RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0363p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JOHN B., et al.,

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Plaintiffs-Appellees,

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v.

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DAVE GOETZ, Commissioner, Tennessee

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Department of Finance and Administration; DARIN GORDON, Deputy Commissioner,

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Bureau of TennCare; VIOLA MILLER,

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Commissioner, Tennessee Department of

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Children’s Services,

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Defendants-Appellants.

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No. 09-6145

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00168—William J. Haynes, Jr., District Judge.

Argued: April 27, 2010

Decided and Filed: November 30, 2010

Before: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: Michael W . Kirk, COOPER & KIRK, PLLC, W ashington, D.C., for Appellants. Andrew R. Dunlap, KIRKLAND & ELLIS LLP, New York, New York, for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Brian S. Koukoutchos, Derek L. Shaffer, COOPER & KIRK, PLLC,Washington, D.C., Robert E. Cooper, Jr., Linda A. Ross, OFFICE OF THE ATTORNEY GENERAL, STATE OF TENNESSEE, Nashville, Tennessee, for Appellants. Andrew R. Dunlap, Katherine L. McDaniel, KIRKLAND & ELLIS LLP, New York , New York, Michele M. Johnson, G. Gordon Bonnyman, Jr., TENNESSEE JUSTICE CENTER, Nashville, Tennessee, for Appellees.

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_________________
OPINION _________________
PER CURIAM.1 This appeal arises from the district court’s denial of defendants’ motion to vacate a consent decree entered in a 1998 class-action challenge to Tennessee’s managed care program, TennCare, under the Medicaid Act. Plaintiffs alleged that defendants, Tennessee officials charged with implementing TennCare, failed to provide early and periodic screening, di agnosis and treatment (EPSDT) services in violation of the Medicaid Act, and the parties’ c onsent decree im poses systemic remedies for these alleged violations. Defendants argue that the consent decree must be vacated under Federal Rule of Civil Procedure 60(b) because this court’s interve ning decisions render such system ic remedies unenforceable. Defendants al so request reassignment of the case. We decline to vacate the consent decree in its entirety, but we vacate a portion of the consent decree in light of intervening decisions, and we remand the case for reassignment and further proceedings.
I.
In 1998, plaintiffs filed this 42 U.S.C. § 1983 class-action suit “on behalf of the more than half million children throughout Tennessee who depend on TennCare for essential medical and mental health services.” The case was originally assigned to Judge John T. Nixon. Plaintiffs alleged tha t they were individually denied care and that TennCare is systemically deficient in providing EPSDT services, inform ation about those services, and adoption assistance. Plaintiffs’ claim s were prim arily based on Medicaid’s EPSDT provision, 42 U.S.C. § 1396a(a)(43), which states that
A state plan for medical assistance must . . . provide for
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including
1This opinion is styled Per Curiam because it was prepared in the cham bers of more than one judge.

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services described in section 1396d(a)(4)(B) of t his title, of the availability of early and periodic screening, diagnostic, and treatm ent services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through r eferral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary . . . [particular] inform ation relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year.
The parties negotiated a consent decree and tehdistrict court accepted that decree in May
of 2000. The consent decree requires defendants to provide screening, diagnosis, and
treatment services; specifies the scope of those services; requires coordinating EPSDT
and other services; and establishes m onitors for compliance. One consent decree
provision requires geographic com parability in the availability of services under
42 U.S.C. § 1396a(a)(30). Another provision states that, “[w]here a specific residential
placement is recom mended [for treatm ent], and there i s a wai ting period for such
placement, during the interim [a managed care organization] . . . may not simply place
the child on a wait listing for the specific residential placement .” The decree permits
“[e]ither party [to] seek modification . . . as permitted by existing law,” and specifically
states that
This consent decree is prem ised upon the assumption that the E PSDT requirements of 42 U.S.C. § 1396a (a)(43)and 1396d(r), and 42 U.S.C. §§ 671(a)(16) and 671(1) and (5) of the Adoption Assistance Act are enforceable in an action unde r 42 U.S.C. § 1983. Defendants do not waive any right to seek modification of this consent decree ifcontrolling preceden[t] establishes a lack of § 1983 enforceability as to any of these provisions.
In December of 2001, the district court determined that defendants were not in
compliance with the consent decree and EPSDT requirements, and appointed a special
master to assist the parties in addressingTennCare’s deficiencies. In February of 2006,
after the def endants alleged that Judge Nixon had engaged in im proper ex parte
communications with the special master, Judge Nixon voluntarily recused himself and

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the case was reassi gned to Judge W illiam J. Haynes, Jr. In March of 2006, Judge Haynes relieved the special master of his specialmaster’s duties, but retained the special master as a technical advisor under the district court’s inherent authority and barred inquiry into the special m aster’s ex parte com munications with Judge Nixon. Defendants moved the district court to reconsider this ruling, primarily arguing that the special master’s appointment as technical advisor was inappropriate given the allegations of improper ex parte communications and thecourt’s ruling that the defendants could not investigate these communications. Defendantsalso noted that relief beyond that granted in the consent decree “could not be predicated, even in theory, upon any violations of underlying EPSDT law because recent jurisp rudence from the Supreme Court makes clear that the Medicaid statute in this context does not confer a right that is privately enforceable by the beneficiaries.” Tosupport this argument, defendants cited Gonzaga University v. Doe, 536 U.S. 273, 282 (2002), in which the Supreme Court held that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [§ 1983].” Therefore that statute is enforceable under § 1983 only if “Congress intended to confer individualrights upon a class of beneficiaries.”Id. at 285.
In a hearing on April 17, 2006, the district court denied defendants’ motion for reconsideration and stated that appointing theformer special master as technical advisor avoided “los[ing] the benefit of [his] extensive study and review of the matters.” The district court rejected defendants’Gonzaga-based argument because defendants had not analyzed Gonzaga in their filing and the Sixth Circuit had not applied Gonzaga to the Medicaid Act. The district court also noted that a motion under Federal Rule of Civil Procedure 60(b) was the appropriate m ethod for a Gonzaga-based challenge to the consent decree, but that defendants had failedto make a Rule 60(b) motion and that such a motion would be untim ely at that point, m ore than one year after Gonzaga was decided.
In July of 2006, this court applied Gonzaga to decide a § 1983 challenge to Michigan’s compliance with EPSDT provisions in Westside Mothers v. Olszewski, 454

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F.3d 532 (6th Cir. 2006) ( Westside Mothers II ). In Westside Mothers II , plaintiffs
claimed that the state had violated the Medicaid Act by
(1) refusing to provide, and not requriing participating HMOs to provide, the comprehensive examinations required by 42 U.S.C. §§ 1396a(a)(43), 1396d(r)(1) and 42 C.F.R. § 441.57; (2) not requiring participating HMOs to provide the necessary health care, diagnostic se rvices, and treatment required by 42 U.S.C. § 1396d(r)( 5); (3) not effectively informing plaintiffs of the exi stence of the screening and treatm ent services, as required by 42 U.S.C. § 1396a(a)(43); (4) failing to provide plaintiffs the transportation and scheduling help needed to take advantgae of the screening and tre atment services, as required by 42 U.S.C. § 1396a(a)(43)(B) and 42 C.F.R. § 441.62; and (5) developing a Medicaid program that lacks the capacity to deliver to eligible children the care required by 42 U.S.C. §§ 1396a(a)(8) , 1396a(a)(30)(A), and 1396u-2(b)(5).
Id. at 536. We affirmed the district court’s conclusion that plaintiffs had failed to state
a claim upon which relief could be granted fordefendants’ “alleged failure . . . to ensure
the actual provision of, or arrangement for, medical services.” Id. at 539–41. Although
states must “provide for making medical assistance available,” 42 U.S.C. § 1396a(a)(10),
and “provide that . . . medical assistance . . . be furnished with reasonable promptness
to all eligible individuals,” 42 U.S.C. § 1396a(a)(8), we held that a state’s obligation is
only to pay for services actually rendered, not ensure the reasonably prompt provision
of services, because the Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the [enum erated] services,” 42 U.S.C. § 1396d(a). 2 Id. at 540
(insertion in original). We also dismissed plaintiffs’ claim that would require the State
to ensure comparable service availability because the underlying provision, 42 U.S.C.
§ 1396a(a)(30), was not privately enforceable under § 1983. Id. at 541–43. However,
we also held that plaintiffs’ allegation that defendants “‘refused or failed to effectively
inform Plaintiffs and their caretakers of the existence of [EPSDT services]’” stated a
claim for relief for violation of 42 U.S.C. § 1396a(a)(43). Id. at 543–44.

2The definition of “medical assistance” has changed since we decided Westside Mothers II, but the new definition does not affect this holding because a state may still fulfill its Medicaid obligations by paying for services.

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In November of 2006, five m onths after Westside Mothers II was decided, defendants in this case moved to vacate the consent decree under Federal Rule of Civil Procedure 60(b). Eleven months later, the district court issued an opinion noting that it had addressed defendants’ arguments in its April 17, 2006, hearing and denied a motion on that basis, and that the defendants had not appealed that ruling. Further, the court stated that “the pendency of a dispositive motion does not stay discovery,” and
[i]f the Defendants had not been so intransigent on discovery issues requiring extraordinary amounts of the Court’s time, there would have been a ruling on the m otion to vacate. The Court will continue its research on that motion, but the Court also has to give attention to other actions on this Court’s docket becauserulings in other actions have been delayed because of the extraordinary amount of time the Court has had to expend on the [electronic discovery] issues in this action.
In March of 2009, this court decidedBrown v. Tennessee Department of Finance & Administration, 561 F.3d 542 (6th Cir. 2009). Brown concerned a § 1983 suit by mentally disabled plaintiffs who alleged that Tennessee had violated the Medicaid Act by failing to provide (1) medical assistance adequate in amount, duration, and scope; (2) a choice between services; (3) reasonabyl prompt Medicaid application information; (4) reasonably prompt service; (5) due process in service denials. Id. at 543–44. In the parties’ settlement, Tennessee agreed to “overhaul its adm inistrative system, expand funding and programs for the mentally disabled, and develop programinfrastructure with the goal of increasing programenrollment and substantially reducing or eliminating the waiting list for waiver services.” Id. at 544. After Westside Mothers II, Tennessee moved to vacate the settlement under Rule 60(b)(5). In Brown, this court declined to vacate the entire agreem ent because the reco rd did not “conclusi vely show” that the decree was primarily aimed at ensuring the provision of care and eliminating waiting lists, goals unenforceable after Westside Mothers II. Id. at 547. W e did, however, vacate provisions that obligated Tennessee to elim inate waiting lists and stated that, under Westside Mothers II, “absent more, a waiting list for wa iver services does not violate federal law because the state’s duty is to pay for ser vices, not ensure they are provided.” Id. at 545. We also vacated Tennessee’s commitment to develop “provider

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network capacity” because that commitment “d[id] not appear to remedy any violation of federal law” after we held inWestside Mothers IIthat Medicaid’s comparable serviceavailability provision was not enforceable under § 1983. Id. at 548.
Three months after Brown, in May of 2009, defendants in this case moved in the district court to ascertain the status of their post-Westside Mothers II motion to vacate the consent decree. The district court referred the parties to the note in its October 9, 2007 opinion. Defendants then petitioned thiscourt for writ of mandamus ordering the district court to rule on the m otion to vacate. On Septem ber 15, 2009, this court concluded that “mandamus should be denied based on the petitioners’ filings alone” but “ordered . . . the district court to state in witring, within 60 days of the entry of this order, any reason that this petition should not be granted.”
Three days later, the distri ct court held that neither Westside Mothers II nor Brown required vacating or m odifying the consent decree. John B. v. Goe tz, 661 F. Supp. 2d 871, 903 (M.D. Tenn. 2009). Thedistrict court noted that “Westside Mothers II expressly recognized an enforceable rightunder Section 1396a(a)(43)(A) for the State Defendants’ ineffective outreach services in failing to inform pl aintiffs of mandated medical services under the Medicaid Act” and declined to vacate the consent decree’s information and outreach provisions. Id. at 890. The district court acknowledged our statement in Brown, that “absent more, a waiting list for waiver services does not violate federal law,” id. at 896 (quoting Brown, 561 F.3d at 545), but declined to vacate the consent decree’s requirements for the provision of EPSDT services in the present case because “Brown decided only the ‘waiting lis t’ and ‘provider network’ claim s in the context of the ‘m edical assistance’ and ‘reasonable prom ptness’ clauses in Section 1396a(a)(8)(A),” id. at 897. The district court conclude d that the consent decree remained enforceable without modification because the statutory text, legislative history, and accompanying regulations indicated congressional intent to establish an enforceable right to EPSDT services and because “the provisions of the decree are not premised on a duty to provide network adequacy or to treminate waiting lists subsequently eliminated

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as discussed in Westside Mothers II and Brown.” Id. at 900–03. Defendants appeal this decision.
II.
Defendants’ argument for vacating theconsent decree proceeds along two lines. First, defendants focus upon an assertion that the Medicaid statute as a whole does not confer individually enforceable rights. The statute, they point out, uses gr antconditioning language, not rights-creating language. And, they say, the EPSDT provisions implicated in the consent de cree provide for system wide programmatic regulation of the state’s program. Defendants rely on the Fifth Circuit opinion inFrazar v. Gilbert, 300 F.3d 530, 544 (5th Cir. 2002), rev’d on other grounds sub nom. Frew v. Hawkins, 540 U.S. 431 (2004). Defendants also look to the content of the consent decree to argue that it addresses system ic concerns rather than provides a vehicle for enforcement of individual rights. Second,defendants examine individually the primary statutory provisions on which the consent decree and plaintiffs’ claims are based in an effort to show that none of them is privately enforceable.
Defendants’ first line of argument has considerable support in the language of the statute. But in Westside Mothers II our court implicitly rejected such a broad view by assuming that some provisions of the statute may indeed be privately enforced and by examining individual provisions of the statute to determine whether a private right of action exists under each portion. Mos t importantly, for purposes of this case, the panel in Westside Mothers II permitted plaintiffs’ claim for relief under 42 U.S.C. § 1396a(a)(43)(A), a provision im plicated in this case, to go forward. Moreover, in Brown, which presented a procedural posture identical to this case, we refused a request to vacate a consent decree in a suit brought by mentally disabled Tennessee residents under the Medicaid statute, in part because it was unclear from t he record whether Westside Mothers II completely undermined the settlement. The court in Brown noted the absence of any record of settlement discussions or pre-settlement statements to the court and uncertainty about the basis and meaning of the decree. The panel adopted the

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approach of vacating portions of the consent decree that were based on provisions deemed unenforceable in Westside Mothers II. Brown, 561 F.3d at 547–48.
Here, it seems evident that the provisions of 42 U.S.C. § 1398a(a)(43) ar e an important basis for the decree. We thus have no indication that the decree as a whole is undermined to such an extent that it should beset aside in its entirety. Given the counsel of Brown and taking into account that this court im plicitly determined in Westside Mothers II that at least one of the requirem ents of § 1396a(a)(43)—that contained in § 1396a(a)(43)(A)—may be enforced through an a ction under 42 U.S.C. § 1983, we conclude that setting aside the decree in its entirety is unwarranted at this time.
We turn to an exam ination of specifi c portions of the statute in an effort to determine private enforceability. This is the teaching of Westside Mothers II and also the approach defendants undertake in their second line of argum ent. Although defendants argue that this analysis also requi res vacating the consent decree in its entirety, we disagree. Instead, we follow Brown’s narrow approach of vacating those provisions of the decree based on portions ofthe statute not privately enforceable under Westside Mothers II.3 Using this approach, and becauseWestside Mothers II holds that 42 U.S.C. § 1396a(a)(30) is not privaet ly enforceable under § 1983, 454 F.3d at 541–43, we vacate the consent decree’s requirement that defendants ensure that the availability of services is geographically com parable and any other pr ovisions based on § 1396a(a)(30). Beyond this one provision, thestatus of other provisions of the decree remains uncertain.
One open question is the extent to which Westside Mothers II’s holding that a state’s obligation under §§ 1396a(a)(8) and (10) is only to pay for medical assistance may be applicable to the provisionsof § 1396a(a)(43) not addressed inWestside Mothers

3We limit the scope of relief t o the remedies for underlying rights that have been rendered unenforceable by changes in controlling precedent. See Consent Decree ¶ 15. To the extent that defendants’ first argument for vacating the entire decere is based on an argument that the decree’s systemic remedies are not privately enforceable, this reasonni g does not correctly appreciate the distinction between rights and remedies. To determine whether a statute is enforceable under § 1983, courts examine “whether Congress intended to create a federal right,” Gonzaga, 536 U.S. at 283, not the scope of the relief sought or granted. In other words, remedies vindicating individual rights may be both systemic and nonsystemic; the form of relief says nothing about the nature of the right.

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II. The answer to this question could potentially impact the provisions of the consent decree that require ac tual provision of servi ce rather than sim ply payment. Another issue relates to whether Westside Mothers II ’s determination about waiting lists is applicable to the waiting list provision of § 1396a(a)(43)(C). FinallyW, estside Mothers II only addresses one part of § 1396a(a)(43) and leaves unresolved the private enforceability of the remaining part. While we could undertake an analysis of each of these issues, we believe that they are best left to the district court in the first instance, after an opportunity for supplemental briefing on remand.
Another distinct issue, as yet unm entioned, is the question of the private enforceability of the Adoption Assistance Act, 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5). While we easily conclude that the statute, which requires the state to develop a “case plan” and a “case review system ” for each child, does not create enforceable rights, we cannot so easily ascertain the extnet to which the decree is based on provisions of the Adoption Assistance Act. This issue is also best resolved on remand where the district court can make an initial decision about whether any provisions of the consent decree must be set aside because the Adoption Assistance Act cannot be enforced under § 1983.4
III.
Defendants request that this case be reassigned to another judge. We grant the request.
A number of aspects of this case inform our decision. First, the appearance of justice is compromised. The district court’s view of the history of this litigation, as outlined in the order from which defendants appea l, reflects a fundam ental misunderstanding of the import of certain key events in the case. Although the issues raised by the motion to vacate the consent decree have nothing to do with defendants’ compliance or noncompliance with it, the district court thought it important to recount

4We recognize that ¶¶ 84-93 refer to children in custody but are uncertain whether any of the requirements of those paragraphs are based in part on t he Medicaid statute. See Consent Decree ¶ 11 (addressing overlapping coverage).

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its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncom pliance, and Judge Nixon’s Octobe r 2004 order finding noncompliance. It alsorelies on Judge Nixon’s comments regarding compliance in his February 2006 recusal order.Yet nowhere does the court mention that Judge Nixon subsequently set aside t he October 2004 order, that the parties jointly requested that the order be set aside, that the findings and conclusions of that order had been placed in jeopardy by the issues concerning ex parte communication by the court with the special master (communication that arguably formed a basis for the order), or that no r uling on plaintiffs’ 2004 m otion for further relief has ever been m ade. Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge Nixon’s comments about compliance in the recusal order were largely a restatement of his views expressed in the order that had been set aside. Instead, the district court’s order simply treats the findings of the Oc tober 2004 order as unquestioned fa ct. The district court also quotes at length fromthe report of the monitors it appointed. Although this report has never acquired any evidentiary status in the case, has never been found accurate, and has never been subjected to any adversarial process, and although defendants’ objections to it rem ain pending, the report too is treated as unquestioned fact. Even more seriously, the historicalrecitation regarding compliance is not included merely as background. The court uses it as a part of its analysis of why plaintiffs have privately enforceable claims under § 1396a(a)(43). For example, the court notes that “[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more than half of t he 500,000 plus class m embers have been effectively denied outreach services rendering their rights to EPSDT service worthless.”John B., 661 F. Supp.2d at 893 (M.D. Tenn. 2009). The opinion also contains a num ber of other inaccuracies relating to def endants’ perceived lack of cooperation w ith the court, including its references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to respond to the remedial plan prepared by the special master and attached by Judge Nixon to the October 2004 order.
Beyond the order from which defendants now appeal, the orders issued by the district court relating to discovery contain increasingly accusatory language directed at

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the defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of coopera tion during the discovery process and ma y involve imposition of sanctions, such orders should issue in an atm osphere where all parties are assured that the court has not formed preconceived opinions detrimental to either side. The district court’s skewed viewof the actual state of the record with regard to defendants’ noncompliance with the cons ent decree creates an appearance that its judgment could be flawed with respect to defendants’ compliance with discovery.
Second, the history of the case reveals an alarming lack of t imely progress toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006 motion to vacate the consent decree had been pending almost three years before a ruling. Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and discovery skirmishes have consumed the district court’s time. The overall picture is one of a case without direction or deadlines for resolution of primary issues. We are quite aware that defense counsel have pursued a strategy of contention that contributes substantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in rece nt years also been a product of the scope of discovery sought by plaintiffs and permitted by the district court. And responsibility for moving a case forward lies primarily with the presiding judicial officer, rather than the parties.
Third, we have found it necessary to intervene in the case to an unusual extent. In June 2008, we granted a partial writ omf andamus—an extraordinary remedy required to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate occurred only after another petition for writ of mandamus produced a directive to the district court to respond as to why the writ should not be granted. And in February of this year, we stayed all proceedings in the dsitrict court pending resolution of this appeal, following more discovery disputes and unproductive turmoil in the district court.
In reassigning this case, we are m indful that such reassignments are rare and should be made reluctantly. Solomon v. United States , 467 F.3d 928, 935 (6th Cir.

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2006). And we recognize the factors that govern whether such a request should be granted: “(1)whether the original judge would reasonably be expceted to have substantial difficulty in putting out of his or her mind previously expressed views or findings, (2) whether reassignm ent is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Id.
The first factor may well favor reassignment, given that the district court appears to have held its misconceptions about the record for som e time, but the second factor quite clearly supports reassignment. And the case m anagement difficulties we have previously noted mean that a reassignment could hardly result in waste and duplication that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste and move the case toward def initive resolution of the primary issues, as well as to enhance the appearance of fairness.
We are mindful that as appellate judge s, we cannot manage litigation as trial judges do. But despite our recognition of our role, there are occasions when we must intervene. The plaintiff class is certainlynot benefitting from the pace of this litigation. Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs, and fees and expenses of defense counsel. Public-interest concerns are present for all parties. This situation com bines serious management failures, fundam ental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the de fendants. Here, the unusual decision to reassign the case is justified.
We direct that the case be reassigned promptly to a judicial officer who can give it the attention it requires. We are aware of a vacancy in the district court. If the need to reassign the case within the district poses a hardship, the chief judge of the district court may ask the chief judge of our court to make an appropriate designation. Upon reassignment, the new judge should undertake to resolve the issue s identified by this opinion and also develop a schedule for dete rmining any further r elief to which the

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plaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about discovery priorities in order to meet the court’s deadlines. Going forward, resolution of key issues should govern progress in the case.
IV.
For the foregoing reasons, we vacate theportion of the consent decree based on 42 U.S.C. § 1396a(a)(30), and remand for reassignment and further proceedings.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE
JOHN B., CARRIE G., JOSHUA M., MEAGAN A. ) and ERICA A., by their next friend, L.A.; ) DUSTIN P. by his next friend, Linda C. ) BAYLI S. by her next friend, C.W.; ) JAMES D. by his next friend, Susan H.; ) ELSIE H. by her next friend, Stacy Miller; ) JULIAN C. by his next friend, Shawn C.; ) TROY D. by his next friend, T.W., ) RAY M. by his next friend, P.D.; ) ROSCOE W. by his next friend, B.W.; ) WILLIAM B. by his next friend, K.B.; ) JACOB R. by his next friend, Kim R.; ) JUSTIN S. by his next friend, Diane P. ) ESTEL W. by his next friend, E.D.; ) individually and on behalf of all others ) similarly situated, ) ) Plaintiffs, ) )

- vs. - ) Civil Action No._________________ ) NANCY MENKE, Commissioner, ) Tennessee Department of Health; ) THERESA CLARKE, Assistant ) Commissioner, Bureau of TennCare; ) GEORGE HATTAWAY, Commissioner, ) Tennessee Department of Children Services; and ) BENJAMIN DISHMAN, Acting ) Commissioner, Tennessee Department of ) Mental Health and Mental Retardation; ) ) Defendants. )
CLASS ACTION COMPLAINT
I. PRELIMINARY STATEMENT
1. This is a Civil Rights class action against Tennessee state officials. The case is brought on behalf of the more than half million children throughout Tennessee who depend on TennCare for essential medical and mental health services. They seek injunctive relief, and the appointment of a Special Master, to remedy systemic violations of federal and state laws which result in the widespread denial of essential diagnostic and treatment services. The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, and the stunting of children's chances to achieve their full potential. 2. Specifically, this action seeks to enjoin state officials from:

a. Depriving children of early and periodic screening, diagnosis and treatment (EPSDT) services in violation of Title XIX of the Social Security Act, 42 U.S.C. §§1396 et seq. (hereinafter referred to as the "Medicaid Act"), the terms and conditions of Tennessee's Medicaid managed care demonstration project called "TennCare," and the terms and conditions of risk agreements between the State of Tennessee d/b/a TennCare and managed care organizations (MCOs) and behavioral health organizations (BHOs);
b. Depriving TennCare eligible children who are in state custody, or who are at risk of entering state custody, of needed health and mental services, in violation of the Medicaid Act; Title IV of the Social Security Act, 42 U.S.C. §§620-629a and 670-679, also known as the Adoption Assistance and Child Welfare Act (hereafter the "Adoption Assistance Act"); and the Due
Process Clause of the United States Constitution.
II. JURISDICTION AND VENUE
3. This court has subject matter jurisdiction over this action pursuant to:
a. 28 U.S.C. §1331, which confers original jurisdiction over all civil suits arising under the Constitution and laws of the United States;
b. 28 U.S.C. §1343(a)(3) and (4), which provides for original jurisdiction of this court to hear all claims asserted under 42 U.S.C. §1983 to redress deprivation under color of state law of any rights, privileges and immunities guaranteed by the Constitution of the United States or the acts of Congress; and,
c. 28 U.S.C. §1367(a), which provides for supplemental jurisdiction concerning claims arising under state law.
4. Venue is proper pursuant to 28 U.S.C. §1391(b).
5. Plaintiffs' request for declaratory and injunctive relief, and for other appropriate equitable relief, is authorized by 28 U.S.C. §§2201 and 2202(1988), 42 U.S.C. §1983, and Fed. R. Civ. P. 57 and 65.
III. PARTIES
A. Plaintiffs
6. John B. is ten years old. He has cerebral palsy. He has been in state custody for eight years. He resides in a foster home in Castilian Springs, Tennessee. John B. is eligible for TennCare. John appears in this action by his next friend, L.A., his foster mother.
7. Carrie G. is eleven years old. She has cerebral palsy. She has been in state custody since she was seven weeks old. She resides in a foster home in Castilian Springs,

Tennessee. Carrie G. is eligible for TennCare. She appears in this action by her next friend and foster mother, L.A.
8. Joshua M. is four years old. He has cerebral palsy. He has been in state custody for his entire life. He resides in a foster home in Castilian Springs, Tennessee. Joshua M. is eligible for TennCare. Joshua appears in this action by his next friend and foster mother, L.A.
9. Meagan A. is ten years old. She has cerebral palsy. She spent many years in state custody. She now resides with her adoptive family in Castilian Springs, Tennessee. Meagan A. is eligible for TennCare. Meagan appears in this action by her next friend and mother, L.A.
10. Erica A. is eight years old. She has cerebral palsy. She spent many years in state custody. She now resides with her adoptive family in Castilian Springs, Tennessee. Erica A. is eligible for TennCare. Erica appears in this action by her next friend and mother, L.A.
11. Dustin P. is a eleven year old boy who is severely emotionally disturbed. He currently resides in a state institution and is in the custody of the state. He appears in this action by his next friend and grandmother, Linda C.
12. Bayli S. is eleven years old. She has severe physical and cognitive disabilities. Bayli lives with her family in Leoma, Tennessee, and is eligible for TennCare. She appears in this action by her next friend and mother, C.W.
13. James D. is twelve years old. He is mentally ill and mildly mentally retarded. He came into state custody when he was nine years old due to extreme neglect and physical abuse with likely sexual abuse. He remains in state custody and resides in a foster home in Nashville, Tennessee. James D. is eligible for TennCare. James appears in this action by his next friend, Susan H., his former teacher and current foster mother.
14. Elsie H. is eleven years old. She is mentally ill. She has been in state custody most of her life. She currently resides in a psychiatric hospital in Chattanooga, Tennessee. Elsie H. is eligible for TennCare. Elsie appears in this action by her next friend, Stacy Miller, who serves as her guardian ad litem in Juvenile Court.
15. Julian C. is a four year old boy who, as a result of serious congenital illness and a stroke suffered in infancy, is developmentally delayed and unable to walk. Julian C. is eligible for TennCare. He lives in Nashville, Tennessee, with his mother, Shawn C., who brings this action as his next friend.
16. Troy D. is eleven years old. He is seriously emotionally disturbed. He lives with his mother and two stepbrothers in Kingston, Tennessee, and is eligible for TennCare. Troy appears in this action by his next friend and mother, T.W.

17. Ray M. is nineteen years old. He is hearing impaired. He lives with his family in Lafayette, Tennessee. Ray M. is eligible for TennCare. He appears in this action by his next friend and grandmother, P.D.
18. Roscoe W. is nine years old. He is hearing impaired. He lives with his family in Jamestown, Tennessee. Roscoe W. is eligible for TennCare. Roscoe appears in this action by his next friend and mother, B.W.
19. William B. is a six year-old boy who is a seriously emotionally disturbed child. He
is also moderately retarded and autistic. William B. is eligible for TennCare. William appears in this action by his next friend and mother, K.B.
20. Jacob R. is a eleven year old TennCare-eligible boy with cerebral palsy, mental retardation and epilepsy. He lives with his family in Antioch, Tennessee. He brings this action through his mother, Kim R., acting on his behalf as next friend.
21. Justin S. is a nine year old boy who is severely emotionally disturbed. He currently resides with his mother in Memphis. Justin appears in this action by his next friend and mother, D. P.
22. Estel W. is fifteen years old. He is an insulin dependent diabetic. He lives with his mother in Oneida, Tennessee, and was formerly a Medicaid Spend Down eligible whose eligibility ended and who is seeking reinstatement. Estel appears in this action by his next friend and mother, E.D.
B. Defendants
23. Nancy Menke is the Commissioner of the Tennessee Department of Health (TDH). TDH is designated as the single state agency responsible for the administration and supervision of Tennessee's Medicaid Program under the Medicaid Act. In January 1997, by Executive Order of Tennessee's Governor, TDH reassumed all functions related to the administration and supervision of Tennessee's Medicaid Demonstration Project Number 11-W-00002/4, called "TennCare."
24. Theresa Clarke is the Assistant Commissioner for the Bureau of TennCare (Bureau). She supervises the day-to-day operations of the Medicaid program and TennCare.
25. Benjamin Dishman is acting Commissioner of the Tennessee Department of Mental Health and Mental Retardation (DMHMR). DMHMR supervises and administers certain aspects of the TennCare Partners Program under which mental health care for TennCare enrollees is managed.
26. George Hattaway is the Commissioner of the Tennessee Department of Children's Services (DCS). He is responsible for the care of children in state custody and the provision of certain health services to those children at risk of entering state custody.

27. At all times relevant to these proceedings, defendants have acted, and continue to act, under color, custom and usage of state law.
C. Plaintiff Class - Definition
28. Plaintiffs seek declaratory and injunctive relief in this action pursuant to Fed. R. Civ. P. 23(a) and (b)(2) on behalf of present and future TennCare beneficiaries who are under the age of 21 years (hereinafter referred to as "TennCare children"). This class includes a subclass referred hereafter as the State Custody Subclass. - TennCare children who are or will be in the custody of the State of Tennessee, or who are or will be at risk of entering the custody of the State of Tennessee.
D. Numerosity
29. About one-third of all persons residing in Tennessee who are under 21 years old are TennCare beneficiaries. According to the 1994 Current Population Survey, Tennessee's population under 21 years of age totaled 1,509,356. Of that number, approximately 500,000 are currently enrolled in TennCare, according to state figures.
30. The Tennessee Commission on Children and Youth (TCCY) reports that
approximately 12,000 children were in state custody in the fiscal year 1997, an increase of nearly 500 children from 1996. Over ninety percent of these children are enrolled in TennCare, and hence are members of the State Custody Subclass.
31. The requirements of Fed. R. Civ. P. 23(a) are met in that the class and subclass are so numerous that joining all members is impractical.
E. Common Issues of Law and Fact
32. The named plaintiffs raise claims based on questions of law and fact that are common to, and typical of, the putative class members. Plaintiffs and the proposed class must rely on defendants for provision of critical EPSDT and services necessary to address children's health needs. Plaintiffs are subject to systemic deficiencies in TennCare, which impair access to such services.
33. Questions of fact common to the entire class or subclass include, whether:
a. Defendants fail to ensure that the families of children enrolled in TennCare are adequately informed of their children's right to receive EPSDT services, or how they might obtain such services;
b. Defendants fail to provide, or require MCOs and BHOs to provide, appropriate screening and diagnosis services for TennCare children, including, but not limited to, medical, vision, hearing, dental, mental health and developmental screening at appropriate intervals that meet reasonable standards of medical practice;

c. Defendants fail to provide, or require MCOs and BHOs to provide, treatment to alleviate or treat conditions consistent with the broad definition of medically necessary care in the Medicaid Act;
d. Defendants fail or refuse to develop and implement a coordinated system of care that provides for the mental health and developmental needs of class members;
e. Defendants fail to provide an adequate array of mental health or developmental services, including residential and nonresidential treatment;
f. Defendants fail to provide or require MCOs and BHOs to provide nonresidential mental health or developmental services or to provide such services on a timely basis;
g. Defendants fail to identify the mental health and developmental needs of children by allowing unlawful limitations and restrictions on screening and diagnostic services;
h. Defendants fail to inform responsible parties of the right to EPSDT services
when a child enters the foster care system and fails to provide information needed to access these services;
i. Defendants fail to provide foster children who have mental disabilities with timely placements and services appropriate to their particular needs;
j. Defendants fail to provide foster children with legally required health services necessary to prevent them from deteriorating physically and psychologically while in state custody;
k. Defendants fail to develop and implement on a timely basis individual care plans for short and long term treatment for children in its custody; and
l. Defendants fail to monitor individual case plans as they affect treatment and adjust them to meet the needs of the class members.
34. Questions of law common to the entire class or subclass include whether:
a. Defendants' acts and omissions deprive plaintiffs of EPSDT services in violation of the Medicaid Act, 42 U.S.C. §§1396a, 1396d(a) and (r) and regulations promulgated pursuant thereto.
b. Defendants' acts or omissions deprive members of the State Custody Subclass of services necessary to address children's health needs, in violation of the Adoption Assistance Act and the Due Process Clause of the Fourteenth Amendment to the Constitution
F. Adequate Representation of Class

35. The named plaintiffs will fairly and adequately protect the interests of the class. They are represented by attorneys employed by the Tennessee Justice Center, the Bazelon Mental Health Law Center, the National Health Law Program, and the Southern Poverty Law Center, all of which are non-profit, charitable organizations. Counsel have experience in complex class action litigation involving health care and civil rights law. Counsel have the resources, expertise and experience to prosecute this action. Counsel knows of no conflict among members of the class or subclass.
G. Appropriateness of Declaratory and Injunctive Relief
36. Defendants have failed or refused to act on grounds generally applicable to the class, making declaratory and injunctive relief with respect to the class as a whole appropriate and necessary, as more fully set forth in Section V, infra. The nature of the violations complained of here is such that, absent broad systemic relief for all TennCare children, it is impossible to adequately protect the rights of any single plaintiff.
IV. FACTUAL ALLEGATIONS
A. Overview of the Programs and Services at Issue
Medicaid/TennCare -
37. Title XIX of the Social Security Act, sometimes referred to as the Medicaid Act, provides medical assistance to individuals who lack the financial means to obtain needed health care on their own . 42 U.S.C. §1396. Medicaid is partially administered by the federal government, under the aegis of the Health Care Financing Administration (HCFA) of the Department of Health and Human Services (HHS). Each state is at liberty to decide whether to participate in the Medicaid program, and all states do. The state and federal governments share responsibility for funding Medicaid. States administer the program, subject to federal requirements imposed by the Medicaid Act and HCFA regulations and policy directives.
38. Tennessee has participated in Medicaid since shortly after the program's inception in the 1960s. Until 1994, the program operated much like a commercial fee-for-service insurance plan, paying claims submitted directly to the state by health care providers who served eligible individuals. In 1993, Tennessee obtained from the Secretary of Health and Human Services a five year waiver under Section 1115 of the Social Security Act, 42 U.S.C. §1315, to permit the state to replace its conventional Medicaid program with a demonstration program called TennCare. The new program was implemented in January, 1994. The state has applied for a three year extension of the waiver, pursuant to 42 USC § 1396n.
39. TennCare has two major features which distinguish it from standard Medicaid programs. First, each TennCare beneficiary is assigned to one of 11 managed care organizations (MCO). The MCO is paid a fixed amount per beneficiary, referred to as a capitation payment, to provide covered medical services as medically necessary. (Nursing

facilities and other long term care services are still reimbursed directly by the state.) The MCO is at financial risk, meaning that it must absorb any losses which result if it cannot keep its beneficiaries' medical costs within the total amount of TennCare capitation revenues. Conversely, to the extent that the managed care company reduces costs below the level of its TennCare receipts, it gets to keep the difference (within certain limits) as profit. The MCO is responsible for affirmatively managing the care of its enrollees. The MCOs have assigned each of their enrollees to primary care providers (PCP) who act as "gatekeepers" and control their access to specialists or other medical care.
40. The other major change effected by the conversion to TennCare was a significant expansion in eligibility. The TennCare waiver allows Tennessee to cover, in addition to those who are eligible under federal Medicaid rules, state residents who lack access to group health insurance. The waiver also authorizes coverage for those who are deemed commercially "uninsurable" because they have preexisting health conditions which make commercial insurers unwilling to sell them coverage. These so-called "waiver eligibles" receive the same medical benefits as those who are Medicaid eligible. If they have incomes below the federal poverty level, their coverage is free. Otherwise, they pay premiums, co-payments and deductibles on a sliding scale adjusted for ability to pay. Currently, a total of more than 1.2 million Tennesseans, approximately half of whom are under the age of 21, are enrolled in TennCare. The program's total budget is more than $3.5 billion, of which the federal government provides approximately two thirds.
41. Since 1967, the Medicaid Act has included a mandate that states provide to all children covered by their Medicaid programs early and periodic screening, diagnosis and treatment (EPSDT) services. In 1989, the law was expanded to require that the states provide to each covered child any recognized medical service which he needs, regardless of whether the needed service is otherwise covered by the state. EPSDT thus stands as a broad directive that states which accept federal Medicaid subsidies must actively screen eligible children for medical conditions on an ongoing basis, and must provide comprehensive health services to treat any conditions detected.
The TennCare Partners Program -
42. In July, 1996, Tennessee implemented a major amendment to the TennCare waiver. The federally approved revision established within TennCare a new managed care program for behavioral health services, i.e., services for the treatment of mental illness and chemical addiction. The new initiative is known as the TennCare Partners Program. The program folded into the TennCare budget almost all state and federal block grant funding for behavioral health services in Tennessee. These funds, combined with TennCare's existing budget for behavioral health services, were disbursed to a new set of behavioral health organizations (BHO). TennCare's managed care organizations ceased to have any responsibility for behavioral health care, and the BHOs assumed responsibility for providing such services to TennCare's entire enrollment.
43. The Partners Program designates as a priority population for service approximately 6,000 TennCare children who are deemed to be severely emotionally disturbed (SED).

The program originally paid BHOs a single capitation rate for all TennCare children, regardless of whether they were members of the priority population classified as SED. When the Partners Program began, information distributed to beneficiaries and the public indicated that the scope of the benefits package available to each child turned on the SED designation. According to such information, non-SED children were only entitled to inpatient psychiatric hospitalization and a limited number of outpatient mental health visits. SED children, on the other hand, were eligible for an "enhanced benefits package" of mental health services as needed.
44. The definition of SED encompasses only children who score up to fifty on the "Global Assessment Functioning" (GAF) test. GAF scores fluctuate with treatment. Scoring above fifty means that a child does not fall into the SED population, and therefore is not entitled to the "enhanced benefits" although such services may be necessary to correct or ameliorate that child's illness and condition. The definition for SED excluded 55% of the children served by DMHMR prior to implementation of the Partners Program. Because BHOs received no more money for serving SED children, but were required to provide them with enhanced services, there were strong incentives for the BHOs and their contractors to delay the GAF testing required for a child to receive the SED designation.
45. The waiver amendment approved by the Health Care Financing Administration, and the contracts signed by the BHOs, contained stock language that the behavioral health plans were to provide children all services required by the federal EPSDT mandate. But such assurances were inconsistent with the program's emphasis, in communications with BHOs and the public, on children's classification as SED or non-SED. In practice, the BHOs and providers have treated the designation as determinative of a child's access to services. As a result, many medically necessary behavioral health services have been unavailable to children who did not meet the GAF score criteria for SED designation.
46. In mid-1997, after HCFA had criticized the Partners Program's failure to adequately serve SED children, TennCare restructured the capitation payments for BHOs, so that SED enrollees now earn the BHOs markedly higher capitation payments than do nonSED children. This reimbursement differential has reinforced the BHOs' perception that they need not provide the full array of mental health services which a severely disturbed child needs, unless the child has the required GAF score. For example, as recently as December 17, 1997, the Clinical Director for Premier Behavioral Health (Premier), the larger of the two TennCare BHOs, testified that only children whose GAF scores qualify them as SED have access to those medically necessary services which are covered as part of the "enhanced benefits package"; this individual directs the Premier personnel who manage care for TennCare children.
EPSDT Services for Children in State Custody -
47. There are about 12,000 children in state custody at any given time. These include children who have been abused, are dependent and neglected, are orphaned or who have been voluntarily placed by their parents in custody because the parents believe that they

cannot meet the children's needs. Only a small percentage of the children in custody are not covered by TennCare due to their confinement in correctional facilities for delinquent youth, or for other technical reasons.
48. In July, 1996, coincident with the implementation of the Partners Program, Tennessee created the Department of Children's Services as the agency responsible for all children committed to state custody. This department was established in order to consolidate a variety of services and programs which had previously been divided among several different agencies.
49. TennCare allocates to DCS $129 million earmarked for EPSDT services for children who are in state custody, or at risk of coming into custody. Taking advantage of the broad EPSDT definition of covered services in order to obtain federal Medicaid funding, DCS purports to use this allocation to pay for a range of "therapeutic interventions" which complement the health and behavioral health services covered by the managed care plans. The TennCare allocation, two thirds of which is drawn from federal Medicaid appropriations, represents the largest single source of revenues in the new department's budget. DCS administers the EPSDT funds outside of the TennCare MCO/BHO care delivery system. The department also purports to coordinates those therapeutic services with the various educational, social and custodial services needed by children entrusted to its care.
50. TennCare's MCOs are supposed to meet these children's medical/surgical needs. At the same time, DCS shares responsibility with the TennCare BHOs for the funding and management of behavioral health services for children in custody. The effective sharing of these duties is important, because over half of all children in state custody have a mental health diagnosis, and nearly a third are SED. In fact, slightly over half of all SED children in Tennessee are in state custody.
51. The responsibilities of DCS and the BHOs are divided along the boundary separating SED and non-SED children. The BHOs must provide the basic benefits package to all children in custody, whether SED or not. But the behavioral health plans' obligation to provide enhanced services for severely disturbed children ends when those children enter state custody, at which point the enhanced benefits become the responsibility of DCS.
52. This design feature of the Partners Program creates a strong inducement for a BHO to steer children into custody. The bifurcation of responsibility also leads the BHOs to take a cribbed view of their obligations to children in custody. The result has been that the plans' approach to case management has consisted primarily of pressing for prompt discharge from psychiatric hospital, with little attention to aftercare services, which they see as the responsibility of the custodial agency. There has been little coordination between DCS and the behavioral health care plans. For months following establishment of the Partners Program and the new Department of Children's Services, written protocols were lacking which would clearly delineate responsibilities and make possible the coordination of care between the BHOs and DCS.

Related Health Services for Children in State Custody -
53. Independently of its participation in Medicaid, Tennessee accepts federal funds under the Adoption Assistance Act. Attached to receipt of those funds are a number of federal statutory conditions relating to the state's administration of services for children in custody, or at risk of coming into custody. Most of those conditions are not at issue in this case; they govern the provision of social and custodial services to such children, or are designed to achieve permanent placements for them.
54. At issue in these proceedings is the Adoption Assistance Act's requirement of
provision of necessary health services for children in custody, or at risk of coming into state custody. The Act also requires that health services for a child in custody, or at risk of entering custody, be coordinated with the other educational, social and custodial services which the child needs.
B. Injury to the Named Plaintiffs
The A. Family
55. The A.s are a family who live in rural Sumner County, Tennessee. Ms. A is a registered nurse, and Mr. A is a respiratory therapist. They have almost thirty years experience apiece in their respective professions. They have adopted two children with cerebral palsy, Meagan A. and Erica A., and provided foster care for four other children with severe cerebral palsy, Joe E., Joshua M., John B. and Carrie G. All of the children needed wheelchair repairs or replacements, but systemic barriers to care for children on TennCare or in state custody delayed their receipt of such equipment, in some instances for more than two years. Throughout that period, Mr. and Ms. A. phoned the children's TennCare MCO at least once a month, and the MCO's supplier of durable medical equipment (ME) at least every two weeks.
56. They called every one they knew to call to get their children what they needed, including the TennCare Consumer Advocacy Line, the Tennessee Attorney General's office, a television station, and an attorney. At one point they used social connections to bring their children's plight to the personal attention of the defendant Commissioner of Children's Services. Nothing worked. In October, 1996, an investigative reporter on consumer issues did a story on their case that aired on the television nightly news, and their attorney contacted the state's counsel. It was only after those interventions that some of the needed adaptations were made. Only in the last few months have these children's longstanding medical needs been met.
57. It is a testament to the defendants' refusal or inability to comply with the laws cited herein that parents with the professional health backgrounds, persistence and social connections of Mr. and Ms. A. could not access prescribed medical services which their children indisputably needed. Their children's suffering occurred in spite of the state's awareness of their problems, and the fact that, since the children involved were in state

custody or were receiving adoption assistance, both TennCare and DCS had independent responsibilities to assure delivery of the needed care.
58. One of the children for whom Mr. and Ms. A. waged their struggle was their foster son, Joe E. Joe was six years old at the time of his death on February 9, 1997. He was blind, with hydrocephalus and cerebral palsy. He could not walk or talk and required suctioning and breathing treatments frequently. He lived with his foster parents from shortly after his first birthday until his death.
59. Joe was measured for a wheelchair in December of 1994. The chair did not arrive until July of 1995. The wheelchair was so unstable it actually tipped over when Joe got into it. It took half a year of efforts by Mr. and Ms. A just to get the ME provider to measure him for the proper adaptations on the chair. After that, it was another two months of calling to get the supplier to come back to make the actual modifications, whereupon they took the chair away for another two months. When the chair was returned the seat was only attached with Velcro. The seat belt was strapped to the frame of the chair. If the seat slid forward, Joe would suffer internal injury as a result of the insecurity of the seat and the positioning of the belt. The foot plate was improperly positioned so his feet could be trapped and badly bruised.
60. For the better part of two years, Joe was forced to spend the entire school day in his car seat. Joe had scoliosis, and the car seat, which was not designed to replace a wheelchair for long term use, lacked the proper support for his back. As a result, he was in great discomfort for much of the day. On October 31, 1996, his leg was broken on the bus ride home, due to the lack of a properly adapted wheelchair. It was only after that injury, and following the television news report exposing the MCO's neglect, that Joe's MCO finally provided him a wheelchair with appropriate adaptations.
John B.
61. John B. is a ten year old with severe cerebral palsy, blindness, arthritis, two dislocated hips, kyphosis and a severe seizure disorder. He cannot walk or talk and must be given liquids through a feeding tube. He weighs about sixty pounds. He has been in foster care since he was eighteen months old.
62. John was measured for adaptations to his wheelchair in October of 1995. There was a discussion at that time of replacing the chair because it was so unsteady that he could not ride on the school bus safely. However, it took another year of persistent calls just to obtain adaptations to the existing chair. The supplier finally acknowledged that, even with the adaptations, the chair was so unstable that it was not safe. Nonetheless, it took three more months to obtain TennCare approval of a replacement. He was forced to rely on his old unsafe wheelchair until July, 1997.
Carrie G.

63. Carrie G. is a eleven year old girl with severe cerebral palsy. She has been in foster care since her father beat her into a coma when she was seven weeks old. She was placed with Mr. and Ms. A. in September of 1993.
64. Carrie was measured for a wheelchair in October 1995. The chair was delivered in April of 1996. However, several critical adaptations needed to be made. For example, the back of her chair needed to be fixed to compensate for her scoliosis.
65. Despite the fact that no one disputed her needs, none of the required adjustments were made until October 18, 1996. Those changes still left major modifications to be done, but they have never been fully completed. Carrie is still waiting for her chair to meet all of her needs.
Joshua M.
66. Joshua M. is a three year old boy with severe cerebral palsy. He has been with the A.s since he was three weeks old. Joshua's doctor ordered a wheelchair for him in May 1996. The ME supplier took his measurements and promised to deliver the chair to Joshua in time for the start of school in August. But the wheelchair never arrived, forcing Joshua to spend his school days in a car seat. Joshua also has scoliosis so that sitting in a car seat all day denied him the support necessary to keep his back straight. His disabilities made it impossible for him to change positions so that he could relieve his discomfort and pain. Joshua finally received the wheelchair in October, 1996, after the interventions described in paragraphs 100-101, above.
Meagan A.
67. Meagan A. is a ten year old girl with moderately severe cerebral palsy. She is in regular fourth grade at her local elementary school. She cannot walk, but is outgoing and bright. She needed a new wheelchair and was measured for one in July, 1994. Delivery was promised by September, but did not occur until more than a year later, on December 22, 1995. However, it was missing several adaptations which were critical to her safety. There was not enough support to keep her upright and she lacked ability to hold herself up. Meagan was humiliated at school when the inadequacies of her chair meant she would fall over in front of her classmates. The ME provider and MCO were notified of the safety hazards immediately after the chair's delivery, but refused to make the necessary adaptations until October, 1996, after the interventions described in paragraphs 100-101, above.
Erica A.
68. Erica A. is an eight year old girl with severe cerebral palsy. She cannot walk or talk, is nourished through a feeding tube and suffers from a seizure disorder. Erica was first placed with her parents when she was five months old. Erica had been a "boarder baby" at the public hospital in Nashville, where she was abandoned by her mother, who was addicted to cocaine. Mr. and Ms. A have since adopted Erica.

69. Erica needed a new wheelchair and was measured on October 26, 1995. The chair was not delivered until April 22, 1996, and, even then, it lacked the adaptations necessary to keep her safe and comfortable. There was no support to keep her upright, and the shoulder straps continuously cut into the side of her neck. Because the chair did not properly fit Erica, she almost choked herself when her head got hung in the headrest during the period when she was waiting for the proper adaptations. It was not until after the October, 1996, television news report on the family's plight that the needed modifications were made.
Dustin P.
70. Dustin P. is an eleven year old boy who is severely emotionally disturbed. He has a little brother who is nine and a little sister who is seven. His brother suffers from mental illness and leukemia. His sister suffers from achondroplasia (dwarfism). Dustin began living with his grandparents when he was eight years old. Dustin's life before then was chaotic, and he is believed to have been severely sexually abused.
71. Dustin was first admitted to a psychiatric hospital when he was eight. Though only a small child, he displayed repeated, chillingly violent aggression, including sexual aggression, against his siblings.
72. Beginning in April, 1996, the clinicians who worked with Dustin consistently recommended the same treatment: residential care. When Dustin was first referred for such treatment, his grandmother, Linda C., contacted a residential treatment facility, Youth Villages, which participated in the provider network of Dustin's TennCare MCO. Facility staff explained to her that there was a quota on the number of TennCare children whom they could serve. They informed her that, despite the urgency of his need, Dustin would have to go onto a waiting list, and only when his name approached the top of the list would Youth Villages start the process to see if TennCare would pay for the services.
73. In September 1996, after waiting vainly for five months to receive residential treatment as prescribed, Dustin again became a danger to himself and his siblings and was readmitted to a psychiatric hospital on an emergency basis. By this time, responsibility for his TennCare mental health coverage had shifted from the MCO to a BHO. The BHO, Premier Behavioral Health, agreed to cover only five days of hospitalization. Hospital staff again informed the family that Dustin could not safely return home, and should be discharged to a residential care facility. The hospital staff communicated their finding to the BHO and to a residential care provider, Camelot Care Centers, Inc. The provider instructed the family to drive Dustin directly to their facility in Kingston, TN. The family and hospital staff believed Dustin would be admitted immediately, and he was discharged from the hospital.
74. That afternoon Dustin's grandmother drove him nearly 150 miles to Camelot. When they arrived, the Camelot staff informed the family that they had not received permission from Dustin's TennCare BHO to admit him for treatment. They explained that getting

approval from TennCare could be a long process. Although she feared for the lives of all three of her grandchildren, Linda C. had no choice but to take Dustin home.
75. He stayed in his grandparents home for twenty-four days before Premier decided to deny the residential treatment which had been requested on October 5, 1996. His brother received intensive in-home counseling from Camelot for his severe emotional problems, but Linda C. was told that Dustin could not receive similar services because he was on a wait list for TennCare coverage of other services, and because TennCare will not pay for counseling of this sort for more than one family member. As a result of these policies, Dustin received neither residential care nor counseling services in his own home.
76. On November 19, 1996, despite the recommendations of every clinician who had actually treated Dustin, the TennCare Partners Program internal review unit upheld Premier's denial of residential treatment.
77. In December, 1996, his suicidal and homicidal behaviors becoming more frequent, Dustin was admitted to another Nashville psychiatric hospital. After a short stay, he was placed in a partial hospitalization program. Later that month, some eight months after residential treatment was first prescribed for him, Dustin finally reached the top of the waiting list at the Youth Villages facility in Memphis, Tennessee. His mother, apprehensive about sending the ten year old boy so far from his family, hesitated. The slot was lost, and he went back to the bottom of the waiting list . The opportunity had been illusory in any event, for on January 29, 1997, the family received notice that Premier had once again refused coverage for residential treatment.
78. Throughout their long, futile battle to obtain residential treatment for him, Dustin's grandparents were told repeatedly by DCS staff, Dustin's clinicians, and others familiar with the TennCare system that the only way for the child to get the mental health care that he needed was for the family to place him in state custody. Concerned about his more severe symptoms and the safety of the other children, and convinced by Premier's latest refusal of care that he would never receive treatment otherwise, the family finally placed Dustin in state custody on January 30, 1997.
79. Ironically, that same day, his family finally received approval from the BHO for Dustin's residential placement at Youth Villages. However, since TennCare relieves a BHO of responsibility for such care as soon as a child enters state custody, the BHO's belated approval was moot, and Dustin again missed the opportunity for admission to Youth Villages. Instead, DCS put him in a Nashville facility, called Crockett Academy, which is operated by DMHMR. Crockett Academy is not a residential treatment facility of the type prescribed for Dustin, and he was, in effect, warehoused there. Dustin waited for the DCS bureaucratic process to arrange for his placement at Youth Villages, as recommended nearly a year before. While awaiting that placement, a bed became available at a residential sexual offender program where Dustin would be the youngest child. DCS made the decision, ignoring the only clinician involved with the case, to place Dustin there. His mother's and grandmother's fears were ignored.

