28 3

Case 4:91-cv-00261-AWT Document 582-1 Filed 04/20/12 Page 4 of 4

1
15. The Court will fix the Special Master’s compensation and will establish a
2
budget for the Special Master.
3

4

16. Within 14 days of this Order and after consultation with the parties, the

5 Special Master will submit to the Court a proposed budget for six months of work,

6 including a proposed hourly rate and an estimate of expenses. After consulting with the

7 Special Master, the Court will approve the proposed budget, with any revisions the Court

8 deems appropriate.

9

17. Every two months, the Special Master will provide the Court and the parties

10 with a statement of time spent performing her/his duties, as well as any expenses incurred,
11
including the cost of experts.
12
ALLOCATION OF COST
13
18. The Court will allocate the compensation for time and expenses reasonably
14
15 incurred by the special master as it deems appropriate to be sure both parties have an
16 incentive to make timely progress in the resolution of the dispute described in paragraph 8

17 above.

18

OTHER MATTERS

19

19. The Special Master shall enjoy the same protections from being compelled

20 to give testimony and from liability for damages as those enjoyed by other federal judicial

21 officers performing similar functions.
22
20. The Special Master will preserve records relating to her/his work as Special
23
Master until relieved of this obligation by order of the Court.
24
Dated this __ of _____, 2012.
25
________________________
26

27

28 4

 
 Case 4:91-cv-00261-AWT Document 586 Filed 11/15/12 Page 1 of 4

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

9 J.K., a minor by and through R.K., et al., )

on behalf of them selves and all othe rs)

10 similarly situated,

)

)

11

Plaintiffs,

)

)

12 vs.

)

)

13

)

WILL HUMBLE, in his official capacity )

14 as Interim Director of the Arizona )

Department of Health Services; DR. )

15 LAURA NELSON, in her official capacity)

as Director, Division of Behavioral Health)

16 Services, Arizona Departm ent of Health )

Services; THOMAS J. BETLACH, in his)

17 official capacity as Director, Arizona )

Health Care Cost Containment System, )

18

)

Defendants.

)

19

)

)

20

)

No. CV 91-261 TUC-AWT ORDER APPOINTING SPECIAL MASTER

21

With the consent of the parties, the Court finds that the appointment of a Special

22 Master will advance the resolution of this case and of the pending disputes between the

23 parties. The Court, therefore, appoints Justice Ruth V. McGregor (Retired) as Special

24 Master in this matter to carry out the duties, and subject to the conditions, set forth below.

25

1. The Special Master’s appointment will become effective upon the filing of

26 this order and her filing an affidavit or declaration disclosing that there is no ground for

27 disqualification under 28 U.S.C. § 455. See Fed. R. Civ. P. 53(a)(2) & (b)(3).

28

Case 4:91-cv-00261-AWT Document 586 Filed 11/15/12 Page 2 of 4

1

2. The Special Master’s term of service shall end when her duties are

2 completed or the Court terminates the appointment, whichever comes first.

3

3. After canvassing the candidates submitted by the parties, the Court finds

4 that Ruth V. McGregor is well-qualified to serve as the Special Master in this matter.

5

4. The Special Master shall proceed with all reasonable diligence to perform

6 her duties. See Fed. R. Civ. P. 53(b)(2). As appropriate, the Special Master shall seek to

7 promote the resolution of the issues submitted to her by conciliation and agreement.

8

Special Master’s Duties

9

5. The parties differ in their interpretation of the Settlement Agreement.

10 Plaintiffs contend that the Agreement requires development of a behavioral health system

11 that delivers services according to the J.K. principles, including by expanding intensive-

12 community-based services, creating an effective training program, and changing the

13 quality management system (Dkt. 473, Ex. 11). As set forth in their Cross-Motion to

14 Dismiss (Dkt. 473), Defendants contend that Plaintiffs have not stated a claim for

15 violation of the Settlement Agreement and that the dispute resolution process under the

16 Agreement was aborted by Plaintiffs.

17

6. Within six months of her appointment, or as extended, the Special Master

18 shall issue a report and recommendation to the Court of a resolution of the parties’

19 differences concerning the interpretation of the Settlement Agreement and whether and, if

20 so, how to proceed in resolving any disputes arising under the Agreement. The

21 procedures to be followed by the Special Master in reaching her report and

22 recommendation shall be as the Special Master deems necessary, and may include

23 meeting and discussing with the parties the nature of their differences and briefing and/or

24 oral argument by the parties.

25

7. Together with her report and recommendation, the Special Master shall

26 lodge with the Court a complete record of the evidence and documents considered by her

27

28

- 2 -

Case 4:91-cv-00261-AWT Document 586 Filed 11/15/12 Page 3 of 4

1 in issuing her report and recommendation. In her discretion, the Special Master may file

2 such parts of the record as she deems necessary under seal.

3

Special Master’s Authority

4

8. The Special Master shall have the authority to take appropriate measures to

5 perform her duties fairly and efficiently, and regulate all proceedings before her. See Fed.

6 R. Civ. P. 53(c).

7

9. Defendants shall make the officials and records of the Arizona Health Care

8 Cost Containment System (“AHCCCS”) and related state agencies available to the

9 Special Master and any experts retained by her for such interviews and review as the

10 Special Master deems necessary and appropriate.

11

10. The Special Master shall have the authority to retain experts to assist her in

12 carrying out her duties under this order, but before exercising that authority, shall either

13 (a) obtain the consent of the parties to the retention of any expert, or (b) absent such

14 consent, make application to the Court for leave to retain such expert.

15

Objections to Orders, Report and Recommendation

16

11. Any party may file an objection to or a motion to adopt or modify an order,

17 report, or recommendation of the Special Master. Objections shall be filed no later than

18 10 days after the order, report, or recommendation is filed, unless the Special Master or

19 the Court orders a greater period of time. Objections shall be specific and accompanied

20 by a memorandum describing the legal and factual bases of the objection.

21

12. The Court shall decide de novo objections to findings of fact and/or

22 conclusions of law made or recommended by the Special Master. The Court will modify

23 or set aside the Special Master’s orders with respect to procedural matters only for an

24 abuse of discretion.

25

Compensation

26

13. The Special Master shall be compensated for all of her time reasonably

27 required in the performance of her duties at such rate as the Court approves, after

28

- 3 -

Case 4:91-cv-00261-AWT Document 586 Filed 11/15/12 Page 4 of 4

1 application by the Special Master, but expects that such compensation shall be at a rate

2 not greater than the prevailing rate in the Phoenix and Tucson areas. The Special Master

3 shall file and serve upon the parties her application(s) for compensation, and reimbursable

4 expenses (including the cost of any experts), each calendar quarter. The Special Master’s

5 initial application for compensation shall include her recommendation as to how the cost

6 of her services and costs should be allocated between the parties. The Court shall allocate

7 any compensation awarded to the Special Master between the parties in a manner

8 determined by the Court to be just, reasonable, and appropriate, after notice and hearing.

9

10 Dated this 14th day of November, 2012.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 4 -

 
 836 F.Supp. 694 (1993)
J.K., a minor, By and Through R.K., et al., on behalf of themselves and all others similarly situated, Plaintiffs, v.
Jack DILLENBERG, in his official capacity as Director of the Arizona Department of Health Services; Charles Carbone, in his official capacity as Director, Division of Behavioral Health Services, Arizona Department of Health Services; Mabel Chen,[1] in her official
capacity as Acting Director, Arizona Health Care Cost Containment System, Defendants.
No. CIV 91-261 TUC JMR.
United States District Court, D. Arizona.
October 7, 1993.
695 *695 Leslie J. Cohen and Jane Hudson, Arizona Center for Law in the Public Interest, Tucson, AZ, and William E. Morris, Southern Arizona Legal Aid, Inc., Tucson, AZ, for plaintiffs.
Andrew M. Federhar and Timothy Berg, Fenemore Craig, P.C., Tucson, AZ, and C. Eileen Bond, Office of Atty. Gen., Phoenix, AZ, for defendants Jack Dillenberg and Charles Carbone.
Logan T. Johnston, Margo L. Friedland and Catherine M. Dodd, Johnston, Maynard, Grant & Parker, Phoenix, AZ, for defendant Mabel Chen, M.D.
ORDER
ROLL, District Judge.
INTRODUCTION
696 The instant action challenges the sufficiency of behavioral health services provided eligible *696 children pursuant to the state of Arizona's Medicaid plan. The Second Amended Complaint alleges that state administration of that program violates controlling federal statutes and their implementing regulations. In particular, Plaintiffs contend that the state has imposed or knowingly sanctioned unlawful restrictions on the scope, duration, and amount of medically necessary mental health services, and similarly violated federal regulations governing their termination, suspension, and reduction. The Court previously certified this case as a class action, encompassing those children who are or who will become eligible for Title XIX behavioral health services furnished at Defendants' direction.
Defendant Jack Dillenberg is Director of the Arizona Department of Health Services ("ADHS"). Defendant Charles Carbone is Deputy Director of ADHS's Division of Behavioral Health Services ("DBHS"). DBHS is responsible for providing mental health services for Title XIX children. Defendant Mabel Chen is Acting Director of the Arizona Health Care Cost Containment System ("AHCCCS"), the single state Medicaid agency responsible for the provision of Title XIX children's mental health services in Arizona. DBHS, by contract, provides Title XIX mandated mental health services to children through six regional behavioral health authorities ("REBHA") located throughout the state.
Currently before the Court are the parties' cross-motions for summary judgment and the Defendants' individual and joint motions to dismiss. For the following reasons, Plaintiffs' motion for summary judgment is granted in part. Defendants' various joint and individual motions are denied.

RELEVANT FEDERAL LAW
"In 1965, Congress established `Medicaid,' a cooperative federal state health benefits assistance program designed to provide necessary medical services to low income persons." Citizens Action League v. Kizer, 887 F.2d 1003, 1005 (9th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990). Title XIX of the Social Security Act, codified at 42 U.S.C. § 1396 et seq., requires that states which accept Medicaid funding provide early and periodic screening and diagnostic procedures to all Title XIX eligible children and to provide those children with treatment for all mental illnesses discovered through the screening process. State governments possess primary responsibility for administration of the program, but in so doing must abide by the requirements of the Act to qualify for receipt of federal Medicaid funds. Beltran v. Myers, 701 F.2d 91, 92 (9th Cir), cert. denied, 462 U.S. 1134, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983).
State participation in the Medicaid program is optional. If a state does elect to participate, it must comply with all provisions of the federal Medicaid statute and implementing regulations, except insofar as individual requirements may be waived by the federal government. Id.
States maintaining medical assistance plans approved by the Secretary of the United States Department of Health and Human Services receive federal financial assistance partly underwriting operation of their Medicaid program. 42 U.S.C. § 1396(b). These medical assistance plans designate services that the state will make available to eligible individuals. Arizona participates in the Medicaid program through its Arizona Health Care Cost Containment System ("AHCCCS"). A.R.S. § 36-2907.01. If a state chooses to participate, it stands to lose its federal funding if it fails to comply with the federal statute and regulations. Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 2636-37, 69 L.Ed.2d 460 (1981); Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511, 515 (5th Cir. 1983).
State Medicaid plans must provide that the amount, duration, and scope of each covered service will remain sufficient or reasonably achieve the purpose of the service provided. 42 C.F.R. § 440.230(b). Federal regulations prohibit Defendants from denying or reducing the amount, duration or scope of the Title XIX covered services 697 based on the diagnosis, type of illness or condition suffered. 42 C.F.R. § 440.230(c). States *697 must make payments to mental health treatment providers adequate to ensure that their services remain available to Medicaid recipients to at least the extent that such services are available to the general population. 42 C.F.R. § 447.204. Coverage is not boundless; an agency "may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures." 42 C.F.R. § 440.230(d). Finally, and crucial to the issues at stake here, whenever a state takes an action to reduce, suspend, or terminate Title XIX services, the state or local agency must give ten days written notice, an opportunity to appeal, and maintain services during the appeal process. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.200-431.250.
FACTUAL BACKGROUND
The uncontroverted facts are as follows. The Arizona Department of Health Services entered into a contract with CODAMA, the REBHA serving Maricopa County, to provide behavioral health services to eligible children in that area. The contract recognizes and requires CODAMA to comply with all applicable state and federal laws. In January of 1993, CODAMA introduced a new policy, with certain exceptions,[2] whereby Title XIX children residing in residential treatment centers or therapeutic group homes would be discharged from treatment in ninety days.
As to the individual named Plaintiffs,[3] Plaintiff K.P. has Tourette's Syndrome and resides at a residential treatment center in Scottsdale.[4] K.P.'s mother was orally informed that his stay at the center had been terminated pursuant to the new policy. When written notice came, it did not contain details explaining the reasons for K.P.'s termination nor any information regarding the appeals process. K.P.'s doctor recommends a continued stay at the facility.

Plaintiff S.M. suffers from bi-polar disorder, post-traumatic stress syndrome, and has a history of abuse. She resides at a residential treatment center in Phoenix. Her residence was terminated through written notification. However, the letter does not explain the reasons for termination, procedures for appeal and retention of services pending appeal. S.M.'s treatment team recommends continued residential placement as medically necessary.
DISCUSSION
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Class Plaintiffs move for summary judgment, requesting a ruling requiring Defendants to follow Medicaid statutory regulations mandating that treatment decisions be made on the basis of medical necessity, and that prior to termination or reduction of services, reasonable notice, including information regarding the patient's rights to and pending appeal, be given. Defendants cross-move arguing that Plaintiffs have no entitlement to prior notice, hearing, and continued services when there is a change in the amount or level of services.
I.
Defendant Chen concedes that federal law requires notice of an action terminating, suspending, or reducing Medicaid eligibility or covered services, but that this requirement applies only to the state and not to independent contractors hired to perform certain services. In other words, it is Chen's position that the REBHAs are responsible for the decision making that Plaintiffs seek to enjoin, but that they function as private entities whose actions cannot be attributed to the state.
The state action inquiry divides along several broad lines. The first looks at whether the private actor was 698 engaging in a *698 traditional government function. A government function is one that has been typically
performed by government exclusively. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-54, 95 S.Ct. 449, 454-55, 42 L.Ed.2d 477 (1974) (no state action in the operation of a private utility company even though it was given virtual monopoly status and licensed by the state). The government function analysis is quite restrictive and the mere operation of business which could be performed by a government will not be construed as a public function. Id. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (no state action in the sale of a debtor's goods by a warehouseman even though a state law authorized such sales); Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (first amendment did not apply to privately owned shopping centers); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company town encompassing both residential and commercial districts was subject to the limits of the first and fourteenth amendments).
In a second category of cases, state action is based on the relationship between the government and activities of the alleged wrongdoer. State action will be found where the wrongdoer has been commanded or encouraged by government to engage in the activity which has harmed the aggrieved party. The decision is made ad hoc by "sifting facts and weighing circumstances." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). State action may be present when the actor is subject to extensive government regulation. The Supreme Court has rarely so held.
Alternatively, state action may be found in situations in which the private enterprise has multiple contacts with the government. Courts look to see if a "symbiotic relationship" between the public and private entities has been formed. Id. at 725, 81 S.Ct. at 861. State action may be present in those cases in which the government provides subsidies or aid. Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974) (city could not grant exclusive use of public facilities to racially segregated groups even on a temporary basis because that would constitute a subsidy to the racially discriminatory practices). There must be more than receipt of government funds for constitutional principles to apply, however.
The pivotal authority in this area is Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). In Blum, the Supreme Court found that due process principles did not apply to a nursing home's decision whether to

discharge or transfer patients even though the home and patients received substantial government funding. Although patients suffered a diminution in medicaid benefits following discharge or transfer, the Court found that the reduction in benefits was merely the incidental result of the decision of a private entity.
Superficially, Blum would appear to govern and answer the state action question in the negative. However, numerous and significant facts distinguish this case from the nursing home involved in Blum. Plaintiffs herein are not complaining about the actions of a private provider but of a private entity that has been assigned the entire responsibility for a state-created service. REBHAs are exclusively devoted to those patients who can claim an entitlement to state support. In Plaintiffs' words, "[r]eference to state legislation confirms that the REBHAs are creatures of the sovereign will, conceived as vehicles for execution of evolving public policy on the mental health needs of the population." See Arnold v. Arizona Department of Health Services, 160 Ariz. 593, 594-96, 775 P.2d 521, 522-24 (1989) (the treatment of the chronically mentally ill has been deemed by the legislature to be the responsibility of the state).
Moreover, the private providers in Blum were not executing state responsibilities but were independent actors doing business with the state. Conversely, the state of Arizona has delegated the entire responsibility for its mandated health care duties to the REBHAs as its means of carrying out its public duties. Also, unlike the Blum situation, the REBHAs are subject to extensive state involvement. According to its contract, each REBHA is 699 required to "comply with all Federal, State, and local laws, rules, regulations, *699 standards and executive orders, governing performance of duties under this Contract, without limitation to those designated within this Contract.... [and] shall comply with provisions of federal laws and regulations governing the Title XIX Program...." The contract further provides that the REBHA "shall comply with the provisions of A.R.S. § 36-2901 et seq. governing the Arizona Health Care Cost Containment System and all applicable rules promulgated by AHCCSA."
In sum, the Court finds that Class Plaintiffs are entitled to a declaration that the actions undertaken by CODAMA, to the extent that are later proven to be an impermissible reduction of services, were effected on behalf of the government and constitute state action.
II.
Along a similar line, Defendants Dillenberg and Carbone argue that the REBHAs are independent contractors and therefore cannot be deemed to maintain an agency relationship with the state, rendering the state immune from Plaintiffs' complaints. "An independent contractor is a person who contracts with another to do something for [the other] but who is not controlled by the other nor subject to the other's right to control with respect to [the] physical conduct in the performance of the undertaking. [S]he may or may not be an agent." Restatement (Second) of Agency § 2(3) (1958). The existence of an agency relationship is determined by looking at the parties' intent. Salt River Valley Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976). Right of control of one party by another is key. Restatement (Second) of Agency § 1 (1958). Thus, despite Defendants assertions to the contrary, an independent contractor and an agency relationship are not mutually exclusive concepts. Restatement (Second) of Agency § 14N (1958) ("One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor.").
As framed by Defendants, for an agency relationship to exist it must be "because the principal ha[s] the authority to issue orders that the contracting party, like CODAMA, could not ignore." Clearly, Defendants have exerted and continue to exert a great deal of control over the REBHAs. See Plaintiffs' Exhibit 19 (letter to CODAMA CEO from Defendant Carbone, ordering CODAMA to follow acceptable procedures during the pendency of this lawsuit, illustrating that they not only have the authority to exercise such control, they have actually exercised it). Additionally, the contract itself, not an insubstantial document, reserves numerous areas of control for the state.
Even assuming the REBHAs to be independent contractors, certain duties are non-delegable. See Cooke v. Berlin, 153 Ariz. 220, 223, 735 P.2d 830, 833 (App.1987) (state mental health center was liable for negligent acts of sub-contracting doctor because "the state undertook to provide a nondelegable duty to prove adequate care."). In a negligence case, the nondelegable duty exception "refers to duties for which the employer must retain responsibility, despite proper delegation to another. Such situations exist where the employer is under a higher

duty to some class of person. This duty may be imposed by statute, by contract, by franchise or charter, or by the common law." Ft. Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990). Pursuant to contract, the REBHAs have agreed to follow federal regulations.
The public policy implications of Defendants' position, if accepted, would be devastating. It is patently unreasonable to presume that Congress would permit a state to disclaim federal responsibilities by contracting away its obligations to a private entity. See Cowan v. Myers, 187 Cal.App.3d 968, 232 Cal.Rptr. 299 (1986), cert. denied, 484 U.S. 846, 108 S.Ct. 140, 98 L.Ed.2d 97 (1987). The law demands that the designated single state Medicaid agency must oversee and remain accountable for uniform statewide utilization review procedures conforming to bona fide standards of medical necessity. See Visser v. Taylor, 756 F.Supp. 501 (D.Kan.1990).
700 *700 For the reasons canvassed above, Defendants Dillenberg and Carbone's argument is rejected.
III.
Plaintiffs next ask that the Defendants be ordered to make all decisions to terminate or reduce services to class members based on a determination of medical necessity, provide prior notices of any reduction, termination, or suspension of services including discharge from residential treatment or group home, and follow procedures for reasonable notice and fair hearing.
Defendants counter that the relevant federal regulations cover an individual's initial and continued eligibility only, and not the type of determinations made herein. They characterize the procedures at issue here as "utilization review" and merely concern decisions regarding level of care. Defendants further distinguish the reduction or termination of a program-wide benefit from a change in the level of services, and allege that latter does not prompt due process concerns. See Banks v. Secretary of the Indian Family and Social Services Administration, 997 F.2d 231 (7th Cir.1993) (provider reimbursement determinations do not prompt due process concerns); compare Kimble v. Solomon, 599 F.2d 599 (4th Cir.) cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1979); (notice and hearing required when a state changes its law to reduce or eliminate grants for classes of recipients). Indeed, the "agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures." 42 C.F.R. § 440.230(d). What the agency cannot do is to make eligibility determinations without due process protections.
On the record before it, the Court must conclude that neither side is entitled to summary judgment on these claims. The documents Plaintiffs produced speak of devising a course of treatment so that the patient may be released into a less restrictive environment within ninety days of admission to a restrictive facility. On its face, the discharge policy implicates only discretionary decisions as to how the REBHAs are to execute their contractual obligations, not a policy effecting entitlements.[5] Plaintiffs will have to present their case to a factfinder to make these determinations.
Likewise, Defendants have not met their corresponding burden of proving that the actions taken in this case constitute individual treatment decisions exempt from due process concerns. Defendants have raised unanswered questions of fact and thus summary judgment is inappropriate.
DEFENDANTS' MOTIONS TO DISMISS
In addition to the parties' cross-motions for summary judgment, Defendants have filed individual motions to dismiss. All Defendants insist that the Plaintiffs have no claim because they have suffered no deprivation of services. They further complain that Plaintiffs have been vague in their allegations and there is little before the Court that supports the class allegation that medically necessary services have been denied.
In considering a motion to dismiss for failure to state a claim, the complaint is liberally construed and viewed in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The purpose of the motion to dismiss is to test the formal sufficiency of the pleadings that constitute the claim. 5A Wright & Miller, Federal Practice and Procedure § 1356 (1990). It is not "a procedure for resolving a

contest about the facts or the merits of the case." Id. A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir.1990).
Plaintiffs will ultimately bear the burden of proving that they have been denied medically necessary services. 701 However, they have sufficiently alleged that they are in danger of suffering future harm due to Defendants' *701
plan to withdraw certain services.[6] The Second Amended Complaint is sufficiently plead in order to survive a Rule 12(b)(6) challenge.
Defendants Dillenberg and Carbone raise the additional argument that this Court's jurisdiction is limited to deciding whether the agency's action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Defendants' argument does not command dismissal. Indeed, the Court has been called on to determine whether the agency's actions are "in accordance with the law." Defendants have not shown that they are entitled to judgment.
CONCLUSION
Plaintiffs' "Motion for Partial Summary Judgment" is GRANTED IN PART to the extent that the Court finds that state action is present in this case. Plaintiffs' motion in all other respects is DENIED because there are genuine questions of material in fact in dispute precluding summary judgment. Defendants' individual and joint "Motions for Summary Judgment" are DENIED. Defendants' individual "Motions to Dismiss" are DENIED.
[1] Pursuant to Fed.R.Civ.P. 25(d)(1), Dr. Mabel Chen is substituted for Defendant Leonard Kirschner.
[2] A child could remain in treatment if (1) the child had an Arizona Department of Education funded individual education plan, or (2) the provider successfully petitioned CODAMA to grant an exception.
[3] Plaintiff S.P., although discussed at great length in Plaintiffs' papers, has since been voluntarily dismissed from the case.
[4] Treatment has not been interrupted during this litigation.
[5] States "may adopt standards for determining the extent of medical assistance, requiring only that such standards be `reasonable' and `consistent with the objectives of the Act.'" Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977).
[6] Plaintiff K.P. is enrolled in a residential treatment center. His mother was contacted and told that he was to be discharged six days hence, even though K.P.'s doctor recommended against it. See Second Amended Complaint, ¶¶ 71, 72, 73. In the case of S.M., Plaintiffs allege that CODAMA has informed her that her funding for residential placement has expired. See Second Amended Complaint, ¶¶ 82, 85.
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 Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 1 of 16

1 Ruth V. McGregor, AZ Bar No. 003820 2 7601 North Central Avenue, Unit 23
Phoenix, Arizona 85020 3 (602) 370-4029 4 mcgregorspecialmaster@gmail.com

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11

12 J.K., a minor by and through R.K., et al., on

13

behalf of themselves and all others similarly situated,

14

Plaintiffs,

15 v.

16 WILL HUMBLE, in his official capacity as
17 Interim Director of the Arizona Department of Health Services; DR. LAURA NELSON,
18 in her official capacity as Director, Division of Behavioral Health Services; THOMAS J.
19 BETLACH, in his official capacity as Director, Arizona Health Care Cost
20 Containment System

No. CV-91-261 TUC-AWT
SPECIAL MASTER’S REPORT AND RECOMMENDATIONS

21

Defendants.

22

23

24

On November 15, 2012, Judge A. Wallace Tashima appointed the undersigned as

25 Special Master in this matter. The appointment followed several attempts by the parties

26 to agree upon the proper interpretation of the parties’ 2001 Settlement Agreement (the 27 Agreement or SA) and to define those issues remaining for resolution by the Court. 28 Judge Tashima directed that, within six months of appointment, I should issue a report

Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 2 of 16

1 and recommendations “concerning the interpretation of the Settlement Agreement and
whether and, if so, how to proceed in resolving any disputes arising under the 2
Agreement.” Dkt. 586. 3
After meeting informally with the parties and their attorneys, the special master 4
directed that the parties submit written memoranda analyzing the issues in dispute. As to 5
each issue, the parties were to “define those provisions in the Agreement that affect the 6
issue; what the parties intended in adopting the relevant provisions; what relevant 7
extrinsic evidence can be considered in determining the intent of the parties; and what 8
standard the Court should apply to measure compliance with the relevant provision.” 9
Dkt. 589, December 20, 2012. The parties filed their respective memoranda on January 10
24, 2013, [Dkt. 592 and 594] and their responses on February 4, 2013. Dkt. 595, 596.
11 The special master heard oral argument on February 21, 2013. Dkt. 598; TR at
12 Dkt. 603. The parties filed post-hearing memoranda on March 4, 2013. Dkt. 601, 602.

13 The special master provided a draft copy of this Report to the parties on April 24, 2013,

14 and allowed them to file objections and recommendations on or before May 6, 2013.

15 After considering those objections, in conjunction with previously-filed documents and

16 argument, I submit this Report and Recommendations. 1

17

Background

18

The current dispute arises out of the Settlement Agreement entered between the

19 parties in 2001 and extended in 2006.2 In 2009, plaintiffs invoked the dispute resolution

20 provisions of Section IX of the Agreement by sending a letter to defendants. In their

21 letter of March 6, 2009 (the March 2009 letter),3 plaintiffs listed six “serious” issues in

22 dispute. Although the parties disagree as to the scope of the issues defined by plaintiffs

23 and the analysis required to resolve these issues, they have reached agreement in several

24

25

1 All materials considered by the special master are part of the record; no materials

26 were filed under seal.

27

2 The Settlement Agreement appears in the record in several locations. It appears in electronic format at Dkt. 592, Ex. A.

28

3 The March 2009 letter appears in electronic format at Dkt. 491, Ex. 11.

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 3 of 16

1 areas.

First, the parties agree that the Court retains jurisdiction to resolve the issues 2

plaintiffs raised in the March 2009 letter and that their current dispute is limited to those 3

matters raised in the letter. They also agree that the Agreement should be interpreted as a 4
contract and that the laws of Arizona govern its interpretation. 5
The parties also do not dispute the basic rules that apply to contract interpretation 6
in Arizona. They agree that the party alleging a breach bears the burden of proving the 7
breach. They also agree that a court’s objective in interpreting a contract is to arrive at 8
the intent of the parties as expressed in the contract and that the court should give words
9 their ordinary meaning; read the contract as a whole, giving effect to the main purpose of

10 the instrument; and interpret the contract so as to make it effective and reasonable. E.g.,

11 Phelps Dodge Corp. v. Brown, 112 Ariz. 179, 181, 540 P.2d 651, 653 (1975).

12

Several other aspects of Arizona law affect the resolution of these disputes. First,

13 Arizona has adopted the general principles of the Restatement (Second) of Contracts

14 (1979) to guide judicial interpretation of contracts. See Gordinier v. Aetna Casualty &

15 Surety Co., 154 Ariz. 266, 742 P.2d 277 (1987). In addition, Arizona law “implies a

16 covenant of good faith and fair dealing in every contract.” Rawlings v. Apodaca, 151

17 Ariz. 149, 153, 726 P.2d 565, 569 (1986). “Such implied terms are as much a part of the

18 contract as are the express terms.” Wells Fargo Bank v. Arizona Laborers, Pension Trust

19 Fund, 201 Ariz. 474, 490, 38 P.3d 12, 28 (2002).

20

Measure of Compliance

21

Although the parties agree as to the basic rules governing contract interpretation in

22 Arizona, they disagree about the test to apply to determine whether defendants have

23 breached any contractual obligation. Plaintiffs assert that the test is whether defendants

24 have substantially complied with the terms of the Agreement. Defendants, who initially

25 argued that the substantial compliance test applies, now assert that, because many of the

26 terms of the Agreement created qualitative obligations to which no objective performance

27 standards apply and left implementation in many areas to the defendants’ discretion, their

28 performance should be measured under a standard of good faith. Given the terms and

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 4 of 16

1 structure of the Agreement, both parties’ arguments find support in the law of Arizona
and, in application, are not inconsistent. 2
Plaintiffs correctly assert that Arizona measures alleged breaches of contract under 3
the doctrine of substantial compliance. Matson v. Bradbury, 40 Ariz. 140, 144, 10 P.2d 4
376, 378 (1932). To determine questions of substantial compliance, a court generally 5
considers the promised performance, the purpose of the contract, and the extent to which 6
any defects in performance have frustrated the purpose of the contract. See Foundation 7
Development Corp. v. Loehman’s, Inc., 163 Ariz. 438, 446-47, 788 P.2d 1189, 1197-98 8
(1990) (citing Restatement (Second) of Contracts § 241). 9
Although the doctrine of substantial compliance applies to all alleged breaches of 10
contract, precisely what constitutes substantial compliance must be measured according 11
to the nature of the promised performance. The doctrine provides a relatively easy test to
12 apply when a contract defines a quantitative standard to use in measuring a party’s
13 promised performance. The substantial compliance test is more difficult to apply when,
14 as in this case, some terms of an agreement create qualitative obligations for which the
15 parties have defined no objective standards of performance.

16

Defendants correctly point out that the language of the Agreement defines many of

17 defendants’ obligations, including “core obligations,” in qualitative terms and provides

18 no objective standard by which to measure performance. By way of example, the

19 Agreement describes the parties’ intent as being to “substantially improve the system for

20 delivery of behavioral health services,” SA.I.1, states that defendants “agree to foster the

21 development” of a system that “delivers services according to [the Agreement’s]

22 Principles,” SA.III.14, and requires that defendants “move as quickly as practicable” to

23 develop the system, SA.III.15. In these and other instances, the Agreement affords the

24 defendants discretion in how to implement qualitative obligations. In contrast, other

25 terms of the contract, particularly those in Section VI, define more specific steps that

26 defendants must take, some of which apply objective standards and some of which define

27 defendants’ obligations in qualitative terms, as discussed below.

28

Whether a contract defines contractual obligations in qualitative or quantitative

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 5 of 16

1 terms, however, the first task in resolving questions of substantial compliance is to define the nature of the promised performance. When a party’s promised performance relates to
2 a qualitative term of a contract that affords the party discretion in performance, the
3 analysis of whether the party has breached that contractual term typically turns on
4 whether the party has breached the covenant of good faith and fair dealing. See, e.g.,
5 Labor/Community Strategy Center v. LA County Metropolitan Transp. Auth., 564 F.3d
6 1115 (9th Cir. 2009); Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 424, 46 P.3d 431,
7 435 (App. 2002).
8 The reason for applying a good faith analysis in such instances seems clear.
9 Unless some standard limits a party’s exercise of discretion in performing qualitative
10 terms of a contract, an allegedly breaching party could assert that any activity fell within
11 the ambit of his discretionary duties and thus fulfilled the promised performance.
12 Because that approach could result in enforcing an outcome inconsistent with the 13 intention of the parties, most courts, including those of Arizona, regard the covenant of
14 good faith and fair dealing as an implied term of every contract. “The duty to perform in
15 good faith applies when one party exercises discretion in performance and thereby
16 controls the other party’s anticipated benefit. The good faith performance doctrine may
17 be said to permit the exercise of discretion for any purpose—including ordinary business
18 purposes—reasonably within the contemplation of the parties. A contract thus would be
19 breached by a failure to perform in good faith if a party uses its discretion for a reason
20 outside the contemplated range—a reason beyond the risks assumed by the party

21 claiming a breach.” Steven J. Burton, Breach of Contract and the Common Law Duty to

22 Perform in Good Faith, 94 Harv. L. Rev. 369, 385-86 (1980). Even discretionary duties,

23 therefore, must be performed in a manner that does not defeat the parties’ purpose in

24 entering the contract and in a manner consistent with a party’s justified expectations.

25 Wells Fargo Bank, 201 Ariz. at 492, 38 P.3d at 30.

26

Although plaintiffs here did not allege that defendants breached the covenant of

27 good faith and fair dealing, plaintiffs’ claims, for the most part, must rely on that implied

28 covenant. Under the express terms of the Agreement, defendants’ obligations are, in

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 6 of 16

1 many instances, defined only by subjective standards that afford the defendants
considerable discretion. Absent application of the covenant, defendants could assert that 2
any exercise of discretion satisfied their obligations. Under Arizona law, however, 3
defendants could exercise the discretion afforded by the contract only in a manner 4
consistent with the purpose of the Agreement and in a manner consistent with plaintiffs’ 5
reasonably expected benefits. 6
Issues Set Out in Plaintiffs’ March 6, 2009 Letter 7
Although the parties agree that the disputes over which the Court retains 8
jurisdiction are those set out in the March 2009 letter, they disagree over the scope of the 9
disputes as defined in the letter. At the hearing before Judge Roll on November 22, 2010, 10
plaintiffs acknowledged that they were bound by the parameters of the issues they raised
11 in the letter.4 Dkt. 535 at 17. On later occasions, however, plaintiffs have suggested that
12 the scope of the dispute before the Court is considerably broader than those specific
13 issues set out in their letter. E.g., Dkt. 594, 14-16. The Court must determine, then,
14 whether plaintiffs can argue matters not expressly raised in the March 2009 letter.

15

Section IX of the Agreement, which describes the dispute resolution process

16 available under the Agreement, defines a sequential process that begins when a party

17 submits to all other parties “a written statement of the issue in dispute.” SA.IX.A.59.

18 Given the detail with which the parties describe the dispute resolution process and the

19 express requirement that a party begin the process by providing a written statement of the

20 issue[s] in dispute, the most reasonable interpretation of the provision is that the parties

21 intended to define and limit the issues in dispute, an outcome that is possible only if

22 disputed issues are defined with some specificity. I therefore conclude that the issues in

23 dispute are limited to those six issues specifically identified as serious remaining issues

24

25

4 At the hearing, Judge Roll reminded the parties of his earlier concerns related to the lack of specificity in the Agreement: “Again I recall back many years ago when this

26

was discussed, and it’s my recollection I expressed some concern about the lack of precision as far as exactly what was contemplated by the agreement, and I was assured

27

that it would come together and that details would be worked out, but obviously, after all these years, they have not been worked out.” Dkt. 535 at 12. As these proceedings

28

demonstrate, Judge Roll accurately predicted the parties’ difficulty in applying the imprecise terms of the Agreement.

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 7 of 16

1 on page 3 of the March 2009 letter.

Plaintiffs object to this recommendation, arguing that portions of the March 9 2

letter that precede the listing of specific issues should be included as part of the 3

allegations at issue. That argument appears inconsistent with plaintiffs’ own approach to 4

the nature of the letter. First, plaintiffs use the introductory portions of the letter as a 5

general explanation of why the six “serious issues” remain. Second, plaintiffs agreed, 6

both before Judge Roll and the special master, that the disputes remaining are those six

7 issues set out in the March 2009 letter. Although plaintiffs’ statements recognizing the

8 limits of the disputes at issue certainly do not constitute admissions, they are helpful in

9 determining what plaintiffs intended to accomplish in their letter.

10 As to each of the six serious issues defined by plaintiffs, I make the following

11 recommendations.

12

Issue 1

13

Issue 1 in plaintiffs’ March 9 letter includes two distinct allegations. First,

14 plaintiffs allege that defendants “failed to meet their core obligation under the Settlement

15 Agreement to develop (at first by July 2007, but now by July 2010); a Title XIX

16 behavioral health system that delivers services according to the J.K. Principles.”

17 Second, plaintiffs allege that defendants “have not made changes to ‘contracts, decisions,

18 practice guidelines and other policies’ needed to achieve the Principles for class

19 members.”5

20

Although plaintiffs’ March 2009 letter does not identify the specific provisions of

21 the Agreement that defendants allegedly breached, their first allegation relies initially

22 upon Section III.14 of the Agreement, which states that defendants “agree to foster the

23 development of a Title XIX behavioral health system” that delivers services according to

24 the Principles defined in Section V of the Agreement. The plaintiffs also point to

25 paragraphs 15 and 16 in Section III, which require, respectively, that defendants “move

26 as quickly as practicable to develop” a system that delivers services in accord with the

27

28

5 Plaintiffs end by stating, “Major failings are described below,” apparently referring to the five more specific issues that follow.

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 8 of 16

1 Principles and that defendants conform “all contracts, decisions, practice guidelines and

policies” to be consistent with and designed to achieve the Principles. 2

The parties’ disagreement as to the scope of defendants’ obligations under 3

paragraphs 14 through 16 of the Agreement is at the heart of their dispute. Defendants 4
argue that paragraph 14 requires only that they “foster,” or encourage, the development 5
of the described system and that nothing in the Agreement requires them to “develop” or 6
ensure any particular system. Plaintiffs assert that paragraph 15, which requires that 7
defendants move as quickly as practicable “to develop” a system and maintain that 8
system for “the term of this Agreement” essentially expands the scope of defendants’
9 obligations under paragraph 14. These two interpretations of the Agreement cannot be

10 reconciled; one must be selected as the more reasonable interpretation of the parties’

11 intent at the time of the Agreement.

12

The first task in interpreting these basic provisions of the contract is to define the

13 promised performance: Did defendants agreed to “develop” the described system or,

14 more modestly, to “foster” the development of such a system? I conclude that the

15 express language of paragraph 14, which requires defendants to “foster” the system,

16 discloses the parties’ intent. Several other factors favor that interpretation. First,

17 paragraphs 15 and 16, as structured and placed in the Agreement, add to but do not

18 redefine the initial, basic requirement of paragraph 14. Second, other portions of the

19 Agreement indicate that the parties understood that the defendants would foster, not

20 assure, development of the system. The Recitals, in Section I.1, state that the parties

21 intend to “substantially improve” the delivery of services and that implementing the

22 Agreement will require “initiatives to improve front-line practice, enhance the capacity of

23 private agencies to deliver needed services, promote collaboration among public

24 agencies, and develop a quality management and improvement system focused on sound

25 practice.” (Emphases added.) All these general terms are consistent with an intent to

26 foster development of an improved system rather than an intent to require development of

27 a specific system.

28

If the language of the Agreement were not sufficiently clear to discern the parties’

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 9 of 16

1 intent, external evidence of the circumstances surrounding the settlement negotiations provides strong support for defendants’ argument.6 In November 2000, plaintiffs
2 submitted a draft Settlement Agreement that stated in part: “Defendants shall a) ensure
3 that by July 1, 2006, behavioral health services are provided to class members in
4 conformity with the ‘principles’ in Section V below.” Dkt. 592, Ex. B, II(a) (emphasis
5 added). But the Agreement as adopted describes defendants’ obligation as being to
6 “foster,” rather than “ensure,” development of a Title XIX behavioral health system that
7 delivers services according to the Principles. Dkt. 592, Ex. A,III.14. In addition, while
8 plaintiffs’ draft document included a date certain for performance, the Agreement as
9 adopted requires that defendants “move as quickly as practicable” to develop the
10 described system. Id. 15.7 11
Plaintiffs’ allegation in Issue 1 of the March 2009 letter that defendants have
12 failed to develop a particular system by July 2012, returns to the language of the
13 proposed, but rejected, draft settlement agreement. The final Agreement simply does not
14 require either that defendants “develop” a desired system or that they do so by a date
15 certain. By asserting that defendants failed to meet their core obligation to develop a
16 system that delivers services by a defined date, plaintiffs have moved beyond the

17 language of the contract and now seek to impose obligations not a part of the Agreement.

18 While the allegation may describe plaintiffs’ intent in bringing the underlying action, it

19 does not describe the parties’ intent as reflected in the language of the Agreement.

20

I recommend that the Court find, as a matter of law, that the Agreement does not

21

22

6 Section 212(1), Restatement (Second) of Contracts, on which Arizona relies,

23

points out that the interpretation of an integrated contract “is directed to the meaning of the terms of the writing or writings in the light of the circumstances, in accordance with

24

the rules stated in this Chapter.” Comment b further explains that the rule of subsection (1) should not be limited to cases in which the language used is ambiguous, as any

25

determination of meaning or ambiguity should be made only in light of the relevant evidence of the situation and the relations of the parties.

26

7 Plaintiffs point to memoranda and letters prepared by plaintiffs during the years

27

after execution of the Agreement to support their argument that the Agreement requires defendants to develop, rather than to foster the development of, a specific system.

28

Documents not directly related to the parties’ intent at the time of an agreement provide little relevant information as to intent at the time of execution of a document.