80. First, Dustin's TennCare MCO, and then his BHO, ignored his individual medical needs and denied him medically necessary service for ten months for bureaucratic and fiscal reasons. DCS then ignored those same individual needs for similar reasons.
81. Dustin's family, like many others throughout the state, were forced to choose between retaining custody of their child or obtaining needed treatment. When defendants accept Federal Medicaid and Adoption Assistance Act funds they promise not to predicate the receipt of these services on any criteria except the child's individual needs.
Bayli S.
82. Bayli S., who is eleven years old, has severe scoliosis with contractures of all major joints and limited mobility. She is blind, unable to communicate, and requires constant care to meet all of her needs. Bayli's health has been deteriorating for some time with increasing inability to swallow and handle secretions so that she requires constant observation and suctioning to maintain her airway, sometimes as frequently as every fifteen minutes. She is medically fragile with suppressed immunities so that she has constant upper respiratory and urinary tract infections. She has three to five seizures per day. Unless she is kept well hydrated, her secretion becomes thick and increases congestion. She receives no fluid or food by mouth and is dependant on formula and pureed food, which she ingests through a gastrostomy tube. Feedings must be small and frequent, and must be monitored carefully to prevent aspiration, which could easily prove fatal.
83. During this time, Bayli's father worked two jobs in order to support the family and Bayli's mother stayed at home in order to provide her continuous care. Given Bayli's medical fragility and the care she needs, someone had to be listening constantly to make sure that Bayli was safe and not aspirating.
84. Bayli's physician prescribed extensive home nursing services for her, which were not only medically necessary, but urgently so. However, her TennCare MCO, HealthNet, refused to provide the services, simply stating that it would not cover more than 28 hours of such care per week, without regard to a child's need. Lacking such care, Bayli had repeated emergency hospitalizations due to life-threatening respiratory distress. When Bayli's mother was in the hospital delivering her third child, the MCO provided a temporary increase in home nursing hours. But it quickly cut the hours back, without notice or an opportunity to be heard, despite the fact that Bayli's medical needs had not changed. It was suggested to Bayli's parents that they place her in a state institution, where the MCO would no longer be responsible for her care.
85. The family contacted counsel. Finally, the state responded to legal pressure and, in recognition of the medical necessity of the care which the MCO had refused to provide, started covering the prescribed amount of home nursing care itself. Rather than enforce the MCO's EPSDT obligations, however, state officials are paying directly for the services through a special Medicaid-funded program, known as the Model Waiver. The

waiver, which operates outside of TennCare, is available to only a fraction of the children who need care.
86. Upon information and belief, there are substantial numbers of other medically fragile TennCare children across the state who, like Bayli, urgently need home nursing care. Because of the defendants' failure to enforce the EPSDT mandate, these children continue to go without such care as Bayli did, at risk to their lives. And Bayli herself continues to be at risk of being denied medically necessary care, based on arbitrary, financially motivated decisions of the MCO, so long as there continues to be systemic noncompliance with EPSDT.
87. Bayli's problems obtaining EPSDT-covered services are not, unfortunately, limited to home nursing care, and even apparently stable treatment regimens can quickly fall prey to the whim and caprice of her MCO. The managed care entity to which she had been assigned was recently taken over by another company, Phoenix Health care. On January 22, 1998, Bayli was rushed to Vanderbilt Hospital, 90 miles from her home, with a lifethreatening respiratory infection and a fever of 105°. On January 23, 1998, Phoenix refused to cover the second phase of her treatment with special injectable antibiotic prescribed by her physician to combat the infection. The MCO conceded that the drug was appropriate, but invoked an arbitrary corporate policy providing that the drug would only be covered if Bayli - - a blind, critically ill little girl -- could self-inject it. When Bayli's mother pointed out that the home health nurse could administer the antibiotic, Phoenix still refused. Mrs. W. received no notice of the reasons for the denial, or of her right to appeal on Bayli's behalf.
88. On January 28, 1998, Mrs. W. took a urine sample from Bayli to the hospital in Lawrenceburg, Tennessee, to have a urinalysis and culture ordered by Bayli's physician to diagnose a suspected urinary infection. When Mrs. W. arrived at the hospital, she was informed that the hospital would not provide the prescribed lab service, because Phoenix had a record of nonpayment. The lab work would only be done if Mrs. W. agreed to pay the bill, which would be approximately $300, an amount which she does not have. Mrs. W. received no notice of her right to appeal the denial on Bayli's behalf, or to receive the care without regard to her ability to pay.
89. On January 30, 1998, Bayli's medical supplier called Mrs. W. and told her that, effective February 1, the supplier was cutting Bayli's already insufficient quota of incontinence supplies and eliminating altogether the supplies needed to maintain the sterility of Bayli's feeding tube. This change was not based on any apparent consideration of Bayli's medical needs, but on an arbitrary directive from the MCO. There was, of course, no notice of Bayli's right to challenge the denial.
James D.
90. James D. is twelve years old. He has been on Tennessee Medicaid/TennCare all of his life. When he was eighteen months old, his mother died from a cocaine overdose. He was left with the body for three days before being found. Thereafter, he was shuffled between

relatives until he was about three, when his father, who is addicted to alcohol and cocaine, took custody of him.
91. When James was six, the Department of Human Services (DHS) [the predecessor agency of the Department of Children's Services] started receiving reports that James was being seen around his Nashville neighborhood begging for food and was unsupervised for long periods of time. At the same time, neighbors reported that James was frequently locked out of the house, and that he told of being beaten by his father when his father was drunk. Similar reports were made to the state over the next two years. On one occasion, he was whipped across the face with a belt and had beer bottles thrown at him. He continued to go hungry and occasionally homeless. Each time DHS investigated the complaints, it was clear that James had experienced serious trauma and neglect and was at risk of going into state custody. It was also known that he was on Medicaid and therefore should be receiving regular EPSDT screenings. Yet the state failed to arrange a screening to comprehensively assess the child's medical and developmental needs.
92. When James was eight years old, he was placed with his paternal aunt. At that point, DHS promised the aunt to pay for before and after school care for him, but failed to do so. The aunt relied on James's father to provide such care. While with his aunt, James continued to receive severe beatings. At age nine, a school counselor noted that James exhibited symptoms of being sexually abused. As is common for victims of such abuse, he became sexually aggressive himself, and attempted to sexually abuse one of his classmates. Finally, after finding severe linear bruises on James's back in September 1995, DHS picked James up and took him into their legal custody. James was ten years old at that time. When taken into DHS custody, James sat crying in the back of a police car with his caseworker, and asked if she would find him a mother. Since he had never had one before, he thought that was what he needed.
93. The unanimous recommendation in the custodial agency's plan for James was to find him a therapeutic foster family, and one without other children whom he might endanger. A week after placement, James tried to kill himself at school. After a few days of being moved among different temporary foster care homes, James was placed in the M.'s home, where there were five other young children. The foster mother, who was trying to address James's severe needs as well as care for the other children in her home, called after a couple of months to tell DHS that she could not handle him anymore. DHS explained to her that they had no other place to put him, but that they might find her some respite care. DHS never arranged the respite care, and Ms. M. found herself increasingly overwhelmed by the seriousness of James' problems.
94. In April of 1996, he was admitted to Vanderbilt Children's Psychiatric Hospital. When he was admitted to the facility, he had threatened to physically harm a little girl next door and had been threatening suicide for several months. James was hearing voices. He was also having visual hallucinations in which he saw a man speaking to him in the middle of the night, telling him to kill other people. After James had been at Vanderbilt for a week, he was discharged with a diagnosis of psychosis, with borderline mental

retardation. There was again a consensus that he needed placement in a therapeutic foster care setting without other children.
95. Despite the unanimity of contrary professional opinion, DHS again asked the M. family if James could return there, but they declined. On April 16, 1996 DCS contracted for placement of James in Cumberland House, a Level IV residential program for children operated by DMHMR. Less than a month after he was placed there, he was reported to have acted out sexually against other children in the facility, yet he received no treatment focused on the effects of the sexual abuse he had himself experienced.
96. By early July, James was ready to be discharged from Cumberland House. (The Child
Protective functions of the Department of Human Services merged into the Department of Children's Services on July 1, but it had no practical impact on James or his treatment.) His doctor again prescribed therapeutic foster care, but none was available. At that time the state contracted with three different agencies to provide therapeutic foster care for children. Each of them has a waiting list that is so long that James could have literally waited years before being placed. (DCS indicated that as of July 1997, he remained on the waiting list because a home had still not been found for him through these agencies.) From early July until mid-September DCS paid over $300 a day for James to be warehoused at Cumberland House while their contractor's waiting list for foster care remained full.
97. In September, as a result of the involvement of counsel, the Juvenile Court in Nashville ordered DCS to find a home for James. At that point, the agency proposed to place him back in the aunt's home where he had previously been abused. Only the threat of contempt of court against DCS and the compassion of a former schoolteacher of James' averted that placement. His teacher (who had formerly been a therapeutic foster care parent) learned what was about to happen and offered to provide foster care herself. Under pressure from the Juvenile Court, DCS paid for James' therapeutic foster care without making him wait to be placed through one of the agency's three contractors. He started receiving therapeutic foster care two days shy of a full year after such care was first prescribed for him.
98. Upon information and belief, the defendants certify to federal Medicaid officials that the TennCare funds allocated to DCS are used to provide EPSDT services to children in the agency's custody, or at risk of entering state custody, in accordance with federal law. In fact, during the five years since he was first identified as at risk of entering custody, and even while he was in the physical custody of the state, he did not receive the screenings which should have been provided. His severe emotional needs therefore went undetected until after he had injured other children and attempted to kill himself. Then, once therapeutic foster care was unanimously identified as the treatment James' mental health needs required, it was not provided for nearly a year. During that time, James first experienced official neglect, then more than two months of inappropriate institutionalization.

99. As a TennCare child and ward of the Department of Children's Services, James continues to be utterly dependent on the defendants for the medical care required to treat his serious, complex emotional disorders. Like many other children, he remains at risk in a system which rations therapeutic services on the basis of contractual quotas, rather than providing medical care as necessary to meet children's individualized needs.
Elsie H.
100. Elsie H. was born February 22, 1986. Her mother is severely mentally ill and Elsie's first years, when she lived in Nashville, were chaotic and abusive. Elsie experienced sexual abuse as a pre-schooler, and had been diagnosed as both mentally ill and mentally retarded by the time she entered first grade. She entered state custody at age 6, as a dependent and neglected child. She became a difficult "case" in a harried social worker's caseload, shuffled by the Department of Human Services among a number of different hospital and residential settings over the ensuing years. Elsie was an extremely unstable little girl, given to destructive and violent outbursts. In reaction to her own sexual victimization, she acted out sexually with other children and adults.
101. In 1993, after years of abuse and neglect, Elsie had her first experience of nurturing, unconditional love. She was placed in the Chattanooga home of Mr. and Ms. K., who were trained as therapeutic foster parents. The couple had the support of regular ongoing mental health care for Elsie, and backup from a local 24-hour mental health intervention team to assist during the little girl's frequent psychiatric crises. With this professional psychiatric support, Mr. and Ms. K. devoted themselves to Elsie unstintingly.
102. And Elsie responded, dramatically. Over the thirty month period during which she lived with the K family, Elsie blossomed. She was still severely disturbed and emotionally volatile. But in a loving environment, it soon became evident that much of her developmental delay had been a function of her environment, and she began to develop intellectually. She was no longer only the self-hating, enraged and violent little "monster" previously described by one witness. Elsie became a child who was, as the Juvenile Court subsequently found, "bright, sweet... [with] the ability and possibility to [become] stabilized enough to ... live successfully in a family setting". 103. Throughout that period, the ongoing intensive psychiatric services essential to Elsie's progress were reimbursed by the state custodial agency, outside of Elsie's TennCare MCO. Funding came from TennCare funds earmarked by Tennessee for meeting the special needs of children in state custody. Those funds were ostensibly budgeted for the purchase of unique medical and behavioral health services. But oversight of their expenditure was ineffective, and little was done to define TennCare MCOs' EPSDT obligations to children in state custody, much less hold the plans accountable for meeting those obligations. As a result, the special pool of TennCare funds was often used to buy for a second time services which had already been purchased once from the MCOs, but which they had not provided.
104. For these reasons, financial pressures on the special TennCare fund mounted. The state responded by rationing the children's care, rather than rationalizing the arrangements

for their treatment. In October, 1995, the custodial agency came up with a new contract for purchasing the TennCare-funded "therapeutic intervention" services needed by children in its care. The former contractor which served the Chattanooga area was no longer willing to provide Elsie the ongoing psychiatric care she needed, and those services were withdrawn.
105. The reduction of mental health care was predictably disastrous. Mr. and Ms. K. were unable to manage Elsie's mental illness without professional psychiatric support, and her mental status deteriorated almost immediately. She became destructive, defecated in a neighbor's front yard, and the police were called. Though only a little girl, she attacked the officer with such violence that she was handcuffed and taken into police custody. From there she was placed in a locked unit of a psychiatric hospital.
106. This initial separation from the K.'s was the beginning of a downward spiral. Over a six month period, she required emergency psychiatric hospitalization on three separate occasions. While in the hospital, she was the financial responsibility of the TennCare managed care plan, but primary responsibility shifted to the custodial agency when she left the hospital. Without clear delineation of responsibility, and lacking effective state oversight of the MCOs, these arrangements fairly guaranteed fragmentation of children's care. The TennCare plans and state agencies shoved children back and forth in a constant effort to avoid costs, rather than meet medical needs.
107. That is precisely what happened to Elsie. Each new outburst of violence towards herself or others resulted in another emergency psychiatric hospitalization. The MCO's focus was on discharging her at the earliest possible date, without regard to her ongoing mental health needs. During each hospitalization, she would be medicated to reduce her most violent behaviors, but not really stabilize her severe mental illness, then discharged back to the K. household. As the Juvenile Court for Davidson County later found, "... From October, 1995 when she was first hospitalized until March, the state failed to provide Elsie with planned, coordinated or adequate treatment for her serious mental health needs..." Her records were replete with recommendations that she receive the comprehensive and consistent mental health services needed to enable her to live with Mr. and Ms. K., for it was evident that they were the center of her life, her one source of love and stability.
108. Those services were not provided, however. The state neither required Elsie's TennCare plan to provide the mental health rehabilitative services needed, nor was it willing to spend for that purpose any of the EPSDT funding set aside for children in state custody. Instead, the custodial agency just kept moving her from one placement to another, and her ties to Mr. and Ms. K. became more and more attenuated. The favorite toys and clothing, brought to her by Ms. K. during a visit, were lost almost immediately when the state moved Elsie yet again. It became more and more difficult for Ms. K. to visit. Finally, in March, the state placed Elsie in a residential treatment program in Memphis, despite the fact that both state agency staff and the treatment program's administrator warned that the program was unequipped to meet her needs.

109. In Memphis, 400 miles from the K. household, Elsie was beyond any possibility of contact with the only people she loved, and who loved her. Her nightmarish hallucinations intensified, and she became fixated on trying to destroy herself or others. The facility locked her in a room and assigned staff to guard her, one-on-one, around the clock. Meanwhile, the program's administrator tried frantically to arrange a transfer to a psychiatric hospital in Chattanooga, so that Elsie could eventually return to her therapeutic foster home. Throughout this grave psychiatric crisis, her TennCare plan provided no mental health services.
110. The Juvenile Court for Davidson County, which still had jurisdiction over Elsie, became aware of the crisis and held a series of emergency hearings in late May, 1996. The hearings were attended by representatives from the custodial agency, the state Department of Mental Health and Mental Retardation and the state diagnostic and care planning team annexed to the court. Testimony established the unanimity of professional opinion regarding the severity of Elsie's emotional disorder, her acute need for treatment, and the crucial importance of maintaining and supporting the relationship between Elsie and the K.'s. But none of the various state agencies knew how to implement the agreed upon treatment plan. The officials were unaware of EPSDT, by that name or any other. They had not asked Elsie's TennCare plan to meet her treatment needs, because, they said, they had learned from experience with other children that it would do no good: the plans simply refused to provide care, and the state would not compel them to do otherwise.
111. As for using those EPSDT funds which were allocated for the special needs of children in state custody, they could only be used for children with "unique needs". Elsie's needs were not unique, according to the custodial agency. That was why she had been assigned, like most other children in state custody with severe behavioral needs, to one of several state contractors which purported to provide a continuum of care spanning different types of mental illness. As Elsie's experience demonstrated, these contract agencies often amount to "one-size-fits-all" default placements in lieu of the individually tailored care which children actually need, and which federal and state law prescribe.
112. As a result of the Juvenile Court's persistent intervention and the involvement of counsel, Elsie was finally moved to a psychiatric hospital in Chattanooga, where she has been hospitalized on a locked unit since May, 1996, and is receiving regular visits from Ms. K. But Elsie has still not recovered to the point where she was before the withdrawal of the community psychiatric services which had enabled her to function in the K. home, and it is doubtful that she ever will. Ironically, the financially motivated termination of those services proved to be not only cruelly destructive for this little girl, but a false economy, as well. Elsie's hospitalization alone has far exceeded in cost whatever was initially saved by refusing to meet her medical needs. It is unclear when she will ever be well enough to return to the home of those who love her, and whom she so loves.
113. Elsie's treatment has been the result of systemic state failings which impair the ability of all children in state custody to receive the medical and mental health services which they need. Elsie's neglect did not occur as a result of individual incompetence or

indifference. Instead the organization of medical and mental health services for children in custody is so dysfunctional that even competent, well-informed state officials often find themselves unable to obtain medically necessary care for the children in their charge -- even though such care has already been paid for by TennCare.
114. Formal documents in Elsie's Juvenile Court record attest to this larger reality. In an order dated May 23, 1996, the Juvenile Court contrasted the unanimity of professional opinion regarding the mental health services which Elsie needed, with the persistent failure of the state to meet those needs. The court summarized her treatment as "neglectful" and "shocking" and ordered the state to provide and pay for the competent psychiatric management of her care, without regard to the "bureaucratic rules and policies" which had confounded previous attempts to meet her need. The custodial agency's response was telling: in a remarkably candid motion to reconsider, the agency stated flatly that, "The Department has no ability to comply with the Court's Order."[emphasis in the original]
Julian C.
115. Julian C. is a four year old boy born with a diaphragmatic hernia. As a result of this
condition his lungs did not develop properly. During a medical procedure to correct his inability to produce oxygen, Julian suffered a stroke, further limiting his ability to swallow, speak, use his right arm and right leg, and delaying his cognitive development. When he was less than a year old he was diagnosed with a life-threatening heart condition. He cannot walk and eats only a small portion of his meals by mouth, receiving most of his nutrition through a gastrointestinal tube.
116. Julian's oxygen level has been unpredictable since birth. During the first year of life, his TennCare MCO refused to provide medially necessary home nursing care prescribed by Julian's doctors. As a result, he was constantly in and out of the hospital because his oxygen level would drop and his mother could not stabilize him. During these frequent spells, sometimes caused by agitation, sometimes caused by nothing at all, Julian would become breathless and clammy, would turn blue and appear to be strangling. It required Julian's participation in other proceedings in this court [see Daniels v. Wadley, No. 79CV-3107, Motion To Modify Second Consent Decree and for Further Relief (R. 323), filed December, 1994] and a state administrative law judge's ruling that the MCO's denial violated Julian's right to EPSDT services, in order to obtain the home nursing services he required. Only then did frequent hospitalizations abate.
117. Julian is an extremely happy and personable toddler. He speaks a few words and knows around twenty words in sign language. He seems to understand much more than he can verbalize. His doctors prescribed speech therapy twice a month, occupational therapy four times a month, and physical therapy four times a month in order meet Julian's medical needs and enable him to reach his best possible functional level. He received these TennCare services until shortly after his third birthday.

118. On January 21, 1997, the Nashville school system convened his first multidisciplinary team (M-Team) meeting to formulate an individual educational plan to address his special education needs. At that time school administrators explained to his mother that the schools are only required under federal and state education laws to provide Julian such occupational and physical therapy services as are minimally needed to enable him to derive "some" educational benefit from school. [This special education standard is, very different from, and much lower than the medical needs standard set by EPSDT, specifically the rehabilitation definition at 42 C.F.R. 440.130(d).] School officials offered Julian two speech therapy visits per month during an initial six week period of educational evaluation, and one session per month thereafter. They offered a physical therapy and occupational therapy evaluation during the first six weeks to determine the exact need for these services.
119. Three days later, when Julian was supposed to receive physical therapy, Ms. C. received a call from Julian's therapist informing her that his therapy had been discontinued by the TennCare MCO, effective that day, because Julian would now be receiving services from the school system. Ms. C., who was aware because of her earlier legal struggles to obtain care for Julian that this was illegal, protested the MCO's failure to afford Julian any prior notice or opportunity to appeal the termination of treatment. When she referred to the law, the MCO temporarily reinstated Julian's physical therapy.
120. A little over a week later, Julian's pediatrician received a letter from the same MCO stating that TennCare coverage for Julian's treatments should be discontinued, since the school system would be providing for his care. Meanwhile, the MCO continued to accept monthly TennCare capitation payments for Julian's treatment. The MCO instructed the doctor to discontinue his prescription for home care for Julian. The letter misled the doctor to in two ways. First, it implied that the EPSDT medical necessity standard and special education standards are identical. Second, it implied that the services provided by the TennCare MCO and the school system are identical. Both implications were false.
121. The same letter was copied to Julian's mother with no explanation of her right to appeal. Julian's mother immediately contacted counsel. Julian's pediatric physician contacted counsel on February 4, 1997, and confirmed that there had been no clinical decision to discontinue services, and that the MCO had terminated the treatment without regard to Julian's medical needs. Counsel for Julian requested continuation of benefits pending appeal on February 4, 1997, but it was not until two weeks later, after a motion for a temporary restraining order was filed in this court [see Daniels v. Wadley, No. 79CV-3107, Motion for Temporary Restraining Order and for Leave to Investigate Contempt, filed February, 18 1997] that services were finally reinstated.
122. In April 1997, the school officials and Julian's pediatrician gathered to develop an
educational plan for Julian to go to school in the community (he had been receiving educational services at home). The school system asked that Julian's counsel to obtain assurances from his TennCare MCO that private duty nursing would continue so that Julian could attend school and be safe. The TennCare MCO said that it would not

continue to provide private duty nursing because under the MCO's policies, such care could only be provided in the home. Only after an appeal was filed, did Julian's MCO agree to continue the services he had been receiving for two years, thereby enabling him to start school.
123. Until systemic deficiencies with the TennCare system are corrected, Julian's health care services and life are constantly at risk.
Troy D.
124. Troy D. is eleven years old. He lives with his mother and his two step-brothers. At the age of four years, Troy D. began exhibiting emotional problems. Troy's primary care doctor referred him to Ridgeview Psychiatric Hospital in Oak Ridge. Troy was diagnosed as having Attention-Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder. Medication was prescribed and outpatient therapy was initiated.
125. In 1993, Troy D., was certified as "seriously emotionally disturbed" (SED) and eligible for special education services. He was hospitalized at Children's Hospital in Knoxville during the spring of 1995 due to the danger he posed to himself and his stepbrothers. After discharge, Troy D. continued in outpatient therapy with medication through the fall of 1995 from Ridgeview. From 1990 through 1995, Troy's global assessment of functioning (GAF) level ranged between 25 and 55. The Ridgeview therapist informed T.W. that the only way she could get the services Troy needed was to place him in state custody. T.W. rejected this option.
126. In September 1996, Troy's behavior was becoming more aggressive. On
September 24, T.W. sought more effective treatment for Troy. Troy's therapist, who is on contract with his TennCare BHO, recommended "Home Ties," an intensive in-home mental health treatment service, covered by EPSDT. T.W. was told that, despite Troy's obvious and immediate need for this service, he could not receive the service at that time. T.W. was told he would be put on a waiting list. It was unclear whether DCS or Troy's BHO would pay for the services. However, T.W. was told that the only way to move up on the waiting list was to have a Juvenile Court petition filed.
127. By the middle of November 1996,Troy was becoming more dangerous-- frequently physically attacking his younger stepbrother and kicking T.W. in the stomach-- and refused to attend school. Disciplinary actions were initiated at school. T.W. filed an unruly petition against her son in attempt to get him the services needed to address his needs. Troy's therapist now believed that he was evidencing features of bi-polar disorder.
128. In December, Troy's mother sought hospitalization, because Troy was depressed and hearing voices that told him to "choke people." Troy was again entertaining thoughts of hurting himself. Troy's BHO, Tennessee Behavioral Health, approved hospitalization for a short period, then moved him into "partial hospitalization" based on a diagnosis of depression with psychotic features. "Partial hospitalization" consisted of all-day intensive

therapy with educational services at Peninsula Lighthouse in Knoxville. Peninsula confirmed Troy's diagnosis of bi-polar disorder. Home Ties completed its evaluation and services while Troy was hospitalized at Peninsula.
129. Around the middle of January, Troy's therapist at Peninsula Lighthouse told Troy's mother that he could not continue in the all-day therapy treatment. Peninsula Lighthouse agreed to allow Troy to attend all-day therapy while its workers tried to obtain approval from Tennessee Behavioral Health (TBH). On January 16, 1997, Troy's mother filed a grievance. Despite the filing of a grievance, Troy's treatment was stepped down to intensive outpatient therapy.
130. For several days following discharge, Troy was bused to his local school where he remained for 1 1/2 hours. Then he was bused to Peninsula Lighthouse for 3 or 4 hours of "outpatient therapy." He was then taken home. Troy became unstable and was admitted for inpatient treatment at Peninsula Hospital on or about January 20. On January 23, 1997, TBH wrote to Troy's mother confirming the hospitalization and informing her that her grievance was "resolved."
131. On January 24, Troy was discharged from the hospital. Neither all-day therapy nor outpatient intensive therapy was continued or reinstated. Troy's mother requested reinstatement of all-day therapy pending a hearing decision on her grievance. In response, the Tennessee Department of Mental Health and Mental Retardation (DMHMR) informed Troy's mother that Troy's BHO was "aggressively pursuing" appropriate treatment for Troy. However, DMHMR refused or failed to require the BHO to restore all-day therapy and continue such therapy pending a hearing decision.
132. According to TBH policy, partial hospitalization can only be approved for a maximum
of 30 days. Therefore, it was unwilling to reinstate partial hospitalization during his mother's appeal. Troy's mother sought assistance from counsel. On February 11, 1997, TBH reinstated partial hospitalization services for Troy -- almost a month after his mother's appeal and request for reinstatement. TBH's proposed termination of partial hospitalization services was eventually reversed by DMHMR. Troy finished out the school year in the partial hospitalization program. An independent psychologist evaluated Troy and concluded:
[T]he parents, the schools, and the Peninsula Lighthouse program are hereby
warned that such threats [of homicidal attacks and suicidal gestures] as may be
made against other persons and, most particularly, threats made against himself
should be taken most seriously. He is unlikely to be able to resist such impulses.
If he clearly identifies a targeted person as being one whom he is likely to attack, or

if he reports a wish to do away with himself by some means or other, the three
parties mentioned, and other interested persons, should take immediate action to
seek emergency assistance and probable commitment. . . . . It is my expectation
that . . . residential treatment is very likely in the near to intermediate future.
By July, Troy was admitted to a residential treatment facility due to aggressive behavior. In mid-November, 1977, he was discharged without notice. The BHO had not coordinated its actions with the school district, leaving Troy without an individual educational program appropriate to his mental health needs.
133. Defendants have refused or failed to assist Troy and his mother to access and coordinate the continuum of services and treatment from Child and Family Services, Home Ties, the school system, and Peninsula. The bases for the BHO's decisions to approve or deny care are unclear, other than that the BHO appears oblivious to Troy's individual needs.
Ray M.
134. Ray M. is a nineteen year old boy who has lived his entire life with his grandmother, Ms. D.. Ray has a fifty percent hearing loss in each of his ears. He also has a seizure disorder. Since he was in kindergarten, Ray has been going to an audiologist at Cookeville Hearing Center, the only provider in the region capable of providing comprehensive speech and hearing therapy services.
135. For some time, Ray's grandmother has sought to obtain functioning hearing aids for him, as prescribed by a hearing specialist, so that he could function adequately in school and interact with other people. Ray presently has one hearing aid that echoes as if he were in a barrel. The other hearing aid works only intermittently. When he recently went to the Cookeville Hearing Center for audiology services, the Center told his grandmother, Ms. D., that TennCare would not pay for the Center to treat and screen Ray or service his hearing aids. Ms. D. called Ray's TennCare MCO, Blue Cross Blue Shield of Tennessee. Blue Cross referred her to an ear, nose and throat doctor. When Ms. D. called this doctor, he explained that he could not test nor service hearing aids. She again called Blue Cross Blue Shield and was told to see a provider in Brentwood, Tennessee, nearly one hundred miles distant.
136. In order for Ms. D. and Ray to get to Brentwood, she had to hire someone to drive them there. Reimbursement for the screening that occurred at the Brentwood hearing center was denied by Blue Cross Blue Shield as "non preventive care/non primary". Upon information and belief, based on reports from regional speech and hearing therapy centers, Ray's experience is typical of that of members of the plaintiff class, in that TennCare MCOs routinely refuse to provide medically necessary speech and hearing services, and EPSDT-mandated screenings for TennCare children.

137. Ray has been on Medicaid since he was twelve years old but has never received the comprehensive EPSDT screenings required by federal Medicaid law. Ms. D. describes Ray as behaving like a four or five year old, even though he recently graduated from high school. Because of the failure to receive appropriate EPSDT screening, likely developmental problems have not been assessed. He left high school May, 1997. The mixture of inadequately treated hearing loss and probable unaddressed developmental needs leaves him unprepared for independent living.
Roscoe W.
138. Roscoe W. is a nine year old boy who lives in Jamestown, Tennessee. He has been on Medicaid since birth. He was given a physical by a pediatrician soon after he was born, but was never referred for a hearing test. When he was three years old and still not speaking, his parents took him for a hearing test. It was discovered that he has a 35% hearing loss in both ears.
139. Since that time, he has gone to the Cookeville Speech and Hearing Center once a year for intensive tests to determine how much he is hearing, and whether his hearing aids are working effectively. When Ms. W. took Roscoe to the audiologist in August, 1996, before school began, she was told that the Cookeville Speech and Hearing Center could not screen Roscoe because her TennCare plan was not covering the service. The Center explained that the TennCare plan was not contracting with audiologists. When the Center had served children as an out-of-plan provider, because the MCO had no other providers who could provide such services to children in that region, the TennCare MCO had denied coverage in every instance.
140. Mrs W. called Blue Cross Blue Shield, Roscoe's TennCare MCO. Blue Cross referred her to a doctor in Knoxville, more than a hundred miles away. Anxious to have her son screened before school started so that he would be able to function in school, she again contacted the local Center, which served Roscoe for the small amount of money she was able to scrape together. She was informed that his hearing aids are almost worn out and will soon need to be replaced. Her MCO does not contract with anyone in a hundred mile radius to provide hearing aid services for children, however. On information and belief, Blue Cross typically denies coverage for such services in any event, without regard to their medical necessity.
141. Ms. W. cannot recall ever being informed of the availability and importance of EPSDT screenings, and Roscoe has not received a visual screening within her memory. It was not until last August, when his mother suspected that he was visually impaired, that Roscoe's vision was tested, and it was discovered that he needed glasses.
142. Roscoe has a significant speech impairment. His parents run a business out of their home and have found that many people who come into the house cannot understand Roscoe without the assistance of his parents interpreting for him. In spite of the boy's obvious need, and although the audiologist has told his mother that he needs speech therapy, he has never received such care from Medicaid, and cannot obtain it now from

his TennCare MCO. In August, 1996, at the urging of her child's audiologist, Ms. W. filed a formal grievance with Blue Cross seeking speech and hearing services for her son. She never received a response, and Roscoe has still not received the services which he needs.
William B.
143. William B. is a six year-old seriously emotionally disturbed child who lives in
Murfreesboro. He is also moderately retarded and autistic. William was sexually abused as a toddler. When William was four years old, he still would not talk, and he was constantly aggressive. He frequently tried to hurt himself or others. He bit himself, banged his head against the wall, and pinched himself.
144. K.B., William's mother, took William to the local community mental health center. The clinicians there thought he needed therapeutic nursery services. William began therapeutic nursery services when he was four. The progress he made in three or four months was remarkable. His violent behavior decreased. In July of 1996, the TennCare Partners program began and William's therapeutic nursery services were reduced, although William's needs remained the same. The clinicians said that TennCare would only pay enough for two days of treatment a week instead of five.
145. William regressed and began hurting himself, hurting others and crying constantly. Many weeks, he did not even get his allotted two days a week, because Quality Transportation ("Quality") which was the transportation company with which TBH contracted, did not show up to take him to the therapeutic nursery. K.B. did not own a car and could not get him to therapy. Other days Quality would not pick him up and he would be stuck at the mental health center waiting to get home. Quality had a rule that children could only get a ride if parents would agree to ride with the children. Quality said that if William wanted to ride, K.B. needed to ride with him. However, they would not allow Jerry, K.B.'s two year old brother, to ride with them. As a result, William could only obtain care when his mother managed to find a baby sitter for Jerry, so that she could escort William on the van.
146. Recently, William's thirteen month old sister drowned in the bathtub. William found her body floating in the bathtub. The entire family was traumatized by the tragedy.
147. Following the death, K.B. called to see if TBH would have any therapists in her area that could treat William. The name of the clinician TBH gave her would not see any children under eight years old. The only other clinician they gave was the Guidance Center, a local mental health center. Until her baby daughter died, K.B. worked at a program affiliated with the Guidance Center, called the Regional Intervention Program (R.I.P.). R.I.P. is an intervention program which works with parents of children with behavior problems and teaches parenting skills. Due to her close connection with the Guidance Center, she did not think it would be appropriate to take William to the Center's therapists. When K.B. called TBH back to get clinicians who could address symptoms

resulting from William's trauma, she was told that the closest clinicians were in Nashville. K.B. has no means of transportation to enable her to travel to Nashville.
148. It is only through the kindness of strangers that William was able to receive any
therapy at all for many months. A doctor in Nashville agreed to see William for five dollars a session and also has agreed to be flexible so that if at the last minute a friend could lend K.B. a car, she can call the clinician in the morning and come in the afternoon. This is completely unpredictable and unacceptable for long term treatment of her child, but it was William's only option until November, 1997.
149. In November, TBH denied a request for intensive in-home therapy,
but finally agreed to pay William's clinician for twice a week sessions. Since November, nearly half of the appointments have been missed due to TBH's transportation contractor not showing up.
150. William's critical mental health needs must be addressed early before it
is too late. The current system allows his individual needs to be ignored.
Jacob R.
151. Jacob R. is an eleven year old with cerebral palsy, mental retardation and epilepsy. He requires braces in order to be able to take food by mouth. His orthodontist has prescribed the immediate provision of braces because Jacob is medically fragile, and delay would necessitate more invasive and complex procedures in the future.
152. Health Net, Jacob's TennCare MCO, subcontracts with Delta Dental to managed dental claims. Delta Dental explained to the provider and the family that they do not cover orthodontic treatment or functional treatment regardless of the child's individual needs unless a child is over twelve years old. They denied the treatment as a non-covered service. After an attorney became involved on the child's behalf, TennCare overturned the MCO denial. However, on information and belief based on discussions with dental and orthodontic providers, TennCare MCOs routinely impose arbitrary limits on the coverage of medically necessary dental services for children, and the state has not intervened on a systemic basis to prevent such denials of care. Jacob will continue to require dental and other TennCare covered services in the future, but, given the defendants' failure to implement EPSDT, he has no assurance that those services will be available.
Justin S.
153. Justin S. was born on September 25, 1988. Shortly after birth, Justin began exhibiting abnormal behavior. It started with frequent and prolonged periods of uncontrollable screaming and the appearance of extreme discomfort when being held or touched. Bouts of head banging soon followed. Justin's mother, Diane P., was concerned

about these symptoms, but she was repeatedly assured by Justin's pediatrician that his behavior was well within the normal range. With no help, Justin's mother continued to cope as best she could, even though the behavior worsened over time.
154. When Justin was two, Ms. P. attempted to go back to work. She enrolled Justin in day care but within a short time was asked to take him out, because the child care workers could not control him. He was then enrolled in another day care center, but again he was asked to leave. Justin's mother voluntarily took him out of a third day care center because of constant complaints by the workers. By this time Justin was very agitated all of the time. He had frequent tantrums (screaming, fighting and uncontrollable body movements) and had become very aggressive toward other children, including biting, kicking, hitting and pinching. At night Justin was experiencing serious sleep disorders. He often could not fall asleep until well after midnight, but by 4:00 a.m. he was awake and agitated.
155. After a series of referrals to different therapists and programs, and following an unsuccessful course of medication for severe depression, Justin was admitted to Charter Lakeside psychiatric facility in Memphis. Special provisions had to be made because Justin was so young, but physicians were adamant that the seriousness of his condition warranted inpatient treatment. Once admitted, Justin was hospitalized for two and one half months. His treatment included very intensive behavior modification, daily working visits with the parents and medication. This treatment proved to be very effective and Justin experienced dramatic improvement. He was discharged in September, 1991, and follow-up care was recommended to help Justin maintain his higher level of functioning. Unfortunately, Justin did not receive this badly needed follow up care because the state would not cover the services. Consequently Justin's condition began to deteriorate.
156. In an effort to maintain a consistent level of services, Justin's mother took Justin to the Child Development Center at the University of Tennessee. He was given an intensive screening and received outpatient behavior modification and medication. This treatment, while helpful, did not bring Justin back to his peak level of functioning.
157. Treatment lasted a year but ended when Justin became eligible for early intervention services through the Memphis school system. A series of unsuccessful school placements ensued, until Justin's mother tried to provide home schooling. Although the home schooling was more effective academically, his mother could not handle the behavior problems, because she was unable to get Medicaid to provide coverage for the ongoing services which Justin needed.
158. At four years old, Justin was again admitted to Charter Lakeside for two and one half months. He was discharged because Medicaid would not pay for further treatment. As before, Justin received no follow-up treatment. Day treatment was recommended, but staff members from Charter told Justin's mother that their day treatment was not covered by Medicaid.

159. Thwarted in her efforts to find consistent and appropriate treatment for her child, Justin's mother sent Justin to stay with his grandparents in Louisiana. There, Justin received what the family believed to be appropriate services through the state of Louisiana. However, Justin and his family missed each other and his care was difficult for his aging grandparents. Justin therefore returned to Tennessee, where the family resumed its struggle to obtain needed medical services.
160. At six years old, Justin began to hallucinate. He began seeing demons and hearing voices. His TennCare provider told his parents to take him to Midtown Mental Health Center for crisis screening. The crisis team sent him directly to St. Joseph Hospital, were he was admitted for a few days and then transferred to the day treatment facility at St. Joseph for two weeks. However, he received little more than observation, the St. Joseph staff explaining to Justin's mother that his TennCare MCO, Access Med Plus, would not pay for the treatment he needed. She pled with the MCO to provide care for Justin, but in vain. For several months, he simply went without treatment, while his symptoms escalated.
161. In late 1995, Justin was readmitted to St. Joseph. The treatment plan was to take Justin off medication and monitor him. But when the MCO would not cover the services, Justin's mother was told to pick him up the next day. Justin was once more without treatment.
162. In July, 1996, the state began the TennCare Partners Program, and Justin's mental health coverage under TennCare was shifted from his MCO to one of the new BHOs, Tennessee Behavioral Health (TBH). That same month, Justin was admitted to Charter Lakeside Hospital again. He received residential treatment until September, when Justin's hospital therapist, a BHO subcontractor, informed Ms. P. that Justin needed longer and more intensive treatment than would be covered. State custody was suggested as an option for treatment. She received no information about her right to contest the possible BHO's termination of his treatment. Ms. P., who was unwilling to give custody to the state, took Justin out of the hospital. For weeks thereafter, she tried without success to find outpatient care for her son.
163. Finally, in November, 1996, Ms. P. took Justin to Professional Counseling Services, the Partners Program care coordinator to which she was assigned by TBH, where he was seen by the crisis team. While the team acknowledged that Justin needed residential treatment, they suggested that he try outpatient care first. When the outpatient services failed to produce results, the caseworker told Justin's mother that TennCare would not pay for additional hospitalization and that Justin could only receive the long term care he needed through state custody.
164. Meanwhile, through the outpatient care, the caseworker observed Justin's deteriorating behavior: hitting, kicking, biting, throwing objects, fire starting, extremely aggressive behavior towards siblings, parents and pets and sexually acting out toward siblings. The caseworker recommended intensive, long term residential treatment. Home Ties was also called in by the crisis team to work with the family. After four weeks, the

Home Ties worker also recommended residential care because Justin was a danger to himself and the other children. Justin's mother was advised that if Justin were to hurt one of the children, DCS would take her other children. Thinking that it was her only alternative, Justin's mother decided to agree to custodial care, but when she called DCS she was told that Justin was not eligible for custodial care.
165. With the lack of consistent or appropriate care, Justin's behavior problems continued escalating to the point that Justin's parents were calling the crisis team every night. A safety plan, put in place earlier, to have the two siblings sleep with the parents every night and to restrict Justin's contact with the children during the day, was not working. It got to the point that Justin's mother could no longer guarantee the safety of his siblings or anyone else in the house. Finally, on January 31, 1996, the crisis team sent someone to the house to take Justin and his mother to the center. They stayed at the center all day until arrangements could be made to take Justin to St. Joseph where he was admitted. Initially Justin was certified, by TBH, until February 2. Thereafter, Justin was recertified at five day intervals. On February 12, TBH began recertifying Justin at one day intervals.
166. Unsatisfied with this unstable arrangement, Justin's mother contacted TBH to inquire about a more permanent placement. She was told by the TBH representative that Justin could get residential treatment or other services, if he qualified as Severely Emotionally Disturbed (SED). Justin's mother called the Crisis team to ask if he met the SED requirements. She was advised that he did. However, when she called TBH back, she was told that it is up to the doctors to order a more permanent placement. However, the doctors continue to advise Justin's mother that TBH will not allow a longer term certification. Thus, Justin and his family remained in limbo, not knowing from day to day whether he will receive care the next day.
167. Finally, Justin received residential services for five months. Upon discharge, he
received some outpatient counseling. Justin was doing well when TBH terminated his counseling services. Justin began to hear voices and hurt his siblings. Neither TBH nor DCS could obtain outpatient therapy for almost three months. After this, Justin's TBH case manager told his mother that he still needed long term residential treatment, but there were "no beds" available for Justin.
168. Throughout this long ordeal, Justin was unable to receive consistent or appropriate services. As a result, Justin's condition dramatically deteriorated over time and he and his family suffered needlessly. The irony of this situation is that, had Justin received suitable services at the outset, his mother could have continued working, resumed her education, and possibly obtained private insurance. More importantly, Justin would not have been so tormented, and his prospects for functioning at his full potential would not have been so cruelly compromised.
Estel W.

169. Estel W. is a fifteen year old boy who lives with his mother, E.D. In November, 1993, doctors told E.D. that Estel had diabetes and will have to take daily insulin shots the rest of his life. Ms. D. signed her family up for TennCare when the program began in January, 1994, and was assigned to Blue Cross Blue Shield as their MCO. Estel started seeing a diabetic specialist in Knoxville, and was also referred to a Knoxville opthamologist for yearly eye examinations which were required because of his diabetes. Knoxville is over an hour away from the family's home in Oneida, Tennessee, and Ms. D. had no way to get her son to those appointments except by spending money from her meager resources to pay a friend to take him. Neither TennCare nor Blue Cross informed her that transportation was available to Estel, if he needed to access these EPSDTrequired services.
170. After the family had been on the program for several months, TennCare increased their premiums to over $400, due to an erroneous calculation of their income. Estel's mother tried to correct the premium mistake, but could never get TennCare to straighten out the problem, and the family lost coverage because of their inability to pay the incorrect premium. When TennCare was stopped, Estel's mother attempted to pay for his insulin and visits to specialists. However, she soon incurred medical expenses that she could not pay. Ms. D. was finally able to reestablish Estel's TennCare in 1996, based on his Medicaid eligibility. She enrolled Estel in BlueCare, as Blue Cross now called its TennCare MCO.
171. BlueCare assigned Estel to a primary care doctor in Oneida, who will act as his "gatekeeper", controlling his access to specialty care. However, when Ms. D. tries to make appointments for Estel to be seen by that physician, none are available in the afternoon, when he is out of school and she has gotten off of work. Unable to access the primary care provider, Ms. D. went ahead and took Estel to the diabetes specialist in Knoxville for his regular appointment, as she was supposed to do. This was the same specialist to whom Estel had been referred when he was previously on Blue Cross TennCare. On January 24, 1997, BlueCare sent an "Explanation of Benefits" (EOB) form stating that Estel must pay for that visit to his diabetes specialist , since a "referral for services was not obtained" from the primary care doctor. The EOB contained no information regarding the child's right to appeal the denial of coverage, or how to pursue such an appeal.
172. A packet of TennCare information which BlueCare sent to Ms. D. when Estel first enrolled indicated that children could get dental checkups every six months and "other routine children's dental care can be given as needed". The packet referred enrollees to the list of dentists in a provider directory. Estel's mother called dentists in the county and could not find any that accepted BlueCare or any other TennCare plan. Many of Estel's teeth are decayed, because the family could not afford regular dental care or treatment. Because Estel was in pain and because of his diabetes, E.D. decided that Estel needed immediate dental treatment and paid a local dentist $205 to repair two teeth. The dentist told E.D. that Estel needed restoration treatment on seven more teeth. E.D. could not afford the additional treatment.

173. E.D. filed a grievance with BlueCare regarding the lack of available dental care for her child. After counsel became involved, BlueCare offered to cover restoration of the decayed teeth which were at issue in the grievance, but still does not provide Estel or other children in his community reasonable access to ongoing preventive and therapeutic dental services.
C. Systemic Deficiencies in Services for TennCare Children
174. Upon information and belief, the injuries and suffering experienced by the named plaintiffs are caused by systemic deficiencies in services for children covered by TennCare. Those deficiencies, caused by the acts and omissions of the defendant state officials and their agents, subject the members of the plaintiff class to widespread deprivations of necessary medical and related services, thereby imperiling their health and resulting in needless suffering.
Outreach, Screening and Diagnosis
175. There is a nearly complete failure to provide outreach and screening of TennCare eligible children. This failure extends to children who are in the state's custody, and whose access to care is directly controlled by state officials.
176. The state relies on "encounter data", comprised of electronically formatted reports of clinical encounters between TennCare enrollees and providers, to track the MCOs' and BHOs' compliance with their obligations under EPSDT. There are significant incentives for providers, MCOs and BHOs to over report encounters. The defendants compiled such encounter data in the state's annual report to HCFA, known as the HCFA 416 Report. The data in that report is unaudited and is, by the state's own admission, suspect.
177. Although, for the reasons just identified, the 416 Report almost certainly overstates the extent of Tennessee's compliance with the screening mandate of EPSDT, the most recent reported figures themselves are damning enough: for the period from January 1, 1994 through September 30, 1994, only 8% of children who were entitled to at least four screens (medical, dental, vision and developmental) received one. For the period October 1, 1994 through September 30, 1995, only 15% of TennCare children received even one of the screenings required by EPSDT.
178. Even the relatively small number of children who receive some form of screening do not have a reasonable assurance of receiving an adequate assessment of their medical needs. The defendants have not informed, or required the MCOs/BHOs to inform, providers of the required elements of an EPSDT screen. When initial screening by a primary care provider identifies a need for further diagnosis, such diagnostic services are often denied, due to managed care companies' refusal to cover such services. It is commonplace for plans to create a "Catch 22" requirement that referrals for further diagnosis (e.g., of developmental problems) be supported by a demonstration of medical necessity, something which is of course impossible to demonstrate until such services are provided.

Denial of Medically Necessary Services
179. The state permits TennCare MCOs, BHOs and (with regard to children in state custody) DCS to deny children medically necessary services as a matter of course under a number of circumstances. In part, such denials result from the state's failure to impose and enforce consistent definitions of medical necessity to guide the care management decisions of its agents. See Hinds v. Blue Cross Blue Shield of Tennessee, No. 3:950508, Memorandum Opinion (M.D. Tenn. January 3, 1996). Widespread denials occur because some managed care contractors impose explicit arbitrary limits on treatment unrelated to individual children's medical needs. For example, children often must try and fail on an extended course of treatment with older, cheaper types of drugs (e.g., an antibiotic or psychopharmacological agent) before they are able to access newer, more effective medications, even if their medical records amply document previous failures of the cheaper drugs to meet their clinical needs. Plans have also imposed arbitrary coverage exclusions unrelated to a child's medical need (e.g., refusal to cover audiology services except those required for treatment of traumatic injury).
180. Needed care is withheld because the state's division of responsibilities among different entities (MCOs, BHOs and DCS), combined with the defendants' ineffectual enforcement of those entities' legal and contractual obligations, fosters shifting of costs and the consequent distortion of patient care. (An example is the BHOs' encouragement of children's placement in state custody in order to make DCS liable for the provision of services which the BHO is obligated to provide.)
181. The managed care companies' arbitrary denials of medically necessary care become institutionalized through the conditioning of providers in the MCOs/BHOs networks. As providers prescribe needed treatment, only to see the TennCare plans repeatedly bar their patients access to such care, the providers learn the futility of ordering treatment which they know will be denied. The doctors therefore modify their own treatment practices to conform to the TennCare contractors' arbitrary limits. MCOs/BHOs achieve the same result by imposing arbitrary and time-consuming requirements for providers to obtain prior approval to prescribe certain treatments. While prior approval can be a legitimate utilization and quality control tool, it is often abused by TennCare contractors for purely financial reasons, resulting in denials of medically necessary care for children. The defendants have made these systemic denials of medically necessary care possible, by their failure to hold their agents accountable for their EPSDT compliance, and by the state's failure to educate health care providers, beneficiaries and the agencies which serve them regarding the scope of services available under the law.
182. Medically necessary services are frequently unavailable to class members because the MCOs/BHOs fail to recruit and maintain adequate networks of providers. Many providers only take a certain quota of TennCare patients, although they may be counted as a provider months after they have reached their quota. Major gaps in access are especially pronounced in the specialty areas of orthopaedics and dentistry. In the East Tennessee Region, for example, a recent health department study found "that there are gaps and inadequacies in the TennCare provider network for eligible TennCare recipients

to receive basic dental care such as preventive and restorative services." The study concluded that, in that region alone, about 20,000 individuals, most of whom were children, enrolled in the two largest MCOs had no or inadequate access to dental care.
Behavioral Health Services
183. Medically necessary behavioral health services are denied because BHOs withhold "enhanced benefits" from children who do not qualify as SED. As described at paragraph 48, above, the definition of SED encompasses only children who score below 50 on the "Global Assessment of Functioning" (GAF) test. GAF scores are volatile, fluctuating with a child's treatment, and rising or dropping as children move in or out of crises. Many TennCare children scoring above 50 are, in fact, severely emotionally disturbed and in need of a broad array of behavioral health services. But the state's arbitrary classification system renders the children ineligible in practice for the mental health services necessary to correct or ameliorate their illness or condition due to the reality that they fall in the "enhanced benefits" category. The definition for SED eliminates access to enhanced benefits for 55% of the severely disturbed children who were known to DMHMR to be receiving such services in the year before the Partners Program began.
184. For SED and non-SED children alike, such care as they receive is fragmented, crisis- driven and episodic. Rather than actually managing children's care across a spectrum of needs and services, the BHOs' focus on simply restricting utilization of those services, especially hospitalization, for which they are financially responsible. For children who are not in state custody, and who must rely on the BHOs for the full range of needed behavioral health services, this translates into a failure to develop or implement a comprehensive plan of care. This failure extends even to the BHOs' disregard of their responsibility for ensuring appropriate discharge planning for acutely ill children leaving hospitals. In the cases of children in state custody, the BHOs are preoccupied with moving them out of the hospital and back to DCS, but with little or no coordination of the children's care as they move from one setting to another.
Failure to Coordinate EPSDT with other services
185. Neither the defendants nor their agents ensure the coordination of EPSDT services among the different entities (MCOs, BHOs and DCS) responsible for the delivery of such services. And there is almost no coordination of EPSDT with the other educational, nutritional, health and social services which TennCare children need.
Children in, or at risk of entering, state custody
186. Children in state custody suffer from all of the systemic problems described above. They also face additional barriers to care which are unique to their circumstances as wards of the state. Prior to the creation of DCS, independent Assessment and Care Coordination Teams (ACCT) under regional community health agencies evaluated children at risk of or in state custody. These teams assisted families and caseworker to assess their needs for treatment and to find and contract for necessary treatment for these

children. Between July and October, 1996, the ACCT teams responsibilities were changed. Presently, children who are at risk of going into state custody or who are in state custody are screened pursuant to DCS protocol. There is no independent assessment of their needs. As for TennCare children generally, there is no mechanism for ensuring the coordination of their care among the various entities (MCOs, BHOs and DCS) responsible for meeting their EPSDT needs, or for coordinating EPSDT with the broad array of other educational, social and custodial services which these children need. DCS does not even inform foster parents of children's right to EPSDT screening and treatment services.
187. As a result of the lack of adequate screenings for children coming into state custody and the lack of necessary treatment for the children's illnesses and conditions, defendants commonly fail to provide either adequate assessments of each child's needs, or clear plans for meeting those needs. When there is a plan, it often fails for lack of implementation.
188. Provision of EPSDT to children in custody is compromised by the manner in which DCS delivers those services through "continuum of care" contractors. Children are assigned to those contractors even when the contractors lack the capacity to meet their medical needs. DCS imposes arbitrary limits on the number of "slots" or placements available to children with special needs, e.g., for therapeutic foster care. Therefore, even when a child's needs are consistent with DCS's provider contracts, a child may be put on a waiting list. This may result in a child being kept in an inappropriate placement, some times at a greater cost. And DCS fails or refuses to hold its contractors, or the MCOs/BHOs, responsible for serving the children in the agency's custody.
189. The Tennessee Commission on Children and Youth (TCCY) evaluates services for children in state custody. According to its report for 1996, the most recent year for which data is publicly available, TCCY found that in 29% of the cases sampled, plans of care were inadequate. In a full third of the cases, plans were not implemented. Among the evaluation's other findings were the following:
a. There were problems of delayed or nonexistent access to dental and medical specialty care, due to inadequate TennCare provider networks;
b. Among children in custody who were found to be doing poorly, they were most often found to have serious mental health needs related to abandonment, attachment problems, separation and loss, and sexual or physical abuse. Yet many of these children were not receiving needed treatment for their problems due to barriers posed by the TennCare Partners program, or obstacles created by poor coordination between with DCS and the managed care organizations.
c. Some children and their families had never even been seen by the case managers responsible for planning and coordinating their care while in state custody.
V. CLAIMS FOR RELIEF

A. Denial of EPSDT Information and Outreach (42 U.S.C. §1396a(a)(43)
190. The Medicaid Act, 42 U.S.C. § 1396a(a)(43), federal regulations, 42 C.F.R. part 441.56, and policy directives judicially recognized as having the force of law, including HCFA State Medicaid Manual §5010, require defendants to:
a. Effectively inform recipients of the existence of the EPSDT program; and,
b. Inform recipients about the availability of specific EPSDT services.
c. Inform plaintiffs and adults responsible for them, of health resources, the benefit of preventative care through both oral and written activities that are aggressive and effective;
d. Provide plaintiffs information in clear and nontechnical terms, so that their caretakers - foster, adoptive and biological parents and others -- are informed of what services are available under the EPSDT program, where these services are available and how to obtain them;
e. Provide plaintiffs and their adult caretakers information concerning the necessary transportation to EPSDT services;
f. Provide plaintiffs and their adult caretakers scheduling services for EPSDT services; and,
g. Conduct outreach to plaintiffs and their caretakers within 60 days of the initial determination of Tenncare eligibility and at least annually thereafter.
191. In violation of 42 U.S.C. §1396a(a)(43), defendants refuse or fail to inform or to require its contractors to effectively inform plaintiffs and their caretakers of the existence of the EPSDT program and about the availability of specific EPSDT services.
192. Defendants' violation of 42 U.S.C. §1396a(a)(43) has caused and will cause plaintiffs to suffer irreparable injury in that they have been or will be denied information about and access to EPSDT services.
193. Defendants' violation of 42 U.S.C. §1396a(a)(43) provides a cause of action to plaintiffs under 42 U.S.C. §1983, inasmuch as defendants, under color of state law, custom or usage, have deprived, are depriving and will continue to deprive plaintiffs of their clearly established rights under 42 U.S.C. §1396a(a)(43).
194. Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants acts and omissions.
B. Denial of EPSDT Screenings (42 U.S.C. §§1396a(a)(43), 1396d(r)(1)(A) and (B))

195. The Medicaid Act, 42 U.S.C. §§1396a(a)(43) and 1396d(r)(1)(A) and (B), federal regulations, 42 C.F.R. pt. 441.57 and policy directives, judicially recognized as having the force of law, including HCFA State Medicaid Manual § 5123.2 A-D, require defendants to:
a. provide or arrange medical (mental and physical) screenings for plaintiffs.
b. Include and cover lead blood level assessments as a mandatory laboratory screening test for plaintiffs;
c. Include Hib (meningitis) vaccine for very young infants as a required immunization for plaintiffs;
d. Include substance abuse counseling as part of "anticipatory guidance" during screenings of plaintiffs;
e. Provide plaintiffs separate periodicity schedules for medical, vision, dental and hearing screens as recommended by HCFA;
f. Provide older plaintiffs dental screens more frequently than physical screens;
g. Cover "interperiodic" and partial screens;
h. Allow health, developmental, or educational professionals who come in contact with plaintiffs outside the health care system to determine that an interperiodic screen is needed;
i. Prohibit prior authorization for screens, including interperiodic screens, of plaintiffs; and,
j. Submit annual reports that provide accurate information of the numbers of children receiving EPSDT services.
196. In violation of 42 U.S.C. §§1396a(a)(43) and 1396d(r)(1)(A) and (B), defendants refuse or fail to provide or to require its contractors to provide plaintiffs timely, adequate and appropriate screens.
197. Defendants' violation of 42 U.S.C. §§1396a(a)(43) and 1396d(r)(1)(A) and (B) has caused and will cause plaintiffs to suffer irreparable injury in that they have been or will be denied EPSDT screening services.
198. Defendants' violation of 42 U.S.C. §§1396a(a)(43) and 1396d(r)(1)(A) and (B) provides a cause of action to plaintiffs under 42 U.S.C. §1983, inasmuch as defendants, under color of state law, custom or usage, have deprived, are depriving and will continue to deprive plaintiffs of their clearly established rights under 42 U.S.C. §§1396a(a)(43) and 1396d(r)(1)(A) and (B).

199. Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants acts and omissions.
C. Denial of EPSDT Treatment (42 U.S.C. §1396d(r)(5))
200. The Medicaid Act, 42 U.S.C. §1396d(r)(5), federal regulations, 42 C.F.R. pt. requires defendants to:
a. provide or arrange necessary health care, diagnosis services, treatment, and other measures to correct or ameliorate plaintiffs' defects and physical and mental illnesses and conditions discovered by screening services.
b. Arrange for plaintiffs' needed treatment directly or through a referral;
c. Include treatment for plaintiffs' preexisting conditions identified during the screen;
d. Provide necessary health care, diagnosis services, treatment, and other measures, whether or not such services are covered under the Tennessee Medicaid Plan as it existed in fiscal year 1993-94;
e. Assure that any prior authorization of necessary services is consistent with preventive care for plaintiffs;
f. Cover necessary orthodontics and dental sealants for plaintiffs; and,
g. Require that managed care organizations provide continuity of care and necessary referrals of plaintiffs.
201 In violation of 42 U.S.C. §1396d(r)(5), defendants refuse or fail to provide or to require its contractors to provide plaintiffs necessary health care, diagnosis services, treatment, and other measures to correct or ameliorate their defects and physical and mental illnesses and conditions discovered by screening services.
202. Defendants' violation of 42 U.S.C. §1396d(r)(5) has caused and will cause plaintiffs to suffer irreparable injury in that they have been or will be denied necessary health care, diagnosis services, treatment, and other measures to correct or ameliorate their defects and physical and mental illnesses and conditions discovered by screening services.
203. Defendants' violation of 42 U.S.C. §1396d(r)(5) provides a cause of action to plaintiffs under 42 U.S.C. §1983, inasmuch as defendants, under color of state law, custom or usage, have deprived, are depriving and will continue to deprive plaintiffs of their clearly established rights under 42 U.S.C. §1396d(r)(5).
204. Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants acts and omissions.

D. Denial of Adoption Assistance health services (42 U.S.C. §§620-40 and 670-79)
205. The Adoption Assistance Act, 42 U.S.C. §622(b)(2) and 42 U.S.C. §629b(a)(3), requires defendants to coordinate the provision of child welfare services with other services in a manner that promotes the welfare of children and their families, including:
a. Mental health, physical health and developmental services that protect and promote the welfare of all children, including handicapped children, 42 U.S.C. §625(a)(1)(A);
b. Mental and physical health services that will prevent the breakup of families or restore children to their families, 42 U.S.C. §§625(a)(1)(C) and (D), 629a(B) and 675(1)(B);
c. Adequate health care of children, especially children with special mental or physical health needs, so that children need not be put into state custody, and so that permanency of placement can be achieved, either through returning a child home or by placement in an adoptive home, 42 U.S.C. §§625(a)(1)(F), 675(1)(B) and 673(c);
d. Follow-up care to families to address a child's mental and physical disabilities
when the child has been returned after a foster care placement, 42 U.S.C. §629a(a)(1)(C);
206. In violation of the Adoption Assistance Act, defendants have engaged in policies and practices that deprive plaintiffs in state custody, or at risk of entering state custody, of health services that ensure their preventive, and rehabilitative health care needs are met and that they receive appropriate and effective behavioral and mental health treatment.
207. Defendants' violation of the Adoption Assistance Act has caused and will cause plaintiffs in state custody or at risk of entering state custody to suffer irreparable injury in that they have been and will be denied treatment and preventive health services that meet their preventive, and rehabilitative health care needs and that constitute appropriate and effective behavioral and mental health treatment.
208. Defendants' violation of the Adoption Assistance Act provides to plaintiffs in state custody or at risk of entering state custody a cause of action under 42 U.S.C. § 1983, inasmuch as defendants, under color of state law, custom or usage, have deprived, are depriving and will continue to deprive plaintiffs in state custody of their clearly established federal rights under the Adoption Assistance Act.
209. Plaintiffs in state custody or at risk of entering state custody have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants' policies and practices.
E. Denial of Substantive Due Process
210. In violation of the Fourteenth Amendment to the United States Constitution, the defendants refuse or fail to:

a. Protect plaintiffs in state custody from harm:
b. Ensure plaintiffs in state custody safe and secure custody;
c. Provide plaintiffs in state custody with adequate appropriate screenings, assessments and mental health or developmental services while they are in custody;
d. Provide plaintiffs in state custody with minimally adequate care and treatment for their mental health, physical health and developmental service needs;
e. Not unreasonably restrain plaintiffs' liberty by keeping them in state custody while at the same time denying them appropriate and adequate screenings, assessments, and mental health or developmental services, both nonresidential and residential.
211. Defendants' violation of the Fourteenth Amendment to the United States Constitution has caused and will continue to cause disabled plaintiffs to suffer irreparable injury in that members of the class have been and will be denied their liberty while at the same time denying them appropriate and adequate screenings, assessments, and mental health or developmental services, both nonresidential and residential.
212. Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants' policies and practices.
VI. REQUEST FOR RELIEF
Plaintiffs respectfully request that this court:
1. Assert jurisdiction over this action.
2. Order that plaintiffs may maintain this action as a class action pursuant to Rule 23, Federal Rules of Civil Procedure, on behalf of the class and subclass defined above.
3. Grant declaratory relief, pursuant to Rule 57, Federal Rules of Civil Procedure, declaring unlawful defendants' policy and practice of denying plaintiffs and the plaintiff class the health services to which they are entitled under the laws cited herein.
4. Issue injunctive relief pursuant to Rule 65, Federal Rules of Civil Procedure, prohibiting the defendants from violating the rights of the plaintiff class as complained of herein, and requiring them to take such actions as are necessary to remedy their past violations.
5. Pursuant to Rule 53, Federal Rules of Civil Procedure, appoint a Special Master to oversee the defendants' compliance with the Court's orders.
6. Award the plaintiffs reasonable attorneys fees and costs, as authorized by 42 U.S.C. §1988 and 28 U.S.C. §1920.

7. Grant such other and further relief as the court deems just and proper. Respectfully submitted,
BY:____________________________________ Michele M. Johnson, TN BPR#16756 Gordon Bonnyman, TN BPR # 2419 Lenny Croce, TN BPR # 6394 TENNESSEE JUSTICE CENTER 203 Second Avenue, North Nashville, TN 37201 (615) 255-0331 Jane Perkins NATIONAL HEALTH LAW PROGRAM 211 North Columbia Street, 2nd Floor Chapel Hill, NC 27514 (919)968-8855 Mary Giliberti Ira Burnim BAZELON CENTER FOR MENTAL HEALTH LAW 1101 Fifteenth Street NW, Suite 1212 Washington, DC 20005 (202)467-5730 Of Counsel:

Richard Cohen Ellen Bowden THE SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Post Office Box 2087 Montgomery, AL 36102-2087 (334) 264-0286

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
JOHN B.. CARRIE G., JOSHUA M., MEAGAN A. and ERICA A., by their next friend, L.A.; DUSTIN P. by his next friend, Linda C. BAYLI S. by her next friend, C.W.; JAMES D. by his next friend, Susan H.; ELSIE H. by her next friend, Stacy Miller; JULIAN C. by his next friend, Shawn C.; TROY D. by his next friend. T.W.; RAY M. by his next friend, P.D.; ROSCOE W. by his next friend. K.B.; JACOB R. by his next friend, Kim R.; JUSTIN S. by his next friend, Diane P.; ESTEL W. by his next friend, E.D.; individually and on behalf of all others similarly situated,
Plaintiffs,
V.
NANCY MENKE. Commissioner, Tennessee Department of Health: THERESA CLARKE, Assistant Commissioner, Bureau of TennCare: and GEORGE HATTAWAY, Commissioner, Tennessee Department of Children's Services,
Defendants.

CONSENT DECREE FOR MEDICAID-BASED EARLY AND PERIODIC SCREENING. DIAGNOSIS
AND TREATMENT SERVICES
TABLE OF CONTENTS

I. Introduction

2

II. Background

2

III. Intent Statement and Definitions

7

IV. Findings

10

V. Order

13

A. Definition of Legal Standard

13

1. EPSDT

13

2. Other Authorities pertaining to children

14

B. Ensuring Compliance with the Outreach and Screening Mandate

15

1. Outreach and Informing

15

a. Outreach and Informing Requirements

15

b. Outreach Performance Standards 18

2. Early and Periodic Screening

19

a. Screening Requirements

19

b. Screening Performance Standards 25

C. Ensuring Compliance with the Diagnosis and Treatment Mandate

30

1. Diagnosis

30

2. Treatment - General Requirements 30

a. Scope of Benefits

30

b. Medical Necessity

32

c. Prior Authorization

34

d. Access to Treatment

34

D. Ensuring Compliance with Coordination Mandate

42

E. Coordination and Delivery of

Services for Children in State

43

Custody

1. Titles IV-B and IV-E of the Social Security Act

43

2. Due Process

44

3. Formulation of Coordination Plan 45

F. Monitoring and Enforcement of MCO and DCS Compliance

47

1. Individual Tracking

47

2. Systems Monitoring

48

G. Reporting and Plaintiff Access to Records

50

1. Seminannual Reports

50

2. Plaintiff Access

50

3. Meetings of Parties

51

H. Attorney Fees

51

I. Reservation of Rights

51

J. Notice to Class Members

53

K. Notification

54

Attachments 1-4

56

I. INTRODUCTION
1. This is an action brought on behalf of all individuals under the age of 21, who are or will be enrolled as beneficiaries in TennCare, Tennessee's Medicaid Managed Care program. The defendants, who are sued in their official capacity only, are Tennessee state government officials responsible for administration of TennCare and Department of Children's Services.
2. This case challenges the adequacy of children's health services provided by TennCare and the Tennessee Department of Children Services (DCS). Pending before the Court is the parties' application for approval of an agreed order settling the claims raised in the complaint. The Court has reviewed the complaint, the parties' joint motion and the terms of their proposed settlement, which is embodied in this order. The Court concludes that the agreement is proper, that it adequately protects the interests of the plaintiff class whose rights it affects, and that it should be approved and entered by the Court.
II. BACKGROUND
3. Tennessee has operated a Medicaid program for more than a quarter of a century. In January, 1994, the state converted the program from fee-for-service to managed care,

and changed the name from Medicaid to TennCare. TennCare is funded jointly by the federal and state governments pursuant to Title XIX of the Social Security Act. also known as the Medicaid Act, 42 U.S.C. ß 1396 et seq. The state administers the program under the terms of a special demonstration waiver granted by the federal Secretary of Health and Human Services, as authorized by Section 1115 of the same Act, 42 U.S. .C. ß 1315, and under those provisions of the
Medicaid Act which have not been waived and remain in full force and effect.1 The agency within the Department of Health and Human Services which administers Medicaid, and which is therefore responsible for direct federal oversight of the TennCare waiver, is the Health Care Financing Administration ("HCFA").
4. TennCare finances and manages medical care for more than 1.2 million Tennesseans statewide. Approximately 500,000 of TennCare's enrollees are children. Most beneficiaries are poor, and qualify for coverage because they satisfy the eligibility criteria established by Title XIX. An additional 383,000 beneficiaries qualify under the special terms of the TennCare waiver. Those terms extend benefits to individuals who, though ineligible under Title XIX, are unable to obtain health insurance coverage on their own. Some qualify because they lack access to insurance through a group health plan. Others qualify as 'uninsurable', that is, they have been denied commercial coverage because they have a preexisting medical condition.
5. The Bureau of TennCare (hereinafter "Bureau") is the state agency responsible for administration of the program and its approximately $3.5 billion budget. The Bureau contracts with managed care organizations (MCOs) to deliver necessary medical care to beneficiaries through networks of subcontracting health care providers. In a component of TennCare known as the Partners Program, each MCO is currently paired with a behavioral health organization WHO). The BHO provides the mental health services, as well as alcohol and drug dependency treatment benefit, for the MCO's TennCare enrollees.
------------
1The parties recognize that the recent passage of the Balanced Budget Act of 1997 may affect duties under the instant Decree. ~ Balanced Budget Act of 1997, Pub. L. No.105-33 (August 5, 1997). The Defendants acknowledge their obligation to comply with controlling federal law and any HCFA requirements properly imposed upon the TennCare Demonstration Waiver.
6. Specialized services for children in state custody or at risk of coming into state custody as identified by a court pursuant to Title 37, Tenn. Code Ann., are funded by TennCare and managed by the custodial agency, DCS.2 For children in physical custody, these DCS-administered benefits include the treatment components provided

during residential care and targeted case management as well as mental health and substance abuse services in excess of the "basic benefits package" in the TennCare Partners program. For children at risk of coming into state custody, these DCSadministered benefits are limited to targeted ease management, including state family preservation.
7. The scope of benefits covered by TennCare is the same for all children, regardless of their eligibility category and regardless of whether they are in, or at risk of entering DCS custody.3 The MCO benefits package currently covers a comprehensive array of medical-surgical services, including physician and hospital treatment, prescription drugs and durable medical equipment, and rehabilitation services. The specific services for any given child are based upon medical necessity.
8. Thus, under TennCare, a child is entitled to needed medical-surgical care from the MCO to which he is assigned, some behavioral health services from its counterpart BHO. and--if he is in DCS custody or at risk of entering DCS custody, other services as set out in 6, above.
9. As part of these benefits, TennCare-covered children under age 21 receive early and periodic screening, diagnosis and treatment ("EPSDT") under 42 U.S.C. ß~ 1396a(a)(43), 1396d(a) and (r) and the state's TennCare contracts with MCOs. As the name suggests, the
--------------
2Approximately 10% or less of children in DCS custody are ineligible for TennCare due to their confinement in correctional facilities for delinquent youth, or for other technical reasons.
3See Paragraph 17, infra.

purpose of EPSDT is to ensure that all Medicaid children receive regular screening, vision, hearing, dental and treatment services consistent with established pediatric standards. They must receive 'such other necessary health care, diagnostic services, treatment and other measures described in [ß 1396d(a)] . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. ß 1396d(r)(5). Specific EPSDT requirements have also been elaborated upon in federal regulations, and in such documents as the federal State Medicaid Manual, and policy transmittals of general applicability issued by HCFA.4
10. The verified complaint, filed on behalf of TennCare children as a group, alleges that TennCare fails to fulfill its EPSDT obligations in several respects. The complaint charges that there are systemic failures to screen children according to the prescribed periodic schedule, to properly diagnose their medical needs, and to provide them the full range of health services which they require.
11. In the case of class members who are in DCS custody, the plaintiffs allege that these general problems are compounded by poor coordination of TennCare services by the MCOs, BHOs and the state custodial agency, among which EPSDT responsibilities are shared. The plaintiffs claim that the same deficiencies which constitute violations of the EPSDT mandate also violate separate federal and state laws governing the rights of children in DCS custody. Those laws include Title [V(E) of the Social Security Act, also known as the Adoption Assistance and Child Welfare Act, 42 U.S.C. ß~ 621 et seq. The laws in question impose broad
------------
4The parties recognize that "official pronouncements of agency policy such as manuals and administrative rulings . . . are entitled to deference." See Linton by Arnold v. Commissioner, 779 F. Supp. 925, 933 (Tenn M.D. 1990).

obligations regarding social and other services which are generally outside the scope of this litigation. However, the plaintiffs only invoke those aspects of the laws which implicate access to appropriate screening, diagnosis and treatment of their health and behavioral health needs.
12. The plaintiffs invoke the Fourteenth Amendment. Due Process Clause, which establishes minimal standards for health and mental health treatment of individuals in non-criminal state custody. See
Youngberg v. Romeo, 457 U.S. 307, 315 (1982), Meador v. Cabinet for Human Resources, 902 F.2d 474,475-7 (6th Cr. 1990). cert. den., 498 U.S. 867 (l990).5
13. The parties recognize that these longstanding problems existed prior to TennCare and. rather than being peculiar to Tennessee, are commonplace nationwide. Indeed, in 1989, Congress directed HCFA to set participation goals for states to improve EPSDT programs. 42 U.S.C. ß 1396d(r); see State Medicaid Manual at 5360, setting annual EPSDT participation goals of 80% for all states by 1995. Plaintiffs do not claim that violations of these laws have been intentional. By joining with the defendants in requesting judicial approval of this agreed order, the plaintiffs acknowledge defendants' present commitment to fully and faithfully implement the law, in accordance with the provisions set out herein.
14. State officials deny that there has been any intent to deprive the plaintiffs of EPSDT services, or to deny them the protection of laws cited herein regarding treatment of children in state custody. On the contrary, those laws are in keeping with the state's own goals for the TennCare program, and for related programs serving children in DCS custody. While defendants dispute the allegations contained in plaintiffs' complaint, they do not dispute that present EPSDT processes require the enhancements contained herein to fully comply with federal law requirements. In keeping with their commitment for ensuring the full and effective implementation of EPSDT and laws incorporated herein, the defendants have devoted the state's
---------
5But see DeShaney v. Winnebago County Dept. of Social Services, 49 US. 189, 109 S.Ct. 998. 1006. In. 9, 103 L.Ed.2d 249 (1989), reserving whether a child harmed in a foster home could raise such claim.
resources to the identification and correction of deficiencies, rather than to costly and time-consuming litigation. To that end, officials have negotiated with the plaintiffs

over a period of months to develop a plan that will enable TennCare to achieve and maintain compliance with its EPSDT obligations.
III. INTENT STATEMENT AND DEFINITIONS
15. Extensive negotiations have developed a basis for this Consent Decree. Defendants recognize that Medicaid recipients under age 21 have a right under the early and periodic screening, diagnosis and treatment provisions of the Social Security Act, 42 U.S.C. ß~ l396a(a)(43)and 1396d(r) to receive the services enumerated therein.6 Moreover, children in DCS custody, as defined herein. are entitled to health and mental health services which meet constitutional minimums, as set forth herein, and to identification and treatment of their health and behavioral health needs under the terms of the Adoption Assistance and Child Welfare Act, 42 U.S.C. ßß 671(a)(16), and 675(1) and (5), as provided herein. This decree is intended to define the state defendants' duties for effectuation of such rights in the context of the TennCare Demonstration Waiver.
This consent decree is premised upon the assumption that the EPSDT requirements of 42 U.S.C. ßß 1396a(a)(43) and 1396d(r), and 42 U.S.C. ßß 671 (a)(16) and 675(1) and (5) of the Adoption Assistance Act are enforceable in an action under 42 U.S.C. ß l983.7 Defendants do
__________
6See Paragraph 17,infra.
7While Suter v. Artist M.. 112 S.Ct. 1360, 503 U.S. 366, 118 L.Ed.2d 1(1992) held that 42 U.S.C. ß 671(a)(15) does not create rights enforceable in an action under 42 U.S.C. ß 1983, Suter's application was subsequently limited by Congress to 42 U.S.C. ß 671(a)(15). See Public Law 103-382, 108 Stat. 3518, 4057-8, codified at 42 U.S.C. ß l320a-2. Sixth Circuit precedent, predating Suter, established that ßß 670-76 of the Adoption Assistance Act are enforceable pursuant to 42 U.S.C. ß 1983. Timmy S. v. Grady Stumbo, 916 F.2d 312 (6th Cir, 1990)(citations omitted). Thus, precedent continues in this jurisdiction as to enforceability of ßß 670-76 except as to ß 671(a)(15),
Similarly, existing precedent in this jurisdiction establishes that the Medicaid Act creates rights enforceable in an action under 42 U.S.C. ß 1983 to enforce the EPSDT requirements of 42 U.S.C. ß 1396a(a)(43). See Brandie Hinds, by next friend, Marie Wright v. Blue Cross and Blue Shield and the Tennessee Department of Finance and Administration, U.S.D.C. (M.D.) Tenn. No. 3-95-0508 (order entered December 28, 1995) (citations omitted). See also Daniels v.

Wadley. 926 F. Supp. 1305, 1310 (U.S.D.C., MD.. Tenn. 1996) (plaintiffs have a private right of action to bring statutory claims under the Medicaid Act) (citations omitted).

not waive any right to seek modification of this consent decree if controlling precedence establishes lack of ß 1983 enforceability as to any of these provisions.
16. This Consent Decree identifies specialized services provided to children who are in state custody, or who are at risk of coming into state custody under Title 37, Tenn. Code Ann. See Tenn. Code Ann. ß 37-3-601, et seq. These references are solely for the purpose of identifying services and children which are the subject of the instant Consent Decree and are not intended to confer jurisdiction over any pendent state claim. Moreover, the parties intend that this Consent Decree shall have no impact upon any judicial proceedings relating to Title 37. Tenn. Code Ann., and shall not be interpreted to include jurisdiction, in any manner, related to such State court proceedings.
17. The state has currently elected, with HCFA approval, to provide non-Medicaid children with the same services provided to Medicaid eligibles. The parties recognize that the state retains the authority, with HCFA approval, to treat non-Medicaid eligibles differently. See Daniels v. TDH., et al., 79-3107-NA. (M.D. Tenn., order entered 6/24/94, Docs. 316, 317). But, to date, the state has not sought or obtained a waiver of EPSDT for waiver eligible children.
18. "Defendants" shall mean the state agency designated to administer the Tennessee Medicaid Program, now known as 'TennCare.' the Tennessee Department of Health ("TDH") and its successors; and the agency designated by interagency agreement to effectuate components of the TennCare program as to children in its custody, the Department of Children's Services ('DCS'). The parties acknowledge that TDH is assisted by other agencies of state government in the administration and supervision of the TennCare program. Any requirement placed upon defendants by this Consent Decree, unless otherwise stated, may be accomplished by defendants, or their agents, employees, and representatives.
19. The term 'medical assistance' means care, services, drugs, equipment and supplies prescribed as medically necessary to prevent, diagnose, correct, or cure conditions in the person that cause suffering, endanger life, result in illness or infirmity, or interfere with or threaten some significant impairment and which are furnished in accordance with Title XIX of the Social Security Act and Tenn. Code Ann. ß 71-5-101, et seq.
20. The phrase 'Tennessee Medicaid Program' or 'TennCare' shall refer to the joint federal/state medical assistance program administered pursuant to Title XIX of the Social Security Act, 42 U.S.C. ßß 1396, et seq. (hereinafter 'Medicaid Act'), including

Tennessee's Medicaid Demonstration Project No. 11-C-99638/4-03, referred to as 'TennCare.'
21. The term 'enrollee' or 'recipient' shall mean any present or future TennCare participant who has been found to be eligible for TennCare and who is under the age of 21 years. An authorized or legal representative of an 'enrollee' or 'recipient' has the right to act on behalf of that person under the provisions of this Order where such right would be available to the 'enrollee' or 'recipient' to the extent that defendants have been notified of such authorized representative status. While the state has currently elected, with approval of the Health Care Financing Administration (HCFA'), to provide non-Medicaid children with the same services provided to Medicaid eligibles, the parties recognize that the state retains the authority, with HCFA approval, to treat non-Medicaid eligibles differently. See Daniels v. TDH, et al.. No. 793107-NA. (M.D. Tenn., Order entered 6/24/94).
22. The term 'managed care organization' (hereinafter 'MCO') means any person. institution, agency, or business concern that contracts with the State of Tennessee to provide medical assistance to TennCare enrollees. For purposes of this Consent Decree, it also includes Behavioral Health Organizations ('BHOs') which contract with the State of Tennessee to provide medical assistance to TennCare enrollees as part of TennCare.
23. The term 'EPSDT' refers to Early and Periodic Screening, Diagnosis and Treatment pursuant to 42 U.S.C. ßß 1396a(a)(43), and 1396d(a) and (r) and implementing regulations.
24. 'HCFA' refers to the Health Care Financing Administration of the U.S. Department of Health and Human Services which administers the Medicaid program and approved the TennCare Demonstration waiver. HCFA retains supervisory control over all aspects of TennCare.
25. 'Behavioral health' refers to mental health and substance abuse services.
IV. FINDINGS
26. The court finds jurisdiction under 28 U.S.C. ßß 1331 and 1343, which confer jurisdiction over the plaintiffs' federal law claims.

27. Upon independent review of the facts of this case and the standards for class certification set forth in the Federal Rules of Civil Procedure, the Court further finds that this case is appropriate for certification as a class action under Fed. R. Civ. P.23(a) and (b)(2). to be maintained on behalf of a plaintiff class represented by the named plaintiffs. The plaintiff class, which shall be bound by the terms of this order, is defined as all present and future TennCare enrollees under the age of 21 years. One subclass is also certified. The subclass consists of plaintiff class-members who are in the custody of the Department of Children's Services, State of Tennessee, or who have been identified pursuant to Title 37. Tenn. Code Ann. as being at risk of coming into DCS custody.
28. Notice of the terms of this order shall be provided in the manner prescribed in Section V(J), below. The Court finds that such notice is sufficient to satisfy the requirements of Fed. R. Civ. P. Rule 23(d) and (c), and of Due Process.
29. The Court further finds, pursuant to Rule 23(e), that the substantive provisions of the agreed order adequately protect the interests of the plaintiff class. The timetable negotiated by the panics affords the state a period of more than five years within which to achieve full compliance with EPSDT and related laws. Settlement thus gives the state a grace period within which to achieve compliance, thereby countenancing partial noncompliance for five more years.
30. Nonetheless, present officials cannot correct problems overnight which have been years in the making. Their development of the remedial plan is itself evidence of their genuine commitment to reform. Class members will immediately begin to derive partial, and steadily increasing, benefits from the remedial plan, even before all of its terms are implemented. Given those benefits, and in light of the magnitude of the reforms which the state is obligating itself to achieve, the timetable does not appear unreasonable.
31. Special problems attend the coordination and delivery of care for children in DCS custody. These children often have challenging medical and behavioral health needs which would benefit from the coordination of services managed by three separate entities: an MCO, a BHO, and the Department of Children's Services (' DCS'). While other federal and state laws outside the instant consent decree require services for children, the EPSDT requirements related to coordination, which apply herein, are set forth in 42 C.F.R. ß 441.61. To further complicate matters, placements often change as the child's needs change, and the child's custodial status as ward of the state is usually temporary. For children who remain TennCare eligible, treatment should be managed throughout such transitions to provide continuity of care.

32. The Partners Program, which restructured the delivery of behavioral health services under TennCare. began July I, 1996. Establishment of the Department of Children's Services, which consolidated children's custodial services that had previously been fragmented among several different state agencies, became effective on the same day. The state has taken some steps to coordinate children's TennCare services among these agencies, and with the MCOs. But those new relationships are still under development, as are the policies and procedures needed to ensure appropriate care for the subclass children in DCS custody, or at risk of entering DCS custody.
33. The fact that state policy is still being developed poses special challenges for the drafting of an appropriate order in this case. On the one hand, authority for initiating and developing policy belongs to the state. Moreover, the plaintiffs and their representatives lack the information or resources to effectively evaluate policies, much less develop them on their own. On the other hand, present problems point up the need to afford immediate protection to children who plaintiffs allege are not now receiving the care to which the law entitles them, and who are liable to suffer serious, irreparable harm if such care is not provided. They cannot be asked to wait for additional months or years to know if the policies now under development by the defendants will someday adequately protect their rights.
34. The parties recognize that EPSDT services are provided in the context of a federal managed care Demonstration Waiver , an important consideration in designing policies which will ensure compliance with the requirements of federal law.
35. The parties have agreed, therefore, on the establishment of a remedial process which recognizes the primacy of the state's authority and responsibility, while giving the plaintiff class a means of evaluating and influencing state policies as they are developed. The proposed processes of contracting with a consultant to identify and make recommendations regarding problems with the systems which affect the delivery of mental and physical health care for children in DCS custody or at risk of going into DCS custody appears to be reasonably calculated to correct current deficiencies in the delivery of EPSDT services required under federal Medicaid law and laws incorporated herein.
V. ORDER

THEREFORE, THE FOLLOWING PROSPECTIVE INJUNCTIVE RELIEF IS ADJUDGED, ORDERED AND DECREED based upon the foregoing premises and findings, and based on an independent review of the parties' proposed remedial provisions, which the Court finds adequately protects the members of the class and the subclass.
A. Definition of Legal Standard
(1) EPSDT
36. Federal law, 42 U.S.C. ßß 1396a(a)(43), 1396d(a)(4)(B), (r)(5) and regulations promulgated thereunder, 42 C.F.R. ß 441, et seq., entitle some members of the plaintiff class to Early, Periodic, Screening, Diagnosis, and Treatment ('EPSDT') services. See 15, infra. The scope and nature of those services are elaborated upon in the federal State Medicaid Manual and policy transmittals issued by HCFA. See Linton v. Commissioner, 779 F. Supp. 925, 933 (M.D. Tenn. 1990); 65 F.3d 508 (6th Cir. 1995); cert denied__ U.S.___(April 22,1996). These relevant authorities include Part 5 of the HCFA State Medicaid Manual, ß 5010, et seq. (hereinafter 'State Medicaid Manual'), and the HCFA transmittals and policy clarifications that are contained in Attachment 1 and incorporated herein by reference. The TennCare Demonstration waiver extended EPSDT services to non-Medicaid children.8
Under these authorities, Medicaid eligible class members are entitled to EPSDT services as follows:
(a) periodic screening in accordance with professional standards,
(b) diagnostic services, and
(c) medically necessary treatment described in 42 U.S.C. ß 1 396d(a), see pp. 30-31, infra, which are listed in ß V(C)(2)(a) herein.
37. The defendants shall ensure that the MCOs will timely provide all medically necessary care, diagnostic services, treatment and other measures covered by subsection (a) of 42 U.S.C. ß 1396d, consistent with the standards in 42 C.F.R. 440.230 o correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.' 42 U.S.C. ß 1396(d)(r)(5); see State Medicaid Manual, ß 5021, et seq.
(2) Other Authorities Pertaining to Children in DCS Custody

38. Independently of the federal Medicaid rights which they share with other members of the plaintiff class, TennCare enrolled children in DCS custody enjoy the protection of other
-------
8See paragraph 17, infra.

federal authorities which require services to meet the child's needs. Specifically, children in DCS custody eligible to receive federal foster care maintenance payments are entitled to have their health and behavioral health needs identified and treated under the terms of the Adoption Assistance and Child Welfare Act, 42 U.S.C.ß67l(a)(l6). as defined by 42 U.S.C. ß675(1) and (5),9. Children in DCS custody are also entitled to health and behavioral health services which meet constitutional minimums established by the Due Process Clause of the Fourteenth Amendment, as set forth herein.
B. Ensuring Compliance with the Outreach and Screening Mandate
(1) Outreach and Informing
(a) Outreach and Informing Requirements
39. Within 180 days of entry of this decree, the state shall adopt any policies and procedures necessary to ensure that TennCare rules and guidelines clearly describe and allocate responsibility for, and require compliance with, each specific outreach and informing requirement under federal law, including, but not limited to, the following:
(a) "aggressively and effectively" informing enrollees of the existence of the EPSDT program, including the availability of specific EPSDT screening and treatment services (e.g. lead blood assessment, anticipatory guidance, immunizations, case management);
__________
9The parties acknowledge that although DCS follows the same planning process for most children, but see footnote I, infra, the requirements of 42 U.S.C. ß~ 671( 1)(16) and 675(1) and i~5) are only triggered as to children eligible to receive foster care maintenance payments. See 15.

(b) "effectively informing individuals [and others, set forth in (e) below], in a timely manner, generally within 60 days" of the TennCare MCOs receipt of notification of the child's enrollment in its plan and "if no one eligible in the family has utilized EPSDT services, annually thereafter.... " State Medicaid Manual. ß 5121(C):
(c) use of clear and non-technical terms to provide a combination of written and oral information so that the program is clearly and easily understandable, see Id.;
(d) use of effective methods (developed through collaboration with agencies who have established procedures for working with such individuals) to inform individuals who are illiterate, blind, deaf, or cannot understand English, about the availability of EPSDT services; see 42 C.F.R. ß 441.56(a)(3);
(e) designing and conducting outreach to inform all eligible individuals and their biological or foster parents about what services are available under EPSDT. the benefits of preventive health care, where the services are available, and how to obtain them; and that necessary transportation and scheduling assistance is available; for children in institutions, this should include the administrator of the institution; see State Medicaid Manual ß 5121(B), (C);
(f) creation of a system so that families can readily access an accurate list of names and phone numbers of contract providers who are currently accepting TennCare; see 42 C.F.R. ß 441.61;
(g) offering both transportation and scheduling assistance prior to the due date of a child's periodic examination; see 42 C.F.R. ß 441.56(a)(iv) and State Medicaid Manual at ß 5121(b);
(h) providing recipients assistance in scheduling appointments and obtaining transportation prior to the date of each periodic examination as requested and necessary; Id.;
(i) documenting services declined by a parent or guardian or mature competent child, specifying the particular service declined so that outreach and education for other EPSDT services continues:
(j) maintaining records of the efforts taken to reach out to children who have missed screening appointments when scheduled or who have failed to schedule regular checkups, which shall be available to defendants and plaintiffs' counsel;

(k) informing families of the costs, if any. of these services;
(l) establishing criteria for determining when an MCO may be required to target specific informing activities to particular 'at risk' groups, for example: mothers with babies to be added to assistance units, families with infants, or adolescents, first time eligibles, and those not using the program for over two years, who might benefit most from oral methods of informing; see the State Medicaid Manual. ß 5121(a);
(m) providing information on covered services to adolescent prenatal patients who enter TennCare through presumptive eligibility; and offering them, on the day eligibility is determined, assistance in making a timely first prenatal care appointment: for a woman past her first trimester; this appointment should occur within 15 days;
(n) treating a TennCare eligible woman's request for EPSDT services during pregnancy as a request for EPSDT services for the child at birth; see State Medicaid Manual, ß 512 1(B);
(o) for institutions or homes with a number of eligible children, informing them annually, or more often when the need arises, including when a change of administrators, social workers or foster parents occurs. See State Medicaid Manual, ß 5121(B); and
(p) for families of uninsured children who are enrolled in TennCare through county health departments, informing them regarding benefits covered under TennCare and the importance of accessing preventive services.
(b) Outreach Performance Standard
40. The Defendants or their contractors shall achieve within 240 days and shall maintain thereafter. EPSDT outreach efforts designed to reach all members of the plaintiff class with information and materials which conform with Section V(B)(l)(a).
(2) Early and Periodic Screening
(a) Screening Requirements
41. TennCare rules and guidelines shall clearly describe, allocate responsibility for, and require compliance with, each specific screening requirement under federal law, including but not limited to the following:

(a) establishment, after consultation with recognized medical and dental organizations involved in child health care, of distinct periodicity schedules for periodic screening, vision services. hearing services and dental services;
(b) provision of screening, vision, denial, and hearing services (including making arrangements for necessary follow-up, if all components of a screen cannot be completed in a single visit);
(c) requiring that a screening service include the following five elements: (1) comprehensive health and developmental history. which includes assessment of physical and mental health development; (2) a comprehensive unclothed physical exam; (3) appropriate immunizations according to age and health history: (4) laboratory tests (including at a minimum. lead blood level assessment appropriate to age and risk and other tests as indicated in the American Academy of Pediatrics 'Recommendations for Pediatric Health Care;' and for adolescents, the American Medical Association's 'Guidelines for Adolescent Preventive Screening,' and (5) health education, including anticipatory guidance;
(d) requiring that each child be assessed by reviewing dietary practices and height and weight;
(e) requiring that the comprehensive unclothed physical exam compare the child's physical growth against that considered normal for the child's age;
(f) requiring that the medical screen include appropriate childhood immunizations as recommended by the Center for Disease Control's Advisory Committee on Immunization Practices (currently EPSDT must cover diphtheria, pertussis, tetanus, polio, measles, rubella, mumps. varicella zoster (for chicken pox) and hemophilus b conjugate (HIB) vaccines);
(g) requiring that the medical screen include laboratory tests consistent with HCFA minimum standards (HCFA currently requires at least the following, as medically appropriate: anemia test, sickle cell testing, and tuberculin test. In addition to the tests listed above, the child's age, sex and health history. clinical symptoms and exposure to disease can make additional tests necessary, such as urine screening. pinworm slides, urine cultures, serological tests, drug dependence screening, stool specimens for parasite and ova, blood and HIV screening);
(h) requiring that a child below the age of six shall be assessed for lead blood poisoning in accordance with current Center for Disease Control and/or American Academy of Pediatric recommendations.

Children who test high (consistent with Center for Disease Control measures) and children who are deemed to be 'high risk' as a result of the verbal risk assessment must receive follow up consistent with current Centers for Disease Control, and/or American Academy of Pediatrics recommendations:
(i) requiring that the medical screen include health education andanticipatory guidance, i.e., counseling to both parent and child to 'assist in understanding what to expect in terms of the child's development and to provide information about the benefits ofhealthy life style and practices as well as accident and disease prevention;' see State Medicaid Manual at ß 5 123.2(E);
(j) requiring that vision and hearing screens shall be age appropriate and sufficient to diagnose defects in accordance with HCFA guidance;
(k) requiring that the child be referred to a dentist for preventive dental care and screening in accordance with the dental periodicity schedule;
(l) requiring that dental services shall be performed by or under the supervision of dentists;
(m) prohibiting MCOs from imposing prior authorization on periodic screens conducted by the primary care provider, and requiring MCOs to provide all medically necessary, TennCare covered services regardless of whether or not the need for such services was identified by a provider whose services had received prior authorization from the MCO or by an in-network provider;
(n) requiring that MCOs ensure that developmental screenings comply with any assessment protocols or procedures developed in accordance with this Decree, and that the following principles contained in ß 5123.2(. )(l)(h) of the State Medicaid Manual areconsidered:
(i) Consideration of information on the child's usual functioning, reported by the child, teacher, parent. health professional, or other familiar person. subject to appropriate releases;
(ii) Review of such information in conjunction with the comprehensive health and developmental history and information gathered during the physical examination, in order to make a professional judgment whether a child's developmental processes are normal in relation to his or her age group and cultural background;
(iii) Use of culturally sensitive developmental assessments:

(iv) Avoidance of premature diagnosis labeling; and
(v) Referral to appropriate child development resources for additional assessment, diagnosis, treatment or follow-up should occur whenever concerns or questions remain after the screening process. See Section 51 23.2(A)( 1)(b).
42. With regard to interperiodic screens. TennCare rules and guidelines shall clearly describe and allocate responsibility for, and require compliance with, each specific requirement of federal law governing the provision for interperiodic screening, vision, hearing, dental and diagnostic services which are medically necessary to determine the existence of suspected physical or mental illnesses or conditions. See 42 U.S.C. ß 1396d(r) (l)-(4); State Medicaid Manual, ß 5040, et seq. The state's policies shall include the following provisions:
(a) a requirement that any encounter with a health professional practicing within the scope of his practice is a interperiodic screen and that any person (such as an educator, parent. or health professional) who suspects a problem may refer a child for an interperiodic screen; and
(b) a provision that an interperiodic screen does not have to include any screening elements required for a periodic screen. Any encounter with a Medicaid or nonMedicaid participating health care professional practicing within the scope of his or her practice is to be considered an interperiodic screen; and
(c) a provision, prohibiting MCOs from imposing prior authorization on interperiodic screens conducted by the primary care provider, and requiring MCOs to provide all medically necessary, covered services regardless of whether or not the need for such services was identified by a provider whose services had received prior authorization from the MCO or by an in-network provider.
43. The defendants shall ensure that their contractors' networks are adequate in terms of qualifications and training, as well as in numbers, to properly screen children in conformity with the requirements of the State Medicaid Manual, the Medicaid statute and regulations, and relevant policy directives from HCFA.
44. The state will take the following steps to ensure that each periodic screen accurately identifies children who should be referred for further assessment of behavioral/developmental problems and/or possible hearing or vision impairment:
(a) establish a committee of EPSDT providers and MCO medical directors to develop and assist with implementation of a plan to assure that children in need of more in-

depth developmental/behavioral assessments and/or hearing assessments are identified through the periodic screening examinations;
(h) assure that developmental, behavioral, hearing and vision assessment experts are consulted and are active participants in the process described in (a) above, as their areas of expertise are addressed by the committee;
(c) facilitate the process of piloting the recommendations developed by the pediatric practices in the state;
(d) reconvene the committee to review the pilot results and make necessary modifications to the recommendations:
(e) conduct statewide training on implementation of committee recommendations; and
(f) adopt committee recommendations as components of TennCare EPSDT screening guidelines for providers.The parties recognize that the behavioral/developmental component of this process represents a substantial undertaking which will be subject to refinement and which will require up to approximately 18 months to accomplish. Thus, the state has flexibility under this consent agreement to modify this process in consultation with the plaintiffs, as necessary, to accomplish the goal of assuring identification of children in need of additional evaluation following the screening process Development of guidelines to assure that children with possible hearing or vision impairment are referred for further evaluation will be completed within six months.
(b) Screening Performance Standards
45. Within 120 days after this order is entered, a baseline percentage of screening compliance shall be determined. The defendants, in consultation with the plaintiffs, shall determine the percentage based on the best available data on recent screening levels.
46. A baseline periodic screening level will be calculated by the TennCare Bureau using HCFA 416 mathematical methodology and enrollment and encounter data to determine the number of periodic screens that should have occurred in the federal fiscal year ending September 30, 1996. The CPT-4 and ICD-9-CM codes specified in HEDIS 3.0 as well-child visits and adolescent well-care visits will be the primary determinants of which encounters are counted as periodic screens. The baseline periodic screening ratio for the period from October I, 1995 through September 30,

1996 will be calculated using HCFA 416 methodology. This baseline periodic screening ratio will be multiplied by 100 to calculate the baseline periodic screening percentage. Subsequent periodic screening percentages will be calculated using methodology identical to that used in calculation of the baseline periodic screening percentage.
The TennCare Bureau will conduct an annual statistically valid medical record review of a sample of encounters coded as periodic screens to determine whether or not the following required components are documented:
a. comprehensive health (physical and mental) and developmental history,
b. comprehensive unclothed physical exam.
c. appropriate immunizations according to age and health history,
d. appropriate laboratory tests according to age and health history,
e. health education.
f. hearing screen, and
g. vision screen.
The proportion of these required components present in each record will be documented and an overall proportion calculated for the entire sample. The periodic screening percentage will be multiplied by this overall proportion to produce an adjusted periodic screening percentage(APSP).
The encounters included in each medical record review will be selected from the most recent encounter data available to the state at the time of sample selection. As a result, the sample encounters may represent dates of service more recent than the dates of service associated with the encounters included in the calculation of the periodic screening percentage which the medical record review results will be used to adjust.
In addition, utilizing a screening frequency standard of one screen per year. per child for ages three through twenty, HCFA 416 methodology, and dental encounter codes specified by TennCare, the TennCare Bureau will calculate a baseline dental screening ratio for the period from October 1, 1995 through September 30, 1996. This baseline dental screening ratio will he multiplied by 100 to calculate the baseline dental screening percentage (DSP). Subsequent dental screening percentages will he

calculated using methodology identical to that used in calculation of the baseline dental screening percentage.
47. The TennCare Bureau shall require the MCOs to use the procedure and/or diagnosis codes specified herein above when reporting the EPSDT screens. The TennCare Bureau will provide education to MCOs concerning the requirement that the previously listed five screening components must be present in order to utilize these codes.
Following the annual medical record review, for each of the required seven screening components, the TennCare Bureau will report the percentage of periodic screening encounters which included documentation of that component. MCOs will be required to submit corrective action plans to address deficiencies in any of the seven required screening components which are identified during the medical record review process. Corrective action plans must be reviewed and approved by TennCare prior to implementation. TennCare will monitor implementation of such plans and may impose financial penalties for failure to follow through with implementation.
48. If the baseline APSP for the federal fiscal year ending on September 30, 1996 is less than 25. the APSP shall increase by no less than 30 percentage points during the federal fiscal year ending September 30, 1999. If the baseline APSP for the federal fiscal year ending on September 30, 1996 is more than 25, the APSP shall increase by no less than 20 percentage points during the federal fiscal year ending September 30, 1999.
If the baseline DSP for the federal fiscal year ending on September 30, 1996 is less than 20, the DSP shall increase by no less than 15 percentage points during the federal fiscal year ending on September 30, 1999. If the baseline DSP for the federal fiscal year ending on September 30, 1996 is more than 20, the DSP shall increase by no less than 10 percentage points during the federal fiscal year ending September 30, 1999.
The APSP and DSP for the federal fiscal year ending on September 30, 1999 will be calculated by TennCare and made available to the plaintiffs by April 30. 2000.
49. If the APSP is ]less than 55 for the year ending September 30, 1999, the APSP shall increase by no less than 20 percentage points during the year ending on September 30, 2000. If the APSP is more than 55 for the year ending September 30. 1999, the APSP shall increase by no less than 15 percentage points during the year ending September 3,2000.

The DSP shall increase by no less than 10 percentage points in each year beginning with the year ending on September 30, 2000 through the year ending on September 30, 2002.
The APSP and DSP for the federal fiscal year ending on September 30, 2000 will be calculated by TennCare and made available to the plaintiffs by April 30, 2001. The DSP for the federal fiscal years ending on September 30. 2001 and September 30, 2002 will he calculated by TennCare and made available to the plaintiffs by April 30, 2002 and April 30. 2003, respectively.
50. For the period of October 1, 2000 through September 30, 2001. the APSP shall be no less than 80 The APSP for the federal fiscal year ending on September 30. 2001 will be calculated by TennCare and made available to the plaintiffs by April 30, 2002.
For the period of October 1, 2002 through September 30, 2003, the DSP shall be no less than 80. The DSP for the federal fiscal year ending on September 30, 2003 will be calculated by TennCare and made available to the plaintiffs by April 30, 2004.
51. The Defendants shall be presumed to be in compliance with their screening obligation under the law and the terms of this order in any year in which:
(1) the above applicable standard has been met, or
(2) all children who have not received complete screenings, consistent with this Order, have been the subject of outreach efforts reasonably calculated to ensure their participation.
In any year in which the Defendants fail to achieve the screening rates established in this Order, they may nonetheless demonstrate their compliance by a showing that the failure to achieve screening levels was due to factors beyond the control of the defendants or their agents.
52. The Defendants shall achieve complete screening of 100% of TennCare children in DCS custody within S months of the entry of this order, and shall maintain that level of screening thereafter. The tracking system developed by DCS shall be the system which shall be used to report compliance with this standard.
DCS shall maintain responsibility for the EPSDT screens for TennCare-enrolled children in the legal, hut not physical, custody of DCS. Children who have been placed in a permanent setting, i.e., birth, adoptive, relative or other permanent home, but whose legal custody has not been transferred from DCS to said permanent custodian/guardian are defined as being in the legal, but not physical. custody of DCS.

For this group of children. DCS shall have the responsibility for informing the family about the child's EPSDT screening needs and providing reasonable assistance so as to empower the family to obtain said screens. Good cause for failure to screen a child in the legal, but not physical, custody of DCS can be demonstrated by a showing that the defendants and their contractors took all actions that could reasonably be expected to achieve compliance with regard to such child, and that failure to screen the child was a result of factors outside of the control of the defendants or their contractors.
C. Ensuring Compliance with the Diagnosis and Treatment Mandate
(1) Diagnosis
53. Within 120 days of the entry of this order, the defendants shall establish and maintain a process for reviewing the practices and procedures of the MCOs and DCS, and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another, more sophisticated level of diagnosis as needed to determine the child's physical health, behavioral health and developmental needs, as to medically necessary services.
(2) Treatment - General Requirements
(a) Scope of Benefits
54. Defendants shall ensure that, within their respective spheres of responsibility, TennCare. the MCOs and DCS provide children all medically necessary EPSDT services as listed in 42 U.S.C. ß l396d(a) and as defined in corresponding Medicaid regulations. Services which are required under EPSDT law, when medically necessary, are as follows:
(a) Inpatient hospital services (other than services in an institution for mental diseases):
(b) Outpatient hospital services: rural health clinic services: and services offered by a federally-qualified health center;
(c) Other laboratory and x-ray services;
(d) EPSDT services, and family planning services and supplies;
(e) Physicians' services; medical and surgical services furnished by a dentist;

(f) Medical care, or any other type of remedial care recognized under state law, furnished by licensed practitioners within the scope of their practice as defined by state law;
(g) Home health care services;
(h) Private duty nursing services:
(i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(l) Prescribed drugs, dentures, and prosthetic devices; eyeglasses:
(m) Other diagnostic, screening, preventive, and rehabilitative services;
(n) Services in an intermediate care facility for the mentally retarded (other than in an institution for mental diseases):
(o) Inpatient psychiatric services for individuals under age 21;
(p) Services furnished by a nurse-midwife;
(q) Hospice care:
(r) Case management services and TB-related services;
(s) Respiratory care services;
(t) Services furnished by a certified pediatric nurse practitioner or certified family nurse practitioner;
(u) Personal care services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease; and
(v) Any other medical care, and any other type of remedial care recognized under state law, specified by the Secretary of the United States Department of Health and Human Services.

In addition to the services identified in the above list, the TennCare waiver allows the use of cost-effective alternative services in certain situations. These cost-effective alternative services are identified as services which may or may not be included in the above list and which are medically appropriate and cost-effective when delivered in place of other services on the list which have been determined to be medically necessary for an individual enrollee. The parties recognize that there are many kinds of services which fit under the above list of covered services and that delivery of medically necessary services may involve different service delivery mechanisms.
(b) Medical Necessity
55. The defendants shall review MCO practices with regard to making decisions about medical necessity and identify any practices that are inconsistent with the federal laws cited herein. The defendants shall issue clarifications and ensure compliance with such federal law, regarding medically necessary treatment, including but not limited to. the following clarifications:
(a) That prior authorizations and medical determinations shall he made on a case-bycase basis for each service sought for a class member.
b) That services are provided if necessary 'to correct or ameliorate defects and physical and mental illnesses and conditions 42 U.S.C. ß l396d(r)(5).
(c) That the definition of medical necessity shall be applied so that services are covered if they correct, compensate for, improve, or prevent a condition from worsening, even if the condition cannot be prevented or cured.
(d) That medically necessary services shall be provided, whether or not the condition existed prior to any screening and whether or not the screener is under contract with the particular managed care entity.
(e) That defendants and their contractors and subcontractors arc in compliance with HCFA Office of Managed Care Operational Policy Letter No. 96.045 (December 3, 1996), and do not have financial or contractual arrangements which undermine class members' access to covered services. (See Attachment 1)
56. The defendants will ensure that the MCOs and DCS use only the definition of 'medically necessary' in the TennCare MCO contracts when making medical necessity decisions. [See Attachment 2 for the current definition.] Nothing in this section shall be interpreted to limit an MCO's ability to use or establish mechanisms to apply the TennCare contractual medical necessity definitions or to direct patients to medically

appropriate, more cost effective alternatives, provided these services would adequately address the patient's medical needs.
57. The defendants and their contractors shall not impose the absolute amount limitations that were previously listed in the benefit plan, nor shall they impose duration and scope limitations or monetary caps upon EPSDT services. Rather, such services shall be required to be provided based upon each child's individual needs. This is not intended to limit the ability of a managed care organization to place 'tentative' limits on a service (e.g. prior authorization of 30 days of home health services). However, any such limits must be consistent with the 'preventive thrust' of EPSDT.
Utilization controls cannot unreasonably delay the initial or continued receipt of services, nor can they cause recipients to go without needed care. There must be an expeditious process in place to ensure that children receive without interruption any medically necessary services which exceed tentative limits. Any denial of a timely request from the provider who originally prescribed an ongoing service for continuation of the service beyond tentative limits shall be attended by notice to the beneficiary prior to reduction or termination of the services; if the denial is appealed in a timely fashion, the services shall be continued pending appeal, without regard to the managed care contractor's tentative limits. See Daniels v. Wadley, No. 79-3107NA-CV (M.D. Tenn.). A request from a provider for continuation of a service shall be considered timely if it is made prior to termination of the treatment interval previously approved by the MCO. The state or its contractor will review- the MCO prior approval/utilization review process on an annual basis to assure that tentative limits approved by the MCOs are appropriate.
58. The defendants and their contractors shall require that utilization review and prior authorization decisions be made only by qualified personnel with education, training, or experience in child and adolescent health. Within 120 days of the entry of this order, the defendants shall establish standards and procedures for monitoring their contractors' utilization review and prior authorization activities to ensure compliance with this requirement.
c) Prior Authorization
59. The MCOs shall provide all medically necessary, covered services regardless of whether or not the need for such services was identified by a provider whose services had received prior authorization from the MCO or by an in-network provider.
(d) Access to Treatment

60. Within 120 days of entry of this decree, TennCare shall develop a provider handbook to specify the responsibilities of MCOs and DCS related to provision of medically necessary services for children in DCS custody. This handbook should assist in delineating service duty responsibilities in the area where there is the most potential for overlap. Said provider handbook shall:
(i) Provide definitions, where federal law specifies them, for all covered services specified in 42 U.S.C. ß 1396d(a);
(ii) Specify coverage of vision, hearing and dental services;
(iii) Allocate clear responsibility for provision of each service:
(iv) Provide general instructions for obtaining MCO approval for referral to out of plan providers performing EPSDT services:
(v) Require that MCOs demonstrate that their networks include providers with cultural and linguistic competency, or access to translators, as may he needed for the effective treatment of children from ethnic minorities: and
(vi) Require that each MCO have a sufficient array of services and specialists to meet the medical and behavioral health needs of class members, including durable medical equipment and medical supplies.
61. The defendants shall ensure that they or their contractors:
(i)Include in MCO contracts a requirement that provider agreements. after the next amendment process. inform providers of the package of benefits that EPSDT offers and require providers to make treatment decisions based upon children's individual medical and behavioral health needs;
(ii) Demonstrate within 180 days of entry of this Order, that provider networks currently comply with the 'Terms and Conditions for Access' (See Attachment 3) issued with the HCFA approved TennCare Demonstration Waiver, which ensures the availability of timely comprehensive primary, preventive, behavioral health, and inpatient and outpatient substance abuse services; and
(iii) Require MCOs to demonstrate beginning no later than 180 days after entry of this Order, that the reasonable promptness requirement of 42 U.S.C. ß 1396a(a)(8) and the geographic comparability requirement of 42 U.S.C. ß 1396a(a)(30)(A) are being met.10 To be in compliance, the MCOs must meet the HCFA 'Terms and Conditions for Access', as may be amended by HCFA, for the class certified herein. The parties

recognize that the reasonable promptness standard requires provision of medically necessary services. This requirement does not guarantee a residential treatment program solely based upon beneficiary or provider preference unsupported by medical necessity.11 Where a specific residential placement is recommended, and there is a waiting period for such placement, during the interim a MCO must
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10 42 U.S.C. ß 1396a(a)(30)(A) provides that there must be 'enough providers so that care arid services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. ...'
11 Moreover, the TennCare Waiver waived the freedom of choice of provider provision contained in 42 U.S.C. ß I 1396a(a)(23). See Attachment 3 at paragraph 4.
provide the medically necessary TennCare services required, consistent with the above HCFA Terms and Conditions and may not simply place the child on a wait listing for the specific residential placement.12
62. Beginning no later than 180 days after the entry of this Order, the defendants shall require MCOs to provide each primary care provider participating in the EPSDT program an up-to-date list of specialists to whom referrals may be made for screens, laboratory tests, further diagnostic services and corrective treatment. This list shall be supplemented quarterly to indicate additions or deletions and shall comply with the access/availability standards of the 1115 waiver.
(3) Treatment- Requirements for Specific Services
(a) Rehabilitation
63. Rehabilitation includes, unless otherwise provided under Subpart A of Part 440 of 42 C.F.R .,'any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of an recipient to the best possible functional level.' 42 C.F.R. ß440.130(d); See 42 U.S.C. ß1396d(13) . Rehabilitation services may, and where medically necessary to do so, shall, be delivered in conjunction with the services listed in paragraph 54. 13
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12The parties recognize that several issues which appear similar to those raised herein are not at issue in this lawsuit. Accordingly, this Consent Decree is not intended to address nursing home facilities, nor does it apply to services to be provided under the Home and Community Based Waiver, under 42 U.S.C. ß 1915.
13In recognizing that medical necessity may require that rehabilitative services be provided in conjunction with other covered medical services, the parties do not intend to imply any 'right' to a particular location for delivery of services.

64. Covered services include maintenance services which prevent or mitigate the worsening of conditions or prevent the development of additional health problems. HCFA Program Issuance Transmittal Notice IV(Sept.1, 1992)(MCD-89-92). (See Attachment 1)
65. Within 130 days of entry of this Order, the state shall issue any necessary policy clarifications so that the defendants or their contractors understand their duty to provide EPSDT diagnosis and treatment services consistent with 42 U.S.C. ß 1396d(r), quoted above. Thereafter, the defendants shall inform, in a timely manner and on an ongoing basis, all of their contractors about what federal Medicaid law requires with respect to specific screens, diagnoses and treatments.
(b) Case Management
66. Defendants and their contractor will provide case management services consistent with federal law by:
(i) assisting children for whom case management is medically necessary 'in gaining access to needed medical, social, education and other services;' [42 U.S.C. ß 1396n(g)(2); see Letter from Christine Nye, HCFA Medicaid Director to Lourdes A. Rivera and Sara Rosenbaum, CDF (May 21, 1992) See Attachment 1].
(ii) The defendants shall ensure that the case management provided "center[s] on the process of collecting information on health needs of the child, making and following up on referrals as needed,...activating the examination/diagnosis/treatment 'loop'." Notifying recipients of the time they are due to receive a screening service "is an essential part of case management." State Medicaid Manual. ß 5310; See Attachment 1.
67. The defendants have also exercised an option using federal Medicaid funds to provide targeted case management services for children in state custody or at risk of entering state custody as identified by a juvenile court pursuant to Title 37, Tenn. Code Ann. It is anticipated that these services will continue to be offered through DCS.
68. Medical case management services have been required under the state's contracts with MCOs since January 1, 1994. The defendants shall continue to require that these services be provided to all TennCare children for whom they are medically necessary, subject to relevant change in the TennCare waiver.

69. Mental health case management services for children whose behavioral health needs require these services have been required under the state's contracts with BHOs since July 1, 1996. The defendants will continue to require that these services be provided to all TennCare children for whom they are medically necessary, subject to relevant change in the TennCare waiver.
70. The defendants acknowledge that provision of case management activities is a central function of a managed care program. As such, case management activities are integrated throughout the operations of the MCOs. The particular case management activities conducted by an MCO will vary depending on the medical needs of the child, which is consistent with EPSDT regulations. However, the case management services must address the needs of the child and cannot be used exclusively as a tool for prior authorization. The state will continue to monitor MCO case management activities to assure they are consistent with federal law through, for example the EQRO surveys and other program monitoring activities. See also Section D, infra, related to coordination with other programs.
c) Behavioral Health Services
71. The defendants shall ensure that they and their contractors:
(i) Involve parents and family members, to the greatest extent possible, in the determination of behavioral health services to be delivered to a particular child;
(ii) Provide a comprehensive and appropriate scope of geographically accessible child and adolescent behavioral health services and in a range of treatment settings:
(iii) Provide for appropriate continuity of care and services following psychiatric or chemical dependency inpatient facility services or residential treatment as specified in a realistic discharge plan in which the patient and his family or other caregivers, clinicians, and social worker have participated. This discharge plan shall include. but not be limited to, an outpatient visit, which must be scheduled within clinically appropriate time period before discharge which assures access to proper physician/medication follow-up and other medically necessary services. Within 120 days of the entry of this Order the defendants shall enhance their current monitoring of contractors' adherence to this requirement in order to assure their compliance; and
(iv) Arrange for provision of all medically necessary behavioral health services for a child, without regard to whether he is designated as Severely Emotionally Disturbed (SED). However, the defendants may use the SED designation as a basis for focusing enhanced quality assurance and monitoring activities, in order to ensure EPSDT compliance with regard to this vulnerable population.

72. Within 30 days of the entry of this Order the defendants shall submit a notice of proposed rulemaking to withdraw state rules establishing lifetime dollar limits and absolute service limits on behavioral health services to children under 21.
73. Within 120 days of the entry of this order, the state or the state's contractor shall monitor a sample of children entering DCS custody and assess the adequacy of services provided to them by TennCare contractors prior to their entry into custody. The review will include an assessment of the effectiveness of the services provided to the child prior to the custody arrangement being made.
d) Non-Emergency Transportation
74. The defendants shall ensure that the MCOs meet their responsibilities to provide non-emergency transportation services under Daniels v. Wadley, No. 79-3107- NACV (M.D. Tenn.).
75. The defendants shall prohibit MCOs from imposing blanket restrictions or requirements on transportation to plaintiff class members because of their age or lack of parental accompaniment.
76. The defendants or their contractors shall provide non-emergency transportation in accordance with 42 U.S.C.ß 1396d(a)(25); 42 CFR.ßß 440.l70(a), 441.62: State Medicaid Manual, ß 5150. Transportation assistance includes 'related travel expenses,' cost of meals and lodging in route to and from care and the cost of an attendant to accompany a child if necessary.
77. The defendants or its contractors shall develop and implement protocols and procedures by which MCOs will make referrals to TennCare transportation providers.
D. Ensuring Compliance with the Mandate to Coordinate EPSDT Services with Other Programs Services
78. The defendants shall coordinate EPSDT services with other children's health and education services and programs in accordance with State Medicaid Manual, ß 5230. See Attachment 1.
79. Within 180 days, the state will provide to its contractors a statewide list of services available through state agencies for which EPSDT coordination is appropriate.

80. Within 240 days. the Defendants and their contractors shall coordinate EPSDT outreach, screening, and treatment services with services or programs on such statewide comprehensive list.
81. Within 180 days. the state shall require use of a process to provide information to MCOs when children have been identified as needing to receive medically related services in an educational setting, to facilitate MCO coordination of EPSDT services. The TennCare Bureau will notify the Local Education Agencies ("LEAs") that MCOs are responsible for requesting the individual educational plans ("IEPs") for children enrolled in each MCO. Such IEPs will be shared with the primary care physician ('PCP'). The state will develop a release form to provide to LEAs for parents to consider. MCOs shall accept the IEP indication of a medical problem or shall have the child appropriately tested. Coordination by the MCO should be calculated to reduce gaps and overlaps in services. The state's review of the adequacy of such coordination is guided by 42 C.F.R. ß 441.61(c) which says that the agency:
must make appropriate use of state health agencies, state vocational rehabilitation agencies, and the Title V Grantees (Maternal and Child Health/Crippled Children's Services). Further, the agency should make use of other public health, mental health, and educational programs and related programs such as Head Start, Title XX (social services) programs, and the Special Supplemental Food Program for Women, Infants and Children ('WIC'), to ensure an effective child health program.
(Emphasis added).
82. Within 180 days, the defendants shall issue regulations and policy guidance to their contractors which incorporate strategies for ensuring coordination of EPSDT services among contractors, and with the other programs and services enumerated above.
83. The defendants will create and maintain a Commissioner's Task Force, establish dispute resolution and coordination processes and develop interagency agreements and referral agreements to facilitate the ongoing coordination and integration of EPSDT services administered by the managed care contractors and DCS.
E. Coordination and Delivery of Services for Children in DCS Custody
Paragraphs 84-93 pertain to the Department of Children's Services.
(1) Title IV-E of the Social Security Act (the "Adoption Assistance and Child Welfare Act")

84. The Department of Children's Services shall ensure that the case planning and case review required under the relevant portions of the Adoption Assistance and Child Welfare Act for TennCare children in DCS custody who are subject to such Act shall identify and provide for the treatment of the behavioral health and medical needs of these children in accordance with 42 U.S.C. ß 671(a)(16) as defined in ß 675(1) and (5), as set out herein:
(i) The instant order is meant to ensure only that adequate plans are made and implemented to address the behavioral health and medical needs of children in DCS custody;
(ii) The case plans and reviews dealing with these issues shall include, but not be limited to, information on medically necessary EPSDT screening and services that the state must provide for each child enrolled in TennCare; and
(iii) The parties specifically reserve the issue of whether case plans are adequate with regards to those services which do not address a child's medical or behavioral health needs.
(2) Due Process
85. The parties also recognize that the state must comply with constitutional requirements established by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which includes the health and behavioral health treatment of children in non-criminal state custody. The parties recognize that the Sixth Circuit Court of Appeals in Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir. 1990). cert. den. 498 U.S. 867 (1990). concluded that children in state-regulated foster homes have a substantive due process right to be free from infliction of unnecessary harm and are entitled to personal safety in such foster homes.14
86. When a person is civilly institutionalized, he or she has constitutionally protected liberty interests under the Due Process Clause to reasonably safe conditions of confinement,
_________
14But see footnote 5, infra.

freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably might be required by those interests. Youngberg v. Romeo, 102 S.Ct. 2452, 457 U.S. 307, 73 L.Ed.2d 28 (1982).
87. This Consent decree adjudicates children's constitutional rights only with respect to adequate health and mental health treatment.
(3) Formulation of Coordination Plan
88. Within 120 days, the service testing process, currently performed by the Tennessee Commission on Children and Youth, which assesses all services (medical, and non-medical) provided to children in DCS custody, shall include on an ongoing basis an audit of EPSDT compliance with regard to the children sampled. Such testing may be conducted by the state or a DCS contractor(s).
89. The defendants shall create an expert review process which will provide for evaluation of the defendants' EPSDT compliance plan to determine whether said plan is reasonably calculated to ensure compliance with EPSDT law, and relevant portions of laws contained herein, and to provide the required coordination of EPSDT with other non-medical services. The state shall select a contractor within 45 days who has appropriate expertise in the design, coordination and delivery of medical services to children in DCS custody, or at risk of coming into DCS.15 It is anticipated that a contract will be executed within 100 days of entry of this Order. The Subcontractor will serve as a resource to both sides and, if need be. the Court. as Set forth herein.
_______
15While the parties have identified a mutually satisfactory contractor, they recognize that state contracting law must be complied with in effectuating closure of a state contract.

90. The evaluator/s are to become familiar with Tennessee's current arrangements and prospective plans for delivering EPSDT and related services to children in DCS custody, or at risk of coming into DCS' custody as defined in paragraph 6 herein. The evaluator('s') function is to assess those present or proposed arrangements in terms of their likelihood of producing, in a timely fashion, a system which can adequately meet children's needs for medically necessary care as defined herein. If the evaluators conclude that there are policy alternatives which would achieve compliance in a more timely or effective manner, they shall identify those alternatives and make appropriate recommendations regarding their implementation. While it is anticipated that the evaluator(s) will provide recommendations as to matters not required herein, only those specifics required by this Consent Decree shall be enforceable under this Consent Decree.
91. Upon request, the evaluators shall be afforded access to such records (including electronic data files) or persons as necessary to fulfill the responsibilities imposed by this order. Each party shall have access to information and materials obtained by the evaluators: however, except for information which originated with the parties' counsel, the evaluators may withhold the source of any information they have received. The evaluators may communicate ex parte with the parties, their agents or counsel; upon request, the evaluators shall disclose to the opposing party the general substance of such communications. The evaluators shall otherwise treat all records as confidential.
92. The evaluators shall report their initial findings in writing to both parties within 90 days of contract execution with the state. Such findings shall not contain identifying information regarding any TennCare enrollee. Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained herein for children in state custody. In the event the parties are unable to agree by the 60th day, the state shall thereafter file a proposed remedial plan within 30 days along with the evaluator's report. Plaintiffs may file any response in opposition with 30 days thereafter. The evaluators will review any subsequent substantial or material alterations to the plan, and to review the defendants' progress in implementing the plan. The evaluators shall provide semiannual written reports to the parties and to the Court regarding such reviews.
93. It is the parties' intent that the evaluator contract will be maintained to effectuate the requirements contained herein, including retention of the evaluator during the term of this consent decree, who, it is intended, will continue to be available as an evaluative resource until resolution is mutually agreed upon. In the event that the state or the plaintiffs challenge the continued effectiveness of the contractor, the parties shall meet to mutually agree upon modification to this process.

F. Monitoring and Enforcement of MCO and DCS Compliance
(1) Individual Tracking
94. Within 180 days, the Defendants shall require their contractors to achieve and maintain the capability of tracking each child in the plaintiff class, for purposes of monitoring that child's receipt of the required screening, diagnosis and treatment. The tracking system shall have the capacity of generating an immediate report on the child's EPSDT status, reflecting all encounters reported to the contractor more than 60 days prior to the date of the report.
95. Within 150 days, DCS shall achieve and maintain a tracking system as reflected above. The tracking system shall have the capacity to generate a report on the child's EPSDT screening status and shall reflect all screens received by the child more that 30 days prior to the report. DCS shall establish a procedure for notification of TennCare if a DCS case manager suspects that action or inaction by an MCO in performing its duties under the TennCare contract has caused a child to inappropriately enter DCS custody. TennCare shall receive such notification as part of its complaint processes and take whatever action is appropriate. DCS shall include this procedure as part of its departmental training.
(2) Systems Monitoring
96. The defendants shall establish within 120 days an ongoing process for monitoring and reporting their compliance with the requirements of this order. That process shall include the elements set forth in paragraphs 97-103 below for monitoring the different aspects of the EPSDT obligation.
(A) Screening
97. The state shall compile, in a standardized electronic format capable of supporting flexible, customized analysis and reporting, data on all pertinent provider encounters which involve children, and which are covered by the TennCare program.
98. The stare shall conduct ongoing audits for the purpose of authenticating such encounter data. In order to ensue the integrity of the audit reports, such audits shall be conducted by qualified personnel and shall meet generally accepted standards regarding sample size and selection.
(B) Diagnosis and Treatment

99. Within 60 days, the state will select a contractor who will be a qualified, independent person, persons or entity to conduct services testing on a sample of plaintiff class members, to determine whether they have received necessary diagnoses and medical/behavioral treatment in conformity with the requirements of this order. It is anticipated that this contract shall be executed within 120 days. Such testing shall include reviews of patient clinical records by personnel with appropriate clinical training. The testing shall also elicit from family members and other nonmedical sources, subject to obtaining proper releases, any important information which they might have, relating to the adequacy of the children's diagnoses and treatment. The contractor/s who perform such testing shall be mutually acceptable to both sets of parties. This testing shall cover a representative group of beneficiaries, selected according to generally accepted standards regarding sample size and selection; provided, however, that the parties may approve the over sampling of any subgroups of children (e.g., children with chronic illness) whom the parties mutually identify as requiring special attention. The medical record review of a sample of children receiving EPSDT periodic screens described in 46, infra. and the monitoring of a sample of children entering DCS custody described in 73, infra, may constitute a portion of this service's testing study.
100. The TennCare Bureau shall issue policy clarifications and interpretations as necessary to guide the MCOs and DCS in interpretation and application of the EPSDT mandate. The Bureau shall modify such policies from time-to-time as necessary to conform with TennCare Appeals Unit experience, and final administrative law and final judicial rulings pertaining to the TennCare program.
101. Within 120 days, the state shall conduct the first of semiannual reviews of appeals filed under the TennCare Program to determine whether deficiencies or repeated violations necessitate financial penalties upon managed care contractors which have inappropriately denied EPSDT services to children. The state shall financially penalize any managed care contractor as indicated.
102. Within 60 days of this Order, the External Quality Review Organization ('EQRO') or other contractor designated by the state shall perform review of provider contracts, to specifically determine any provisions which would encourage violations of the EPSDT mandate. The plaintiffs shall have access upon request to the slate to any provider contracts reviewed for compliance by the EQRO or other contractors designated for this purpose.
103. Within 60 days of identification, by the state or its contractor(s), of a contract provision which encourages violation of the EPSDT mandate, corrective action shall be taken.

G. Reporting and Plaintiff Access to Public Records
(1) Semiannual Reports
104. The defendants shall file semiannual reports with the court and plaintiffs' counsel regarding their compliance with the terms of this order. These reports shall he filed on July 31st and January 31st of each year. They shall contain information, validated by the applicable audit and testing procedures outlined herein, which accurately and fully reflects the status of the state's compliance with each of the applicable requirements of this order. References to numbers of beneficiaries shall be unduplicated.
(2) Plaintiff Access
105. Upon 30 days prior notice to TennCare. plaintiffs counsel shall have access during normal business hours to any public records relating to the state's compliance with the terms of this order, or to the monitoring, auditing or testing of such compliance. Subject to any applicable federal laws limiting the authority of a court to grant access to such records, plaintiffs' counsel shall have access to the records of members of the plaintiff class. All information related to plaintiff class members provided to plaintiffs' counsel shall be considered to be confidential and shall not be used for functions other than those directly related to compliance with this order. All such records shall be obtained, if necessary. and provided to plaintiffs' counsel through TennCare, rather than through individual MCOs.
(3) Meetings of Parties
106. The parties will meet at least quarterly to monitor the progress of implementation of this decree, in order to identify and resolve obstacles to implementation at the earliest practical point. Any motion seeking further relief, either by modification or for enforcement of this order, shall be accompanied by a certificate of counsel attesting that a good faith effort has been made to resolve, through negotiation, the issues which are the subject of the motion, and shall describe such effort.
H. Attorney Fees
107. Defendants shall pay all allowable costs, including plaintiffs' reasonable attorneys' fees pursuant to 42 U.S.C. ~ 1988. The parties shall make a good faith effort to resolve the questions regarding plaintiffs' attorneys' fees and other costs before submitting that issue to the court for resolution. Within 60 days of entry of this decree, plaintiffs' counsel shall submit itemizations of fees and expenses to

defendants' counsel. If the parties cannot reach a resolution and agreement, plaintiffs' counsel shall file affidavits and itemizations of attorneys' fees expenses to the court within 60 days of providing such itemizations with defendants' counsel. Defendants shall file objections to the fees request within 60 days of plaintiffs filing the affidavits and itemizations- These time periods may be extended by the court for good cause shown.
I. Reservation of Rights
108. With respect to the non-Medicaid provisions of federal law cited herein, this order adjudicates the parties' rights and responsibilities only to the extent that such laws affect the delivery of health services (including behavioral health services) to members of the plaintiff class. The parties do not intend this case to govern any other aspect of the implementation of such laws.
109. This Order is not meant to adjudicate any claims under the Americans with Disabilities Act and regulations (42 U.S.C. ßß 12131-12334; 28 C.F.R. ß41.51) which class members may have if their physical or behavioral health needs are addressed in a segregated setting.
110. As to the members of the plaintiff class, the systemic remedy established in this order shall not deprive an individual of rights afforded by the laws cited herein. Specifically, the fact that the defendants are in compliance with the overall requirements and timetables adopted in the decree shall not relieve them of their obligations to individual class members, nor abrogate the rights of any individual class member to the full range of health and behavioral health services guaranteed to him by law. This Consent Order shall not affect the right of any individual class member to seek any and all relief that is otherwise available through administrative review proceedings authorized by state and federal law, or through proceedings against the State before the Tennessee Claims Commission based upon alleged actions or omissions of the defendants. The parties acknowledge the State may assert any and all defenses available in any such administrative, Claims Commission or other litigation. It is the intent of the parties that any individual cases, now under jurisdiction of state courts, remain in such courts. and that the remedies provided under this consent are limited to cases presenting class-wide civil rights violations under 42 U.S.C. ß 1983 rather than adjudications of individual claims. It is not intended by the parties that individual class members may seek the remedy of contempt in absence of demonstration of significant violations under this order. It is the intent of the parties that, recognizing the enormity of the responsibilities under this order, the parties will attempt to informally resolve disputes, including individual disputes when the individual cases are parties represented by plaintiff's counsel.

111. This Decree is intended to adjudicate with respect to the plaintiff class and its individual members those claims for class-wide equitable relief which were made on their behalf in the complaint, and to thus bar separate proceedings against these defendants by class members seeking the same relief under 42 U.S.C. ß 1983. However, in the event that it appears that the plaintiff class is threatened with irreparable harm, the plaintiffs may apply for a modification of this order as necessary to prevent such harm, so long as such modification remains consistent with federal law, the intent of this consent decree, and the applicable standards for modification of a consent decree. Either party may seek modification of this order as permitted by existing law.
112. The parties recognize that HCFA has the authority to grant future waivers of specific requirements of the Medicaid Act, and to interpret existing Medicaid requirements, and its exercise of such authority governs the TennCare Demonstration Project.
J. Notice to Class Members
113. The defendants shall notify the members of the plaintiff class, or their parents/guardians, of this order by including in the next quarterly newsletter of each MCO the attached article which describes in general terms the EPSDT rights which are the subject of this settlement, and refers the reader to the toil free TennCare Hot Line for further information if desired. See Attachment 4. The defendants shall ensure that personnel who staff the TennCare Hot Line, as well as MCO personnel who staff their patient service phone lines, are sufficiently familiar with the terms of this order to be able to answer questions of a general nature. A more detailed description of the settlement, written in simple terms, shall be offered to those who contact the Hot Line or the MCOs to request further information.
114. The defendants, with the assistance of organizations which advocate on behalf of TennCare beneficiaries with disabilities, shall use reasonable alternative methods to afford notice of this settlement to class members who, due to their disabilities, are unable to benefit from the notice procedures outlined in the preceding paragraph.
115. Defendant shall notify all future class members of EPSDT services by attaching information in newly approved TennCare eligibles' notice of eligibility.
K. Expiration
113. This Consent Decree shall expire upon proof that Defendants have reached an Adjusted Periodic Screening Percentage ('APSP') and a Dental Screening Percentage

('DSP') of 80% and are in current, substantial compliance with the requirements herein.
ENTER this 11th day of March, 1998.
DISTRICT JUDGE APPROVED FOR ENTRY: ATTORNEYS FOR PLAINTIFFS:
GORDON BONNYMAN Tennessee Justice Center 203 Second Avenue North Nashville, TN 37201
MICHELE JOHNSON Tennessee Justice Center 203 Second Avenue North Nashville, TN 37201
-54-
ATTORNEY FOR DEFENDANTS:
JOHN KNOX WALKUP Attorney General & Reporter
JENNIFER HELTON HANN Deputy Attorney General 425 Fifth Avenue North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243-0499 TENNESSEE DEPARTMENT OF HEALTH
NANCY MENKE Commissioner Tennessee Department of Health 425 Fifth Avenue North 3rd Floor, Cordell Hull Bldg. Nashville, TN 37247-0101

THERESA G. CLARKE Director TennCare Bureau Department of Health 729 Church Street Nashville, TN 37247-6501
GEORGE HATTAWAY Commissioner Tennessee Department of Children's Services 436 6th Avenue North 7th Floor. Cordell Hull Bldg Nashville, TN 37243-1291
ATTACHMENT I
Medicaid Regional Memorandum No. 93-139 to all Title XIX State Medicaid Agencies (December 17,1993);
Medicaid Regional Memorandum Na 92-80 to all Title XIX State Medicaid Agencies (August 10, 1992);
Letter from Christine Nye, Director, HCFA, Medicaid Bureau, to Deborah A. Randall ( );
Letter from Robert J. Taylor. Associate Regional Administrator, Division of Medicaid. to Sherry Knowlton (December 9, 1992);
HCFA Program Issuance Transmittal Notice IV (Sept.l, 1992) (MCD-89-92);
HCFA Region III Letter No.07-91 (April 3, 1991);
Region TV Transmittal Notice (MCD-l 11-91) (Oct. 29, 1991):
Dallas Regional Medical Services Letter No. 91-37 (May 15, 1991):
Region VII Medicaid State Bulletin No. 204;
Letter from Christine Nye, Director, HCFA. Medicaid Bureau, to Sara Rosenbaum. Children's Defense Fund (April 10, 1991);
Title XIX State agency Letter No. 91-33 (Region X) (April 30, 1991);
Title XIX State Agency Letter Number 92-12 (Region X) (Dec. 10, 1991);
HCFA Medicaid State Bulletin- 231 (Sept. 10, 1992);
HCFA, Letter to Region VIII (Oct. 2, 1991):
HCFA, Missouri OBRA 1989 EPSDT Implementation Review (July 5, 1991);
Medicaid State Operations letter #93-09 (DMD:MOB:5) (Feb. 18, 1993);
HCFA Medicaid Review Report HCFA Region LX Review of California's

Administration of its Managed Care Program (FY 1993);
Letter from Christine Nye, HCFA Medicaid Director, to Lourdes A. Rivera and Sara Rosenbaum. CDF (May 21, 1992);
Chicago Regional State Letter No: 75-91 (Region V) (November 1991);
Letter from Christine Nye, HCFA Medicaid Director, to Regional Administration Regional III(FME-42) (Oct. 8, 1991);
Region IV Transmittal Notice (MCD-62-91, June 13, 1991);
Memorandum from Christine Nye, HCFA Medicaid Director, to Regional Administrator Region VIII (FME-42) (1991);
HCFA Regional Medicaid Letter No. 13-90 (Region III) (Aug. 3, 1990); and
Letter from Rozann Abato, Acting Director Medicaid Bureau, to All State Medicaid Directors (Aug. 2, 1990).

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

__________________________________________

)

JOHN B., by his next friend, L.A.;

)

JULIAN C., by his next friend, S.C.;

)

JASMINE A., by her next friend, J.A.

)

ZACHARY B.;

)

BONNIE B., by her next friend, J.B.;

)

BINTA B., by her next friend, S.A.;

)

JACOB F., by his next friend, C.F.;

)

CATHERINE and BRANSON G.,

)

by their next friend, L.G.;

)

LAKALE J., by his next friend, S.K.;

)

AIDEN and NAKIA L.,

)

by their next friend, S.L.;

)

PRINCETON M., by his next friend, P.M.;

)

LADONTAY P., by his next friend J.P.;

)

JACKIE and SAVANNAH R.,

)

by their next friend, L.R.;

)

SARAI and AMBER R.,

)

by their next friend, T.R.;

)

ALBREONA T., by her next friend, D.E.; and )

GUNNAR U., by his next friend, M.U.,

)

)

Plaintiffs,

)

)

v.

)

No. 3-98-0168

)

Judge Wiseman

MARK EMKES, Commissioner,

)

Tennessee Department of Finance and

)

Administration, et al.

)

)

Defendants.

)

__________________________________________)

AGREED PRETRIAL ORDER

Pursuant to Paragraph 8 of the March 31, 2011 Case Management Order (Doc. No.

1464), the parties have drafted this Agreed Pretrial Order in anticipation of the bench trial to

begin October 31, 2011, on the Motion to Vacate All Injunctive Relief, Terminate the Decree

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and Dismiss the Case (Doc. No. 1465). The Court approves the terms of the Order and will therefore enter it as submitted.
A. Short summary of Plaintiffs’ theory
1. The defendant state officials (“the State”), as the movants and the parties invoking the terms of Paragraph 113 of the Consent Decree for Medicaid-Based Early and Periodic Screening, Diagnosis and Treatment [“EPSDT”] Services (the “Consent Decree”), have the burden of proof. That burden requires the State to prove by a preponderance of the evidence that it has “reached an Adjusted Periodic Screening Percentage ('APSP') and a Dental Screening Percentage ('DSP') of 80% and [is] in current, substantial compliance with the [the Consent Decree’s remaining] requirements.” (Doc. No. 12 at 54.)
2. The State cannot carry its burden, because it cannot prove that it has reached an Adjusted Periodic Screening Percentage ('APSP') and a Dental Screening Percentage ('DSP') of 80%, and because the State cannot prove that it is in substantial compliance with the requirements of the Consent Decree. To prove that it is in substantial compliance, the State must establish: a) that it has corrected the systemic deficiencies of record that were adjudicated in John B. v. Menke, 176 F. Supp. 2d 786, 790 (M.D. Tenn.) and confirmed in subsequent judicial admissions by the State; b) that the State has in place a surveillance system that informs it accurately and fully if other systemic problems arise, so that it can be confident that there are not now other problems in addition to those that were proven in the past; and
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c) that a “durable remedy” has been implemented. Horne v. Flores, 557 U.S.___, 129 S. Ct. 2579, 2595 (2009). This may be accomplished by showing that the objectives of the order or decree have been “attained,” Frew v. Hawkins, 540 U.S. 431, 442, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004), and that it is unlikely that the prohibited conditions or actions will recur, Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 247-48, 111 S. Ct. 630, 112 L. Ed. 2d 715 (1991) (requiring defendants to show that “it was unlikely that the school board would return to its former ways”); LaShawn A v. Fenty, 701 F. Supp. 2d 84, 111 (D.D.C. 2010).
3. The performance measures relied upon by the State to support its claims of substantial compliance with its EPSDT obligations do not, in fact, demonstrate that the TennCare program is reliably providing medically necessary EPSDT services to children enrolled in the program. For example: a) some of the measures relied upon by the State are irrelevant because they relate to other aspects of the TennCare program and shed no light on the provision of EPSDT services; b) other measures that purportedly relate to children’s services only establish that TennCare or its managed care contractors have policies that are consistent with EPSDT requirements but do not show that the program is actually providing needed services to children, or is even capable of reliably doing so; c) other measures are relevant but do not establish substantial compliance; and d) still other measures are relevant and show that children are not receiving medically necessary EPSDT services with any reasonable degree of reliability.
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4. The State’s failure to effectively monitor its own compliance, and its resulting failure to “accurately and fully” report the status of its compliance to the Court, constitute a violation of Paragraph 104 of the Consent Decree (“Paragraph 104”). The State and its contractors have the resources and information, or access to the information, that are needed to accurately and fully report the status of the State’s EPSDT compliance as required by that paragraph. Because the State lacks a process for accurately and fully reporting EPSDT compliance, no one knows or can inform the Court of the full extent of the State’s noncompliance.
5. Plaintiffs’ proof not only confirms the State’s inability to carry its burden, but also establishes the continuing existence of a number of systemic problems that prevent TennCare children in the plaintiff class from receiving medically necessary EPSDT services. Plaintiffs’ proof establishes that systemic barriers, including the State’s failure to conduct effective outreach and to effectively coordinate EPSDT services, prevent children from reliably receiving services in each of the major components of the EPSDT program: screening, diagnosis and treatment. These barriers violate the Consent Decree and the provisions of the federal Medicaid Act which it enforces, 42 U.S.C. §§ 1396a(a)(43), 1396d(a) and (r).
6. Compliance with the Consent Decree and the implementation of an effective EPSDT program are feasible, as the State acknowledged when it negotiated the Consent Decree. The State continues to acknowledge on an ongoing basis by accepting federal Medicaid matching dollars that the TennCare program can and must implement EPSDT. However, without the ability to know, or willingness to acknowledge, that there are systemic problems that violate the Consent Decree, the State cannot be expected to correct those violations and achieve compliance.
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7. Critical to the State’s implementation of the Consent Decree is adherence to an effective process of continuous quality improvement that is guided by accurate performance monitoring. Such monitoring must utilize measures that are tailored to the requirements of the Consent Decree. The failure of the State’s quality improvement processes to achieve compliance with the Consent Decree, and the State’s inability to accurately assess its own compliance, are the result of its failure to establish and monitor such measures.
8. The Court has the duty and inherent power to enforce its orders, including consent decrees, and its powers include issuing suitably tailored remedial orders to address ongoing violations. U.S. v. State of Mich., 18 F.3d 348 (6th Cir. 1994); 62 F.3d 1418 (6th Cir. 1995). In light of the State’s failure to implement the Consent Decree, and the State’s crucial failure to accurately and fully assess and report the status of compliance, further relief is appropriate and necessary. The Court should order the State, in consultation with the Plaintiffs, to establish a process to effectively measure TennCare’s performance against the requirements of the Consent Decree, thereby enabling the parties to efficiently assess compliance in the future without the need to resort to litigation to do so.
B. Short summary of Defendants’ theory 1. The State is entitled to vacatur of the Consent Decree and all other injunctive relief and
dismissal of this case with prejudice because the State has satisfied the criteria established by the Consent Decree itself for termination of the Decree and the end of this case. Specifically, Paragraph 113 of the Decree, Doc. No. 12 at 54, states that it “shall expire upon proof that the Defendants have reached an Adjusted Periodic Screening Percentage (‘APSP’) and a Dental Screening Percentage (‘DSP’) of 80% and are in current, substantial compliance with the requirements herein.”
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2. The State will prove at the hearing that it is in current, substantial compliance with the requirements set forth in the Consent Decree. Because this Court has held that the 80% screening performance percentage standards must be vacated under the Sixth Circuit’s ruling in this case, see Doc. No. 1455 at 10, the State respectfully submits that it need not demonstrate that an APSP and DSP of 80% have been achieved in order to be entitled to relief. However, the State will prove at the hearing that it has in fact achieved both an APSP and DSP of more than 80%, and as suggested in the Court’s earlier opinion, the State will rely on this proof as “evidence of the State’s compliance with the Consent Decree.” Id
C. Issues to be submitted to the Court 1. To the extent the State’s compliance with the Consent Decree provisions requiring the State
achieve an Adjusted Periodic Screening Percentage ('APSP') and a Dental Screening Percentage ('DSP') of 80% remain relevant following the Court’s Preliminary Order vacating these provisions of the Decree, has the State proved by a preponderance of the evidence that it has achieved an 80% APSP and 80% DSP? 2. Has the State proven by a preponderance of the evidence that it is in substantial compliance with the requirements of the Consent Decree? D. Procedural issues 1. Plaintiffs have stipulated to the authenticity of all of the State’s exhibits and have notified the State of their objections, on grounds of relevance and/or hearsay, to the admissibility of three of the State’s exhibits. The State is reviewing the over 1,000 exhibits on Plaintiffs’ Final Exhibit List and is still determining its position with respect to the authenticity, relevance and admissibility of Plaintiffs’ exhibits.
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In general, the State has informed Plaintiffs that it does not expect to have authenticity objections to those documents on Plaintiffs’ exhibit list that were produced from the State. Nor does the State intend to lodge hypertechnical foundation or hearsay objections when there is no reason to question the reliability of an exhibit. And once the State understands the purpose for which a document is being introduced (either from the testimony of the witness or from Counsel’s proffer), it does not expect to have many (if any) relevance objections so long as Plaintiffs provide a reasonable explanation of how the document is relevant to the issues before the Court. Accordingly, the State proposed that the parties agree that any exhibit either party intends to introduce into evidence must either be introduced through a witness who can testify to its relevance (and if necessary lay a proper foundation) or the party introducing the exhibit must make a proffer (either in writing or orally) as to the relevance of the document and the purpose for which it is being introduced.
In light of the State’s willingness to reserve objections regarding authenticity and foundation for only those exhibits as to which there is reason to question reliability, Plaintiffs see no need to call witnesses to establish authenticity or foundation. Plaintiffs propose to follow the process used in this case in 2001, when they proffered their exhibits as a group at the end of their proof, with the expectation that the Court will take under advisement the proffer, and any objections thereto, and rule on disputes regarding admissibility after the trial ends. It is Plaintiffs’ position that the relevancy of most of their exhibits is self-evident and that, in a bench trial, the Court need not rule on relevance prior to the end of the trial and can better assess relevance of an exhibit with the benefit of the parties’ proposed findings of fact and conclusions of law.
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The parties request the Court’s guidance regarding the handling of objections to admissibility of exhibits in light of their disagreement. 2. In its Memorandum of Preliminary Findings, Doc. No. 1455 at 14, the Court “reach[ed] the preliminary conclusion that Paragraphs 43, 50, 58, 60, 61(ii), 71(ii), and 78-84 of the Consent Decree, in addition to paragraphs 45-49 and 61(iii), are subject to vacatur.” At the parties’ request, the Court did not enter a final, appealable order on these provisions pending resolution of the remaining issues in the case. It is the State’s position that neither side should be required to present proof on the paragraphs which the Court has concluded (albeit preliminarily) are subject to vacatur at the upcoming hearing. Assuming the Court does not alter its preliminary conclusions, the presentation of evidence that bears solely on these paragraphs would be a waste of the Court’s time and impose an unnecessary burden on the parties. Should the Court amend its preliminary conclusion with respect to any of these paragraphs, the State reserves the right to present evidence demonstrating its compliance with those paragraphs at a subsequent hearing.
Plaintiffs do not agree with this view. It is the Plaintiffs’ position that the trial should dispose all of the evidentiary claims of either party, and that it is impractical and inconsistent with the State’s previous positions for the State to reserve any of its evidentiary claims for a subsequent hearing. The State urged the Court at the March 24, 2011 hearing to withhold a definitive ruling on the State’s vacatur motion until it had tried the State’s factual claims of compliance with the Consent Decree. The State argued that a definitive ruling on the vacatur motion should be withheld until after the evidentiary hearing on compliance, so that the State’s legal and factual claims could be the subject of a single appeal. (Doc. No. 1457 at 64-67.) The Plaintiffs acquiesced to the State’s position, which the Court accepted.
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The parties should present at the upcoming trial any evidence that they want the Court to consider that bears on the question of whether the Consent Decree should be vacated, or waive the right to present such evidence at a later date.
3. The State retains potential concerns about the Plaintiffs’ plans to present deposition transcripts in lieu of the live testimony of witnesses who were deposed solely because Plaintiffs had represented that they would call them at trial. In particular, the State maintains its belief that the rules of evidence, properly understood, would not so permit. Moreover, if permitted, this approach will enable the Plaintiffs to present these witnesses without expending any of the time the Court has allocated to each side to present their respective cases. In the interests of avoiding unnecessary disputes, however, the State has offered to forego its objections to this procedure if in turn Plaintiffs will agree that the State is no less entitled to introduce and rely upon deposition transcripts from any fact witnesses who serves as caregiver or next friend for a plaintiff class member and Plaintiffs included on their preliminary witness list (whether on the ground that the statements of those witnesses at their depositions constitute admissions by party opponent, see 30B Fed. Prac. & Proc. Evid. § 7018 (1st ed.); Shell v. Parrish, 448 F.2d 528, 534 (6th Cir. 1971), or, alternatively, that the State reserves the right to call such witnesses as its own, with the benefit of the same procedures available to Plaintiffs). Plaintiffs disagree. It is the Plaintiffs’ position that: a) Both parties’ use of deposition transcripts is governed by Fed. R. Civ. Pro. 32. The depositions of Plaintiffs’ witnesses were taken, as the transcripts note, “pursuant to all applicable rules”, and the State did not attempt at the time it took the depositions to limit their use. Rule 32(a)(4)(B) authorizes Plaintiffs’ use of the depositions of
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several witnesses who live beyond 100 miles from the place of the trial. Plaintiffs have informed the State that they do not object to the State’s use of the deposition of any other fact witnesses covered by the Rule 32(a)(4)(B). b) On July 19, 2011, the Plaintiffs stated their intent to use the deposition transcripts of unavailable witnesses at the trial. (Doc. No. 1503 at 6.) The State argued the matter at the case conference the next day, complaining that it would have approached the depositions differently had it been aware that they might be used as evidence. (Doc. No. 1504 at 7 – 8, 24-25) The Court stated it that it would defer action on the matter until the State raised it. Id. This put the State on notice that, if it felt it needed additional cross-examination, it should file a motion or seek to re-depose the witnesses. The State did nothing. c) Rule 32 provides no authorization for the State’s use of depositions of witnesses who live within 100 miles of the place of hearing and are available for the State to present as live witnesses. Rule 32(a)(3) permits the use of the deposition, regardless of a witness’s availability, of an adverse “party , or anyone who, when deposed, was the party’s officer, director, managing agent or designee.” None of the witnesses in question fit that description. They are the caregiver relatives, and not necessarily next friends, of children who are members of the plaintiff class. Even in an instance where the witness is acting as next friend, the child remains the real party in interest. L.W. v. Knox County Bd. of Educ., No. 3:05-CV-274, 2006 WL 2583153, at *2 (E.D.Tenn. Sept. 6, 2006) (citing Helminski v. Ayerst Laboratories, a Div. of American Home, 766 F.2d 208 (6th Cir. 1985). For purposes of discovery, a next friend is not a party. Wright and Miller, Section 2171 (“A next friend of an infant is not technically a party
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and is not subject to interrogatories.”, citing Ju Shu Cheung v. Dulles, 16 F.R.D. 550, 552 (D.Mass. 1954)). d) Plaintiffs do not oppose the State’s alternative plan to call as its own witness any individual whom the Plaintiffs preliminarily listed as a witness but ultimately decided not to call. Plaintiffs do not contest the State’s right to call these witnesses and elicit their live testimony, but only oppose the State’s attempt to use of the witnesses’ transcripts in a manner not permitted by Rule 32. E. Amendment of pleadings to conform to this order 1. The parties’ pleadings are amended to conform to this Agreed Pretrial Order, which supplants the parties’ pleadings. F. Compliance with requirements regarding discovery and disclosures. 1. The parties exchanged witness lists on October 7, 2011. The parties have agreed that they will exchange, on October 28, 2011, witness lists reflecting the sequence in which witnesses are expected be called during each side’s case in chief, with the understanding that a party would only deviate from the order if there is a compelling justification involving a witness’s schedule, and notice of the deviation should be provided as soon as the need is known to counsel. During the trial, each party will provide the other side 24 hour advance notice of the witnesses to be called the next day. 2. The parties exchanged exhibit lists on October 7, 2011. 3. The parties have complied with the requirements of the Case Management Order (Doc. 1464), as amended, and the requirements of Fed. R. Civ. Pro. 26 regarding expert witness reports and discovery except to the extent raised by any motions in limine filed prior to the pretrial conference. Although the State has potential concerns as to whether it has timely and
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fairly received certain materials upon which Plaintiffs’ proposed experts may be relying in support of their opinions, it asserts that any such concerns can best be ventilated and addressed at hearing depending upon the testimony actually offered by a particular expert witness. Similarly, the State asserts that any concerns as to whether a particular “hybrid” expert offered is in fact qualified as an expert in relevant part can best be ventilated and addressed at hearing when a specific proffer is made as to the witness’s claimed expertise. 4. The parties disclosed in their witness lists those witnesses whose testimony they will present by deposition transcript. Plaintiffs propose that, in lieu of filing designations, counterdesignations and objections, all objections to the transcripts be reserved until after the trial and the exchange of proposed findings of fact and conclusions of law. At that point, either party can file objections to any transcript excerpts cited in their opponent’s proposed findings of fact. This procedure will save the parties the time and expense of designating, and the Court the time spent reading, excerpts that may ultimately never be relied on by either party. The only parts that will be read or that will potentially require rulings on objections will be those excerpts actually relied upon to support a requested finding. The State has declined to accept this proposal.
The State disagrees with this approach. If the introduction and admission of deposition testimony is postponed until after trial, the State will be deprived of the opportunity to present evidence clarifying or rebutting the deposition testimony ultimately admitted. Like witness testimony and exhibits, deposition testimony should be introduced in a party’s case-in-chief so the other side has the opportunity to respond in its own case or in rebuttal.
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In the event that the Court requires the parties to submit transcript designations, counter-designations and objections, they will exchange transcript designations by October 19, 2011. The parties disagree on the date for exchanging counter-designations and objections to designated deposition testimony. Plaintiffs propose the date of October 28, 2011, in order to complete the process before trial. The State believes more time is necessary and proposes November 7, 2011. The parties seek the Court’s guidance on this matter. G. Pretrial Conference 1. The parties have requested that the pretrial conference scheduled for October 18, 2011 at 10:00 a.m. go forward, as they seek the Court’s guidance on the matters in dispute as set forth above. IT IS SO ORDERED BY AGREEMENT this 1st day of November, 2011.
________________________________________ THOMAS A. WISEMAN, JR. SENIOR UNITED STATES DISTRICT JUDGE Approved for entry: TENNESSEE JUSTICE CENTER by: s/ Gordon Bonnyman Christopher E. Coleman, Tenn. BPR No. 24950 Elizabeth B. Hutto Michele Johnson, Tenn. BPR No. 016756 Gordon Bonnyman, Tenn. BPR No. 2419 301 Charlotte Avenue Nashville, TN 37201-1101 Phone: 615-255-0331 FAX: 615-255-0354 Counsel for the Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN B., et al.,
Plaintiffs,
v.
MARK EMKES, Commissioner, Tennessee Department of Finance and Administration, et al.,
Defendants.

) ) ) ) ) Civil Action No. 3:98-cv-0168 ) ) Judge Thomas A. Wiseman, Jr. ) ) ) )

MEMORANDUM OPINION AND ORDER In this class-action challenge to Tennessee’s managed care program, TennCare, Plaintiffs allege that Defendants, Tennessee officials charged with implementing TennCare, failed to provide ea rly and periodic screening, diagnosis and treatment (“EPSDT”) services to Tennessee children (ages 21 and under) covered by TennCare, in violation of the Me dicaid Act. Shortly after th e lawsuit was filed in early 1998, the parties jointly filed a Consent Decree (ECF No. 12 ) (“Decree”) under which the y have been operating, and sporadically litigating, throughout the nearly fourteen years since its entry. Presently pending before the Court are some portions of a Motion to Vacate the Consent Decree and Dismiss the Case, filed by Defendants in November 2006 (ECF No. 738). In that motion, Defendants pointed out that their consent to the entry of the Decree was expressly premised “upon the assumption that the EPSDT requirements of 42 U.S.C. §§ 1396a(a)(43) and 1396d(r), and 42 U.S.C. §§ 671(a)(16) and 675(1) and (5) of the Adoption Assistance Act are enforceable under 42 U.S.C. § 1983” (Decree ¶ 15). Next, Defen dants argued that “recent controlling precedent” from th e Sixth Ci rcuit, specifically Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) (“Westside Mothers II”), had established that the referenced statutory provisions were not, as a matter of law, individually enforceable through an action brought pursuant to 42 U.S.C. § 1983. In September 2009, this Court (Haynes, J.) entered a Memorandum Opinion and Order denying Defendants’ Motion to Vacate. Defendants immediately appealed that ruling. Several months later, in the midst of an i nterminable discovery dispute, Defendants moved the dist rict court to stay all proceedings

2
pending the Sixth Circuit’s resolution of their i nterlocutory appeal. The district court initially denied the motion, but the Sixth Circuit inte rvened and granted a stay effective F ebruary 19, 2010 (ECF No. 1406). On November 30, 201 0, the Sixth Circuit entered an opinion vacating the Consent Decree in part an d remanding the matter for further proceedings. John B. v. Goetz, 626 F.3d 356 (6th Cir. 2010).
More specifically, the Sixth Ci rcuit rejected Defendants’ argument that the Medicaid statute as a whole does not confe r individual ri ghts enforceable under 42 U.S.C. § 1983 but, in addressing Defendants’ more p articularized arguments aimed at “the pri mary statutory provision on which the consent decree and plaintiffs’ claims are based,” reconfirmed that 42 U.S.C. § 1396a(a)(30) is no t privately enforceable under § 1983. John B., 626 F.3d at 362, 363. Consequently, the court vacated “the consent decree’s requirement that d efendants ensure that the availability of se rvices is geographically comparable and any othe r provisions based on § 1396a(a)(30),” id. at 363, without spe cifying exactly which other provisions of the con sent decree mig ht be base d on § 1396 a(a)(30). Like wise, the co urt expressly held that the Ad option Assistance Act (“AAA”), 42 U.S.C. §§ 671(a )(16), 675(1), and 675 (5), does not create rights that are privately enforceable under § 1983, but declined to “ascertain the extent to which the decree is based on provisions of the [AAA],” John B., 626 F.3d at 36 3, leaving that issue to be resolved in the first instance by the district court.
The appellate court also reaffirmed its implicit hol ding in Westside Mothers v. Olszewski, 454 F.3d 532, 542 (6th Cir. 2006) (“Westside Mothers II”), that 42 U.S.C. § 1396a(a)(43)(A) confers rights that are enforceable under § 1983, but d eclined to rea ch the q uestion of the e nforceability of the other subsections of 42 U.S.C. § 1396 a(a)(43), namely subsections (B), (C), and (D). The cou rt also declined to consider the scope of any rights th at might be creat ed by those provisions. In that regard, the co urt stated instead:
One open question is the extent to whi ch Westside Mothers II’s holding that a state’ s obligation under §§ 1396a(a)(8) and (10) i s only to pay for med ical assistance may be applicable to the provisions of § 1396a(a)(43) not addressed in Westside Mothers II. The answer to this question could potentially impact the provisions of the consent decree that require actual provision of service rather than simply payment. Another issu e relates to whether Westside Mothers II’s determination about waiting lists is a pplicable to the waiting list provision of § 1396a(a)(43)(C). Finally, Westside Mothers II only addresses one part of § 1396 a(a)(43) and le aves unresolved the private enforceabilit y of the remaining part. Wh ile we could undertake an analysis of each of these issues, we believe that they are best left to the district court in the first instance . . . .

3
John B., 626 F.3d at 363. After remand and reassignment of the case to the undersigned, the parties submitted additional
briefing on the issues the Sixth Circuit left unre solved, and arguing the question of what p ortions of the Decree are effectively vacated by the Sixth Circuit’ s ruling. In their brief, De fendants concede the private enforceability of § 13 96a(a)(43)(B) (hereafter “subsection (43)(B)”), but argue pursuant to the Sixth Circuit’s holding in Westside Mothers II that “there is no individual right [under subsection (43)(B)] to make the State itself ensure provision of such medical services (as opposed to reimbursing for them).” ( Doc. No. 1428, at 18 (Defs.’ Su pp. Br. 14) (emphasis added).) With respect to 42 U.S.C. § 1396a(a)(43)(C) (“subsection (43)(C)”), Defendants argue that this statutory provision only requires the state to submit a plan for the arrangement of corrective treatment once such treatment has been identified as necessary, but that “the statute does not speak to the beneficiary; it simply does not say that the be neficiary has a right to treat ment.” (Doc. No. 1428, at 19.) Altern atively, Defendants concede that some courts have held that subsection (43)(C) is individually enforceable under § 1983 when the cl aim in question is brought by a n individual who has been denied coverage for a specific treatment to add ress a specific medical condition, but they argue t hat where “the claims and the relief in que stion are systemwide and aggregate, a cause of action will not lie und er Section 1983.” (Id.) Defend ants further contend that numerous provisions of the Consent Decree premised upon subsections (43)(B) and (C) mu st be vacated, along with numerous other provisions that are implicated by, and must be vacated as a result of, the Sixth Circuit’s conclusion that § 1396a(a)(30) and the AAA do not create enforceable rights.
For their part, Plaintiffs co ncede that two subparagraphs of the Consent Decree are subject to being vacated as a result of the Sixth Ci rcuit’s decision, and that § 1396a(a)(43)(D) does not create privately enforceable rights. They deny that any of the rem edies effected by the Co nsent Decree are implicated by sub section (43)(D), however, and arg ue that the remain der of the De cree is intended to remedy violations of subsections (43)(B) and (C), which are privately enforceable.
On March 1, 2010, this Court entered a Memorandum of Prelimin ary Findings, but, pu rsuant to the parties’ request, deferred entry of an actual order that might have been immediately appealable. The parties requested deferral of entry of an order pending further discussions among the parties, entry of a case management order, and substantial progress toward resolution of the dispositive issues. The

4

parties have now made substantial progress toward resolution of the case, and the Court will enter this

Memorandum Order disposing of the issues raised by the Sixth Circuit’s remand prior to entering a ruling

on Defendants’ more recently filed motion to vacate the still-valid por tions of the Consent Decree, in

accordance with its own terms, based on Defendants’ substantial compliance therewith.

As set forth herein, the Court finds that subsections (43)(B) and (C) are privately enforceable, and

that their application is unaffected by the Sixth Circuit’s holding in Westside Mothers II. The Court further

finds that sev eral paragraphs of the Co nsent Decree should be vacated as a result of the 6th Circuit’s

decision, but that the majority of the Consent Decree should remain in effect, as identified below.

I.

ANALYSIS AND DISCUSSION

A.

The Enforceability of Subsections (43)(B) and (C) under § 1983

Plaintiffs’ claims are brought under 42 U.S.C. § 1983 against Defendants to enforce the early and

periodic screening, diagnosis and tre atment (“EPSDT”) provisions of the Medicaid Act. The partie s

entered into a Consent Decree in March 1998 (Doc. No. 12) which imposes systemic remedies for these

alleged violations. In their Rule 60(b) Motion to Vacate the Consent Decree and Dismiss the Case (Doc.

No. 738), Defendants argue that the val idity and enforceability of the Con sent Decree are predicated on

the presumption that individual subsections of the M edicaid Act are privately enforceable under § 1983.

Section 1983, however, o nly authorizes a private ri ght of action to the extent t he specific provision of

federal law sought to be enforced has “unambiguously conferred rights, as distinguished from m ere

benefits or interests.” Westside Mothers II, 454 F.3d at 541–42 (citing Gonzaga Univ. v. Doe, 536 U.S.

273, 282–83 (2002)) (emphasis added).

In inquiring whether an i ndividually enforceable right exists, the Sixth Circuit loo ks to three

factors: (1) whether Congress intended the provision to benefit the plai ntiff; (2) whether the s tatute is so

“‘vague and amorphous’ that its enf orcement would strain ju dicial competence”; and (3 ) whether the

provision imposes a bin ding obligation on the state , i.e., it must be cou ched in mandatory, rather than

precatory, terms. Johnson v. City of Detroit, 446 F.3d 614, 618–19 (6th Cir. 2006) (citing Blessing v.