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 10 of 16

1 obligate defendants to develop a behavioral health system that delivers services according
to the J.K. principles by a time certain. 2
Plaintiffs object to this recommendation, arguing that, while the letter may have 3
been inartfully drafted, plaintiffs previously had put defendants on notice that they were 4
required to move as quickly as practicable to develop a system that complied with the 5
Principles. Therefore, plaintiffs conclude, this statement in Issue 1 should be regarded as 6
alleging not that defendants failed to develop a system by a time certain but rather as 7
stating that defendants did not move as quickly as practicable, as required by paragraph 8
15 of the Agreement. 9
In my view, plaintiffs seek more than an alternate interpretation of an inartfully10
described “serious issue.” Plaintiffs chose the language to define their dispute with 11
defendants and chose very specific language. Asserting that defendants failed to develop
12 a system by a date certain is different in kind than asserting that defendants failed to
13 move as quickly as practicable to foster the development of a system. The nature of
14 defendants’ required performance differs substantially under the two assertions. While
15 plaintiffs could have defined the issues in dispute differently, they did not. This

16 assertion, as described, does not allege a violation of any obligation imposed by the

17 Agreement.

18

The second allegation of Issue 1 does involve an obligation imposed on

19 defendants by the Agreement. Drawing on language taken directly from Section III.16 of

20 the Agreement, plaintiffs charge that defendants “have not made changes to ‘contracts,

21 decisions, practice guidelines and other policies’ needed to achieve the Principles for

22 class members.” Paragraph 16 defines defendants’ obligation in broad, general terms,

23 includes no objective standards by which to measure compliance with this obligation, and

24 allows defendants to exercise discretion in conforming the documents and policies to be

25 “consistent with and designed to achieve” the Principles. Under these circumstances,

26 defendants’ performance should be measured against their obligation to comply with the

27 covenant of good faith and fair dealing. To establish this allegation, plaintiffs must show

28 that defendants exercised their discretion to make changes needed to achieve the

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 11 of 16

1 Principles in a manner not consistent with the covenant of good faith and fair dealing.
Issue 2 2
In Issue 2, plaintiffs charge that defendants failed to design a quality management 3
system (QM system) that measures whether services “are designed and implemented to 4
achieve the J.K. functional outcomes” and “generate[s] information on whether services 5
are provided in the most integrated setting, or on the sufficiency of interagency 6
collaboration.” In addition, plaintiffs allege, defendants have not developed adequate 7
systems to review individual cases. These requirements, plaintiffs assert, form a critical 8
part of the remedy provided under the terms of the Agreement. 9
This disputed issue arises from obligations imposed on defendants by Sections 10
III.17(i) and VIII.55 of the Agreement. Paragraph 55, the most specific, requires that 11
defendants “change their quality management and improvement system so that it
12 measures whether services to class members are consistent with and designed to achieve
13 the Principles . . . .” (Emphasis added.) Defendants assert that the parties intended to
14 give defendants flexibility in adopting changes to the QM system, rather than to be
15 prescriptive.

16

I conclude that plaintiffs have defined a dispute that raises factual issues as to

17 whether defendants performed their obligations. Defendants correctly assert that the

18 language of the contract clearly affords defendants discretion in developing and

19 implementing a QM system. It is also clear, however, that defendants promised to

20 change their QM system so that it performs the required measurements. The system, as

21 developed and implemented by defendants, either measures whether services provided

22 are consistent with and designed to achieve the Principles, or it does not. The

23 measurement process either did include an in-depth review of a sample of individual

24 cases, or it did not. The Agreement does not give plaintiffs authority to design or select

25 defendants’ QM system, but the Agreement does define measurable standards for

26 evaluating defendants’ performance. If the plaintiffs establish that defendants’ QM

27 system does not fulfill the requirements of paragraph 55, then defendants have breached

28 this obligation.

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 12 of 16

1

Issue 3

Plaintiffs’ basic allegation in Issue 3 is that defendants failed to develop a 2

functioning QM system that identifies enrolled children with high needs. In addition, 3

plaintiffs assert, defendants failed to expand services to this group by failing to reallocate 4
money from costly residential care and that defendants have hired too few case managers 5
for high-needs children. Defendants respond that the Agreement exacts no promise that 6
they will develop the services sought or expand the number of case managers for high7
needs children. 8
As defendants argue, the Agreement does not obligate defendants to develop the
9 specific services now sought by plaintiffs, and plaintiffs cannot establish a breach of

10 contract for failing to provide services not required by the Agreement. These

11 allegations, however, do relate to the challenges plaintiffs raised to the QM system as

12 developed by defendants. High-needs children are part of the class certified by the Court,

13 and any promised performance that relates to the entire class also applies to these

14 plaintiffs. For that reason, plaintiffs’ allegation that defendants failed to develop a

15 functioning QM system that measures whether services for high-needs children are

16 consistent with and designed to achieve the Principles falls within the allegations of Issue

17 2. Factual questions related to defendants’ promise to develop a QM system that

18 measures whether services for high-needs children are consistent with the Principles,

19 particularly those described in Section V, paragraphs 21, 23, 25 and 27, can be developed

20 as part of the inquiry under Issue 2.

21

Issue 4

22

Plaintiffs assert, as their basis for Issue 4, that defendants provide inadequate

23 services to address substance abuse among high-needs children. Defendants respond that

24 their obligations with regard to substance abuse are clearly defined in Section VI.H.52.

25 As defendants correctly note, paragraph 52, the only contractual provision that addresses

26 substance abuse treatment services, requires that defendants “develop a plan for the

27 expansion of substance abuse treatment services as part of its first Annual Action Plan.”

28 Plaintiffs do not dispute that defendants completed the performance promised under

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 13 of 16

1 paragraph 52. Defendants have fulfilled their contractual obligations related to substance

abuse services; no additional issues remain for the Court’s consideration. 2

Issue 5 3

Issue 5 rests upon the premise that defendants have made little change in the 4
treatment of 18- to 21-year-olds in the behavioral health system. As defendants correctly 5
respond, no promised performance or time table applies to this group. Defendants have 6
breached no obligation undertaken as to these patients, when identified as a separate 7
group. As is true of the high-needs children to whom plaintiffs referred in Issue 3, 8
however, defendants owe these children, as part of the class, any obligations owed to the
9 entire class. Questions related to defendants’ promise to develop a QM system that

10 measures whether services for these children are consistent with the Principles can be

11 raised as part of the inquiry under Issue 2.

12

Issue 6

13

The final issue raised in the March 2009 letter involves defendants’ alleged failure

14 to develop a training program that meets the specifications of the Agreement.

15 Specifically, plaintiffs allege, “there are not qualified trainers in sufficient numbers, and

16 the program fails to impart sufficient knowledge and skills to enable staff to provide

17 services according to the Principles.” Defendants respond that, because the contractual

18 provisions related to the training program do not require specific numbers of trainers but,

19 rather, afford defendants discretion in carrying out this obligation, defendants fulfilled

20 their obligations if they hired trainers in a number they deemed sufficient.

21

In Section VI of the Agreement, titled “Specific Steps,” the parties adopted several

22 specific provisions that describe the promised training program in some detail. See SA,

23 VI.A.32-39. With regard to the specific allegations made by plaintiffs, paragraph 39

24 defines defendants’ promised performance as follows: “The behavioral health system will

25 have qualified trainers in sufficient numbers to train front-line staff and supervisors.”

26 (Emphasis added.) Paragraph 35 directs defendants to design a training program “to

27 provide front-line staff and supervisors sufficient knowledge and skills to enable them to

28 plan and provide services consistent with the Principles.” As defendants point out, the

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 14 of 16

1 Agreement includes no quantitative measurements related to training and vests discretion

in defendants. The covenant of good faith and fair dealing, however, requires that 2

defendants provide trainers and training in sufficient quantity to fall within the reasonable 3
contemplation of the parties. Whether the plan developed by defendants fulfills the 4
covenant of good faith and fair dealing raises factual issues for the Court’s consideration. 5
Recommendations 6
Based upon the foregoing analysis, I recommend that the Court proceed as 7
follows: 8
1. The Court should limit the disputes before the Court for resolution to 9
those six issues expressly raised in plaintiffs’ March 2009 letter. The 10
result of doing so will be to reject those arguments by plaintiffs that 11

12

depend upon the general introductory language of the letter and those

13

arguments that rely upon allegations of the Complaint rather than

14

upon terms of the Settlement Agreement.

15

2. The Court should interpret the Settlement Agreement as a contract,

16

applying the local law of Arizona, including Arizona’s reliance upon

17

the Restatement (Second) of Contracts and Arizona’s interpretation of

18

all contracts as including an implied covenant of good faith and fair

19

dealing.

20

3. Arizona requires that, to establish a breach of contract, a party must

21

establish that the breaching party failed to substantially comply with

22

the terms of the contract, which requires a showing that the party

23

failed to deliver the promised performance and that the defect in

24

performance frustrated the purpose of the contract.

25

4. Several of plaintiffs’ allegations involve obligations described in

26

qualitative terms, which provide no objective standard by which to

27

judge performance and which afford defendants discretion in carrying

28

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Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 15 of 16

1

out their obligations. Those allegations should be considered as

2

alleging a breach of the implied covenant of good faith and fair

3

dealing.

4

5. I recommend that the Court hold that plaintiff’s first allegation in

5

Issue 1 of the March 2009 letter does not raise a dispute cognizable

6

under the Settlement Agreement, as the Agreement does not obligate

7

defendants to develop a system that delivers prescribed services by a

8

date certain.

9

6. Plaintiffs’ second allegation in Issue 1, that defendants failed to make

10

the changes to “all contracts, decisions, practice guidelines and other

11

policies” needed to achieve the Principles, raises factual issues that

12

must be resolved to determine whether defendants breached the

13

implied covenant of good faith and fair dealing.

14

7. In Issue 2, plaintiffs allege that defendants failed to develop a quality

15

management assurance system that performs certain required

16 measurements. Paragraph 55 of the Agreement defines measurable
17 standards for evaluating defendants’ performance; these allegations
18 require factual development.
19
8. In Issue 3, plaintiffs allege that defendants’ quality assurance system 20

21

does not measure whether services provided for high-needs children

22

are provided consistent with and to further the Principles. This

23

allegation is part of the argument related to Issue 2 and should be

24

considered in conjunction with that issue.

25

9. I recommend that the Court hold as a matter of law that defendants

26

have complied with the contractual obligations related to substance

27

abuse treatment, as defined by Paragraph 52 of the Agreement and

28

that no dispute remains as to Issue 4.

- 15 -

Case 4:91-cv-00261-AWT Document 607 Filed 05/17/13 Page 16 of 16

1

10. In Issue 5, plaintiffs allege that defendants’ quality assurance

2

program does not measure whether services for 18- to 21-year-old

3

children are being provided in a manner consistent with and to further

4

the Principles. This allegation is part of the argument related to Issue

5

2 and should be considered in conjunction with that issue.

6

11. Issue 6 requires the Court to determine whether defendants have

7

complied with the obligations described in paragraphs 32 through 39,

8

which require development of a training program that provides staff

9

and supervisors sufficient knowledge and skills and sufficient trainers

10

to provide services consistent with the Principles. These allegations

11

require factual development.

12 DATED this 17th day of May, 2013.
13

14
__________________________ 15
Ruth V. McGregor 16
Special Master 17

18

19

20

21

22

23

24

25

26

27

28

- 16 -

 
 Arizona Center for Disability Law
Protection and Advocacy System for Arizona
September 17, 2003
Leslie Schwalbe Deputy Director Arizona Department of Health Services 150 North 18th Avenue 2nd Floor Phoenix, Arizona 85007
Re: J.K. v. Eden
Dear Leslie,
Thank you for meeting with us. We appreciate the progress that has been made on several fronts. We also appreciated the opportunity to discuss the challenges the system faces.
As we mentioned, it is time, in our view, for the system to begin seriously the process of self-monitoring and of generating data that allows stakeholders to follow the progress of and challenges in the system. In our view, two types of data should be distributed within the system and to the community at large: (a) data on whether children are being served in accord with the Arizona vision, and (b) data on changes in the infrastructure of the system. Eventually, and hopefully soon, data should also be collected and distributed on outcomes for children. We suspect, however, that it is not feasible for the system to do so at the present time. Each set of data has its own importance. In addition, correlations between data sets can yield important information.
In our view, the system has matured to the point such activity is expected, would be positive for stakeholders and would accelerate system change. Disseminating report cards on indicators of change will re-enforce the message from ADHS and Value Options that change is expected. Additionally, self-monitoring will help facilitate a common understanding within the system of good practice. It will promote an ongoing dialogue, prompted especially by case reviews, about what the Arizona vision means in individual cases and what system supports are required to ensure its implementation consistently across cases.

Third Street P Suite 209 P Phoenix, Arizona 85012 (602) 274-6287 (Voice/TDD) P Fax (602) 274-6779

3839 North

Leslie Schwalbe September 17, 2003 Page 2
We propose that a small group be convened to quickly identify the data to be consistently collected and reported over time. We would like to participate in that group, and have some ideas about its membership that we will share if you wish. The group could start with a proposed data set, like the one we outline below. Its job would be to identify a data set that:

•

would be informative on key issues

•

the system can generate without undue burden

•

includes both qualitative and quantitative indicators aids management of the system, and

•

promotes learning and system improvement.

DATA SET

In our judgment, the most useful data set would be along the following lines. The data would be reported for each RBHA and within Maricopa County, for each CSP. By and large, the data would be collected by the RBHA’s and CSP'S. Not only would this be most practical, but it underscores the expectation that RBHA's and CSP's must examine their own practice.

Indicators of Good Practice

1. Children with plans developed according to the Arizona model The number would
be self-reported by the RBHA or CSP. It is an indicator of the number of children "in the CFT process." It is a quantitative measure, not a qualitative one. The number should grow significantly over time. Some definition would need to be developed about what it means to be in the CFT process, based on the CFT PIP and the JK principles. It would include, at a minimum, that a CFT has been assembled, has completed a strengths and culture discovery, has identified needs, has developed and is implementing a service plan and is meeting to monitor progress and adjust the plan as needed.

2. Number of children reviewed in a case review process, and percentage of such
children judged as being served according to the principles. This is a qualitative measure. Of
the children “in the CFT process,” what percentage of cases get "passing scores" when a sample is reviewed through a case review process? This number should grow over time. In our view, this data point should also be self-reported by the RBHA's and the CSP'S. Each should have some process by which reviewers, at least half of whom should be from outside the RBHA or CSP, regularly review cases. In each case reviewed, the family's view would be solicited and taken into account in arriving at an understanding of the cage. It would be important to report the number of families who feel they are getting what they need for their children. The number of cases each quarter need not be large or statistically significant (although the cumulative figure for the RBHA or CSP, and the system, could become quite large over time). The important thing is that there be constant self-examination and a continuous dialogue about what is good practice. And that the RBHA or CSP watch the trend over time.

We envision that when the above data is reported, it would be displayed along with data

Leslie Schwalbe September 17, 2003 Page 3
indicating the total number of children being served by the RBHA or CSP. Eventually, you may want to enhance this data with some data on the number of children recently enrolled in the system for whom there has not been enough time to develop a plan.

Indicators of System Infrastructure

3. Staffing profile. This would also be by self-report of the RBHA or CSP. Data would
be provided for each RBHA and CSP on the: Number of full time case managers they employ, number of direct care workers (FTE's) they employ and have available through contract, number of family support partners (FTE's) they employ and have available through contract, and number of clinicians (FTE's), and average caseloads. Also the number of internal coaches.

4. Service profile. This would be a report of the amount of money spent by each RBHA and CSP on:

•

administration vs. services (a figure for each side by side, or a ratio)

•

out-patient services vs. out-of-home services (a figure for each side by side, or a ration)

•

therapy vs. other outpatient services (a figure for each side by side, or a ratio) therapeutic

foster care direct care workers home and neighborhood-based respite.

5. Out of home care, by intensity level. This would be a report of the average number of children, during the period, or the number on a specific day, in:

•

hospitals RTC’s

•

ADHS-licensed group homes (Levels I-III)

•

therapeutic foster homes.

OUTCOME (WELLNESS) INDICATORS
If currently feasible, or when it becomes feasible to do so, we would add outcome data to the reporting. We imagine that there would be reporting of Outcome or Wellness Indicators. We struggled with how to define a data set that would be manageable yet highly informative. What we came up with is:

1. Percentage of children living at home (or, alternatively, percentage living at home or with relatives). "At home" would include adoptive homes.

2. Percentage of children with stable placements. The universe would be children in
out of home care. This would be the percentage of those children without an unplanned change in their placement during a specified period. We think the system would also want to report data on the number of children who have had multiple placements during a reporting period. A measure of "multiple placements" would need to be identified, for example, three placements during a three month period.

Leslie Schwalbe September 17, 2003 Page 4
3. Percentage of children regularly attending school or working. This information should be available for children in the CFI process. It may not be available for other cases. But it could be collected by RBHA's and CSP's systematically or via a sample.
4. Percentage of children without encounters with law enforcement. One measure of "an encounter with law enforcement" is an arrest. Another is that the parent or care giver has called the police on account of the child. The system may want to use these measures exclusively.
Please let us know what you think of the above. We look forward to hearing from you, and to continuing to work together to improve Arizona's behavioral health system for children.
Sincerely,
Anne Ronan Staff Attorney

Third Street P Suite 209 P Phoenix, Arizona 85012 (602) 274-6287 (Voice/TDD) P Fax (602) 274-6779

3839 North

 
 202 E. MCDOWELL RD., SUITE 153 PHOENIX, ARIZONA 85004 (602) 258-8850 (602) 258-8757 (FAX) WWW.ACLPI.ORG

January 9, 2006

VIA HAND DELIVERY

Mr. Robert J. Sorce Attorney General’s Office 1275 West Washington Phoenix, Arizona 85007-2926

Mr. Logan T. Johnston Johnston Law Offices, PLC One North First Street, Suite 250 Phoenix, Arizona 85004-2359

Re: JK

Dear Bob and Logan:

Plaintiffs hereby invoke the dispute resolution provisions of Section IX of the Settlement Agreement (“Disputes Regarding Implementation”). Over the course of the implementation period, we have repeatedly raised concerns with Defendants, seeking needed relief through collaborative negotiation. We are now at a critical juncture. Unless bold action is taken, the promise of the Settlement Agreement will never become a reality.

As required by Paragraph 59 of the Settlement Agreement (“Written Statement of Issues in Dispute”), which we now specifically invoke, we reprise our concerns below. We also identify corrective actions we believe are needed. We look forward to meeting with you to try to resolve these matters through collaborative negotiation.

As you know, Plaintiffs have carefully followed Defendants’ implementation activities. In addition to periodic meetings with Defendants, we stay in close touch with knowledgeable individuals at all levels of the behavioral health system. We also participate in key committees and processes in Maricopa County where the majority of class members reside.

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 2
We recognize Defendants have taken important steps toward implementation, including: the covered services initiative, training curricula, national coaches, and Practice Improvement Protocols and Technical Assistance Documents. We also acknowledge the individuals at ADHS, RBHA’s, and providers who have worked to implement JK. Yet as detailed in prior meetings and correspondence, serious issues remain in dispute.
Issue 1: Defendants have failed to meet their core obligations under the Settlement Agreement. Defendants will be unable to develop by July 2007, a Title XIX behavioral health system that delivers services according to the JK Principles. Defendants have not moved as quickly as practicable to develop such a system. As is detailed below, Defendants have not made changes to “contracts, decisions, practice guidelines and other policies” needed to achieve the Principles for class members. As a result, few children are now receiving services in accord with the JK Principles. Sadly, this is also true of children with complex needs who have long been the focus of ADHS’ implementation effort. Delivery of services according to the JK Principles (including an adequately functioning child and family team) is the exception, not the rule. In Maricopa County for example, a recent review found that in only 19% of cases were services delivered according to the JK Principles.
Issue 2: ADHS has failed to create appropriate performance expectations to ensure JK implementation and to hold RBHA’s and providers accountable to those expectations.1 Far too many managers and supervisors at the RBHA and provider level do not give appropriate priority to JK implementation. Until ADHS creates and enforces appropriate performance expectations, this circumstance is unlikely to change
ADHS and the RBHA’s have long lacked two essential tools for imposing accountability: (a) a comprehensive implementation plan -- for ADHS, RBHA’s and providers -- setting out steps and deadlines sufficient to ensure that necessary changes are made,2 and (b) a mechanism for reviewing the fidelity of front-line practice to JK
1 By contrast, ADHS has held RBHA’s accountable for meeting for various expectations not closely related to, and in some cases in conflict with, developing a behavioral health system that delivers services according to the JK Principles.
2 National experts said recently of written implementation plans prepared by the seven comprehensive service providers (CSP’s) in Maricopa County that “the quality of the plans raises questions about the true understanding of the CSPs of the changes needed....”

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 3
Principles, and for reflecting back to service providers areas where performance was inadequate and improvement necessary.
The State Action Plan recently adopted by ADHS does not adequately address systemic deficiencies reflecting little understanding of why front-line practice is not changing or how to ensure that it does. In mid-April 2005, Plaintiffs met with DBHS’ new leadership, Dr. Jerry Dennis, and asked that ADHS finally develop a meaningful implementation plan. A commitment was made to speedily convene an implementation plan meeting that would include Plaintiffs and to complete an implementation plan by mid-July for Maricopa County and then complete plans for other areas of the state. The meeting was postponed as a result of another leadership change. While there have been two Implementation Planning Meetings in Maricopa County, both led by the RBHA, an implementation plan for Maricopa County has not been developed. Neither have implementation plans been developed in the rest of the state.
ADHS has been slow to change the quality management and improvement system so that it measures whether services to class members are consistent with and designed to achieve the JK Principles. Essential to such a system is an in depth case review of a sample of individual children’s cases that include interviews of relevant individuals in the child’s life. Yet, there appear to be no plans for ensuring that such in depth case reviews are integral to ADHS’ system.
Issue 3: ADHS has been hamstrung by its failure to acknowledge the poor performance of the behavioral health system. Despite ADHS’ protestations to the contrary, the behavioral health system is not performing at the level expected at this stage. Its poor performance is not part of a “developmental” process, but instead the predictable result of deficient and ineffective implementation activities, including the failure of ADHS and RBHA’s to hold providers accountable. ADHS cannot correct failures it will not acknowledge. Neither have implementation plans been developed in the rest of the state.
Issue 4: The behavioral health system cannot deliver services according to the JK Principles without ready access to direct supports, home-based respite, and therapeutic foster care. Although this was universally acknowledged at the beginning of the implementation period, ADHS and the RBHA’s were slow to develop these resources, which are now not adequate to meet the need. Indeed, for years no meaningful effort was undertaken to develop direct supports, home-based respite, and therapeutic foster care. This has hobbled the ability of front-line providers (and of child and family teams) to deliver needed services to class members. It has also

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 4
resulted in children being needlessly placed into institutional care such as group homes and RTC’s.3 Neither ADHS nor the RBHA’s have an effective plan to ensure that class members get the direct support, home-based respite, and therapeutic foster care that they need.
Issue 5: An effective training program is essential to the success of JK implementation. The existing program, created by ADHS and RBHA’s, is not effective to ensure that services are provided according to the Principles. The training program fails to meet specific requirements of the Settlement Agreement. There are not qualified trainers in sufficient numbers to train front-line staff and supervisors. The training program does not provide front-line staff and supervisors with sufficient knowledge and skills to enable them to plan and provide services consistent with the JK Principles. In particular, it lacks a sufficient on-the-job “hands-on” component in which trainers, coaches and mentors teach effective techniques and approaches, including unified service planning and implementation, the involvement of parents as partners, and how to access and use wraparound supports. It also lacks effective tools for evaluating the ongoing effectiveness of the training program. Moreover, staff that have gone through the training program have been stymied in delivering services consistent with the JK Principles, due to leadership and structural problems at the provider level (e.g., inappropriate restrictions placed on child and family teams).
Issue 6: Adequate case management is required to deliver services according to the Principles, especially for the children with complex needs who comprise at least one-third of the Plaintiff class. ADHS and the RBHA’s have been reluctant to invest in case managers and been slow to develop needed case management. There is no functioning system -- and there has never been one -- for identifying children who need intensive case management or ensuring they get this service. There are not nearly enough case managers for children with complex needs, turnover remains a serious problem, and ADHS and the RBHA’s have no plan for correcting this situation. Since there are too few case managers, providers deny needed case management to children with complex needs or give case managers caseloads that are far too high.
3 In Maricopa County, approximately $20,000,000 is spent on some 175 children in congregate care. These children could be better served in family settings at far less cost. The money saved could be reinvested in expanding direct supports, home-based respite, and therapeutic foster care.

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 5
Issue 7: Clinicians find it difficult to comply with ADHS’ intake policies (which Plaintiffs have consistently decried as inconsistent with JK implementation) while also ensuring adequate clinical participation in child and family teams. Another reason: providers still reflexively provide office-based therapy to class members, at considerable expense, although it has become increasingly clear that for a very significant number of class members, office-based therapy is neither effective nor indicated.
Issue 8: The behavioral health system lacks enough clinicians with appropriate expertise. ADHS and RBHA’s have no plan for correcting this problem. In addition, the RBHA’s have not strategically employed clinicians with appropriate expertise for maximum effect (in, e.g., developing the system required by the Settlement Agreement).
Issue 9: Child and family teams are central to implementation of the Settlement Agreement. However, there is no clear vision of how child and family teams will function for children with less complex needs, nor of what training and support will be needed by those who perform the facilitation role. If current clinical staff will perform this role, their job descriptions need to be rewritten to include these responsibilities and their encounter obligations adjusted accordingly.
Issue 10: Current intake policies encourage and in practice often require front-line practice that is inconsistent with the JK Principles, including: the 30-day assessment is often performed by someone outside the child and family team, and a clinical liaison who is not a member of the team (and before a team is even formed) often dictates the child’s service plan.
Issue 11: Youth aged 18-21 have been overlooked in the implementation effort. These youth are served by the adult behavioral health system, not the children’s system. No effort has been made to ensure that the adult system is serving 18-21 year olds consistent with the JK Principles.
Issue 12: Financial incentives are not aligned to encourage or support practice according to the JK Principles. We have heard this repeatedly from providers. While we lack access to much of the relevant information, it is striking that ADHS has never engaged in a meaningful process to identify and address the financial concerns repeatedly stressed by providers.
Issue 13: The state has set an expectation that by the end of 2005, 50% of children will be served according to the Principles. We think this is a laudable goal,

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 6
but it is not feasible in light of the current limitations of the system. We believe it creates perverse and dangerous incentives for ADHS to declare that the system has met the goal, and to establish an expectation that by the end of 2006 all children will be served according to the Principles.
Issue 14: In order to make up for lost time – the time lost due to Defendants’ failure to move as quickly as practicable and to make needed changes to contracts, decisions, practice guidelines and policies -- the term of the Settlement Agreement must be extended. We believe an extension of at least three years would be appropriate.
Issue 15: To get JK implementation back on track, ADHS must quickly develop and aggressively follow an implementation plan that describes the steps that will be taken at the state, RBHA and provider level to ensure the development of a behavioral health system that delivers services according to the JK Principles. The plan should acknowledge the current poor performance of the behavioral health system and use strategies both comprehensive and powerful enough to produce good performance. The plan should establish targets, deadlines, concrete steps, and a clear path for accountability, as well as identify the human resources required for each activity to be successful. The plan must ensure:
· By the termination date of the Settlement Agreement (as extended by agreement or the Court), the development of a behavioral health system that delivers services according to the JK Principles.
· Regular reviews of the fidelity of front-line practice to the JK Principles, based on in depth reviews of a sample of cases that include interviews of relevant individuals in the child’s life.
· A method of holding RBHA’s and providers accountable for their performance as measured by fidelity reviews, including in a method for rewarding and “consequencing” providers based on their success in delivering services according to the JK Principles (e.g., by steering new business to better performing agencies). In addition, RBHA’s will develop competitors to existing providers by, inter alia, giving “case management” responsibilities to highly performing direct support agencies and allowing these agencies to draw on newly created stand-alone agencies for quality psychiatry and therapy.
· Timely access to direct supports, home-based respite, and therapeutic

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 7
foster care, including in crisis situations (e.g., where there is an imminent risk of placement in out of home or congregate care). · Adequate clinical participation in child and family teams.
· An adequate number of case managers, as well as a functioning system for identifying children who need intensive case management and ensuring they get this service. Turnover among case managers must be addressed.
· An effective training program with sufficient hands-on coaching and mentoring.
· Appropriate caseloads for case managers.
· The intake process is consistent with the JK Principles. Initial assessments are done by child and family teams. Therapy is not reflexively provided before a child and family team is formed and the team develops a service plan.
· An increase in the number of clinicians with appropriate expertise and the strategic deployment of such clinicians.
· A targeted effort to avoid placement of class members in congregate facilities and to facilitate the discharge of class members now in congregate facilities.
· A clear vision of how child and family teams will function for children with less complex needs, and of what training and support will be needed by those who facilitate such teams.
· The alignment of financial incentives to encourage and support practice according to the JK Principles, including a process for addressing the financial concerns repeatedly raised by providers.
· Changing hiring practices, to ensure a workforce with a commitment to the delivery of services according to the JK Principles.
· The identification, promotion, and strategic deployment (e.g., in management and supervisory roles) of champions of JK implementation (champions of service delivery according to the JK Principles).

Robert J. Sorce Logan T. Johnston January 9, 2006 Page 8
· Serving youth 18-21 according to the JK Principles We have confidence that, if Plaintiffs and Defendants approach these matters
with an open mind and in good faith, we can negotiate a collaborative resolution of them.
Sincerely,

cc: Sue Gerard Eddy Broadway Michael Fronske Brian Lensink

Anne Ronan Ira A. Burnim

 
 202 E. MCDOWELL RD., SUITE 153 PHOENIX, ARIZONA 85004 (602) 258-8850 (602) 258-8757 (FAX) WWW.ACLPI.ORG

February 12, 2007

Mr. Robert J. Sorce Attorney General’s Office 1275 West Washington Phoenix, Arizona 85007-2926

Mr. Logan T. Johnston Johnston Law Offices, PLC One North First Street Phoenix, Arizona 85004-2359

Re: State’s Proposed Quality Management System in JK v. Gerard

Dear Bob and Logan:

We write to express our serious concerns about whether the State’s proposed Quality Management (“QM”) System meets the requirements of the Settlement Agreement. Specifically, Paragraph 55 of the Settlement Agreement requires the State to implement a QM System that “measures whether services to class members are consistent with and designed to achieve the Principles” and includes as an “integral component” “an in depth case review of individual children’s cases.” In order to meet these requirements, the QM reviews must be able to provide information to the State, RHBAs, providers, and stakeholders about whether class members are being served according to the Principles, and if not, why. This type of information is essential to the State in managing the reform process as required by the Settlement Agreement; without it, the State cannot evaluate the effectiveness of its efforts, identify barriers that need to be addressed, and make performance - related contract decisions with respect to RHBAs and/or providers. In addition, the QM reviews must be conducted by individuals who can competently assess fidelity to the Principles in order for the information gathered from the reviews to be meaningful and useful.

The Maricopa County Review process was designed with these requirements in mind. Plaintiffs have long urged the State to build on the Maricopa County process as a basis for a state-wide system to review the fidelity of practice to the Principles.

Robert J. Sorce Logan T. Johnston February 12, 2007 Page 2
There were admittedly problems with its implementation - problems recognized and being addressed by the Assessment and Outcome Committee. Yet, the focus of the reviews is on whether the RHBA and providers are practicing – and children and families were receiving services – according to the Principles. The review is conducted by a pair including a clinician experienced in practicing under the Principles and a family member with experience in the children’s system trained by the Family Involvement Center. The process is designed to provide feedback not only about areas in which practice met or did not meet the Principles but also the causes why; inherent in the design is identifying barriers to implementation and their solutions. The RBHA took action based on the reviews, including corrective action plans. A broad array of stakeholders in Maricopa County, as well as national consultants, have embraced its basic design.
We understand that the State has decided to use the Wraparound Fidelity Index (WFI) on a large sample of high needs children in child and family teams, supplemented with portions of the Wraparound Fidelity Assessment System (WAFAS) on a smaller sample of such children. The State has not yet identified how it will be reviewing the fidelity of practice for lower needs children.
We are disappointed by the State’s decision and have grave concerns about whether the State’s proposed QM System can meet the requirements of the Settlement Agreement. Below are our major concerns:
The WFI and WAFAS are not Tied to Practice Under the Principles.
The WFI and WAFAS are not tied to practice under the JK Principles. The WFI focuses on the team process, an important aspect of practicing according to the Principles. A process measure, it does not focus on practice and outcomes, and it is not designed to assess the quality of practice at the individual case level. This is apparent from the literature about the WFI, and has been confirmed by Plaintiffs’ independent investigation, including conversations with practitioners who have used the WFI.
The WAFAS was designed in part to address the above deficiencies. There is little literature and experience with the WAFAS; hence it is more difficult to anticipate the information it will provide. However, like the WFI, it appears to emphasize process over practice. As an example, the questions on the WFI and WAFAS dealing with crisis planning look at whether a plan to address and prevent crises was created and whether the family and team has confidence in the

Robert J. Sorce Logan T. Johnston February 12, 2007 Page 3
plan; there is not an independent judgment about whether the crisis plan is appropriate given the individual child’s needs and the family’s circumstances or the results that have been obtained through the plan.
Uncertain Process for In Depth Review.
Paragraph 55 of the Settlement Agreement specifically requires that the QM system include as an integral component an in depth case review of a sample of individual cases. The WFI interviews alone do not meet this requirement. The process by which the State intends to us the WAFAS to conduct in-dept reviews has not been well-defined, and many key issues have been left unresolved. For example, how many cases will be reviewed in depth each year, how will these be distributed across RBHAs and providers, and which cases will be chosen? Further, we anticipate that the WFI interviews will yield different and conflicting findings from the more intensive WAFAS review. Does the State have a plan for addressing this? We also have concerns about scoring and interviewer qualifications, as noted below.
Undefined Scoring Procedures.
As we understand, the State plans on using three tools from the WAFAS – the WFI interview, the team observation measure, and the chart review. From our review and conversations with practitioners who have used these tools, we understand that each results in a separate score and that there is not a defined methodology for combining them into a single score for a case. In addition, we also understand that there is no requirement that the same individual or team conduct each of the components of the review; different reviewers may conduct and grade different parts of the review on a single case. This does not permit the individuals who administer the components to come up with a consensus judgment about the quality of practice in the case, based on all of the information collected, we believe it is essential for the State to ensure that, for each case, those who review the case agree on a consensus judgment or score, based on all of the information collected. We recommend that reviewers reach consensus on four primary practice questions: (a) has the child and family team established a trusting relationship with the family, (b) does the team clearly know the family (having identified its strengths, culture, and needs), (c) did the team create an individualized service plan that meets the needs of the child and family, and (d) did the team implement, monitor, and modify the plan toward a successful outcome for the child and family?

Robert J. Sorce Logan T. Johnston February 12, 2007 Page 4
Insufficient Requirements for Reviewers.
In administering the WFI, we understand that the State plans to use family members only and not to include clinicians. A family perspective is essential in a practice review; so too is a clinical perspective. Further, as far as we are aware, the State has not set requirements for reviewers.
Lack of Feedback Loop to Ensure Performance Improvement.
From our review of the State’s proposed process, and of the WFI and WAFAS manuals, it appears that the state has not yet described or developed a feedback process to ensure practice improvement. Moreover, it appears that the one WAFAS tool intended to provide information at the system level, the Community Supports for Wraparound Inventory, is not going to be part of the WAFAS review. In order to meet the requirements of the Settlement Agreement, any QM system implemented by the State must contain a meaningful feedback process that leads to performance improvement at the provider, RHBA, and State levels. Finally, we note that the WFI is not suited to generate such feedback. While its creators believe that the overall WFI score is valid and reliable, they have pointed out that its subscales (its assessment of what factors contributed to positive or negative scores) are not valid and reliable.
Undefined Purpose of the Reviews.
The State has not clearly articulated the purpose of the reviews. Nor has the State described how they plan to use the results from the review to improve practice. Does the State plan to make contract decisions, or to incentivize good practice and consequence poor practice based on the results of the reviews? If so, how will the State do so? We strongly believe that setting clear expectations up front about the reviews is necessary to ensure their successful implementation.
We hope that you will consider our concerns in your efforts to develop a QM system that meets that the requirements of the Settlement Agreement.
Sincerely,
Anne Ronan Ira A. Burnim

Robert J. Sorce Logan T. Johnston February 12, 2007 Page 5
cc: Tim Nelson, Office of the Governor

 
 202 E. MCDOWELL RD., SUITE 153 PHOENIX, ARIZONA 85004 (602) 258-8850 (602) 258-8757 (FAX) WWW.ACLPI.ORG

March 21, 2007

Mr. Robert J. Sorce Office of the Arizona Attorney General 1275 West Washington Phoenix, Arizona 85007-2926

Mr. Logan T. Johnston Johnston Law Offices, PLC One North First Street Suite 250 Phoenix, Arizona 85004-2359

Re: Development of Community Based Direct Supports

Dear Bob and Logan:

We write about the state’s plans regarding the development of direct supports. We appreciate your efforts to solicit our views on this and other topics, and your including Anne in planning committees. We also appreciate your responsiveness to our recommendations for measuring direct supports.

We begin by restating our concerns about the state’s plans regarding direct supports. We then offer some additional thoughts regarding the measurement of direct supports.

Concerns

We are concerned with the continued slow growth of direct supports, the 30% spending target, and whether the state is committed to a significant role for “generalist” providers of direct support.

1. Slow Growth. The state continues to move too slowly in developing direct supports. The June 2, 2006 plan negotiated with plaintiffs and family organizations called for a substantial increase in direct supports from July 2006 through June 2007, followed by increases in the next two years, the scale of which would be determined by reviews of the fidelity of practice to JK principles and of

Robert J. Sorce March 21, 2007 Page 2
numbers of children placed in out of home care. There has been no increase in direct supports in the current fiscal year (there may have actually been a decline in Maricopa County). and it is unclear whether there will be a significant expansion of direct supports next fiscal year. The state indicated when we last met that it was unsure what specific targets for expansion of direct supports would be imposed on the RBHAs for the next fiscal year and how those targets would be enforced. If some decisions have been made since our meeting it would be helpful to know what they are.
To get this fiscal year’s expansion on track, the state should immediately identify the best-performing providers of direct support and work with these providers to expand their capacity. Increasing their contracts would go far toward accomplishing this result. Our understanding is that these providers would be happy to expand services with support from the state and RBHAs.
One difficulty with the state’s taking this approach is that it currently lacks a systematic way to evaluate direct support providers, in significant part because it lacks a system for evaluating the fidelity of practice to the JK principles. However, as we have noted, there is broad agreement in Maricopa County about which direct support providers are the best performing. We think it makes sense to accept this assessment, shared by the RBHA, to guide an immediate investment in expanding direct support. We suspect that a brief investigation of the other RBHAs, where there is considerably less direct support, would yield similarly useful information.
2. The 30% Target. The state has announced a 30% spending target for certain services. Spending on therapeutic foster care (TFC) should not count toward the target. TFC is unlike the other targeted services. It is a costly service that requires out-of-home placement; the other targeted services are relatively less expensive ones designed to maintain the child at home. Moreover, including TFC in the target is likely to have perverse effects, encouraging RBHAs to spend on TFC instead of direct supports. Because of its high cost, spending on TFC is the most obvious way to meet the 30% target.
Also, the state should make clear that the 30% target is not the ultimate goal for expansion of direct supports. Direct support capacity should continue to be expanded until: (a) it is sufficient to meet the demand from child and family teams, and (b) practice reviews, including in-depth case reviews, show that class members are getting the direct support they need.
3. “Generalist” Providers. For children to get the direct support they need there must be a strong network of “generalist” providers of direct support. Such

Robert J. Sorce March 21, 2007 Page 3
providers can offer the range of direct supports that children with challenging behaviors (i.e., complex needs) require. The state should clarify its expectations in this regard, especially if it hopes to see significant growth in providers capable of maintaining children with challenging behaviors at home or in foster homes.
Measurement
1. Encounter Value. We appreciate that the state has agreed to track the encounter value of the direct support provided class members. It appears that most of the details have been worked out. Our understanding is that the state will provide us reports on a quarterly basis.
We suggest that the reports be issued a month after each quarter and that each report include cumulative data for each of the three months in the quarter. For example, in May 2007, the state would report, for the 1/1/07-3/31/07 quarter, the total (reported) encounter value of direct supports provided class members up to age 18 during each of the three months. We understand that the reports may understate the actual amount of direct supports provided and that, presumably, reporting will be more complete for the first month of the quarter than for the third.
We also suggest that the state undertake a process to determine the nature and extent of the lag in reporting by periodically updating older quarterly reports with new information. For example, in February 2008, the state may want to re-examine the data about the encounter value of direct supports provided during the 1/1/07-3/31/07 quarter, comparing it to the value reported in May 2007. In this way, the parties can improve their understanding of the nature and extent of under-reporting reflected in the more current quarterly reports.
It is our understanding that the reporting process the parties have discussed will not capture the encounter value of direct support for class members aged 18-21. Is our understanding correct? Does the state have any plan to track direct supports provided to this population?
2. Other Measures to Track. As we have indicated before, we believe the state should also track indicators of RBHAs capacity to provide needed direct support. For example, we have urged the state to determine the amount of the contracts with dedicated direct support providers in Maricopa County, a step that, as far as we know, the state has not yet taken.
In our view, to comprehensively understand RBHAs capacity to provide needed direct support, the state should track the following information:

Robert J. Sorce March 21, 2007 Page 4
a. Total number of exclusively-dedicated direct support personnel (i.e., individuals whose only job is front-line provision of direct support).
b. Total hours of direct support available from exclusively-dedicated direct support personnel. This is similar to “a” but gives information on productivity.
c. Amount of money allocated to contracts with exclusively-dedicated direct support providers.
d. Amount of money allocated to contracts exclusively for direct support.
In addition, we believe that the state should periodically require each RBHA to ask of the following questions of each direct support provider and to report on the results.
a. What age ranges does your direct support program work with?
b. Both boys and girls?
c. Does all of your direct support work occur in the home/community of the family? If any is office-based, what percent does it represent?
d. Do you follow a specific program, or does the child and family team decide what the direct support workers will do?
e. Are there any limits on times of day or days of the week your staff are available to families?
f. Are there any limits on the amount of time per week your staff are permitted to spend with a single child/family?
g. Are you prepared to work with youth with very difficult or risky behavior (such as aggressive behavior/violent behavior, danger to self, running away, gang involvement, etc.)? If so, what work do you do with such youth?
h. What additional or other direct support capacity could you provide if paid more or differently?
Since there are relatively few direct supports, periodically surveying would not be burdensome. However, it would provide rich information about the system’s capacity. To be useful, the survey should be conducted by individuals well-versed in

Robert J. Sorce March 21, 2007 Page 5

the child and family team process and the use of flexible supports including those used to avoid residential care.
We hope that you will consider our concerns and suggestions in your effort to ensure that class members get the direct supports they need.
Sincerely,

cc: Tim Nelson, Office of the Governor

Anne Ronan Ira A. Burnim

 
 202 E. MCDOWELL RD., SUITE 153 PHOENIX, ARIZONA 85004 (602) 258-8850 (602) 258-8757 (FAX) WWW.ACLPI.ORG

April 4, 2007

Mr. Robert J. Sorce Attorney General’s Office 1275 West Washington Phoenix, Arizona 85007-2926

Logan T. Johnston Johnston Law Offices, PLC One North First Street, Suite 250 Phoenix, Arizona 85012

Re: DHS Three-Year Plan

Dear Bob and Logan:

At the close of mediation the Plaintiffs agreed to provide the Defendants with their concerns with the Three Year Plan. We write to renew our concerns with those sections in the DHS Three-Year Plan that address matters that Plaintiffs view as critical to the implementation of the Defendants’ obligations under the Settlement Agreement. We apologize for sending this so close to our scheduled meeting but delayed in order to incorporate some of the critical information which we received late last week concerning increases in case management and direct supports.