Freestone, 520 U.S. 329, 340–41 (1997)). With respect to the first Blessing factor, the Supreme Court in

Gonzaga expressly “reject[ed] the notion that . . . anything sho rt of an unambi guously conferred right [is

sufficient] to support a cause of action brought under § 1983,” and emphasized that “it is rights, not the

5
broader or vaguer ‘benefits’ or ‘inte rests,’ that may be enforced under the authority of th at section.” Gonzaga, 536 U.S. at 283) (emphasis in original).
The Sixth Circuit ha s already determined that subsection (A) of § 1396a (a)(43) is in dividually enforceable under § 1983. See Westside Mothers II, 454 F.3d at 543 (presuming the enforceability of § 1396a(a)(43(A) without discussion, and finding that the plaintiffs’ complaint stated a claim under § 1983 for violation thereof); John B. v. Goetz, 626 F.3d at 362 (observing that the court in Westside Mothers II had permitted a claim for relief under § 1396a(a)(43)(A) to proceed). Subsection (43)(A) states:
A State plan for medical assistance must . . . provide for . . . (A) informing all persons in the State who are u nder the age of 21 and who h ave been determined to be eligibl e for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the avail ability of early and perio dic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the ne ed for ageappropriate immunizations against vaccine-preventable diseases[.] 42 U.S.C. § 1396a(a)(43)(A). While subsection (A) requires the State to prov ide notice to in dividuals of t he availability of EPSDT services, subsections (B) and (C) require the actual provision of those services to individuals who request them: (B) providing or arranging for the provision of such screening services in all cases whe re they are requested, [and] (C) arranging for (dire ctly or thro ugh referral to appropriate agencies, organizations, or individuals) corrective treatment the need for whi ch is disclosed by such chil d health screening services[.] 42 U.S.C. § 1396a(a)(43)(B)–(C).1 Application of the Blessing test confirms that these subsections are likewise individually enforceable under § 1983. Under Gonzaga, to satisfy the first Blessing factor, for a statute to “unambiguously” confer a right enforceable under § 1983 it must (1) contain rights-creating language that is unmistakably focused on the individuals benefitted; (2) have an individual focus, rather than a systemwide or aggregate focus; and (3) lack an enfo rcement scheme for agg rieved individuals. Gonzaga, 536 U.S. at 284–8 6. Subse ctions 43(B), and (C) e asily satisfy these criteria to me et the first Blessing factor. First, they co ntain rights-
1 As previo usly stated, the parti es agree that sub section (D) i s not privately enforcea ble. It requires the State to submit annual reports statistical information relating to the provisi on of EPSDT services.

6
creating language that focuses on specific individuals. Cf. Harris v. Olszewski, 442 F.3d 456, 462 (6th Cir. 2006) (“[B]y saying that ‘[a] State plan . . . must . . . provide’ this free choice [amo ng medical providers], the statute u ses the kind of ‘rights-creating,’ ‘mandatory language,’ that the Sup reme Court and our court have hel d establishes a private right of action.” (citations omitted)). Subsection (43)(A) conforms to this re quirement by identifying spe cific people—“all persons in the State who are un der the age of 21 and who have been determined to be eligible for medical assistance”—and requiring that the State “provide for . . . i nforming [them] . . . of the availability of [EPSDT] services.” 42 U.S.C. § 1396(a)(43)(A). Similarly, subsection (43)(B) requires the State to “provide for . . . providi ng or arranging for the p rovision of such scre ening services” to th e same children refere nced in sub section (A) “in all cases where they are re quested.” Su bsection (43)(C) likewise requires th e State to “pro vide for . . . arranging for . . . corre ctive treatment” for those chi ldren who receive screening services, if necessa ry. Second, subsections (43)(B) and (C) h ave “an indivi dual focus, rather than a systemwide or aggregate focus.” Again, just as subsection (43)(A) focuses on specific individuals—Medicaid-eligible children—and provides that they must receive specific information, subsections (43)(B) and (C) focus on smaller subsets of the childre n who a re identified as th e focus of subsection (43)(A): Subsection (43 )(B) focuses on children who request screening services and provides that each individual who requests a screening is entitled to receive it, while (43)(C) focuses on children whose screening under (43)(B) reveals the need for corrective treatment and requires that each individual child who is foun d to n eed it receive the corrective treatment. And third, these provisions—like the rest of the Medicaid Act—have no independent enforcement mechanism. Harris v. Olszewski, 442 F.3d 456, 462 (6th Cir. 2006). Subsections (B) and (C) of § 1396a(43), like subsection (A), meet the first Blessing factor in that they express a clear statutory intent to benefit the individual Plaintiffs in this action.
With respect to the seco nd Blessing fact, it is cle ar that su bsections (43)(B) and (C) d o not impose a “vague and amorphous” mandate upon the State. As the Sixth Circuit indicated i n Harris, the relevant question is whether the “mandate itself” contains “the kind of vagueness that would p ush the limits of judicial enfo rcement.” 442 F.3d at 456. In Harris, the cou rt concluded that the mandat e contained in 42 U.S.C. § 1396a(a)(23) that Me dicaid plans give beneficiaries their choice of willing providers was not vague because whether a plan gave this choice or not “is likely to be readily apparent.”

7
Harris, 442 F.3d at 456. Sub section (43)(A) contains a similarly straightforward and ascertainable mandate—to provide information about screening services to all Medicaid-eligible children. Subsections (43)(B) and (C) contain equally clear mandates: that the state provide requested screening services to all Medicaid-eligible children who request them, and that it arrange for corrective treatment when necessary. Further, as P laintiffs argue, it is all too “rea dily apparent” when a child who has req uested screening services has not received them or wh en a chil d who needs corrective treatment goes without. Such explicit grants of ea sily discernible rights, coupled with readily apparent violations, plainly satisfy the second Blessing factor. Cf. Harris, 442 F. 3d at 456; see also Gean v. Hattaway, 330 F.3d 758, 772–73 (6th Cir. 2003) (holding that § 1 396a(a)(3) of the Medicaid Act—which requires a state to “grant[] an opportunity for a fai r hearing before the State a gency to an y individual whose claim for me dical assistance under the plan is de nied or is not acted upon with reasonable promptness”—is privately enforceable because it “cre ates an obligation on the part of t he State an d is p hrased in term s of benefitting Medicaid recipients”).
Finally, subsections (43)(B) and (C) satisfy the third Blessing factor by unambiguously imposing a binding obligation on the State. These provisi ons require that the State “pro vid[e] or arrang[e] for the provision of” screening services, § 1396a(a)(43)(B)” and “arrang[e] for . . . corrective treatment.” § 1396a(a)(43) (C). Thi s language is mandatory, not precatory, and thus creates a binding obligation on States participating in Medicaid. Harris, 442 F.3d at 462.
As Plaintiffs point out, every cou rt to have examin ed the issue since Gonzaga has likewise concluded that subsections (43)(B) and (C) confer privately enforceable rights. (See Doc. No. 1431, at 11 (collecting cases).) Defendants, in attempting to avoid this result, have tended to conflate the scope of the Consent Decree’s provision of remedies for violations of the Medicaid Act with the scope of the rights conferred by the statutory provisions at issue. The Sixth Circuit has rejected that line of reasoning:
To the extent that defenda nts’ first argument for vacating the entire de cree is based on an argument that the de cree’s systemic remedies are not privately enforceable, thi s reasoning does not correctly appreciate the distinction between rights and remedies. To determine whether a statute is enfo rceable under § 1983, courts examine “whether Congress intended to create a federal right,” Gonzaga, 536 U.S. at 283, not the scope of the relief sought or granted. In other words, remedies vindicating individual rights may be both systemic and nonsystem ic; the for m of relief says nothing about the nature of the right.

8

John B, 626 F.3d at 363 n.3 (emphasis added).

B.

The Scope of the Rights Created by Subsections (43)(B) and (C)

As noted above, the Sixth Circuit a sked this Court to examine the scope of the rights created by

subsections (43)(B) and (C), and specifically to consider whether the scope of those provisions was

affected by its holding in Westside Mothers II that Sections 1396a(a)(8) and (10) require only payment for

medical assistance.” John B., 626 F.3d at 363. Plaintiffs concede that the one paragraph of the Consent

Decree that references waiting lists (Decree ¶ 61(iii)) must be va cated. Otherwise, this Court concludes

that Westside Mothers II’s interpretation of Sections (a)(8) and (10) has no effect on the construction of

Section (a)(43).

First, the holding in Westside Mothers II—that a state’s obligations under § 1396a(a)(8) and (10)

are limited to payment for services—turned entirely on the particular language of the statutory provisions at issue in that de cision,2 and specifically required the Sixth Circuit to construe the term “m edical

assistance” as it is defined by the Medicaid Act. The Sixth Circuit concluded that “medical assistance” as

used in those specific provisions was defined elsewhere in the Medicaid Act to mean “payment of part or

all of the cost of the [enumerated] services” to eligible individuals. Westside Mothers II, 454 F.3d at 540

(citing 42 U.S.C. § 1396 d(a) (2006); Schott v. Olszewski, 401 F.3d 682, 68 6 (6th Ci r. 2005)). The

statutory provisions in question here, however, do not refer to medical assistance; instead they expressly

require the state either to provide or arrange for the provision of screening and treatment services. The

Court finds that Westside Mothers II has no bearing on the construction of subsections (43)(B) and (C).

Even if that were not the case, the term “medical assistance,” at the time Westside Mothers II was

decided, was still defined by the Medicaid Act to mean pay ment for servi ces. Congress h as recently

clarified, however, that the term “medical assistance” means “payment of part of all of the costs of . . .

2 The referenced provisions require state Medicaid plans to:
(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, an d that such assistance shall be furni shed with re asonable promptness to all eligible individuals; [and]
(10) provide . . . for making medical assistance available [to eligible individuals] . . . .
42 U.S.C. § 1396a(a)(8) & (10).

9
care and services, or the care and services themselves, or both.” 125 Stat. 1 19, at § 2304 (March 23,
2010) (“Patient Protection and Affordable Care Act” (amending Section 1905(A) of the Social Security Act
as codified at 42 U.S.C. § 1396d(a)). Un der this amendment, whether a particular provision of th e
Medicaid Act requires payment for services or the provision of the services themselves is not controlled
by the old definition of “medical assistance” as referring only to financial assistance. Indeed, the
legislative history behind this amendment clearly shows that Congress intended to clarify tha t where the
Medicaid Act refers to the provision of services, a participating State is required to provide (or ensure the
provision of) services, not merely to pay for them:
[“Medical assistance”] is e xpressly defined to refer to payment b ut has ge nerally been understood to refer to bot h the funds provided to pay for care a nd services and to the care and se rvices themselves. . . . Some recent court opi nions have, however, questioned the longstanding practice of using the term “medi cal assistance” to refer to both the payment for services an d the provision of th e services themselves. T hese opinions have read the te rm to refer o nly to payment; this readi ng makes some aspects of the rest of Title XIX difficult and, in a t least one case, absurd. If the term meant only payments, the statutory requirement that medical a ssistance be furni shed with reasonable promptness “to all eligible individuals” in a system in which virtually no beneficiaries receive direct payments from the state or federal g overnments would be nearly incomprehensible.
H.R. Rep. No. 299, 111th Cong., 1st Sess. 2009, at 645–50 (Oct. 14, 2009), also available at 2009 WL
3321420, at *694–*95.
The Sixth Circuit a cknowledged in John B. that “[t]he definition of ‘medical assistance’ has
changed” since Westside Mothers II, but stated th at “the n ew definition does not affect” th e holding of
Westside Mothers II regarding the State’s obligations under Sections (8) and (10) because “a state may
still fulfill its Medicaid obligations by paying for services.” John B., 626 F.3d at 360 n.2. The Sixth Circuit
was silent as to the effect of the definitional change on Section (43). This Court finds that where, as in §
1396a(a)(43)(B) and (C), the language of a provision clearly requires that the state “provide or arrange for
the provision” of screeni ng services and corrective treatment, that langua ge cannot rea sonably be
construed to mean only payment for services, particularly in lig ht of the ame nded definition of “m edical
assistance.” Even if th at were not the case, the holding in Westside Mothers II would affect only the
scope of a state’s obligations under subsections (43)(B) and (C)—it would not render them unenforceable
through § 1983.
And, to be clear, these provisions do not require the State to become a “direct medical provider,”

10

as the State assert s. (De fs.’ Supp. Brief, Doc. No. 1428, at 18.) Ra ther, these provisions require the

State to ensure that Med icaid-eligible children receive “screening services” and “corrective treatment”

under certain circumstances. To satisfy its obligations, the State may either provide services directly or

hire others to do so.

C.

Assessment of Individual Paragraphs of the Decree for Enforceability under § 1983

The next question that arises is this: What porti ons of the Consent Decree, if any, are su bject to

being vacated as a result of the Sixth Circuit’s conclusion that 42 U.S.C. § 13 96a(a)(30)(A) (“subsection

(30)(A)”) and the Adoption Assistance Act (“AAA”) do not create rights enforceable through § 1983, and

the Plaintiffs’ concession that subsection (43)(D) is likewise not privately enforceable? And conversely,

which portions of the Decree remain va lid in light of the co nclusion that 42 U.S.C. §§ 13 96a(a)(43)(A)

through (C) are privately enforceable?

In responding to these q uestions, Defendants challenge essentially every parag raph of the

Consent Decree from paragraph 41 through paragraph 93 on the basis that each is based on subsection

(43)(D), subsection (30)(A), or on the AAA. In Plai ntiffs’ view, virtually every paragraph of the Consent

Decree is premised upon subsection (43)(A), (B) or (C) and is therefore valid and enforceable, except that

Plaintiffs concede that paragraphs 45 through 49 may be vacated as outdated and therefore moot, and

that paragraph 61(iii) may be vacated as dependent for its authority on subsection (30)(A). The parties’

positions and the Court’s resolution of the dispute as to each of th e other challenged paragraphs are set

forth below.

(1)

Paragraphs 41–42

Paragraph 41 requires that the “TennCare rules and guidelines clearly describe, allocate

responsibility for, and req uire compliance with, ea ch specific screening requirement under federal law,”

which it then enumerates in detail. Paragra ph 42 likewise requires that TennCare rules and regulations

comply with federal law governing interperiodic screening. Defendants characterize paragraphs 41 and

42 as relating to “screening participation rates” and falling, as such, under the purview of subsection

(43)(D), which is not indivi dually enforceable. The Court agrees with Plaintiffs that these paragraphs are

clearly intended to remedy and prevent violations of subsection (43)(B) and that they remain in full fo rce

and effect.

11

(2)

Paragraph 43

Paragraph 43 requires that the Te nnCare contractor networks be “adequate in te rms of

qualifications and training, as well as i n numbers, to properly screen children in conformity” with federal

law. Defen dants characterize paragraph 43 a s implicating subsection (30)(A) and th e “network

adequacy” requirement, while Plaintiffs again contend that the provision is meant to enforce and remedy

subsection (43)(B) and its impl ementing regulation, 42 C.F.R. § 441.61(b). The Court fi nds that th e

provision itself is som ewhat vague and that co mpliance would be difficult to prove. Essentially ,

Defendants’ obligation in proving compliance with the Decree and subsection (43)(B) and (C) will be to

show that it is effectively screening all children who request it and treating those whose screens reveal a

need for treatment, and the State contractors will necessarily have to have in effect adequate networks to

ensure Defendants’ compliance. T he Court nonetheless finds that this paragraph of the Decree too

heavily reliant on subsection (30)(A), and too amorphous and unwieldy on its own to monitor or enforce.

(3)

Paragraph 44

Paragraph 44 sets out th e steps the State is to take to e nsure that periodic screens effectively

identify children who should be referred for further assessment of behavioral/developmental problems or

possible hearing or vision impairment. Defenda nts characterize paragraph 44 a s “enforcing t he

participation goal established by CMS pursuant to [subsection (43)(D)]. The Co urt finds that this

paragraph implicates subsections (43)(B) and (C) a nd is intended to reme dy past violations of those

provisions and prevent ongoing or future violations t hereof. In that rega rd, and as a g eneral matter with

respect to Defenda nts’ continued objection to variou s portions of the Decree as systemic in scope, the

Court again notes the critical distinction between rights conferred by the relevant statutory provisions, and

remedies provided in the Decree for violations thereof. “[R]emedies vindicating individual rights may be

both systemic and nonsystemic; the form of relie f says nothing about the nature of the righ t.” John B.,

626 F.3d at 363 n.3 (emphasis added).

(4) Paragraphs 45–52

Plaintiffs conceded that p aragraphs 45–49, to t he extent they require th e State to meet ce rtain

screening percentages within specific time frames, are out of date and may be vacated a s moot. (ECF

1454, at 1 n.1.) Thi s concession appears to be in part the result of an ove rsight by Plaint iffs. Whil e

12
paragraphs 45, 48, 49, a nd 50 (Plaintiffs did not expressly concede the mootness of paragraph 50) are clearly moot, as they pertain only to dates long-since past, paragraphs 46 and 47 app ear to have continued relevance.
The first p art of pa ragraph 46 has expired: It re quires determination of a baseline periodic screening ratio for fiscal ye ar 1996 and defines the method for calculation a baseline periodic screening percentage. The remainder of the paragraph, however, appears to pertain to the calculation of screening percentages in future years and therefore remains relevant. For instance, paragraph 46 states that “[s]ubsequent periodic screening percentages will be calculated using methodology identical to that used in calculation of the basel ine periodic screening percentage.” (De cree ¶ 4 6.) It further provides for “annual statistically valid medical re cord review of a sample of encounters coded as periodic screens” to verify whether the scre ens meet fed eral criteria, and to pro duce an “a djusted periodic screening percentage (APSP),” which likewise remains relevant to the det ermination of whether Defendants are in compliance with the Decree as a whole. Paragraph 47 requires TennCare to require the MCOs to comply with the terms of the Decree in reporting EPSDT screens; this provision also appears to remain relevant.
The question still remains as to whether these provisi ons are enforceable after Westlaw Mothers II and John B. v. Goetz. Defendants argue these provisions are con cerned with “overall methodology rather than conferring indi vidually enforceable rights on individual Medicaid recipients” (ECF 1428, at 15 (citing Westside Mothers II, 454 F.3d at 543)), and that they focus “upon the state as the person regulated rather than t he individuals protected” (id. (citing Westside Mothers II, 454 F.3d at 542 )). The Court agrees that t hese provisions themselves, if they we re statutes, woul d not be individually enforceable under § 1983 under Blessing and Gonzaga. The Court construes these provisions, however, as providing a systemic remedy for the State’s past violations of federal EPSDT requirem ents, and further finds that these are the very p rovisions pursuant to which th e State agreed that its com pliance with the Consent Decree as a whole would be measured. In other wo rds, they provide a means for measuring the State’s performance of its federal obligations.
Likewise, paragraph 51 confirms that the Defe ndants will be presumed to be i n compliance with their screening obligations under the law and the Decree for a ny year in which the 80% goal is met. Paragraph 51 shall remai n in effect as i ndication of the parties’ intent that the State’s ability to meet the

13

statutory goal (which remains in effect regardless of Plaintiffs’ standing to enforce it) shall b e evidence of

the State’s compliance with the Decree and federal law.

Paragraph 52 requires the complete screening of 100% of Tenn Care children in the custo dy of

the Department of Children’s Services, and sets forth DCS’s responsibilities with regard to developing a

tracking system for reporting compliance with this provision. Defenda nts assert that this provision also

relates to subsection (43)(D). Plaintiffs assert that this provision refl ects the State’s responsibility acti ng

in loco parentis and as a Medicaid provider to ensure that all children in its custody receive EPSDT

screens.

The Court agrees that Defendants, as a practical matter, have complete control over whether

children in State custody request and receive screenings, and in fact would have an obligation to act in

loco parentis to ensure that screens are requested on behalf of these children. The provision also reflects

recognition of the fact that the State was not previously in compliance with its o bligations under

subsection (43)(B) and attempts to remedy that problem, and as such remains valid and enforceable.

(5)

Paragraphs 53–57, 59, 60(i)–(iv), 61(i), 63–70, 71(i) and (iii)–(iv), and 72–77

Defendants characterize the refe renced paragraphs as enforcin g subsection (43)(C) ( see ECF

No. 1428, at 9), which the Court has found to be individually enforceable. The Court notes, however, that

paragraphs 72 and 73 pe rtain to actions the State was to have taken within day s of entry of the De cree

and are therefore mooted by time, there being no contention by the Plaintiffs that the Defendants failed to

take the actions mandated by those provisions.

(6)

Paragraphs 58, 60(v)–(vi), 61(ii)–(iii), 62, 71(ii)

Defendants characterize the referen ced paragraphs as enforcing subsection (30)(A) and

therefore invalid. Plaintiff s contend that these p rovisions generally implement subsection (43)(C) and

therefore remain in effect.

Paragraph 58 states that Defendants and their contractors “shall require that utilization review

and prior authorization decisions be made only by qualified personnel with education, training, or

experience in child and adolescent health.” The Court agrees that this provision presumes the individual

enforceability of subsection (30)(A).

Paragraph 60 pertains to the devel opment of a provider handbook specifying the state

14

contractors’ responsibilities relating to the provision of services to children in DCS custody. Parts (v) and

(vi) specifically require the MCOs to demonstrate that their networks include “providers with cultural and

linguistic competency, or access to translators, as may be needed for the effective treatment of children

from ethnic minorities,” and that each MCO demonstrate “a sufficient array of services and specialists” to

meet the needs of the Plaintiff class-members. The Court finds that these provisions relate to “network

sufficiency” and geographic availability of services under subsection (30)(A).

Paragraph 61(ii) requires Defendants to demonstrate “provider networks that comply” with the

TennCare waiver. Defendants contend that this provision relates both to subsections (30)(A) and (43)(C).

Plaintiffs contend that it e nforces subsection (43)(C) and it s implementing regulation only. The Court

finds that it is premi sed upon subsection (30)(A)’s geographic-comparability requirement and as such is

unenforceable under John B.

Paragraph 61(iii) explicitly cross-references subsection (30)(A) and is unenforceable.

Paragraph 62 requires MCOs to provi de primary care p roviders participating in the EPSDT

program an up-to-date list of spe cialists to whom referrals can be made for screening, diagnostic and

treatment services. The Court finds that this pr ovision is fo cused on rem edying and pre venting further

violations of subsection (43)(C) and as such remains in force.

Paragraph 71(ii) expressly requires Defendants and their contractors to ensure “a comprehensive

and appropriate scope o f geographically accessible” services and as such falls unde r John B.’s

recognition that subsection (30)(A) is not privately enforceable.

(7)

Paragraphs 78–83

Defendants contend that the referenced paragraphs of the Consent Decree, which require

coordination among Defendants and “other children’s health and education services,” are tethered only to

the regulation enforcing subsection (43)(C), that i s, 42 C.F.R. § 441.61(c), and not to the statute itself.

Defendants further argue that regulatio ns do not co nfer rights. Plaintiffs poin t out that the regulation

explicitly implements subsection (43) and therefore has statutory foundation. They also argue that

Westside Mothers II recognized the enforceability of consent decrees based on the im plementing

regulations. See Westside Mothers II, 454 F.3d at 543–44 (finding plaintiffs stated a claim under § 1983

for violations of subsection (43)(A) and its implementing regulation, 42 C.F.R. § 441.56(a)).

15

The Court finds that im plementing language of 42 C.F.R. § 44 1.56(a) differs substantially from

that in 42 C.F.R. § 441.6 1(c). The former describes the step s agencies must take to com ply with th e

requirements in subsecti on (43)(A) for providing notice to individual s of the availabilit y of EPSDT

programs, including the use of written and oral methods designed to inform them effectively, the use of

clear and non-technical language, methods for informing individuals with communication-related

disabilities. Without goin g into detail, the Cou rt has no difficulty in concl uding that these regulatio ns are

well within the scope of the implementing statute and confer readily enforceable rights upon individuals.

However, the latter regulation, 42 C.F.R. § 441.61(c), states: “Th e agency must make

appropriate use of State health agencies, State vocational rehabilitation agencies, and Title V grantees. . .

. Further, the agency should make use of other public health, mental health, and education programs and

related programs . . . to ensure an effective child health program.” 42 C.F.R. § 441.61(c). This provision

does not confer specific rights upon individuals. Cf. Caswell v. City of Detroit Housing Comm’n, 418 F.3d

615, 620 (6th Cir. 2005) (“Because [we cannot] point to a specific statutory provision . . . th at confers a

right relevant to [the defe ndant agency’s] alleged violat ion of [the referen ced regulation], [the plaintiff]

cannot pursue his claim under § 1983.”). Even if it did, it is too vague to be individually enforcea ble,

insofar as it refe rs to “appropriate use” without defining what is appropriate, and suggests (using

precatory language) that the agen cy “should make use” of other public health programs without actually

requiring that it do so.

Clearly, Defendants remain legally bound by the terms of 42 C.F.R. § 441.61, but Plaintiffs do not

have the ability to enforce Defendants’ compliance therewith under § 1983. Because paragraphs 78–83

of the Consent Decree are admittedly reliant f or their authority on “§ 139 6a(a)(43)(C) through [the]

implementing regulation 42 C.F.R. § 441.61(c)” (Pls.’ Supp. Statement, Doc. No. 1454, at 2), they appear

to be invalid.

(8)

Paragraph 84

Paragraph 84 purports to require DCS to “ensure that the case planning and case review required

under the relevant portions of the [AAA ] for TennCare children in DCS custody who are subject to such

Act shall ide ntify and pro vide for the treatme nt of the behavio ral health and medical needs of these

children in ac cordance with [the AAA ], as set out herein[.]” This para graph is entirely reliant upon the

16

AAA which is not individually enforceable under § 1983.

(9) Paragraphs 85–87

Paragraphs 85–87 do not impose any substantive obligations on Defendants; they simply

recognize that children in state custody have constitutional due-process rights.

(10) Paragraphs 88–93

Paragraphs 88–93, which fall und er the heading “Formulation of Co ordination Plan,” do not

reference or incorporate the AAA. Rather, they impose an obligation on the state to monitor and review

compliance with EPSDT for children in DCS custody and provide for the development of a remedial plan

for compliance with EPSDT. Plaintiffs contend and the Court agrees that thes e provisions serve to

implement and enforce the State’ s EPSDT obligations to children in state custody under subsections

(43)(B) and (C) and therefore remain valid.

(11) Remaining Paragraphs

The majority of the remaining paragraphs of the Decree pertain to actions the State was required

to take within 30 to 180 days after entry of the Decree. (Decree ¶¶ 94–96, 99, 101–03, 105, 107.) Other

provisions require that Defendants file semia nnual reports regarding their compliance with t he terms of

the Decree, that the parties meet at least on a quarterly basis to monitor the implementation of th e

Decree, and that Defendants pay Plaintiffs’ attorneys’ fees and costs incurred through the date of entry of

the Decree. There is no contention th at Defendants have failed in these obligations. Other provisions

incorporate a reservation of rights, notice to class members, and a provision for th e expiration of th e

Decree upon proof that Defendants have reached an adjusted periodic screening percentage and dental

screening percentage of 80% and are otherwise in substantial compliance with the terms of the Decree.

The parties do not dispute the enforceability of these remaining paragraphs.

II.

CONCLUSION AND ORDER

In sum, the Cou rt finds that 42 U.S.C. § 1396 a(a)(43)(B) and (C), along with subpa ragraph (A),

create rights that are individually enforceable under 42 U.S.C. § 1983, and th at the scope of those rights

is not affected by the Sixth Circuit’ s holding in Westside Mothers II or John B. v. Goetz. Based on tho se

conclusions, the Court further find s that the pa ragraphs of th e Consent Decree that rel y upon the

presumption that subparagraphs (A) through (C) create individually enforceable rights are themselves

17
enforceable as a matter of law. The Cou rt finds that the following paragrap hs of the Co nsent Decree, whose vacatur Defendants seek, are premised upon subsections (A), (B) or (C): Paragraphs 41, 42, 44, 46–47, 51–57, 59, 60(i)–(iv), 61(i), 63–70, 71(i), 74–77, and 88–93.
The motion to vacate the C onsent Decree (ECF No. 738) is th erefore DENIED IN PA RT, and specifically denied as to those provisions.
The Court further finds that paragraphs 45, 48–50, 72, and 73 have been mooted by the passage of time, and that paragraphs 85–87 do not purpo rt to create any rights enfo rceable under the Consent Decree.
Finally, the Court find s that paragraphs 43, 58, 60(v)–(vi), 61(ii)–(iii), 62, 71(ii), and 78– 84 are reliant upon statutory or regulatory provisions that do not create i ndividually enforceable rights and are therefore subject to vacatur. The motion to vacate the Consent Decree is hereby GRANTED IN PART as to those provisions.
It is so ORDERED.
Thomas A. Wiseman, Jr. Senior U.S. District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN B., et al.,
Plaintiffs,
v.
MARK EMKES, Commissioner, Tennessee Department of Finance and Administration, et al.,
Defendants.

) ) ) ) ) Civil Action No. 3:98-cv-0168 ) ) Judge Thomas A. Wiseman, Jr. ) ) ) )

MEMORANDUM OPINION

In this class-action challenge to Tennessee’s managed care program, TennCare, Plaintiffs allege

that the d efendants, Tennessee officials charged with implementing TennCare (hereinafter referred to

collectively as the “State,” in the singul ar), failed to provide early and periodic screening, diagnosis and

treatment (“EPSDT”) services to Tennessee children ( ages 21 and under) cover ed by T ennCare, in

violation of the Medicaid Act. Shortly after the lawsui t was filed i n early 1998, the parties j ointly filed a Consent Decree (Doc. No. 121) (“Decree”) under which they h ave been operating, and sporadically

litigating, throughout the nearly fourteen years since its entry.

I.

PROCEDURAL BACKGROUND

The case ha s a lengthy a nd tortuous procedural history, much of which has been exhaustively

detailed in prior orders and opinions and will not be restated here. A brief summary of relatively recent

events may prove helpful, however.

In September 2009, this Court (Haynes, J.) entered a Memorandum Opinion and Order (ECF

Nos. 1328, 1329) denying the State’s first motion to vacate the Consent Decree, filed in November 2006

(ECF No. 738). In that motion, the State argued that its consent to the entry of the Decree was expressly

premised upon the assumption that the Adoption Assistance Act and the EPSDT statutes and regulations

1 Documents available for viewing on line th rough the Court’s electronic filing system are referenced herein by th eir electronic case filing (“ECF”) number. Thi s case was filed well before this Court adopted electronic case filing in 2 005. Thus, older documents like the C onsent Decree were not filed electronically and are not available for on-line viewing (except insofar as they have been attached as exhibits to later filings) and are therefore referenced by “Document” number only.

2
were enforceable under 42 U.S.C. § 1 983, but that “recent controlling precedent” from the Sixth Circuit,
specifically Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) (“Westside Mothers II”), had
established that the referenced statutory provisions were not, as a matter of law, individually enforceable
through an action brought pursuant to 42 U.S.C. § 1983. The State immediately appealed the denial of
its motion, and on November 30, 2010 the Sixth Circuit entered an opinion reversing in part the district
court’s denial of the motion, and remanding the matter for reassignment to a different judge and
reconsideration of the State’s motion to vacate in light of the court’s holding. The matter was reassigned
to the undersigned.
After additional briefing by both pa rties, this Court has, by separately entered Memorandum
Opinion and Order, granted in part an d denied in p art the first motion to vaca te. The Cou rt determined
that a limited number of paragraphs of the Consent Decree were rendered invalid and unenforceable as a
result of Sixt h Circuit precedent, but that the Decree a s a whole, and the principal provisions in it, remained enforceable.2
Meanwhile, shortly after remand, the State filed a second motion to vacate, this one styled Motion
to Vacate All Injunctive Relief, Terminate the Decree and Dismiss the Case (ECF No. 1465). This mo re
recent motion is premised, not on a legal argument that the Consent Decree was itself unenforceable as
a result of changes in the l aw, but instead on the State’s claim that it was in substantial compliance with
the Decree’s requirements and therefore entitled to a declara tion that the Decree ha d expired in accordance with its te rms. Specif ically, the 116th paragraph of the De cree3 provides that the De cree
shall expire “upon proof that [the State has] reached an Adjusted Periodic Screening Percentage (‘APSP’)
of 80% and a Dental Screening Percentage (‘DSP’) of 80% [as those terms are defined in the Decree],
2 Specifically, the Court found that paragraphs 43, 58, 60(v)–(vi), 61(ii)–(iii), 62, 71(ii), and 73–84 have been rendered unenforceable through Sixth Ci rcuit precedent. In addition, several other paragraphs, including paragraphs 45, 48, 49, 50, 72, and 73, have been rendered moot by the passage of time, and oth ers, including paragraphs 85–87, do no t create any substantive obligations on the part of Defendants. The parties did not address and the Court’s ruling is not concerned with the enforceability of paragraphs 1–38 and 105–116 of t he Decree, which make up the sections entitled Introduction, Background, Intent Statement and Definitions, and Findings, as well as subsections of the “Order” section concerning Plaintiff Access to records, Meetings of Parties, Attorney F ees, Reservation of Rights, and Notice to Class Members. (See generally Doc. No. 12.)
3 As a result of a typographical error in the Decree, there are two paragraphs numbered 113. The second paragraph 113 referring to the e xpiration of the Decree, the last p aragraph thereof, should have been numbered 116.

3

and [is] in cu rrent, substantial compliance with the [other] requirements” set forth in the Decree. The

Plaintiffs filed their re sponse in opp osition to th e motion to vacate (ECF No. 147 2). The parti es

conducted expedited discovery, and the matter proceeded to an evidentiary hearing on the State’s motion

beginning on October 31, 2011. Over the course of the next month, both parties presented witnesses

and documentary evidence. In addition, both parties submitted pre- and post-hearing Proposed Findings

of Fact and Conclusions of Law.

The question presented a t the hearing and by the State’s motion is wheth er the State is in

substantial compliance with those portions of the Consent Decree that were not vacated by the ruling on

the first motion to vacate. Based upon the Court’s consideration of all the do cumentary proof as well as

the testimony of witnesses and their credibility, and for the re asons set forth herein, the Court finds that

the State has established that it has met the criteria set forth in the Decree for expiration thereof by its

terms. The motion to vacate the Consent Decree will therefore be granted.

II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.

Overview of TennCare and Its EPSDT Program

The Consent Decree requires Tennessee’s Medicaid managed-care program, known as

TennCare, to implem ent the early and periodic screening, diagnosi s and treatment (“EPSDT”)

requirements established by the federal Medicaid Act and implementing federal regulations. As the Court

has previously explained:

EPSDT covers a broad range of services. As the name suggests, the purpose of EPSDT is to ensure that all Medi caid-eligible children receive regular screening, vision, hearing, dental and treatment services con sistent with established pediatric standards. T he Federal Code requires that the children receive “su ch other necessary health care, diagnostic services, treatment and oth er measures . . . to corre ct or ameliorate defects and physical and mental illnesses under the State plan.” 42 U.S.C. § 1396d(r)(5). The purpose of EPSDT is to ensure that underserved children receive preventive health care and follow-up treatment. EPSDT is premised on the idea that early detection of problems will lead to treatment of minor problems before they become major healthcare issues. By preemptively screening, diagnosing and treating current problems, EPSDT staves off larger healthcare problems in the futu re, and ultima tely results in a mo re efficient and effective healthcare system with a proactive, comprehensive, and long-term focus.

John B. v. Menke, 176 F. Supp. 2d 786, 790 (M.D. Tenn. 2001).

In 2001, after a th ree-week hearing, the Court determined that the State was at that time not in

compliance with the Consent Decree. The State’s prior non-compliance having been adjudicated by the

Court and a dmitted by State officials in 2001, and because the Cou rt’s 2001 Findings of Fact and

4
Conclusions of Law have never been disturbed on appeal, the State bea rs the burden of proving, by a preponderance of the evidence, that changed circumstances compel the conclusion that the State is now in substantial compliance with the Decree.
In its effort to meet that burden, the State c alled eight witnes ses: Pamela Baggett, Direc tor of TennCare Services, Tennessee Department of Health; John Couzins, Director of External Quality Review, Q-Source; Dr. Deborah G atlin, Chief Medical Officer, Department of Children’s Services; Darin Gordon, Director, Bureau of TennCare; Dr. We ndy Long, Chief Medical Officer, Bureau of TennCare; Margaret O’Kane, President, National Committee for Quality Assurance (“NCQA”); Lynn Pollard, Nurse Consultant Manager, Department of Children’s Services; and Dr. Michael Lu, Associate Professor, Department of Obstetrics & Gynecology, David Geffen School of Medicine at UCLA. The Court found each of these witnesses to be credible within th e scope of thei r areas of kn owledge and expertise, and earnestly concerned about the welfare of children generally. Based to a large extent upon their testimony, as well as the documentary evidence introduced by these witnesses, the Court finds and rules as follows.
TennCare currently covers approximately 1.2 million people, of whom approximately 750,000 are children under the age of 21. (ECF No. 1526, at ¶ 4 (Agreed Factual Stipulations).) Approximately 7,500 children enrolled in TennCare are in the custody of the Department of Children’s Services (“DCS”). (ECF No. 1526, at ¶ 7.)
TennCare services are offered pursuant to c ontracts the Bureau of TennCare has entered with Managed Care Organizations (“MCOs”). In ea ch of the three grand divisions of the State (East, Middle and West), two MCOs provide medical and behavioral healthcare services to T ennCare enrollees: UnitedHealthcare and Bl ue Cross Blue Shield of Tennessee in East and We st Tennessee, and UnitedHealthcare and Amerigroup in Middle Tennessee. In addition, BlueCross BlueShield of Tennessee administers TennCare Select, which operates in all three g rand divisions to serve certain special populations such as children receiving Supplemental Security Income and children in state custody. (ECF No. 1526, at ¶ 9.)
The MCOs i n turn co ntract with the healthcare providers—for example, docto rs, hospitals, therapists, residential treatment providers—who provide medical and behavioral healthcare services to

5

TennCare enrollees. (Vol. 2 (Long ), at 303. 4) Tenn Care pharmacy benefits a re “carved out” of the

package of benefits admi nistered by the MCO s. ( Id. at 304.) The State co ntracts with a Pharmacy

Benefits Manager (“PBM”), SXC Health Solutions, that administers TennCare coverage of prescription

drugs. (ECF No. 1526, at ¶ 10.)

TennCare dental benefits are also “carved out” of the pa ckage of benefits which the M COs

administer. (Vol. 2 (Long ), at 306.) The State cont racts with a Dental Benef its Manager (“DBM”), Delta

Dental, for the provision of dental services to children under age 21. (ECF No. 1526, at ¶ 11; Vol. 2

(Long), at 306.) The current DBM in turn contracts with dentists who provide dental services to TennCare

enrollees under age 21. (Vol. 2 (Long), at 306.)

Each TennCare enrollee is assign ed to an MCO u pon enrollment, and each enrollee has a

primary care provider (“PCP”)—a pediatrician, family practitioner, or nurse practitioner—who is

responsible for co ordinating the child’ s healthcare. To ensure that health ca re providers are qualified,

each MCO is requi red to have a process for credentialing the providers with whom it contracts. (Vol. 2

(Long), at 309.) When more specialized care is necessary, the PCP is to refer the child to an appropriate

specialist. (Vol. 2 (Long), at 324.)

As noted above, TennCare children in DCS custody are all assigned to a single MCO, TennCare

Select, which provides both medical and behavioral services. (Vol. 5 (Pollard), at 1032.) While DCS also

provides some limited b ehavioral services th rough DCS-contracted providers to children in custo dy,

approximately 85 percen t of childre n in DCS cu stody receive all of their beh avioral care thro ugh

TennCare Select. (Id. at 1033.)

The core elements of the State’s EPSDT program, as required by federal law and the Consent

Decree, are (1) outreach to make su re that enrol lees and parents are awar e of the availability and

importance of screening services, (2) early and periodic screening to detect physical or mental problems,

and (3) appropriate diagnosis and treatment services to address those problems. (Vol. 2 (Long), at 321.)

1.

EPSDT Outreach

TennCare, the MCOs, the Department of Health (“DOH”), and the Department of Human Services

4 Citations to the transcript of the trial proceedings are formatted as follows: Vol. [#] ([witn ess name]), at page [#]. The entire transcript is filed at ECF Nos. 1533, 1534, 1535, 1536, 1537, 1538, 1543, 1545, 1546, 1548, 1549, 1550, 1551, 1556, 1557, 1558, 1559, and 1560 (Vols. 1–18).

6
(“DHS”), among others, collaborate to ensure that enrollees and parents are made aware of the importance and the availability of EPSDT services. (Vol. 2 (Long), at 324–25.) Families with children enroll in TennCare at the county offices maintained by DHS. (Vol. 2 (Lon g), at 32 5.) During the enrollment process, DHS provides information to families concerning the ava ilable benefits and the importance of accessing prev entive services. (Vol. 2 (Long), at 325.) Specifically, families are urged to take their children to th e doctor for a checkup (i.e., a screen ing). (See DX 1145 (TENNderCare Brochure); Vol. 2 (Long), at 326.)
Upon enrollment, all TennCare fa milies receive a welcome letter from TennCare that includes a section informing them of the availability of free screening services (both medical and dental), and urging them to make an ap pointment with their primary care provider for a che ckup and to obtai n any needed immunizations. (See DX 59 (Welcome to TennCare Letter); Vol. 2 (Lon g), at 326–27.) The MCOs also send parents and membe rs a member handbook, which contains detailed information on the availability and importance of getting children screened. (Vol. 2 (Long), at 327.) In addition, the MCOs separately call the parents of all newly enrolled children on TennCare in orde r to inform them of the availability o f free checkups, dental care, and immu nizations, and to urge th em to make an appointment with thei r primary care provider for the first screening. (See Vol. 2 (Long), at 327–28; DX 77 (UnitedHealthcare call script).)
The parents of all childre n enrolled in TennCare receive quarterly newsletters from thei r MCO which include a reminder of the importance and the availability of free screening services. (See, e.g., DX 67 (Quarterly Newsletter); Vol. 2 (Long), at 328.) The parents of all children enrolled in TennCare receive an annual postcard around the child’s birthday reminding them that the chil d is due fo r a screen. (See, e.g., DX 88 (Annual Postcard Reminder); Vol. 2 (Long), at 329.)
If the date for a child’s screen has passed and the child has not come in for a screen, the MCO sends another reminder, emphasizing the importance of getting a checkup and the fa ct that it is f ree. (See, e.g., DX 92 (Remi nder Mailing); Vol. 2 (Lon g), at 330.) TennCare separat ely sends a n otice emphasizing the importance of scheduling a checkup and urging the pa rents to do so if th e child h as
5 Th e State’s trial exhibits are referenced as “DX [number].” Plaintiffs’ trial exhibits are denominated “PX [number].”

7
gone a year without a scre en. (See DX 1 00 (TennCare Reminder Mailing); Vol. 2 (L ong), at 3 31.) Finally, the MCOs send yet another reminder if the child has not accessed any TennCare services in a year. (See, e.g., DX 99 (Overdue Notice); Vol. 2 (Long), at 331.)
Children enrolled in TennCare who are not up-to-date on their screens are also the su bject of a home-visit program conducted by DOH, through its TENNderCare Community Outreach Program. Utilizing a list provided monthly by TennCare, community -outreach workers a ttempt face-to-face communication with the child’s family regarding th e availability and importa nce of free EPSDT screens, dental screens and benefits, and transportation services. (Vol. 8 (Baggett), at 1743–44.)
All of the written material s sent out by Tenn Care and the MCOs are reviewed by TennCare for readability, and are written at no g reater than a 6th-grade reading level. (Vol . 2 (Lon g), at 332.) All TennCare materials are printed in both English and Spanish. (Vol. 2 (Long), at 333.) All written materials include telephone numbers that enrollees can call if they are having difficulty understanding the material. (Id.)
The State has collaborated with appropriate agencies and advocacy organizations to ensure that outreach efforts appropriately target illiterate, blind, deaf, and limited-English enrollees and their parents. (Vol. 2 (Long), at 3 33; see also Vol. 8 (Bag gett), at 1734 –36 (discussing activities o f the DO H’s community outreach program targeted to these enrollees).)
With respect to the children in state custody, DCS ensures that resource families (i.e., foster families, relative placements, etc.) are i nformed about the health services available for children in state custody, that they know how to a ccess those services, and that they u nderstand the importance of EPSDT. ( See DX 199 (Coordi nating Health Service s for My Children ) (DCS reso urce guide); see also Vol. 5 (Pollard), at 1072–73 (exp laining that DCS expect s resource families to be advocates for the health-care needs of th eir children, and that DCS provides training, information, and support regarding accessing health services).)
DOH’s outreach efforts consist of three components: (1) a community-outreach program that is operated in each of the DOH’s thirteen regions across the State; (2) the EPSDT Call Center, which makes phone calls t o all ne wly enrolled or newly re-certified TennCare families with children under the a ge of twenty-one; and (3) the Prenatal Call Center, which attempts phone contact with newly enrolled pregnant

8
women. (Vol. 8 (Baggett), at 1692.) The community-outreach program is a grassroots effort conducted at the community level within
the thirteen DOH regions across the State, utilizing pers onnel devoted exclusively to EP SDT outreach activities. (Vol. 8 (Baggett), at 1724–26.) Each region’s outreach activities are directed to specified target age groups within the un der-twenty-one population, to target population s with particular characteristics, broadly to T ennCare enrollees, and to the general public. (Id. at 1725–28, 1730–38); see also DX 40 (TENNderCare Program 2010 Annual Community Outreach Report) at 1–4.) For example, TENNderCare community outreach efforts targeted to pregnant teenagers involve collaboration with schools, community pregnancy resource centers and other teen-o riented community agencies, and other DOH-administered programs to provide information regarding prenatal care and the availability and importance of EPSDT benefits for the pregnant teen herself, as well as to her baby after birth. (Vol. 8 (Baggett), at 1737–38.) The community outreach activities of t he thirteen regions are tra cked and are compiled on a state wide cumulative basis in Community Outreach Reports that are generated quarterly and annually. (Vol. 8 (Baggett), at 1728–29; see also DX 40 (TENNd erCare Program 2010 Annual Community Outreach Report).)
The EPSDT Outreach Call Center, operated out of the DOH Central Office, makes phone calls to all newly enrolled or newly recertified TennCare families with children under the age of twenty-one. (Vol. 8 (Baggett), at 1749–-50, 1756.) All newly enrolled or newly recertified families with children under age twenty-one on each of the weekly lists provided to the Call Center by TennCare are the subje ct of up to three attempted contacts, as necessary, with the initial attempt made within one week of receipt of the list and all three contact attempts made within two weeks. (Vol. 8 (Baggett), at 1757–58.) The attempts are made using telephone numbers recently reported by the family during the eligibility process. (Id. at 1756, 1758; DX 38, at 7 (TENNderCare Program 2010 Annual EPSDT Call Center Report).) During these calls, families are provided with information about the TENNderCare program and services available, including free checkups and dental benefits. (Vol. 8 (Baggett), at 1751.) Each enrollee successfully contacted is offered assistance in scheduling an EPSDT screen with the child’s primary care provider or a local health department, and transportation assistance for those appointments. (Id.) The activities of the Call Center are tracked and are compiled in quarterly and annual reports. (Id. at 1752–53; see DX 38 (2010 Annual

9
EPSDT Call Center Report); DX 36 (First Quarter 2011 EPSDT Call Center Report).) The DOH also provides outreach to pregnant women through a centralized Nursing or Prenatal
Call Center. (Vol. 2 (Long), at 337–38.) T he Call Center attempts to contact each of t he women on TennCare’s weekly list of newly e nrolled pregnant women. ( Id. at 338; Vol. 8 (Bag gett), at 1715 –16.) When contact is made, inf ormation is provided regarding th e availability of prenatal care for t he woman and EPSDT services for her child upon birth, the av ailability of TennCare dental benefits if the pregnant woman is under age 21, along with education intended to promote a healthy pregnancy. (Id. at 1716–18.) If the wom an has not already scheduled a p renatal care appointment, the Prenatal Call Center offers assistance in making that appointment, and will atte mpt, if the woman ag rees, to make the appointment via a three-way call with the provide r’s office o r by contacting the office the next day, followed by appointment confirmation to the pre gnant woman. ( Id. at 1716–1 7.) The a ctivities of the Prenatal Call Center are tracked by codes entered by the o perators in a call-center database and are compiled into both quarterly and annual reports. (Id. at 1 718–19; see DX 42 (2010 Annual Nursing Call Ce nter Report).)
All pregnant women on each of the weekly lists provided to the Call Center by TennCare are the subject of actual contact or at least thre e contact attempts, with the initial attempt made within one week of receipt of the list and al l three co ntact attempts made within two wee ks. (Vol. 8 (Bagg ett), at 1721, 1723–24.)
In the case of pregnant women, the federal Centers for Medicare and Medicaid Services (“CMS”) allow states the option of implementing a prenatal presumptive-eligibility process, which Tennessee has elected to do in order to facilitate ea rly entry into prenatal care. (Vol. 2 (Long ), at 336–37.) Under the presumptive-eligibility process, a woma n may go to any of 120 county health depa rtment clinic site s to confirm her pregnancy with a pre gnancy test, or to pr esent verification of pre gnancy that was confirm ed by another health-care provider, and then may b e presumptively enrolled in TennCare that same day. (Id. at 337; see also Vol. 8 (Baggett), at 1695, 1697–99.) The woman completes a one-page application, and can simply self-attest to the information required (with the exception of pregnancy). (Vol. 2 (Long), at 337; Vol. 8 (Baggett), at 1697–98; DX 276 (Medi caid Presumptive Eligibility appli cation).) If it appears that the wom an would be eligible based on the i nformation she provides, she is en rolled in TennCare

10
immediately, enabling her to access to the full range of TennCare benefits. (Vol. 2 (Long), at 337; Vol. 8 (Baggett), at 1698–1700.) A copy o f the p resumptive-eligibility form i s provided to the woman as temporary proof of her eli gibility for TennCare through the presumptive-eligibility process, with the form itself reflecting the certification that the woman is eligible for TennCare benefits. (Vol. 8 (Baggett), at 1699.) That same day, county health department staff enter information reflecting the pregnant woman’s eligibility into a presumpti ve-eligibility system, and t hat information is uplo aded the sam e night to the TennCare eligibility database. (Id.) Accordingly, in addition to vi ewing a woman’s presumptive-eligibility form itself, a provider can verify the existence of the TennCare elig ibility of a presum ptively eligible woman by accessing the TennCare Bureau’s online eligibility database, which also indicates the MCO to which the woman has been assigned. (Id. at 1699–1700.)
The only difference between an enrollee enrolled through the presumptive-eligibility process and someone enrolled through the stand ard DHS enroll ment process is that presumptive eligibility expires after forty-five days, du ring which time the pregn ant woman must go to th e DHS co unty office and complete the standard enrollment process in order to maintain eligibility after expiration of the forty-five days. ( Id. at 1700–01.) County health depa rtment staff w ill assist the presu mptively eligible pregn ant woman with the DHS application process, completing as much information as possible on the application form and faxing the d ated and signed application to the local DHS office in o rder to preserve the date of application as the effective date of eventual regular TennCare eligibility. ( Id. at 1 702–03.) T he presumptively eligible woman must then go to the DHS office to complete the application process (id. at 1703–04) which, under federal regulation, may take up to forty-five days. 42 C.F.R. § 435.911.
Pursuant to public-health nursing protocols issued by DOH, on the same day a pregnant woman submits her application and is determined to b e presumptively eligible, county health dep artment staff offer assistance to the woman in scheduling an appointment with a prenatal-care provider. (Vol. 8 (Baggett), at 1696, 1 704; Vol. 2 (Long), at 338.) If the woman declines that scheduling assistance, she will be given a list of pren atal-care providers in the area. (Vol. 8 (B aggett), at 1704.) In addition, durin g this initial contact with the county health department, the presumptively eligible woman is provided with a supply of prenatal vitamins and i s counseled regarding the availability of prenatal care, the availability of EPSDT services if the pregnant woman is herself under age twenty-one, the availability and importance

11
of EPSDT services for the infant after birth, and t he importance of healthy behav iors during pregnancy. (Id. at 1707–08.)
Representatives of Tenn Care, DOH, and the TennCare MCO maternity/OB case-management programs comprise the Maternity Workgroup Collaborative, whose activities focus on ensuring awareness on the part of pregnant women and obstetric providers of TennCare benefits and the services provided by the TennCare MCOs’ maternity case management programs. ( Id. at 1708-09. ) For example, the Maternity Workgroup Collaborative launched a cam paign geared to both TennCa re-enrolled pregnant women and providers to edu cate them about the expanded TennCare smoking-cessation benefit for pregnant women. (Id. at 1713.) In a ddition, through the educational efforts of the Workgroup, obstetric providers have been supplied information regarding the services available for pregnant enrollees through the MCO maternity case-management programs, and a reference guide for those providers, combining the contact information for the M CO maternity case-management programs, has b een developed and disseminated. (Id. at 1709–14.)
Plaintiffs do not contest the evidence presented by the State re garding its extensive, expansive outreach efforts. In stead, Plaintiffs contend that the State h as not established that th ese efforts are effective. Specifically, Plaintiffs assert that the State’s o utreach efforts are flawed because the State makes no attempt to assess the effectiveness of any of its outreach efforts. (ECF No. 1563 (Pls.’ PostTrial Br.), at ¶ 82.) Plaint iffs further object that Dr. Wendy Long’s testimony that sh e “believe[s]” the State’s outreach to be effective “as evi denced by the tremendous improvement in ou r screening rates [and] the huge volume of correspondence and calls and so forth” (Vol. 2 (Long), at 417) is conclusory and unsupported. The Court agrees that the State’s effo rts are not without flaws and are li kely in need of continued work and revision, particularly, as Plaintiffs argue, in the area of provi ding notice to teenagers and pregnant women.
Policy arguments aside, however, Plaintiffs’ objections are somewhat beside the point, as the outreach provisions set forth in the Consent Decree
do not requi re the State to certify or guarantee the effectiveness of its outreach efforts. Instead, th e Decree requires the State to “adopt po licies and procedures necessary to ensu re that Tenn Care rules

12

and guidelines” clearly require compliance with every outreach requirement under federal law. (Decree ¶

39 (emphasis added).) The policies and procedures themselves must establish a goal that the outreach

efforts be “aggressive[] and effective[],” and that t he outreach media otherwise conform with federal

mandates, such as through the u se of “clear and non-technical terms,” the use of outreach systems

designed to reach individuals who are illiterate, blin d, deaf, o r who do not understand English; offering

transportation services; in forming families of the cost of servi ces, if any, “ establishing criteria for

determining when an MCO may be required to target specific informing ac tivities to partic ular ‘at risk ’

groups”; offering informati on on covered services to pregnant teenagers who enter T ennCare through

presumptive eligibility, and offering assistance in making a timely first prenatal appointment, and so forth.

(Id. ¶ 39(a)–(p).) The “Outreach Performance Standard” set forth in the Decree simply obligates the State

to achieve and maintain “outreach efforts designed to reach all members of the plaintiff class with

information and materials” in conformity with the federal requirements as set forth in paragraphs 39(a)–(p)

of the Decree. (Id. ¶ 40.) The Court finds that the eviden ce offered by the State demon strates that the

appropriate policies and procedures are in effect, a nd that the State is in th e process of maintaining

outreach efforts in compliance with the Decree. The Court finds it problematic that the State makes no

real effort to track the effectiveness of its outreach efforts, but cannot find that the State’s myriad outreach

efforts are not designed to reach all members of the plaintiff class.

2.

EPSDT Screening

An EPSDT screen consists of five elements: (i) a comprehensive health and developm ental

history; (ii) a comprehensive unclothed phy sical exam; (iii) appropriate im munizations according to age

and health history; (iv) appropriate laboratory tests (including an assessment of blood levels of lead); and

(v) appropriate health education. (See, e.g., DX 3 (TennCare Standard Operating Procedure (hereinafter

“TSOP”) 036, Addendum 3) at 2; DX 50 (Form Contractor Risk Agreement (hereinafter “MCO Contract”))

§ 2.7.6.3.3.) In addition, TennCare children receive vision, hea ring, and d ental screens at appropriate

intervals.