Background

In Plaintiffs’ view, Defendants have not moved with dispatch to develop the system of services required by the Settlement Agreement. The current Three-Year Plan raises many of the concerns previously expressed both with strategies and pace.

In December of 2005, Plaintiffs met with BHS and shared with them a draft of our letter invoking the dispute resolution provisions of the Settlement Agreement. To get J.K. implementation on track, Plaintiffs asked the State to develop an implementation plan agreeable to Plaintiffs and also extend by at least three years the term of the Settlement Agreement. The three year extension, coupled with a meaningful implementation plan, was intended to place Plaintiffs in the same position they would have been had Defendants moved “as quickly as practicable” to develop the system required by the Settlement.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 2
As required by the Settlement Agreement, the parties entered mediation, eventually producing an agreement memorialized in an exchange of letters. Pursuant to the agreement, a team of BHS staff met intensively with Plaintiffs and family organizations in April-June 2006 to develop an implementation plan. In early June, the team produced a draft plan. Ultimately, the proposed plan was not accepted by DHS leadership. Mediation was tried again and Defendants agreed to a three-year extension of their obligations under the Settlement Agreement. The parties also exchanged views about a draft DHS Three-Year Plan shared with Plaintiffs.
The DHS Three Year Plan
While it has positive features, the DHS Three-Year Plan is not adequate to ensure compliance with the Settlement Agreement. An implementation plan should describe: an approach to implementation that is likely to succeed, the actual steps that will be taken, the dates by which these steps will be completed, and an effective approach to holding responsible parties accountable for implementing the plan.
The DHS Three-Year Plan is an improvement over previous annual action plans. It includes a number of specific strategies and deadlines that, if properly implemented, will promote the system’s fidelity to the Principles. It requires that a system be created for evaluating the fidelity of practice to the Principles and that direct supports be expanded. However, in places instead of identifying effective solutions to problems that have long plagued the system, it identifies a process by which solutions will be developed, or it relies on approaches that are plainly inadequate to bring about needed reforms.
We recently set out our concerns about the State’s plan for creating a system for evaluating the fidelity of practice to JK Principles (at the parties’ February 2007 meeting and in a February 12, 2007 letter). We also recently described our concerns about the State’s plan for expanding direct supports (in a March 21 letter). In both areas, we continue to be concerned by the pace of the State’s efforts and the substance of its plan. In addition, it is of concern that at this late date Defendants still lack basic information required to move forward, for example, the number of children with high needs, and the availability of, and scope of the need for, direct supports.
Below, we set out concerns about the State’s plan for building other core elements of the service system required by the Settlement Agreement.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 3
Accountability
To date, the State has not imposed a performance expectation that children be served according to the Principles. By performance expectation, we mean an expectation that has teeth. A RBHA or provider that meets the expectation is rewarded, and one that fails to meet the expectation suffers consequences.
One reason for this failure is DHS’ restricted view of its authority under existing contracts to enforce an expectation of JK compliance. Another reason is that the State lacks essential tools for holding RBHAs and providers accountable: a process for evaluating whether children are being served according to the Principles, and a comprehensive implementation plan that specifies the steps RBHAs and providers will take, and by when, to transform themselves into agencies that are capable of serving, and that actually serve, children according to the Principles.
There will not be compliance with the Settlement Agreement until this situation changes. To secure compliance, the State must establish an enforceable expectation that RBHAs and providers will serve children according to the Principles. This expectation could be phased in over a period of years. For example, the State could require that by December 31, 2007, 60% of children will be so served, and that by December 31, 2008, 80% of children will be so served.
According to the DHS Three Year Plan, BHS will “incorporate additional requirements into T/RBHA contracts including incentives and penalties for performance based on minimum performance expectations and benchmarks” in July 2007 (goal 2.3.1) and will “determine the appropriate course of action” for RBHAs not making “adequate” progress in October 2007(goal 2.3.3). Appropriate actions might include improvement plans, corrective action plans, and notice to cure and/or sanction. The process will be repeated in later years.
This plan is sound as far as it goes. However, the plan makes no commitment to including among the “additional requirements” that will be incorporated into contracts and expectation that children will be served according to the Principles, and Defendants have repeatedly expressed discomfort with doing so. Indeed, the plan gives no hint of what performance the State would consider “adequate” five years into the Settlement, or what performance it will consider “adequate” when October 2007 arrives. Moreover, while the State recognized the need to impose “additional”

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 4
requirements when it issued its Three-Year Plan in the summer of 2006, under the Plan “additional” requirements will not be imposed until July 2007 at the earliest.
Finally, we urge the State to take swift and decisive action in the face of poor performance. For too long, the State has tolerated RBHAs inattention to, inter alia, developing direct supports, case management services, and competent clinical services. In these and other recognized areas of deficiency, the State should be developing performance improvement plans with RBHAs now, providing technical assistance and tight oversight.
Case Management
There continues to be too few case managers, and too little case management services, to allow for the delivery of services according to the Principles.
After negotiations with Plaintiffs, Defendants announced their intention to ensure that by December 31, 2008, all children with high needs would have a case manager (and the case manager’s only job would be case management). We applaud the State’s embrace of this reform. We also applaud Defendants’ efforts to identify which children will be considered “high need.” We are in agreement with Defendants that the following children should be considered high need: children who have been in a Level I, II, or III placement; children referred by child welfare or juvenile justice for mental health services; children at risk of placement in a Level I, II, or III placement; children on parole or probation; children receiving special education; and children on whom at least $5,000 has been spent by the behavioral health system. The State may want to also include children who score over certain thresholds in particular assessments, for example, on the CANS.
The State also plans to establish caseload standards for case managers serving high need children. We have long urged this step. Case managers cannot do their job unless their caseloads are controlled. Consistent with national standards, we have proposed an average case load of 12 to 15 cases for case managers serving high need children. We understand that in its recent proposal to the legislature the State reported that its research supports case loads of no larger than 12 to 15 and that current case loads are much higher.
Our understanding is that the State estimates approximately one-third of class members have high needs. We agree with this assessment and that assigning them

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 5
case managers should be a high priority. We are concerned that in its presentation to the legislature it estimates that if the requested rate increases are approved they will only provide case managers with low case loads to 4% of the children served.
The State must also make it a priority to provide needed case management services to all children, including those who may not be high need. To date, the State has failed to develop an effective approach to meeting the case management needs of children who are not high need.
The plan developed last spring by the BHS team with whom Plaintiffs and family organizations met addressed case management. We urge the State to implement its recommendations that:
• Beginning in July 2006, contracts be amended to require 35% of all children be assigned a case manager. The 35% of class members assigned case managers would be those with the highest needs.
• In the next fiscal year, children entering the system be assigned a case manager who would follow them through the intake process and become their case manager on an ongoing basis, unless they were high needs, in which case they would be assigned to a high needs caseload.
• Thereafter, all children in the system have a case manager.
• ADHS replace the Clinical Liaison system with (a) behavioral health case managers and (b) a network of clinical consultants providing clinical support to child and family teams.
• ADHS move toward using free standing case management agencies, according to steps outlined in the plan.
In implementing the above, the State should continue to expand case management services until (a) the supply of case managers satisfies the demand from child and family teams and (b) practice reviews, including in depth reviews, indicate that children are receiving the case management services they need.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 6
18-21 Year Olds
There are an estimated 6,000 class members aged 18 to 21. These youth face several critical problems. Youth may be dropped from services when they reach the age of 18, despite their still being eligible for services under the Settlement Agreement and EPSDT. If enrolled in the adult system, they are often not served according to the Principles. Among other reasons, the adult system lacks services these youth require.
The State developed a “practice improvement protocol” for serving 18 to 21 year olds, which it recently updated. However, it has done little to ensure its implementation or that youth aged 18 to 21 receive the benefits of the Settlement.
The DHS Three Year Plan provides for training and technical assistance on the protocol, measuring compliance with the protocol (although not until January 2008), reviews of the fidelity of practice to the Principles for 18 to 21 years olds (although not until July 2008), improving employment and housing services for this population (although not until mid and late 2008), and improving training for therapeutic foster parents. (Goal 3). While positive steps, they are unlikely to ensure compliance with the Settlement Agreement in a timely manner.
To achieve compliance, the State must create an enforceable performance expectation in the children’s and adult systems that youth aged 18 to 21 will be served according to the Principles, and then hold RBHAs accountable. Moreover, to address transition issues consistent with the Settlement Agreement:
• The State should allow 18-21 year olds to keep their child and family team, facilitated by the children’s system. The team would decide when, between the ages of 18-21, the youth would transition into the adult system.
• The adult system should have dedicated, trained case managers for youth transitioning into the adult system.
• Case loads for staff working with this age group should be lowered to allow them to effectively work on housing, employment/education, and benefits.
• These youth should be able to access services from the children’s and adult systems.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 7
• Transition planning for youth in foster care should include a focus on finding family.
Intake and Initial Assessment
The JK Principles require that the child and family team conduct the assessment and develop the service plan. The current intake process does not allow this. It was not developed to comply with JK, and while there have been significant efforts to harmonize the policy with the Principles, ultimately this effort has failed. All too often, the 30-day assessment is performed by someone outside the team, a service plan is developed without a team being formed, and/or a clinician outside the team dictates the initial service plan.
Our understanding is that the State is planning to correct this problem by, inter alia, adopting a new intake policy by October 2007. While Anne has not been included in this work group, she reports that the group seems to be working toward a new policy that will ensure the initial assessment is performed by the team and is of quality. We have some concerns that the substance of the group’s recommendations may not survive the many levels of review called for by the Three-Year Plan.
Substance Abuse Treatment
As the State knows, there has long been inadequate substance abuse services for children. The problem is two-fold. There is too little capacity, and many of the existing providers deliver services in archaic and ineffective ways. Little has been done to assure that substance abuse providers practice according to the Principles or comply with the Substance Abuse Treatment Practice Protocol.
We support the State’s long overdue plan to identify existing capacity and the ways in which it fails to meet children’s needs. We also support including expectations for substance abuse services in contracts. We are unclear, however, on what expectations the State plans to include and whether they will meaningfully address the problems identified above, including by shifting funding from ineffective services to effective ones. There must be an aggressive effort to reach, assess and treat children with substance abuse issues.
Also, consistent with SAMHSA’ consensus document, we urge the State to revise the Substance Abuse Treatment Practice protocol to emphasize direct supports

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 8
as essential to effective substance abuse treatment for children. This might be done in the planned updating in May 2007.
Clinical Expertise
The children’s system lacks a sufficient number of clinicians with appropriate expertise, including in the treatment of high need children such as children with challenging behaviors including maladaptive sexual behaviors, substance abuse issues, or an intellectual disability.
The State made some progress by developing practice improvement protocols, but it has done little to ensure that RBHAs and providers improve clinical expertise through recruitment and/or training. Clinicians continue to pursue ineffective approaches to trauma (including abuse and neglect), runaway behavior, substance abuse, sexual issues, and children with intellectual deficits.
One strategy that Plaintiffs have consistently urged is requiring RBHAs and providers to strategically employ skilled clinicians for maximum effect, for example, by deploying them to clinically supervise case managers and direct supports and to consult with child and family teams on special populations.
The DHS Three-Year Plan indicates that the State will revise existing practice protocols in some areas and issue new ones. Additionally, the State will “[p]rovide technical assistance as needed ... for special children’s populations, including child welfare involvement, substance abuse problems, children birth to five, developmental disabilities, and juvenile justice involvement.” While positive steps, these strategies have not been successful in the past in fixing the problem. In our view, stronger medicine is required.
The State should establish, and hold RBHAs and providers to, a performance expectation that they will have a sufficient number of clinicians with expertise in serving high need children, and should require measurable increases in the number of such clinicians. Furthermore, the issue of clinical expertise should receive attention in practice reviews.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 9
Reducing Congregate Care
The State spends a disproportionate amount of money on congregate care1 for a relatively small number of children. These children could be better served in family settings at far less cost. The money saved could be reinvested in expanding direct supports, home-based respite, and therapeutic foster care.
We have urged that the RBHAs be required to undertake a focused effort to avoid placement in congregate facilities and to facilitate discharge of children already placed. We commend to you the plan developed by the BHS team with whom Plaintiffs and family organizations met last spring. Under that plan, the State would:
• Require RBHAs to reduce both the number of children in congregate facilities and children’s length of stay.
• Tighten the authorization process, and prohibit placement of children under the age of 12.
• Ensure rapid intervention with child and family teams requesting congregate care, including working with the team to develop alternatives.
• Have sufficient crisis stabilization teams, similar to the CPS Stabilization Teams and Special Assistance Teams, that would target children at risk of placement in congregate care, including users of the crisis system and children for whom congregate care has been requested.
• Establish a very short term congregate care option, available if necessary to provide a reprieve and to reinvigorate the child and family team’s efforts to develop a supportive plan for the child to remain in the community. The option could be fashioned after Maricopa’s Group Home Without Walls or Tucson’s Sendaro.
The most positive aspect of the Three-Year Plan is its call for setting utilization thresholds for congregate care. If the thresholds are rigorous, this could have far reaching impact. No thresholds have been set to date. However, the State has revised
1 RTCs and Level II & III facilities.

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 10
its prior authorization criteria. If it is enforced, the policy should make a difference in both the number of children approved for placement and the length of stay.
Other aspects of the plan, while beneficial, are unlikely to have similar impact. For example, “monitoring” the causes of over utilization will be helpful assuming there is clarity on what will be monitored, but must be followed by action. (To us, it seems pretty clear that the root causes of over utilization are tied to inadequate case management and direct supports). Increased collaboration with and education of DES and other stakeholders will help, but not necessarily lead to needed change. Revising the Out of Home Care Services Practice Protocol and developing a protocol on positive behavioral support and functional behavioral analysis will help if these protocols represent enforceable expectations to which RBHAs are held accountable. While the plan does not call for the revised protocol to be completed until March 2008, we understand that the Department is currently circulating a revision for comments. We have reviewed the revised protocol and, if it's enforced, it should make a difference.
Financial Incentives
Providers continue to insist that the State and RBHAs don’t give them the money they need to serve children according to the Principles. The State has long said the opposite. We have urged the State to collaborate with providers to identify and address the financial concerns they repeatedly assert. The cap increase that BHS is requesting should ease this process.
If providers have sufficient funding to do their job, then it seems pretty clear that financial incentives in the system need to be realigned. The DHS Three-Year Plan calls for developing by July 2007 “a strategy to offer incentives for best/promising practice and Practice Protocol implementation.” This is a step in the right direction.
Children With Less Complex Needs
Defendants have not had a clear vision for how to serve children with less complex needs, which has resulted in confusion and worse among RBHAs and providers.
The DHS Three-Year Plan calls for “clarification regarding team composition for children with complex behavioral health needs vs. children with lower behavioral health needs.” This is a useful start, but a clear vision for serving children with

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 11
complex needs must go beyond the composition of child and family teams. There must be clarity, among other things, on how the child and family team process works and the Principles implemented for children with varying degrees of need, including the case management services to be provided children identified as having less complex needs. We suggest the State: (a) develop a protocol for regularly checking in with families with children identified as having less complex needs and for elevating services when needs increase, and (b) clarify that all children will be served by a case manager and establish case load standards for case managers serving children with less complex needs.
Training
An effective training program is essential to the success of JK implementation. A lot of money has been spent on training, and a lot of training activity has gone on, but it has not resulted in the desired outcome – to provide front line staff and supervisors with sufficient knowledge and skills to enable them to serve children according to the Principles
Among the problems: an insufficient number of qualified trainers; an inadequate on-the-job “hands-on” component in which trainers, coaches and mentors teach effective approaches; lack of effective tools for evaluating the ongoing effectiveness of the training program; and enormous staff turnover among those most intensively trained.
The DHS Three-Year Plan calls for “[t]raining supervisors to mentor, coach, and provide on-the-job training for personnel who facilitate or participate in CFTs,” with an implementation date of August 2007. We assume this means as part of the formal training program required by the Settlement Agreement. We would appreciate your telling us more about your plans in this area and the extent to which they will address the above identified problems.
The DHS Three-Year Plan also calls for training on a variety of specific practice protocols and other initiatives, as well as including expectations about training in new and revised protocols. In the past, the State’s practice of developing training specific to particular protocols or initiatives has led to a fragmented and inefficient training approach. We urge the State to consider developing a single unified training program for each type of personnel in the system (e.g., case managers, direct support providers, clinicians, supervisors), including training for staff new to the system and

Robert J. Sorce Logan T. Johnston April 4, 2007 Page 12
continuing education for existing staff. The training program could be modified as new protocols are issued or new initiatives undertaken.
The Plan also includes “initiatives for staff retention and turnover reduction strategies” but apparently not until July 2009.
An adequate training program would identify a core set of training requirements; focus heavily on supervision and management; require RBHAs and providers to identify their training budget and how it is spent; require RBHAs and providers to spend a minimum percentage of their training funds for coaching and mentoring; and use trainers who have practiced according to the Principles and can coach staff in this practice.
We hope that you will consider our concerns and suggestions in your efforts to ensure that class members get the services and supports that they need.

cc: Tim Nelson

Sincerely,
Anne Ronan Ira A. Burnim

 
 .··..
ARIZONA CEN'FERwR LAW~ .
PUBLIC .·•· INTEREST

202 E. MCDOWELL RD., SUITE 153 PHOENIX, ARizoNA 85004 (602) 258-8850 (602) 258-8757 (FAX)
WWW.ACLPI.ORG
May21, 2008

Mr. Kevin D. Ray Arizona Attorney General's Office 1275 West Washington Phoenix, Arizona 85007-2926
Re: Settlement Agreement, Paragraph 55
Dear Kevin:
When we met last week in Phoenix, Plaintiffs said they would identify by letter the issues to be addressed at our June 3, 2008 meeting which will focus on Paragraph 55 ofthe Agreement. We propose the meeting be a working meeting where we try to reach agreement on (a) whether and how the WAFAS process will be improved and (b) additional sources ofinfonnation the State will use to measure "whether services to class members are consistent with and designed to achieve the Principles." We propose the meeting focus on the following matters:
• Collecting richer infonnation on fidelity to the JK Principles. We think that refining the guidance given to interviewers and record reviewers would allow the State, without changing the questions asked, to collect richer infonnation and provide more meaningful feedback to providers. This could be accomplished, for example, by ensuring that reviewers take full advantage of opportunities to explore the adequacy ofthe CFT's assessment and service planning. Reviewers could be asked to explore and perhaps determine whether the services in the plan are likely to be effective in meeting a child's needs.
• Integrating the infonnation from the family interviews and the record review. We propose that the same individual score both the interviews

KevinD.Ray May21, 2008 Page2
and the record review or that the family interviewer and the record reviewer jointly score both the WFI and the record review instrument.
• Ensure that reviewers are competent to make the judgments required by theWAFAS. We think theWAFAS would be a more effective vehicle for improving practice if the standards for reviewers were raised, and ifthe necessary infrastructure was in place at the RBHA and at the family organization to ensure proper training, oversight and competence.
• Ensure that systemic issues that emerge from the review process are identified and communicated, for example, issues of working with CPS.
• Ensure an appropriate number of cases from a provider are actually reviewed. In some cases there were as few as three cases in which the caregiver and the facilitator were interviewed.
• Ensure caregivers and family members are interviewed in person, and increase the number of other team members interviewed to gather a clear picture ofthe case.
Additional Measures
Attached for your review is a comparison ofthe JK Principles and the questions in the WAFAS. We welcome your comments on whether we have omitted relevant WAFAS questions and whether our comments in the third column are accurate.
The SOC Plan says that the State is using information from the WAFAS and other sources of information (referred to as children's performance measures) to evaluate fidelity to the Principles. We asked for a description of the additional sources of information. We propose that at the meeting the parties attempt to reach agreement on the additional measures that will be used, including:
• Measures of compliance with required practice protocols.
• Measures ofwhether services are designed and implemented to achieve the JK functional outcomes. These measures may include both outcome measures and measures that look at the adequacy of assessment and

Kevin D. Ray May21, 2008 Page3
service planning. The CASII may provide information relevant in this regard.
• Measures ofwhether services are provided in the most integrated setting.
• Measures ofthe sufficiency ofinteragency collaboration.
• Measures ofstability and the sufficiency ofefforts to achieve stability (e.g., minimize multiple placements, avoid removal in crises).
• Measures ofthe adequacy ofthe array ofservices offered by the RHBA, including direct supports, case management, and substance abuse services. We understand that the State can quantify these services and is developing methods for evaluating whether they are of acceptable quality.
Please let us know ifyou have questions concerning the above. Thank you.
srcnel~,
jle~nan
Ira A. Burnim
cc: Dr. Laura Nelson Brian Lensink Michael Fronske Logan T. Johnston LeezieKim

JK Principles & W AFAS Questions

Princiol,Collaboration with the child and family

Content
* Parents treated
as partners in assessment, planning, delivery and evaluation;
* Parent
preferences taken seriously

WFiint

.. -

1.1, Y1.1 (family/youth

given time to talk about

strengths beliefs and

traditions and for youth,

things like and good at;

shared with team)

1.2, Y1.2 (explaining

wraparound process and

family's choices)

1.3, Y1.3 (family/youth

given opportunity to tell

things have worked in past)

1.4, Y1.4 (family/youth

select who on team)

Y1.6 (youth happy with the

members ofthe team)

2.1, Y2.1 (family/youth and

team created plan describing

how team will meet needs)

2.10 (family makes final

decision in designing

wraparound plan)

2.11, Y2.5 (team took time to

understand family's/youth's

values and beliefs and plan is

in tune with them)

Y2.3 (team knows what

youth likes and things do

FU
1 (family and youth's needs/concerns are documented) 2 (documentation that identifies and prioritizes needs for child and family) [scoring appears to give consideration to whether documentation reflects family's view] 6 (child and family team is doing the planning and implementation) 7 (service plan specifies family's goals/objectives) 8 (clearly articulated long range vision of the future for youth and family) [scoring indicates this should be family's articulation] 10 (goals and objectives of service plan relate to needs family has prioritized) 25 (evidence that family and/or youth making decisions about direction and method ofteam)

c t - ----------

1

well) 3.1, Y3.1 (important decisions made with child and family) 3.6, Yl.5 (friend or advocate ofthe family/youth actively participates on team) 3.10, Y3.8 (team uses language the family can understand) 3.12, Y3.10 (all team members, including friends, family and natural supports, participate in meetings) 3.14, Y3.12 (all members demonstrate respect for the family) 3.15 (youth has opportunity to communicate views when time to make decision) Y3 .13 (youth has chance to give ideas during meetings) 4.5 (after formal wraparound has ended, there is a process to re-start it if youth/family needs it)
2

Functional outcomes

Services designed and implemented to achieve: * Success in school * Children live with families * Avoid delinquency * Become stable and productive adults * Stabilize child's condition * Minimize safety risks

1.6 (process of identifying what leads to crises/dangerous situations) 2.8, Y2.7 (crisis/safety plan specifies what everyone must do to respond to crises and how to prevent crises) 2.9 (confidence that team can keep child in community in event of crisis)

16 (service plan developed in the LRE and if in a more restrictive environment includes strategies to move to a LRE) 21 (crisis plan based on comprehensive functional assessment on predicted crises and includes strategies to prevent crises) 22 (crisis plan identifies signs/behaviors of impending crisis and ways to deescalate crises) 23 (crisis plan includes specific steps to be taken if crisis occurs and assigns responsibilities for steps)

*There are questions (not catalogued here) that look at whether the team has set goals and whether progress is being made toward goals. However, the questions do not look at whether services are designed and implemented to achieve the outcomes specified in JK * Information relevant to whether services are designed and implemented to achieve the outcomes specified in JK may be available via CASH * Some information relevant to whether services are designed and implemented to achieve JK outcomes may be available from questions on LRE and crisis planning

Collaboration with others

* Joint assessment, joint plan, and joint implementation for multi-system involved kids

1.5 (if difficult to get members to attend team meetings) [reviewer probes issues related to getting participation by others including other agencies]

11 (services/activities coordinated through integrated service plan) [grading tool says reviewer is looking for collaboration between system partners in

*No question directly asks whether there is a joint assessment or plan for multi-system kids * No question on whether team includes representa-

3

Accessible services

* Team includes representatives from other agencies needed to develop an effective plan including teacher, Child Protective Service and/or Division of Developmental Disabilities case worker, and probation office *Team includes any foster parents

2.6 (whether member of team do not have a role in implementing the plan) [example in grading: if school rep comes b/c "has to be there" but doesn't participate] 3.12, Y3.10 (all team members, including friends, family and natural supports, participate in meetings)

the development of service plan] 27 (evidence that individuals on CFT working together to provide coordinated services/supports)

tives from other systems (e.g., education, child welfare, juvenile probation, DD) when needed to develop an effective plan * No question on whether teacher included ifneeded to develop an effective plan * No question on whether foster parent is on team *How is the concept of wraparound ending or finishing (see 4.5, 4.8) harmonized with the idea that all children have CFTs?

* Comprehensive array of behavioral health services, sufficient to ensure children receive the treatment they need * Case management as

3.2, Y3.2 (when team has good idea for support/service, it finds the resources/figures out some way to make it happen) 3.8, Y3.7 (whether services/supports are hard to access b/c they are far away or b/c transportation issues)

13 (services/supports based on needs, not on availability of services/supports)

* No question on whether services on plan are likely to be effective in meeting child's needs * No questions about case management * No question on whether plan identifies and addresses transportation needs

4

Best practices

needed
* Plans identify
transportation needs to access services
* Services
adapted/created when needed but not available
* Services
provided by competent individuals who are adequately trained
* Services
delivered in accordance with ADHS guidelines that incorporate evidence-based
Abest practice@
* Plans identify
and appropriately address behavioral symptoms that are reactions to death, abuse/neglect,
LDs, trauma,

3.7, Y3.6 (team comes up with new idea for plan when family's needs change or something isn't working)

28 (documentation that progress towards goals and action steps has been monitored) 29 (child and family are making progress towards their goals)

I * No questions looking at
competence of individuals providing service
* No questions re: whether
services incorporate evidence-based practice
* No questions on whether
teams/plans identify and address behavioral symptoms that are reactions to death, abuse, neglect, substance abuse, DD, maladaptive sexual behavior, etc.
* Questions on service
modification do not reference JK functional outcomes

5

Most appropriate setting

substance abuse, DD, maladaptive sexual behavior, and need for stability and permanency (esp for kids in foster care) * Services continuously evaluated and modified if not meeting desired outcomes

* Services in child's home and community to extent possible * Services in most integrated setting appropriate * If residential necessary, most integrated and home-like setting

2.5, Y2.4 (plan includes strategies to get youth involved in community activities)

16 (service plan developed in the LRE and if in a more restrictive environment includes strategies to move to aLRE) 19 (service plan includes opportunities for youth to engage in community activities)

* There does not appear to be a direct look at whether child is being served in most integrated setting. The focus is on "LRE," which while related to integration, is different. * Interview does not include questions on LRE. *No inquiry into whether residential program is most integrated and home-like residential program possible

6

Timeliness
Services tailored to child and family

* Children assessed and served promptly
* Strength and needs dictate type, mix and intensity of services * Parents and children encouraged and assisted to articulate own strength and needs, goals, and service preferences

1.1, Yl.1 (family/youth given time to talk about strengths beliefs and traditions and for youth, things like and good at; shared with team) 1.2, Y1.2 (explaining wraparound process and family's choices) 1.3, Y1.3 (family/youth given opportunity to tell things have worked in past) 2.1, Y2.1 (family/youth and team created plan describing how team will meet needs) 2.4 (supports/services in plan connected to strengths and abilities of child and family) 2.10 (family makes final decision in designing wraparound plan) 2.11, Y.2.5 (team took time to understand

1 (family and youth's needs/concerns are documented) 3 (examples of strengths, assets, resources and cultural considerations are included for areas of priority need) 7 (service plan specifies family's goals/objectives) 13 (services/supports based on needs, not on availability of services/supports) 16 (services/supports based on strength of youth/family) 25 (evidence that family and/or youth making decisions about direction and method ofteam)

*Measures other than WAFAS address timeliness. Do these other measures look at whether (a) urgent matters are appropriate!y identified and (b) if identified, get immediate attention?

7

Stability

family's/youth's values and beliefs and plan is in tune with them) Y2.3 (team knows what youth likes and things do well) Y2.8 (youth feels like he and his family gets the help they need) 3.3, Y3.3 (youth involved in activities that builds on strengths)

* Plans strive to
minimize multiple placements
* Plans identify
if child at risk of placement disruption and steps to take to minimize/elimina te the risk
* Plan anticipate
and plan for crisis
* In responding
to crisis, use all service possible to help child

1.6 (process of identifying what leads to crises/dangerous situations) 2.8, Y2.7 (crisis/safety plan specifies what everyone must do to respond to crises and how to prevent crises) 2.9 (confidence that team can keep child in community in event ofcrisis) 4.4, Y4.4 (team helped child prepare for major transitions through planning) 4.6, Y4.2 (wraparound has helped the family develop/strengthen relationships that will support them when

20 (transition planning documentation identifies needs, services and supports that will continue to need attention after formal supports discontinued or when transitioning to adult service system) 21 (crisis plan based on comprehensive functional assessment on predicted crises and includes strategies to prevent crises) 22 (crisis plan identifies signs/behaviors of impending crisis and ways to deescalate crises)

* Questions don't
examine efforts to minimize multiple placements, minimize placement disruptions
* Questions don't examine
efforts, in crises, to avoid removal from home and inappropriate use of police/criminal justice system

8

remain at home, minimize placement disruptions, and avoid inappropriate use of police/crim justice system
* Service plans
anticipate and appropriately plan for transitions in children's lives, including transitions to new schools and new placements, and transitions to adult services

wraparound finished)

23 (crisis plan includes specific steps to be taken if crisis occurs and assigns responsibilities for steps)
'

9

Respect for child and family's cultural heritage
Independence

* Services
provided in manner that respects cultural traditions and heritage
* Services
provided in Spanish when that is family's primary language
* Services
include support and training to parents to meet child's need
* Services
include support and training for children in selfmanagement
* Plan identify
and provide training and support to parents and children to

1.1 (family given time to talk about strengths beliefs and traditions; shared with team) 2.11, Y2.5 (team took time to understand family's/youth's values and beliefs and plan is in tune with them) 3.1 0, Y3.8 (team uses language the family can understand) [scoring refers to needing to address language barriers for non-English speakers] 3,14, Y3.12 (members show respect for youth and family)
1.2 (explaining wraparound process and family's choices) 4.3 (wraparound has helped child solve own problems)

3 (examples of strengths, assets, resources and cultural considerations are included for areas of priority need) 4 (examples of family and youth culture, values and beliefs are included for areas ofpriority need) 18 (services/supports based on culture of youth/family)

* No inquiry into whether
services delivered in Spanish as required

* No questions on

!

whether parents are given

training and support to

meet their child's needs

themselves
* No questions on

whether child is given

training and support in

self-management (although

is question on whether

wraparound has helped the

child solve his own

problems)
* No inquiry into

supportive services to

10

Connection to natural supports

help them participate as partners (including transportation assistance, advance discussions, and help with understanding written materials)
* System
identifies and appropriate! y utilizes natural supports

1.5 (if difficult to get natural supports to attend team meetings, reviewer explores issue) 2.3, Y2.6 (services, supports, and strategies in family's plan) [more informal/natural supports, higher score] 2.5, Y2.4 (plan includes strategies to get youth involved in community activities) 3.4, Y3.4 (team finds ways to increase natural supports) 3.6, Y1.5 (friend or advocate ofthe family/youth actively participates on team) 3.12, Y3.10 (all team members, including friends, family and natural supports,

5 (documentation of natural supports) 8 (natural support actively involved or ongoing efforts to identify and engage natural supports) 19 (service plan includes opportunities for youth to engage in community activities) 25 (service plan at least partially implemented by natural supports)

parents and children to help them participate in process

11

participate in meetings) Y3.5 (team helps youth talk with friends and other natural supports when things aren't going right) 4.2, Y4.3 (wraparound has helped child develop friendships with other positive youth) 4.6, Y4.2 (wraparound has helped family develop/strengthen relationships that will support them when wraparound finished) 4.7 (family can succeed on own with help from natural supports)
The WFI interview questions in the chart with no lettered prefixes are from the Caregiver, Facilitator and Team Member Forms. The questions on these forms are identical. Questions from the youth form contain the prefix Y and then the question number.
12

 
 ARIZONA CENTER FOR
LAW~
PUBLIC INTEREST

202E.MCDOWELLRD., SUITE 153 PHOENIX, ARizONA 85004 (602) 258-8850 (602) 258-8757 (FAX) WWW.ACLPI.ORG
March 6, 2009

VIA EMAIL AND U.S. MAIL

Gregory Honig Arizona Attorney General's Office 1275 West Washington Phoenix, Arizona 85007-2926
Re: JK v. Gerard

Logan T. Johnston Johnston Law Offices, PLC 1402 East Mescal Street Phoenix, Arizona 85020

Dear Greg and Logan:

Plaintiffs hereby invoke the dispute resolution provisions of Section IX ofthe Settlement Agreement {"Disputes Regarding Implementation"). We have been unsuccessful in securing needed relief through other avenues.

As required by Paragraph 59 ofthe Settlement Agreement {"Written Statement of Issues in Dispute"), which we now specifically invoke, we describe our concerns, which we have also detailed in prior correspondence and meetings. We hope we can resolve these issues through collaborative negotiation with the aid of a mediator.

As you know, Plaintiffs have carefully followed Defendants' implementation activities. In addition to periodic meetings with Defendants, we stay in close touch with knowledgeable individuals at all levels ofthe behavioral health system. We also participate in key meetings and processes in Maricopa County where the majority of class members reside.

We recognize Defendants have taken important steps toward implementation, including in areas we highlighted during the 2006 dispute resolution process. We also acknowledge the many individuals who have worked hard to implement the Settlement Agreement. While progress has been made, key parts ofthe behavioral

Gregory Honig Logan T. Johnston March 6, 2009 Page2
health service system required by the Settlement Agreement remain underdeveloped and, in some areas, there has been little f01ward movement until recently. In addition, in many areas ofthe state outside of Maricopa County, efforts to implement the Settlement Agreement began in earnest only recently.
Setting appropriate expectations for the Regional Behavioral Health Authorities (RBHAs) and timely and effectively intervening when expectations are not being met remains a problem. While the Defendants have recently set and held RBHAs accountable for expectations regarding direct supports and case management, Defendants have not yet set appropriate expectations for RBHAs with respect to the fundamental obligation in the Settlement Agreement that services be delivered according to the Principles.
The situation in Maricopa County is a case in point. Magellan has performed poorly in implementing J.K. For well over a year, Magellan showed little leadership, and there was backsliding in the children's behavioral health system. Defendants did not effectively intervene. Magellan has now hired an excellent director ofchildren's services, but she has uncertain authority and virtually no staff.
Slow and Uneven Progress
Under the Settlement Agreement, the state must "move as quickly as is practicable" to develop a functioning children's behavioral system that meets its clients' needs. Once that system is developed, it must be maintained. Settlement Agreement, Par. 15. The Settlement requires the children's behavioral health system to:
• Focus on keeping children at home, doing well in school, and staying out of trouble with the law.
• Ensure that children with complex needs have case managers and receive needed therapeutic foster care, respite, and community based direct supports.
• Use child and family teams to secure family input and cross-system coordination.
• Regularly review the adequacy of services, including whether they met children's needs.

Gregory Honig Logan T. Johnston March 6, 2009 Page3
• Provide needed services to youth aged 18 to 21.
• Provide needed substance abuse services.
Moving_"as quickly as practicable," Defendants should have put these key elements in place before the original termination date ofthe Settlement Agreement. As detailed during the 2006 dispute resolution process, Defendants did not take the required actions to make this happen. As a compromise measure, Plaintiffs agreed in late 2006 to extend the term ofthe Settlement Agreement an additional three years. Since that compromise, Defendants have continued to move too slowly on these same key elements. For example, Defendants still do not have a functioning system, as required by the Settlement Agreement, for measuring whether services are provided according to the J.K. Principles. Consistently, relevant time lines in the J.K. Annual Plan are not met.
As a result of Defendants' slow and uneven implementation, including since the 2006 compromise, the following serious issues remain.
ISSUES IN DISPUTE
1. Delivering Services According to the J.K. Principles
Defendants have failed to meet their core obligation under the Settlement Agreement to develop (at first by July 2007, but now by July 20 I0); a Title XIX behavioral health system that delivers services according to the J.K. Principles. Defendants have not made changes to "contracts, decisions, practice guidelines and other policies" needed to achieve the Principles for class members. Major failings are described below.
2. Measuring Whether Services are Delivered According to the Principles
Defendants have repeatedly advised that they are using multiple sources of information to measure whether services are being delivered according to the Principles. However, no actual effort was being made along these lines until recently.
In July 2008, Defendants implemented a process for using multiple sources of information to measure whether services are being delivered according to the Principles. However, the information required to make such judgments does not exist. For example, there is not yet data from a functioning process for reviewing practice in

Gregory Honig Logan T. Johnston March 6, 2009 Page4
individual cases. In addition, the process is not informed by information on implementation of required J.K practice protocols. Specifically, the system does not generate information on whether services are designed and implemented to achieve the J.K functional outcomes, including stability, for example, minimizing multiple placements, avoiding removal in crises. In addition, the system does not generate information on whether services are provided in the most integrated setting, or on the sufficiency of interagency collaboration.
Defendants' use of the "WAFAS" to review practice in individual cases has long been problematic. There have been problems with the competence ofreviewers, inappropriate constraints on what reviewers could report, inadequate guidance to reviewers including on scoring, and serious sampling issues. Furthermore, the WAFAS is focused on only a fraction of the children- those currently identified as having high needs. This limitation is especially concerning since the number of children so identified is very low, contributing to the problems discussed in other sections below. While Defendants have agreed to implement a revised process for reviewing practice in individual cases that should provide better information, this process is still in the pilot stage.
3. High Needs Children
Defendants still lack a functioning system for identifying enrolled children who have high needs. The last information we received was that only 6% of the enrolled children have been so identified, although there is a virtual consensus that 15 to 25% of enrolled children have high needs.
High needs children need ready access to direct supports, home-based respite, and therapeutic foster care. The 2006 dispute resolution process was initiated in large part because Defendants had failed to adequately develop these services. To their credit, Defendants have now made the development of these services a priority. However, expansion ofthese services has been slow and the need for such services far exceeds the system's capacity. This has hobbled the efforts of child and family teams to deliver services according to the Principles.
We have confidence in the team at ADHS that is nurturing the expansion of these services. However, they do not make the decisions regarding the scope and pace of expansion, or the funding to be devoted to this effort, which has been too little too late. We are unsure whether Defendants are planning any significant expansion of these services next fiscal year. Additionally, Defendants have failed to fully explore

Gregory Honig Logan T. Johnston March 6, 2009 PageS
expanding these services by reallocating money from costly and unnecessary (if direct supports, respite and therapeutic foster care were available) residential care.
High needs children also require case managers with low case loads. Too few such case managers exist. In fact, there are fewer intensive case managers in Maricopa County today (or there were until very recently) than when the state first required ValueOptions to hire such case managers. Fortunately, Defendants have made an impressive commitment to secure an adequate number of case managers. However, there seems little chance that a fully staffed case management system will be in place by July 2010.
4. Substance Abuse Treatment Services
Services to address substance abuse among high needs children remain inadequate. This is despite the fact that the Settlement Agreement required Defendants to begin addressing this issue in the first year ofthe Agreement. While the state has recently reviewed substance abuse services, there is no plan for expansion. The state continues to have little information on unmet needs.
5. 18-21 Year Olds
This is an area to which Defendants had paid virtually no attention until the 2006 dispute resolution process. Defendants have since made efforts to identify both the contours ofthe problem and possible solutions. However, because ofthe slow pace ofthe effort, and the relatively small investment that Defendants have made, there has been little change in how 18-21 year olds are treated by the behavioral health system. For the most part, these youth continue to be served by the adult behavioral health system, not the children's system, and services are not delivered according to the J.K Principles. Children with high needs who are not identified as "SMI" (serious mental illness) have limited access to services, including case management and direct supports.
6. Training
The Settlement Agreement requires a training program to ensure that services are provided according to the Principles. A program meeting the specifications in the Settlement Agreement does not exist. Among other things, there are not qualified trainers in sufficient numbers, and the program fails to impart sufficient knowledge and skills to enable staff to provide services according to the Principles. We believe

Gregory Honig Logan T. Johnston March 6, 2009 Page6
that the RBHAs would implement such training programs ifthey faced meaningful consequences for their current failure to provide services according to the Principles.
Unfortunately, we believe another extension of the term ofthe Settlement Agreement is necessary. Additionally, the parties must agree on a plan for Defendants resolving the issues identified above. As we have mentioned, we are open to paring down the Settlement Agreement to focus only on these issues.
Thank you for your attention to these matters. We have confidence that, if Plaintiffs and Defendants approach these matters with an open mind and in good faith, we can negotiate a collaborative resolution of them.
cc: Joe Kanefield Laura Nelson Michael Fronske Robert Sorce Brian Lensink

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

J.K., a minor by and through R.K., et al., on behalf of themselves and all others similarly situated,

No. CIV 91-261 TUC JMR

Plaintiffs,

vs.
CATHERINE R. EDEN, in her official capacity as Director of Arizona Department of Health Services; LESLIE SCHWALBE, in her official capacity as Deputy Director, Division of Behavioral Health Services; PHYLLIS BIEDESS, in her official capacity as Director of Arizona Health Care Cost Containment System,

SETTLEMENT AGREEMENT (CLASS ACTION) (Assigned to the Hon. John M. Roll)

Defendants.