TennCare has adopted the periodicity schedule for physical health screening (i.e., the schedule

for when over the course of childhood periodic physical checkups should take place) recommended by

the American Academy of Pediatricians. (See, e.g., DX 49a (TennCare Rule 1200-13-13-.04(b)(8)) at 38;

13
DX 3 (TSOP 036, Ad dendum 3); MCO Contract § 2.7.6.3.2 (adopting periodicity schedules); DX 159 (Periodicity Schedule for Checkups and Screenings adopted by t he State); DX 160 (Recommendations from EPSDT Sc reening Guidelines Committee regarding Developmental/B ehavioral Screening); Vol. 2 (Long), at 322.) TennCare has adopted the periodicity schedule for dental services recommended by the American Academy of Pediatri c Dentists, and has adopted the periodicity schedules for vision an d hearing screenings recommended by a committee of experts in th ose fields. (See DX 161 (Recommendations from EPSDT Screening Guidelines Committee regarding Hearing and Vis ion Screenings).)
All TennCare screening services are provided upon request at no cost to the enrollee, without any requirement for pri or approval, regardless of wheth er the scree n takes place in accorda nce with the periodicity schedule or is in addition to the checkups recommended under the periodicity schedule. There is no dispute that an enrollee can get screened simply by calling his primary care provider and scheduling an appointment. (Vol. 2, at 339 (Long).)
Under contract with T ennCare, DOH provides EPSDT screening services at all of its county health department clinic sites across the State and has a participating provider agreement with each of the TennCare MCOs to p rovide those screens. (Vol. 8 (Bagg ett), at 1692–9 3.) Und er an agreement between DOH and DCS, the county health departm ents perform EPSDT screens for all children in state custody (with the exception of Davidson County, where children in custody receive their EP SDT screens from a pediatric medical group). (Vol. 2 (Long), at 339–40; Vol. 8 (Baggett), at 1693; Vol. 5 (Pollard), at 1046–47; DX 193 (DCS/DOH Ag reement).) When a screen is performed at a county health department clinic, a form, referred to as the “PCP letter” (DX 194) , is completed reflecting the results a nd is sent to the child’s primary care provider and to DCS if the child is in state custody. (Vol. 8 (Bagg ett), at 1747; Vol. 5 (Pollard), at 1052.) Immunization s are also available at no cost to TennCare children at all county health departments. (Vol. 8 (Baggett), at 1693.)
DOH undertakes an a nnual quality improvem ent review of m edical records across all of its regions to verify the p resence of documentation that the PCP letter was sent and to evaluate t he provision of EPSDT screens to ensure that all required components were covered. (Id. at 174 8–49 (Baggett); Vol. 9 (Baggett), at 1798–99.)

14
CMS requires each state to report two different measures for determining the numbers of children who receive EPSDT screens under the s tate’s Medicaid program: a screening ratio and a partic ipant ratio. (Vol. 2 (Long), at 340.) Pa ragraph 46 of the Decree adopts the first of these m easures, the screening ratio, as the “baseline periodic screening ratio” for purposes of this case. (Decree ¶ 46.) The baseline periodic screening ratio is calculated by dividing the total numbe r of screens received by all enrollees under twenty-one during the year in qu estion by the total numbe r of screens expected to be provided to enrollees under twenty-one during that year. ( See DX 250 (CMS 416 Instructions); Vol. 2, at 342 (Long) (describing methodology).) For the most recent complete year, FY 2010, the State reported a baseline periodic screening ratio of ninety-nine percent to CMS. (See DX 243 (2010 CMS 416 Report) at Line 7.)
Also in ac cordance with paragraph 46 of the Consent Decree, TennCare annually conducts a medical record review in order to adjust the baseline periodic screening ratio to reflect the extent to which TennCare enrollees receive all of the re quired components of an EPSDT screen. (Vol. 2 (Long), at 322 – 23 (describing the re quired components of an EPS DT screen); id. at 352– 53 (describing the ann ual record review and a djustment of the scree ning ratio).) To con duct this review, a team of TennCare nurses selects at rand om a statisticall y valid samp le of enco unters coded as screens, obtains the underlying medical records from the d octors who p rovided those checkups, and reviews the records to determine whether all of the requ ired components of an EPSDT screen were provided and docum ented. (Id. at 353– 54.) From thi s review, an overall proportion of re quired components is calculated and that proportion is then m ultiplied by th e baseline periodic screening ratio to p roduce an adjusted periodic screening percentage (APSP). (Id. at 354.)
For the most recent complete year, FY 2010, the overall component compliance rate was 92.19 percent, and the a djusted periodic screening percentage was 91.3 percent. (See DX 149 (FY 2010 EPSDT Medical Record Review Report) at 4; Vol. 2 (Long), at 355.) Over the ten years since 2001, the State’s adjusted periodic screening percentage has risen from 31.8 percent to the cu rrent rate of 91.3 percent. (See DX 149 (FY 2010 EPSDT Medical Record Review Report) at 4.)
The dental screening percentage for FY 2010 was 81 percent, up from 80 percent in FY 2009. (PX 2063 (FFY2010 Dental Screening and Participation); Vol. 2 (Long), at 357.)

15
The screening percentage for Tenn Care children in DCS custo dy has co nsistently reached or exceeded 95 percent. (See generally Vol. 5 (Pollard), at 1055–64 (explaining tracking and calculation of screening ratio for c hildren in DCS c ustody).) DCS has a polic y of tak ing all children for an EPSDT screen within thirty days o f their enteri ng custody, and has implemented a tracking system (“TFACTS database”) for monitoring and reporting the screeni ng status of the child ren in cu stody. The TFACTS report dated October 26, 2011 showed that 96.4 2 percent of Pl aintiff class members who had been in DCS custody for more than thirty days , who were not on runa way status, and for whom th ere was n o good-cause exception on record, were up-to -date on their annual EPSDT screen. T he same TFACTS report indicated that 99.6 percent of those screens were complete, seven-component screens. (DX 196 (October 2011 DCS EPSDT Medical Screening Summary Report); Vol. 5 (Pollard), at 1055–62, 1067.) According to the State’s witness, Lynn Pollard, two-thirds of the 3.6 percent of children listed as not up to date on their EPSDT screens in October 2011 had come due for a screen wit hin a month of the report, and likely were not captured as up to date on their screens simply because documentation of the screens had not yet been entered into the TFACTS system. (Vol. 5 (Pollard), at 1055–63.) The remaining third, or approximately 1.2 percent, were not accounted for.
According to Dr. Lon g, the State has co nsistently calculated its screening rates on an agg regate basis across its eligibl e population of children, without capping screens according to the number of screens recommended by the pe riodicity schedule as applicable to an indivi dual child. (See Vol. 2 (Long), at 3 42–49 (describing calculation methodology); Vol. 3 (Long), at 6 59–60 (identifying minor changes in methodology, none of which altered the aggregate nature of the calculation).) CMS has confirmed to the State that other states use th e same aggregate approach because an individualized approach (like that suggested by Plaintiffs’ expert, Dr. Ray) would not be practicable. (Vol. 2 (Long), at 350–51.)
Plaintiffs maintain that th e State’s screening performance remains inadequate, based on perceived flaws in the State’s methodology for calculating the screening ratio. In short, Plaintiffs’ expert Dr. Rose Ray testified that the St ate’s reported screening ratio is significantly inflated, becau se the

16

numerator of the fraction overcounts screens,6 while the denomi nator undercounts the tot al expected number of screen s.7 Dr. Ray’s pro posed methodology, however, used a form ula for com puting these

percentages that is peculiar to her and not used by CMS or by any other Medicare agency in the country.

The Court rejects the testimony of Dr. Ray and accepts the testimony of Defendants’ witnesses regarding

the appropriate methodology for calculating the screening ratio.

3.

EPSDT Diagnosis and Treatment

In addition to screening, TennCare children are entitled to re ceive, free of ch arge, all me dically

necessary covered diagnosis and treatment services. Medical necessity is determined on a case-by-case

basis in accordance with the State’s regulatory definition of medical necessity. (TennCare Rules Chapter

1200-13-16.) In general, a covered service will be medically necessary if it is (a ) recommended by the

child’s physician, (b) required in order t o diagnose or treat an e nrollee’s medical condition, (c) known to

be safe and effective and not experimental or investigational, and (d) the least costly alternative course of

diagnosis and treatment adequate to treat the child’ s condition. (TennCare Rule 1200-13-16-.05(1); Vol.

2 (Long), at 359.) Tenn Care’s medical-necessity rule expressly provides that it must be impleme nted

consistent with federal law, in cluding all EPSDT requirements . (TennCare Rule 1200-13-16-.02; Vol. 2

(Long), at 360.) TennCare will remain obligated to continue to cover all medically necessary diagnosis

and treatment services after the Decree is vacated; the State maintains that it has no plans to cut EPSDT

services to children. (See Vol. 9 (Gordon), at 1821–22, 1861.)

MCO contracts require that the MCOs abide by EPSDT requirements in determining medic al

6 According to Plaintiffs, Tennessee’s periodicity schedule requires most children to receive one screen per year, and does not require any child to receive as many as ten screens in any one year, but the number of screens counted in a few instances included as many as ten or twenty screens per child per year. Dr. Long te stified that the CMS instru ctions permit the State to count as many as thirty annual screens for a single child if the child in fact received that many screens in one year. Plai ntiffs contend that the CMS instructions require that a periodic screen is to be provided according to a state’s periodicity schedule, and that if “many of these children received even one more screen than the number required in the periodicity schedule, it would affect the screening ratio.” (ECF No. 1563, at 58.)
7 The denominator of the scre ening ratio is the aggregate number of screens that children of all age groups should receive (as the number varies according to a child’s age). Plaintiffs contend that CMS instructs states to b ase their screening ratio on the state’s current peri odicity schedule. ( See DX 250 (CMS 416 Instructions).) The State maintain s that it is adhering to the current periodicity schedule, but that for purposes of calculating its scre ening ratio for compliance with the Consent Decree, it uses the same periodicity schedule in effect at the time the Consent Decree was executed. Dr. Long testified that the Consent Decree requires using “identical methodology every year.” (Vol. 17 (L ong), at 36 88.) Regardless of the discrepancy in methodology, the Court is persuaded that a screening ratio of at le ast 80% has been achieved.

17
necessity. (Vol. 2 (Lo ng), at 360–61.) Further, in training provided to the MCOs, TennCare emphasizes that medical-necessity determinations must comply with EPSDT requirements. (Id.)
In practice, the vast majority of dia gnosis and treatment services are provided to T ennCare enrollees automatically, without any medical-necessity review, when the service is ordered by a licensed provider. (V ol. 2 (Lo ng), at 363– 64.) The MCOs subject only a small p ercentage of services to pri or authorization under which MCO approval is required before the service will be covered. (Id.) When prior authorization is required, the ordering physician must provide the MCO with information explaining why the service is needed. In most ca ses, a routine fax or teleph one call from the doctor’s office suffices to ensure approval of the service. In the small percentage of cases where the MCO has concerns notwithstanding the inform ation provided, the case will be elevat ed to an MCO docto r, who will con sult with the ordering physician in an effort to determine together the appropriate course of treatment for the patient. ( Id. at 369.) In most of that small perce ntage of ca ses, the MCO doctor a nd the treating physician will reach a consensus; in the few cases where they do not, the MCO may deny the request for prior authorization. (Id. at 370.)
When a req uest for pri or authorization is deni ed, TennCare will issue a noti ce with instructi ons that the denial may be appealed simply by calling a toll-free number. (Id. at 371.) If an appeal is taken, TennCare will ask the MCO to reconsider the denial by having a different physician review the case. (Id.) If the reconsidering physician agrees with the treating physician, the service will be covered. (Id. at 371– 72.) If the re considering physician agrees with the original MCO physician, the TennCare appeals unit will send the case to an independent medical consultant under contract with TennCare for another level of review. (Id. at 372.) Again, if the independent medical consultant agrees with the treating physician, the service will be covered. (Id. at 3 73.) If the in dependent medical consultant agrees with the M CO physicians, the ap peal will be he ard by an ad ministrative law judge who will deci de, based on the evidence, whether the requested service is medically necessary. (Id. at 373–74.) The a ppeal system is governed by the terms of the decree e ntered in Grier v. Emkes, No. 79-31 07 (M.D. Tenn.) (Nixon, J.). (Vol. 2 (Long), at 374.) Under this system, an MCO’s denial of a service ordered by a licensed physician or other provider based on lack of medical necessity will be sustained only if no fewer than th ree different reviewing physicians (including one who is in dependent of the MCO) all ag ree that the service i s not

18

medically necessary.

The same appeals process governs medical-necessity determinations for d rugs that are not

included on TennCare’s list of p referred drugs. (Id. at 37 5–79.) The Pharmacy Benefits Manager is

required to pro cess prior-authorization requests within 24 h ours. ( Id. at 379.) For immedi ate

authorization, the p rescribing physician may call th e Pharmacy Benefits Manager instead of faxing a

prior-authorization request. (Vol. 2 (Long), at 380 .) Under th e Grier Consent Decree, even if a

prescription is denied for lack of prior authorization, a pharmacist may provide an enrollee with a 72-hour

emergency supply while waiting for the prescribing physician to provide more in formation to demonstrate

medical necessity. (Id.)

Plaintiffs focus their critique of the State’s provision of diagnostic and treatment services on the

State’s failure adequately to track follow-up care. While the State’s failure to track is concerning, Plaintiffs

have not successfully linked a supposed obligation to track with any particular requirement expressed in

the Decree. Further, Plaintiffs’ co mplaint that TennCare pediatricians are not “u p to speed on

developmental issues in children” (ECF No. 1563, at 73), as a result of which autism and other

developmental disabilities allegedly g o undiagnosed, is actually a critiq ue of the medi cal-care delivery

system generally, and one that affects all child ren in Tennessee regardless of whether they are covered

by TennCare.

Plaintiffs also contend tha t there is a state- wide dearth of Tenn Care specialists in beh avioral

health and other areas. Besides the fact that the network-adequacy requirements in the Consent Decree have been determined to be unenforceable pursuant to Sixth Circuit precedent,8 Plaintiffs have not

established that dearth of specialists is a problem peculiar to TennCare patients.

4.

Monitoring & Oversight of the EPSDT Program

Although the State doe s not implem ent all the different monitoring and tracking measures

Plaintiffs and their experts recommend, the State does use a number of objective measurements to judge

its performance. For instance, in 2006, Tennessee became the first state in the country to require that all

of its MCOs obtain full accreditation by the National Committee for Quality Assurance (“NCQA”). (Vol. 3

8 To be cle ar, the State remains b ound by t he network-adequacy requirements established by federal statutes and regulations. The Sixth Circuit has simply determined that these p rovisions are not enforceable by individuals pursuing claims under 42 U.S.C. § 1983.

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(O’Kane), at 505; Vol. 2 (Long), at 402.) NCQA is a nonprofit organization that is devoted to improving the quality of health care around the country. (Vol. 3 (O’Kane), at 481–82; Vol. 2 (Long), at 310.) NCQA accreditation is an independent, nationally recognized standard for evaluation of health-care plans. (Vol. 2 (Long), at 402.) To receive NCQA a ccreditation, a health plan must undergo a rigorous review of its policies and procedures, and then of the plan’ s performance as tracked according to pre cise, standardized, carefully constructed measures that enable comparisons between plans and across States. (Id. at 310-11; Vol. 3 (O’Kane), at 501–04; DX 10 (NCQA Health Plan Accreditation); DX 11 (2011 NCQA Health Plan Accreditation Requirements).) Two of the State’s three M COs have achiev ed NCQA’s highest overall accreditat ion rating (“excellent”), and the thi rd received NCQA’s second highest accreditation status (“commendable”). (DX 295 (Accreditation Status Update) at 2; Vol. 2 (Long), at 384.) All three of T ennCare’s MCOs have e arned the highest rating—four stars—for both “access to neede d care and . . . good customer service” and for “qualified providers.” (DX 295 (Accreditation Status Update) at 1, 2; Vol. 2 (Long), at 384–85.)
In addition to NCQA a ccreditation, TennCare requires its M COs to rep ort all of the He althcare Effectiveness Data an d Information Set (“HEDIS”) measures related to the pro vision of care to children (as well as many related to adults). (Vol. 3 (O’Ka ne), at 48 6 (identifying some measures relevant to children); Vol. 17 (Lo ng), at 3671–73.) HEDIS me asures are standardized national metrics developed and superintended by the NCQA that enable TennCare to track the performance of the MCOs in a variety of measured healthcare outcomes over time, to com pare the performance of the State’s MCOs to each other, and to compare the performance of the MCOs to national averages and benchmarks for Medicaid managed care programs across the country. (Vol . 3 (O’Ka ne), at 4 89 (noting that standardized calculation permits “very little room for interpretation” and avoids “problems with comparing one . . . level of performance to another”); Vol. 2 (Long), at 387.) HEDIS measures are all independently validated by NCQA-certified HEDIS auditors. (Vol. 2 (Long), at 387; Vol. 3 (O’Kane), at 498.)
In general, Tenn Care’s most recent HEDIS results compare favorably to national Medicaid averages. (Vol. 2 (Lon g), at 389. ) T hey compare even more favorably to the South eastern regional averages. (Vol. 3 (O’Ka ne), at 506–07.) In particular, TennCare’s HEDIS scores for access to and availability of care for chil dren, timeliness and frequency of prenatal care, child immunization rates, and

20
effectiveness of behaviora l health are a ll comparable, and in most cases excee d the nationa l Medicaid average. (DX 151 (Ten nCare 2011 HEDIS/CAHPS Annual Report) at 24–28; Vol. 2 (Long , at 388–93).) Over time, many of TennCare’s HEDIS scores related to the provision of healthcare services to children have improved, generally reflecti ng a steady increase in the quality and accessibility of medi cally necessary diagnosis and treatment services for TennCare children. (See DX 153 (2010 HEDIS/CAHPS Summary and Trending Report) at 20–27; Vol. 2 (Long), at 394–96; Vol. 3 (O’Kane), at 505–06; cf. Vol. 1 (Ray), at 184 (a cknowledging that T ennessee’s rates of EPSDT screenings and prenatal services improved each year from 2007 through 2010).)
Plaintiffs discount b oth the HEDIS m easures and NCQA accreditation on the basis that HEDIS only measures process and policy rather than health outcomes or actual compliance with the policies and procedures that are in place. Plaintiffs further argue that the HEDIS measures and NCQA accreditation are only partial measures because the MCOs do not manage the “carve-outs” of dental, pharmacy, and treatment of behavioral problems. The Court rejects the Plaintiffs’ arguments on the basis that the State has complied with—and gone beyond—the measurements required by CMS. Moreover, while the State’s performance certainly still has room for improveme nt, the measures in pla ce have documented steady improvement in nearly every area related to EPSDT se rvices over time. M ore accurate and precise methods of assessment could certainly be imagined and implemented, but there is nothing in federal law or the Consent Decree that requires more precise assessment.
In addition to HEDIS and NCQA accreditation, TennCare also requires the MCOs to report results on the Consumer Assessment of Healthcare Providers a nd Systems (“CAHPS”) set of standardized surveys, which measures enrollees’ satisfaction with their care. (Vol. 2 (Long, at 396–97); see also Vol. 3, at 499–500 (O’Kane).) CAHPS reporting is another component of NCQA accreditation. (Vol. 2 (Long), at 396.) The CAHPS child Medicaid measures for “Getting Needed Care” show that 84 to 86 percent of TennCare recipients report that they always or usually get the care they need for their children, compared to only 77 pe rcent of Medicaid recipients nationally who report that they always or usually get the ca re they need for their chil dren. (D X 151 (2011 HEDIS/CAHPS Annual Report) at 36–37; Vol. 2 (Lon g), at 398.) Similarly, 90 to 92 percent of TennCare recipients report that they always or usually get the care they need for their children quickly, compared to only 86 percent of Medicaid recipients nationally. (2011

21
HEDIS/CAHPS Annual Report at 36–37; Vol. 2 (Long), at 398; see also id. 458–61 (discussing DX 209, the 2010 results of an annual University of Tennessee study assessing opinions about certain aspects of TennCare, indicating that 88 percent of ho useholds perceived the care their children received on TennCare in 2010 as ex cellent or good, compared to 76 percent in 1998, with 43 percent giving “excellent” ratings in 201 0 compared to 27 perce nt in 1998). ) Plaintiffs’ expert, Dr. Da rren DeWalt, dismissed the favorable CAHPS results as entirely unreliable based on his assertion that people will register satisfaction with services even if the health care they actually re ceive is “crum my.” (Vol. 7 (DeWalt), at 1411.) T his criticism i s somewhat beside the point insofar as CAHPS surveys are n ot intended to measure the quality of healthcare provided, but co nsumers’ satisfaction with their ove rall experience in the receipt of healthcare. Plaintiffs cannot successfully dispute the fact that the recent CAHPS results indicate that an overwhelming majority of class members are satisfied that their children are getting needed care, and getting it quickly.
TennCare contracts with an External Quality Review Organization (“EQRO”), currently Qsource, to provide extensive independent monitoring and review of the performance of the MCOs. (Vol. 2 (Long), at 398–99; Vol. 4 (Co uzins), at 867–72.) Amo ng other things, the EQRO specifically reviews MCOs’ compliance with their contractual obligations, including but not li mited to thos e addressing EPSDT and the Consent Decree in this case. (Vol. 2 (Long), at 399; Vol. 4 (Couzins), at 867–69, 884–85, 914–15.) Specifically, for p urposes of this case and the Decree, the EQ RO rigorously reviews the compliance of each health plan, in each region of t he State, with the paragraphs governing outreach, screening, diagnosis, and treatment, aggregating its findings, good and bad, in an “EPSDT Summary Report” it provides the State annually. (Vol. 4 (Couzins), at 884–85, 903–11, 914–15; DX 30 (EPSDT Summary Report); see also DX 12 (2011 Annual Quality Survey).) The EQRO reviews compliance in reference to an MCO’s policies and procedures, combined with random sampling of select medical files to confirm that the MCO is in fact implementing its policies and procedures on the ground. (Vol. 2 (Long), at 399–400; Vol. 4 (Couzins), at 903–11.)
In addition to the above-referenced measures, TennCare’s Quality Oversight Unit works with the EQRO to identify opportunities for improvement and to develop a quality strategy for the State. (Vol. 2 (Long), at 40 7–08; Vol. 4 (Couzins), at 875–76; see also DX 1 1 (NCQA A ccreditation Requirements)

22
(describing NCQA’s evaluation of a pla n’s “Quality Management and Improvement (QI)” for purposes of accreditation).) Through the Quality Oversight Unit’s Quality Strategy for Medicaid, TennCare reports to CMS annually on the various quality measures reported by the EQRO and NCQA. (Vol. 2 (Long), at 407– 09.) In approving TennCare’s 2011 Quality Strategy for Medicaid, CMS recognized TennCare’s “exemplary commitment to the quality of care re ceived by [the State’s] Medi caid beneficiaries.” (DX 24 9 (CMS Approval Letter); Vol. 2 (Long), at 409–10.)
The State is also requi red by the Decree to file Semi-Annual Reports (SARs) with the Court, and to provide copie s to the Plaintiffs, regardi ng Defendants’ compliance with the terms of the Decre e. (Decree ¶ 105.) The se reports are to contain information validated by the ap plicable audit and testin g procedures outlined in the Decree, and must accurately and fully refle ct the statu s of the state’ s compliance. ( Id.) The SARs have b een promptly and con sistently filed on July 31 and January 31 o f each year, and Plaintiffs do not contend that Defendants have failed to comply with this requirement.
The Comptroller of th e Treasury of Tennessee conducts periodic audits of t he Department of Finance and Administration, a portion of which includes a review of TennCare. In the most recent audit, the Comptroller concluded, based upon his review of reports submitted by the MCO s to Te nnCare, the independent evaluations of the EQRO, the rep orts detailing the MCOs’ HEDIS and CAHPS results, and their NCQA accreditation, that TennCare had in place an “appropriate process . . . to mo nitor the quality of care.” (DX 247 (2011 Performance Audit, De partment of Finance and Administration) at 103. ) In addition, based on a random sample of service denials by the MCOs, the Comptroller’s audit concluded that the MCOs were meeting their obligations related to the denial of services. (Id. at 119.)
TennCare presented other evidence of its efforts to ensure the MCOs’ provision of EPSDT services in compliance with the Decree and federal law. An example of these efforts include TennCare’s regular monitoring of individual service app eals in order to i dentify any MCO p ractices that may inappropriately erect obstacles to the provision of medically necessary diagnosis and treatment services to TennCare children. (Vol. 2 (L ong), at 4 05, 447.) In a ddition, TennCare regularly analyzes performance measures based upon encounter data to assess effectiveness of care and to i dentify opportunities for contin uous quality imp rovement in t he delivery o f diagnosis and treatment services to TennCare children. ( Id. at 400-02 (d escribing Health Care Informatics Unit).) Ten nCare regularly

23
communicates with TennCare providers, both individually and through provider organizations such as the Tennessee Chapter of the American Academy of Pediatrics, the Tennessee Medical Association, and the Tennessee Hospital Association, in an effort to identify any MCO practices that may inappropriately erect obstacles to the provision of medically necessary diagnosis and treatment services to TennCare children. (Id. at 316, 404–05.) TennCare regularly monitors the activities of DCS with respect to those TennCare services that DCS i s responsible for providing to TennCare children in custody. ( Id. at 424 (de scribing EQRO monitoring), id. at 453–54 (describing TennCare monitoring of DCS and MCOs); Vol. 3 (Long), at 607 (same).) And DCS likewise regularly monitors its providers and its processes to ensure that TennCare children in custody are receiving medically necessary medical and be havioral health services. For example, DCS utilize s a number of different tool s to monitor and enforce the se rvices provided to children in custody by DCS-contracted providers, including by requiring national accreditation and appropriate licensing, performance-based contract monitoring, Program Accountability Reviews, unannounced site visits, Assessment of Service Q uality (“ASQ”) revie ws, reviews of in dividual cases through caseworkers’ twice-monthly visits with ch ildren, and utilization revie ws conducted by the DCS regions and DCS Central Office. (See Vol. 8 (Gatlin), at 1 546–54; see also id. at 1560 (describing Psychiatric Acute Care Coordination (“PACC”) process developed by DCS in conjunction with TennCare Select to co ordinate services of children entering and exitin g acute-care psychiatric hospitals).) TennCare’s witness persuasively attested to their conclusion that monitoring, oversight, and experience within DCS demonstrate that there are no systemic barriers precluding children in custody from accessing needed behavioral and mental healthcare for children in custody.
The record before the Court confirms that, compared with its performance in 1998, TennCare has dramatically improved the provision of medical services to its enrollees in every respe ct. ( See Vol. 2 (Long), at 456–57 (noting more dema nding requirements for participating MCOs, carved-out pharmacy and dental benefits, increased focus on outreach, new call cent er and community outreach contracts, better monitoring through NCQA and HEDIS measures, an improved appeals system, and improved medical necessity rules).) Tes timony presented at trial demons trated that no other state’s EPSDT program surpasses that of Tennessee in any salient respect. To th e contrary, Plaintiffs’ own expert witness, Manny Martins, former TennCare Director, testified that TennCare’s EPSDT program was better

24

than most, if not all, other states’ EPSDT programs even in 2004 (when he was the TennCare Director),

and TennCare’s EPSDT program has only continued to improve since that time. (Vol. 11 (Martins), at

2406–07.)

The Director of the Tenn Care Bureau, Darin G ordon, testified that, regardle ss of wheth er the

Consent Decree remains in effect, TennCare will continue to employ independent, nationally recognized

third-party monitoring and oversight tools, incl uding NCQA a ccreditation, HEDIS reporting, and EQRO

review to ensure that children continue to receive the services to which they are entitled under federal

law. (Vol. 9 (Gordon), at 1819–20, 1822.) The credibility of this testimony i s strongly confirmed by the

fact that TennCare employs these measures for adults even though the State is not subject to any judicial

decree governing the care provided to adults. (Id. at 1819–20.)

B.

Compliance with Specific Paragraphs of the Decree

As both parties recognize, perfection cannot be the standard by which a program as large and

complex as TennCare’s EPSDT program is judged, for problems will invariably and necessarily arise from

time to time in any such p rogram. Instead, the State’s substantial compliance must be asse ssed based

upon whether the State h as a sound system in pla ce, one p ursuant to whi ch problems can be reliably

identified and addressed as they a rise. Based on the evidence presented at trial, the Cou rt concludes

that TennCare easily satisfies this standard, and the Court, as set forth below, finds that Defendants are in substantial compliance with virtually every operative paragraph of the Consent Decree.9

The State i s in substantial compliance with the requirements of paragraph 39 and its subparts,

pertaining to the outreach and informing requirements of federal law. Specifically, as the factual summary

set forth above indicates, TennCare has adopted policies and procedures for aggressively and effectively

informing enrollees of the exis tence of the EPSDT program and the availability of s pecific screening and

treatment services. The p olicies in pla ce require the use of cle ar and non -technical terms, in oral and

written form, to ensure that information about the program is clear and easily understandable. The State

has implemented outreach procedures for informi ng individuals who are illiterate, deaf, bli nd or cannot

understand English about the EPSDT pr ogram, and performs out reach to inform all eligible individual s

9 This portion of the Court’s Memorandum is informed by the Court’s contemporaneously entered ruling regarding the enforceability of each of the individual para graphs of the Consent Decree. See also note 2, supra.

25
and their biological or foster parents about what services are available under EPSDT, the importance of preventive health care, where services are available and how to obtai n them, that a ssistance with transportation and scheduling is available; and so forth. (See, e.g., See DX 1 (TSOP 036); DX 2 (TSOP 036, Addendum 1), at 2–3 (EPSDT Outreach and Info rming Requirements, including requirement that MCOs “use clear and non-technical terms to provid e a combination of written and oral information” a nd use “accepted methods for informing persons who are illiterate, blind, deaf, o r cannot understand the English language about the availability and use of EPSDT services ”; requiring MCOs to conduct outreach “in a timely manner, generally within 60 days of th e TennCare MCO’s receipt of notification of the child’s enrollment in its plan”; requiri ng MCOs to provid e information about tran sportation and to provide scheduling assistance; and discussing role of the Department of Children’s Services in i nforming foster parents); DX 49a (TennCare Rules) 1200-13-13-.04(5)(b)) at 53–54; MCO Contract § 2.6.7.1 (no cost sharing or patient liability), § 2.7.4, et seq. (Health Education and Outreach), § 2.7.5.2.1 (requiring MCOs to provide or arrange for the provision of medically necessary prenatal care to members beginning on the date of their enrollment in the MCO to include presumptively eligible women), § 2.7.6.1.2 (required use of TENNderCare name), 2.7.6.1.3 (required written outreach policies and procedures), § 2.7.6.2.2 (requirement that outrea ch include information on off er of tran sportation and scheduling assistance), § 2.7.6.2 et seq.) (required member education and outreach), § 2.7.6.2.8 (requirement that accurate lists of names and phone numbers of providers be given to members), § 2.7.6.2.6 (requirement that MCO require providers have a process for documenting services declined by a parent), § 2.7.6.2.4 (requirement that as part o f their TENNderCare policies and procedures MCO have a written process for following up with members who do not get their screenings timely and that the process must document all attempts to reach out to members who have missed screening appointments), § 2.7.6.2.5 (requiring MCOs to mak e two different attemp ts to reach out to a mem ber who has had no services i n a year), § 2.7.6.2.10.2 (requirement related to outreach to com munity-based organizations designed to reach LEP enrollees), § 2.7.6.2.9 (re quiring MCOs to target specific informing activities to pregnant women and families with newborns), § 2.7.6.3.3.3 (required immunizations), § 2.7.6.2.10.1.1 (requirement that 45 of 150 required community outreach events target counties designated as rural/suburban), § 2.7.6.3.3.5 (requirement for appropriate laboratory tests including lead tests), § 2.7.6.3.3.6 (required health education

26
including anticipatory guidance), § 2 .7.6.4.6 (requirements related to transp ortation services and scheduling assistance), § 2.17.2.1 (requirement that all member materials be worded at 6th-grade reading level), § 2.17.2.4.3 (requirement related to using the word “free”), § 2.17. 2.5 (requirement that all vital documents be translated to S panish and LEP groups), § 2.17.4.2 (m ember handbook must be distributed within 30 days of enrollment and ann ually thereafter), § 2.17.4.7.9 (re quirement that written material include a descript ion of TennCare cost sharing or pati ent liability), § 2.17. 4.7.34 (requirement that member handbook contain info rmation on ho w to get information in alt ernative formats or h ow to access translation services for fr ee), § 2.17.4.7.37 (requirement that member handbook make clear member has right to re ceive information on availabl e treatment options in a manne r appropriate to the member’s condition and a bility to understan d), § 2. 17.5.2 (requirements related to teen n ewsletters), § 2.17.8.5 (requirement that provider directory identify non-English languages spoken by PCP), § 2.18.1.3 (requirement that membe r services hotline be abl e to handl e LEP calle rs), § 2.18.2.1 (re quirement regarding language interpreter and translator services); DX 30 (2011 EPSDT Summary Report) at 29–61; DX 12 (2 011 Annual Qua lity Survey) at 9, 42–44, 46–48, 57; Vo l. 8 (Baggett), at 1704–08 , 1715–24 (describing outreach and assistance provided to presumptively eligible women at the county health departments and outrea ch through the Pren atal Call Center), 1734-36 (DOH community outreach, conducted pursuant to contract with TennCare, targets individuals with vision and hearing impairments as well as with limited English proficien cy), 1749–58 (describing outreach, pursuant to contra ct with TennCare, to newly en rolled and newly recertified members under age 21); Vol. 5 (Pollard), at 1072–73 (describing DCS’s outreach efforts to resource families and foster families); Vol. 2 (Long), at 314–15, 33435 (EQRO validation of provider directory), 337–38 (describing outreach to presumptively eligible prenatal care patients through health departments and Prenatal Call Center); DX 114 (TENNderCare Brochure); see generally Part II.A.1., supra, discussing outreach efforts.)
The State is i n current and substantial compliance with the requirements of paragraph 40, as it has maintained, as of the date of thi s Order, outreach efforts designed to reach all members of the plaintiff class with information and materials that conform to the requirements of the Decree as set forth in paragraphs 39(a) through (p), as demonstrated by the myriad and diverse outreach efforts performed by the State and its contra ctors. (See citations to the re cord related to compliance with paragraph 39; see

27
generally Part II.A.1., supra.) The Court finds that the State is in substantial compliance with paragraphs 41(a) through (n) of
the Decree in that it has ru les and guidelines that clearly describe, allocate responsibility for and re quire compliance with each specific screening requirement under federal law, as specifically articulated in the Decree. (See, e.g., TennCare Rule 1200-13-13-.04(1)(b)(5) & (8), at 36–38; DX 3 (TSOP 036, Addendum 3), passim; MCO Contract § 2.7.6. 1.1 (requirement to provide all EPSDT screening requirements), § 2.7.6.1.4 (requirement to comply with EPSDT screening requirements for vision, dental, and hearing services, and for follow u p if initial scr een is not completed i n a singl e visit), § 2.7.6.1.7 (prohibition on requiring prior auth orization for perio dic screens), § 2.7.6.3. 2 (adopting periodicity schedules), § 2.7.6.3.3.1 & .2 (pertaining to dietary practice assessments and growth chart comparisons), § 2.7.6.3.3 (describing required components of EPSDT screen and including which immunizations must be covered), § 2.7.6.3.3.4 (requiring MCOs to enc ourage dental referrals in ac cordance with the AAPD guidelines, § 2.7.6.3.3.6 (pertaining to vision a nd hearing screens), § 2.7.6.3.3.5 (re quiring the medical screen to include laboratory tests consistent with CMS minimum standards, and pertaining to testing for lead poisoning in children under age six), § 2.7.6.4.1 (required follow up for elevated blood-lead levels) § 2.7.6.3.3.6 (education and counseling to parents on health and life style), § 2.7.6.4.8) (requirement that all medically necessary services be pr ovided regardless of whethe r the need is identified by a provide r whose services had received prior authorization); DX 159 (P eriodicity Schedule for Checkups and Screenings adopted by the State); DX 160 (Reco mmendations from EPSDT Screeni ng Guidelines Committee regarding Developmental /Behavioral Screening); DX 161 (Recommendations from EPSDT Screening Guidelines Committee regarding Hearing and Visio n Screenings); Vol. 9 (Baggett), at 179 7 (county health departments schedule follow-up appointments if all components of a scree n cannot be completed); DX 53 (Dent al Benefit Mange r Contract) at 6 (re quirement that provide rs in network be properly licensed).)
The State is in substantial compliance with paragraphs 42(a) through (c) in that TennCare rules and guidelines clearly describe and allocate responsibility for, and require compliance with, each specific requirement of federal la w governing the provision of interperiodic screening, vision, hearing, dental and diagnostic services which are medically necessary to determine the existence of suspected physical or

28
mental illnesses or conditions, as set forth in 42 U.S.C. § 1396d(4)(1)–(4) and the State Medicaid Manual § 5040 et seq. (DX 4 (TSOP 036, A ddendum 4); MCO Contract §§ 2.6.1.3 and 2.7.6.1.7 (no prior authorization required for interperiodic screens), § 2.7.6.4.8 (requiring MCOs to provide needed services regardless of whether th e need was identified by a provider whose se rvices had re ceived prior authorization); DX 12 (2011 Annual Quality Survey) at 9–10, 55–56; see generally Vol. 2 (Long), at 417– 18.)
The State has demonstrated that it has taken the steps outlined in paragraphs 44(a) through 44(f) of the Decree to ensure that each periodic screen accurately identifies children who should be referred for further assessment of behavioral/developmental problems and/or possible hearing or vision impairment. (See generally Vol. 2 (Lo ng), at 418–20; DX 160 (S creening Guidelines Committee Recommendations); DX 161 (Screening Guidelines Committee Recommendations for hearing and vision screenings).)
Paragraph 46 of the Decree remains relevant only insofar as it defines the method for calculating the adjusted periodic screening percentage (APSP).
Paragraph 51 recognizes that the St ate “shall be presumed to be in compliance with [its] screening obligation under the law a nd the terms of this order” if it meets a n 80% screening rate or if it shows that the child ren who have not re ceived complete screenings “have been the subject of outreach efforts reasonably calculated to ensu re their parti cipation.” As set forth above, the Court finds that the State has demonstrated that it has achieved an APSP and DSP of at le ast 80 percent, and therefore is presumed to be in compliance with its screening obligation under the law and the terms of the Consent Decree. (Decree ¶ 51; Vol. 2 (Long), at 355.) Pe rhaps more importantly, the State has also shown that its outreach efforts are reasonably calculated to reach all class members and to ensure their participation in the EPSDT program. (See generally Part II.A.1., supra; Vol. 2 (Long), at 421.)
Paragraph 52 requires the complete screening of 100% of child ren in the custody of DCS, and sets forth DCS’s responsibilities with regard to t he development of a tracking sy stem for reporting compliance with this provision. As set forth above, the State has achieved a screening rate for children in DCS custody in exce ss of 95% and has demonstrated that it too k all a ctions that could reasonably be expected under the circumstances to achieve a 100% screening rate. Childre n are chara cterized differently if they are in “legal” custody but not “physical” custody of DCS and the De cree makes

29
allowance for this differen ce in recognition of the difficulties that arise when a child who is technically in DCS custody has been placed in a foster home. ( See generally Vol. 5 (Pollard), at 1045–46, 1060–61 (explaining why a c hild in fos ter care might not get an EPSDT sc reen in a timely fas hion, including an older teen’s refusal to go to the doctor, a child’s illness at the time a screen i s due, scheduling conflicts, etc.).)
The State has demonstrated substantial compliance with paragraph 53 because it has “establish[ed] and maintai n[ed] a pro cess for review ing the pra ctices and procedures of the MCOs a nd DCS, and re quir[ed] such modifications of those prac tices and procedures as are n ecessary to ensu re that children can be appropriately referred from one level of screening or diagnosis to a nother, more sophisticated level of diagnosis as needed to determine the child’s physical health, behavioral health and developmental needs, as to me dically necessary services.” T he State ha s accomplished this th rough such mechanisms as the required external quality review of the MCOs and resulting annual reports, through NCQA accreditation, by requiring all MCOs to report on all child HEDIS measures, by reviewing monthly appeals statistics for tren ds and reviewing MCO policies and practices as part of individual appeals, through daily communication between TennCare and its MCOs, DCS and TennCare Select and TennCare and DCS, and the requirement that DCS submit quarterly reports and other data to TennCare. (See, e.g., Vol. 2 (Long), at 421–22; DX 12 (2011 Annual Quality Survey) at 9–10, 48.)
The State has demonstrated substantial compliance with paragraph 54, because TennCare, the MCOs, and DCS collectively cover all the services enumerated in paragraph 54, listed in 42 U.S.C. § 1396d(a), and defined in the corresponding Medicaid regulations. (TennCare Rule 1200-13-13.04(1)(b); MCO Contract § 2.6.1.3, § 2.7.6.4.8; Vol. 2 (Long), at 422.)
The State ha s shown that it “revie w[s] MCO practices with regard to m aking decisions about medical necessity and identif[ies] any practices that are inconsistent with the federal laws cited herein,” and it “issue [s] clarifications and e nsure[s] compliance with such federal law, regarding medically necessary treatment,” a s required by para graph 55. (Te nnCare Rules Chapter 120 0-13-16; MCO Contract § 2.6.3; Vol. 2 (Long), at 422–24; DX 12 (2011 Annual Quality Survey) at 9–10, 50, 68–70.) The State is in substantial compliance with paragraph 55(a) in that prior authorization decisions are made on a case-by-case basis. (TennCare Rule 1200-13-16-.06(9); MCO Contract §§ 2.6.3.1, 2.7.6.1.1, 2.14.1.4.2;

30
Vol. 2 (Lo ng), at 423.) In accordance with paragraph 55(b), TennCare’s rules and policies make clear that “services are provided if n ecessary ‘to correct or ameliorate defects and physical and mental illnesses and conditions. . . .’ 42 U.S.C. § 1396d(r)(5).” (TennCare Rule 1200-13-16-.02; MCO Contract § 2.7.6.1.1; TSOP 036, at 1.) Likewise, Defendants have demonstrated that TennCare’s rules and policies make clear that “the definition of medical n ecessity shall be applied so that services are covered if they correct, compen sate for, improve, or prevent a con dition from worsening, even if the conditio n cannot be prevented or cured,” as required by paragraph 55(c). (TennCare Rule 1200-13-16-.05(4)(a) & (c)); MCO Contract § 2.7.6.1.1.)
TennCare’s rules a nd policies make cl ear that “me dically necessary services shall be p rovided whether or not the co ndition existed prior to any screening and whether or not the scre ener is under contract with the particular managed care entity,” as required by paragraph 55(d). (TennCare Rule 120013-16-.03(1)6; MCO Contract § 2.7.6.4.8); Vol. 2 (Long), at 423–24.)
And the State is in curre nt substantial compliance with paragraph 55(e), because TennCare’s rules and policies make clear that Defendants “do not have financial or contractual arrangements which undermine class members’ access to covered servi ces.” (MCO Contract § 2.13.8.3.) In addition, all provider contracts are reviewed by the Tennessee Department of Commerce and Insurance to make sure such prohibited financial arrangements do not exist. (Vol. 2 (Long), at 424.)
The State is in current substa ntial compliance with paragraph 56 of the Decree because it “ensure[s] that the MCOs and DCS use only the definition of ‘medically necessary’ in the TennCare MCO contracts when making medical necessity decisions” through, for example, its review of individual appeals, EQRO review, NCQA accre ditation, daily communications between TennCare, DCS and the MCOs, and contract requirements. (MCO Contract § 2 .6.3.1; Vol. 2 (Long), at 424–25; DX 12 (2011 Annual Quality Survey) at 50.)
The State is in com pliance with paragraph 57 in that it does not impose absolute amount limitations nor impose duration and scope limitations or monetary caps on E PSDT services. (M CO Contract §§ 2.6.3.2, 2.6.3. 3.) Further, the State ens ures that utilization controls employed by the MCOs do not “unreasonably delay the initial or continued receipt of services” nor “cause recipients to go without needed care,” and that there is “an expeditious process in place to ensure children receive without

31
interruption any medically necessary services which exceed tentative limits.” (De cree ¶ 57.) (Vol. 2 (Long), at 425–27.) The State requires its contractors to issue notice of any “denial of a timely requ est from the p rovider who o riginally prescribed an ongoing service for continuation of the service” and provides continuation of benefits pending appeal “if the denial is appealed in a timely fashion.” (Decree ¶ 57.) The appeals process is subject to the Consent Decree entered in Grier v. Emkes, No. 79-3107 (M.D. Tenn.) (Nixon, J.). With respect to th e final requi rement of p aragraph 57, the state reviews the MCOs’ “prior approval/utilization review process on an annual basis to a ssure that te ntative limits approved by the MCOs are appropriate.” (Decree ¶ 57.) (See Vol. 2 (Long), at 429; Vol. 4 (Couzins), at 904–07; DX 12 (2011 Annual Quality Survey) at 10, 51, 68–70.)
The State is in current substantial compliance with paragraph 59 because it requires that “MCOs shall provide all medically necessary, covered services regardless of whethe r or not the need for such services was identified by a provider whose services had received prior authorization from the MCO or by an in-network provider.” (See TennCare Rule 1200-13-13-.04(1)(a)(2)(i); MCO Contract § 2.7.6.4.8; Vol. 2 (Long), at 429–30.)
The State in correctly indicates that the Cou rt preliminarily found paragraphs 60(i)–(iv) to be unenforceable. Rather, the Co urt noted that the State characterize d the referenced paragraphs as enforcing subsection 42 U.S.C. § 1 396a(43)(C), which the Court found to b e individually enforceable. The Order granting in p art and de nying in part the Defendants' first motion to vacate reco nfirms and formalizes that finding. The referenced provisions pertain to the development of a p rovider handbook spelling out the responsibilities of MCOs and DCS related to the provision of medically necessary services to children in DCS custody. It is unclear whether the State complied with this provision, though it is clear the State requires MCOs to provide their members with member handbooks “based on a template provided by TENNCARE.” (MCO Contract § 2.17.4 (Member Handbooks).)
The Court has found that paragraph 61(i) of t he Decree is inte nded to rem edy violations of § 1396a(43)(C) and is the refore enforceable. This p rovision requires that the M CO contracts must inform providers of t he package of benefits that EPSDT off ers and must require provi ders to m ake treatment decisions based upon children’s individual medical and behavioral health needs. The State h as demonstrated current substantial compliance with p aragraph 61(i). (MCO Contract § 2.12.9.56; Vol. 2

32
(Long), at 430; DX 12 (2011 Annual Quality Survey) at 60.) The State h as demonstrated current substantial compliance with paragraph 62 because it
requires MCOs to provide primary care providers up-to-date lists of specialists to whom referrals may be made for vari ous services and requires that this lis t be supplemented quarterly and to comply with th e “access/availability standards of the 1115 waiver.” (MCO Contract § 2.14.3.5, § 2.30.7.1; Vol. 2 (Long), at 430–31.)
The State is in current substa ntial compliance with paragraph 63 because the State req uires coverage of rehabilitation services for children, and its definition of reha bilitation services is consistent with the definition in paragraph 63. (MCO Contract § 2.7.6.4.8(13); Vol. 2 (Long), at 431–32.)
The State is in current substa ntial compliance with paragraph 64 because the State req uires coverage of “maintenance services which prevent or mitigate the worsening of conditions or prevent the development of additional health problems” and its definition of maintenance services is consistent with the definition in this paragraph. (MCO Contract § 2.7.6.4.1; Vol. 2 (Long), at 432.)
The State is in current substantial compliance with paragraph 65 because the State “inform[s], in a timely manner and on an ongoing basis, all of [its] contractors about what federal Medicaid law requires with respect to specific screens, diagnoses and treatments.” (Vol. 2 (Long), at 432–33.)
The State is in substantial compliance with paragraph 66 and its subsections, because the State and its contractors provide case-management services consistent with federal law. (Vol. 2 (Long), at 304, 433–35; Vol. 5 (Pollard), at 1074–75; MCO Contract § 2.7.6.4.8(19).) In addition, the State continues to offer targeted case management to children in state custody or at risk of enter ing state custody, as set forth in the parties’ Agreed Factual Stipulations (ECF No. 1526, at ¶ 13), per paragraph 67.
The State continue s to require in its contra cts with MCO s that medical case -management services “be provided to all TennCare children for whom they are medically necessary, subject to relevant change in the TennCare Waiver,” in compliance with paragraph 68. (MCO Contract § 2.7.6.4.8(19); Vol. 2 (Long), at 435; DX 12 (2011 Annual Quality Survey) at 53.) Likewise, in accordance with paragraph 69, the State continues to require in its contracts with MCOs that mental health case-management services “be provided to all TennCare children for whom they are medically necessary, subject to relevant change in the TennCare waiver.” (MCO Co ntract § 2.7. 2.6.5, and at 373 –76 (Attachment I), Behavioral Health

33
Specialized Service Descriptions; Vol. 2 (Long), at 435–36; DX 12 (Annual Quality Survey) at 53–54.) The State is in current substa ntial compliance with paragraph 70 because case-management
activities are integrated t hroughout the operation s of the MCOs, case-management activities vary depending on the medical needs of the child, and case-management services are not used exclusively as a tool for pri or authorization. (MCO Contract at 373–76 (Atta chment I), Behavioral Healt h Specialized Service Descriptions; Vol. 2 (Long), at 436–37.)
The State is in current substantial compliance with paragraph 71(i) because it ensures the MCOs “involve parents and family members, to the greatest extent possible, in the determination of behavioral health services to be delivered to a particular child.” (MCO Contract §§ 2.7.2.6.4 & 2.7.6.1.9); id. at 373 (Attachment I), Behavioral Health Specialized Service Descriptions; Vol. 2 (Long), at 437.)
The State is in current substantial compliance with paragraph 71(iii) because it requires its MCOs to “provide for appropriate continuity of care and services following psychiatric or chemical dependency inpatient facility services or residential treatment as specified in a realistic discharge plan in which the patient and his family or ot her caregivers, clinicians, and social worker [sic] have participated.” Further, the State requires that “[t]his discharge plan shall include, but not be limited to, an outpatient vis it, which must be scheduled within clinically ap propriate time period before discharge which assures access to proper physician, medication follow-up and oth er medically necessary services.” (MCO Contract §§ 2.7.2.6.5.2, 2.9.9.3.2, 2. 9.9.3.3, 2.9.9.3.4, 2.9.9. 5); Vol. 2 (Lon g), at 438– 39.) The State monitors compliance with these requirements through the annual review by the EQRO and through the review of required reports and data submitted to TennCare by the MCOs. (DX 30 (2011 Annual EPSDT Summary Report) at 69, 75–76, 88, 95, 101–02, 108–09; DX 12 (Annual Quality Survey) at 54–55.)
The State “arrange[s] for provision of all medically necessary services for a child without regard to whether he is designated as Severely Emotionally Disturbed (SED),” in accordance with paragraph 71(iv). In fact, the State no longer uses the SED designation. (Vol. 2 (Long), at 439.)
The State’s compliance with paragraphs 72 and 73 is not in dispute, as indicated by the Agreed Stipulations of Fact. (ECF No. 1526, at ¶¶ 25–27.)
The requirements of paragraph 74, 75, 76, a nd 77, all pertaining to non-emergency transportation, have be en met through provisions of the MCO contracts. ( See, e.g., MCO Contract §

34
2.7.6.4.6; id. at 446–55 (Attachment XI) and § A.4.1.1; see also TennCare Rule 1200-13-13-.04(1)(b)20; DX 12 (2011 Annual Quality Survey) at 57.)
The State is in current substantial compliance with paragraph 88 of the Decree because DCS, in conjunction with the Tennessee Commission on Ch ildren and Youth (“TCCY”), conducts the Quality Service Review (“QSR”) process, which “include[s] on an ongoing basis an audit of EPSDT compliance with regard to the chil dren sampled.” (Vol. 8 (Gatlin), at 1572–73.) The Court notes that Plaintiffs hav e filed a Supplemental Pro posed Finding of Fact perta ining to this parag raph. Apparently, the Governo r’s proposed budget for fiscal year 2013 eliminates funding from TennCare and elsewhere for the Children’s Program Outcome Review Team (“CPORT”), which is essential to con ducting the QSR. The Budge t, which was released January 30, 2012 and is a waiting approval by the Tenne ssee General Assembly, states that DCS “has an exis ting review process performed by DCS s taff.” http://forward.tn.gov/stateofthestate/files/2012-2013BudgetVol2.pdf, at 21. Howe ver, as Plaintiffs point out, the State’s own witn ess testified at the hearing in this matter that DCS’s existing review process is the same process that in volves the TCCY, such that the defunding of CPORT (and the TCCY review team) will undermine the State’s ability to monitor a nd evaluate t he provision of medically necessary services to children in DCS custody, and to the plaintiff class as a whole.
Plaintiffs’ concerns are not unfounded, and inde ed there remains a risk that the State will dismantle other processes that have been put in pla ce over the y ears to bring the State in compliance with the Decree. The fa ct remains that these fe ars are grounded in sp eculation as to what the future holds. In addition, the question befo re the Court now is whether the State is currently in compliance with the terms of the Decree. The Court finds that the St ate has established that it is currently in compliance with paragraph 88 of the Decree. The State’s obligation, going forward, is not to remain in compliance with each precise term of the Decree but to remain in compliance with federal law regarding the provision of EPSDT services. Future failures to comply with f ederal law may well result in future lawsuits agains t the State, but it is beyon d the jurisdi ction of this Court to maintain oversight of the EPSDT program indefinitely merely out of fear that the State may not continue to remain in compliance with federal law.
The State’s compliance with paragraphs 89 through 93 i s not in dispute, as indicated by the parties’ Agreed Factual Stipulations. (ECF No. 1526, at ¶¶ 28–32.)

35
The State is in current substa ntial compliance with paragraph 94 of the Decree because it requires its contractors “to achieve and maintain the capability of tracking each child in the plaintiff class, for purposes of monitori ng that chil d’s receipt of the re quired screening, diagnosis and treatment.” Further, the State requires that “[t]he tracking system shall have the capacity of generating an immediate report on the child’s EPSDT status, reflecting all encounters reported to the contractor more than 60 days prior to the date of the repo rt.” (M CO Contract § 2.7.6.1.8.) The State also complies with thi s paragraph’s requirements by maintaini ng its o wn encounter database known as i nterChange that is likewise able to generat e an imm ediate report on a child’s EPSDT status that reflects all encounters reported to the MCO more than 60 days before the date of the report. (Vol. 2 (Long), at 443–44.)
The State is in current substantial compliance with paragraph 95 of the Decree be cause DCS maintains its own “t racking system” with “the capacity to g enerate a report on the child’s EPSDT screening status” and that “reflect[s] all screens received by th e child more tha[n] 30 days prior to th e report.” (Vol. 5 (Pollard), at 1028–29.) In addition DCS has a procedure for identifying children who may have come into custody due to an action or inaction of an MCO, and operates a Crisis Management Team (“CMT”) to identify children at risk of e ntering state custody to a ssist those children and their families in accessing TennCare services when appropriate to hel p prevent children from unnecessarily entering custody. (Vol. 5 (Pollard), at 1055, 1058–59, 1075–78 (generally describing CMT process and fact that DCS will file an a ppeal to alert TennCare if it is suspected a child came into custody related to a service need).)
The State is in cu rrent substantial compliance with paragraph 96 be cause the State has established “an ong oing process for m onitoring and reporting [its] complian ce with the req uirements of this order.” For example, the State uses interChange encounter data to report screening information; the State relies upon NCQA accreditation, HEDIS re porting, review and monitoring of appe als and appeals related data, and review and reporting by the EQ RO; and th e State has regularly filed Semi-Annual Reports with the Court regarding its compliance with the Consent Decree. (Vol. 2 (Long), at 444–45.)
The State’s compliance with paragraph 97. pe rtaining to the mai ntenance of e ncounter data, is not in dispute, as evidenced by the parties’ Agreed Factual Stipulations. (ECF No. 1526, at ¶¶ 34–35.) In addition, the State conducts “ongoing audits for purpose of aut henticating such encounter data,” a nd

36
these audits are “conducted by qualified personnel” and “meet generally accepted standards regarding sample size and selection,” in compliance with paragraph 98. (See Vol. 2 (Long), at 446.)
Compliance with paragraph 99 is not in dispute, as is evidenced by the pa rties’ Agreed Factual Stipulations. (ECF No. 1526, at ¶ 33.)
The State is in current substantial compliance with paragraph 100 of the De cree because the TennCare Bureau has “issue[d] policy clarifications and interpretations as necessary to guide the MCOs and DCS in interpretation and application of the EPSDT mandate” and has shown that it “modif[ies] such policies from time-to-time as necessary to confo rm with Te nnCare Appeals Unit experience, and final administrative law and final judicial rulings pertaining to the TennCare program.” (Vol. 2 (Long), at 447.)
Likewise, the State has shown that it is in cu rrent substantial compliance with paragraph 101 of the Decree because it condu cts semiannual “reviews of appeal s filed under the Tenn Care Program to determine whether deficiencies or repeated violations necessitate financial penalties upon [MCOs that] have inappropriately denied EPSDT services to children.” The State has in fact financially penalized its MCOs as indicated. (Vol. 2 (Long), at 447–48.)
The State’s substantial compliance with paragraphs 102 and 103 of the Decree is not in disp ute, as evidenced by the Agreed Factual Stipulations. (ECF No. 1526, at ¶¶ 36, 37.)
As required by paragraph 104, the State files Semi-annual Reports with the Court and Plai ntiff’s counsel regarding compliance with th e Decree. T hese reports contain information validated by th e applicable audit and testing procedures. ( See, e.g., ECF Nos. 1427-1, 1500-1 (January 2011 and July 2011 Semi-Annual Reports); Vol. 2 (Long), at 448–50.)
In sum, compared with its performance in 1998, TennCare has improved the provision of medical services to its enrollees in every respect. ( See, e.g., Vol. 2 (Long), at 456 -57 (noting more demanding requirements for particip ating MCOs, carved-out pharmacy and dental bene fits, increased focus on outreach, new call center and community outreach contracts, better monitoring through NCQA and HEDIS measures, an improved appeals system, and improved medical necessity rules); Vol. 4 (Couzins), at 927–28 (“I do thin k that there i s systemic compliance . . . . I think yo u see over time th e increased compliance.”).
In reaching the conclusion that the State ha s met its obligations under the Consent Decree, the

37
Court considered but largely rejected the contrary proof offered by Plaintiffs through their experts. This testimony, while intere sting and even comp elling from a policy perspe ctive, was for the most pa rt not directly related to the question of whether the State is in substantial compliance with the Consent Decree.
The Court also considered the testimony offered through caregivers (often mothers) of individual class members. Rather than supporting Plaintiffs’ position, these witnesses largely confirmed that TennCare provides medically necessary diagnostic and treatment services. Indeed, Plaintiffs’ witne sses themselves attested to the vast a rray of treatment and services TennCare provides to children with the most daunting, extensive, and expensive medical and behavioral needs. T o be sure, some of these witnesses were able to id entify isolated incidents where a service was n ot provided as promptly as it should have been, where the witness had to avail h erself of the Tenn Care appeals process in order to gain access to or keep a service, or where a specific provider or specialist was not immediately available. But their te stimony did not serve to e stablish the existence of systemic p roblems within the TennCare program; indeed, Plaintiffs di d not i dentify any in stance where needed services were not ultimately provided.
A third class of proof offered by Plaintif fs was the testimony of providers of medically necessary services. Providers testified from their experience and anecdotal events from which they extrapolated to opinions about the efficacy of the Decree. Much of the testimony offered by the medical practitioners was based on unverified, undocumented anecdotal reports from clinic clients and staff, upon which the Court does not place much credence. These witnesses testified to shortages of different types of specialists in various geographic regions. Even accepted at face value, the evidence presented does not suggest noncompliance with the Consent Decree, because the Medicaid statute expressly limits the State’s obligation in establishing a provider network “to the extent th at such care and services are available to the general population in the geographic area.” 42 U.S.C. § 1396a(a)(30)(A). Moreover, the Court has determined that those provisions of the Consent Decree reliant on § 1396a(a)(30(A) are not individually enforceable through a § 1983 a ction. Finally, Plaintiffs’ provider witnesses did not establish that the experiences of their TennCare patients differed substantially from thos e of their privately insured patients in terms of locating specialists.
In short, while Plaintiffs’ witnesse s were pa ssionate advocates who testified credibly as to their

38
beliefs and experiences, their testim ony was not sufficient to contradict t he overwhelming evidence offered by the State in support of its claim of substantial compliance with the Consent Decree. III. CONCLUSION
The Tennessee Justice Center is commended for initiating and pursuing this case over the years. The presentation of the proof befor e the undersigned has been highly professional by bot h sides and, much to the credit of both sides, completely devoid of acrimony. The Consent Decree has clearly served its purpose well in bringing about a l evel of se rvice to the cl ass members that is d emonstrative of th e compassion that is characteristic of the State of Tennessee and fully compliant with the EPSDT law and regulations.
For all the reasons set forth herein, after careful consideration of all the evidence, the Court will grant motion to vacate the Consent Decree, dissolve any injunctive relief heretofore granted, and dismiss the case. T he Court will, however, retain jurisdiction of the action for the purpose of considering outstanding fee applications and cost determinations, and to review contempt citations.
An appropriate order will enter.
Thomas A. Wiseman, Jr. Senior U.S. District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN B., et al.,
Plaintiffs,
v.
MARK EMKES, Commissioner, Tennessee Department of Finance and Administration, etal.,
Defendants.

) ) ) ) ) Civil Action No. 3:98.cv-0168 ) ) Judge Thomas A. Wiseman, Jr. ) ) ) )

ORDER In this class-action challenge to Tennessee's managed care program, TennCare, Plaintiffs allege that the defendants, Tennessee officials charged with implementing TennCare (hereinafter referred to collectively as the "State," in the singular), failed to provide early and periodic screening, diagnosis and treatment ("EPSDT") services to Tennessee children (ages 21 and under) covered by TennCare, in violation of the Medicaid Act. Shortly after the lawsuit was filed in early 1998, the parties jointly filed a Consent Decree (Doc. No. 12) ("Decree") under which they have been operating, and sporadically litigating, throughout the nearly fourteen years since its entry. Now before the Court is the State's Motion to Vacate All Injunctive Relief, Terminate the Decree and Dismiss the Case (ECF No. 1465). This motion is premised on the State's claim that it is in substantial compliance with the Decree's requirements and therefore entitled to a declaration that the Decree had expired in accordance with its terms. Following extensive briefing by the parties and a month-long hearing during which both parties presented witnesses and introduced documentary evidence, the Court finds, after careful consideration of all the evidence and for the reasons set forth in the accompanying Memorandum Opinion, that the State has established that it is in substantial compliance with all the binding provisions of the Consent Decree. Accordingly, the motion to vacate and to terminate the Consent Decree (ECF No. 1465) is hereby GRANTED. The Consent Decree is VACATED, and all heretofore granted injunctive relief is DISSOLVED.

2
This matter is DISMISSED, except that the Court retains jurisdiction of the action solely for the purpose of considering outstanding fee applications and cost determinations, and to review contempt citations.
It is so ORDERED. This is a final, appealable order, consistent with Fed. R. Civ. P. 58.
Thomas A. Wiseman, Jr. Senior U.S. District Judge

 
 GRANTED.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

___________________________________

JOHN B., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

MARK EMKES, Commissioner,

)

Tennessee Department of Finance and

)

Administration, et al.,

)

)

Defendants.

)

_______________________________________

Civil Action No. 3:98-cv-0168 Judge Thomas A. Wiseman, Jr.

PLAINTIFFS’ MOTION FOR LEAVE TO FILE UNDER SEAL

Plaintiffs, John B., et al., respectfully seek leave to file a Sealed Notice of Appeal from the Sealed Memorandum and Order (Doc. No. 1590) entered in this action on April 4, 2012. All of the briefing and court orders connected with this matter have been under seal, and Plaintiffs respectfully submit that their Notice of Appeal should be as well.

1 Case 3:98-cv-00168 Document 1593 Filed 04/13/12 Page 1 of 1 PageID #: 33563

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

____________________________________

)

JOHN B., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

M.D. GOETZ, JR., Commissioner,

)

Tennessee Department of Finance and )

Administration, et al.,

)

)

Defendants.

)

____________________________________)

No. 3-98-0168 Judge Haynes

DEFENDANTS’ MOTION TO RECONSIDER

Pursuant to Rule 8(b)(3) of the Local Rules of the United States District Court for the Middle District of Tennessee, Defendants respectfully move the Court to reconsider in part its Order of February 14, 2006 (Doc. No. 601) (“Feb. 14 Order”), and to reconsider and withdraw in its entirety the Court’s Order of February 15, 2006 (Doc. No. 602) (“Feb. 15 Order”), for the reasons set forth below.
1. In the Feb. 14 Order, the Court relieved Dr. Carter of his duties as Special Master, but appointed him “as a technical advisor for this non-traditional litigation under the inherent authority of this Court.” Feb. 14 Order at 2. In addition, the Court extended this appointment to the former Special Master’s experts “who prepared or contributed to the proposed remedial plan submitted by the Special Master.” Id. The State certainly supports relieving Dr. Carter of his duties as Special Master, and therefore does not seek reconsideration of that portion of the Feb. 14 Order. However, for the reasons set forth below, the State must object to the appointment of

Case 3:98-cv-00168 Document 609 Filed 02/27/06 Page 1 of 9 PageID #: 1496

Dr. Carter and his experts as either a technical advisor or as an expert witness in this case. The State further objects to any order that it be required to compensate Dr. Carter or his experts.1
2. First, for the reasons previously articulated by the State, see, e.g., Doc. Nos. 475, 476, 560, and 561), Dr. Carter and his colleagues may not serve as court-appointed officials – regardless of whether they are denominated Special Masters, technical advisors, or experts – unless and until the State is permitted to take full discovery into the ex parte communications which have occurred between the Special Master’s office and the Court. Judge Nixon’s withdrawal does not moot this issue because, as the State has consistently maintained, these ex parte communications could very well require the disqualification of Dr. Carter and his colleagues. The need for this discovery is especially acute where the apparent subject of the communications, the State’s compliance status and the need for the proposed remedial plan, are the very topics on which the former Special Master and his experts have now been appointed as technical advisors to advise the Court about. Notwithstanding these concerns, the Feb. 14 Order expressly prohibits such discovery.
3. Second, while the Court’s order states that Dr. Carter and his experts will be “technical advisors,” it also provides that they will testify at the June 19 hearing in support of their proposed remedial plan (which was attached to the vacated Order of October 22, 2004, Doc. No. 465). But it is settled that “[t]he role of the technical adviser is to give advice or other assistance to the judge, not to testify.… In contrast, an expert who is appointed to testify is an ‘expert witness’ and is subject to the requirements of [FED. R. EVID.] 706.” C. Wright, et al., FED. PRACTICE & PROCEDURE § 6303, at 459-60 (1997) (citing cases). However, it is the law of
1 Although the issue was not addressed in the Feb. 14 Order, the Court indicated at the February 10, 2006 Hearing that it would require the State to continue paying the former Special Master’s fees.
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this case that the roles previously assumed by the former Special Master and his experts are incompatible with service as experts pursuant to Rule 706. See Order dated July 14, 2004 (Doc. No. 433).
4. The State also objects to, and seeks reconsideration of, the Court’s Feb. 14 Order to the extent it reinstates the vacated Order of October 22, 2004 (Doc. No. 465), or purports to consider the remedial plan proposed by the former Special Master and his experts. In addition to the objections set forth in the State’s November 18, 2004, Initial Objections to Proposed Remedial Plan for Further Relief (Doc. No. 474), which we incorporate by reference and reassert here, the State objects to Court’s Feb. 14 Order to the extent it bars discovery into the ex parte communications relating to the development of the proposed plan by the former Special Master and his experts.
5. The State also objects to, and seeks reconsideration of, the Court’s Feb. 14 Order to the extent it placed the burden of production on the State with respect to its efforts to comply with the Consent Decree and this Court’s orders. Plaintiffs, not the State, bear “the burden of establishing by clear and convincing evidences that the [State Defendants] ‘violated a definite and specific order of the court requiring [them] to perform or refrain from performing a particular act or acts with knowledge of the court’s order.’ ” Rolex Watch U.S.A. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996) (quoting N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987)) (second alteration in original).
6. In the Feb. 15 Order, the Court stated that it intended to appoint one or more monitors with “the principal responsibilities of monitoring the Defendants’ compliance with the Consent Decree in designated areas; identifying issues and the reasons therefore, to direct the parties’ and the Court’s inquiry; and filing any reports that the monitors deem necessary.” Feb.
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15 Order at 2. The Court explained that the “monitors will serve in a quasi-judicial capacity pursuant to an appointment Order of this Court under the inherent power of the Court to appoint persons to assist the Court in the performance of its judicial duties.” Id. at 3. The Court stated that it found the appointments necessary “to assist the Court on the Defendants’ non-compliance with the Consent Decree and Orders of this Court.” Id. (citing Findings of Fact and Conclusions of Law, Dec. 20, 2001, Doc. No. 227 at 36-46, and Order dated Dec. 20, 2001, Doc. No. 228). In addition to citing the Court’s 2001 findings, the Court also relied upon the Court’s October 22, 2004 Order (Doc. No. 465) (“Oct. 22 Order”). See id. In short, the Court held that it had the inherent authority to appoint the monitors, and it stated that it was exercising this authority based on its belief that the Court has properly found the State to be in violation of the Consent Decree. For this same reason, the Court held that the State must bear the burden of compensating the monitors. Id. at 4 (“These monitors shall be compensated by the Defendants whom the Court has found to be not in compliance with the Consent Decree and the Orders of the Court.”).
7. We respectfully submit that both the factual premise of the Feb. 15 Order – that the State is in violation of the Consent Decree – and the Order’s legal premise – that the Court has inherent authority to appoint the monitors – are in error. As to the first, we respectfully submit that the record does not contain a valid finding that the State has not complied with the Consent Decree. As to the second, we respectfully submit that the Court lacks authority, absent a valid finding of noncompliance or the State’s consent, to impose additional relief beyond that specified in the Consent Decree. In particular, the Court may not appoint new monitors, nor may it require the State to compensate them.
8. Absent any valid adjudicated violation of federal law or a finding of contempt, there is no legal basis for the Court to order further relief to which the parties have not agreed.
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“A federal district court may not use its power of enforcing consent decrees to enlarge or diminish the duties on which the parties have agreed and which the court has approved.” Johnson v. Robinson, 987 F.2d 1043, 1049 (4th Cir. 1993); see also United States v. Western Elec. Co., 894 F.2d 430, 435 (D.C. Cir. 1990).
9. While the Court’s 2001 opinion (Doc. No. 227) purported to find prior violations of federal EPSDT law, no claim under federal EPSDT law, as opposed to the Consent Decree, was presented to the Court in 2001, and Defendants had no opportunity to address this issue. In any event, any such findings have grown stale over the ensuing five years. See Wyatt v. Sawyer, 80 F. Supp. 2d 1275, 1279 (M.D. Ala. 1999) (“The plaintiffs overlook that the ultimate issue is whether the defendants are currently in contempt, that is, in 1999, and not merely whether they were in contempt two years ago, in 1997, or earlier.”). Accordingly, no independent violation of federal law, stale or otherwise, has been identified in this case that could possibly support any relief beyond that agreed to by the parties in the Consent Decree.
10. In addition, further relief could not be predicated, even in theory, upon any violations of underlying EPSDT law because recent jurisprudence from the Supreme Court makes clear that the Medicaid statute in this context does not confer a right that is privately enforceable by beneficiaries. See Gonzaga Univ. v. Doe, 536 U.S. 273, 278, 283, 290 (2002).
11. Nor have Defendants been held in contempt for any violation of the Consent Decree. See John B. v. Menke, 176 F. Supp. 2d 786, 806, 813 (M.D. Tenn. 2001), Doc. No. 227. As noted above, Plaintiffs bear the “the burden of establishing by clear and convincing evidences that the [State Defendants] ‘violated a definite and specific order of the court requiring [them] to perform or refrain from performing a particular act or acts with knowledge of the court’s
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order,’ ” Rolex Watch, 74 F.3d at 720 (citation omitted), and they have not even attempted to carry that burden.
12. The Court’s Feb. 15 Order relies upon statements made in the Court’s 2001 opinion and statements made in the Court’s October 22, 2004 Order (Doc. 465). Neither order provides a basis for finding that the State is not in compliance with the Consent Decree. Even if the 2001 opinion could be fairly read to identify specific violations of the Consent Decree (as opposed to a conclusion that managed care makes compliance with EPSDT requirements “virtually impossible”), it is five years out of date and could not possibly justify the imposition of further relief today. As for the Court’s October 22, 2004, Order (Doc. No. 465), it was vacated by the Court, see Doc. No. 558 at 2, after the State objected that it was based almost entirely on ex parte communications by the Special Master and Experts to the Court, as to which the State never received notice or opportunity to respond. The only other evidence identified in the October 22 Order were snippets of deposition testimony that merely reflect the witnesses’ conclusions that the State’s failure to achieve the screening percentage targets established in the Consent Decree “was due to factors beyond the control of the defendants or their agents,” Consent Decree ¶ 51 (Doc. No. 12), and thus not a violation of the Consent Decree that could warrant further relief. As noted above, the State objects to reinstatement of the vacated October 22 Order.
13. Even assuming that monitors are appropriate and necessary, and that the State may properly be required to pay for them, there is no basis upon which to conclude that five monitors are needed as proposed in the Feb. 15 Order. The appointment of five monitors would improperly increase the expense borne by the State – an ultimately the public – for no discernible benefit. See Reed, 607 F.2d at 747. For the same reason, Plaintiffs’ suggestion that the Court
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appoint a single monitor who could in turn retain (at State expense) the others as “experts” should be rejected.
14. Finally, if a monitor or monitors are appointed, they should not be permitted to engage the former Special Master (and his experts) as an expert or consult with the former Special Master (and his experts) in order that the new monitors form their own independent opinions regarding this litigation and in order that the new monitors not become entangled in the continuing questions about the ex parte communications of the former Special Master and his experts.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court reconsider in part its Order of February 14, 2006 and reconsider and vacate its Order of February 15, 2006.

February 27, 2006

Respectfully

submitted,

PAUL G. SUMMERS Attorney General

Linda Deputy Office P.O. Nashville, (615)

s/Linda A. Ross____________________________ A. Ross TN BPR #4161 Attorney General of the Attorney General
Box 20207 TN 37202
741-1771

s/Charles

J. Cooper_________________________ Charles J. Cooper Michael W. Kirk Nicole J. Moss COOPER & KIRK, PLLC 555 Eleventh Street, N.W., Suite 750 Washington, D.C. 20004

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(202) 220-9600 s/Aubrey B. Harwell, Jr._____________________ Aubrey B. Harwell, Jr. Ronald G. Harris NEAL & HARWELL, PLC One Nashville Place, Suite 2000 150 4th Avenue North Nashville, TN 37219 (615) 244-1713
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served on the following by electronic transmission, on this 27th day of February, 2006.

Michele Gordon Tennessee 301 Nashville,

Johnson Bonnyman
Justice Center Charlotte Avenue
TN 37201

Counsel for Plaintiffs

s/Charles

J. Cooper_________________

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 IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

____________________________________

)

JOHN B., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

No. 3-98-0168

M.D. GOETZ, JR., Commissioner,

)

Tennessee Department of Finance and )

Judge Haynes

Administration, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO VACATE THE CONSENT DECREE AND DISMISS THE CASE

Robert E. Cooper, Jr.

Attorney General

Michael

Linda A. Ross

Deputy Attorney General

Office of the Attorney General

P.O. Box 20207

C

Nashville, TN 37202

(615) 741-1771

Washington,

(202)

Aubrey B. Harwell, Jr.

Ronald G. Harris

Phillip D. Irwin

NEAL & HARWELL, PLC

One Nashville Place, Suite 2000

150 4th Avenue North

Nashville, TN 37219

(615) 244-1713

Charles J. Cooper W. Kirk
Nicole J. Moss
OOPER & KIRK, PLLC 555 Eleventh Street, N.W., Ste. 750
D.C. 20004 220-9600
Counsel for Defendants

Case 3:98-cv-00168 Document 739 Filed 11/20/06 Page 1 of 42 PageID #: 3318

TABLE OF CONTENTS
Page TABLE OF AUTHORITIES .......................................................................................................... ii
I. DEFENDANTS ARE ENTITLED TO VACATUR OF THE CONSENT DECREE. .......2
A. Defendants Expressly Conditioned Their Consent To The Decree On The Premise That The Medicaid Provisions On Which The Decree Is Predicated Are Enforceable Under 42 U.S.C. § 1983..............................................2
B. Defendants Are Independently Entitled To Vacatur Of The Decree Because Of An Intervening Change In Governing Law..........................................3
II. SECTION 1396a(a)(30) DOES NOT CONFER INDIVIDUAL RIGHTS ENFORCEABLE BY THE PLAINTIFFS UNDER 42 U.S.C. § 1983...............................5
III. THE PROVISIONS OF THE CONSENT DECREE PURPORTEDLY ENFORCING SECTION 1396a(a)(43) DO NOT ADDRESS INDIVIDUAL RIGHTS THAT ARE ENFORCEABLE UNDER 42 U.S.C. § 1983. ................................9
A. Under The Analysis Required By Gonzaga And Westside Mothers II, Only Individual Rights Granted by Section 1396a(a)(43) Are Enforceable............9
B. Section 1396a(a)(43) Does Not Confer On EPSDT Recipients A Right To Enforce The State’s Systemic Compliance With Federal Statutory Requirements. ........................................................................................................20
IV. THE SECTIONS OF THE ADOPTION ASSISTANCE ACT INVOKED BY PLAINTIFFS DO NOT CONFER ENFORCEABLE RIGHTS. ......................................28
V. PLAINTIFFS MAY NOT SUE UNDER 42 U.S.C. § 1983 TO ENFORCE THE MEDICAID AND ADOPTION ACT STATUTES BECAUSE THEY ARE THIRD PARTY BENEFICIARIES OF, RATHER THAN PARTIES TO, THOSE SPENDING CLAUSE CONTRACTS. ........................................................33
VI. THE CONSENT DECREE MUST BE VACATED IN ITS ENTIRETY.........................35
CONCLUSION..............................................................................................................................36
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TABLE OF AUTHORITIES

Cases

Page

B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) ............................................................................23 Blessing v. Freestone, 520 U.S. 329 (1997) .......................................................................... passim Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003).............................................................11 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ...............................................................................35 Carey v. Piphus, 435 U.S. 247 (1978) ...........................................................................................35 City of Newport v. Fact Concerts Inc., 453 U.S. 247 (1981).........................................................34 David B. v. McDonald, 116 F.3d 1146 (7th Cir. 1997) ...................................................................4 Déjà Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville, No. 05-5895, 2006 U.S. App.
LEXIS 25426 (6th Cir. Oct. 12, 2006)...................................................................................4, 7 Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002), rev’d on other grounds sub nom. Frew v.
Hawkins, 540 U.S. 431 (2004)......................................................................................... passim Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006) ...................................................................15. 20, 26 Freestone v. Cowan, 68 F.3d 1141 (9th Cir. 1995), rev’d, 520 U.S. 329 (1997) ..........................21 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) .......................................................33 Gonzaga University v. Doe, 536 U.S. 273 (2002) ................................................................. passim Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987) .............................................................................2 Hughlett v. Romer-Sensky, No. 05-3299, 2006 U.S. App. LEXIS 16823
(6th Cir. July 6, 2006) ....................................................................................................... passim John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn. 2001) ....................................................26, 27 Kalina v. Fletcher, 522 U.S. 118 (1997)........................................................................................35 King v. Walters, 190 F.3d 784 (7th Cir. 1999) ............................................................................2, 3 Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986).........................2, 3 Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50 (1st Cir. 2004) ......................................6 Mandy R. v. Owens, 464 F.3d 1139 (10th Cir. 2006) ......................................................6, 7, 10, 19 Pediatric Specialty Care, Inc. v. Arkansas Dep’t of Human Servs.,
443 F.3d 1005 (8th Cir. 2006) ...................................................................................................6 Pennhurst State Sch. And Hosp. v. Halderman, 451 U.S. 1 (1981).........................................12, 33 Pierson v. Ray, 386 U.S. 547 (1967) .............................................................................................35 Reynolds v. Roberts, 251 F.3d 1350 (11th Cir. 2001)......................................................................2 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ..........................................................3

- ii Case 3:98-cv-00168 Document 739 Filed 11/20/06 Page 3 of 42 PageID #: 3320

Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) ....................................................................6, 7
Sault Ste. Marie Tribe of Chippewa v. Engler, 146 F.3d 367 (6th Cir. 1998).................................2
Suter v. Artist M., 503 U.S. 347 (1992) .......................................................................10, 12, 29, 30
Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994)...............................................................3, 4, 7, 36
United States Nat’l Bank v. Indiana Ins. Agents of Am., 508 U.S. 439 (1993) .............................10
United States v. ITT Cont’l Banking Co., 420 U.S. 223 (1975).......................................................2
United States v. Ward Baking Co., 376 U.S. 327 (1964).................................................................3
Westside Mothers v. Haveman, 133 F. Supp. 2d 549 (E.D. Mich. 2001), rev’d on other grounds, 289 F.3 852 (6th Cir. 2002) .....................................................................................................35
Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002).....................................................4, 5
Westside Mothers v. Olszewski, 368 F. Supp. 2d 740 (E.D. Mich. 2005), aff’d in part, rev’d in part, 454 F.3d 532 (6th Cir. 2006).........................................................................15, 16, 20, 21
Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) .............................................. passim
Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990) ...............................................................19
Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)..........................................................35
Other
42 U.S.C.
§ 620 ........................................................................................................................................28 § 622...................................................................................................................................28, 29 § 625.............................................................................................................................28, 29, 30 § 629a.................................................................................................................................28, 29 § 629b.................................................................................................................................28, 29 § 654b.......................................................................................................................................17 § 657.........................................................................................................................................17 § 670.........................................................................................................................................28 § 671.........................................................................................................................................30 § 673...................................................................................................................................28, 29 § 675...................................................................................................................................28, 29 § 1396...........................................................................................................................10, 12, 13 § 1396a............................................................................................................................. passim § 1396d...............................................................................................................................13, 14 § 1983............................................................................................................................... passim
Christopher C. Langdell, A SUMMARY OF THE LAW OF CONTRACTS (2d ed. 1880) ......................34
1 Francis Hilliard, THE LAW OF CONTRACTS (1872) .....................................................................34
1 William W. Story, A TREATISE ON THE LAW OF CONTRACTS (M. Bigelow ed. 1874) ...............34
13 Samuel Williston, A TREATISE ON THE LAW OF CONTRACTS § 37:12.......................................35
2 Francis Wharton, A COMMENTARY ON THE LAW OF CONTRACTS (1882) ...................................34
- iii Case 3:98-cv-00168 Document 739 Filed 11/20/06 Page 4 of 42 PageID #: 3321

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

____________________________________

)

JOHN B., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

No. 3-98-0168

M.D. GOETZ, JR., Commissioner,

)

Tennessee Department of Finance and )

Judge Haynes

Administration, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO VACATE THE CONSENT DECREE AND DISMISS THE CASE

When Defendants consented to entry of the Decree in this case in 1998, they explicitly conditioned their consent “upon the assumption that the EPSDT requirements of 42 U.S.C. §§ 1396a(a)(43) and 1396d(r), and 42 U.S.C. §§ 671(a)(16) and 675(1) and (5) of the Adoption Assistance Act are enforceable in an action under 42 U.S.C. § 1983.” Consent Decree (Doc. 12) ¶ 15. Further, Defendants explicitly reserved the right to seek modification of the Decree “if controlling precedent establishes lack of § 1983 enforceability as to any of these provisions.” Consent Decree ¶ 15. Controlling precedent has now established that the parties’ legal assumption was incorrect, and that the outstanding substantive provisions of the Decree lack Section 1983 enforceability because they are aimed not at enforcing individual federal rights, but at promoting systemic compliance with federal laws concerning Early Periodic Screening Diagnosis and Treatment (“EPSDT”).

Case 3:98-cv-00168 Document 739 Filed 11/20/06 Page 5 of 42 PageID #: 3322

For these reasons as well as others outlined herein, the Consent Decree must be vacated because a condition precedent to the Defendants’ consent has now been nullified and there has been a significant change in law. I. DEFENDANTS ARE ENTITLED TO VACATUR OF THE CONSENT DECREE.
A. Defendants Expressly Conditioned Their Consent To The Decree On The Premise That The Medicaid Provisions On Which The Decree Is Predicated Are Enforceable Under 42 U.S.C. § 1983.
Consent decrees are contracts and “they should be construed basically as contracts,” with all their express conditions and other limiting terms. United States v. ITT Cont’l Banking Co., 420 U.S. 223, 236-37 (1975); Sault Ste. Marie Tribe of Chippewa v. Engler, 146 F.3d 367, 372 (6th Cir. 1998). “While the imprimatur of judicial approval gives consent decrees the force of law, ‘it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.’ ” King. v. Walters, 190 F.3d 784, 788 (7th Cir. 1999) (quoting Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986)); see also Firefighters v. Cleveland, 478 U.S. at 525 (“the parties’ consent animates the legal force of a consent decree”); Reynolds v. Roberts, 251 F.3d 1350, 1357 (11th Cir. 2001) (without the consent of the parties, a court lacks the power to enter a judgment purportedly based on consent); Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987) (“The source of the district court’s authority to enter a consent decree is the parties’ agreement.”). This is a jurisdictional requirement, and it is unsurprising, insofar as “it hardly makes sense to refer to a document as a ‘consent’ decree when it is based on something other than the parties’ voluntary agreement.” King, 190 F.3d at 788.
Thus, a consent decree depends, by definition, on the consent of the parties. The scope of the obligations to which the parties have consented is set by the terms and conditions memorialized in the consent decree. Any attempt by a district court to hold a party to terms
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other than those to which it has agreed is an abuse of discretion per se. See Firefighters, 478 U.S. at 529; United States v. Ward Baking Co., 376 U.S. 327, 334 (1964); King, 190 F.3d at 788.
The Decree in this case is expressly “premised upon the assumption that the EPSDT requirements of 42 U.S.C. §§ 1396a(a)(43) and 1396d(r) and 42 U.S.C. §§ 671(a)(16) and 675(1) and (5) of the Adoption Assistance Act are enforceable in an action under 42 U.S.C. § 1983.” Consent Decree ¶ 15. That condition limits the defendants’ consent to the Decree and therefore limits the legal force of the Decree itself. It is unambiguous. If there were any lingering doubt, the Decree also contains an explicit reservation of rights: “Defendants do not waive any right to seek modification of this consent decree if the controlling preceden[t] establishes lack of § 1983 enforceability as to any of these provisions.” Consent Decree ¶ 15.
This condition is crucial here because, as described in detail below, the United States Court of Appeals for the Sixth Circuit has recently revised the law governing the enforceability of Medicaid provisions under Section 1983. See Westside Mothers v. Olszewski, 454 F.3d 532, 538-39, 542-43 (6th Cir. 2006) (“Westside Mothers II”). The condition precedent to defendants’ consent to the Decree therefore no longer exists and the Decree must be modified accordingly.
B. Defendants Are Independently Entitled To Vacatur Of The Decree Because Of An Intervening Change In Governing Law.
Even if defendants had not expressly conditioned their consent to the Decree, they would nevertheless be entitled to modification of the Decree under the doctrine announced in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). “ ‘[S]ound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed.’ ” Id. at 380 (quoting Railway Employees Dep’t v. Wright, 364 U.S. 642, 647 (1961)); see also id. at 384, 390. As the Sixth Circuit ruled en banc in Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994) (en banc), “[o]ngoing
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injunctions should be dissolved when they no longer meet the requirements of equity.” This occurs when “[t]he law changes and clarifies itself over time.” Id.; see also Déjà Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville, No. 05-5895, 2006 U.S. App. LEXIS 25426, at *9 (6th Cir. Oct. 12, 2006) (same); David B. v. McDonald, 116 F.3d 1146, 1147 (7th Cir. 1997) (Easterbrook, J.) (“A change of law may … require a modification of a consent decree.”) (citing Rufo). As explained above, there has now been such a change in law with the Sixth Circuit’s recent ruling in Westside Mothers II, which requires that enforceability of Medicaid requirements be determined with respect to each separate Medicaid provision implicated in an action brought under Section 1983.
The change in doctrine concerning the creation by federal statutes of individual rights actionable under Section 1983, see, e.g., Gonzaga University v. Doe, 536 U.S. 273 (2002); Blessing v. Freestone, 520 U.S. 329 (1997), has culminated in the Sixth Circuit’s recent decision in Westside Mothers II. In that ruling, the Court of Appeals confirmed that Section 1983 “provides redress only for a plaintiff who asserts a ‘violation of a federal right, not merely a violation of federal law.’ ” 454 F.3d at 541 (quoting Blessing, 520 U.S. at 340). Moreover, Westside Mothers II specifically applied this general rule in the context of a claimed violation of the EPSDT provisions of the Medicaid statute, holding that courts must decide whether a Section 1983 remedy for such a violation is available “as to each specific statutory provision identified” by the plaintiffs. Id. at 538. That is, a court must “consider[] whether the specified provisions of the Medicaid Act confer enforceable rights under § 1983 before holding that the plaintiffs have a cause of action under § 1983.” Id. at 539.
In its prior decision in the same case, Westside Mothers v. Haveman, 289 F.3d 852, 863 (6th Cir. 2002) (“Westside Mothers I”), the Sixth Circuit had concluded that “[p]laintiffs have a
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cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act.” Prior to Westside Mothers II, this Court cited Westside Mothers I as binding precedent supporting the conclusion that plaintiffs’ similar claims in this case concerning the EPSDT screening and treatment requirements are enforceable under Section 1983. See Transcript of April 17, 2006 Hearing at 9. In Westside Mothers II, however, the Sixth Circuit determined that the above-quoted statement in Westside Mothers I “creates considerable ambiguity,” and that it could not be sure that the prior panel had in fact “considered whether [each of] the specified provisions of the Medicaid Act confer[s] enforceable rights under § 1983.” As a result, the issue was open to the district court on remand from the first Westside Mothers ruling. Westside Mothers II, 454 F.3d at 539. A fortiori, the issue is likewise open to this Court. Therefore, this Court must assess, in accord with the standards announced in Westside Mothers II, the enforceability of each individual Medicaid requirement relied upon by the plaintiffs to justify the relief in the Consent Decree. When such an analysis is conducted, it becomes clear that all of the substantive provisions of the Decree must be vacated. II. SECTION 1396a(a)(30) DOES NOT CONFER INDIVIDUAL RIGHTS
ENFORCEABLE BY THE PLAINTIFFS UNDER 42 U.S.C. § 1983. The Consent Decree expressly invokes 42 U.S.C. § 1396a(a)(30) as the legal justification for the imposition on defendants of the sweeping and invasive network adequacy requirements found throughout the Decree. See Consent Decree ¶ 61(iii) & n.10.1 The Sixth Circuit specifically held in Westside Mothers II that Section 1396a(a)(30) “does not … provide Medicaid recipients or providers with a right enforceable under § 1983.” 454 F.3d at 542; see also id. at 543. For a statutorily conferred “right” to be enforceable under Section 1983,
1 Although the State has agreed with CMS to adhere to certain “Terms and Conditions for Access” as part of CMS’s approval of the TennCare Waiver, enforcement of those Terms and Conditions resides with CMS not individual litigants.
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“ ‘Congress must have intended that the provision in question benefit the plaintiff.’ ” Westside
Mothers II, supra, at 541 (quoting Blessing, 520 U.S. at 340-41). That cannot be said with
respect to Section 1396a(a)(30), because it “focuses on ‘the aggregate services provided by the
State,’ rather than ‘the needs of any particular person.’ ” Id. at 542 (quoting Gonzaga, 536 U.S.
at 282) (brackets omitted). “The provision speaks, not of individual benefits, but rather of the
State’s obligation to develop” a healthcare plan with specified features. Id. Any inference that
Congress intended to confer individually enforceable rights on beneficiaries is negated by the
fact that the provision addresses, and focuses on, “the state as the person regulated.” Id. (citation
and quotation marks omitted).
In the wake of Gonzaga, other circuits have come to the same conclusion about Section
1396a(a)(30). See Mandy R. v. Owens, 464 F.3d 1139, 1148 (10th Cir. 2006) (McConnell, J.)
(“[S]ubsection 30(A) does not create a federal right enforceable under § 1983.”); Sanchez v.
Johnson, 416 F.3d 1051, 1059 (9th Cir. 2005) (“[N]othing in the text of § 30(A) . . .
unmistakably focuses on recipients . . . as individuals”); Long Term Pharmacy Alliance v.
Ferguson, 362 F.3d 50, 57 (1st Cir. 2004)(Subsection 30(A) “has no ‘rights creating language’ and identifies no discrete class of beneficiaries”).2 Nothing in the TennCare Waiver’s Terms and
Conditions for Access changes these fundamental facts. Indeed, the Terms and Conditions for
2 The odd man out is Pediatric Specialty Care, Inc. v. Arkansas Dep’t of Human Servs., 443 F.3d 1005, 1014-16 (8th Cir. 2006), in which the Eighth Circuit deliberately adhered to preGonzaga circuit precedent in holding that subsection 30(A) confers enforceable rights. The Eighth Circuit relied principally on the fact that, although Gonzaga was decided after the Eighth Circuit’s original decision in Pediatric, the mandate in Pediatric did not issue until ten days after the Supreme Court handed down Gonzaga – therefore, technically, “Gonzaga [wa]s not an intervening decision of a superior tribunal, as is required before we may overturn matters previously settled as the law of the case.” 443 F.3d at 1014. Putting aside that unpersuasive reasoning, the holding in Pediatric has been expressly rejected by both the Sixth Circuit (Westside Mothers II, 454 F.3d at 542) and the Tenth Circuit (Mandy R., 464 F.3d at 1148).
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Access make clear that the focus is on the aggregate services provided by the State, not the needs of any individual.
The Sixth Circuit found further support for its holding in the fact that violations of Section 1396a(a)(30) are “ill-suited to judicial remedy.” 454 F.3d at 543. That provision requires that the state’s healthcare plan be structured so as “to enlist enough providers so that care and services are available under the plan.” 42 U.S.C. § 1396a(a)(30)(A). The Sixth Circuit held that formulating and supervising injunctive relief for violation of this requirement – a task undertaken in great detail in the Consent Decree here – “would involve making policy decisions for which this court has little expertise and even less authority.” Westside Mothers II, 454 F.3d at 543 (citation and quotation marks omitted); see also Mandy R., 464 F.3d at 1147 (subsection 30(A)’s “ ‘broad and nonspecific’ language is ‘ill-suited to judicial remedy”) (quoting Westside Mothers II, 454 F.3d at 542-43); Sanchez, 416 F.3d at 1059 (“the flexible, administrative standards embodied in the statute do not reflect a Congressional intent to provide a private remedy for their violation”).
Thus, it is now the law of this circuit that Section 1396a(a)(30) confers no rights actionable under Section 1983. Accordingly, the Consent Decree and any orders enforcing it must be modified to vacate all relief for the alleged violation of this non-actionable provision of the Medicaid statute. As the Sixth Circuit recently explained, the rules governing termination of injunctions date to Sir Francis Bacon, who declared that “ ‘a court has continuing jurisdiction to terminate or modify an injunction and that an equitable remedy should be enforced only as long as the equities of the case require.’ ” Déjà Vu, 2006 U.S. App. LEXIS 25426 at *9 (citation omitted). Now that the “foundation upon which the claim for injunctive relief was built has crumbled,” there is “[n]o basis in federal law … for the injunctive relief imposed in this case.”
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Sweeton, 27 F.3d at 1166 (en banc). At a minimum, the following paragraphs of the Decree

addressing “network adequacy” must be vacated:

•

Paragraph 43, which requires defendants to “ensure that their contractors’

networks are adequate.”

•

Paragraph 58, which specifies staffing requirements and requires that “utilization

review and prior authorization decisions be made only by qualified personnel with

education, training, or experience in child and adolescent health.”

• Paragraph 60(v) and (vi), which requires defendants to “demonstrate that their

[MCO] networks include providers with cultural and linguistic competency,” and

“that each MCO have a sufficient array of services and specialists to meet the

medical and behavioral health needs of class members.”

• Paragraph 61(ii), which requires defendants to demonstrate “that provider

networks currently comply with the ‘Terms and Conditions for Access.’ ”

• Paragraph 61(iii), which specifically mandates that defendants comply with 42

U.S.C. § 1396a(a)(30).

• Paragraph 62, which addresses the broader issue of staffing and networks by

requiring the creation and dissemination of “up-to-date lists of specialists to

whom referral may be made for screens.”

• Paragraph 71(ii), which attempts to address network adequacy issues by requiring

that defendants ensure “a comprehensive and appropriate scope of geographically

accessible child and adolescent behavioral health services.”

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III. THE PROVISIONS OF THE CONSENT DECREE PURPORTEDLY ENFORCING SECTION 1396a(a)(43) DO NOT ADDRESS INDIVIDUAL RIGHTS THAT ARE ENFORCEABLE UNDER 42 U.S.C. § 1983.
A. Under The Analysis Required By Gonzaga And Westside Mothers II, Only Individual Rights Granted by Section 1396a(a)(43) Are Enforceable.
The Supreme Court has pointedly observed that Spending Clause legislation has rarely
been read to confer individual rights enforceable under Section 1983. See Gonzaga, 536 U.S. at
280 (“Our more recent decisions … have rejected attempts to infer enforceable rights from
Spending Clause statutes.”). Adhering closely to the teaching of Gonzaga, the Sixth Circuit
recently emphasized the general rule that:
[F]ederal funding provisions provide no basis for private enforcement by § 1983.” Gonzaga, 536 U.S. at 273-74 (emphasis added). The [Supreme] Court explained that spending legislation is generally not intended to confer individual rights enforceable under § 1983. Id. In the few instances when the Court has found an individual right enforceable under § 1983 within spending legislation, the provisions conferred specific and definite monetary entitlements on the plaintiffs . . . . Hughlett v. Romer-Sensky, No. 05-3299, 2006 U.S. App. LEXIS 16823, at *17 (6th Cir. July 6,
2006)(emphasis added). As the Court of Appeals explained in Westside Mothers II, “only
unambiguously conferred rights, as distinguished from mere benefits or interests, are enforceable
under § 1983.” 454 F.3d at 542. The “[c]ritical … inquiry is whether the pertinent statute
contains ‘rights-creating’ language that reveals congressional intent to create an individually
enforceable right.” Id. (quoting Gonzaga, 536 U.S. at 287).
The “text and structure” of the statute must “indicat[e] that Congress intend[ed] to create
new individual rights.” Gonzaga, 536 U.S. at 286. In pursuing this inquiry, a court must “[take]
pains to analyze the statutory provisions in detail, in light of the entire legislative enactment, to
determine whether the language in question created ‘enforceable rights’” within the meaning of
Section 1983. Suter v. Artist M., 503 U.S. 347, 357 (1992) (emphasis added). The required
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statutory analysis “ ‘is a holistic endeavor,’ and, at a minimum, must account for a statute’s full text, … structure, and subject matter.” United States Nat’l Bank v. Indiana Ins. Agents of Am., 508 U.S. 439, 455 (1993) (citation omitted).
Accordingly, the starting point here is not a reading of Section 1396a(a)(43) in isolation, but in the context of the Medicaid statute. Most of the provisions of this Spending Clause legislation may not be shoehorned into the rights-creating framework established by Gonzaga. The Medicaid statute, Title XIX of the Social Security Act, is entitled “Grants to States for Medical Assistance Programs,” not “rights of individuals to Medicaid benefits.” See 42 U.S.C. § 1396 et seq. Section 1396a provides that States (not individuals) get federal money on the condition that they submit a healthcare plan to the Secretary that meets federal requirements. And even then the States are obliged not to provide actual healthcare to Medicaid beneficiaries, but only to furnish “medical assistance” in the form of payments to third-party healthcare providers.3 As Judge McConnell recently explained for the Tenth Circuit, “On its face, then, the Medicaid Act requires any state participating in Medicaid to pay promptly and evenhandedly for medical services when the state is presented with the bill. If that is all the statute requires, then the plaintiffs have no claim: they are on a waiting list for services, not a waiting list for payment for services.” Mandy R., 464 F.3d at 1143 (citing, inter alia, Westside Mothers II, 454 F.3d at 540). That is also the rule in this Circuit. See Westside Mothers II, 454 F.3d at 540 (statutory command of “medical assistance” requires only financial assistance). Because “Medicaid is a payment scheme, not a scheme for state-provided medical assistance,” plaintiffs who purport to discern creation of individual healthcare rights in the Medicaid statute have a very tough row to
3 Even though Tennessee, through the TennCare Waiver, has voluntarily assumed some additional obligations to monitor quality of care and to coordinate care as part the managed care model approved by CMS, this does not change the fact that the State is a payor not a provider of services.
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hoe, “given the Supreme Court’s hostility, most recently and emphatically expressed in Gonzaga University v. Doe, to implying such rights in spending statutes.” Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003) (Posner, J.).
Far from containing “unambiguous rights-creating” language, most of the provisions of the Medicaid statute are couched in grant-conditioning language. And this federal grant program is administered not by a rights-oriented federal agency – such as the Equal Employment Opportunity Commission – but by the Center for Medicare and Medicaid Services, formerly (and telling) known as the Health Care Financing Administration. See State Medicaid Manual § 2084.2. In contrast, as the Court explained in Gonzaga, “rights-creating” language is to be found, for example, in Title VI of the Civil Rights Act of 1964, which “provides: ‘No person in the United States shall … be subjected to discrimination under any program or activity receiving Federal financial assistance.’ ” 536 U.S. at 284 n.3 (quoting 42 U.S.C. § 2000d) (emphasis and ellipses supplied by the Court).
In Blessing v. Freestone, the Supreme Court considered a federal grant program similar to that at issue here. To qualify for federal funds, the states were required to “operate a child support enforcement program that conform[ed] with the numerous requirements set forth” in the statute, and to “do so pursuant to a detailed plan that has been approved by the Secretary.” 520 U.S. at 333. The Court unanimously held that this was insufficient to confer on recipients of the child support program “a right to require the [State] to bring the State’s program into substantial compliance” with the federal statute. Id. at 343. The Court squarely held that federal “mandates” that the State program contain certain features did not “give rise to federal rights.” Id. at 345.
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Similarly, in Suter v. Artist M., the Court held that a child welfare statute “d[id] not

unambiguously confer an enforceable right upon the Act’s beneficiaries” by requiring that a

State, to qualify for federal financing, submit a plan to the Secretary containing certain features

dictated by the statute. 503 U.S. 347, 363 (1992); see also id. at 351, 358, 359, 361. The

Supreme Court reviewed and reaffirmed Suter in Gonzaga. See 536 U.S. at 281; see also id. at

291 (Breyer, J., concurring in the judgment).

Both Blessing and Suter confirm the principle that has guided the Supreme Court for over

a quarter of a century: “In legislation enacted pursuant to the spending power, the typical

remedy for state noncompliance with federally imposed conditions is not a private cause of

action for noncompliance but rather action by the Federal Government to terminate funds to the

State.” Pennhurst State Sch. And Hosp. v. Halderman, 451 U.S. 1, 28 (1981) (quoted in

Gonzaga, 536 U.S. at 280). The Sixth Circuit has firmly embraced this analysis. See Hughlett,

2006 U.S. App. LEXIS 16823, *16 (quoting Pennhurst, 451 U.S. at 28). Here, as in Blessing,

Suter, Gonzaga and Hughlett, the EPSDT provisions “speak only to the Secretary,” directing the

Secretary to require certain features in a State plan or waiver as a prerequisite to the Secretary’s

disbursal of federal money. Gonzaga, 536 U.S. at 287.

•

The very first section of the statute is entitled “Appropriations,” and it authorizes

the spending “for each fiscal year” of sums necessary to enable “each State, as far

as practicable under the conditions in such State, to furnish medical assistance” to

its citizens under the terms of a plan “approved by the Secretary.” 42 U.S.C. §

1396.

• Section 1396a(b) vests in the Secretary the responsibility for reviewing and

approving healthcare plans submitted by States seeking federal grants.

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• Section 1396a(a) informs the Secretary of the seventy features or services that

state plans must provide – including the EPSDT services described in Section

1396a(a)(43).

• Section 1396d(r) directs the Secretary to set (and annually to review and revise)

“participation goals for each State for participation of individuals” in the State’s

federally financed EPSDT program.

•

Section 1396c(2) authorizes the Secretary, in his discretion, to reduce or cut off

federal funding to any state plan in which the Secretary finds “a failure to comply substantially” with the requirements listed in Section 1396a(a).4

• In order to facilitate the Secretary’s policing of state compliance, Section

1396a(a)(43)(D) requires States to report statistics about their EPSDT programs to

the Secretary, including data revealing “the State’s results in attaining the

participation goals set for the State under section 1396d(r) of this title.”

• CMS, which reports to the Secretary, conducts “[m]onitoring, surveillance, and

overall administrative control of the [plan or waiver] certification process

including its financial aspects.” State Medicaid Manual § 2084.2. On behalf of

the Secretary, CMS’s Regional Offices (“ROs”) “[a]nalyze[] certification budgets

and State spending patterns to assure that funds are economically and

appropriately utilized” and “[e]valuate the performance of SAs [State Agencies]

in applying and enforcing health and safety standards, the States’ assessments of

facilities for compliance with standards, and the States’ adherence to required and

appropriate administrative procedures.” State Medicaid Manual § 2084.2.