INTRODUCTION

The Plaintiffs and Defendants, CATHERINE R. EDEN, in her official capacity as Director of Arizona

Department of Health Services (“ADHS”), LESLIE SCHWALBE, in her official capacity as Deputy Director, Division

of Behavioral Health Services (“DBHS”) and PHYLLIS BIEDESS, in her official capacity as Director of Arizona Health

Care Cost Containment System (“AHCCCS”) intend this Settlement Agreement to be legally binding and enforceable by

this Court. The parties understand and agree that until such time as this action is dismissed pursuant to paragraph 81, the

Court’s jurisdiction will continue for the purpose of enforcing, should it become necessary, the obligations of the parties

under this Settlement Agreement.

I.

RECITALS

1. The parties intend, through this Settlement Agreement, to substantially improve the system for delivery of

behavioral health services to the eligible children of this state in accordance with (a) the requirements of the EPSDT

Program of Title XIX of the Social Security Act, (b) the Arizona Vision as set forth in Section IV, and (c) the Principles

set forth in Section V below. The improvements contemplated by this Settlement Agreement emphasize partnering with

families and children, interagency collaboration, and individualized services aimed at achieving meaningful outcomes

for families and children. Implementation of this Settlement Agreement will require initiatives to improve front-line

practice, enhance the capacity of private agencies to deliver needed services, promote collaboration among public

agencies, and develop a quality management and improvement system focused on sound practice.

2. The parties believe that resolving this matter through negotiation rather than adversarial litigation is in the best interests of the Plaintiff class. Their agreement to settle the case, subject to the approval of the Court in accordance with Rule 23 of the Federal Rules of Civil Procedure, is the outcome of negotiations and bargaining, and is not an admission of liability by the Defendants. Each party has made concessions the party believed was unnecessary in light of prevailing law and the facts of this case. Likewise, each party has been able to obtain favorable outcomes that might have been beyond the reach of that party if the case had been decided by the Court instead of resolved through negotiations. 3. As and when needed, Defendants will enter into additional agreements and/or understandings with the Arizona Department of Economic Security, the Arizona Department of Juvenile Corrections, the Arizona Department of Education, and the Administrative Office of the Courts, together or singly, to effect the improvements contemplated by this Settlement Agreement. These agencies are not parties to this lawsuit, and not subject to the control of the Defendants. However, Defendants will make a good faith effort to engage other state agencies in supporting the improvements of the behavioral health system envisioned in this Settlement Agreement. 4. This Settlement Agreement is made and entered into in consideration of the mutual promises herein contained by the parties. It shall only become effective and binding upon the parties at such time as, after a fairness hearing, it is approved by the Court pursuant to Rule 23(e), Federal Rules of Civil Procedure. II. DEFINITIONS
The following definitions apply to this Settlement Agreement. 5. “Behavioral health services” means Title XIX children’s behavioral health services. 6. The “behavioral health system” is the system supervised and administered by Defendants for delivering Title XIX behavioral health services to class members. 7. “Class members” are all persons, under the age of twenty-one, who are eligible for Title XIX behavioral health services in the State of Arizona and have been identified as needing behavioral health services. 8. “Defendants” means the named Defendants and their successors and assigns. 9. “HCFA” means the Health Care Financing Administration in the United States Department of Health and Human Services.
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10. “Parent” means the child’s natural or adoptive parent, the child’s guardian, or a person acting as a parent. Persons “acting as a parent” refer to the actual care givers of a child, such as a grandmother or aunt with whom the child lives. It does not include the staff of public agencies, private providers, or foster parents. 11. RBHAs” means Arizona’s Regional Behavioral Health Authorities, and the successors and assigns of these Authorities. 12. “Title XIX” means Title XIX of the Social Security Act, 42 U.S.C. §1396 et. seq. 13. “Specialty Providers” means specially qualified masters level behavioral health professionals who are a) certified by the Arizona Board of Behavioral Health Examiners as a Certified Independent Social Worker (CISW), Certified Professional Counselor (CPC), or Certified Marriage and Family Therapist (CMFT); and b) credentialed by the RBHA or its designee as having two years training or experience in a specialty area treating children with certain behavioral health needs or problems; and c) contracted with the RBHA or its designee and registered with AHCCCS. III. DEFENDANTS’ OBLIGATIONS 14. Defendants agree to foster the development of a Title XIX behavioral health system that delivers services according to the Principles set forth in Section V below (hereinafter “the Principles”). 15. Defendants will move as quickly as is practicable to develop a Title XIX behavioral health system that delivers services according to the Principles. Once developed, Defendants will maintain the system in accordance with the Principles for the term of this Agreement. 16. As quickly as practicable, Defendants will conform all contracts, decisions, practice guidelines and policies related to the delivery of Title XIX behavioral health services to be consistent with and designed to achieve the Principles for class members. 17. The Defendants will take the following specific actions: (a) develop and implement a statewide training program, as described in paragraphs 32-39 below; (b) add respite to the list of covered services, as described in paragraph 40 below; (c) devise and implement a means of allowing RBHAs to contract with certified Masters level behavioral health professionals, as described in paragraph 41 below; (d) expand Title XIX services, as described in paragraphs 42-45 below; (e) designate $600,000 for use as flex funds, as described in paragraph 46 and 47 below; (f) develop practice guidelines for the monitoring of medications as described in paragraph 48 below; (g) initiate a 300 Kids
3

Project, as described in paragraphs 49-51 below; (h) develop annual action plans, as described in paragraphs 53-54 below; (i) change their quality management and improvement system, as described in paragraph 55 below; and (j) involve Plaintiffs’ counsel and other stakeholders, as described in paragraphs 73 and 74 below. IV. THE ARIZONA VISION 18. In collaboration with the child and family and others, Arizona will provide accessible behavioral health services designed to aid children to achieve success in school, live with their families, avoid delinquency, and become stable and productive adults. Services will be tailored to the child and family and provided in the most appropriate setting, in a timely fashion, and in accordance with best practices, while respecting the child’s and family’s cultural heritage. V. THE PRINCIPLES 19. The Principles for delivery of Title XIX behavioral health services, which are the foundation of this Settlement Agreement, are the following: 20. Collaboration with the child and family: Respect for and active collaboration with the child and parents is the cornerstone to achieving positive behavioral health outcomes. Parents and children are treated as partners in the assessment process, and the planning, delivery, and evaluation of behavioral health services, and their preferences are taken seriously. 21. Functional outcomes: Behavioral health services are designed and implemented to aid children to achieve success in school, live with their families, avoid delinquency, and become stable and productive adults. Implementation of the behavioral health services plan stabilizes the child’s condition and minimizes safety risks. 22. Collaboration with others: When children have multi-agency, multi-system involvement, a joint assessment is developed and a jointly established behavioral health services plan is collaboratively implemented. Client-centered teams plan and deliver services. Each child’s team includes the child and parents and any foster parents, any individual important in the child’s life who is invited to participate by the child or parents. The team also includes all other persons needed to develop an effective plan, including, as appropriate, the child’s teacher, the child’s Child Protective Service and/or Division of Developmental Disabilities case worker, and the child’s probation officer. The team (a) develops a common assessment of the child’s and family’s strengths and needs, (b) develops an individualized service plan, (c) monitors implementation of the plan and (d) makes adjustments in the plan if it is not succeeding.
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23. Accessible services: Children have access to a comprehensive array of behavioral health services, sufficient to ensure that they receive the treatment they need. Case management is provided as needed. Behavioral health service plans identify transportation the parents and child need to access behavioral health services, and how transportation assistance will be provided. Behavioral health services are adapted or created when they are needed but not available. 24. Best practices: Behavioral health services are provided by competent individuals who are adequately trained and supervised. Behavioral health services are delivered in accordance with guidelines adopted by ADHS that incorporate evidence-based “best practice.” Behavioral health service plans identify and appropriately address behavioral symptoms that are reactions to death of a family member, abuse or neglect, learning disorders, and other similar traumatic or frightening circumstances, substance abuse problems, the specialized behavioral health needs of children who are developmentally disabled, maladaptive sexual behavior, including abusive conduct and risky behavior, and the need for stability and the need to promote permanency in class members’ lives, especially class members in foster care. Behavioral health services are continuously evaluated and modified if ineffective in achieving desired outcomes. 25. Most appropriate setting: Children are provided behavioral health services in their home and community to the extent possible. Behavioral health services are provided in the most integrated setting appropriate to the child’s needs. When provided in a residential setting, the setting is the most integrated and most home-like setting that is appropriate to the child’s needs. 26. Timeliness: Children identified as needing behavioral health services are assessed and served promptly. 27. Services tailored to the child and family: The unique strengths and needs of children and their families dictate the type, mix, and intensity of behavioral health services provided. Parents and children are encouraged and assisted to articulate their own strengths and needs, the goals they are seeking, and what services they think are required to meet these goals. 28. Stability: Behavioral health service plans strive to minimize multiple placements. Service plans identify whether a class member is at risk of experiencing a placement disruption and, if so, identify the steps to be taken to minimize or eliminate the risk. Behavioral health service plans anticipate crises that might develop and include specific strategies and services that will be employed if a crisis develops. In responding to crises, the behavioral health system
5

uses all appropriate behavioral health services to help the child remain at home, minimize placement disruptions, and

avoid the inappropriate use of the police and the criminal justice system. Behavioral health service plans anticipate and

appropriately plan for transitions in children’s lives, including transitions to new schools and new placements, and

transitions to adult services.

29. Respect for the child and family’s unique cultural heritage: Behavioral health services are provided in a

manner that respects the cultural tradition and heritage of the child and family. Services are provided in Spanish to

children and parents whose primary language is Spanish.

30. Independence: Behavioral health services include support and training for parents in meeting their child’s

behavioral health needs, and support and training for children in self-management. Behavioral health service plans

identify parents’ and children’s need for training and support to participate as partners in the assessment process, and in

the planning, delivery, and evaluation of services, and provide that such training and support, including transportation

assistance, advance discussions, and help with understanding written materials, will be made available.

31. Connection to natural supports: The behavioral health system identifies and appropriately utilizes natural

supports available from the child and parents’ own network of associates, including friends and neighbors, and from

community organizations, including service and religious organizations.

VI. SPECIFIC STEPS

A.

Training Program

32. Defendants shall develop and implement a statewide training program focusing on collaboration, assessment,

service planning and implementation, and on maximizing the use of monies for Title XIX services in the context of

managed care.

33. Defendants shall identify persons to be trained and a training schedule. Initial priority shall be given to the

training of people designated to “train the trainers” and to agencies and personnel involved in planning or delivery of

behavioral health services for the 300 Kids Project and other multi-agency children.

34. ADHS/DBHS will designate up to $2 million to be allocated over a three-year period as necessary to design and

implement the statewide training program.

6

35. The training program will be designed to provide front-line staff and supervisors sufficient knowledge and skills

to enable them to plan and provide services consistent with the Principles.

36. The training program will have an on-the-job “hands-on” component for front-line staff and supervisors, in

addition to a classroom component. In the on-the-job component, trainers will coach and mentor front-line staff and

supervisors in effective techniques and approaches.

37. Defendants will develop and implement a pilot training program for the 300 Kids Project. Using lessons

learned from the pilot program and other information, Defendants will develop and implement a comprehensive training

plan.

38. The comprehensive training plan will include the following:

A. Learning opportunities that teach, at a minimum:

1. A family-centered and strengths-based approach;

2. Comprehensive, unified assessment that involves the family;

3. Single, unified service planning and implementation including the involvement of parents as

partners;

4.

Facilitation of child-centered team meetings including team-building and involvement of

parents as partners;

5.

How to access and use wraparound supports.

B.

Tools to evaluate the ongoing effectiveness of the training program and enhance areas demonstrating

need for improvement.

C.

A methodology for measuring core competencies for front-line staff.

39. The behavioral health system will have qualified trainers in sufficient numbers to train front-line staff and

supervisors.

B.

Respite Care

40. Within 30 days of the entry of this Settlement Agreement, AHCCCS shall add respite care to its list of covered

services for Title XIX behavioral health services for children.

7

C.

Specialty Providers

41. To help increase the supply of specialty providers (including providers who treat sexual victims, sexual

offenders, and individuals with developmental disabilities), Defendants will devise and implement, within 120 days of

the entry of the Settlement Agreement, a means of allowing RBHAs to contract with certain certified Masters level

behavioral health professionals (who meet the specific privileging requirements established by ADHS/DBHS) to provide

behavioral health services and independently invoice for services rendered within the scope of their practice. The

certified Masters level behavioral health professionals permitted to contract and bill independently pursuant to the

provisions of this paragraph are Certified Independent Social Workers, Certified Professional Counselors and Certified

Marriage and Family Therapists.

D.

Expansion of Title XIX Services

42. Defendants have retained an expert consultant to advise them as to additional services that may be covered by

Title XIX funds. The expert shall provide Defendants an assessment of whether including additional services in the

state’s Title XIX plan would aid the behavioral health system to provide services according to the Principles for class

members.

43. By August 1, 2001, Defendants will evaluate whether providing coverage under the state’s Title XIX plan for

any of the additional services identified by the consultant would aid the behavioral health system to provide services

according to the Principles for class members.

44. If Defendants determine that covering additional services is required to operate the behavioral health system in

accordance with the Principles:

A.

Defendants will add the services to the state’s Title XIX plan, if prior approval by HCFA is not

required, and

B.

If HCFA approval is required, Defendants will expeditiously seek such approval from HCFA and, as

soon as permitted by HCFA, add the services to the state’s Title XIX plan.

C.

If increased state matching funding is necessary in order to add an additional Title XIX service to the

state plan, the Defendants will seek the necessary funding.

8

45. Defendants will evaluate on an ongoing basis whether additional services should be added to the state’s Title

XIX plan and take the steps outlined in paragraph 44 to add those services to the plan.

E.

Flex Funds

46. Within 30 days of entry of this Settlement Agreement, ADHS shall specifically designate $600,000 for use as

flex funds. This $600,000 may be spent over a period of years, and shall be used only for class members being served in

the 300 Kids Project or similar projects.

47. Flex funds will be used to provide needed services and supports to class members and their families that are not

reimbursable under Title XIX. Services and supports financed by flex funds will be provided in accordance with the

child’s individualized service plan.

F.

Medication Practices

48. Defendants will develop practice guidelines for monitoring and addressing the effects of medication. These

maybe incorporated into practice guidelines addressing other matters.

G. 300 Kids Project

49. Defendant ADHS/DBHS shall initiate a 300 Kids Project. The project will have two sites one of which will be

in Maricopa County and will serve approximately 200 multi-agency children. These sites will engage intensively in

system improvement activity.

50. The sites will serve two purposes. First, Defendants may use the sites to test strategies for providing behavioral

health services according to the Principles. Second, the sites will serve as the first phase of a statewide effort to deliver

services according to the Principles.

51. In each site, ADHS/DBHS will (a) provide sufficient training and mentoring to enable front-line staff and

supervisors to deliver services consistent with the Principles, (b) establish a mechanism for identifying and addressing

administrative and system barriers, (c) establish a mechanism to identify and flexibly address any service gaps in the

continuum of care for participating children, (d) make flex dollars (referenced in paragraphs 46-47 of this Agreement)

and wraparound services available for participating children, (e) ensure that the individuals who provide behavioral

health services have enough time for training, case planning and collaborative team involvement to allow for provision

of services consistent with the Principles, and (f) provide enough flexibility and authority to the behavioral health

9

representatives on each client centered team to allow them to secure necessary Title XIX behavioral health home and community based services for the child and family.
H. Substance Abuse Services 52. Using information gained from the 300 Kids Project, the Training Program, and the Quality Management and Improvement System, Defendants will develop a plan for the expansion of substance abuse treatment services as part of its first Annual Action Plan. VII. ACTION PLAN 53. By November 1 each year, the Defendants will provide the Plaintiffs an Annual Action Plan that will describe the major strategies and activities that Defendants will employ over the coming year to meet their obligations under this agreement. 54. The plan will, at a minimum, (a) describe Defendants’ progress during the previous fiscal year and (b) describe strategies and activities relating to each of Defendants’ obligations as set forth in Section III of this Agreement. VIII. QUALITY MANAGEMENT AND IMPROVEMENT SYSTEM 55. Defendants shall change their quality management and improvement system so that it measures whether services to class members are consistent with and designed to achieve the Principles. The measurement process will include as an integral component, an in depth case review of a sample of individual children’s cases that includes interviews of relevant individuals in the child’s life. In changing their quality management and improvement system, Defendants will use lessons from the training program (see Section VI.A. above) and the 300 Kids Project (see Section VI.G. above). If Defendants choose to retain one or more consultants to help them design the measurement process, Defendants shall first notify Plaintiffs’ counsel of the identity of the proposed consultant(s) and shall give serious consideration to Plaintiffs’ counsel’s input, if any, regarding the competency and qualifications of the proposed consultant(s). IX. DISPUTES CONCERNING IMPLEMENTATION 56. Any claim, dispute or other matter in controversy ("dispute") arising out of or related to the Agreement, or the breach, implementation or performance thereof, shall be settled or otherwise resolved according to the procedures set forth in Section IX exclusively.
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57. The parties’ participation in the dispute resolution process, including collaborative negotiations and mediation,

is mandatory. Neither party may petition the Court to resolve a dispute without first engaging in the dispute resolution

process in a good faith attempt to resolve the matter without judicial involvement. However, any party may seek

preliminary relief from the Court, if in that party's judgment, such action is necessary to avoid irreparable harm during

the pendency of the dispute resolution process.

58. The dispute resolution process consists of a sequential process beginning with collaborative negotiation, then

mediation and, finally, if necessary, judicial involvement. With the exception set forth in paragraph 57 above, each stage

is a mandatory prerequisite to the next stage.

A.

Stage One - Collaborative Negotiation

59. Any party may initiate the dispute resolution process by submitting to all other parties a written statement of the

issue in dispute. The parties shall initially attempt to resolve the dispute through collaborative negotiation.

B.

Stage Two - Mediation

60. If, within 30 days of the written submission, or such other time frame upon which the parties mutually agree,

the parties are unable to resolve the dispute, any party may initiate mediation to help resolve the dispute by filing a

written request with all other parties.

61. If any party requests a mediator be retained, a mediator shall be retained. The parties will negotiate and attempt

to agree on the mediator to be retained. If no agreement is reached within 30 days, a mediator will be selected by the

Court after soliciting recommendations from the parties. The mediator will not have the power to bind the parties to a

particular substantive resolution of their dispute.

62. The Defendants shall pay the reasonable fees and expenses of the mediator. Before the mediation begins, the

mediator will submit an estimated budget of costs and expenses to assist Defendants in fiscal planning.

63. After a mediator is retained, any party may ask the mediator to hire an independent expert to help resolve the

dispute, including by studying the matter under dispute and making a report to the mediator and the parties. The

mediator shall make a determination whether retention of an independent expert is appropriate to assist the mediator in

resolving the dispute.

11

64. The parties shall submit names of the proposed independent experts to the mediator. If the parties are unable to agree upon a mutually acceptable independent expert, the mediator shall appoint one. 65. The parties shall provide the independent expert with access to needed information. 66. The mediator will propose a budget for the independent expert after consultation with the expert and the parties. The budget may include funds for the independent expert to hire individuals to assist the independent expert. Defendants shall approve or reject the budget. If the Defendants reject the proposed budget, Plaintiffs may present the issue to the Court, and the Court will establish the budget for the independent expert. 67. The mediator shall set a schedule for the mediation giving due regard to the schedules and obligations of the parties and to the urgency, importance and complexity of the issue. Mediation is a time-limited process. The more complex or critical the issue, the longer the mediation may take. Mediation shall not be utilized as an ongoing system oversight or monitoring process. C. Stage Three - Judicial process 68. If mediation does not result in a resolution of the dispute, any party may file an appropriate motion with the Court. 69. The Court will hear argument and, as appropriate, receive evidence. Judicial proceedings shall be de novo on the law and the facts, unless the parties mutually agree otherwise. Statements made by any party during the course of mediation shall not be admissible in judicial proceedings. 70. The Court will resolve the matter in a manner consistent with the purposes and goals of the Settlement Agreement. X. WHEN NONCOMPLIANCE IS EXCUSED 71. The Court will not hold Defendants in contempt or sanction Defendants for noncompliance to the extent such noncompliance is the result of Defendants’ being frustrated, delayed, or impeded by persons or governmental entities beyond the control and authority of Defendants. Plaintiffs will not seek contempt or other sanctions for noncompliance to the extent such noncompliance is the result of Defendants being frustrated, delayed, or impeded by persons or governmental entities beyond the control and authority of Defendants.
12

72. The common law doctrines of impossibility of performance and/or impracticability of performance may be

raised as a defense in any action or proceeding to enforce compliance with the terms of this Settlement Agreement. If

any of the provisions of this Settlement Agreement are held impossible and/or impracticable to perform, the remaining

provisions of this Settlement Agreement shall remain binding and in full force and effect.

XI. STAKEHOLDER PARTICIPATION

A. Plaintiffs’ Counsel

73. Throughout the pendency of this Settlement Agreement, Defendants will do the following:

A.

encourage the active involvement of Plaintiffs’ counsel in multi-agency committees and work groups

concerned with strategies and activities designed to implement the terms of this Agreement;

B.

seriously consider input from Plaintiffs’ counsel, but need not obtain Plaintiffs’ counsel’s concurrence

before acting;

C.

forward significant plans and policies developed to implement this Settlement Agreement prior to their

final adoption, and allow the Plaintiffs’ counsel a reasonable opportunity to provide input;

D.

allow Plaintiffs’ counsel reasonable access to information and documents related to Title XIX

children’s behavioral health services that is obtained, compiled, or generated by the quality

management and improvement system operated by the Defendants; and

E.

allow Plaintiffs’ counsel reasonable access to behavioral health case records of class members that are

maintained by AHCCCS, ADHS/DBHS, the RBHAs or agents or contractors of AHCCCS or

ADHS/DBHS or the RBHAs.

B.

Other Stakeholders

74. Defendants will encourage active involvement of class members and their families, community stakeholders,

RBHAs, DES and the Administrative Office of the Courts and private providers in planning and evaluation activities

related to implementation of this Settlement Agreement.

XII. INDIVIDUAL CLAIMS

75. Nothing in this Agreement in any way limits or impairs an individual class member’s entitlement to Title XIX

behavioral health services.

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76. Nothing in this Agreement in any way limits or impairs the right of class members, or parents acting on a class member’s behalf, to pursue an individual action – administrative or judicial -- to secure Title XIX behavioral health services to which the class member is entitled under Title XIX. 77. When a class member, or the class member’s parents, file an individual action to secure services under Title XIX, the class member’s entitlement to services will be governed by applicable federal and state statutes, regulations, and policies regarding the Title XIX program. XIII. ATTORNEYS’ FEES 78. Plaintiffs may file an application with the Court for an award of costs and attorneys’ fees within 150 days after approval by the Court of this Settlement Agreement. XIV. TERMINATION OF AGREEMENT 79. This Settlement Agreement and Defendants’ obligations thereunder will terminate on July 1, 2007, except that the parties will continue, through February 1, 2008, to resolve any pending disputes that were initiated before February 1, 2007. The parties will resolve such disputes according to the procedures in Section IX. 80. From July 1, 2007, to February 1, 2008, the Court’s jurisdiction will be limited to resolving any pending disputes. Through February 1, 2008, the Court may enter appropriate relief if the parties are unable to resolve a dispute by agreement. On February 1, 2008, the Court’s jurisdiction in this case will end. 81. Upon termination of Defendants’ obligations under this Settlement Agreement, the Court shall dismiss the instant action without prejudice. On May 1, 2007, Plaintiffs will file a motion asking to the Court (a) to dismiss this action without prejudice on July 1, 2007 or (b) if any disputes have been pending since February 1, 2007, to dismiss the action without prejudice on February 1, 2008 or such earlier date as the disputes are finally resolved. 82. None of the parties may engage in activities which delay, prolong or frustrate performance of the obligations of this Agreement with the aim of taking advantage of the time-limited nature of this Settlement Agreement. The Court may, after application and a hearing, impose severe sanctions for such conduct. 83. None of the foregoing provisions limit, in any way, the Court’s authority, power, or jurisdiction to enforce this Settlement Agreement during its pendency.
14

XV. ADDITIONAL PROVISIONS 84. This Agreement may be amended, modified or supplemented only by a duly executed writing which has been presented to and approved by this Court. 85. This Settlement Agreement, once approved by the Court, shall be effective as to and binding upon the parties and their successors and assigns. 86. The foregoing [1-85] paragraphs represent the entire integrated agreement of the parties.
EXECUTED this _____ day of March, 2001, by:

CATHERINE R. EDEN, in her official capacity as Director of Arizona Department of Health Services
LESLIE SCHWALBE, in her official capacity as Deputy Director, Division of Behavioral Health Services
PHYLLIS BIEDESS, in her official capacity as Director of Arizona Health Care Cost Containment System
JANET NAPOLITANO Attorney General CATHERINE M. DODD Assistant Attorney General 1275 West Washington Street Phoenix, Arizona 85007-2997 Attorneys for Defendants EDEN and SCHWALBE
_______________________________ LOGAN T. JOHNSTON, JOHNSTON & KELLY, P.L.C. One North First Street, Suite 700 Phoenix, Arizona 85004 Attorney for Defendant BIEDESS

ANNE RONAN DENA ROSE EPSTEIN ARIZONA CENTER FOR DISABILITY LAW 3839 North Third Street, Suite 209 Phoenix, Arizona 85012
IRA A. BURNIM MARY GILIBERTI BAZELON CENTER FOR MENTAL HEALTH LAW 1101 Fifteenth Street N.W., Suite 1212 Washington, D.C. 20005-5002
JOSEPH E. McGARRY BRUCE SAMUELS LEWIS & ROCA, L.L.P. 40 North Central Avenue Phoenix, Arizona 85004
PATRICK GARDNER NATIONAL CENTER FOR YOUTH LAW 405 14th Street, Suite 1500 Oakland, California 94104
Attorneys for Plaintiffs

15

 
 Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 1 of 57

U.S. District Court DISTRICT OF ARIZONA (Tucson Division) CIVIL DOCKET FOR CASE #: 4:91−cv−00261−AWT

STD,TERMED

John Doe v. Symington, et al Assigned to: Judge A Wallace Tashima Demand: $0 Cause: 42:1983 Civil Rights Act Special Master Ruth V McGregor (SM)
Plaintiff John Doe

Date Filed: 05/08/1991 Date Terminated: 05/16/2002 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ruth V McGregor (SM) Arizona Supreme Court 1501 W Washington St. Phoenix, AZ 85007−3327 Email: mcgregorspecialmaster@gmail.com PRO SE
Ruth V McGregor Arizona Supreme Court 1501 W Washington St. Phoenix, AZ 85007−3327 602−542−5789 Email: mcgregorspecialmaster@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alison N Barkoff , Judge David E Bazelon Ctr for Mental Health Law 1101 15th St NW Ste 1212 Washington, DC 20005 202−467−5730 Fax: 202−223−0409 Email: alisonb@bazelon.org TERMINATED: 01/03/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne C Ronan Arizona Center for Law In The Public Interest − Phoenix, AZ 202 E McDowell Rd., Ste. 153 Phoenix, AZ 85004 602−258−8850 Fax: 602−258−8757 Email: aronan@aclpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira A Burnim Bazelon Center for Mental Health Law 1101 15th St NW Ste 1212 Washington, DC 20005−5002 202−467−5730 Fax: 202−223−0409 Email: irab@bazelon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 2 of 57
Jared Lynn Sutton Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−0259 Fax: 602−734−3924 Email: JSutton@lrrc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jon David Weiss Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5382 Fax: 602−734−3860 Email: jweiss@lrrc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie J Cohen Arizona Ctr for Disability Law 100 N Stone Ave Ste 305 Tucson, AZ 85701 520−327−9547 Fax: 520−884−1992 Email: lesjan@cox.net TERMINATED: 10/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle S Michelson Law Office of Michelle S Michelson PLLC 177 N Church Ave., Ste. 200 Tucson, AZ 85701 520−628−7777 Fax: 520−623−2026 Email: michelle@msmdisabilitylaw.com TERMINATED: 10/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Hall Gardner Young Minds Advocacy Corporation 115 Haight St. Menlo, CA 94025 650−494−4930 Fax: 650−494−4930 Email: patrick@youngmindsadvocacy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Bussiere National Ctr for Youth Law 405 14th St 15th Floor Oakland, CA 94612−2701 (510)835−8099 TERMINATED: 12/05/1997
Andrew M Mudryk

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 3 of 57
Arizona Ctr for Disability Law 3839 N 3rd St Ste 209 Phoenix, AZ 85012−2069 602−274−6287 Fax: 602−274−6779 Email: amudryk@azdisabilitylaw.org TERMINATED: 12/15/2006
Asim Varma Arizona Center for Disability Law − Phoenix, AZ 5025 E Washington St., Ste. 202 Phoenix, AZ 85034 602−274−6287 Email: avarma@azdisabilitylaw.org ATTORNEY TO BE NOTICED
Edward Leo Myers Arizona Center for Disability Law − Phoenix, AZ 5025 E Washington St., Ste. 202 Phoenix, AZ 85034 602−274−6287 Fax: 602−274−6779 Email: emyers@azdisabilitylaw.org TERMINATED: 08/13/2014 ATTORNEY TO BE NOTICED
Emily B Read Judge David L Bazelon Center for Mental Health 1101 15th St. NW, Ste. 1212 Washington, DC 20005 202−467−5730 Fax: 202−223−0409 Email: emilyr@bazelon.org ATTORNEY TO BE NOTICED
George Salazar Barnett 2225 E Adams Tucson, AZ 85719−4306 520−322−9519 Fax: 520−322−9935 TERMINATED: 02/11/1992
Jeanne Finberg National Senior Citizens Law Ctr 1330 Broadway Ste 525 Oakland, CA 94612 510−663−1055 Fax: 510−663−1051 Email: jfinberg@nsclc.org TERMINATED: 11/20/2000
Joseph E McGarry Lewis & Roca LLP 40 N Central Ave Ste 1900 Phoenix, AZ 85004−4429 602−262−5391 Fax: 602−734−3884 Email: jmcgarry@lrlaw.com TERMINATED: 01/17/2002

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 4 of 57
Julia Graff Julia Graff Attorney at Law 1101 15th St. NW., Ste. 1212 Washington, DC 20005 202−467−5730 Fax: 202−223−0409 Email: juliag@bazelon.org ATTORNEY TO BE NOTICED
Kathryn Christine Palamountain National Ctr for Youth Law 405 14th St 15th Floor Oakland, CA 94612−2701 (510)835−8099 TERMINATED: 08/17/1998
Kerstin Gramatzki LeMaire , Lon S Taubman PC 7220 N 16th St Ste J Phoenix, AZ 85020 602−266−9552 Fax: 602−279−6651 Email: klemaire@taubmanlaw.com TERMINATED: 12/03/2004
Mary Teresa Giliberti The Bazelon Ctr for Mental Health Law 1101 15th St NW Ste 1212 Washington, DC 20005−5002 (202)467−5730 TERMINATED: 03/14/2003
Robbin Michelle Coulon Arizona Ctr for Disability Law 3839 N 3rd St Ste 209 Phoenix, AZ 85012 602−274−6287 Fax: 602−274−6779 Email: rcoulon@azdisabilitylaw.org TERMINATED: 12/15/2006
Susanne B Cohen Arizona Ctr for Disability Law 3839 N 3rd St Ste 209 Phoenix, AZ 85012−2069 (602)274−6287 TERMINATED: 01/29/1999
Timothy Michael Hogan Arizona Center for Law in the Public Interest − Tucson, AZ P.O. Box 41835 Tucson, AZ 85717 520−529−1798 Fax: 520−529−2927 Email: thogan@aclpi.org ATTORNEY TO BE NOTICED
William Eric Morris

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 5 of 57
Arizona Justice Institute 33 N Stone Ave., Ste. 1600 Tucson, AZ 85701 520−740−1207 TERMINATED: 07/31/1996

V. Defendant Susan Gerard Director
Defendant William Humble

represented by Gregory David Honig Office of the Attorney General 1275 W Washington St Phoenix, AZ 85007 602−542−8331 Fax: 602−364−0700 Email: gregory.honig@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin D Ray Office of the Attorney General Education and Health Section − Health Unit 1275 W Washington St Phoenix, AZ 85007−2926 602−542−8328 Fax: 602−364−0700 Email: Kevin.Ray@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Logan T Johnston Johnston Law Offices PLC 1402 E Mescal St. Phoenix, AZ 85020 602−452−0615 Fax: 602−716−5997 Email: LTJohnston@JohnstonLawOffices.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe Ryan Rapp & Underwood PLC 3200 N Central Ave Ste 1600 Phoenix, AZ 85012 602−280−1000 Fax: 602−265−1495 Email: dniederdeppe@rrulaw.com TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen Ryan Rapp & Underwood PLC TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
represented by Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 6 of 57

Gregory David Honig (See above for address) ATTORNEY TO BE NOTICED

Paul E Steen Ryan Rapp & Underwood PLC 3200 N Central Ave Ste 1600 Phoenix, AZ 85012 602−280−1000 Fax: 602−265−1495 Email: psteen@rrulaw.com TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Arizona Department of Health Services

represented by Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory David Honig (See above for address) ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Arizona Health Care Cost Containment System

represented by Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
John Fife Symington, III in his official capacity as Governor, State of Arizona TERMINATED: 09/18/1991

represented by Anthony B Ching Anthony B Ching Law Office Bldg. 1 2043 E Southern Ave. Tempe, AZ 85282−7515 480−755−8844

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 7 of 57

TERMINATED: 09/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
William L McDonald in his official capacity as Administrative Director of the State Supreme Court TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Ted Williams in his personal and official capacity as Director of Arizona Department of Health Services TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Boyd Dover in his official capacity as the Assistant Director, Division of Behavioral Health Department of Health Services TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 8 of 57

ATTORNEY TO BE NOTICED

Defendant
Linda Moore−Cannon in her official capacity as Director of the Arizona Department of Economic Security TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen M Baldino Office of the Attorney General Liability Management Section 1275 W Washington Phoenix, AZ 85007−2997 (602)542−4951 TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melinda Garrahan Mangum Wall Stoops & Warden PLLC PO Box 10 Flagstaff, AZ 86002 (928)779−6951 TERMINATED: 03/05/1992 LEAD ATTORNEY
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
C Diane Bishop in her official capacity as Director of the Arizona Department of Education TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Carol Hurtt in her personal and official capacity as Director of the Arizona Department of Juvenile Corrections TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 9 of 57

TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Richard Wilson in his personal and official capacity as Director of the Superior Court of Arizona − Pima County Division (Juvenile) TERMINATED: 03/05/1992

represented by Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Gary E Ackerson in his personal and official capacity as Executive Director of ADAPT, Inc., Pima County's Child and Adolescent Mental Health Care Funding agency TERMINATED: 03/05/1992

represented by Lawrence McDonough Monroe & McDonough PC 6280 E Pima Ste 105 Tucson, AZ 85712 520−325−2000 Fax: 520−886−3527 Email: lmcdonough@mmazlaw.com TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Miriam Kyle in her personal and official capacity as Child and Adolescent Coordinator for ADAPT, Inc. TERMINATED: 03/05/1992

represented by Lawrence McDonough (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 10 of 57

Kathryn Graybill in her personal and official capacity as Director of Comprehensive Child and Adolescent Treatment Services (CCATS) TERMINATED: 03/05/1992

Anthony B Ching (See above for address) TERMINATED: 03/05/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Alethia Caldwell Director of Arizona Department of Health Services TERMINATED: 04/26/1993

represented by Andrew Mark Federhar Fennemore Craig PC − Phoenix, AZ 2394 E Camelback Rd., Ste. 600 Phoenix, AZ 85016 602−916−5000 Fax: 602−916−5501 Email: afederhar@fclaw.com TERMINATED: 04/26/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony B Ching (See above for address) TERMINATED: 04/26/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Eileen Bond Office of the Attorney General Civil Division 1275 W Washington Phoenix, AZ 85007 (602)542−1610 TERMINATED: 04/26/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Jerome Breen Director, Division of Behavioral Health Services, Arizona Department of Health Services TERMINATED: 04/26/1993

represented by Anthony B Ching (See above for address) TERMINATED: 04/26/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline Eileen Bond (See above for address) TERMINATED: 04/26/1993

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 11 of 57

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Jack Dillenberg in his official capacity as Director of Arizona Dept of Health Services TERMINATED: 07/17/1997

represented by Amy Jo Leeson Office of the Attorney General − 1275 W Washington Phoenix, AZ 85007−2926 (602)542−5025 TERMINATED: 07/17/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Mark Federhar (See above for address) TERMINATED: 10/03/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Coni R Good Hymson Goldstein & Pantiliat PLLC 16427 N Scottsdale Rd., Ste. 300 Scottsdale, AZ 85254 480−991−9077 Fax: 480−443−8854 Email: cgood@legalcounselors.com TERMINATED: 07/17/1997 LEAD ATTORNEY
Winn L Sammons Sanders & Parks PC 3030 N 3rd St Ste 1300 Phoenix, AZ 85012 602−532−5786 Fax: 602−230−5011 Email: winn.sammons@sandersparks.com TERMINATED: 07/17/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 12 of 57

Charles Carbone in his official capacity as Director, Division of Behavioral Health Services, Ariz Dept of Health Services TERMINATED: 10/03/1996

Amy Jo Leeson (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Mark Federhar (See above for address) TERMINATED: 10/03/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Coni R Good (See above for address) TERMINATED: 07/17/1997 LEAD ATTORNEY

Winn L Sammons (See above for address) TERMINATED: 07/17/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
Mabel Chen TERMINATED: 04/11/1997

represented by Logan T Johnston (See above for address) TERMINATED: 07/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
John H Kelly TERMINATED: 07/22/1999

represented by Logan T Johnston (See above for address) TERMINATED: 07/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margo F Shein Maynard Cronin Erickson Curran & Sparks PLC 3200 N Central Ave Ste 1800 Phoenix, AZ 85012−2443 (602)279−8500

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 13 of 57

TERMINATED: 10/03/2006 LEAD ATTORNEY
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant Rhonda Baldwin

represented by Amy Jo Leeson (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J Sorce Office of the Attorney General − 1275 W Washington Phoenix, AZ 85007 602−542−8896 Fax: 602−364−0070 Email: robert.sorce@azag.gov TERMINATED: 02/10/2008 LEAD ATTORNEY
Winn L Sammons (See above for address) TERMINATED: 07/17/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Defendant
James B Griffith Acting Director of Arizona Department of Health Services TERMINATED: 02/05/1998

represented by Amy Jo Leeson (See above for address) TERMINATED: 08/08/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Logan T Johnston (See above for address) TERMINATED: 07/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 14 of 57

Defendant James R Allen
Defendant

Winn L Sammons (See above for address) TERMINATED: 02/05/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
represented by Amy Jo Leeson (See above for address) TERMINATED: 06/14/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin D Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Joseph Devlin Office of the Attorney General − 1275 W Washington Phoenix, AZ 85007−2926 (602)542−5025 TERMINATED: 08/17/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winn L Sammons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J Sorce (See above for address) TERMINATED: 02/10/2008
David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED
Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 15 of 57

Phyllis Biedess in her official capacity as Director, Arizona Health Care Cost Containment System

represented by Catherine Dodd Plumb Johnston Law Offices PLC 1 N 1st St Ste 250 Phoenix, AZ 85004 (602)452−0600 TERMINATED: 07/26/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Logan T Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J Sorce (See above for address) TERMINATED: 02/10/2008 LEAD ATTORNEY

David L Niederdeppe (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Paul E Steen (See above for address) TERMINATED: 03/06/2012 ATTORNEY TO BE NOTICED

Date Filed 05/08/1991 05/09/1991 05/09/1991 05/13/1991 05/13/1991 05/13/1991 05/15/1991 05/20/1991 05/20/1991 05/20/1991 05/20/1991 05/20/1991

# Docket Text
1 COMPLAINT FILED AND SUMMONS ISSUED (former emp) (Entered: 05/15/1991)
2 MOTION for leave to proceed in pseudonym by plaintiff [2−1] (former emp) (Entered: 05/15/1991)
3 MEMORANDUM IN SUPPORT by plaintiff motion for leave to proceed in pseudonym by plaintiff [2−1] [2−1] (former emp) (Entered: 05/15/1991)
4 RETURN OF SERVICE EXECUTED personally by defendant Richard Wilson on 5/9/91 (former emp) (Entered: 05/15/1991)
5 RETURN OF SERVICE EXECUTED personally by defendant Kathryn Graybill on 5/9/91 (former emp) (Entered: 05/15/1991)
6 RETURN OF SERVICE EXECUTED personally by defendant Miriam Kyle on 5/9/91 (former emp) (Entered: 05/15/1991)
7 RETURN OF SERVICE EXECUTED personally by defendant Gary E Ackerson on 5/10/91 (former emp) (Entered: 05/16/1991)
8 RETURN OF SERVICE EXECUTED personally by defendant Leonard Kirshner on 5/9/91 (former emp) (Entered: 05/21/1991)
9 RETURN OF SERVICE EXECUTED personally by defendant Boyd Dover on 5/9/91 (former emp) (Entered: 05/21/1991)
10 RETURN OF SERVICE EXECUTED personaly by defendant Ted Williams on 5/9/91 (former emp) (Entered: 05/21/1991)
11 RETURN OF SERVICE EXECUTED personally by defendant Fife Symington on 5/9/91 (former emp) (Entered: 05/21/1991)
12 RETURN OF SERVICE EXECUTED personally by defendant Carol Hurtt on 5/9/91 (former emp) (Entered: 05/21/1991)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 16 of 57

05/20/1991 05/20/1991 05/20/1991 05/23/1991 07/22/1991 07/25/1991 07/30/1991 08/05/1991
08/05/1991 08/05/1991 08/06/1991 08/06/1991 08/20/1991 08/21/1991 08/23/1991 08/30/1991 09/13/1991 09/18/1991
09/25/1991
10/21/1991
01/06/1992 01/08/1992 02/10/1992

13 RETURN OF SERVICE EXECUTED personally by defendant Linda Moore−Cannon on 5/9/91 (former emp) (Entered: 05/21/1991)
14 RETURN OF SERVICE EXECUTED personally by defendant C Diane Bishop on 5/9/91 (former emp) (Entered: 05/21/1991)
15 RETURN OF SERVICE EXECUTED personally by defendant William L McDonald on 5/9/91 (former emp) (Entered: 05/21/1991)
16 ORDER by Judge Richard M. Bilby granting motion for leave to proceed in pseudonym by plaintiff [2−1] (cc: all counsel) (former emp) (Entered: 05/24/1991)
17 ANSWER by defendant Linda Moore−Cannon (ADEC) (former emp) (Entered: 07/25/1991)
18 STIPULATION to exttm to ans (former emp) (Entered: 07/29/1991)
19 ORDER by Judge Richard M. Bilby granting stipulation to exttm to file answer to complaint until 8/5/91 (cc: all counsel) (former emp) (Entered: 08/05/1991)
20 ANSWER by defendant William L McDonald, defendant Ted Williams, defendant Boyd Dover, defendant Linda Moore−Cannon, defendant C Diane Bishop, defendant Carol Hurtt, defendant Richard Wilson, defendant Kathryn Graybill (former emp) (Entered: 08/08/1991)
21 MOTION dismiss by defendant Fife Symington [21−1] (former emp) (Entered: 08/08/1991)
22 MEMORANDUM IN SUPPORT by defendant Fife Symington motion dismiss by defendant Fife Symington [21−1] [21−1] (former emp) (Entered: 08/08/1991)
23 MOTION dismiss by defendant Gary E Ackerson, defendant Miriam Kyle [23−1] (former emp) (Entered: 08/09/1991)
24 NOTICE OF HEARING setting motion dismiss by defendant Gary E Ackerson, defendant Miriam Kyle [23−1] at 1:00 10/15/91 (former emp) (Entered: 08/09/1991)
25 STIPULATION for ext of time to resp to mot to dism dfts Ackerson & Kyle (former emp) (Entered: 08/23/1991)
26 ORDER by Judge Richard M. Bilby granting stipulation to provide pla until 8/30/91 to file resp to Mot to Dism(cc: all counsel) (former emp) (Entered: 08/23/1991)
27 ANSWER by defendant Leonard Kirshner (former emp) (Entered: 08/28/1991)
28 RESPONSE by plaintiff to motion dismiss by defendant Gary E Ackerson, defendant Miriam Kyle [23−1] (former emp) (Entered: 09/03/1991)
29 REPLY by Gary E Ackerson, Miriam Kyle to motion dismiss by defendant Gary E Ackerson, defendant Miriam Kyle [23−1] [23−1] (former emp) (Entered: 09/16/1991)
30 MINUTE ENTRY Judge Inits: (RMB) Crt Rptr: granting motion dismiss by defendant Fife Symington [21−1] party Fife Symington dism. See m/e for details (cc: all counsel) (former emp) (Entered: 09/19/1991)
31 NOTICE OF HEARING by plaintiff setting motion dismiss by defendant Gary E Ackerson, defendant Miriam Kyle [23−1] at 1:45 10/21/91 (former emp) (Entered: 09/26/1991)
32 MINUTE ENTRY Judge Inits: RMB Crt Rptr: John Davis HRG held Teleph ORD denying motion dismiss by deft Ackerson and Miriam Kyle [23−1] amend complaint by 1/10/92 , case stayed until 1/10/92 , (cc: all counsel) (VDA) (Entered: 10/21/1991)
33 MOTION to stay by plaintiff [33−1] (former emp) (Entered: 01/07/1992)
34 MINUTE ENTRY Judge Inits: (RMB) Crt Rptr: granting motion to stay by plaintiff [33−1] , case stayed until 2/10/92 (cc: all counsel) (former emp) (Entered: 01/10/1992)
35 MOTION to substitute attorney by plaintiff [35−1] (re Jenny Moon−Hobbas as next friend) (former emp) (Entered: 02/11/1992)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 17 of 57

02/10/1992 02/10/1992 02/10/1992 02/10/1992 02/10/1992 02/11/1992
02/12/1992 02/20/1992 02/20/1992 02/24/1992 03/03/1992 03/05/1992
03/05/1992
03/12/1992 03/18/1992 03/20/1992 03/20/1992 03/31/1992 04/01/1992
04/07/1992 04/07/1992 04/07/1992

36 MOTION to substitute attorney by plaintiff [36−1] (re Harold Wernes as next friend) (former emp) (Entered: 02/11/1992)
37 MOTION to substitute attorney by plaintiff [37−1] (re Sonja Simms as next friend) (former emp) (Entered: 02/11/1992)
38 MOTION to substitute attorney by plaintiff [38−1] (re Louise Walls as next friend) (former emp) (Entered: 02/11/1992)
39 MOTION to substitute attorney by plaintiff [39−1] ana Dawson as next friend) (former emp) (Entered: 02/11/1992)
40 MOTION to substitute attorney by plaintiff [40−1] (re Regina Koch as next friend) (former emp) (Entered: 02/11/1992)
41 ORDER by Judge Richard M. Bilby granting motion to substitute attorney by plaintiff [35−1 thru 40−1] attorney George Salazar Barnett for SEALED 1 and substituting attorney Leslie J Cohen (former emp) (Entered: 02/12/1992)
42 MOTION dismiss claims by plaintiff [42−1] , and to amend complaint by plaintiff [42−2] (former emp) (Entered: 02/18/1992)
43 NOTICE by defendant Leonard Kirshner of service of 1st set of interrogs and req for adms and for prod of documents (former emp) (Entered: 02/21/1992)
44 RESPONSE by defendant Leonard Kirshner to motion to amend complaint by plaintiff [42−2] (former emp) (Entered: 02/21/1992)
52 NOTICE by plaintiff of service of non−unif interrogs and req for adms (former emp) (Entered: 03/25/1992)
45 MINUTE ENTRY Judge Inits: (RMB_ Crt Rptr: status hearing set 3/31/92 at 9:00 am b/f law clerk See m/e for details (cc: all counsel) (former emp) (Entered: 03/05/1992)
46 ORDER by Judge Richard M. Bilby granting motion dismiss claims by plaintiff [42−1] granting motion to amend complaint by plaintiff [42−2] dismissing party Kathryn Graybill, party Miriam Kyle, party Gary E Ackerson, party Richard Wilson, party Carol Hurtt, party C Diane Bishop, party Linda Moore−Cannon, party William L McDonald (cc: all counsel) (former emp) (Entered: 03/09/1992)
47 AMENDED COMPLAINT by plaintiff [1−1] terminating defendant Boyd Dover, defendant Ted Williams; adding Alethia Caldwell, Jerome Breen (former emp) (Entered: 03/09/1992)
48 NOTICE by plaintiff of service of 1st amd cmplt (former emp) (Entered: 03/16/1992)
49 ANSWER by defendant Leonard Kirshner (former emp) (Entered: 03/19/1992)
50 NOTICE by plaintiff of serv of req for prod and non−unif interrogs (former emp) (Entered: 03/23/1992)
51 NOTICE by plaintiff of service of req for prod and non−unif interrogs (dfts Caldwell & Breen) (former emp) Modified on 04/02/1992 (Entered: 03/23/1992)
53 ANSWER by defendant Alethia Caldwell, defendant Jerome Breen (former emp) (Entered: 04/01/1992)
54 MINUTE ENTRY Judge Inits: (RMB) status report due 4/14/92 & 8/14/92 , ptys to excg and file wit lsts by 6/22/92 pretrial order ddl 9/3/92 at 5:00 pm discovery ddl and dispositive motions ddl 8/3/92 (cc: all counsel) (former emp) (Entered: 04/03/1992)
55 NOTICE by defendant Leonard Kirshner OF TAKING DEPO OF Steve Vitali on the following date(s): 5/4/92 at 9:00 am (former emp) (Entered: 04/08/1992)
56 NOTICE by defendant Leonard Kirshner OF TAKING DEPO OF Maria Hoffman on the following date(s): 5/6/92 at 9:00 am (former emp) (Entered: 04/08/1992)
57 AMENDED NOTICE by defendant Leonard Kirshner OF TAKING DEPO OF Maria on the following date(s): 5/13/92 at 9:00 am (former emp) (Entered: 04/08/1992)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 18 of 57

04/07/1992 04/16/1992 04/22/1992 06/16/1992 06/24/1992
10/08/1992 12/07/1992 12/08/1992 12/10/1992
12/14/1992 03/15/1993
03/19/1993 03/25/1993 03/25/1993 03/25/1993 03/25/1993 03/25/1993 03/29/1993 03/31/1993 04/05/1993 04/08/1993 04/08/1993
04/08/1993

58 AMENDED NOTICE by defendant Leonard Kirshner OF TAKING DEPO OF Stve Vitali on the following date(s): 5/11/92 at 9:00 am (former emp) (Entered: 04/08/1992)
59 NOTICE by Leonard Kirshner of Service of ans to pla's 1st req for prod of documents & non−unif interrogs (former emp) (Entered: 04/16/1992)
60 NOTICE by defendant of srvc of discovery papers. (former emp) (Entered: 04/23/1992)
61 JOINT MOTION to extend time deadlines by pla, dft [61−1] (former emp) (Entered: 06/18/1992)
62 MINUTE ENTRY Judge Inits: (RMB) granting motion to extend time deadlines by pla, dft [61−1] proposed PTO (42c) vacated, status hearing reset to 10/6/92 at 9:00 am (cc: all counsel) (former emp) (Entered: 06/26/1992)
63 MINUTE ENTRY Judge Inits: (RMB) status hearing held , status report due 11/6/92 (cc: all counsel) (former emp) (Entered: 10/09/1992)
64 MINUTE ENTRY Judge Inits: (RMB) status report due 12/16/92 or matter wil be set for ct status (cc: all counsel) (former emp) (Entered: 12/09/1992)
65 STIPULATION to extend disc ddls (former emp) (Entered: 12/10/1992)
66 MINUTE ENTRY Judge Inits: (RMB) granting stipulation tht aall disc is this matter is stayed status hearing set for 3/15/93 at 1:00 (cc: all counsel) (former emp) (Entered: 12/15/1992)
67 MINUTE ENTRY Judge Inits: (RMB) ORD m/e of 12/8/92 is amd to reflect status hearing set for 3/15/93 at 9:00 (cc: all counsel) (former emp) (Entered: 12/15/1992)
68 MINUTE ENTRY Judge Inits: RMB wit list ddl 8/16/93; discovery ddl 10/1/93; dispositive motions ddl 11/1/93; pretrial conference ddl 12/1/93 (cc: all counsel) (former emp) (Entered: 03/15/1993)
69 ATTORNEY APPEARANCE for dft Alethia Caldwell by Andrew Mark Federhar (former emp) (Entered: 03/22/1993)
70 MOTION to amend complaint by pla [70−1] (former emp) (Entered: 03/29/1993)
71 MOTION to certify class action by pla [71−1] (former emp) (Entered: 03/29/1993)
72 MOTION to exceed the page limit re: mtn for pt sum jgm by pla [72−1] (former emp) (Entered: 03/29/1993)
LODGED plas' mtn for pt sum jgm, stmt of facts (former emp) (Entered: 03/29/1993)
73 MOTION TO SEAL exhs attached to stmnt of facts in suppt of mtn for pt sum jgm by pla [73−1] (former emp) (Entered: 03/29/1993)
74 MINUTE ENTRY Judge Inits: (RMB) Case reassigned to Judge John M. Roll (with notice sent) (cc: all counsel) (former emp) (Entered: 03/30/1993)
75 MOTION to extend time to resp to pla's mtn to amd and mtn for class cert by Alethia Caldwell, Jerome Breen [75−1] (former emp) (Entered: 04/01/1993)
76 JOINDER by dft Leonard Kirshner to mtn for extt of time filed by co−dfts [75−1] (former emp) (Entered: 04/07/1993)
77 MINUTE ENTRY Judge Inits: (JMR) status hearing set for 4/20/93 at 1:30 (cc: all counsel) (former emp) (Entered: 04/13/1993)
78 RESPONSE by pla to motion to extend time to resp to pla's mtn to amd and mtn for class cert by Alethia Caldwell, Jerome Breen [75−1] (former emp) (Entered: 04/13/1993)
79 MINUTE ENTRY Judge Inits: (JMR) granting motion to extend time to resp to pla's mtn to amd and mtn for class cert by Alethia Caldwell, Jerome Breen [75−1] only until such time as ct has the opportunity to meet w/all cnsl and discuss certain pending issues status hearing reset for 4/20/93 at 8:30 (cc: all counsel) (former emp) (Entered: 04/13/1993)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 19 of 57

04/09/1993
04/19/1993 04/21/1993
04/21/1993 04/21/1993 04/26/1993
04/28/1993 05/11/1993 05/19/1993 05/19/1993
05/20/1993
05/21/1993 05/21/1993 05/21/1993 05/21/1993 05/21/1993
05/21/1993 05/24/1993 06/01/1993 06/04/1993

80 RESPONSE by dft Leonard Kirshner to mtn TO SEAL exhs attached to stmnt of facts in suppt of mtn for pt sum jgm by pla [73−1], mtn to exceed the page limit re: mtn for pt sum jgm by pla [72−1] (former emp) (Entered: 04/15/1993)
81 REPLY by Alethia Caldwell, Jerome Breen to motion response to dft Caldwells and Breen's mtn to exttm to resp to class cert (former emp) (Entered: 04/20/1993)
82 ORDER by Judge John M. Roll granting motion TO SEAL exhs attached to stmnt of facts in suppt of mtn for pt sum jgm by pla [73−1], granting motion to exceed the page limit re: mtn for pt sum jgm by pla [72−1], setting motion to certify class action by pla [71−1] at 11:00 6/21/93, granting motion to amend complaint by pla [70−1] FUR ORD dfts have until 6/7/93 to file resp to pla's mtn for pt sum jgm. Hrg to be held 7/19/93 at 9:00 (see ord for furth details) (cc: all counsel) (former emp) (Entered: 04/27/1993)
83 MOTION for partial summary judgment by pla [83−1] (former emp) (Entered: 04/27/1993)
84 (SEALED) STATEMENT OF FACTS by pla re motion for partial summary judgment by pla [83−1] (former emp) (Entered: 04/27/1993)
85 2ND AMENDED COMPLAINT by pla [47−1], [1−1] terminating dft Jerome Breen, dft Alethia Caldwell; adding Jack Dillenberg, Charles Carbone (former emp) (Entered: 04/28/1993)
86 MINUTE ENTRY Judge Inits: (JMR) resetting motion for partial summary judgment by pla [83−1] at 9:00 8/2/93 (cc: all counsel) (former emp) (Entered: 05/03/1993)
87 MOTION to dismiss case by dft Leonard Kirshner [87−1] (former emp) (Entered: 05/18/1993)
88 NOTICE by pla of req for prod of docus, non uni interrogs (former emp) (Entered: 05/20/1993)
89 MINUTE ENTRY Judge Inits: (JMR) ORD tht all litigation ddls are vacated until such time as the ct rules on the pending disp mtns (cc: all counsel) (former emp) (Entered: 05/20/1993)
90 RESPONSE to motion by Jack Dillenberg, Charles Carbone and CROSS−MOTION for subclass determination by Jack Dillenberg, Charles Carbone [90−1] (RE: [71−1] ) (former emp) (Entered: 05/24/1993)
91 ANSWER by Jack Dillenberg, Charles Carbone (former emp) (Entered: 05/24/1993)
92 MOTION dismiss by Jack Dillenberg, Charles Carbone [92−1] and joinder in Dft Kirschner's mtn to dism (former emp) (Entered: 05/24/1993)
92 JOINDER by Jack Dillenberg, Charles Carbone to Kirschner's mtn to dism [87−1] and mtn to dism (former emp) (Entered: 05/24/1993)
93 STATEMENT OF FACTS by Jack Dillenberg, Charles Carbone re motion dismiss by Jack Dillenberg, Charles Carbone [92−1] (former emp) (Entered: 05/24/1993)
94 MEMORANDUM IN SUPPORT by Jack Dillenberg, Charles Carbone of motion dismiss by Jack Dillenberg, Charles Carbone [92−1] (former emp) (Entered: 05/24/1993)
95 NOTICE by Jack Dillenberg, Charles Carbone of filing original afdt of Aimee Schwartz (former emp) (Entered: 05/24/1993)
96 JOINDER by dft to resp to mtn for class cert and x−mtn for subclass determination [90−2] (former emp) (Entered: 05/26/1993)
97 MOTION to subst exhs by Jack Dillenberg, Charles Carbone [97−1] (former emp) (Entered: 06/03/1993)
98 RESPONSE to motion by dft Jack Dillenberg, dft Charles Carbone and CROSS−MOTION for partial summary judgment by dft Jack Dillenberg, dft Charles Carbone [98−1] (RE: [83−1] (former emp) (Entered: 06/07/1993)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 20 of 57

06/04/1993 06/04/1993 06/04/1993 06/04/1993 06/07/1993 06/07/1993 06/07/1993 06/07/1993 06/08/1993
06/08/1993 06/08/1993
06/10/1993
06/10/1993
06/10/1993
06/10/1993
06/11/1993 06/11/1993 06/14/1993
06/16/1993 06/17/1993
06/17/1993

99 MEMORANDUM by dft Jack Dillenberg, dft Charles Carbone in sup of resp to mtn for psumjgm and x/mtn for psumjgm. (former emp) (Entered: 06/07/1993)
100 STATEMENT OF FACTS by dft in sup of resp to mtn for psumjgm and x/mtn for psumjgm. (former emp) (Entered: 06/07/1993)
101 EXHIBITS in sup of stmt of facts by dft in sup of resp to mtn psumjgm and x/mtn for psumjgm. (former emp) (Entered: 06/07/1993)
102 NOTICE by dft of filing of deposition excerpts. (former emp) (Entered: 06/07/1993)
103 MOTION to exceed the page limit resp to mtn for pt sum jgm and x−mtn for pt sum jgm by dft Leonard Kirshner [103−1] (former emp) (Entered: 06/09/1993)
LODGED resp to mtn for pt sum jgm and x−mtn for pt sum jgm, stmt of facts (former emp) (Entered: 06/09/1993)
104 RESPONSE by pla to motion to dismiss case by dft Leonard Kirshner [87−1] (former emp) (Entered: 06/09/1993)
106 MOTION to exceed the page limit re: rply to resp to mtn for class cert and resp to x−mtn by pla [106−1] (former emp) (Entered: 06/10/1993)
105 ORDER by Judge John M. Roll granting motion to exceed the page limit resp to mtn for pt sum jgm and x−mtn for pt sum jgm by dft Leonard Kirshner [103−1] (cc: all counsel) (former emp) (Entered: 06/10/1993)
107 REPLY by pla to response to motion to certify class action by pla [71−1] and resp to x−mtn for sub class determination (former emp) (Entered: 06/10/1993)
107 RESPONSE by pla to motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1] and rply to resp to mtn for class cert (former emp) (Entered: 06/10/1993)
ORDER by Judge John M. Roll granting motion to exceed the page limit re: rply to resp to mtn for class cert and resp to x−mtn by pla [106−1] (cc: all counsel) (former emp) Modified on 06/14/1993 (Entered: 06/14/1993)
108 ORDER by Judge John M. Roll granting motion to exceed the page limit resp to mtn for pt sum jgm and x−mtn for pt sum jgm by dft Leonard Kirshner [103−1] (cc: all counsel) (former emp) (Entered: 06/14/1993)
109 RESPONSE to motion by dft Leonard Kirshner and CROSS−MOTION for partial summary judgment by dft Leonard Kirshner [109−1] (RE: [83−1] ) (former emp) (Entered: 06/14/1993)
110 STATEMENT OF FACTS by dft Leonard Kirshner re motion for partial summary judgment by dft Leonard Kirshner [109−1], re motion response (former emp) (Entered: 06/14/1993)
111 RESPONSE by pla to motion dismiss by Jack Dillenberg, Charles Carbone [92−1] (former emp) (Entered: 06/14/1993)
112 STATEMENT OF FACTS by pla re motion response (former emp) (Entered: 06/14/1993)
113 REPLY by Jack Dillenberg, Charles Carbone to response to motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1] (former emp) (Entered: 06/16/1993)
114 REPLY by Leonard Kirshner to motion to dismiss case by dft Leonard Kirshner [87−1] [87−1] (former emp) (Entered: 06/17/1993)
115 NOTICE OF HEARING by Jack Dillenberg, Charles Carbone setting motion dismiss by Jack Dillenberg, Charles Carbone [92−1] at 9:00 8/2/93 (BAR) (Entered: 06/18/1993)
116 RESPONSE by dft Leonard Kirshner to motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1] (former emp) (Entered: 06/21/1993)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 21 of 57

06/17/1993 06/21/1993
06/24/1993
06/30/1993 06/30/1993 06/30/1993 06/30/1993 06/30/1993 07/02/1993 07/02/1993 07/07/1993 07/07/1993 07/07/1993 07/07/1993 07/14/1993
07/19/1993 07/19/1993 07/19/1993 07/26/1993

117 Ntc of filing AFFIDAVIT of BONNIE BROWN (former emp) (Entered: 06/21/1993)
118 MINUTE ENTRY Judge Inits: JMR Crt Rptr: Chris Wright taking under advisement on 6/21/93 the motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1] taking under advisement on 6/21/93 the motion to certify class action by pla [71−1] taking under advisement on 6/21/93 the motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1], taking under advisement on 6/21/93 the motion to certify class action by pla [71−1] (cc: all counsel) (former emp) (Entered: 06/22/1993)
119 ORDER by Judge John M. Roll denying motion for subclass determination by Jack Dillenberg, Charles Carbone [90−1], granting motion to certify class action by pla [71−1] FUR ORD tht pla J.M. be dism from this action prsnt to stip terminating (cc: all counsel) (former emp) (Entered: 06/25/1993)
120 MOTION to exceed the page limit re: opp to dft Kirschner's x−mtn for pt sum jgm and rply to resp to plas' mtn for pt sum jgm by pla [120−1] (former emp) (Entered: 07/01/1993)
LODGED opp to dft Kirschner's x−mtn for pt sum jgm and rply to resp to plas' mtn for pt sum jgm (former emp) (Entered: 07/01/1993)
121 RESPONSE by pla to motion for partial summary judgment by dft Jack Dillenberg, dft Charles Carbone [98−1] and rply to resp to pla's mtn for sum jgm (former emp) (Entered: 07/01/1993)
121 REPLY by pla to response to motion for partial summary judgment by pla [83−1] and op to DHS dfts' mtn for pt sum jgm (former emp) (Entered: 07/01/1993)
122 STATEMENT OF FACTS by pla re motion response (former emp) (Entered: 07/01/1993)
123 REPLY by dfts Jack Dillenberg and Charles Carbone to rspn to mtn for partial summary judgment and [98−1], mtn to dismiss by [92−1] (former emp) (Entered: 07/08/1993)
124 MOTION for reconsideration of crt ord grt plas mtn for class certifcation by dfts Jack Dillenberg and Charles Carbone [124−1] (former emp) (Entered: 07/08/1993)
125 ORDER by Judge John M. Roll denying motion for reconsideration of crt ord grt plas mtn for class certifcation by dfts Jack Dillenberg and Charles Carbone [124−1] (cc: all counsel) (former emp) (Entered: 07/14/1993)
126 ORDER by Judge John M. Roll granting motion to exceed the page limit re: opp to dft Kirschner's x−mtn for pt sum jgm and rply to resp to plas' mtn for pt sum jgm by pla [120−1] (cc: all counsel) (former emp) (Entered: 07/14/1993)
127 RESPONSE by pla to motion for partial summary judgment by dft Leonard Kirshner [109−1] and rply to resp to plas' mtn for pt sum jgm (former emp) (Entered: 07/14/1993)
127 REPLY by pla to response to motion for partial summary judgment by pla [83−1] and resp to dft Kirschner's x−mtn for pt sum jgm (former emp) (Entered: 07/14/1993)
128 MINUTE ENTRY Judge Inits: JMR setting motion for partial summary judgment by dft Jack Dillenberg, dft Charles Carbone [98−1] and motion dismiss by Jack Dillenberg, Charles Carbone [92−1] at 10:00 9/13/93 (cc: all counsel) (former emp) (Entered: 07/20/1993)
129 DFTS Dillenberg & Carbone's reply MEMORANDUM IN SUPPORT of cross− motion for partial summary judgment by pla [83−1] (sealed) (Entered: 07/21/1993)
130 MOTION to exceed the page limit by dft [130−1] (sealed) (Entered: 07/21/1993)
131 ORDER by Judge John M. Roll that dfts have to 7/23/93 to file reply in sup of mtn for sum jgm.(cc: all counsel) (re: order [131−1] (former emp) (Entered: 07/22/1993)
132 STIPULATED MOTION to extend time to reply to mtn for pt sumjgm by dft Leonard Kirshner [132−1] (former emp) (Entered: 07/27/1993)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 22 of 57

07/26/1993 07/26/1993 07/26/1993 07/26/1993 08/03/1993 08/06/1993 08/09/1993 09/03/1993 09/13/1993
09/24/1993 09/24/1993 10/07/1993
10/07/1993 10/25/1993 10/28/1993 11/05/1993 11/15/1993 11/15/1993 11/22/1993

LODGED reply to mtn for pt sumjgm (former emp) (Entered: 07/27/1993)
133 NOTICE by dfts Jack Dillenberg, Charles Carbone of resp and ans to 2nd req for prod of doc and non−unif interrogs (former emp) (Entered: 07/27/1993)
134 ORDER by Judge John M. Roll granting motion to exceed the page limit by dft in filing reply memo for part sum jgm [130−1] (cc: all counsel) (former emp) (Entered: 07/29/1993)
135 REPLY by dft Leonard Kirshner in support of crx motion for partial summary judgment [109−1] (former emp) (Entered: 07/29/1993)
136 ORDER by Judge John M. Roll granting motion to extend time to reply to mtn for pt sumjgm by dft Leonard Kirshner [132−1] (cc: all counsel) (former emp) (Entered: 08/05/1993)
137 NOTICE by dfts Jack Dillenberg, Charles Carbone of suppl resp to req for prod of docs (former emp) (Entered: 08/09/1993)
138 SUPPLEMENTAL by pla to mtn for par sum jgm and in opp to dfts crossmtn for par sum jgm.[83−1] (former emp) (Entered: 08/11/1993)
139 SECOND SUPPLEMENTAL by pla to stmt of facts in sup of mtn for psumjgm and respm to dfts x/mtn for psumjgm. (former emp) (Entered: 09/09/1993)
140 MINUTE ENTRY Judge Inits: JMR Crt Rptr: Chris Wright Court finds that state action exists and denies motion for partial summary judgment except as to state action, partial summary judgment is Granted to pla, denying motion for partial summary judgment by dft Jack Dillenberg, dft Charles Carbone denying motion dismiss by Jack Dillenberg, Charles Carbone [92−1], denying motion to dismiss case by dft Leonard Kirshner [87−1], taking under advisement on 9/13/93 the motion for partial summary judgment as to notice by pla [83−1], finding the stay motion staying case until 2/10/92 moot. (cc: all counsel) [140−1] (re: minute entry [140−1] (former emp) (Entered: 09/22/1993)
141 NOTICE by dft Mabel Chen of subst of pty and mtn for clarification (former emp) (Entered: 09/27/1993)
141 MOTION to clarify by dft Mabel Chen [141−1] and ntc of subst of pty (former emp) (Entered: 09/27/1993)
142 ORDER by Judge John M. Roll granting in part motion for partial summary judgment by pla [83−1] to the extent tht the ct finds tht state action is present in this case. Pla's mtn in all other respect is denied because there are genuine q's of material in fact in dispute precluding sum jgm. Dfts' indiv and jt mtns for sum jgm are denied. Dfts' individ mtns to dism are denied. (cc: all counsel) (former emp) (Entered: 10/13/1993)
143 NOTICE by Jack Dillenberg, Charles Carbone of 2nd suppl resp to req for prod (former emp) (Entered: 10/13/1993)
144 ORDER by Judge John M. Roll conf set for 11/18/93 at 9:00 AM cnsl may appear telephonically or in person, but must inform the crt of same (cc: all counsel) (former emp) (Entered: 10/27/1993)
145 ANSWER by dft Mabel Chen (former emp) (Entered: 11/01/1993)
146 MOTION to clarify/reconsider crt ord re: mtn for partial sumry jgmt req dfts be ord to follow mandate ntc and hrg by pla SEALED 1 [146−1] (former emp) (Entered: 11/15/1993)
147 RESPONSE by Jack Dillenberg, Charles Carbone to mtn to clarify/reconsider crt ord re: mtn for partial sumry jgmt req dfts be ord to follow mandate ntc and hrg by pla SEALED 1 [146−1] (former emp) (Entered: 11/22/1993)
148 RESPONSE by dft Mabel Chen to mtn to clarify/reconsider crt ord re: mtn for partial sumry jgmt req dfts be ord to follow mandate ntc and hrg by pla SEALED 1 [146−1] (former emp) (Entered: 11/22/1993)
149 ORDER by Judge John M. Roll status hearing held ; dispositive motions due 10/14/94 ; discovery cutoff set for 8/19/94 ; proposed PTO (42c) due 11/18/94 , ; status report

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 23 of 57

12/17/1993
12/29/1993 01/14/1994
02/11/1994 02/22/1994
02/25/1994 03/04/1994
03/14/1994 03/16/1994 07/15/1994 11/15/1994
12/05/1994
12/05/1994 12/08/1994
03/06/1995 03/17/1995 03/30/1995 04/03/1995 05/17/1995
06/08/1995

due 3/4/94 (cc: all counsel) (former emp) (Entered: 11/30/1993)
150 ORDER by Judge John M. Roll denying motion to clarify/reconsider crt ord re: mtn for partial sumry jgmt req dfts be ord to follow mandate ntc and hrg by pla SEALED 1 [146−1] (cc: all counsel) (former emp) (Entered: 12/27/1993)
151 REQUEST by dfts Jack Dillenberg, Charles Carbone for setlmnt conf (former emp) (Entered: 01/06/1994)
152 ORDER by Judge John M. Roll settlement conference set for 10:00 AM on 2/22/94; ex−parte conf comm due 2/4/94 noon (cc: all counsel) (former emp) (Entered: 01/24/1994)
153 NOTICE by pla of servie of plas 3rd req for prod of docs (former emp) (Entered: 02/22/1994)
154 MINUTE ENTRY Judge Inits: JMF ; settlement conference held, parties have agreed to cont working on settlmt , Case reassigned to Judge James M. Fitzgerald (with notice sent) (cc: counsel, JMR, JMF [154−3] (MEG) (Entered: 02/28/1994)
155 MOTION to vacate joint status rpt by Jack Dillenberg, Charles Carbone [155−1] (former emp) (Entered: 03/03/1994)
156 ORDER by Judge John M. Roll grant mtn to vacate the filing of the joint status rpt by Jack Dillenberg, Charles Carbone [155−1] (cc: all counsel) (former emp) (Entered: 03/11/1994)
157 NOTICE by dft Mabel Chen of service of resp to plas 3rd req for prod of docs (former emp) (Entered: 03/16/1994)
158 NOTICE by Jack Dillenberg, Charles Carbone of service of resp to plas 3rd req for prod of docs on plas (former emp) (Entered: 03/18/1994)
159 NOTICE by Jack Dillenberg, Charles Carbone re: filing of witns lst (former emp) (Entered: 07/20/1994)
160 MOTION for order confirming permanent assgnmnt to Judge Roll and setting time for status conf on a new discvry sched by pla SEALED 1 [160−1] (former emp) (Entered: 11/16/1994)
161 RESPONSE by Jack Dillenberg, Charles Carbone to motion for order confirming permanent assgnmnt to Judge Roll and setting time for status conf on a new discvry sched by pla SEALED 1 [160−1] (former emp) (Entered: 12/06/1994)
162 JOINDER by dft Mabel Chen to response to mtn for status conf [161−1] (former emp) (Entered: 12/06/1994)
163 ORDER by Judge James M. Fitzgerald granting in part motion for order confirming permanent assgnmnt to Judge Roll and setting time for status conf on a new discvry sched by pla SEALED 1 [160−1] Case reassigned to Judge John M. Roll (with notice sent) (cc: all counsel) (former emp) (Entered: 12/09/1994)
164 NOTICE by pla of firm name change (former emp) (Entered: 03/07/1995)
165 MOTION for status conf and new discvry sched by pla [165−1] (former emp) (Entered: 03/20/1995)
166 RESPONSE by Jack Dillenberg, Charles Carbone to motion for status conf and new discvry sched by pla [165−1] (former emp) (Entered: 03/31/1995)
167 RESPONSE by dft Mabel Chen to motion for status conf and new discvry sched by pla [165−1] (PAB) (Entered: 04/03/1995)
168 ORDER by Judge John M. Roll grant mtn for status conf and new discvry sched by pla [165−1] status hrg set for 1:30 PM on 6/7/95 bfr Judge Roll (cc: all counsel) (former emp) Modified on 08/18/1998 (Entered: 05/23/1995)
169 ORDER by Judge John M. Roll status report due 9/15/95 (cc: all counsel) (former emp) Modified on 08/18/1998 (Entered: 06/13/1995)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 24 of 57

08/21/1995
09/11/1995 09/12/1995 09/29/1995 09/29/1995 10/01/1995
10/04/1995
10/04/1995 11/01/1995
11/01/1995
11/03/1995
11/03/1995 11/03/1995 11/15/1995 11/15/1995 11/16/1995
11/20/1995 11/20/1995
12/06/1995 12/08/1995 12/12/1995

170 ORDER by Judge John M. Roll mtn to trnsfr cs to Judge Roll filed in CV−95−140−RMB is denied (cc: all counsel) re: order [170−1] (former emp) (Entered: 08/23/1995)
171 STIPULATION re: extension of time for joint status report (PAB) (Entered: 09/13/1995)
172 ORDER by Judge John M. Roll grant stip to ext filing of status rpt status report due 11/15/95 (cc: all counsel) (former emp) (Entered: 09/14/1995)
173 MOTION to exceed the page limit re: mtn for partial sumry jgmt and stmt in support of mtn by pla [173−1] (former emp) (Entered: 10/05/1995)
LODGED mtn for partial sumry jgmt and stmts in support of mtn (former emp) (Entered: 10/05/1995)
176 STATEMENT OF FACTS by pla re motion for partial summary judgment & corresponding declaratory & injunctive relief by plas & the pla Class [175−1] (former emp) Modified on 10/23/1995 (Entered: 10/10/1995)
174 ORDER by Judge John M. Roll granting motion to exceed the page limit re: mtn for partial sumry jgmt and stmt in support of mtn by pla but not exceeding 24 pgs [173−1] (cc: all counsel) (former emp) (Entered: 10/10/1995)
175 MOTION for partial summary judgment & corresponding declaratory & injunctive relief by plas & the pla Class [175−1] (former emp) (Entered: 10/10/1995)
177 RESPONSE to mtn for partial sumry jgmt by dfts CROSS−MOTION for summary judgment by dft Jack Dillenberg, dft Charles Carbone [177−1] (RE: [175−1] ) (former emp) (Entered: 11/03/1995)
178 STATEMENT OF FACTS in support of crs mtn for summary judgment by dft Jack Dillenberg, dft Charles Carbone [177−1], and response to mtn for partial sumry jgmt (former emp) (Entered: 11/03/1995)
179 RESPONSE by dft Mabel Chen to motion for partial summary judgment & corresponding declaratory & injunctive relief by plas & the pla Class [175−1] (PAB) (Entered: 11/07/1995)
179 JOINDER by dft Mabel Chen to dfts Dillenberg & Carbones respm to mtn for sumjgm and cross mtn for sum jgm[177−1], to [177−2] (PAB) (Entered: 11/07/1995)
180 STATEMENT OF FACTS by dft Mabel Chen re join/joinder, re motion response (PAB) (Entered: 11/07/1995)
181 Notice of filing STATUS REPORT by pla (former emp) (Entered: 11/16/1995)
182 RESPONSE by pla to motion for summary judgment by dft Jack Dillenberg, dft Charles Carbone [177−1] (former emp) (Entered: 11/17/1995)
182 REPLY by pla to response to motion for partial summary judgment & corresponding declaratory & injunctive relief by plas & the pla Class [175−1] (former emp) (Entered: 11/17/1995)
183 RESPONSE by pla to motion for summary judgment by dft Jack Dillenberg, dft Charles Carbone [177−1] (former emp) (Entered: 11/21/1995)
183 REPLY by pla to response to motion for partial summary judgment & corresponding declaratory & injunctive relief by plas & the pla Class [175−1] (former emp) Modified on 11/21/1995 (Entered: 11/21/1995)
184 NOTICE by pla of change of address of cnsl for pla (former emp) (Entered: 12/11/1995)
185 REPLY by dft Mabel Chen to response to mtn for summary judgment by dft Jack Dillenberg, dft Charles Carbone [177−1] (former emp) (Entered: 12/13/1995)
186 JOINDER in dft Chen's reply in support of her cross mtn for sum jgm by dft Jack Dillenberg, dft Charles Carbone to [185−1] (PAB) (Entered: 12/14/1995)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 25 of 57

05/13/1996
05/22/1996 05/28/1996 05/30/1996 06/06/1996 06/14/1996 06/18/1996 06/19/1996 06/24/1996 07/01/1996 07/02/1996 07/05/1996 07/09/1996 07/11/1996
07/23/1996
07/25/1996 07/31/1996 07/31/1996 07/31/1996

187 ORDER by Judge John M. Roll pltfs mtn for partial sum jgm of 9/29/95 is gr. Judgment is hereby entered declaring the dfts Policy 2.16 administrative & program suppt services: Children's appeal does not comply with appropriate fed reguations. The dfts are restrained from terminating, suspending or reducing Title XIX covered service to pltfs based on medical needs assessments by RBHA URCs w/o complying with the ntc & fair hrg procedures. Further ordered that dfts cross−mtn for sum jgm is denied[175−1] (cc: all counsel) (PAB) (Entered: 05/15/1996)
188 ORDER by Judge John M. Roll ; prel scheduling conf set for 9:00 7/10/96 before law clerk Sarah Johnson. Joint rpt due 5 days before scheduled cnf(cc: all counsel) (PAB) (Entered: 05/22/1996)
189 MOTION for new trial by dft Jack Dillenberg, dft Charles Carbone [189−1] , to stay to allow for implementation [189−2] (PAB) (Entered: 05/29/1996)
190 JOINDER by dft Mabel Chen to mtn for new trial [189−1], mtn for stay to allow for implementation [189−2] (former emp) (Entered: 06/04/1996)
191 RESPONSE by plas to motion for new trial by dft Jack Dillenberg, dft Charles Carbone [189−1], motion to stay to allow for implementation [189−2] (CDE) (Entered: 06/12/1996)
192 SUPPLEMENTAL by Jack Dillenberg, Charles Carbone to mtn for new trial [189−1] and mtn to stay to allow for implementation [189−2] (former emp) (Entered: 06/18/1996)
193 REPLY by Jack Dillenberg, Charles Carbone to response to mtn for new trial by dfts Jack Dillenberg, Charles Carbone [189−1], mtn to stay to allow for implementation [189−2] (former emp) (Entered: 06/20/1996)
194 JOINDER by dft Mabel Chen to rply to response to mtn for new trial and stay to allow for implementation [193−1] (former emp) (Entered: 06/20/1996)
195 MOTION to file surreply by pla [195−1] (former emp) (Entered: 06/25/1996)
196 PARTIES JOINT REPORT by pla (former emp) (Entered: 07/02/1996)
197 RESPONSE by dft Jack Dillenberg, dft Charles Carbone to motion to file surreply by pla [195−1] (PAB) (Entered: 07/03/1996)
198 Notice of Association ATTORNEY APPEARANCE by att Amy Jo Leeson as to dfts Jack Dillenberg, Charles Carbone (former emp) (Entered: 07/09/1996)
199 ORDER by Judge John M. Roll granting motion to file surreply by pla [195−1] (cc: all counsel) (PAB) (Entered: 07/15/1996)
200 SCHEDULING ORDER by Judge John M. Roll ;all discovery due 1/10/97 witness lists by 11/29/96; dispositive motions due 2/10/97 ;joint pretrial order due 3/10/97 ;joint settlement Status report ddl set for 10/10/96 and every 45 days thereafter(cc: all counsel) (former emp) (Entered: 07/15/1996)
201 ORDER by Judge John M. Roll denying pla's request in implementing the revised policy; def granted until 8/5/96 to submit initail brief on the treating psychiatrist issue & pla's granted until 7/15/96 to file an opposition brief; it is further ordered that ct's order of 5/13/95 is stayed until 9/20/96 (cc: all counsel) (former emp) (Entered: 07/24/1996)
202 MOTION for order to withdraw as co−counsel by pla [202−1] (former emp) (Entered: 07/26/1996)
203 RESPONSE to mtn for order gr Southern Arizona Legal Aid, Inc & its attys lv to w/d as cnsl for pla & pla class [202−1] (PAB) (Entered: 08/01/1996)
204 STIPULATION for ext of briefing schedule (PAB) (Entered: 08/01/1996)
205 ORDER by Judge John M. Roll granting motion for order to withdraw as co−counsel by pla [202−1] attorney William Eric Morris for SEALED 1 (cc: all counsel) (PAB) (Entered: 08/01/1996)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 26 of 57

08/05/1996 08/12/1996 08/12/1996 08/15/1996 08/16/1996 08/26/1996 09/17/1996
09/30/1996 10/01/1996 10/03/1996
10/10/1996 10/17/1996 10/18/1996 10/28/1996 10/29/1996 10/31/1996 10/31/1996
11/22/1996 11/25/1996 01/09/1997

206 ORDER by Judge John M. Roll granting stipulation ito extend briefing schedule; def ADHS's brief due 8/12/96 and pla's brief due 8/26/96 (cc: all counsel) (former emp) (Entered: 08/06/1996)
207 ATTORNEY APPEARANCE Ntc of Assoc of Counsel)for pla by Anne C Ronan (former emp) (Entered: 08/13/1996)
208 MEMORANDUM IN SUPPORT by dft Jack Dillenberg, dft Charles Carbone, dft Mabel Chen of motion for new trial by dft Jack Dillenberg, dft Charles Carbone [189−1] (PAB) (Entered: 08/14/1996)
209 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by pla (PAB) (Entered: 08/16/1996)
210 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by dft Jack Dillenberg, dft Charles Carbone (former emp) (Entered: 08/19/1996)
211 Supplemental BRIEF re: Notice & appeal policy FILED by pla (PAB) (Entered: 08/29/1996)
212 ORDER by Judge John M. Roll that the dft mot for new trial is denied & the implementation of the revised policy 2/16 in accordance with the ntc & fair hrg procedures found in 42 CFR Part 431 subpart E is appropriate. Pla mot for partial sum jmg & dft cross motion for sum jgm are both denied as moot, since the parties agree Policy 2.16 has been brought into compliance with the appropriate federal regulations. [189−2] Further ordered that the order of 5/13/96 is vacated as moot [187−1] (cc: all counsel) (PAB) (Entered: 09/23/1996)
213 MOTION to substitute attorney by dft Jack Dillenberg, dft Charles Carbone [213−1] (PAB) (Entered: 10/03/1996)
214 MOTION to clarify order of 9/17/96 by pla [214−1] (PAB) (Entered: 10/03/1996)
215 ORDER by Judge John M. Roll granting motion to substitute attorney by dft Jack Dillenberg, dft Charles Carbone [213−1] attorney Andrew Mark Federhar for Charles Carbone, for Jack Dillenberg and substituting attorney Winn L Sammons, Coni R Good (cc: all counsel) (PAB) (Entered: 10/09/1996)
216 JOINT SETTLEMENT STATUS REPORT by pla (former emp) (Entered: 10/18/1996)
217 RESPONSE by dft Jack Dillenberg, dft Charles Carbone to motion to clarify order of 9/17/96 by pla [214−1] (PAB) (Entered: 10/21/1996)
218 RESPONSE by dft John H Kelly to motion to clarify order of 9/17/96 by pla [214−1] (PAB) (Entered: 10/22/1996)
219 MOTION to extend time for discovery & pretrial mot (1st req) by pla [219−1] (PAB) (Entered: 10/29/1996)
220 REPLY by pla to response to motion to clarify order of 9/17/96 by pla [214−1] (CDE) (Entered: 10/30/1996)
221 ATTORNEY APPEARANCE for pla by Susanne B Cohen (PAB) (Entered: 11/04/1996)
222 ORDER by Judge John M. Roll granting motion to extend time for discovery & pretrial mot (1st req) by pla [219−1] trial exp discl 2/11/97; witlst 2/28/97 ; discovery ddl set for 4/10/97 ; dispositive motions due 5/10/97 ; PTO ddl set for 6/10/97 (cc: all counsel) (PAB) (Entered: 11/04/1996)
223 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by pla (PAB) (Entered: 11/25/1996)
224 SECOND JOINT STATUS REPORT by pla, dft (PAB) (Entered: 11/25/1996)
225 THIRD JOINT SETTLEMENT STATUS REPORT by pla SEALED 1, dft Fife Symington, dft William L McDonald, dft Ted Williams, dft Boyd Dover, dft Linda Moore−Cannon, dft C Diane Bishop, dft Carol Hurtt, dft Richard Wilson, dft Gary E Ackerson, dft Miriam Kyle, dft Kathryn Graybill, dft Alethia Caldwell, dft Jerome

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 27 of 57

01/22/1997 01/30/1997
01/30/1997
01/30/1997
02/10/1997 02/10/1997 02/13/1997
02/24/1997 03/11/1997 03/14/1997 03/21/1997 03/24/1997 03/24/1997 03/28/1997 04/03/1997 04/07/1997 04/07/1997 04/07/1997
04/09/1997 04/10/1997

Breen, dft Jack Dillenberg, dft Charles Carbone, dft Mabel Chen (MRP) (Entered: 01/14/1997)
226 MOTION for protective order regarding confidentiality by pla SEALED 1, dft Jack Dillenberg [226−1] (MRP) (Entered: 01/23/1997)
227 ORDER by Judge John M. Roll re: motion for protective order regarding confidentiality by pla SEALED 1, dft Jack Dillenberg SHALL BE LODGED w/ court for its review [226−1] [226−1] (cc: all counsel) (MRP) (Entered: 01/31/1997)
228 ORDER by Judge John M. Roll granting motion for protective order regarding confidentiality by pla SEALED 1, dft Jack Dillenberg to the EXTENT that the 5/13/96 order was vacated because the parties had agreed that the ruling therein was moot, not because the courts interpretation of the substantive law had changed [226−1] (cc: all counsel) (MRP) (Entered: 01/31/1997)
229 AMENDED ORDER by Judge John M. Roll granting motion for protective order regarding confidentiality by pla SEALED 1, dft Jack Dillenberg [226−1] (cc: all counsel) (MRP) Modified on 02/03/1997 (Entered: 01/31/1997)
230 NOTICE by pla SEALED 1 of svc 4th req for prod of doc on dft (MRP) (Entered: 02/11/1997)
231 MOTION to extend time for discovery and pre−trial motions by pla SEALED 1 [231−1] (MRP) (Entered: 02/11/1997)
232 SCHEDULING ORDER by Judge John M. Roll ; discovery due 7/10/97 ; dispositive motions due 8/10/97 ; pretrial order due 9/10/97, discl on or before 5/11/97, discl wit before or on 5/28/97 (cc: all counsel) (MRP) (Entered: 02/14/1997)
233 FOURTH JOINT SETTLEMENT STATUS REPORT by pla, dft (PAB) (Entered: 02/25/1997)
234 ATTORNEY APPEARANCE for pla SEALED 1 by Mary Teresa Giliberti, Alice Bussiere (MRP) (Entered: 03/12/1997)
235 NOTICE by dft Jack Dillenberg and Rhonda Baldwin of sve of ADHS resp & obj to pla 4th request for production of doc. (MRP) (Entered: 03/18/1997)
236 JOINT STIPULATION re to amd protective order regarding confidentiality [229−1] (MRP) (Entered: 03/24/1997)
237 NOTICE by pla SEALED 1 OF TAKING DEPO OF NARBHA on the following date(s): 4/14/97 (MRP) (Entered: 03/25/1997)
238 ORDER by Judge John M. Roll granting stipulation 2nd amended protective order regarding confidentiality (cc: all counsel) (MRP) (Entered: 03/26/1997)
239 NOTICE by dft Jack Dillenberg of svc of ADHS 1st supp resp & obj to pla 4th req for production of doc (MRP) (Entered: 03/31/1997)
243 NOTICE by dft Jack Dillenberg of svc of AHCCCS resp & obj to pla 4th req for production of documents (MRP) (Entered: 04/10/1997)
240 NOTICE by pla SEALED 1 of association of cnsl. Ira Burnim (MRP) (Entered: 04/07/1997)
241 MOTION to amend scheduling order to require non−simultaneous discl of expert testimony by dft Jack Dillenberg [241−1] (MRP) (Entered: 04/09/1997)
242 MOTION for order to expedite briefing sched and hrg on dft jnt mtn to amd schd ordre re: expert testimony discl by dft Jack Dillenberg [242−1] (MRP) (Entered: 04/09/1997)
244 NOTICE by dft Jack Dillenberg of svc of ADHS 2nd supp resp and obj to pla 4threq for prod of doc (MRP) (Entered: 04/10/1997)
245 ORDER by Judge John M. Roll granting motion to amend scheduling order to require non−simultaneous discl of expert testimony by dft Jack Dillenberg [241−1] pla resp to jnt mtn to amd sched order to require non−simultaneous discl of exp testimony shall be

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 28 of 57

04/10/1997 04/11/1997 04/14/1997 04/14/1997 04/14/1997 04/15/1997 04/16/1997 04/16/1997 04/17/1997 04/17/1997 04/18/1997 04/18/1997 04/18/1997 04/18/1997 04/18/1997
04/18/1997 04/18/1997 04/21/1997

filed no later than 4/18/97, dft reply to pla resp shall be filed no later than 4/23/97 , hrg ondft jnt mtn to amd set for 4/29/97 @ 1:30 pm (cc: all counsel) (MRP) (Entered: 04/14/1997)
246 FIFTH JNT SETTLEMENT STATUS REPORT by pla SEALED 1 (MRP) (Entered: 04/14/1997)
247 NOTICE by dft John H Kelly of substitition of party John H Kelly for Mable Chen (MRP) (Entered: 04/14/1997)
248 NOTICE by dft Jack Dillenberg of svc of ADHS 3rd supp resp and obj to pla 4th req for prod of documents (MRP) (Entered: 04/15/1997)
249 JOINT MOTION for protective order by dft Jack Dillenberg, dft Rhonda Baldwin [249−1] (MRP) (Entered: 04/16/1997)
250 JOINT MOTION for order to expedite briefing schd and hrg on dft jnt mtn for protective order by dft Jack Dillenberg, dft Rhonda Baldwin [250−1] (MRP) (Entered: 04/16/1997)
251 RESPONSE by pla SEALED 1 to motion for order to expedite briefing sched and hrg on dft jnt mtn to amd schd ordre re: expert testimony discl by dft Jack Dillenberg [242−1] (MRP) (Entered: 04/16/1997)
252 NOTICE by pla SEALED 1 OF TAKING DEPO OF ComCare on the following date(s): 4/22,23,24/97 @ 9:00 am (MRP) (Entered: 04/17/1997)
253 NOTICE by pla SEALED 1 OF TAKING DEPO OF NARBHA on the following date(s): 4/23,24,25/97 (MRP) (Entered: 04/17/1997)
254 MOTION TO SEAL Exhibit A of pla's resp by pla [254−1] (BAR) (Entered: 04/18/1997)
255 NOTICE by Jack Dillenberg, Rhonda Baldwin of Service of Discovery Papers (BAR) (Entered: 04/18/1997)
256 RESPONSE by pla SEALED 1 to motion for order to expedite briefing sched and hrg on dft jnt mtn to amd schd ordre re: expert testimony discl by dft Jack Dillenberg [242−1] (MRP) (Entered: 04/21/1997)
257 NOTICE by dft Jack Dillenberg, dft Rhonda Baldwin of svc of 5th supp resp and obj to pla 4th req for prod of doc (MRP) (Entered: 04/21/1997)
258 MOTION for order to expedite consideration of mtn to quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [258−1] (MRP) (Entered: 04/21/1997)
259 REPLY in support by dft Jack Dillenberg, dft Rhonda Baldwin to motion for protective order by dft Jack Dillenberg, dft Rhonda Baldwin [249−1] [249−1] (MRP) (Entered: 04/21/1997)
262 MINUTE ENTRY Judge Inits: JMR Crt Rptr: Chris Wright Tel. hrg. held. The Court denies motion for protective order by dft Jack Dillenberg, dft Rhonda Baldwin [249−1] and grants motion for order to expedite briefing schd and hrg on dft jnt mtn for order by dft Jack Dillenberg, dft Rhonda Baldwin [250−1], and grants motion for order to expedite consideration of mtn to quash subpoenas as to documents by dft Jack Dillenberg, dft Rhonda Baldwin [258−1] [cc: all counsel] [262−1] (former emp) (Entered: 04/24/1997)
263 MOTION to quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [263−1] (MRP) (Entered: 04/24/1997)
266 JOINDER to dfts joint motion for protective order and motion to quash subpoenas by Northern Arizona Regional Behavioral Health Authority.[263−1], to [249−1] (former emp) (Entered: 04/29/1997)
260 MOTION to extend time for disc and pretrial mtn and mem of pnts and auth in support thereof( 3rd req) 6 mo extntion by pla SEALED 1 [260−1] (MRP) (Entered: 04/23/1997)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 29 of 57

04/21/1997 04/23/1997
04/23/1997 04/24/1997 04/25/1997 04/25/1997 04/27/1997 04/29/1997
05/13/1997 05/13/1997 05/13/1997 05/13/1997 05/16/1997 05/22/1997 05/27/1997 05/27/1997 05/27/1997 05/27/1997 05/30/1997 06/05/1997

261 MOTION for expedite briefing and hearing on pla mtn for ext tm for discovery and pretrial mtn by pla SEALED 1 [261−1] (MRP) (Entered: 04/23/1997)
264 ORDER by Judge John M. Roll granting motion for expedite briefing and hearing on pla mtn for ext tm for discovery pretrial mtn by pla SEALED 1 [261−1]; dfts reponse shall be filed nlt 4/24/97 to motion to extend time for disc and pretrial mtn and mem of pnts and auth in support thereof (3rd req) 6 mo extntion by pla SEALED 1 [260−1]; plas reply by 4/28/97; hrg on said motion set at 1:30 4/29/97 (cc: all counsel) (former emp) (Entered: 04/25/1997)
265 REPLY in suport by dft Jack Dillenberg, dft Rhonda Baldwin to motion to amend scheduling order to require non−simultaneous discl of expert testimony by dft Jack Dillenberg [241−1] [241−1] (MRP) (Entered: 04/25/1997)
267 RESPONSE by dft Jack Dillenberg to motion to extend time for disc and pretrial mtn and mem of pnts and auth in support thereof( 3rd req) 6 mo extntion by pla SEALED 1 [260−1] (former emp) (Entered: 04/29/1997)
269 ORDER by Judge John M. Roll striking join/joinder by Northern Arizona Regional Behavioral Health Auth (cc: all counsel) (MRP) (Entered: 05/07/1997)
270 ORDER by Judge John M. Roll re: motion response [251−1] (cc: all counsel)sealing Exh A of response (MRP) (Entered: 05/07/1997)
336 SEALED Document Exh A, pla resp to dft mtnf or PTO (MRP) (Entered: 07/13/1998)
268 MINUTE ENTRY Judge Inits: JMR Crt Rptr: Chris Wright Tel. discovery hearing held. The Court grants in part and denies in part motion to extend time for disc and pretrial mtn and mem of pnts and auth in support thereof( 3rd req) 6 mo extntion by pla SEALED 1 [260−1] to the extent that counsel are to submit a mutually agreeable discovery plan to the Court by May 27, 1997. [cc: all counsel] [268−2] (former emp) (Entered: 05/05/1997)
271 NOTICE by pla SEALED 1 OF TAKING DEPO OF The Guidence Center on the following date(s): 5/22/97 @ 1:30 & 5/23/97 @ 8:30 am (MRP) (Entered: 05/14/1997)
272 AMENDED NOTICE by pla SEALED 1 OF TAKING DEPO OF ComCare on the following date(s): 5/19/97 @ 8:30am, 5/20/97 @ 1:30pm,5/27/97 @ 1:30,5/23/97 @ 8:30 am (MRP) Modified on 05/14/1997 (Entered: 05/14/1997)
273 NOTICE by pla SEALED 1 OF TAKING DEPO OF Verde Valley Guidance Clinic on the following date(s): 5/19/97 @ 1:00 (MRP) (Entered: 05/14/1997)
274 AMDEDED NOTICE by pla SEALED 1 OF TAKING DEPO OF NARBHA on the following date(s): 5/20/97 @ 8:30am & 1:30 pm 5/22/97 @ 8:30 am (MRP) (Entered: 05/14/1997)
275 NOTICE by pla SEALED 1 of svc of disc doc (MRP) (Entered: 05/19/1997)
276 NOTICE by pla SEALED 1 OF TAKING DEPO OF Mohave Mental Health on the following date(s): 06/3−4/97 @ 8:30am & 1:30 pm (MRP) (Entered: 05/23/1997)
277 NOTICE OF HEARING by pla SEALED 1 ; in court hearing set for 2:30 7/14/97 pending mtn for clarification (MRP) Modified on 08/18/1998 (Entered: 06/02/1997)
278 JOINT MOTION to amend correct minute order dated 4/29/97 by dft Jack Dillenberg, dft John H Kelly, dft Rhonda Baldwin [278−1] (MRP) (Entered: 06/02/1997)
279 REPORT regarding disc plan & settlment stat by dft Jack Dillenberg, dft John H Kelly (MRP) (Entered: 06/02/1997)
280 MOTION for order of disc plan & mem of pnts and auth in support thereof by pla SEALED 1 [280−1] (MRP) (Entered: 06/02/1997)
281 AMENDED NOTICE OF HEARING by pla SEALED 1 setting motion for order of disc plan & mem of pnts and auth in support thereof by pla SEALED 1 [280−1] at 2:30 7/14/97 (MRP) (Entered: 06/03/1997)
282 MINUTE ENTRY Judge Inits: JMR Crt Rptr: NOT PRESENT This Court's Minute Entry dated April 29, 1997 is AMENDED to include the following rulings:

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 30 of 57

06/06/1997
06/09/1997 06/09/1997 06/12/1997 06/17/1997 06/17/1997 06/24/1997 06/24/1997 06/24/1997 06/24/1997 06/30/1997 07/03/1997 07/03/1997 07/03/1997 07/03/1997 07/03/1997 07/03/1997
07/03/1997
07/07/1997 07/07/1997 07/07/1997

Defendants' Cross−Motion Pursuant to R.26(f) is GRANTED and Defendants' Joint Motion To Amend Scheduling Order is GRANTED to the extent that Defendants' initial expert disclosures are due 8 weeks later than the deadline for Plaintiffs' initial expert reports. [cc: all counsel] [282−1] re: minute entry [282−1] (former emp) (Entered: 06/05/1997)
285 ORDER by Judge John M. Roll denying w/o prejudice motion for order of disc plan & mem of pnts and auth in support thereof by pla SEALED 1 [280−1] , ; status report due 6/24/97 (cc: all counsel) (MRP) (Entered: 06/11/1997)
283 ATTORNEY APPEARANCE for pla SEALED 1 by Anne C. Ronan, Leslie J Cohen & Susanne Cohen (MRP) (Entered: 06/10/1997)
284 STIPULATION for cont of ddl to resp to plamtn for approval of discovery plan (MRP) (Entered: 06/10/1997)
286 ORDER by Judge John M. Roll denying stipulation, for cont vacating hearing re hearing notice of 07/14/97 (cc: all counsel) (MRP) (Entered: 06/13/1997)
287 NOTICE OF HEARING by pla SEALED 1 on disc issues on 07/14/97 @ 3:00 pm re: hearing notice [287−1] (MRP) (Entered: 06/18/1997)
288 ATTORNEY APPEARANCE for pla SEALED 1 by Kathryn Christine Palamountain (MRP) (Entered: 06/18/1997)
289 NOTICE by Jack Dillenberg, Charles Carbone of service of disc papers (PAB) (Entered: 06/25/1997)
290 NOTICE by pla OF TAKING DEPO OF Denise Dain on the following date(s): 7/7/97 (PAB) (Entered: 06/25/1997)
291 NOTICE by pla OF TAKING DEPO OF Terry McMurray on the following date(s): 7/7/97 (PAB) (Entered: 06/25/1997)
292 JOINT REPORT on proposed discovery plan by pla, dft (PAB) (Entered: 06/25/1997)
293 NOTICE by dft Jack Dillenberg, dft Rhonda Baldwin of sve of ADHS resp & obj to 5th req for prod of doc (MRP) (Entered: 07/01/1997)
294 MOTION for protective order and quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [294−1] (MRP) (Entered: 07/07/1997)
295 MOTION for expedite hearing by dft Jack Dillenberg, dft Rhonda Baldwin [295−1] , to quash subpoenas [295−2] (MRP) (Entered: 07/07/1997)
296 MOTION for leave to suppl their portion of jnt rpt on prop disc plan to by dft Jack Dillenberg, dft Rhonda Baldwin [296−1] (MRP) (Entered: 07/07/1997)
297 JOINDER by ComCare Inc to dft prot order & mtn to quash [295−2], to [294−1] (MRP) (Entered: 07/07/1997)
298 ATTORNEY APPEARANCE by Stacy Augustine for ComCare (MRP) (Entered: 07/07/1997)
299 RESPONSE by pla SEALED 1 to motion for protective order and quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [294−1], motion to quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [263−1] (MRP) (Entered: 07/09/1997)
300 MOTION for complex case track designation and referral of discovery disputes to a magistrate judge located in PHX for by pla SEALED 1 [300−1] (MRP) (Entered: 07/09/1997)
301 JOINDER in dft jnt mtn for protictive order and mtn to quash by Northern Arizona, pla SEALED 1 to [295−2], to [263−1] (MRP) (Entered: 07/09/1997)
302 ATTORNEY APPEARANCE for Northern Arizona, pla SEALED 1 by Melinda Garrahan (MRP) (Entered: 07/09/1997)
305 Text not available. (Entered: 07/09/1997)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 31 of 57

07/07/1997
07/08/1997 07/08/1997 07/08/1997 07/09/1997 07/16/1997 07/17/1997
07/18/1997 07/21/1997 07/31/1997 07/31/1997 08/13/1997 08/15/1997 08/15/1997 08/15/1997 08/20/1997 08/20/1997 08/21/1997 09/15/1997 09/15/1997

305 MINUTE ENTRY Judge Inits: JMR Crt Rptr: Cathy Schwader, ECR Tel. hearing held. The Court denies motion to quash subpoenas [295−2], and denies motion for protective order and quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [294−1]. The Court having previously ruled, finds the motion to quash subpoenas by dft Jack Dillenberg, dft Rhonda Baldwin [263−1] moot. [cc: all counsel] [305−2] (former emp) (Entered: 07/09/1997)
303 STIPULATED NOTICE by pla, dft OF TAKING DEPO OF Nancy Oulundsen on the following date(s): 06/16/97 @ 10:00 am (MRP) Modified on 07/09/1997 (Entered: 07/09/1997)
304 NOTICE by pla SEALED 1 of filing orignal adft of Susanne B. Cohen (MRP) (Entered: 07/09/1997)
306 ORDER by Judge John M. Roll vacating hearing re hearing notice (cc: all counsel) (MRP) (Entered: 07/10/1997)
307 ORDER by Judge John M. Roll setting deposition notice at 10:00 6/16/97 by phone (cc: all counsel) (MRP) Modified on 08/18/1998 (Entered: 07/14/1997)
308 MOTION for sugg that succ in office be substituted as dft by dft Jack Dillenberg, dft Rhonda Baldwin [308−1] (MRP) (Entered: 07/17/1997)
309 ORDER by Judge John M. Roll granting motion for sugg that succ in office be substituted as dft by dft Jack Dillenberg, dft Rhonda Baldwin [308−1] terminating party Jack Dillenberg James B. Griffith appt Acting Director in place of Jack Dillenberg (cc: all counsel) (MRP) (Entered: 07/18/1997)
310 RETURN OF SERVICE EXECUTED personal on Terry McMurray by leaving doc with Stacy Agustin (MRP) (Entered: 07/21/1997)
311 RESPONSE by dft Rhonda Baldwin, dft James B Griffith to motion for complex case track designation and referral of discovery disputes to a magistrate judge located in PHX for by pla SEALED 1 [300−1] (MRP) (Entered: 07/22/1997)
312 REPLY by pla SEALED 1 to response to motion for complex case track designation and referral of discovery disputes to a magistrate judge located in PHX for by pla SEALED 1 [300−1] (MRP) (Entered: 08/01/1997)
313 6th jointSTATUS REPORT by pla SEALED 1 (MRP) (Entered: 08/01/1997)
314 JOINDER by dft John H Kelly to resp in opp to pla mtn for cmplex case tack designation [311−1] (MRP) (Entered: 08/14/1997)
315 REPLY by dft Rhonda Baldwin, dft James B Griffith to response to motion for complex case track designation and referral of discovery disputes to a magistrate judge located in PHX for by pla SEALED 1 [300−1] (MRP) (Entered: 08/18/1997)
316 MOTION for leave to file sur reply by dft Rhonda Baldwin, dft James B Griffith [316−1] (MRP) (Entered: 08/18/1997)
317 ORDER by Judge John M. Roll denying motion for complex case track designation and referral of discovery disputes to a magistrate judge located in PHX for by pla SEALED 1 [300−1] (cc: all counsel) (MRP) (Entered: 08/19/1997)
318 JOINDER by dft John H Kelly to dft mtn for lv to file sur rply [316−1] (MRP) (Entered: 08/21/1997)
319 JOINDER by dft John H Kelly to dft pp sur rply to pla mtn for com plx case track designation [315−1] (MRP) (Entered: 08/21/1997)
320 ORDER by Judge John M. Roll denying motion for leave to file sur reply by dft Rhonda Baldwin, dft James B Griffith [316−1] (cc: all counsel) (former emp) (Entered: 08/22/1997)
321 STATUS REPORT by pla SEALED 1 7th settlement status rpt (MRP) (Entered: 09/16/1997)
322 STATUS REPORT by dft (PAB) (Entered: 09/17/1997)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 32 of 57

09/15/1997 09/22/1997 09/25/1997 10/21/1997 10/24/1997
12/05/1997 01/05/1998 02/03/1998 02/05/1998
06/12/1998 06/15/1998 07/10/1998 07/10/1998 07/30/1998 08/10/1998
08/17/1998 09/09/1998 01/29/1999 06/14/1999
06/23/1999 07/20/1999 07/22/1999
08/17/1999

323 MOTION for rule 16 (a) status cnf by pla [323−1] (PAB) (Entered: 09/17/1997)
324 NOTICE of compliance of initial disclosure statement pursuant to FRCivP 26(a) by pla 3rd suppl (PAB) (Entered: 09/23/1997)
325 NOTICE by pla SEALED 1 OF TAKING DEPO OF Rhonda Baldwin on the following date(s): 10/13/97 @ 8:30am (MRP) (Entered: 09/26/1997)
326 JOINT MOTION to stay litigation upon agreed terms by pla SEALED 1 [326−1] (MRP) (Entered: 10/22/1997)
327 ORDER by Judge John M. Roll granting motion to stay litigation upon agreed terms by pla SEALED 1 [326−1] ; stay deadline set for 6/10/98 , case stayed as to litigation please see order for detailed study information(cc: all counsel) (MRP) (Entered: 10/28/1997)
328 ATTORNEY SUBSTITUTION: terminating attorney Alice Bussiere for SEALED 1 and substituting attorney Chris Palamountain (MRP) (Entered: 12/08/1997)
329 ORDER by Judge John M. Roll denying as moot the motion for rule 16 (a) status cnf by pla [323−1] (cc: all counsel) (PAB) (Entered: 01/06/1998)
330 MOTION for appearance of sucessor be substituted as dft by dft Rhonda Baldwin, dft James B Griffith [330−1] (MRP) (Entered: 02/04/1998)
331 ORDER by Judge John M. Roll granting motion for appearance of sucessor be substituted as dft by dft Rhonda Baldwin, dft James B Griffith [330−1] James R. Allen for James B. Griffith (cc: all counsel) (MRP) (Entered: 02/10/1998)
332 STATUS REPORT Class Action by pla (former emp) (Entered: 06/15/1998)
333 ORDER by Judge John M. Roll status rpt due 7/10/98 ; status report due 7/10/98 (cc: all counsel) (PAB) (Entered: 06/16/1998)
334 STATUS REPORT by dft Rhonda Baldwin, dft James R Allen (MRP) (Entered: 07/13/1998)
335 STATUS REPORT by pla SEALED 1 per 06/15/98 order (MRP) (Entered: 07/13/1998)
337 JOINT MOTION to stay litigation upon agreed terms of continued stay by pla SEALED 1 [337−1] (MRP) (Entered: 07/31/1998)
338 ORDER by Judge John M. Roll granting motion to stay litigation upon agreed terms of continued stay by pla SEALED 1 [337−1] ; stay deadline set for 1/7/00 , case stayed as to all litigation (cc: all counsel) (MRP) (Entered: 08/12/1998)
339 ATTORNEY SUBSTITUTION: terminating attorney Kathryn Christine Palamountain for SEALED 1 and substituting attorney Jeanne Finberg (MRP) (Entered: 08/18/1998)
340 ATTORNEY APPEARANCE for pla SEALED 1 by Jeanne Finberg, National Center for Youth Law, (MRP) (Entered: 09/10/1998)
341 NOTICE by pla of departure of cnsl−Susanne B Cohen (PAB) (Entered: 02/01/1999)
342 Notice of Departure of Counsel − ATTORNEY SUBSTITUTION: terminating attorney Amy Jo Leeson for James R Allen and substituting attorney Matthew Joseph Devlin, Kevin D Ray (PAB) (Entered: 06/15/1999)
343 Preliminary STATUS REPORT, Class Action by pla (former emp) (Entered: 06/25/1999)
344 JOINT STATUS REPORT by dft, pla (PAB) (Entered: 07/21/1999)
345 NOTICE by dft Phyllis Biedess of change of address of Catherine Dodd, Logan Johnston & Anne Longo and substituion of Phyllis Biedess for John H. Kelly (PAB) (Entered: 07/26/1999)
346 Notice of Departure of Cnsl terminating attorney Matthew Joseph Devlin for James R Allen (PAB) (Entered: 08/18/1999)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 33 of 57

01/21/2000 02/02/2000 02/11/2000 02/11/2000 02/14/2000 02/16/2000 02/17/2000 02/18/2000
02/25/2000
03/22/2000 03/31/2000 06/02/2000 06/02/2000 06/12/2000 06/15/2000 06/20/2000
08/01/2000 08/01/2000 08/04/2000

347 Preliminary Status REPORT by pla; parties believe they will be able to advise the court definitively on the status of the litigation by 2/2/00 (MAH) (Entered: 01/21/2000)
348 Preliminary STATUS REPORT by pla (MAH) (Entered: 02/03/2000)
349 MOTION for order to enforce agreement re: Dr. Groves' April 2000 study by pla [349−1] (MAH) (Entered: 02/14/2000)
350 MOTION for expedited consideration of mtn to enforce agreement re Dr. Groves' April 2000 study by pla [350−1] (MAH) (Entered: 02/14/2000)
351 NOTICE by pla attorney of the association with the National Center for Youth Law and change of address (MAH) (Entered: 02/14/2000)
352 NOTICE by pla of filing of affidavit of Ivor Groves in support of mtn to enforce agreement re Dr. Groves' April 2000 study (MAH) (Entered: 02/16/2000)
354 RESPONSE by dft Phyllis Biedess to motion for order to enforce agreement re: Dr. Groves' April 2000 study by pla [349−1] (MAH) (Entered: 02/22/2000)
353 ORDER by Judge John M. Roll granting motion for expedited consideration of mtn to enforce agreement re Dr. Groves' April 2000 study by pla [350−1] ; a hrg re pla's mtn to enforce will be held 2/18/00 at 1:30 p.m. (cc: all counsel) (MAH) (ADI−ICMS, ). (Entered: 02/18/2000)
355 MINUTE ENTRY before Judge John M. Roll Crt Rptr: Chris Calles granting motion for order to enforce agreement re: Dr. Groves' April 2000 study by pla [349−1] ; stay deadline cont to 7/31/00 , case stayed as to the status of this action parties shall file a joint status report by 7/31/00 advising the Court of the status; at that time a scheduling conference shall be set [cc: all cnsl] [355−4] (MAH) (ADI−ICMS, ). (Entered: 02/25/2000)
356 MOTION for pro hac vice of Patrick Gardner by pla Sealed 1 [356−1] (PAB) (Entered: 03/23/2000)
357 ORDER by Judge John M. Roll granting motion for pro hac vice of Patrick Gardner by pla Sealed 1 [356−1] (cc: all counsel) (MAH) (ADI−ICMS, ). (Entered: 03/31/2000)
358 MOTION to lift stay to make pre−trial evidentiary ruling by pla [358−1] or alternatively to enforce prior order and the underlying agreement for independent study by Dr. Groves by pla [358−2] (MAH) (Entered: 06/02/2000)
359 MOTION for expedited consideration of mtn to lift stay or in the alternative to enforce order by pla [359−1] (MAH) (Entered: 06/02/2000)
360 RESPONSE by dft Phyllis Biedess to motion to lift stay to make pre−trial evidentiary ruling by pla [358−1], motion to enforce prior order and the underlying agreement for independent study by Dr. Groves by pla [358−2] (PAB) (Entered: 06/12/2000)
361 STIPULATION by dft, pla that no party will offer evidence or argument that the sample size used by Dr. Groves was insufficient (MAH) (Entered: 06/16/2000)
362 ORDER by Judge John M. Roll granting stipulation that no party shall offer evidence or argument that the sample size used by Dr Groves was insufficient for assessing the adequacy of mental health & substance abuse services being provieded to Medicaid eligible children in Maricopa County. Finding the motion for expedited consideration of mtn to lift stay or in the alternative to enforce order by pla [359−1] moot., finding the motion to lift stay to make pre−trial evidentiary ruling by pla [358−1] moot., finding the motion to enforce prior order and the underlying agreement for independent study by Dr. Groves by pla [358−2] moot. (cc: all counsel) (PAB) (ADI−ICMS, ). (Entered: 06/20/2000)
363 Joint STATUS REPORT by dft, pla pursuant to order of 2/25/00 (MAH) (Entered: 08/01/2000)
363 MOTION for scheduling conference by dft, pla [363−1] (MAH) (Entered: 08/01/2000)
364 MOTION to extend time of stay to 1/1/01 by dft Phyllis Biedess [364−1] ,or in the alternative for settlement conference and expedited riuling by dft Phyllis Biedess,

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 34 of 57

08/04/2000
08/21/2000 08/22/2000 08/31/2000 09/05/2000
09/11/2000
09/18/2000 10/16/2000 10/23/2000 10/25/2000 10/25/2000 10/31/2000 11/02/2000 11/03/2000 11/03/2000
11/13/2000 11/20/2000

Catherine Eden and Ronald Smith [364−2] (former emp) (Entered: 08/07/2000)
365 AFFIDAVIT of Catherine R. Eden in support of motion to extend time of stay to 1/1/01 by dft Phyllis Biedess [364−1] [364−1], in support of motion for settlement conference and expedited riuling by dft Phyllis Biedess, Catherine Eden and Ronald Smith [364−2] [364−2] (former emp) (Entered: 08/07/2000)
366 RESPONSE to motion by pla and CROSS−MOTION for mandatory settlement conference and expedited ruling by pla [366−1] (RE: [364−1] ) (MAH) (Entered: 08/22/2000)
367 Joint Discovery plan and Rule 26 REPORT by dft, pla (MAH) (Entered: 08/22/2000)
368 REPLY by dft Phyllis Biedess to response to motion to extend time of stay to 1/1/01 by dft Phyllis Biedess [364−1] (MAH) (Entered: 09/05/2000)
369 NOTICE OF telephonic HEARING by dft Phyllis Biedess setting motion to extend time of stay to 1/1/01 by dft Phyllis Biedess [364−1] at 10:30 9/8/00, setting motion for settlement conference and expedited riuling by dft Phyllis Biedess, Catherine Eden and Ronald Smith [364−2] at 10:30 9/8/00 (MAH) (Entered: 09/06/2000)
370 ORDER by Judge John M. Roll granting motion to extend time of stay by dft Phyllis Biedess [364−1], granting motion for settlement conference and expedited ruling by dft Phyllis Biedess, Catherine Eden and Ronald Smith [364−2] Case referred to Judge Earl H. Carroll for settlement conference this case is stayed until completion of the settlement conference; Judge Carroll will issue an order setting the settlement conference (cc: all counsel) (MAH) (ADI−ICMS, ). (Entered: 09/11/2000)
371 ORDER by Judge Earl H. Carroll pre−settlement conference set for 1:30 10/20/00 , before Judge Earl H. Carroll in Courtroom #6, U.S. Courthouse, Phoenix, Arizona (cc: all counsel) (MAH) (ADI−ICMS, ). (Entered: 09/18/2000)
372 MINUTE ORDER The Court having been advised that the parties wish to submit the matter on the pleadings, hearing set for 10/20/00 is vacated. (cc: all counsel) [372−2] (BAH) (Entered: 10/16/2000)
373 STIPULATION by pla John Doe, dft Phyllis Biedess, dft Eden and Smith that the settlement conference before Judge Carroll be rescheduled for 11/3/00 at 3:00 pm (MAH) (Entered: 10/23/2000)
374 ORDER by Judge Earl H. Carroll granting stipulation to reschedule prelim settlement conf now set for 10/20/00 ; settlement conference cont to 3:00 11/3/00 , before Judge Earl H. Carroll (cc: all counsel) (PAB) (ADI−ICMS, ). (Entered: 10/25/2000)
375 MOTION to lift stay ord 9/8/00 by pla [375−1] (MAH) (Entered: 10/26/2000)
376 NOTICE by pla of service of plas' ex parte settlement proposal on the Honorable Earl Carroll pursuant to order of 9/12/00 (MAH) (Entered: 11/01/2000)
378 NOTICE by dft Phyllis Biedess of service of dfts' ex parte settlement proposal to Judge Carroll, pursuant to order of 9/12/00 (MAH) (Entered: 11/03/2000)
377 RESPONSE (opposition) by dft Phyllis Biedess to motion to lift stay ord 9/8/00 by pla [375−1] (MAH) (Entered: 11/03/2000)
379 MINUTE ENTRY before Judge John M. Roll Crt Rptr: B.BRITTAN Hearing re settlement held. Counsel to file with the court by 11/27/00 the results of their settlement meeting. Dft will file additional memorandum in accordance with previous order. Settlement conference set for 9:00AM, 11/30/00 and 12/1/00. [379−2] (former emp) (Entered: 11/07/2000)
380 REPLY by pla John Doe to response to motion to lift stay ord 9/8/00 by pla [375−1] (MAH) (Entered: 11/14/2000)
381 ATTORNEY SUBSTITUTION (notice of departure of cnsl): terminating attorney Jeanne Finberg and Chris Palamountain for John Doe and substituting attorney Patrick Gardner (MAH) (Entered: 11/20/2000)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 35 of 57

11/22/2000 11/27/2000 12/12/2000 03/27/2001
04/05/2001 04/16/2001
04/26/2001 05/01/2001 05/23/2001 06/01/2001 06/18/2001 06/18/2001 06/18/2001 06/27/2001 06/27/2001 07/05/2001

382 STIPULATION by pla, dfts vacating settlement conference scheduled for 11/30/00 before Judge Carroll (MAH) (Entered: 11/27/2000)
383 ORDER by Judge Earl H. Carroll granting stipulation vacating the first day of the two day settlement conference scheduled on 11/30/00 at 9:00; the second day of the settlement conference set for 9:00 12/1/00 remains scheduled (cc: all counsel) (former emp) (ADI−ICMS, ). (Entered: 11/27/2000)
384 ORDER by Judge John M. Roll denying motion to lift stay by pla [375−1] (cc: all counsel) (MAH) (ADI−ICMS, ). (Entered: 12/12/2000)
385 ORDER by Judge John M. Roll ; settlement conference ddl satisfied; Judge Earl H Carroll's chambers has notified the Court that the parties in this case have reached a settlement; accordingly, it is ordered that the referral of this case to Judge Carroll for a settlement conference is withdrawn; all future pleadings should be filed in the Tucson Division of the District of Arizona & carry the following case designation; CV−91−261−TUC−JMR (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 03/27/2001)
386 Joint MOTION for order approving parties' proposed form of notice to the class of settlement , preliminarily approving the settlement agreement, and setting a date for a fairness hearing by dft Rhonda Baldwin, dft James R Allen, pla John Doe, dft Phyllis Biedess [386−1] (MAH) (Entered: 04/06/2001)
387 MINUTE ORDER granting in part & denying in part motion for order approving parties' proposed form of notice to the class of settlement , preliminarily approving the settlement agreement, and setting a date for a fairness hearing by dft Rhonda Baldwin, dft James R Allen, pla John Doe, dft Phyllis Biedess [386−1] ; a fairness hearing set for 8:30 6/26/01 , ; status report due 5/25/01 (cc: all counsel) [387−3] (former emp) (ADI−ICMS, ). (Entered: 04/16/2001)
388 Joint MOTION for order approving the shortened form of notice to the class for purposes of publication by dft Rhonda Baldwin, dft James R Allen, pla John Doe, dft Phyllis Biedess [388−1] (MAH) (Entered: 04/27/2001)
389 ORDER by Judge John M. Roll granting motion for order approving the shortened form of notice to the class for purposes of publication by dft Rhonda Baldwin, dft James R Allen, pla John Doe, dft Phyllis Biedess [388−1] (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 05/01/2001)
390 ORDER by Judge John M. Roll that the parties' status report to the Court concerning the number and type of responses received from the class members is continued to 6/1/01 , ; status report due 6/1/01 (cc: all counsel) (BAR) (ADI−ICMS, ). (Entered: 05/23/2001)
391 STATUS REPORT to the court on notice of proposed settlement and comments by pla John Doe (REC) (Entered: 06/04/2001)
392 Joint STATEMENT by dft in support for this court's approval of the settlement agreement to be heard at the fairness hearing on 6/26/01 (former emp) (Entered: 06/19/2001)
393 MEMORANDUM by pla re Approval of Parties Settlement Agreement of 3/20/01 (former emp) (Entered: 06/19/2001)
394 TRANSCRIPT of Community Forum for the following date(s): 5/8/01 (former emp) (Entered: 06/19/2001)
395 ORDER by Judge John M. Roll that the Clerk of the Court file the attached document. (cc: all counsel) re: order filed [395−1] (BAR) (ADI−ICMS, ). (Entered: 06/27/2001)
396 LETTER re: settlement agreement addressed to Judge Roll from Clarice Kestenbaum, M.D., American Academy of Child & Adolescent Psychiatry (BAR) (Entered: 06/27/2001)
397 MINUTE ENTRY before Judge John M. Roll . Crt Rptr: C. Calles. in court hearing held 06/26/01 order settlement agreement is approved and adopted in its entirety and that purs to stipulation of parties that time for filing application for atty fees by pla is extended 150 days [cc: all cnsl]] [397−2] (former emp) Modified to add hearing date

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 36 of 57

07/05/2001 11/16/2001 11/20/2001
11/27/2001 11/27/2001 11/30/2001 12/03/2001
12/06/2001 01/22/2002 03/10/2003 03/14/2003
03/04/2004 03/04/2004 03/05/2004 03/10/2004

on 3/25/2010 (BJW). (ADI−ICMS, ). (Entered: 07/05/2001)
REMARK as to minute entry, doc # 397, that per CD, VA, that copy of Settlement Agreement is to stay attached to minute entry (former emp) (Entered: 07/05/2001)
398 STIPULATION of the parties as to court award of attorney fees to pla under 42 USC 1988 by dfts Phyllis Biedess, pla John Doe, dft James R Allen, dft Rhonda Baldwin (ABU) (Entered: 11/19/2001)
399 ORDER by Judge John M. Roll; it is ordered that the parties file with the court a brief summary regarding how the Lodestar amount was calculated, including the number of hours expended and the hourly rates charged. Due to their undoubtedly voluminous nature, the parties need not file with the court pla's actual time and expense records. (cc: all counsel) re: order filed [399−1] (ABU) (ADI−ICMS, ). (Entered: 11/21/2001)
400 SUMMARY STATEMENT in support of stipulation regarding the award of attorney's fees and litigation expenses in this matter by pla's (ABU) (Entered: 11/30/2001)
401 AFFIDAVIT of Joseph E. McGarry in support of statement [400−1] by pla (ABU) (Entered: 11/30/2001)
402 STATEMENT by dft Phyllis Biedess re stipulation of the parties as to court award of attorney fees to pla under 42 USC 1988 by dfts Phyllis Biedess, pla John Doe, dft James R Allen, dft Rhonda Baldwin [398−1] (ABU) (Entered: 12/03/2001)
403 ORDER by Judge John M. Roll granting stipulation of the parties as to court award of attorney fees to pla under 42 USC 1988 by dfts Phyllis Biedess, pla John Doe, dft James R Allen, dft Rhonda Baldwin; It is ordered pursuant to the parties stipulatiojn that the pla's as the prevailing party are awarded the lump sum of $1.2 million as their reasonable attorney's fees and litigation expenses. It is further ordered that the $1.2 million attorney's fee and expense obligation of the dfts is to be satisfied by dfts making a payment of the award to the law firm of Lewis and Roca LLP. Once the $1.2 million lump sum award has been paid by the dfts to Lewis and Roca LLP in trust, the dfts shall have no further obligation. Dfts shall have 45 days from the date of this order to satisfy this fee and expense award and after that date, if the award is not paid, said award shall carry interest at the rate of 10% per annum. (cc: all counsel) (ABU) (ADI−ICMS, ). (Entered: 12/03/2001)
404 MOTION of to withdraw as counsel by pla John Doe [404−1] (KDT) (Entered: 12/10/2001)
405 ORDER by Judge John M. Roll granting motion of to withdraw as counsel by pla John Doe [404−1] terminating Mr. McGarry and Lewis and Roca (cc: all counsel) (ABU) (ADI−ICMS, ). (Entered: 01/22/2002)
406 MOTION of Mary Giliberti to withdraw as counsel by pla John Doe [406−1] (KDT) (Entered: 03/11/2003)
407 ORDER by Judge John M. Roll granting motion of Mary Giliberti to withdraw as counsel by pla John Doe [406−1] attorney Mary Teresa Giliberti for John Doe (cc: all counsel) It is further ordered that Bazeldon Center is directed to file a ntc of appearance with the Court once new cnsl from the Center is assigned (KDT) (ADI−ICMS, ). (Entered: 03/14/2003)
408 ATTORNEY APPEARANCE for dft Rhonda Baldwin, dft James R Allen, dft Phyllis Biedess by Robert J Sorce (SJD) (Entered: 03/05/2004)
409 STIPULATION for award of attorney's fees to plas under 42:1988 by pla, dfts (SJD) (Entered: 03/05/2004)
410 ERRATA by ADHS dfts to stipulation for award of attorney's fees to plas under 42:1988 by pla, dfts [409−1] (SJD) (Entered: 03/08/2004)
411 ORDER by Judge John M. Roll granting stipulation for award of attorney's fees to plas under 42:1988 by pla, dfts; pla's request for fees & expenses incurred from 7/1/01 through 3/31/03, dfts shall reimburse plas' counsel the lump sum of $349,802; plas' request for fees & expenses incurred from 4/1/03 through 6/30/04, fees & expenses shall be capped at $43,731 per quarter; that for each quarter, beginning with the quarter of 4/1/03 through the quarter ending on 6/30/04, the parties shall submit a

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 37 of 57

06/29/2004 07/01/2004
08/02/2004 08/04/2004
08/18/2004 08/19/2004
08/30/2004 09/01/2004 12/03/2004 01/20/2005 01/21/2005
03/18/2005 03/23/2005

stipulation & proposed order to the court for the quarter's fees & expenses consistent with the stipulation agreed to by the parties submitted in March 2004; upon receipt of the signed order approving the stipulation, dfts shall submit the same to the AZ Department of Administrition, Risk Management for payment or make other arrangments for payment; pla's request for fees & expenses incurred during the quarter 4/1/03 through 6/30/03, dfts shall reimburse pla's counsel the lump sum of $43,731; pla's request for fees & expenses incurred during the quarter 7/1/03 through 9/30/03, dfts shall reimburse pla's counsel the lump sum of $32,971.64; dfts' obligation to pay pla's fees & expenses as ordered by the Court may be satisfied by making payment to The AZ Center for Disability Law for deposit in that firm's trust account to be later disbursed to other attorneys or firms of record who incurred fees & expenses in this matter consistent with amounts claimed for fees & expenses in pla's billing statement (cc: all counsel) (SJD) (ADI−ICMS, ). (Entered: 03/10/2004)
412 STIPULATION of the parties as to Court award of Attorney's Fees to pla's under 42 U.S.C.1988 by pla, dft (KDT) (ADI−ICMS, ). (Entered: 07/08/2004)
413 ORDER by Judge John M. Roll granting stipulation of the parties as to Court award of Attorney's Fees to pla's under 42 U.S.C.1988 by pla, dft; it is hereby ordered that dft's shall reimburse pla's cnsl the lump sum of $43,731.00 under 42 U.S.C.1988 for fees & expenses incurred during the quarter beginning on 10/1/03 and ending througj 12/31/03; it is hereby ordered that dft's shall make payment arrangements to pla's cnsl in conformance with this Court's order of 3/8/04 (cc: all counsel) (KDT) (Entered: 07/08/2004)
414 STIPULATION for award attorney's fees by dft, pla, dft (KDT) (Entered: 08/03/2004)
415 ORDER by Judge John M. Roll granting stipulation for award attorney's fees by dft, pla, dft it is hereby ordered, that dft's shall reimburse pla's cnsl the lump sum of $43,731.00 for fees and expenses incurred during the quarter beginning of 1/1/04 ending 3/31/04. It is hereby ordered that dft's shall make payment arrangements to pla' cmsl in conformance with this Court's order of 3/8/04 (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 08/05/2004)
416 STIPULATION for attorney's fees by pla, by dft, 42 U.S.C. 1988 (KDT) (Entered: 08/19/2004)
417 ORDER by Judge John M. Roll granting stipulation for attorney's fees by pla, by dft, 42 U.S.C. 1988 It is hereby ordered, that dft's shall reimburse pla's cnsl the lump sum of $43,731.00 under 42 U.S.C.1988 for fees & expenses incurred during the quarter beginning on 1/1/04 & ending 3/31/04. It is hereby ordered that dft's shall make payment arrangements to pla's cnl in conformance with this Court's order of 3/8/04 (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 08/23/2004)
419 NOTICE by pla attorney Anne C Ronan for John Doe of change of address; new address Arizona Center for Law and Public Interest, 202 E. McDowell Road, Suite 153, Phoenix, Arizona 85004 (KDT) (Entered: 09/07/2004)
418 ATTORNEY APPEARANCE for pla John Doe by Kerstin Gramatzki LeMaire (KDT) (Entered: 09/02/2004)
420 NOTICE by pla of Withdrawl of counsel Kerstin LeMaire and substitution of record Leslie J Cohen (KDT) (Entered: 12/09/2004)
421 STIPULATION for award of attorney's fees to plaintiff's under 42 U.S.C. 1988 by dft, pla, dft (KDT) (Entered: 01/21/2005)
422 ORDER by Judge John M. Roll granting stipulation for award of attorney's fees to plaintiff's under 42 U.S.C. 1988 by dft, pla, dft; it is hereby ordered, that dft shall reimburse pla's cnsl the lump sum $43,731.00 for fees and expenses incurred during the quarter beginning on 4/1/04 and ending 6/30/04. It is hereby ordered that dft's shall make payment arrangements to pla's counsel in conformance with the Court's order of 3/8/04 (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 01/21/2005)
423 STIPULATION for award of attorney's fees (KDT) (Entered: 03/21/2005)
424 ORDER by Judge John M. Roll granting stipulation for award of attorney's fees; plaintiff's will submit billing statements to dft's on a quarterly basis starting with the

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 38 of 57

03/30/2005 07/21/2005 07/29/2005
09/12/2005 10/13/2005 03/14/2006 03/16/2006 03/16/2006
03/28/2006 03/28/2006

quarter beginning 7/1/04. If the fees & expenses billed are less than the cap amount, plaintiff's shall be compensated for the amount billed. If the fees & expeses billed exceed the cap amount, plaintiff's shall receive the cap amount of $43,731.00. Each quarter begins a brand new billing period with no carryover hours or expenses allowed from previous quartes. The parties shall submit a stip & proposed order to the Court for each quarter's fees & expenses. Upon receipt of the Court's signed order, dft's shall make timely payments to plaintiffs. Dft's obligation to pay plaintiff's fees & expenses may be satisfied by making payment to the Arizona Center for Disability Law for deposit in the firm's trust account to be later disbursed to other attorneys or firsm of record who incurred fees & expenses in this matter consistent with amounts claimed for fees and expenses in plaintiff's billing statementts (cc: all counsel) (KDT) (ADI−ICMS, ). (Entered: 03/23/2005)
RETURNED MAIL addressed to: Amy Jo Leeson re order filed [424−1] (KDT) (Entered: 03/31/2005)
425 STIPULATION for award of Attorney Fees to plaintiff by Richard Wilson, Gary E Ackerson, Miriam Kyle, Kathryn Graybill, Alethia Caldwell, Jerome Breen, Jack Dillenberg, Charles Carbone, Mabel Chen, John H Kelly, John Doe, James B Griffith, John Fife Symington, III, William L McDonald, Ted Williams, Boyd Dover, Linda Moore−Cannon, C Diane Bishop, Carol Hurtt. (KDT, ) (Entered: 07/22/2005)
426 ORDER re 425 granting STIPULATION for award of Attorney Fees to plaintiff by Richard Wilson, Gary E Ackerson, Miriam Kyle, Kathryn Graybill, Alethia Caldwell, Jerome Breen, Jack Dillenberg, Charles Carbone, Mabel Chen, John H Kelly, John Doe, James B Griffith, John Fife Symington, III, William L McDonald, Ted Williams, Boyd Dover, Linda Moore−Cannon, C Diane Bishop, Carol Hurtt. (KDT, ) filed by John Doe,, Boyd Dover,, C Diane Bishop,, Ted Williams,, William L McDonald,, Linda Moore−Cannon,, Carol Hurtt,, Richard Wilson,, Gary E Ackerson,, Miriam Kyle,, Kathryn Graybill,, Alethia Caldwell,, Jerome Breen,, Charles Carbone,, Mabel Chen,, Jack Dillenberg,, John H Kelly,, John Fife Symington, III, James B Griffith, . Signed by Judge John M. Roll on 7/25/05. (KDT, ) (Entered: 07/29/2005)
Copy of document number 426, mailed to Patrick Gardner, Melinda Garrahan, Amy Jo Leeson, Kevin D Kay, Anne C Ronan, Winn L. Sammons, Margo F Shein, Robert J Sorce on this date. (MSC, ) (Entered: 09/12/2005)
427 NOTICE of Attorney Substitution by Leslie J Cohen, Andrew M. Mudryk, Leslie J Cohen, Michelle S. Michelson, Leslie J Cohen adding Andrew M. Mudryk and Leslie J Cohen for John Doe, Michelle S. Michelson and Leslie J Cohen for John Doe (Cohen, Leslie) (Entered: 10/13/2005)
428 STIPULATION Attorneys' Fees to Plaintiffs by John Doe. (Ronan, Anne) (Entered: 03/14/2006)
429 NOTICE of Appearance by Robbin Michelle Coulon on behalf of John Doe (Coulon, Robbin) (Entered: 03/16/2006)
430 ORDER re 428 STIPULATION Attorneys' Fees to Plaintiffs by John Doe. (Ronan, Anne) filed by John Doe, ORDERED Defendants reimburse Plaintiffs' counsel the lump sum of $43,731.00 for fees and expensesincurred during the quarter beginning on January 1, 2005 through March 31, 2005.IT IS HEREBY ORDERED that Defendants shall make payment arrangementsto Plaintiffs' counsel in conformance with this Court's Order of March 21, 2005. Signed by Judge John M Roll on 3/16/06. (KMF, ) (Entered: 03/16/2006)
431 STIPULATION for Award of Attorneys' Fees by John Doe. (Ronan, Anne) (Entered: 03/28/2006)
432 ORDER re 431 STIPULATION for Award of Attorneys' Fees by John Doe. (Ronan, Anne) filed by John Doe, IT IS HEREBY ORDERED, that Defendants, pursuant to 42 U.S.C. 1988, shallreimburse Plaintiffs' counsel the lump sum of $43,731.00 for fees and expensesincurred during the quarter beginning on April 1, 2005 through June 30, 2005.IT IS HEREBY ORDERED that Defendants shall make payment arrangementsto Plaintiffs' counsel in conformance with this Court's Order of March 21, 2005.Dated Tuesday, March 28, 2006.. Signed by Judge John M Roll on 3/28/2006. (MES, ) (Entered: 03/28/2006)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 39 of 57

03/29/2006 07/26/2006 08/01/2006
08/07/2006 08/15/2006 09/20/2006
09/21/2006 09/22/2006 09/26/2006
10/03/2006 11/21/2006 12/15/2006 01/10/2007 05/23/2007 05/23/2007 06/04/2007

433 Mail Returned as Undeliverable. Mail sent to Margo F. Shein. Reason for return: Not at this address. Document number 430. (MES, ) (Entered: 03/29/2006)
434 STIPULATION of the Parties as to COurt Award of Attorneys' Fees to Plaintiffs by John Doe. (Ronan, Anne) (Entered: 07/26/2006)
435 ORDER re 434 STIPULATION of the Parties as to COurt Award of Attorneys' Fees to Plaintiffs by John Doe. (Ronan, Anne) filed by John Doe,Defendants shall reimburse pla counsel $43,731.00 & expenses incurred during the quarter beginning 7/1/05 through 9/30/05. Defendants shall make payment arrangements to plaintiffs counsel in conformance with order of 3/21/05. . Signed by Judge John M Roll on 7/31/06. (PAB, ) (Entered: 08/01/2006)
436 Mail Returned as Undeliverable. Mail sent to Margo F. Shein. Reason for return: Return to Sender. (REC, ) (Entered: 08/09/2006)
437 STIPULATION for Attorney Fees − October to December, 2005 by John Doe. (Ronan, Anne) (Entered: 08/15/2006)
438 ORDER granting re 437 STIPULATION for Attorney Fees − October to December, 2005 by John Doe. (Ronan, Anne) filed by John Doe. It is ordered, that defendants, shall reimburse plaintiff's counsel the lump sum of $43,731.00 for fees and expenses incurred during the quarter begining on 10/1/05 through 12/31/05. It is hereby ordered that defendants shall make payment arrangements to plaintiff's counsel in conformance with this Court's order of 3/21/05. . Signed by Judge John M Roll on 9/20/06. (KDT, ) (Entered: 09/20/2006)
439 MOTION for Admission Pro Hac Vice as to attorney Alison N Barkoff on behalf of plaintiff John Doe. (BAS, ) (Entered: 09/26/2006)
441 Mail Returned as Undeliverable. Mail sent to Margo F Shein. Reason for return: Not at this address.. (KDT, ) (Entered: 09/28/2006)
440 ORDER pursuant to General Order 05−25 granting 439 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/26/2006)
442 Mail Returned as Undeliverable. Mail sent to Margo F Shein, Esq. Reason for return: Unknown Reason. Unable to Forward. Not at Maynard, Cronin, Erickson, Curran & Sparks. Document number 439 and 440. (SAT) (Entered: 10/04/2006)
443 STIPULATION To Amend Settlement Agreement by Susan Gerard. (Attachments: # 1 Text of Proposed Order Proposed Order)(Sorce, Robert) (Entered: 11/21/2006)
444 NOTICE of Attorney Substitution by Edward Leo Myers (Myers, Edward) (Entered: 12/15/2006)
445 ORDER re 443 granting STIPULATION To Amend Settlement Agreement by Susan Gerard.. Signed by Judge John M Roll on 1/9/07. (KDT, ) (Entered: 01/10/2007)
446 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 U.S.C. 1988 for the Period of January 1 to March 31 2006 by John Doe. (Ronan, Anne) (Entered: 05/23/2007)
447 STIPULATION Stipulation of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of April 1 to June 30, 2006 by John Doe. (Ronan, Anne) (Entered: 05/23/2007)
448 ORDER re 446 granting STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 U.S.C. 1988 for the Period of January 1 to March 31 2006 by John Doe. (Ronan, Anne) filed by John Doe. IT IS ORDERED that defendants, pursuant to 42 U.S.C. 1988, shall reimburse plaintiff's counsel the lump sum of $74,500.00 for fees and expenses incurred durimg the quarter beginning on 1/1/06 through 3/31/06. IT IS FURTHER ORDERED that defendants shall make payment arrangements to plaintiff's counsel in conformance with this Court's order 3/21/05.. Signed by Judge John M Roll on 5/30/07. (KDT, ) (Entered: 06/04/2007)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 40 of 57

06/04/2007
11/02/2007 12/19/2007 01/29/2008 03/03/2008 04/14/2008 05/19/2008
05/19/2008
11/05/2008 11/05/2008
11/12/2008 12/16/2008 12/16/2008

449 ORDER re 447 granting STIPULATION Stipulation of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of April 1 to June 30, 2006 by John Doe. (Ronan, Anne) filed by John Doe. IT IS ORDERED that defendants, pursuant to 42 U.S.C 1988, shall reimburse plaintiff's counsel the lump sum of $74,500.00 for fees and expenses imcurred during the quarted beginning on 4/1/06 through 6/30/06. IT IS FURTHER ORDERED that defendants shall make payment arrangements to plaintiff's counsel in conformance with this Court's order of 3/21/05.. Signed by Judge John M Roll on 5/30/07. (KDT, ) (Entered: 06/04/2007)
450 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 U.S.C. 1988 by John Doe. (Ronan, Anne) (Entered: 11/02/2007)
451 ORDER re 450 granting STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 U.S.C. 1988 by John Doe. (Ronan, Anne) filed by John Doe. (SEE ATTACHED PDF FOR COMPLETE INFORMATION).. Signed by Chief Judge John M Roll on 12/18/07. (KDT, ) (Entered: 12/19/2007)
452 Notice re Notice of Change of Counsel by James R Allen, Phyllis Biedess, Susan Gerard (Ray, Kevin) (Entered: 01/29/2008)
453 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of July to December, 2006 by John Doe. (Ronan, Anne) (Entered: 03/03/2008)
454 STIPULATION of the Parties as to Court Award of Attorneys Fees to Plaintiffs Under 42 USC 1988 for the Period of January through June 2007 by John Doe. (Ronan, Anne) (Entered: 04/14/2008)
455 ORDER re 453 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of July to December. 2006 by John Doe. (Ronan, Anne) filed by John Doe. Dft's pursuant to 42 USC 1988, shall reimburse pla's counsel the lump sum of $205,774 for fees & expenses incurred during the quartwe beginning on 7/2/06 throufh 12/31/06. IT IS FURTHER ORDERED that dft's shall make arrangements to pla's counsel in conformance with this Court's order of 12/18/07.. Signed by Chief Judge John M Roll on 5/16/08. (KDT, ) (Entered: 05/19/2008)
456 ORDER re 454 GRANTING STIPULATION of the Parties as to Court Award of Attorneys Fees to Plaintiffs Under 42 USC 1988 for the Period of January through June 2007 by John Doe. (Ronan, Anne) filed by John Doe. IT IS ORDERED that dft's pursuant to 42 USC 1988, shall reimburse pla's counsel the lump sum of $116,000.00 for fees & expenses incurred during the quarter beginning on 1/1/07 through 6/30/07. IT IS FURTHER ORDERED that dft's shall make payment arrangements to pla' counsel in conformance with this Court's order of 12/18/07.. Signed by Chief Judge John M Roll on 5/16/08. (KDT, ) (Entered: 05/19/2008)
457 MOTION for Attorney Fees July through December 2007 by John Doe. (Ronan, Anne) (Entered: 11/05/2008)
458 ORDER granting 457 Motion for Attorney Fees. IT IS ORDERED that dft's pursuant ot 42 U.S.C 1988, shall reimburse pla's counsel the lump sum of $109,451.80 for fees & expenses incurred durimg the quarters beginning 7/1/07 through 12/31/07. IT IS FURTHER ORDERED that dft's shall make payment arrangements to pla's counsel in conformance with this Court's order of 12/18/07.. Signed by Chief Judge John M Roll on 11/5/08.(KDT, ) (Entered: 11/05/2008)
459 Notice re Change of Lead Counsel for ADHS/DBHS by Susan Gerard (Ray, Kevin) (Entered: 11/12/2008)
460 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of January through March 2008 by John Doe. (Ronan, Anne) (Entered: 12/16/2008)
461 ORDER granting 460 Stipulation :IT IS ORDERED that Defendants, shall reimburse Plaintiff's counsel the lump sum of $58,000.00 for fees and expenses incurred during the quarter beginning 1/1/08 through 3/31/08. IT IS FURTHER ORDERED that Defendants shall make payment arrangements to Plaintiffs' counsel in conformance with this Court's order of 12/18/07.. Signed by Chief Judge John M Roll on 12/16/08.

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 41 of 57

03/06/2009 03/10/2009
07/01/2009 07/01/2009
08/03/2009 08/03/2009
08/13/2009 10/19/2009 10/21/2009
11/13/2009 11/13/2009 11/13/2009 11/13/2009

(KDT, ) (Entered: 12/16/2008)
462 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of April through June 2008 by John Doe. (Ronan, Anne) (Entered: 03/06/2009)
463 ORDER pursuant to 462 Stipulation : ordered dfts reimburse plaintiffs' counsel lump sum of $58,000.00 for fees and expenses incurred beginning 4/1/08 through 6/30/08 and dfts shall make payment arrangements to plaintiffs' counsel in conformance w/this Court's order of 12/8/07. Signed by Chief Judge John M Roll on 3/9/09. (SSU, ) (Entered: 03/10/2009)
464 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of July through September 2008 by John Doe. (Ronan, Anne) (Entered: 07/01/2009)
465 ORDER granting 464 Stipulation : Dfts, pursuant to 42:1988, shall reimburse Plas counsel the lump sum of $58,000.00 for fees and expenses incurred during the quater beginning 7/1/2008 through 9/30/2008. Dfts shall make payment arrangements to Plas counsel in conformance with this Court's order of 12/18/2007.. Signed by Chief Judge John M Roll on 7/1/09. (JKM, ) (Entered: 07/01/2009)
466 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs for the Period of October through December 2008 by John Doe. (Ronan, Anne) (Entered: 08/03/2009)
467 ORDER granting 466 Stipulation for Attorney Fees & Expenses. IT IS ORDERED that dft's, shall reimburse plaintiff's counsel the lump sum of $58,000.00 for fees & expenses incurred during the quarter beginning 10/01/08 through 12/31/08. IT IS FURTHER ORDERED that dft's shall make payment arrangements to plaintiff's counsel in conformance with this Court's order of 12/18/07. Signed by Chief Judge John M Roll on 8/3/09. (KDT, ) (Entered: 08/03/2009)
468 REPORT of Report of Mediator by Mediator −− Richard N. Goldsmith by Plaintiff John Doe. (Goldsmith, Richard) (Entered: 08/13/2009)
469 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 U.S.C. 1988 for the Period of January to March 2009 by John Doe. (Ronan, Anne) (Entered: 10/19/2009)
470 ORDER granting 469 Stipulation for fees and expenses : It is ordered that dft shall reimburse pla counsel for the lump sum of $58,000 for fees and expenses incurred during the quarter of 01/01/09 through 03/31/09. It is further ordered that dfts shall make pmt arrangements to pla counsel in conformance with the Court Order of 12/18/07. Signed by Chief Judge John M Roll on 10/20/09. (LMF, ) (Entered: 10/21/2009)
471 First MOTION for Exceed Page Limit by John Doe. (Ronan, Anne) Modified on 11/16/2009 (BAC, INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM MOTION FOR MISCELLANEOUS RELIEF TO MOTION FOR LEAVE TO FILE EXCESS PAGES). (Entered: 11/13/2009)
472 Additional Attachments to Main Document re 471 First MOTION for Exceed Page Limit Proposed Order Re: by Plaintiff John Doe. (Ronan, Anne) (Entered: 11/13/2009)
473 LODGED Proposed Plaintiffs' Motion for Enforcement of Settlement Agreement. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by John Doe. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Ronan, Anne) (Entered: 11/13/2009)
474 SEALED LODGED Proposed Declaration of Matthew Pierce. Document to be filed by Clerk if Motion to Seal is granted. Filed by John Doe. (Attachments: # 1 Affidavit)(Ronan, Anne) Modified on 11/16/2009 (JEMB, ATTY TO REFILE AS SEPERATE MOTION TO SEAL AND LODGED DELARATION). (Entered: 11/13/2009)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 42 of 57

11/16/2009 11/16/2009 12/01/2009 12/02/2009 12/02/2009 12/03/2009 12/07/2009 12/07/2009 12/30/2009 12/30/2009
12/31/2009 01/04/2010
01/05/2010
01/06/2010

475 MOTION to Seal Document re Motion for Order to File Part of Declaration Under Seal by John Doe. (Ronan, Anne) (Entered: 11/16/2009)
476 SEALED LODGED Proposed Declaration of Matthew Pierce re: 475 MOTION to Seal Document re Motion for Order to File Part of Declaration Under Seal. Document to be filed by Clerk if Motion to Seal is granted. Filed by John Doe. (Ronan, Anne) (Entered: 11/16/2009)
477 STIPULATION to Extend Defendants' Response Time to Plaintiffs' Motion for Enforcement of Settlement Agreement by John Doe. (Ronan, Anne) (Entered: 12/01/2009)
478 ORDER granting 477 Stipulation ; Dfts shall have until 12/30/2009 in which to submit responsive documents to Plas Motion for Enforcement of Settlement Agreement.. Signed by Chief Judge John M Roll on 12/1/2009. (JKM, ) (Entered: 12/02/2009)
491 MOTION to Enforce Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement by John Doe. (JKM) (Entered: 02/01/2010)
479 ORDER granting 471 Motion for Leave to File Excess Pages; Plas may exceed the page limitation on Plas Motion for Enforcement of Settlement Agreement.. Signed by Chief Judge John M Roll on 12/2/2009.(JKM, ) (Entered: 12/03/2009)
480 ORDER granting 475 Motion to Seal Document; ORDERED Pla's Declaration be filed under seal. Pla's file the Declaration of Matthew Pierce w/paragraphs 36 to 56 redacted, which will be made availabe to the public. Signed by Chief Judge John M Roll on 12/4/09.(SGG, ) (Entered: 12/07/2009)
481 Sealed Document: Declaration filed by John Doe. Sealed per Order 480 (SGG, ) (Entered: 12/07/2009)
482 MOTION for Leave to File Excess Pages for Cross−Motion to Dismiss Plaintiffs' Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement by Phyllis Biedess. (Johnston, Logan) (Entered: 12/30/2009)
483 Cross MOTION to Dismiss Case or, in the Alternative, to Remand for Dispute Resolution Pursuant to Settlement Agreement by Phyllis Biedess. (Attachments: # 1 Exhibit Ex.A Settlement Agreement, # 2 Exhibit Ex. B Parties Pre−Arbitration Correspondence, # 3 Exhibit Ex. C Defs. 1st Annual Action Plan, # 4 Affidavit Ex. D Declaration of L. Nelson, # 5 Affidavit Ex. E−H Declarations, # 6 Affidavit Ex. I−J Declarations)(Johnston, Logan) (Entered: 12/30/2009)
484 ERRATA re 483 Cross MOTION to Dismiss Case or, in the Alternative, to Remand for Dispute Resolution Pursuant to Settlement Agreement by Defendant Phyllis Biedess. (Attachments: # 1 Affidavit Declaration of S.T. Sacks)(Johnston, Logan) (Entered: 12/31/2009)
485 ORDER granting 482 Motion for Leave to File Excess Pages; Dfts may exceed the page limitation on their "Cross−Motion to Dismiss Plas Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement.". Signed by Chief Judge John M Roll on 1/1/2010.(JKM, ) (Entered: 01/04/2010)
486 STIPULATION to Extend Plaintiffs' Reply Time to Defendants' Cross−Motion to Dismiss Plaintiffs' Motion for Enforement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement by John Doe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Ronan, Anne) (Entered: 01/05/2010)
487 ORDER granting 486 Stipulation, Dfts shall have until 1/29/2010 in which to submit responsive documents to Dfts' Cross−Motion to Dismiss Plas' Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement.. Signed by Chief Judge John M Roll on 1/5/2010. (JKM, ) (Entered: 01/06/2010)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 43 of 57

01/29/2010 01/29/2010
01/29/2010
02/02/2010 02/02/2010 02/02/2010 02/04/2010 02/05/2010 02/12/2010 02/26/2010 02/26/2010 03/03/2010 03/31/2010

488 MOTION for Leave to File Excess Pages for Reply by John Doe. (Ronan, Anne) (Entered: 01/29/2010)
489 LODGED PROPOSED DOCUMENT RE: REPLY in Support re 488 MOTION for Leave to File Excess Pages for Reply RE: Plaintiffs' Motion for Enforcement of Settlement Agreement . filed by John Doe. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. (Attachments: # 1 Exhibit)(Ronan, Anne) INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM (REPLY) TO (LODGED PROPOSED DOCUMENT); ALSO CORRECTED DOCUMENT LINKAGE ON 2/1/2010 (MHU). (Entered: 01/29/2010)
490 ADDITIONAL ATTACHMENT TO MAIN DOCUMENT 488 Re: Proposed Order for Motion to Exceed Page Limit. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by John Doe. (Ronan, Anne) INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM (LODGED PROPOSED ORDER) TO (ADDITIONAL ATTACHMENT TO MAIN DOCUMENT); ALSO CORRECTED DOCUMENT LINKAGE ON 2/1/2010 (MHU). (Entered: 01/29/2010)
492 ORDER granting 488 Motion for Leave to File Excess Pages. Signed by Chief Judge John M Roll on 2/1/10.(CLJ) (Entered: 02/02/2010)
493 REPLY re 483 Cross MOTION to Dismiss Case or, in the Alternative, to Remand for Dispute Resolution Pursuant to Settlement Agreement filed by John Doe.(CLJ) (Additional attachment(s) added on 2/2/2010: # 1 Exhibit 1) (DTN). THIS ENTRY HAS BEEN MODIFIED TO INCLUDE EXHIBIT 1 ATTACHMENT ON 2/2/2010 (DTN). (Entered: 02/02/2010)
494 NOTICE OF CORRECTION BY THE CLERK re 493 Response in Opposition to Motion, filed by John Doe. Description of deficiency: Exhibit 1 PDF document not attached. Follow up by Clerks Office: Exhibit 1 PDF document attached to entry 493 . The document is also attached to this entry for viewing. Court use only: CLJ. (DTN) (Entered: 02/02/2010)
495 STIPULATION to Extend Defendants Reply Time in Support of Their Cross Motion to Dismiss Plaintiffs Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 02/04/2010)
496 ORDER pursuant to 495 Stipulation: ORDERED Defendants have until 2/26/10 by which to file their reply. Signed by Chief Judge John M Roll on 2/5/10. (CLJ) (Entered: 02/05/2010)
497 TRANSCRIPT DESIGNATION AND ORDER FORM by Phyllis Biedess for proceedings held on 06/26/2001 before Judge Roll. (Johnston, Logan) (Entered: 02/12/2010)
498 MOTION for Leave to File Excess Pages for Reply in Support of Cross−Motion by Phyllis Biedess. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 02/26/2010)
499 REPLY in Support re 483 Cross MOTION to Dismiss Case or, in the Alternative, to Remand for Dispute Resolution Pursuant to Settlement Agreement filed by Phyllis Biedess. (Attachments: # 1 Exhibit Dr. Friedman Declaration)(Johnston, Logan) (Entered: 02/26/2010)
500 ORDER granting 498 Motion for Leave to File Excess Pages. Dfts may file a 14−page "Reply in Support of Cross−Motion to Dismiss Plaintiffs" Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Pursuant to the Settlement Agreement".. Signed by Chief Judge John M Roll on 3/1/2010.(JKM) (Entered: 03/03/2010)
501 TRANSCRIPT of Proceedings re: FAIRNESS HEARING held on 06/26/01 before Judge John M Roll. Court Reporter: Chris Wallace. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/21/2010. Redacted Transcript Deadline set for 5/3/2010. Release of Transcript Restriction set for 6/29/2010. (BJW) (Entered:

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 44 of 57

03/31/2010 06/22/2010 06/28/2010 06/29/2010 06/30/2010 06/30/2010 07/01/2010 07/01/2010 07/07/2010
07/09/2010 07/13/2010 07/19/2010 09/03/2010 09/10/2010 09/24/2010
10/15/2010 10/15/2010 10/15/2010

03/31/2010)
502 NOTICE OF FILING OF OFFICIAL TRANSCRIPT 501 (BJW) (Entered: 03/31/2010)
503 MOTION for Hearing on Motion re Request for Status Conference by John Doe. (Ronan, Anne) (Entered: 06/22/2010)
504 NOTICE of Appearance by Paul E Steen on behalf of Will Humble, Arizona Department of Health Services, Arizona Health Care Cost Containment System (Steen, Paul) (Entered: 06/28/2010)
505 NOTICE of Appearance by Paul E Steen on behalf of Arizona Health Care Cost Containment System (Steen, Paul) (Entered: 06/29/2010)
506 STIPULATION for Order Allowing Withdrawal and Substitution of Counsel by Arizona Health Care Cost Containment System. (Steen, Paul) (Entered: 06/30/2010)
507 STIPULATION for Order Allowing Withdrawal and Substitution of Counsel by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Steen, Paul) (Entered: 06/30/2010)
508 ORDER granting 507 Stipulation, 506 Stipulation :allowing withdrawal and substitution of Counsel. Signed by Chief Judge John M Roll on 7/1/10. (SMBE) (Entered: 07/01/2010)
509 RESPONSE to Motion re 503 MOTION for Hearing on Motion re Request for Status Conference filed by Arizona Department of Health Services. (Honig, Gregory) (Entered: 07/01/2010)
510 Joinder re 509 Response to Motion re Request for Status Hearing by Defendants Arizona Health Care Cost Containment System, Arizona Health Care Cost Containment System filed by Arizona Health Care Cost Containment System. (Steen, Paul) (Entered: 07/07/2010)
511 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of Aplril 1, 2009 to June 30, 2009 by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 07/09/2010)
512 Reply re 510 Joinder, 503 MOTION for Hearing on Motion re Request for Status Conference, 509 Response to Motion Request for Status Conference by Plaintiff John Doe. (Ronan, Anne) (Entered: 07/13/2010)
513 ORDER pursuant to 511 Stipulation :Dft shall reimburse Pla's counsel $75,883.89 for fees and expenses. Signed by Chief Judge John M Roll on 7/18/10. (SMBE) (Entered: 07/19/2010)
514 ORDERED that the parties are directed to file a Joint Status Report due by 9/10/2010 at 5:00 p.m.. Signed by Chief Judge John M Roll on 9/3/10. (BAR) (Entered: 09/03/2010)
515 STATUS REPORT by John Doe. (Ronan, Anne) (Entered: 09/10/2010)
516 ORDER denying 483 Motion to Dismiss; denying 491 Motion to Enforce; denying as moot 503 Motion for Hearing on Motion. Oral argument set November 22, 2010 @ 1:30 pm; briefs due by October 15, 2010; responses due October 29, 2010; optional replies due November 12, 2010. Signed by Chief Judge John M Roll on 9/23/10.(SMBE) (Entered: 09/24/2010)
517 First MOTION for Hearing on Motion, MOTION to Change Venue/Transfer Case to USDC PHOENIX by Will Humble. (Attachments: # 1 Exhibit A)(Honig, Gregory) (Entered: 10/15/2010)
518 MOTION to Enforce Settlement Agreement Plaintiffs' Reurge by John Doe. (Ronan, Anne) (Entered: 10/15/2010)
519 MOTION for Leave to File Excess Pages for Cross−Motion to Dismiss Plaintiffs' Motion for Enforcement of Settlement Agreement, or in the alternative, Remand for Dispute Resolution Pursuant to the Settlement Agreement by Arizona Department of

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 45 of 57

10/15/2010
10/19/2010 10/19/2010 10/28/2010 10/29/2010
11/12/2010 11/12/2010
11/12/2010 11/12/2010 11/22/2010 11/29/2010 12/13/2010 12/17/2010

Health Services, Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Steen, Paul) (Entered: 10/15/2010)
520 LODGED Proposed Cross−Motion to Dismiss Plaintiffs' Motion for Enforcement of Settlement Agreement, or in the alternative, Remand for Dispute Resolution Pursuant to the Settlement Agreement re: 519 MOTION for Leave to File Excess Pages for Cross−Motion to Dismiss Plaintiffs' Motion for Enforcement of Settlement Agreement, or in the alternative, Remand for Dispute Resolution Pursuant to the Settlement Agreement. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Department of Health Services, Arizona Health Care Cost Containment System. (Steen, Paul) (Entered: 10/15/2010)
521 ORDER granting 519 Motion for Leave to File Excess Pages. Signed by Chief Judge John M Roll on 10/18/10.(BAR) (Entered: 10/19/2010)
522 MOTION to Dismiss Plaintiff's Motion for Enforcement of Settlement Agreement or in the alternative, MOTION to Remand for Dispute Resolution pursuant to the Settlement Agreement by defendants Humble and Nelson. (BAR) (Entered: 10/19/2010)
523 RESPONSE in Opposition re 517 First MOTION for Hearing on Motion MOTION to Change Venue/Transfer Case to USDC PHOENIX filed by John Doe. (Ronan, Anne) (Entered: 10/28/2010)
524 Response to Motion re 522 Defendants' Cross−Motion to Dismiss Plaintiffs' Motion for Enforcement of Settlement Agreement or, in the Alternative, to Remand for Dispute Resolution Purusant to the Settlement Agreement by Plaintiff John Doe. (Ronan, Anne) Modified on 10/29/2010 (BAR, INCORRECT EVENT SELECTED, MODIFIED FROM REPLY TO RESPONSE TO MOTION; LINKED TO MOTION). (Entered: 10/29/2010)
525 REPLY to Response to Motion re 517 First MOTION for Hearing on Motion MOTION to Change Venue/Transfer Case to USDC PHOENIX filed by William Humble. (Honig, Gregory) (Entered: 11/12/2010)
526 REPLY to Response to Motion re 522 MOTION to Dismiss Counts/Claims : Plaintiff's Motion for Enforcement of Settlement Agreement MOTION to Remand for Dispute Resolution pursuant to the Settlement Agreement Reply in Support of Defendants' Cross−Motion to Dismiss Plaintiff's Motion for Enforcement of Settlement Agreement filed by Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble. (Steen, Paul) (Entered: 11/12/2010)
527 REPLY to Response to Motion re 522 MOTION to Dismiss Counts/Claims : Plaintiff's Motion for Enforcement of Settlement Agreement MOTION to Remand for Dispute Resolution pursuant to the Settlement Agreement filed by Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble. (Steen, Paul) (Entered: 11/12/2010)
528 NOTICE re Errata by Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble re 526 Reply to Response to Motion,. (Steen, Paul) (Entered: 11/12/2010)
529 Minute Entry. Proceedings held before Chief Judge John M Roll: In−Court Hearing held on 11/22/2010. Formal court order forthcoming. (Court Reporter Aaron LaDuke.)(MES) (Entered: 11/22/2010)
530 ORDER denying 517 Motion for Hearing on Motion and 517 Motion to Change Venue; denying 518 Motion to Enforce; denying 522 Motion to Dismiss Counts/Claims; denying 522 Motion to Remand. Signed by Chief Judge John M Roll on 11/29/10. **SEE ORDER FOR COMPLETE DETAILS**(BAR) (Entered: 11/29/2010)
531 REPORT to the Court on Mediator by Plaintiff John Doe. (Ronan, Anne) (Entered: 12/13/2010)
532 TRANSCRIPT REQUEST by John Doe for proceedings held on 11/22/2010 before Judge Roll.. (Ronan, Anne) (Entered: 12/17/2010)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 46 of 57

12/17/2010 12/17/2010 12/30/2010
01/03/2011 01/18/2011 02/07/2011 02/22/2011 03/04/2011 03/04/2011 03/07/2011
03/18/2011 03/23/2011 03/23/2011 03/23/2011
03/25/2011 03/29/2011

533 REPORT of Parties Re: Mediator by Plaintiff John Doe. (Ronan, Anne) (Entered: 12/17/2010)
534 TRANSCRIPT REQUEST Entire Proceeding by Arizona Department of Health Services for proceedings held on 11/22/2010 before Judge Roll.. (Honig, Gregory) (Entered: 12/17/2010)
535 TRANSCRIPT of MOTIONS HEARING held November 22, 2010 before Judge John M. Roll. Court reporter: Aaron H. LaDuke. Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/20/2011. Redacted Transcript Deadline set for 1/31/2011. Release of Transcript Restriction set for 3/30/2011. (SFuller) (Entered: 12/30/2010)
536 NOTICE re Notice of Withdrawal of Counsel by John Doe. (Ronan, Anne) (Entered: 01/03/2011)
537 NOTICE of Appearance by Timothy Michael Hogan on behalf of John Doe (Hogan, Timothy) (Entered: 01/18/2011)
538 NOTICE OF WAIVER OF ELECTRONIC SERVICE, counsel for Defendants Charles Carbone, Jack Dillenberg (Good, Coni) (Entered: 02/07/2011)
539 STIPULATION of the Parties as to Court Award of Attorneys Fees to Plaintiffs Under 42 USC 1988 for the Period of July through December 2009 by John Doe. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Ronan, Anne) (Entered: 02/22/2011)
540 MOTION for Hearing on Motion to Terminate the Court's Jurisdiction and to Dismiss the Case by Arizona Department of Health Services. (Honig, Gregory) (Entered: 03/04/2011)
541 Minute Order: Case reassigned by the Clerk to the Honorable Judge Tashima. All future filings shall reflect the following case number CV−91−261−TUC−AWT. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CDE) (Entered: 03/04/2011)
542 ORDER pursuant to 539 Stipulation to the amount of attorrney fees due to plaintiff counsel for period of 07/01/09 through 12/31/09 : It is ordered defendants shall reimburse plaintiffs in the sum of $78,256.62 for fees and expensenses incurred from 07/01/09 through 12/31/09. Signed by Judge A Wallace Tashima on 03/04/11. (LMF) (Entered: 03/07/2011)
543 RESPONSE in Opposition re 540 MOTION for Hearing on Motion to Terminate the Court's Jurisdiction and to Dismiss the Case filed by John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) (Entered: 03/18/2011)
544 MOTION for Admission Pro Hac Vice as to attorney Julia Graff on behalf of John Doe. (BAS) (Entered: 03/23/2011)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX107851 as to Julia Graff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/23/2011)
545 ORDER pursuant to General Order 05−25 granting 544 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/23/2011)
546 REPLY to Response to Motion re 540 MOTION for Hearing on Motion to Terminate the Court's Jurisdiction and to Dismiss the Case filed by Arizona Department of Health Services. (Attachments: # 1 Exhibit Ex. A − 11/22/10 Hearing Transcript, pg. 26)(Honig, Gregory) (Entered: 03/25/2011)
547 NOTICE of Appearance by Julia Graff on behalf of John Doe (Graff, Julia) (Entered: 03/29/2011)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 47 of 57

07/07/2011 07/21/2011 07/26/2011
08/04/2011 08/09/2011 09/20/2011 09/30/2011
09/30/2011 10/26/2011 12/29/2011 12/29/2011
01/04/2012
02/09/2012 02/27/2012
03/05/2012 03/05/2012

548 MOTION for Attorney Fees by John Doe. (Attachments: # 1 Exhibit, # 2 Exhibit)(Ronan, Anne) (Entered: 07/07/2011)
549 RESPONSE in Opposition re 548 MOTION for Attorney Fees filed by Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble. (Honig, Gregory) (Entered: 07/21/2011)
550 STIPULATION to Extend Plaintiffs' Time to File Reply in Support of Plaintiffs' Motion for Attorneys' Fees (July 1 through September 30, 2009 and October 1 through December 31, 2009) by John Doe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Ronan, Anne) (Entered: 07/26/2011)
551 ORDER granting 550 Stipulation, : Reply to Motion for Attoneys' Fees due 8/9/2011. Signed by Judge A Wallace Tashima on 8/3/11. (SMBE) (Entered: 08/04/2011)
552 REPLY to Response to Motion re 548 MOTION for Attorney Fees filed by John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) (Entered: 08/09/2011)
553 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of January 1, 2010 to March 31, 2010 by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 09/20/2011)
554 ORDER granting 553 Stipulation of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of January 1, 2010 to March 31, 2010. Ordered defendants shall reimburse Plaintiffs in the sum of $48,288.24 for fees and expenses incurred. Signed by Judge A Wallace Tashima on 9/29/11. (BAR) (Entered: 09/30/2011)
555 NOTICE re Pursuant to Local Rule of Civil Procedure 7.2(1) by John Doe . (Ronan, Anne) (Entered: 09/30/2011)
556 *NOTICE OF WAIVER OF ELECTRONIC SERVICE by Leslie J Cohen and Michelle S Michelson, counsel for Plaintiff John Doe . (Myers, Edward) *Incorrect event selected; entry modified on 10/28/2011 (SAT). (Entered: 10/26/2011)
557 STIPULATION of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of April 1, 2010 to June 30, 2010 by John Doe. (Ronan, Anne) (Entered: 12/29/2011)
558 *Additional Attachments to Main Document (Proposed Order) re: 557 Stipulation of the Parties as to Court Award of Attorneys' Fees to Plaintiffs Under 42 USC 1988 for the Period of April 1, 2010 to June 30, 2010. Filed by John Doe. (Ronan, Anne) *Modified to correct event type on 1/6/2012 (SAT). (Entered: 12/29/2011)
559 ORDER granting 557 Stipulation for Fees and Expenses incurred by Plaintiffs' counsel for the period of April 1, 2010 through June 30, 2010. Ordered that Defendants shall reimburse Plaintiffs counsel in the sum of $48,869.69 for fees and expenses incurred. Signed by Judge A Wallace Tashima on 1/4/12. (BAR) (Entered: 01/04/2012)
560 NOTICE re Pursuant to Local Rule of Civil Procedure 7.2(I) by John Doe . (Ronan, Anne) (Entered: 02/09/2012)
561 ORDER denying 540 Motion to Terminate the Court's Jurisdiction and Dismiss the Case; granting in part and denying in part 548 Plaintiffs' Motion for Attorney Fees. The parties shall submit to the Court a stipulation regarding a date until which the Settlement Agreement, and the Court's jurisdiction over the pending dispute, needs to be extended within 14 days of this order. A status conference will be held on March 19, 2012 at 2:00 p.m. Signed by Judge A Wallace Tashima on February 27, 2012.(BAR) (Entered: 02/27/2012)
562 MOTION to Continue March 19, 2012 Status Conference by Arizona Health Care Cost Containment System. (Steen, Paul) (Entered: 03/05/2012)
563 STIPULATION for Order Allowing Withdrawal and Substitution of Counsel by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order Order Allowing Withdrawal & Substitution of Counsel)(Steen, Paul) (Entered: 03/05/2012)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 48 of 57

03/06/2012
03/07/2012 03/07/2012 03/12/2012 03/12/2012
03/12/2012 03/19/2012 03/23/2012 04/02/2012 04/04/2012
04/05/2012 04/09/2012
04/09/2012 04/16/2012
04/17/2012 04/17/2012 04/20/2012

564 ORDER granting 563 Stipulation for Order Allowing Withdrawal and Substitution of Counsel: Substituting Attorney Logan T Johnston in place of David L Niederdeppe and Paul E Steen of Ryan Rapp Underwood, PLC, as counsel for defendants. Signed by Judge A Wallace Tashima on March 6, 2012. (BAR) (Entered: 03/06/2012)
565 RESPONSE to Motion re 562 MOTION to Continue March 19, 2012 Status Conference filed by John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) (Entered: 03/07/2012)
566 ORDER denying 562 Motion to Continue the Status Conference. Signed by Judge A Wallace Tashima on 3/7/12.(BAR) (Entered: 03/07/2012)
567 STATUS REPORT to the Court by John Doe. (Ronan, Anne) (Entered: 03/12/2012)
568 MOTION for Reconsideration re 561 Order on Motion for Hearing on Motion,,, Order on Motion for Attorney Fees,, Motion to Clarify and Reconsider by Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit Plaintiffs' Proposed Stipulation, # 2 Exhibit Letter from Defendants to Plaintiffs' Counsel, # 3 Exhibit Plaintiffs' Response)(Johnston, Logan) (Entered: 03/12/2012)
569 Respondent's BRIEF by Arizona Department of Health Services, Arizona Health Care Cost Containment System Defendants' Brief Regarding Reference to a Special Master. (Johnston, Logan) (Entered: 03/12/2012)
570 Minute Entry. Proceedings held before Judge A Wallace Tashima: Status Conference Hearing held on 3/19/2012 regarding special master. (Court Reporter Dianne Davenport.)(BAR) (Entered: 03/23/2012)
571 Additional Attachments to Main Document Motion to Clarify and Reconsider by Defendant Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order Proposed Order)(Johnston, Logan) (Entered: 03/23/2012)
572 NOTICE re Notice of Filing Proposed Form of Order by John Doe . (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 04/02/2012)
573 Pursuant to the Court's Order re 561 , Plaintiffs are entitled to fees and expenses in the amount of $75,952.50 incurred from July to December 2009. It is ordered that defendants shall make payment arrangements to Plaintiffs' counsel in the amount of $75,952.50 in conformance with this Court's order. Signed by Judge A Wallace Tashima on April 4, 2012. (BAR) (Entered: 04/04/2012)
574 First MOTION for Extension of Time Motion for Extension of Time to Submit Proposed Candidates for Special Master by John Doe. (Ronan, Anne) (Entered: 04/05/2012)
575 ORDER granting 574 Motion for Extension of Time Deadline to submit a list of candidates re: Special Master. The parties shall have until April 17, 2012 to submit their proposed list to the Court. Signed by Judge A Wallace Tashima on 4/7/12.(SMBE) (Entered: 04/09/2012)
576 TRANSCRIPT REQUEST by John Doe for proceedings held on 3/19/12 before Judge Wallace Tashima.. (Ronan, Anne) (Entered: 04/09/2012)
577 TRANSCRIPT of STATUS CONFERENCE held on 03/19/2012, before Judge A Wallace Tashima. Court Reporter Dianne Davenport. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/7/2012. Redacted Transcript Deadline set for 5/17/2012. Release of Transcript Restriction set for 7/16/2012. (BWEN) (Entered: 04/16/2012)
578 STATEMENT of Defendants' List of Candidates to Serve as Special Master by Defendants Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble. (Honig, Gregory) (Entered: 04/17/2012)
579 NOTICE re Plaintiffs' Candidates for Special Master by John Doe . (Attachments: # 1 Exhibit, # 2 Exhibit)(Ronan, Anne) (Entered: 04/17/2012)
580 NOTICE re Plaintiffs' Notice of Lodging Proposed Order Appointing Special Master Pursuant to Rule 53 of Federal Rules of Civil Procedure by John Doe . (Attachments: #

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 49 of 57

04/20/2012 04/20/2012 08/28/2012 08/28/2012 09/11/2012 11/15/2012 11/20/2012 11/30/2012
12/20/2012
01/22/2013 01/24/2013 01/24/2013
01/24/2013

1 Text of Proposed Order)(Ronan, Anne) (Entered: 04/20/2012)
581 TRANSCRIPT REQUEST by Arizona Health Care Cost Containment System for proceedings held on 3/19/2012 before Judge Tashima.. (Johnston, Logan) (Entered: 04/20/2012)
582 NOTICE re Filing Proposed Order re: Special Master and Objection to Special Master Candidate by Arizona Health Care Cost Containment System re 580 Notice (Other) . (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 04/20/2012)
583 STATUS REPORT to the Court Re: Candidates for Special Master by John Doe. (Ronan, Anne) (Entered: 08/28/2012)
584 *RESPONSE to 583 Plaintiffs' Status Report re: Candidates for Special Master by Arizona Department of Health Services, Arizona Health Care Cost Containment System. (Johnston, Logan)* Modified on 8/29/2012, to correct type to Response (BAR). (Entered: 08/28/2012)
585 NOTICE of Change of Address by Patrick Hall Gardner. (Gardner, Patrick) (Entered: 09/11/2012)
586 ORDER APPOINTING SPECIAL MASTER: appointing Justice Ruth V. McGregor (Retired). Signed by Judge A Wallace Tashima on 11/14/2012. (SEE PDF DOCUMENT FOR COMPLETE DETAILS).(BAR) (Entered: 11/15/2012)
587 *AFFIDAVIT OF NO CONFLICT by Ruth V McGregor. (MAP) *Modified to regenerate NEF on 11/21/2012 (CMAL). (Entered: 11/20/2012)
588 MINUTE ORDER: Scheduling Conference set for 12/14/2012, at 03:00 PM in Courtroom 501, 401 West Washington Street, Phoenix, AZ 85003 before Special Master Ruth McGregor. The parties should come prepared to discuss those issues appropriate for briefing to the Special Master, as well as the briefing and argument schedule. SO ORDERED by Special Master Ruth McGregor on 11/30/2012. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VPB) (Entered: 11/30/2012)
589 ORDER RE BRIEFING AND HEARING SCHEDULE (re 561 Order): IT IS ORDERED: On or before January 24, 2013, the parties shall file memoranda, not exceeding forty pages in length, analyzing the six issues in dispute, as defined in the plaintiffs' letter of March 6, 2009. The parties are free to discuss other issues that affect the interpretation of the Agreement under principles of Arizona law. On or before February 4, 2012, the parties shall file responses, not exceeding twenty pages in length. Argument before Special Master set for 2/21/2013 at 10:00 AM before Special Master Ruth V. McGregor. (See document for further details). (LAD) (Entered: 12/20/2012)
590 MOTION for Admission Pro Hac Vice as to attorney Emily B Read on behalf of John Doe. (BAS) (Entered: 01/24/2013)
PRO HAC VICE FEE PAID. $ 50, receipt number TUC018239 as to Emily B Read. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/24/2013)
591 ORDER pursuant to General Order 09−08 granting 590 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/24/2013)
592 MEMORANDUM Defendants' Memorandum Regarding Six Issues in Dispute by Defendant Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit A (11/30/00 draft settlement agreement), # 2 Exhibit B (final Agreement), # 3 Exhibit C (comparison of draft to final agreement), # 4 Exhibit D (Biedess statement), # 5 Exhibit E (Schwalbe statement), # 6 Exhibit F (12/11/00 Memo), # 7 Exhibit G (10/11/00 Memo), # 8 Exhibit I (Notice of Proposed Settlement))(Johnston, Logan) (Entered: 01/24/2013)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 50 of 57

01/24/2013 01/24/2013 02/04/2013
02/04/2013 02/21/2013 02/21/2013

593 Additional Attachments to Main Document re 592 Memorandum,, Omitted Exhibit F (Sorce Statement) by Defendant Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 01/24/2013)
594 MEMORANDUM Plaintiffs' Memorandum in Response to Special Master's Order of December 20, 2012 by Plaintiff John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) (Entered: 01/24/2013)
595 Plaintiffs' Response to Defendants' Memorandum in Response to Special Master's Order of December 20, 2012 by Plaintiff John Doe. (Attachments: # 1 Exhibit, # 2 Exhibit)(Ronan, Anne) Modified on 2/5/2013 to correct event type (BAR). (Entered: 02/04/2013)
596 RESPONSE re 594 Memorandum Defendants' Response to Plaintiffs' Memorandum Re: Six Issues in Dispute by Defendant Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 02/04/2013)
597 TRANSCRIPT REQUEST by William Humble for proceedings held on 02/21/2013 before Judge Ruth V McGregor.. (Honig, Gregory) (Entered: 02/21/2013)
598 Minute Entry for proceedings held before Special Master Ruth V. McGregor: Oral Argument held on 2/21/2013. Discussions held. On or before March 4, 2013, the parties may file a post−hearing memorandum, not to exceed 15 pages in length. A recommendation will be prepared for Judge A. Wallace Tashima after review of submitted post−hearing memoranda. The parties may engage in mediation, if beneficial.

02/21/2013 02/22/2013
03/04/2013 03/04/2013 03/07/2013
04/24/2013
05/06/2013 05/06/2013

APPEARANCES: Ira Burnim and Ann Ronan for Plaintiff. Gregory Honig and Logan Johnston for Defendants (Court Reporter Merilyn Sanchez.) Hearing held 10:00 AM to 11:24 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (JAMA) (Entered: 02/21/2013)
599 TRANSCRIPT REQUEST by John Doe for proceedings held on February 21, 2013. (Ronan, Anne) (Entered: 02/21/2013)
600 ORDER, that to perform her duties, the special master, Ruth V. McGregor should be allowed electronic access to the documents in this case without cost. That special master in this action, Ruth V. McGregor shall be provided access free of charge to the documents filed in this Court. Signed by Chief Judge Roslyn O Silver on 2/22/13. (DMT) (Entered: 02/22/2013)
601 MEMORANDUM Plaintiffs' Post−Hearing Memorandum by Plaintiff John Doe. (Attachments: # 1 Exhibit 1)(Read, Emily) (Entered: 03/04/2013)
602 MEMORANDUM Defendants' Supplemental Memorandum Regarding Six Issues in Dispute by Defendant Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 03/04/2013)
603 TRANSCRIPT of ORAL ARGUMENT held on 02/21/2013, before Special Master Ruth V. McGregor. Court Reporter Merilyn A. Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 3/28/2013. Redacted Transcript Deadline set for 4/8/2013. Release of Transcript Restriction set for 6/5/2013. (SGG) (Entered: 03/07/2013)
604 ORDER RE OBJECTIONS TO PROPOSED REPORT AND RECOMMENDATIONS. That on or before May 6, 2013, each party may file a memorandum, not to exceed 15 pages, setting out objections to, suggested revisions to, and suggested additions to, the proposed Report and Recommendations. Signed by Special Master Ruth V. McGregor on 4/24/13. (MAP) (Entered: 04/24/2013)
605 RESPONSE re 604 to Special Master's Proposed Report and Recommendations by Plaintiff John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) Modified on 5/7/2013, to create linkage (BAR). (Entered: 05/06/2013)
606 RESPONSE re 604 Order, Defendants' Response to Special Master's Proposed Report and Recommendations by Defendant Arizona Health Care Cost Containment System.

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 51 of 57

05/17/2013 05/22/2013
05/23/2013 05/24/2013 05/28/2013 05/28/2013
05/31/2013 05/31/2013
06/06/2013 06/06/2013 06/07/2013 06/07/2013 06/17/2013 06/21/2013

(Johnston, Logan) (Entered: 05/06/2013)
607 SPECIAL MASTER'S REPORT AND RECOMMENDATIONS − See Order for Complete Details. Signed by Special Master Ruth V. McGregor on 5/17/13. (MAP) (Entered: 05/17/2013)
608 Minute Order: Status conference re: 568 MOTION for Reconsideration re 561 Order on Motion for Hearing on Motion, Order on Motion for Attorney Fees, Motion to Clarify and Reconsider, 607 REPORT AND RECOMMENDATION re 592 Memorandum,, filed by Arizona Health Care Cost Containment System :. Status conference re: Motions set for 6/21/2013 at 10:00 AM or 2:00 PM in Courtroom 5A, 405 West Congress Street, Tucson, AZ 85701 before Judge A Wallace Tashima. Counsel to confer time and contact the court re: stipulated time. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MME) (Entered: 05/22/2013)
609 *MOTION to Exceed Page Limitation by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) Modified on 5/24/2013, changed from Miscellaneous to for Leave to File Excess Pages.*(BAR). (Entered: 05/23/2013)
610 ORDER granting 609 Motion for Leave to File Excess Pages for the Objections to the Special Master's Report and Recommendations. Plaintiffs may file an objection up to thirty pages in length. Signed by Judge A Wallace Tashima on 5/24/2013.(BAR) (Entered: 05/24/2013)
611 OBJECTION to 607 Special Master's Final Report and Recommendations by Plaintiff John Doe. (Attachments: # 1 Exhibit)(Ronan, Anne) Modified on 5/28/2013, to create linkage (BAR). (Entered: 05/28/2013)
612 MOTION To Adopt Special Master's Report and Recommendations and to Remand Remaining Disputes for Dispute Resolution pursuant to the Settlement Agreement re 607 REPORT AND RECOMMENDATION re 592 Memorandum,, filed by Arizona Health Care Cost Containment System by Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit 2001 Final Settlement Agreement, # 2 Text of Proposed Order)(Johnston, Logan) (Entered: 05/28/2013)
613 STIPULATION Re: Time for Hearing on Special Master's Report and Recommendation by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 05/31/2013)
614 IT IS ORDERED the Status Conference presently set for 6/21/13 at 10:00 am or 2:00 pm is RESET AS TO TIME ONLY!!. Status Conference set for 6/21/2013 at 10:30 AM in Courtroom 5A, 405 West Congress Street, Tucson, AZ 85701 before Judge A Wallace Tashima. Ordered by Judge A Wallace Tashima. (MME)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 05/31/2013)
615 SPECIAL Master Application for Compensation by Ruth V McGregor (SM). (MAP) (Entered: 06/06/2013)
616 Minute Order: Counsel is to file written response by 6/17/13 to 615 Master Application for Compensation. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MME) (Entered: 06/06/2013)
617 RESPONSE to Motion re 615 MOTION for Compensation Defendants' Response to Special Master's Application for Compensation filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 06/07/2013)
618 RESPONSE re 611 Objection Defendants' Response to Plaintiffs' Objections to Special Master's Report by Defendant Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 06/07/2013)
619 RESPONSE to 615 Special Master's Application for Compensation by Plaintiff John Doe. (Ronan, Anne) Modified on 6/18/2013, to create linkage (BAR). (Entered: 06/17/2013)
620 Minute Entry − Motion Hearing held on 6/21/2013 for proceedings held before Judge A Wallace Tashima: Plaintiffs' Oral Motion for Evidentiary Hearing is GRANTED.

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 52 of 57

07/09/2013
08/21/2013 08/21/2013 08/30/2013
09/03/2013 09/08/2013 09/25/2013 09/25/2013 09/25/2013 09/25/2013 09/26/2013 09/30/2013 10/25/2013 10/25/2013

All Motions are deferred for ruling on 568 Motion for Reconsideration ; 607 Report and Recommendation; 612 Motion Special Masters Report Special Masters Report; 615 Motion Special Masters ReportSpecial Masters Report; Evidentiary Hearing set for 11/18/2013 at 09:00 AM in U.S. District Court of Arizona, 401 W. Washington Street, Phoenix, AZ 85003 before Judge A Wallace Tashima. See Minute Entry for details. (Court Reporter Aaron LaDuke.) Hearing held 10:58 am to 11:25 am.(MME) (Entered: 06/24/2013)
621 ORDER adopting Report and Recommendations re 607 Special Master's Report and Recommendation. Further ordered overruling 611 Plaintiffs' objection to the Special Master's Report and Recommendation. Ordered granting in part and denying in part 612 Motion to Adopt the Special Master's Report and Recommendations with one modification; granting 615 Motion Special Master's Application for Compensation, requesting a total compensation of $21,200.00. Further ordered that defendants shall pay 100% of the Special Master's fee. Signed by Judge A Wallace Tashima on 7/9/2013.(BAR) (Entered: 07/09/2013)
622 TRANSCRIPT REQUEST by John Doe for proceedings held on June 21, 2013 before Judge A. Wallace Tashima.. (Ronan, Anne) (Entered: 08/21/2013)
623 TRANSCRIPT REQUEST by Arizona Health Care Cost Containment System for proceedings held on 6/21/2013 before Judge Tashima.. (Johnston, Logan) (Entered: 08/21/2013)
624 TRANSCRIPT of MOTION HEARING held on 06/21/2013, before Judge A. Wallace Tashima. Court Reporter Aaron H. LaDuke. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/20/2013. Redacted Transcript Deadline set for 9/30/2013. Release of Transcript Restriction set for 11/29/2013. (SGG) (Entered: 08/30/2013)
625 REPORT of Defendants re: 9/4/2013 Teleconference by Defendant Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 09/03/2013)
626 MOTION Leave to Take Depositions of Two of Plaintiffs' Attorneys by Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit Ex A − Plaintiffs' 3/6/09 Letter Initiating Dispute, # 2 Text of Proposed Order)(Johnston, Logan) (Entered: 09/08/2013)
627 ORDER granting 626 Motion for Leave to Take Depositions of Two of Plaintiffs' Attorneys. Signed by Judge A Wallace Tashima on 9/24/2013.(BAR) (Entered: 09/25/2013)
628 NOTICE of Appearance by Jon David Weiss on behalf of John Doe. (Weiss, Jon) (Entered: 09/25/2013)
629 MOTION for Reconsideration re 627 Order on Motion for Miscellaneous Relief to Depose Two of Plaintiffs' Attorneys by John Doe. (Attachments: # 1 Text of Proposed Order)(Weiss, Jon) (Entered: 09/25/2013)
630 RESPONSE in Opposition re 626 MOTION Leave to Take Depositions of Two of Plaintiffs' Attorneys filed by John Doe. (Attachments: # 1 Exhibit 1)(Weiss, Jon) (Entered: 09/25/2013)
631 ORDER granting 629 Motion for Reconsideration. Defendants' motion for leave to depose two of Plaintiffs' attorneys will be decided on the merits at the close of briefing. Signed by Judge A Wallace Tashima on 9/26/2013.(BAR) (Entered: 09/26/2013)
632 REPLY to Response to Motion re 626 MOTION Leave to Take Depositions of Two of Plaintiffs' Attorneys filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 09/30/2013)
633 MOTION to Continue November 18, 2013 Hearing by John Doe. (Attachments: # 1 Text of Proposed Order)(Ronan, Anne) (Entered: 10/25/2013)
634 RESPONSE to Motion re 633 MOTION to Continue November 18, 2013 Hearing Defendants' Response in Opposition to Motion for Continuance of November 18, 2013

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 53 of 57

10/27/2013 10/27/2013 10/28/2013 10/28/2013 10/29/2013 10/31/2013 10/31/2013
10/31/2013
10/31/2013
10/31/2013 11/13/2013 11/13/2013 11/14/2013 11/15/2013 11/15/2013

Hearing filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 10/25/2013)
635 REPLY to Response to Motion re 633 MOTION to Continue November 18, 2013 Hearing filed by John Doe. (Attachments: # 1 Text of Proposed Order (Revised))(Read, Emily) (Entered: 10/27/2013)
636 RESPONSE to Motion re 633 MOTION to Continue November 18, 2013 Hearing Defendants' Sur−Response to Plaintiffs' Reply in support of Motion for Continuance filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 10/27/2013)
637 ORDERED denying 626 MOTION Leave to Take Depositions of Two of Plaintiffs' Attorneys filed by Arizona Health Care Cost Containment System. Signed by Judge A Wallace Tashima on 10/28/2013. (BAR) (Entered: 10/28/2013)
638 ORDER denying 633 Motion to Continue November 18, 2013 Hearing. Signed by Judge A Wallace Tashima on 10/28/2013.(BAR) (Entered: 10/28/2013)
639 NOTICE re Regarding Expert Witness Knute Rotto by John Doe . (Ronan, Anne) (Entered: 10/29/2013)
640 Witness List by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 10/31/2013)
641 MOTION in Limine re: NO. 1: REGARDING EVIDENCE RELATING TO OBLIGATIONS AND PROVISIONS OF THE SETTLEMENT AGREEMENT THAT ARE NO LONGER AT ISSUE by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 10/31/2013)
642 MOTION in Limine re: NO. 2: REGARDING EVIDENCE RELATING TO MEDICAID REQUIREMENTS, MEDICALLY NECESSARY SERVICES, OR MEETING THE NEEDS OF RECIPIENTS by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 10/31/2013)
643 MOTION in Limine re: Defendants' Motion in Limine NO. 3 TO EXCLUDE UNDISCLOSED EXPERT WITNESSES AND LAY TESTIMONY ON SUBJECTS REQUIRING SPECIALIZED KNOWLEDGE by Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit A − Summary of 9 4 13 Ruling, # 2 Exhibit B − Plts 10 11 13 Letter to Defs, # 3 Exhibit C − Defs 10 30 13 Letter to Plts, # 4 Exhibit D − 10 31 13 E−mail exchange, # 5 Text of Proposed Order)(Johnston, Logan) (Entered: 10/31/2013)
644 *Witness and Exhibit List by John Doe. (Read, Emily) *Modified docket text to reflect pleading caption on 11/14/2013 (SMBE). (Entered: 10/31/2013)
645 MINUTE ORDER: Evidentiary Hearing set for 11/18/2013 at 09:30 AM before Judge A Wallace Tashima. Hearing will be heard in Courtroom 505, Sandra Day OConnor U.S Courthouse, 401 W. Washington Street, Phoenix, Arizona. (SMBE) (Entered: 11/13/2013)
646 * Defendants' Objections to Plaintiffs' List of 644 Exhibits by Arizona Health Care Cost Containment System.. (Johnston, Logan) *Modified to reflect correct event type on 11/14/2013 (SMBE). (Entered: 11/13/2013)
647 TRIAL BRIEF Defendants' Hearing Memorandum by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 11/14/2013)
648 TRIAL BRIEF Plaintiffs' Pre−Hearing Memorandum by John Doe. (Ronan, Anne) (Entered: 11/15/2013)
649 MOTION to Expedite Ruling on Pending Motions in Limine Defendants' Request for Rulings on Their Motions in Limine Nos. 1−3 for Failure of Plaintiffs to Respond by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 11/15/2013)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 54 of 57

11/15/2013 11/17/2013
11/17/2013 11/17/2013 11/18/2013
11/19/2013 11/20/2013
11/22/2013 11/22/2013 11/26/2013 11/26/2013

650 Lodged Documents re 649 MOTION to Expedite Ruling on Pending Motions in Limine Defendants' Request for Rulings on Their Motions in Limine Nos. 1−3 for Failure of Plaintiffs to Respond by Defendant Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit Proposed order from pending motion, # 2 Exhibit proposed order from pending motion, # 3 Exhibit proposed order from pending motion)(Johnston, Logan) (Entered: 11/15/2013)
651 RESPONSE in Opposition re 642 MOTION in Limine re: NO. 2: REGARDING EVIDENCE RELATING TO MEDICAID REQUIREMENTS, MEDICALLY NECESSARY SERVICES, OR MEETING THE NEEDS OF RECIPIENTS , 641 MOTION in Limine re: NO. 1: REGARDING EVIDENCE RELATING TO OBLIGATIONS AND PROVISIONS OF THE SETTLEMENT AGREEMENT THAT ARE NO LONGER AT ISSUE , 643 MOTION in Limine re: Defendants' Motion in Limine NO. 3 TO EXCLUDE UNDISCLOSED EXPERT WITNESSES AND LAY TESTIMONY ON SUBJECTS REQUIRING SPECIALIZED KNOWLEDGE filed by John Doe. (Read, Emily) (Entered: 11/17/2013)
652 MOTION for Leave to File Excess Pages re: Doc. 651 (Plaintiffs' Consolidated Response in Opposition to Defendants' Motions in Limine) by John Doe. (Read, Emily) (Entered: 11/17/2013)
653 MOTION to Strike 651 Response in Opposition to Motion,, Defendants' Motion to Strike Plaintiffs' Memorandum in Opposition to Defendants' Three Motions in Limine by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order Proposed order)(Johnston, Logan) (Entered: 11/17/2013)
654 MINUTE ENTRY for proceedings held before Judge A Wallace Tashima: Evidentiary Hearing − Day 1 held on 11/18/2013. The Court on pending motions as follows. 568 Motion for Reconsideration − denied without prejudice; 641 Motion in Limine − denied without prejudice; 642 Motion in Limine − denied without prejudice; 643 Motion in Limine − denied without prejudice; 649 Motion to Expedite − denied; 652 Motion for Leave to File Excess Pages − granted; 653 Motion to Strike − denied without prejudice. Evidence and testimony presented. Scheduling discussed. Recess until 9:00 AM, 11/19/2013. (Court Reporter Merilyn Sanchez.) Hearing held 9:35 AM to 4:12 PM.(TLB) (Entered: 11/18/2013)
655 MINUTE ENTRY for proceedings held before Judge A Wallace Tashima: Evidentiary Hearing − Day 2 held on 11/19/2013. Evidence and testimony presented. Recess until 9:00 a.m., 11/20/2013. (Court Reporter Merilyn Sanchez.) Hearing held 9:02 AM to 5:00 PM.(TLB) (Entered: 11/19/2013)
656 MINUTE ENTRY − for proceedings held before Judge A Wallace Tashima: Evidentiary Hearing − Day 3 held on 11/20/2013. Evidence and testimony presented. ORDERED setting Telephonic Status Conference for 3/12/2014 at 11:00 AM before Judge A Wallace Tashima (Pacific Coast Time). Plaintiff's counsel shall initiate the conference call to Judge Tashima's chambers and contact his chambers to obtain the appropriate telephone number. ORDERED continuing Evidentiary Hearing to 3/24/2014 at 09:00 AM in Courtroom 505, 401 West Washington Street, Phoenix, AZ 85003 before Judge A Wallace Tashima. The hearing is scheduled for 3/24/2014 through 3/28/2014. (Court Reporter Merilyn Sanchez.) Hearing held 9:00 AM to 4:15 PM.(TLB) (Entered: 11/20/2013)
657 TRANSCRIPT REQUEST for November Evidentiary Hearing by Arizona Health Care Cost Containment System for proceedings held on 11/18/2013−11/20/2013 before Judge Tashima.. (Johnston, Logan) (Entered: 11/22/2013)
658 Document was filed in the wrong case. All information associated with the entry has been removed. NEF regenerated on 11/25/2013 (CEI) (Entered: 11/22/2013)
659 MOTION for Leave to File Reply in Support of Defendants' Motions in Limine Numbers 1 and 2 by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order Proposed order)(Johnston, Logan) (Entered: 11/26/2013)
660 (Filed at 666 )−LODGED Proposed Defendants' Reply in Support of their Motions in Limine Numbers 1 and 2 re: 659 MOTION for Leave to File Reply in Support of Defendants' Motions in Limine Numbers 1 and 2. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona Health Care Cost Containment System. (Johnston, Logan) Modified on 1/23/2014 (BAR).

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 55 of 57

12/09/2013 12/09/2013 12/09/2013
12/09/2013
12/09/2013
01/23/2014
01/23/2014 02/17/2014 02/21/2014 02/25/2014 02/27/2014

(Entered: 11/26/2013)
661 TRANSCRIPT REQUEST by John Doe for proceedings held on 11/18/13, 11/19/13, 11/20/13 before Judge Tashima.. (Ronan, Anne) (Entered: 12/09/2013)
662 TRANSCRIPT REQUEST by John Doe for proceedings held on 11/18/13, 11/19/13, 11/20/13 before Judge Tashima.. (Ronan, Anne) (Entered: 12/09/2013)
663 AMENDED (by doc 674) NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedingsof Evidentiary Hearing Day 1, held on 11/18/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/10/2014. (MAS) Modified on 3/5/2014 (VPB). (Entered: 12/09/2013)
664 AMENDED (by doc 675) NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings of Evidentiary Hearing Day 2 held on 11/19/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/10/2014. (MAS) Modified on 3/5/2014 (VPB). (Entered: 12/09/2013)
665 AMENDED (by doc 676) NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings of Evidentiary Hearing Day 3 held on 11/20/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/10/2014. (MAS) Modified on 3/5/2014 (VPB). (Entered: 12/09/2013)
666 REPLY to Response to Motion re 641 MOTION in Limine re: NO. 1: REGARDING EVIDENCE RELATING TO OBLIGATIONS AND PROVISIONS OF THE SETTLEMENT AGREEMENT THAT ARE NO LONGER AT ISSUE>, 642 MOTION in Limine re: NO. 2: REGARDING EVIDENCE RELATING TO MEDICAID REQUIREMENTS, MEDICALLY NECESSARY SERVICES, OR MEETING THE NEEDS OF RECIPIENTS filed by Arizona Department of Health Services, Arizona Health Care Cost Containment System, William Humble. (BAR) (Entered: 01/23/2014)
667 ORDER granting 659 Motion for Leave to File Reply in Support of Defendants' Motions in Limine Numbers 1 and 2. Defendants' first motion in limine is granted in part and denied in part. Defendants' second motion in limine is denied. Signed by Judge A Wallace Tashima on 1/21/2014.(BAR) (Entered: 01/23/2014)
668 MOTION in Limine re: to Exclude Testimony and Report of Knute Rotto by Arizona Health Care Cost Containment System. (Attachments: # 1 Exhibit Rotto Report, # 2 Text of Proposed Order Proposed order)(Johnston, Logan) (Entered: 02/17/2014)
669 MOTION to Compel The Production of Documents Comprising the Comprehensive Training Plan and Statewide Training Program Required by the Settlement Agreement by John Doe. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Read, Emily) (Entered: 02/21/2014)
670 RESPONSE in Opposition re: 669 MOTION to Compel The Production of Documents Comprising the Comprehensive Training Plan and Statewide Training Program Required by the Settlement Agreement filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 02/25/2014)
671 ORDER granting 669 Motion to Compel. Defendants shall produce to Plaintiffs a copy of the comprehensive training plan described in Paragraphs 37 and 38 of the Settlement Agreement, and a copy of the statewide training plan described in Paragraphs 32 through 36 of the Settlement Agreement.Signed by Judge A Wallace

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 56 of 57

02/27/2014 03/03/2014 03/04/2014
03/04/2014
03/04/2014
03/12/2014 03/12/2014 03/19/2014 03/20/2014 03/20/2014 03/20/2014 03/20/2014 03/20/2014

Tashima on 2/27/2014.(BAR) (Entered: 02/27/2014)
672 RESPONSE to Motion re: 668 MOTION in Limine re: to Exclude Testimony and Report of Knute Rotto filed by John Doe. (Read, Emily) (Entered: 02/27/2014)
673 REPLY to Response to Motion re: 668 MOTION in Limine re: to Exclude Testimony and Report of Knute Rotto filed by Arizona Health Care Cost Containment System. (Johnston, Logan) (Entered: 03/03/2014)
674 NOTICE OF FILING OF OFFICIAL AMENDED TRANSCRIPT of Evidentiary Hearing held on 11/18/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2014. Redacted Transcript Deadline set for 4/4/2014. Release of Transcript Restriction set for 6/2/2014. (VPB) (Entered: 03/05/2014)
675 NOTICE OF FILING OF OFFICIAL AMENDED TRANSCRIPT of Evidentiary Hearing − Day 2 held on 11/19/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2014. Redacted Transcript Deadline set for 4/4/2014. Release of Transcript Restriction set for 6/2/2014. (VPB) (Entered: 03/05/2014)
676 NOTICE OF FILING OF OFFICIAL AMENDED TRANSCRIPT of Evidentiary Hearing − Day 3 held on 11/20/2013, before Judge Tashima. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2014. Redacted Transcript Deadline set for 4/4/2014. Release of Transcript Restriction set for 6/2/2014. (VPB) (Entered: 03/05/2014)
677 *AMENDED on 3/12/2014 (Doc. 678 ) − ORDER re: 668 MOTION in Limine re: to Exclude Testimony and Report of Knute Rotto filed by Arizona Health Care Cost Containment System. Signed by Judge A Wallace Tashima on 3/12/2014. (See Order for Complete Details.)(BAR) Modified on 3/12/2014 (SMBE). (Entered: 03/12/2014)
678 AMENDED ORDER denying 668 Motion in Limine re: to Exclude Testimony and Report of Knute Rotto filed by Arizona Health Care Cost Containment System.. Signed by Judge A Wallace Tashima on 3/12/14.(SMBE) (Entered: 03/12/2014)
679 NOTICE re: Notice of Withdrawal of Motion for Enforcement of Settlement Agreement by John Doe . (Ronan, Anne) (Entered: 03/19/2014)
680 ORDER re: 679 Notice of Withdrawal of Motion for Enforcement of Settlement Agreement. The continued evidentiary hearing set for March 24, 2014 at 9:00 a.m. is taken off calendar. Signed by Judge A Wallace Tashima on 3/20/2014. (BAR) (Entered: 03/20/2014)
681 Witness List by Plaintiff John Doe, re: evidentiary hearing held 11/18/13(REW) (Entered: 03/20/2014)
682 Exhibit List by Plaintiff John Doe, re: evidentiary hearing held 11/18/13. (REW) (Entered: 03/20/2014)
683 Witness List by Defendants James R Allen, Arizona Department of Health Services, Arizona Health Care Cost Containment System, Rhonda Baldwin, Phyllis Biedess, Susan Gerard, William Humble, re: evidentiary hearing held 11/18/13. (REW) (Entered: 03/20/2014)
684 Exhibit List by Defendants James R Allen, Arizona Department of Health Services, Arizona Health Care Cost Containment System, Rhonda Baldwin, Phyllis Biedess, Susan Gerard, William Humble, evidentiary hearing held 11/18/13. (REW) (Entered: 03/20/2014)

Case: 4:91-cv-261 As of: 02/11/2016 11:59 AM MST 57 of 57

03/20/2014 03/21/2014 03/21/2014 03/21/2014 08/13/2014

685 Sealed (UNREDACTED) Witness List re Evidentiary Hearing. (MAP) (Entered: 03/20/2014)
686 Joint MOTION to Dismiss Case by Arizona Health Care Cost Containment System. (Attachments: # 1 Text of Proposed Order)(Johnston, Logan) (Entered: 03/21/2014)
687 ORDER granting 686 Motion to Vacate Hearing and Dismiss Litigation. The evidentiary hearing is vacated and this litigation is dismissed without prejudice. Signed by Judge A Wallace Tashima on 3/21/2014.(BAR) (Entered: 03/21/2014)
688 MINUTE ORDER re: Exhibits, the exhibits are returned to respective counsel; counsel are directed to retain custody of the exhbiits until the case has been completely terminated, including all appeals. (REW) (Entered: 03/21/2014)
689 NOTICE OF ATTORNEY SUBSTITUTION: Asim Varma appearing for John Doe. Attorney Edward Leo Myers terminated. . (Varma, Asim) (Entered: 08/13/2014)