4 The Secretary’s computation of the amounts of grant money to be paid to the States is governed by Section 1396b.

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Thus, rather than creating individual rights, most of the federal statute’s terms “serve
primarily to direct the Secretary[’s] distribution of public funds.” Gonzaga, 536 U.S. at 290. As
in Gonzaga, the Secretary is expressly authorized to enforce compliance with the requirements of
the federal statutory program and to cut funding to States that do not comply. Id. at 289. Once
again, this analysis has been adopted by the Sixth Circuit. See Hughlett, 2006 U.S. App. LEXIS
16823, *16 (“[T]he Secretary may reduce the funding to [the State] by up to five percent. 45
C.F.R. § 305.61. This scheme typifies the remedies found in spending legislation.”); Westside
Mothers II, 454 F.3d at 543 (“ ‘[P]lan review by the Secretary is the central means of
enforcement intended by Congress’ ”) (citation omitted).
These features of the EPSDT federal grant regime have led the Court of Appeals for the
Fifth Circuit to hold that Section 1396a(a)(43) does not create rights to programmatic screening,
outreach, and treatment results that are enforceable under Section 1983. In Frazar v. Gilbert,
300 F.3d 530 (5th Cir. 2002), rev’d on other grounds sub nom. Frew v. Hawkins, 540 U.S. 431 (2004), the Fifth Circuit considered a class action, similar to this case, in which plaintiffs
complained that the Texas EPSDT program had failed to provide federally mandated services
and failed to meet the requirements of 42 U.S.C. §§ 1396a(a)(43) and 1396d(r). Id. at 534. The
Frazar court reviewed the text and structure of the same EPSDT provisions at issue here and
found no unambiguous congressional intent to confer a private right of action under Section
1983. Id. at 544-45. The Fifth Circuit’s opinion is worth quoting at length:
[L]ooking to § 1396a(a)(43), even though it refers in subpart (A) to providing notice to “all persons,” and refers in subpart (B) to the provision of EPSDT screening services in “all cases” where such services are requested, the opening text of § 1396a(a) and § 1396a(a)(43) modify all of this language by only requiring that a state “plan” must “provide for” meeting these requirements. In § 1396a(b), Congress vested in the Secretary … the initial responsibility for approving state plans. Section 1396a(a)(43)(D) requires that the state plan provide for reporting certain data including “the State’s results in attaining the
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participation goals set for the State under section 1396d(r) of this title.” … In § 1396c, the Secretary is authorized to reduce or eliminate, in its discretion, federal funding for state plans which are not in compliance with § 1396a.
In our view, Congress has therefore spoken to the success expected of a state plan: it should meet EPSDT participation goals set by the Secretary. Under the third prong of Blessing, these are the only participation goals which are unambiguously imposed on the states. We do not read the statute as allowing a federal district court to require a higher standard of success. Congress did not in our view create such a federal right.
Frazar, 300 F.3d at 544-45.
The Supreme Court reversed Frazar on other grounds, but “did not pass on the Fifth
Circuit’s analysis of whether the Medicaid provisions created enforceable rights …. It is this
undisturbed analysis that is relevant to the case at hand.” Westside Mothers v. Olszewski, 368 F.
Supp. 2d 740, 767 (E.D. Mich. 2005), aff’d in part, rev’d in part, 454 F.3d 532 (6th Cir. 2006).5
The Fifth Circuit’s analysis in Frazar was quoted at great length by the district court in
Westside Mothers following remand from the first Sixth Circuit decision. See 368 F. Supp. 2d at
765-68, 770. Like the Fifth Circuit in Frazar, the Westside Mothers district court accepted that
there might be a Section 1983 remedy for individual EPSDT violations in some circumstances,
but concluded that any such right “created in those who are eligible and who are denied specific
services does not include a right to force the State to ensure 100% participation of every
5 The losing plaintiffs in Frazar petitioned for certiorari on the Section 1983 issue but the Supreme Court limited its grant of review to the separate Eleventh Amendment issues on which it reversed the Fifth Circuit. On remand from the Supreme Court, Texas apparently abandoned its prior argument that Section 1983 did not provide a cause of action supporting the relief granted in the consent decree. Unlike Tennessee in this case, Texas had failed to expressly preserve in the consent decree the legal issue of whether the statutory provisions created federal rights enforceable under Section 1983. Frazar v. Ladd, 457 F.3d 432, 438 (5th Cir. 2006) (“ ‘In choosing to voluntarily enter into the Consent Decree, Defendants waived the opportunity to litigate the merits of the claims.’ ”) (quoting district court order). The Fifth Circuit ultimately affirmed the denial of Texas’ motion to modify the consent decree because Texas failed to establish a “significant change in factual circumstances” since the time the decree was entered. See id. at 440.
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potentially eligible citizen.” Id. at 768-69 (emphasis added). As the Sixth Circuit recently observed, “an aggregate or system-wide focus” is “inconsistent with individually enforceable rights.” Hughlett, 2006 U.S. App. LEXIS 16823, *15.
And, even with respect to that avowedly aggregate goal, “there is no private enforceable right to ensure that the State ‘substantially comply’ with even the 80% [screening] participation goal.” Westside Mothers, 368 F. Supp. 2d. at 769 (citing Blessing, 520 U.S. at 343-44). To be sure, the trial court did find that Section 1396a(a)(43) conferred a narrow individual right to screening services, but only in “‘cases where they are requested,’ ” id. at 770 (quoting 42 U.S.C. § 1396a(a)(43)(B)). The court emphasized that this right is limited to “those individuals who qualify for and actually request such services.” Id. Accordingly, Section 1983 provides a cause of action only where plaintiffs can allege that the State “has a policy or practice of not providing the EPSDT services to those eligible children who have in fact requested them.” Id.
The district court in Westside Mothers likewise found a narrowly drawn individual right, enforceable under Section 1983, in Section 1396a(a)(43)(A) to be informed of the availability of EPSDT services. Id. at 775. The court emphasized that the right is limited to children who have been determined to be eligible; “[t]he plain meaning of this text does not create a duty on behalf of the State to inform every potential eligible child of the availability of EPSDT services.” Id. The trial court dismissed the claim brought under Section 1396a(a)(43)(A) because it found that “Plaintiffs have failed to allege that a person who has been determined eligible for medical assistance was denied notice of the EPSDT services available.” Id. The court also held that the text of the statute did not require the State to “effectively” inform all potentially eligible children of the availability of EPSDT services. Id.
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In Westside Mothers II, the Sixth Circuit did not reach the question whether Section 1396a(43)(A) confers any individual rights that are enforceable in a Section 1983 action, nor did it address the scope of such rights if they exist. Rather, the Court of Appeals considered only the trial court’s holding that the Section 1396a(a)(43)(A) count must be dismissed because of a deficiency in pleading – plaintiffs had not alleged that they had not been informed of the availability of EPSDT services. The Sixth Circuit held that the trial court had erred by concluding that the statute did not require the State to “effectively” inform eligible plaintiffs, explaining that the implementing regulation imposed that requirement. The Court of Appeals concluded that plaintiffs may have adequately pleaded a failure to “effectively inform” them of the availability of such services, and the court accordingly remanded for further proceedings. See 454 F.3d at 543-44.
While the Sixth Circuit thus concluded that plaintiffs “stated a cognizable claim under § 1983 for violations of § 1396a(a)(43)(A),” id. at 544, it did not specifically analyze the question whether that sub-paragraph, or any other portion of Section 1396(a)(43), creates individual rights that are enforceable under Section 1983. As noted, the Court did analyze that question with respect to another Medicaid provision relating to EPSDT, Section 1396a(a)(30), see id. at 541-43, and its analysis in that regard is equally applicable to subsection (43). The Court of Appeals reasoned that statutory provisions with “an aggregate focus” negate an inference of “congressional intent to confer an individually enforceable right.” Id. at 542; see also Hughlett, 2006 U.S. App. LEXIS 16823, *10-11, *15 (holding that child-support services provisions of the Social Security Act, 42 U.S.C. §§ 657(a) & 654b(c), do not confer individual rights actionable under § 1983). When a “provision focuse[s] on ‘the aggregate services provided by the State,’ rather than ‘the needs of any particular person,’ it confer[s] no individual
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rights and thus [cannot] be enforced by § 1983.” Gonzaga, 536 U.S. at 282 (quoted in Westside Mothers II, 454 F.3d at 542). Subsection (43), like subsection (30), “speaks not of individual benefits, but rather” of aggregate EPSDT services and of “the State’s obligation to develop” a plan to meet statutory requirements to provide services to the entire eligible population. Westside Mothers II, 454 F.3d at 542. Thus, the provision speaks not of the form and timing of notice to which individual beneficiaries are entitled, but of the need for the State to develop an overall plan for “informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance” of the availability of EPSDT services. 42 U.S.C. § 1396a(a)(43)(A).
Similarly, subsection (43)(D) speaks not to the EPSDT needs of any particular person, but of the State’s obligation to report, in the aggregate, the State’s statistical progress in attaining the EPSDT participation goals set by the Secretary. 42 U.S.C. § 1396a(a)(43)(D). This section provides a means “for the Secretary to measure the systemwide performance of a State’s Medicaid program.” Westside Mothers II, 454 F.3d at 543 (brackets and quotation marks omitted). It is “ ‘concerned with overall methodology rather than conferring individually enforceable rights on Medicaid recipients.’ ” Id. (citation omitted). Put another way, these provisions focus “upon the state as the person regulated rather than individuals protected.” Id. at 542 (quotation marks omitted); see also Hughlett, 2006 U.S. App. LEXIS 16823, *12-13 (“[T]he provision is directed toward the administering body . . . . The district court properly found that the statute is intended to provide instruction to the States and does not contain the rights-creating language necessary to create an enforceable individual right.”). Therefore, Section 1396a(a)(43) “does not focus on individual entitlements” and does not provide unambiguous evidence of congressional intent to confer an individual right. Westside Mothers II, 454 F.3d at 543.
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As noted above, the Westside Mothers district court did find that Section 1396a(a)(43)
confers narrowly defined rights that are individually enforceable under Section 1983. The court
based this conclusion on its belief that the provision could not be distinguished from the
provision at issue in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990) (holding that
Section 1396a(a)(13)(A) is enforceable in a Section 1983 action), and that the Gonzaga Court
did not overrule Wilder even though its approach to Section 1983 in its more recent decision
appears to be in tension with the result in Wilder. See 368 F. Supp. 2d at 761, 770. However,
the Supreme Court left only the result of Wilder intact, expressly disavowing its approach to the question whether an action may be brought under Section 1983.6 Accordingly, to the extent that
Wilder retains any vitality at all, it clearly has no application beyond the specific provision at
issue in that case – Section 1396a(a)(13)(A). Analysis of Section 1396a(a)(43) is governed
instead by Gonzaga and Westside Mothers II, which make clear that subsection (43) does not
support a private right of action at all, or at most, provides a private right that is narrowly limited
to instances where individual beneficiaries have specifically requested, and been denied, services
covered by subsection (43). The Consent Decree in this case provides remedies that sweep far
6 In Gonzaga, after noting the holding in Wilder, the Supreme Court observed that its “more recent decisions, however, have rejected attempts to infer enforceable rights from Spending Clause statutes,” 536 U.S. at 281, and the Court continued that trend in Gonzaga. In particular, the Court acknowledged that Wilder might be misunderstood to support the view that a cause of action will lie under Section 1983 even in the absence of statutory language clearly conferring an individual right. The Supreme Court emphatically laid this view to rest: “We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.” Id. at 283. As Judge McConnell recognized in Mandy R., “[a]lthough professing not to overrule Wilder, Gonzaga recharacterized the earlier decision as a case finding an enforceable private right in a ‘provision [that] required States to pay an ‘objective’ monetary entitlement to individual health care providers.” 464 F.3d at 1147 (quoting Gonzaga, 536 U.S. at 280). There are no claims by health-care providers in this case, and Wilder is therefore inapposite.
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beyond the narrow rights recognized by the Westside Mothers trial court. The Decree thus goes beyond the scope of any legitimate Section 1983 cause of action, as we demonstrate below.
B. Section 1396a(a)(43) Does Not Confer On EPSDT Recipients A Right To Enforce The State’s Systemic Compliance With Federal Statutory Requirements.
The Supreme Court has unanimously stressed that it is essential not only to specify the statutory provisions involved, but also “to determine exactly what rights, considered in their most concrete, specific form, [plaintiffs] are asserting.” Blessing, 520 U.S. at 346. “Lest the court run afoul of Blessing, it must not paint ‘with too broad a brush’ by failing to ‘separate out the particular rights … broken down into manageable analytic bites’ ” on which the plaintiffs seek relief. Frazar, 300 F.3d at 543 (quoting Blessing, 520 U.S. at 342, 345). It is well established that, when interpreting the features of a Medicaid plan required by Section 1396a(a), courts must “draw[] the distinction between enforceable rights … in specific covered individuals and purported rights to ensure substantial and complete compliance” by the State as a systemic matter. Westside Mothers II, 368 F. Supp. 2d at 769 & n.8.
Hence, it is necessary to distinguish between an individual right “created in those who are eligible and who are denied specific services,” on the one hand, and a systemic right to enforce state compliance with the EPSDT mandates of federal law with respect to “every potentially eligible citizen,” on the other. Id. at 768-69. As the Fifth Circuit held in Frazar, “Congress did not intend that a court can require that a state participating in the Medicaid program must always provide every EPSDT service to every eligible person at all times.” 300 F.3d at 544; see also Westside Mothers, 368 F. Supp. 2d at 767 (same). In Blessing, the Supreme Court made clear that statutory provisions “designed only to guide the State in structuring its systemwide efforts” to furnish Medicaid services are not intended to benefit any specific individuals who may be
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eligible for services. 520 U.S. at 344 (emphasis added). Any benefits conferred on individuals by such provisions are “indirect[]” and therefore do not rise to the level of a congressionally conferred federal right protected by 42 U.S.C. § 1983. Id. The “organizational requirements” imposed on States by Medicaid “do not … give rise to federal rights.” Id. at 345. Thus the “scope of th[e] individual rights” under Section 1396a(a)(43) is crucial, as the district court reiterated in Westside Mothers: “Again, this does not create a right to ensure that every child who resides in [the state] and who may be eligible for EPSDT services actually receive these services.” 368F. Supp. 2d at 770.
Yet it is precisely this nonexistent, systemic “right” that plaintiffs invoke here, and that has spawned the Consent Decree under which this Court now administers the TennCare EPSDT program. This is the very vice against which Judge Kleinfeld – whose view was unanimously embraced by the Supreme Court – warned in Blessing: “What this lawsuit seeks to accomplish is to lodge the power to decide if the states are trying hard enough, and whether their plans to try harder are good enough, in federal judges instead of the Secretary of Health and Human Services. That is contrary to what Congress did.” Freestone v. Cowan, 68 F.3d 1141, 1157 (9th Cir. 1995) (Kleinfeld, J., dissenting), rev’d, 520 U.S. 329 (1997).
The plaintiffs’ exclusive focus on systemic violation of EPSDT requirements in the aggregate is plain on the face of the Complaint. The very first paragraph announces plaintiffs’ goal of “injunctive relief … to remedy systemic violations of federal and state laws.” Complaint ¶ 1 (emphasis added). This focus is repeated throughout the Complaint. See, e.g., Complaint. at ¶ 32 (“systemic deficiencies in TennCare”); ¶ 113 (“systemic state failings”); ¶ 123 (“systemic deficiencies with the TennCare system”); ¶ 174 (“systemic deficiencies in services”). Although allegations of the denial of adequate healthcare to individual children are sprinkled throughout
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much of the Complaint, see Complaint at ¶¶ 6-22, 55-173, no specific relief is sought for these particular alleged violations. Instead, the Complaint seeks only systemic injunctive relief “prohibiting the defendants from violating the rights of the plaintiff class as complained of herein.” Complaint at p. 58 (“Request for Relief”) (emphasis added).
This was not a mere oversight, nor need we speculate as to the relief plaintiffs anticipated when they brought this case, because the exclusive focus on aggregate, systemic violations of EPSDT is confirmed by the Consent Decree itself – which was filed simultaneously with the Complaint. The Consent Decree, like the Complaint, is directed at “systemic failures” to provide EPSDT services. Consent Decree ¶ 10. Indeed, the Decree expressly disavows the provision of any relief that would address the claims of the individual class representatives, whose individual allegations are pleaded in such detail in the Complaint. The Decree explicitly states that “the remedies provided under this consent [decree] are limited to cases presenting class-wide civil rights violations under 42 U.S.C. § 1983 rather than adjudications of individual claims.” Consent Decree at ¶ 110. The Decree provides exclusively a “systemic remedy” carefully designed not to “affect the right of any individual class member to seek any and all relief that is otherwise available through administrative review proceedings authorized by state and federal law, or through proceedings against the State before the Tennessee Claims Commission… .” Consent Decree at ¶ 110. Individual class members are expressly denied “the remedy of contempt” to enforce their individual claims for EPSDT services – contempt will be available only for “significant violations” of the defendants’ systemic obligations under TennCare. Consent Decree at ¶ 110.
Moreover, the specific requirements placed on defendants by the Decree make clear that it is aimed not at vindicating individual rights, but rather at achieving systemic reform. Like a
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decree criticized by the Seventh Circuit, this “consent decree reads not like a judgment rectifying a violation of law but like a statute setting an agency’s agenda – complete with deadlines for the promulgation of rules and promises designed to mollify diverse interest groups.” B.H. v. McDonald, 49 F.3d 294, 302 (7th Cir. 1995) (Easterbrook, J., joined by Goodwin, J., concurring). The district “court permitted the [advocacy groups] to set themselves up as the legislative arm for [the State] for child welfare policy.” Id.
Section B(1) of the Decree (Paragraphs 39 and 40), which sets forth the Decree’s outreach and informing requirements, has an aggregate, systemic focus.
• Paragraph 39 requires the State to “adopt any policies and procedures necessary to ensure that TennCare rules and guidelines clearly describe and allocate responsibility for, and require compliance with, each specific outreach and informing requirement under federal law.” By their very nature, such regulatory rules and guidelines are not aimed at specific individuals but rather are designed to address the functioning of the outreach program as a whole.
• Paragraph 40 removes any doubt that the outreach provisions of the Decree are addressed to systemic relief by stating that the outreach efforts required by Paragraph 39 must be “designed to reach all members of the plaintiff class.”
The Decree’s Screening requirements (Section B(2) of the Decree (Paragraphs 41 to 52)) are likewise aimed at systemwide compliance as opposed to ensuring an individual beneficiary’s right to an EPSDT screen when requested.
• Paragraphs 45 to 52 create screening performance standards whereby the defendants’ compliance with the Decree is measured in terms of “screening ratios” derived from CMS 416 reports that measure number of screens performed
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and percentages of children screened – not individual children. Once defendants have achieved an Adjusted Periodic Screening Percentage (“APSP”)7 of 80% and Dental Screening Percentage (“DSP”) of 80%, they “shall be presumed to be in compliance with their screening obligation under the law and terms of this order.” By its plain terms, this section of the Decree deals in ratios, proportions, and percentages, but not with the right of an individual beneficiary to a screen upon request. These are precisely the sort of aggregate, population-based measures that are not subject to Section 1983 enforcement. Likewise, Section C (Paragraphs 53 to 77), which addresses “Compliance with the Diagnosis and Treatment Mandate,” has a clear focus on systemic compliance rather individual access to medical care and treatment. • Paragraph 53 requires that defendants “establish and maintain a process for reviewing the practices and procedures of the MCOs and DCS, and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another. . . .” • Paragraph 55 requires defendants to “review MCO practices with regard to making decisions about medical necessity” and to “identify any practices that are inconsistent with the federal laws cited herein.”
7 The APSP is a further way in which the Decree focuses on ratios rather than individuals. The APSP is calculated by conducting an annual statistically valid medical record review of a sample of encounters coded as periodic screens to determine whether these were “complete” screens.” The proportion of required components of a complete screen found in each record in the sample of encounters is used to calculate an overall proportion for the entire sample and that proportion is in turn multiplied by the percentage of screens reported on the annual CMS 416 report to produce an APSP.
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• Paragraph 65 requires the State to “issue any necessary policy clarifications so that the defendants or their contractors understand their duty to provide EPSDT diagnosis and treatment services ….”
• Paragraph 73 requires the State to monitor “a sample of children entering DCS custody and assess the adequacy of services provided to them ….”
This sampling of provisions from Section C of the Decree demonstrates that the focus is not the vindication of an individual child’s right to medical care and treatment, but rather on reforming the policies of the State and its contractors and the overall adequacy of the program. “‘Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.’ ” Hughlett, 2006 U.S. App. LEXIS 16823, *13 (quoting Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (other quotation marks and citation omitted). Such aggregate or systemic “rights” are not enforceable under Section 1983.
Finally, the provisions of the Decree (Section D (Paragraphs 78 to 83)) addressing “Compliance with the Mandate to Coordinate EPSDT Services with Other Programs Services” have a systemic focus as well.
• Paragraph 80 requires defendants to “coordinate EPSDT outreach, screening, and treatment services with services or programs” on a statewide list.
• Paragraph 82 requires defendants to “issue regulations and policy guidance . . . which incorporate strategies for ensuring coordination of EPSDT services . . . .” Once again, the sole aim of these paragraphs is at population-based remedies, not individual rights.
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The manifestly systemic nature of the plaintiffs’ claims is thus confirmed by the remedial terms of the Consent Decree itself: the Decree covers only claims to enforcement of federal EPSDT rules in the aggregate; claims of denial of services to individual beneficiaries are relegated to “administrative review proceedings” or “proceedings against the State before the Tennessee Claims Commission.” Consent Decree ¶ 110. It is therefore beyond cavil that the Consent Decree abjures resolution of individual claims of denial of federal rights enforceable under Section 1983, and embraces only claims to systemic compliance with federal law that are not enforceable under Section 1983.
The Fifth Circuit confronted a parallel situation in the EPSDT class action in Frazar: the absence of actionable claims of federal right was confirmed by the exclusively systemic relief ordered by the district court.
[T]he district court did not direct that particular individuals receive EPSDT services to which they were entitled under federal law. It has instead taken upon itself the task of reworking the procedures and mechanisms whereby EPSDT services are provided to the totality of eligible participants. The court has become the overseer of the State’s Medicaid plan. As such, the court assumes the role of assuring that the State’s plan meets federal mandates…. 300 F.3d at 544. As explained above, the Fifth Circuit held that Congress did not intend in Section 1396a(a)(43) to create a right to compel systemic state compliance with EPSDT requirements. Id. Judge Nixon’s 2001 ruling, issued prior to the decisions in Gonzaga and Westside Mothers II, likewise confirms that plaintiffs have invoked, and obtained relief for, claims of systemic violations of federal EPSDT provisions that are not actionable under Section 1983. See John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn. 2001). The Court identified the entire “TennCare system” as the problem, the “failed experiment.” Id. at 791-92; see also id. at 792 n.18 (“ ‘dysfunctional’ State Government”); id. at 796 (“systemic deficiencies” ); id. at 798
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(“system break[] down”). The Court found that the Defendants’ violation of the Consent Decree stemmed not from any “recalcitrance” on their part, “but from a systemic black hole into which any agreement to comply with a court order would collapse.” Id. at 806. The problem was that TennCare’s managed care regime as a whole “has proven to be unworkable.” Id. at 807. Significantly, the Court did not identify any actionable claim by an individual EPSDT beneficiary who had been denied benefits guaranteed by the statute, but instead only a failure of TennCare in the aggregate: a “fundamental, systemic inability to merge managed care and EPSDT.” Id. at 803. It is now clear that such claims are not actionable under 42 U.S.C. § 1983. Accordingly, pursuant to Defendants’ reservation of rights in Paragraph 15 of the Consent Decree and the principles of Rufo, such relief must be vacated.
In the appeal in Frazar, which likewise arose on the plaintiffs’ application for enforcement of the EPDST consent decree, the Fifth Circuit held that “[b]efore the district court can remedy a violation of a provision of the consent decree, plaintiffs must demonstrate that any such consent decree violation is also a violation of a federal right.” 300 F.3d at 543. The Court of Appeals unanimously vacated the consent decree in its entirety because “the district court did not conduct a particularized Blessing analysis as to each alleged violation of the consent decree.” Id. at 542; see also id. at 546 (“Rather than focusing on the statutory requirements, the court focused on the consent decree requirements and proceeded to find numerous consent decree violations. These consent decree provisions impose standards and requirements on the State which are not required by the Medicaid statute.”). “Regardless of the terms of the consent decree, the district court cannot impose higher performance standards than those set by the Secretary, and cannot under Section 1983 impose systemwide performance or participation standards.” Id. at 546.
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Accordingly, no provision of the Consent Decree pertaining to the provision of EPSDT services can continue in force unless and until the plaintiffs can demonstrate that said remedial provision is justified by a specific violation of an individual right granted by the EPSDT statute that is actionable under Section 1983. IV. THE SECTIONS OF THE ADOPTION ASSISTANCE ACT INVOKED BY
PLAINTIFFS DO NOT CONFER ENFORCEABLE RIGHTS. Plaintiffs have also sought relief under Section 1983 for the alleged violation of rights conferred on them by several provisions of the Adoption Assistance and Child Welfare Act of 1980 (“Adoption Act”), 42 U.S.C. §§ 620-640, 670-679a. See Complaint p. 55 (Claims for Relief D). Specifically, the Complaint invokes Sections 622(b)(2), 625(a)(1)(A), (C), (D) and (F), 629a(a)(1)(C), 629a(b), 629b(a)(3), 673(c), and 675(1)(B). None of these sections, however, meets the Blessing-Gonzaga standard for conferral of a federal right enforceable under 42 U.S.C. § 1983, and the Consent Decree must therefore be vacated insofar as it addresses these claims. The Adoption Act, like the Medicaid Act discussed above, is part of the Social Security regime – specifically, it makes up Title IV, which is entitled “Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services.” See 42 U.S.C. § 620 et seq. (emphasis added). As previously explained, such federal grant programs enacted under the Spending Clause rarely create enforceable federal rights, see Gonzaga, 536 U.S. at 280, 290; Hughlett, 2006 U.S. App. LEXIS 16823, *17, and the Adoption Act is no exception. The first Adoption Act provisions cited by plaintiffs, Sections 622 and 629b, are lists of features that state plans for child-welfare services must contain to qualify for federal funding, which hardly constitutes unambiguous congressional intent to confer enforceable rights upon the beneficiaries of such plans. See Suter, 503 U.S. at 351, 358, 359, 361, 363; Gonzaga, 536 U.S.
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at 281. More important, the specific provision of the Adoption Act invoked in the Complaint (at ¶ 205) is not even the part of the statute that requires states to operate child-service programs and case-review systems (§ 622(b)(10)(B)), but is instead merely a section mandating state efforts to “provide for coordination” among various federally financed child-service programs. 42 U.S.C. § 622(b)(2). Likewise, Section 629b(a)(3), invoked in the Complaint at ¶ 204, directs the states to “provide[] for coordination, to the extent feasible and appropriate,” of services under the state’s Adoption Act plan. Notably, the other programs that are to be coordinated with Adoption Act services are defined not by any supposed rights they might confer on individual recipients of aid, but instead by whether those other “federally assisted programs serv[e] the same populations.” 42 U.S.C. § 629b(a)(3) (emphasis added). The aggregate, rather than individual, focus of these provisions is manifest.
Plaintiffs also invoke Sections 625(a)(1)(A), (C), (D) and (F), 629a(a)(1)(C), 629a(b), 673(c), and 675(1)(B). Complaint ¶ 205(a), (b) & (c). These provisions are equally administrative: they simply provide statutory definitions of the “child welfare,” “family preservation,” and “adoption assistance” programs that are to be financed by the federal grant program. Sections 625, 629a and 675 are all entitled “Definitions,” and Section 673(c) defines “children with special needs.” The purely administrative nature of these “Definition” provisions is underscored by the second half of Section 625, which provides the nitty-gritty, bookkeeping detail that “[f]unds expended with respect to nonrecurring costs of adoption proceedings in the case of children placed for adoption with respect to whom assistance is provided under a State plan for adoption assistance” that has been approved by the Secretary of Health and Human Services “shall be deemed to have been expended for child welfare services.” 42 U.S.C. § 625(a)(2). None of these provisions of the Adoption Act “unambiguously” contains “ ‘rights-
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creating’ language that reveals congressional intent to create an individually enforceable right.” Westside Mothers II, 454 F.3d at 542 (quoting Gonzaga, 536 U.S. at 287).
These provisions of the Adoption Act, like the provisions of another Title IV welfare program at issue in Blessing v. Freestone, are insufficient to confer on recipients of the federally financed program an individual “right to require the [State] to bring the State’s program into substantial compliance” with the federal statute. 520 U.S. at 343. Like other provisions of the Adoption Act considered in Suter v. Artist M., the sections at issue here concern, at most, “merely another feature which the state plan must include to be approved by the Secretary” – they “do[] not afford a cause of action” to the program’s beneficiaries. 503 U.S. at 359 n.10 (discussing 42 U.S.C. §§ 671(a)(3), 671(a)(9), 671(a)(15)). The provisions invoked by plaintiffs are merely “condition[s] on the receipt of funds from the Federal Government.” Id. at 362.
As the Supreme Court observed in Gonzaga when it reaffirmed its Suter decision, statutory provisions such as these can be “ ‘plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner [of reducing or eliminating payments].’ ” Gonzaga, 536 U.S. at 281 (quoting Suter, 503 U.S. at 363) (bracketed material supplied by the Gonzaga Court). Indeed, it would be a stretch to read the provisions of the Adoption Act invoked by plaintiffs here as conferring even a “generalized duty” on the State – these provisions merely provide “Definitions” of statutory terms or direct the states to “coordinate” the various state programs financed by this and other federal grant programs. Such nuts-and-bolts provisions of a statute cannot fairly be said even to confer federal rights ambiguously, let alone to do so “unambiguously,” as Blessing and Gonzaga require.
Further proof of the administrative and nonactionable nature of the “coordination” and other program requirements imposed by these parts of the Adoption Act may be found in the
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Consent Decree itself. Paragraphs 88 through 93 of the Decree originally set forth the remedy
for the Complaint’s “coordination” cause of action. Paragraph 88 mandates that “the service
testing process” used by the Defendants to assess the medical services provided to children in
state custody (including foster care) “shall include … an audit of EPSDT compliance with regard
to the children sampled” in that testing process. Consent Decree ¶ 88. Although Paragraphs 8993 are no longer enforceable,8 their provisions confirm that Plaintiffs’ Adoption Assistance Act
claims did not implicate individual rights that are enforceable under Section 1983.
Paragraph 89 required Defendants to “create an expert review process” to (1) evaluate the
State plan for providing EPSDT services to children in State custody “to ensure compliance with
EPSDT law” and (2) “to provide the required coordination of EPSDT with other non-medical
services.” The State was required to execute a contract with an appropriate “coordination”
expert within a given time frame. Consent Decree ¶ 89. Remedies detailing “audit” and
“compliance” and “coordination” processes – as essential as such things may be to
administration of a program – do not reflect claims of individual rights enforceable under Section
1983. Paragraph 90 also underscored the fact that the plaintiffs are suing for systemic reform of
a federal program rather than to enforce individual federal rights. It instructed experts hired by
the State to evaluate “proposed arrangements” and “policy alternatives” for providing EPSDT
services to children in DCS custody “in terms of their likelihood of producing, in a timely
8 It is the State’s view that Paragraphs 89 to 93 of the Decree were effectively vacated by the Court’s Order of August 14, 2002 (Doc. 291). Those paragraphs required the creation of an expert review process and the formulation of a “remedial plan.” The process was completed and the remedial plan was approved by the Court. See Doc. 57, 59. The Court subsequently rescinded those orders, see Doc. 291 at 3. However, to the extent Plaintiffs argue that the State still has substantive obligations under these paragraphs, they must be vacated now for the reasons stated in the text. Specifically, by imposing an expert-review process and calling for the formulation of a remedial plan, Paragraphs 89 to 93 seek to enforce systemic rather than individual rights and are therefore unenforceable under Section 1983.
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fashion, a system which can adequately meet children’s needs for medically necessary care.” Consent Decree ¶ 90.
The Decree also sets up a regime of “Systems Monitoring” to keep track of the courtordered reforms (Consent Decree ¶ 96), and even the prescribed mode of such monitoring reveals the aggregate focus of the rights claimed by Plaintiffs. The Decree dictates that “services testing” be performed on “a sample of plaintiff class members” in the custody of DCS that constitutes “a representative group of beneficiaries.” Consent Decree ¶ 99. “The evaluators shall report their initial findings in writing to both parties” to the Decree but “[s]uch findings shall not contain identifying information regarding any TennCare enrollee.” Consent Decree ¶ 92 (emphasis added). That is, the Decree’s terms expressly forbid any evaluation of whether the healthcare complaints of any individual child in DCS custody are being addressed by the Decree’s remedies, whether that child is a named plaintiff in this case or otherwise. This demonstrates that the Plaintiffs claim a right not to individual entitlements to EPSDT services or other medical care under the Adoption Act, but to systemic reform of the services regime that Tennessee has established for children in State custody. Indeed, as explained above, the Decree in this case expressly disavows any relief that would resolve the claims of the individual class representatives, and restricts itself to providing a “systemic remedy … limited to cases presenting class-wide civil rights violations under 42 U.S.C. § 1983 rather than adjudications of individual claims.” Consent Decree ¶ 110 (emphasis added).
In sum, the sections of the Adoption Act invoked by Plaintiffs in their Complaint and Consent Decree merely provide “Definitions” of state service programs eligible for federal financing and mandate state “coordination” of such services. These provisions, and the relief Plaintiffs have been given in the Consent Decree, address “the systemwide performance” of the
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State programs financed by the Adoption Act’s federal grants. Blessing, 520 U.S. at 343 (emphasis in original). “Because the[se] provision[s] focus[] on ‘the aggregate services provided by the State,’ rather than ‘the needs of any particular person,’ [they] confer[] no individual rights and thus [can]not be enforced by § 1983.” Gonzaga, 536 U.S. at 282 (quoting Blessing, 520 U.S. at 340). V. PLAINTIFFS MAY NOT SUE UNDER 42 U.S.C. § 1983 TO ENFORCE THE
MEDICAID AND ADOPTION ACT STATUTES BECAUSE THEY ARE THIRD PARTY BENEFICIARIES OF, RATHER THAN PARTIES TO, THOSE SPENDING CLAUSE CONTRACTS. The most salient fact about the Medicaid statute and the Adoption Act is that they were both enacted pursuant to congressional power under the Spending Clause of Article I of the Constitution. The Medicaid statute furnishes federal money to a State on the condition that the State submit to the Secretary of Health and Human Services a healthcare plan complying with Medicaid’s statutory requirements, including the provision of EPSDT services. 42 U.S.C. § 1396a(a)(43). The Adoption Act likewise provides federal funds to the States on the condition that the States comply with the statutory requirements set out in the Act. The Supreme Court has therefore recognized that “legislation enacted pursuant to the spending power is much in the nature of a contract.” Pennhurst at 17. As a result, programs like Medicaid and the Adoption Act are not only federal laws, but also federal-state contracts in which the parties (the States and the Federal Government) have undertaken to assist third party beneficiaries (the recipients of the spending program). The “contractual nature” of Spending Clause legislation “has implications for [the] construction of the scope of available remedies.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998). “Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it.” Blessing, 520 U.S. at 349 (Scalia, J.,
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concurring). This was the law in 1871 when Section 1983 was enacted as § 1 of the Civil Rights Act. See, e.g., 1 Francis Hilliard, THE LAW OF CONTRACTS 422 (1872) (“In general, the party with whom a contract is made is the proper plaintiff in a suit upon such contract, although the beneficial interest is in other persons.”); 1 William W. Story, A TREATISE ON THE LAW OF CONTRACTS 509 (M. Bigelow ed. 1874) (“tendency of the courts” is “that no stranger to the consideration can take advantage of a contract, though made for his benefit”); Christopher C. Langdell, A SUMMARY OF THE LAW OF CONTRACTS 79 (2d ed. 1880) (explaining that “a person for whose benefit a promise was made, if not related to the promise, could not sue upon the promise,” adding that this “proposition is so plain upon its face that it is difficult to make it plainer by argument”); id. (“A binding promise vests in the promise, and in him alone, a right to compel performance of the promise”); 2 Francis Wharton, A COMMENTARY ON THE LAW OF CONTRACTS 155 (1882) (“no one can sue on a contract to which he was not a party”).9 Therefore, the Congress that enacted Section 1983 would not have regarded Spending Clause legislation as conferring upon third-party beneficiaries the right to sue to enforce the promises made by the recipients of federal funds.
That contemporaneous understanding is an important factor in determining the scope of Section 1983. See City of Newport v. Fact Concerts Inc., 453 U.S. 247, 258 (1981) (“It is by now well settled that the tort liability created by Section 1983 cannot be understood in an historical vacuum.”). As the Supreme Court has explained, “one important assumption underlying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law principles, … and that they likely intended these common-law principles to
9 The law at the time recognized only narrow exceptions to this rule, such as where a third party was related to the promisee, or where the third party was owed a duty by the promisee as a result of performance amounting to consideration. See 2 Wharton, supra, at 162-63. Neither exception has any application here.
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obtain, absent specific provisions to the contrary.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 67 (1989) (quotation omitted); see also Kalina v. Fletcher, 522 U.S. 118, 123 (1997) (“Congress intended [Section 1983] to be construed in light of common-law principles that were well-settled at the time of its enactment.”).
Although it is now generally accepted that third-party beneficiaries have enforceable rights under a contract, see 13 Samuel Williston, A TREATISE ON THE LAW OF CONTRACTS § 37:12 at 103 (Richard A. Lord ed., 4th ed. 2000), that was not the case when Congress enacted Section 1983. It is the common law as it stood in 1871 – not today – that informs judicial construction of Section 1983. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Will, supra; Fact Concerts, supra; Carey v. Piphus, 435 U.S. 247 (1978); Pierson v. Ray, 386 U.S. 547 (1967); Blessing, 520 U.S. at 350 (Scalia, J., concurring). This approach – reaffirmed time and again by the Supreme Court – leads to the conclusion that Section 1983 “creates no right for beneficiaries of federal programs enacted pursuant to the Spending Power to sue” to enforce conditions on federal grants to states. Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 581 (E.D. Mich. 2001), rev’d on other grounds, 289 F.3 852, 858 (6th Cir. 2002). VI. THE CONSENT DECREE MUST BE VACATED IN ITS ENTIRETY.
As explained above, the provisions of the Medicaid Act and the Adoption Act invoked by the Plaintiffs, when reviewed against the teaching of the Sixth Circuit’s decision in Westside Mothers II, do not confer individual rights that are enforceable under Section 1983. These are the only statutory bases for the rights claimed in this case. Everything else in the Complaint and the Consent Decree is ancillary to those statutory provisions. As the Sixth Circuit explained when reviewing en banc a complex institutional reform injunction in the Sweeton case, once the “foundation upon which the claim for injunctive relief was built has crumbled,” there is no
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doctrine of federal law, whether statutory or judge-made, constitutional or merely prudential, that “requires that old injunctions remain in effect when the old law on which they were based has changed.” 27 F.3d at 1166-67. Therefore, the Consent Decree here must be vacated in toto.
CONCLUSION For the foregoing reasons, we respectfully submit that the Consent Decree should be modified as stated in the accompanying Motion to eliminate those provisions which depend on the enforcement of a federal right for which it is now clear there is no Section 1983 cause of action.

November 20, 2006 ROBE

Respectfully

submitted,

RT E. COOPER, JR. Attorney General

Linda Deputy Office P.O. Nashville, (615)

_s/ Linda A. Ross___________________ A. Ross TN BPR #4161 Attorney General of the Attorney General
Box 20207 TN 37202
741-1771

_s/ Charles J. Cooper________________ Charles J. Cooper Michael W. Kirk Nicole J. Moss COOPER & KIRK, PLLC 555 11 St., N.W., Suite 750 Washington, D.C. 20004 (202) 220-9600
_s/ Aubrey B. Harwell, Jr.______________ Aubrey B. Harwell, Jr.
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Ronald G. Harris Philip D. Irwin NEAL & HARWELL, PLC One Nashville Place, Suite 2000 150 4th Avenue North Nashville, TN 37219 (615) 244-1713
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CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document has been served on the following by electronic mail, on this 20th day of November, 2006:

Gordon Michele Tennessee 301 Nashville,

Bonnyman Johnson
Justice Center Charlotte Avenue
TN 37201

Counsel for Plaintiffs

_s/ Charles J. Cooper______________

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 Case: 09-6145 Document: 006110817783 Filed: 12/16/2010 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0381a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JOHN B., et al.,

X

Plaintiffs-Appellees,

-

-

v.

-,>

DAVE GOETZ, Commissioner, Tennessee

-

Department of Finance and Administration; DARIN GORDON, Deputy Commissioner,

-

Bureau of TennCare; VIOLA MILLER,

-

Commissioner, Tennessee Department of

-

Children’s Services,

-

Defendants-Appellants.

-

N

No. 09-6145

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00168—William J. Haynes, Jr., District Judge.

Argued: April 27, 2010

Decided and Filed: December 16, 2010

Before: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Michael W . Kirk, COOPER & KIRK, PLLC, W ashington, D.C., for Appellants. Andrew R. Dunlap, KIRKLAND & ELLIS LLP, New York, New York, for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Brian S. Koukoutchos, Derek L. Shaffer, COOPER & KIRK, PLLC,Washington, D.C., Robert E. Cooper, Jr., Linda A. Ross, OFFICE OF THE ATTORNEY GENERAL, STATE OF TENNESSEE, Nashville, Tennessee, for Appellants. Andrew R. Dunlap, Katherine L. McDaniel, KIRKLAND & ELLIS LLP, New York , New York, Michele M. Johnson, G. Gordon Bonnyman, Jr., TENNESSEE JUSTICE CENTER, Nashville, Tennessee, for Appellees.

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______________________
AMENDED OPINION ______________________ PER CURIAM.1 This appeal arises from the district court’s denial of defendants’ motion to vacate a consent decree entered in a 1998 class-action challenge to Tennessee’s managed care program, TennCare, under the Medicaid Act. Plaintiffs alleged that defendants, Tennessee officials charged with implementing TennCare, failed to provide early and periodic screening, di agnosis and treatment (EPSDT) services in violation of the Medicaid Act, and the parties’ c onsent decree im poses systemic remedies for these alleged violations. Defendants argue that the consent decree must be vacated under Federal Rule of Civil Procedure 60(b) because this court’s interve ning decisions render such system ic remedies unenforceable. Defendants al so request reassignment of the case. We decline to vacate the consent decree in its entirety, but we vacate a portion of the consent decree in light of intervening decisions, and we remand the case for reassignment and further proceedings.
I.
In 1998, plaintiffs filed this 42 U.S.C. § 1983 class-action suit “on behalf of the more than half million children throughout Tennessee who depend on TennCare for essential medical and mental health services.” The case was originally assigned to Judge John T. Nixon. Plaintiffs alleged tha t they were individually denied care and that TennCare is systemically deficient in providing EPSDT services, inform ation about those services, and adoption assistance. Plaintiffs’ claim s were prim arily based on Medicaid’s EPSDT provision, 42 U.S.C. § 1396a(a)(43), which states that
A state plan for medical assistance must . . . provide for
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including
1This opinion is styled Per Curiam because it was prepared in the cham bers of more than one judge.
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services described in section 1396d(a)(4)(B) of t his title, of the availability of early and periodic screening, diagnostic, and treatm ent services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through r eferral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary . . . [particular] inform ation relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year.
The parties negotiated a consent decree and tehdistrict court accepted that decree in May
of 2000. The consent decree requires defendants to provide screening, diagnosis, and
treatment services; specifies the scope of those services; requires coordinating EPSDT
and other services; and establishes m onitors for compliance. One consent decree
provision requires geographic com parability in the availability of services under
42 U.S.C. § 1396a(a)(30). Another provision states that, “[w]here a specific residential
placement is recom mended [for treatm ent], and there i s a wai ting period for such
placement, during the interim [a managed care organization] . . . may not simply place
the child on a wait listing for the specific residential placement .” The decree permits
“[e]ither party [to] seek modification . . . as permitted by existing law,” and specifically
states that
This consent decree is prem ised upon the assumption that the E PSDT requirements of 42 U.S.C. § 1396a (a)(43)and 1396d(r), and 42 U.S.C. §§ 671(a)(16) and 671(1) and (5) of the Adoption Assistance Act are enforceable in an action unde r 42 U.S.C. § 1983. Defendants do not waive any right to seek modification of this consent decree ifcontrolling preceden[t] establishes a lack of § 1983 enforceability as to any of these provisions.
In December of 2001, the district court determined that defendants were not in
compliance with the consent decree and EPSDT requirements, and appointed a special
master to assist the parties in addressing TennCare’s def iciencies. In August 2004,
plaintiffs moved for further relief. On October 22, 2004, the district court entered a
second order finding the defendants noncom pliant. That order was set aside on
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December 13, 2005. In February of 2006, afterthe defendants alleged that Judge Nixon had engaged in improper ex parte communications with the special master, Judge Nixon voluntarily recused himself and the case wasreassigned to Judge William J. Haynes, Jr. In March of 2006, Judge Haynes relieved the special m aster of his special master’s duties, but retained the special m aster as a technical advisor under the district court’s inherent authority and barred inquiry intothe special master’s ex parte communications with Judge Nixon. Defendants m oved the di strict court to reconsider this ruling, primarily arguing that the special m aster’s appointment as t echnical advisor was inappropriate given the allegations of improper ex parte communications and the court’s ruling that the defendants could not investigate these communications. Defendants also noted that relief beyond that granted in theconsent decree “could not be predicated, even in theory, upon any violations of underlying EPSDT law because recent jurisprudence from the Supreme Court makes clear that the Medicaid statute in this context does not confer a right that is privately enforceable by the beneficiaries.” To support this argument, defendants cited Gonzaga University v. Doe, 536 U.S. 273, 282 (2002), in which the Supreme Court held that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [§ 1983].” Therefore that statute is enforceable under § 1983 only if “Congressintended to confer individual rights upon a class of beneficiaries.” Id. at 285.
In a hearing on April 17, 2006, the district court denied defendants’ motion for reconsideration and stated that appointing theformer special master as technical advisor avoided “los[ing] the benefit of [his] extensive study and review of the matters.” The district court rejected defendants’Gonzaga-based argument because defendants had not analyzed Gonzaga in their filing and the Sixth Circuit had not applied Gonzaga to the Medicaid Act. The district court also noted that a motion under Federal Rule of Civil Procedure 60(b) was the appropriate m ethod for a Gonzaga-based challenge to the consent decree, but that defendants had failedto make a Rule 60(b) motion and that such a motion would be untim ely at that point, m ore than one year after Gonzaga was decided.

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In July of 2006, this court applied Gonzaga to decide a § 1983 challenge to
Michigan’s compliance with EPSDT provisions in Westside Mothers v. Olszewski, 454
F.3d 532 (6th Cir. 2006) ( Westside Mothers II ). In Westside Mothers II , plaintiffs
claimed that the state had violated the Medicaid Act by
(1) refusing to provide, and not requriing participating HMOs to provide, the comprehensive examinations required by 42 U.S.C. §§ 1396a(a)(43), 1396d(r)(1) and 42 C.F.R. § 441.57; (2) not requiring participating HMOs to provide t he necessary health care, diagnostic services, and treatment required by 42 U.S.C. § 1396d(r)(5); (3) not effectively informing plaintiffs of the existence of the scr eening and treatm ent services, as required by 42 U.S.C. § 1396a(a)(43); (4) failing to provide plaintiffs the transportation and scheduling help needed to take advantage of the s creening and treatm ent services, as required by 42 U.S.C. § 1396a(a)(43)(B) and 42 C.F.R. § 441.62; and (5) developing a Medicaid program that lacks the capacity to deliver to eligible children the care required by 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(30)(A), and 1396u-2(b)(5).
Id. at 536. We affirmed the district court’s conclusion that plaintiffs had failed to state
a claim upon which relief could be granted fordefendants’ “alleged failure . . . to ensure
the actual provision of, or arrangement for, medical services.” Id. at 539–41. Although
states must “provide for making medical assistance available,” 42 U.S.C. § 1396a(a)(10),
and “provide that . . . medical assistance . . . be furnished with reasonable promptness
to all eligible individuals,” 42 U.S.C. § 1396a(a)(8), we held that a state’s obligation is
only to pay for services actually rendered, noto ensure the reasonably prompt provision
of services, because the Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the [enum erated] services,” 42 U.S.C. § 1396d(a). 2 Id. at 540
(insertion in original). We also dismissed plaintiffs’ claim that would require the State
to ensure comparable service availability because the underlying provision, 42 U.S.C.
§ 1396a(a)(30), was not privately enforceable under § 1983. Id. at 541–43. However,
we also held that plaintiffs’ allegation that defendants “‘refused or failed to effectively

2The definition of “medical assistance” has changed since we decided Westside Mothers II, but the new definition does not affect this holding because a state may still fulfill its Medicaid obligations by paying for services.
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inform Plaintiffs and their caretakers of the existence of [EPSDT services]’” stated a claim for relief for violation of 42 U.S.C. § 1396a(a)(43). Id. at 543–44.
In November of 2006, five m onths after Westside Mothers I I was decided, defendants in this case moved to vacate the consent decree under Federal Rule of Civil Procedure 60(b). Eleven months later, the district court issued an opinion noting that it had addressed defendants’ arguments in its April 17, 2006, hearing and denied a motion on that basis, and that the def endants had not appealed that ruling. Further, the court stated that “the pendency of a dispositive motion does not stay discovery,” and
[i]f the Defendants had not been s o intransigent on discovery issues requiring extraordinary amounts of the Court’s time, there would have been a ruling on the m otion to vacate. The Court will continue its research on that motion, but the Court also has to give attention to other actions on this Court’s docket becauserulings in other actions have been delayed because of the extraordinary amount of time the Court has had to expend on the [electronic discovery] issues in this action.
In March of 2009, this court decidedBrown v. Tennessee Department of Finance & Administration, 561 F.3d 542 (6th Cir. 2009) . Brown concerned a § 1983 suit by mentally disabled plaintiffs who alleged that Tennessee had violated the Medicaid Act by failing to provide (1) m edical assistance adequate in amount, duration, and scope; (2) a choice between services; (3) reasonabyl prompt Medicaid application information; (4) reasonably prompt service; (5) due process in service denials. Id. at 543–44. In the parties’ settlement, Tennessee agreed to “overhaul its adm inistrative system, expand funding and programs for the mentally disabled, and develop programinfrastructure with the goal of increasing programenrollment and substantially reducing or eliminating the waiting list for waiver services.” Id. at 544. After Westside Mothers II, Tennessee moved to vacate the settlement under Rule 60(b)(5). In Brown, this court declined to vacate the entire agreem ent because the reco rd did not “conclusively show ” that the decree was primarily aimed at ensuring the provision of care and eliminating waiting lists, goals unenforceable after Westside Mothers II. Id. at 547. W e did, however, vacate provisions that obligated Tennessee to elim inate waiting lists and stated that, under Westside Mothers II, “absent more, a waiting list for waiver se rvices does not

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violate federal law because the state’s duty is to pay for services, not ensure they are provided.” Id. at 545. We also vacated Tennessee’s commitment to develop “provider network capacity” because that commitment “d[id] not appear to remedy any violation of federal law” after we held inWestside Mothers IIthat Medicaid’s comparable serviceavailability provision was not enforceable under § 1983. Id. at 548.
Three months after Brown, in May of 2009, defendants in this case moved in the district court to ascertain the status of their post-Westside Mothers II motion to vacate the consent decree. The district court referred the parties to the note in its October 9, 2007 opinion. Defendants then petitioned thiscourt for writ of mandamus ordering the district court to rule on the motion to vacate. On September 15, 2009, this court noted that “we cannot conclude mandamus should be denied based on the petitioners’ filings alone” and “ordered . . . the district court tostate in writing, within 60 days of the entry of this order, any reason that this petition should not be granted.”
Three days later, the distri ct court held that neither Westside Mothers II nor Brown required vacating or m odifying the consent decree. John B. v. Goetz , 661 F. Supp. 2d 871, 903 (M.D. Tenn. 2009). Thedistrict court noted that “Westside Mothers II expressly recognized an enforceable rightunder Section 1396a(a)(43)(A) for the State Defendants’ ineffective outreach services in failing to inform plaintiffs of m andated medical services under the Medicaid Act” and declined to vacate the consent decree’s information and outreach provisions. Id. at 890. The district court acknowledged our statement in Brown, that “absent more, a waiting list for waiver services does not violate federal law,” id. at 896 (quoti ng Brown, 561 F.3d at 545), but declined to vacate the consent decree’s requirements for the provision of EPSDT services in the present case because “Brown decided only the ‘waiting list’ and ‘provider network’ claim s in the context of the ‘m edical assistance’ and ‘reasonable prom ptness’ clauses in Section 1396a(a)(8)(A),” id. at 897. The district court concluded that the consent decree remained enforceable without modification because the statutory text, legislative history, and accompanying regulations indicatedcongressional intent to establish an enforceable right to EPSDT services and because “the provisions of the decree are not premised on

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a duty to provide network adequacy or to treminate waiting lists subsequently eliminated as discussed in Westside Mothers II and Brown.” Id. at 900–03. Defendants appeal this decision.
II.
Defendants’ argument for vacating theconsent decree proceeds along two lines. First, defendants focus upon an assertion that the Medicaid statute as a whole does not confer individually enforceable rights. The statute, they point out, uses grantconditioning language, not rights-creati ng language. And, they say, the EPSDT provisions implicated in the consent decree provide for system wide programmatic regulation of the state’s program. Defendants rely on the Fifth Circuit opinion inFrazar v. Gilbert, 300 F.3d 530, 544 (5th Cir. 2002), rev’d on other grounds sub nom. Frew v. Hawkins, 540 U.S. 431 (2004). Defendants also look to the content of the consent decree to argue that it addresses system ic concerns rather than provides a vehicle for enforcement of individual rights. Second,defendants examine individually the primary statutory provisions on which the consent decree and plaintiffs’ claims are based in an effort to show that none of them is privately enforceable.
Defendants’ first line of argument has considerable support in the language of the statute. But in Westside Mothers II our court implicitly rejected such a broad view by assuming that some provisions of the statute may indeed be privately enforced and by examining individual provisions of the statute to determine whether a private right of action exists under each portion. Most impor tantly, for purposes of this case, the panel in Westside Mothers II permitted plaintiffs’ claim for relief under 42 U.S.C. § 1396a(a)(43)(A), a provision im plicated in this case, to go forward. M oreover, in Brown, which presented a procedural posture identical to this case, we refused a request to vacate a consent decree in a suit brought by mentally disabled Tennessee residents under the Medicaid statute, in part because it was unclear from the record whether Westside Mothers II completely undermined the settlement. The court in Brown noted the absence of any record of settlement discussions or pre-settlement statements to the court and uncertainty about the basis and meaning of the decree. The panel adopted the

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approach of vacating portions of the consent decree that were based on provisions deemed unenforceable in Westside Mothers II. Brown, 561 F.3d at 547–48.
Here, it seems evident that the provisions of 42 U.S.C. § 1398a(a)(43) ar e an important basis for the decree. We thus have no indication that the decree as a whole is undermined to such an extent that it should beset aside in its entirety. Given the counsel of Brown and taking into account that this court im plicitly determined in Westside Mothers II that at least one of the requirem ents of § 1396a(a)(43)—that contained in § 1396a(a)(43)(A)—may be enforced through an a ction under 42 U.S.C. § 1983, we conclude that setting aside the decree in its entirety is unwarranted at this time.
We turn to an exam ination of specifi c portions of the statute in an effort to determine private enforceability. This is the teaching of Westside Mothers II and also the approach defendants undertake in their second line of argum ent. Although defendants argue that this analysis also requi res vacating the consent decree in its entirety, we disagree. Instead, we follow Brown’s narrow approach of vacating those provisions of the decree based on portions ofthe statute not privately enforceable under Westside Mothers II.3 Using this approach, and becauseWestside Mothers II holds that 42 U.S.C. § 1396a(a)(30) is not privaet ly enforceable under § 1983, 454 F.3d at 541–43, we vacate the consent decree’s requirement that defendants ensure that the availability of services is geographically com parable and any other pr ovisions based on § 1396a(a)(30). Beyond this one provision, thestatus of other provisions of the decree remains uncertain.
One open question is the extent to which Westside Mothers II’s holding that a state’s obligation under §§ 1396a(a)(8) and (10) is only to pay for medical assistance may be applicable to the provisionsof § 1396a(a)(43) not addressed inWestside Mothers

3We limit the scope of relief t o the remedies for underlying rights that have been rendered unenforceable by changes in controlling precedent. See Consent Decree ¶ 15. To the extent that defendants’ first argument for vacating the entire decere is based on an argument that the decree’s systemic remedies are not privately enforceable, this reasonni g does not correctly appreciate the distinction between rights and remedies. To determine whether a statute is enforceable under § 1983, courts examine “whether Congress intended to create a federal right,” Gonzaga, 536 U.S. at 283, not the scope of the relief sought or granted. In other words, remedies vindicating individual rights may be both systemic and nonsystemic; the form of relief says nothing about the nature of the right.
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II. The answer to this question could potentially impact the provisions of the consent decree that require ac tual provision of servi ce rather than sim ply payment. Another issue relates to whether Westside Mothers II ’s determination about waiting lists is applicable to the waiting list provision of § 1396a(a)(43)(C). FinallyW, estside Mothers II only addresses one part of § 1396a(a)(43) and leaves unresolved the private enforceability of the remaining part. While we could undertake an analysis of each of these issues, we believe that they are best left to the district court in the first instance, after an opportunity for supplemental briefing on remand.
Another distinct issue, as yet unm entioned, is the question of the private enforceability of the Adoption Assistance Act, 42 U.S.C. §§ 671(a)(16), 675(1), and 675(5). While we easily conclude that the statute, which requires the state to develop a “case plan” and a “case review system ” for each child, does not create enforceable rights, we cannot so easily ascertain the extnet to which the decree is based on provisions of the Adoption Assistance Act. This issue is also best resolved on remand where the district court can make an initial decision about whether any provisions of the consent decree must be set aside because the Adoption Assistance Act cannot be enforced under § 1983.4
III.
Defendants request that this case be reassigned to another judge. We grant the request.
A number of aspects of this case inform our decision. First, the appearance of justice is compromised. The district court’s view of the history of this litigation, as outlined in the order from which defendants appea l, reflects a fundam ental misunderstanding of the import of certain key events in the case. Although the issues raised by the motion to vacate the consent decree have nothing to do with defendants’ compliance or noncompliance with it, the district court thought it important to recount

4We recognize that ¶¶ 84-93 refer to children in custody but are uncertain whether any of the requirements of those paragraphs are based in part on t he Medicaid statute. See Consent Decree ¶ 11 (addressing overlapping coverage).
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its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncom pliance, and Judge Nixon’s Octobe r 2004 order finding noncompliance. It alsorelies on Judge Nixon’s comments regarding compliance in his February 2006 recusal order.Yet nowhere does the court mention that Judge Nixon subsequently set aside t he October 2004 order, that the parties jointly requested that the order be set aside, that the findings and conclusions of that order had been placed in jeopardy by the issues concerning ex parte communication by the court with the special master (communication that arguably formed a basis for the order), or that no r uling on plaintiffs’ 2004 m otion for further relief has ever been m ade. Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge Nixon’s comments about compliance in the recusal order were largely a restatement of his views expressed in the order that had been set aside. Instead, the district court’s order simply treats the findings of the Oc tober 2004 order as unquestioned fa ct. The district court also quotes at length fromthe report of the monitors it appointed. Although this report has never acquired any evidentiary status in the case, has never been found accurate, and has never been subjected to any adversarial process, and although defendants’ objections to it rem ain pending, the report too is treated as unquestioned fact. Even more seriously, the historicalrecitation regarding compliance is not included merely as background. The court uses it as a part of its analysis of why plaintiffs have privately enforceable claims under § 1396a(a)(43). For example, the court notes that “[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more than half of t he 500,000 plus class m embers have been effectively denied outreach services rendering their rights to EPSDT service worthless.”John B., 661 F. Supp.2d at 893 (M.D. Tenn. 2009). The opinion also contains a num ber of other inaccuracies relating to def endants’ perceived lack of cooperation w ith the court, including its references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to respond to the remedial plan prepared by the special master and attached by Judge Nixon to the October 2004 order.
Beyond the order from which defendants now appeal, the orders issued by the district court relating to discovery contain increasingly accusatory language directed at
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the defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of coopera tion during the discovery process and ma y involve imposition of sanctions, such orders should issue in an atm osphere where all parties are assured that the court has not formed preconceived opinions detrimental to either side. The district court’s skewed viewof the actual state of the record with regard to defendants’ noncompliance with the cons ent decree creates an appearance that its judgment could be flawed with respect to defendants’ compliance with discovery.
Second, the history of the case reveals an alarming lack of t imely progress toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006 motion to vacate the consent decree had been pending almost three years before a ruling. Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and discovery skirmishes have consumed the district court’s time. The overall picture is one of a case without direction or deadlines for resolution of primary issues. We are quite aware that defense counsel have pursued a strategy of contention that contributes substantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in rece nt years also been a product of the scope of discovery sought by plaintiffs and permitted by the district court. And responsibility for moving a case forward lies primarily with the presiding judicial officer, rather than the parties.
Third, we have found it necessary to intervene in the case to an unusual extent. In June 2008, we granted a partial writ omf andamus—an extraordinary remedy required to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate occurred only after another petition for writ of mandamus produced a directive to the district court to respond as to why the writ should not be granted. And in February of this year, we stayed all proceedings in the dsitrict court pending resolution of this appeal, following more discovery disputes and unproductive turmoil in the district court.
In reassigning this case, we are m indful that such reassignments are rare and should be made reluctantly. Solomon v. United States , 467 F.3d 928, 935 (6th Cir.

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2006). And we recognize the factors that govern whether such a request should be granted: “(1)whether the original judge would reasonably be expceted to have substantial difficulty in putting out of his or her mind previously expressed views or findings, (2) whether reassignm ent is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Id.
The first factor may well favor reassignment, given that the district court appears to have held its misconceptions about the record for som e time, but the second factor quite clearly supports reassignment. And the case m anagement difficulties we have previously noted mean that a reassignment could hardly result in waste and duplication that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste and move the case toward def initive resolution of the primary issues, as well as to enhance the appearance of fairness.
We are mindful that as appellate judge s, we cannot manage litigation as trial judges do. But despite our recognition of our role, there are occasions when we must intervene. The plaintiff class is certainlynot benefitting from the pace of this litigation. Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs, and fees and expenses of defense counsel. Public-interest concerns are present for all parties. This situation com bines serious management failures, fundam ental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the de fendants. Here, the unusual decision to reassign the case is justified.
We direct that the case be reassigned promptly to a judicial officer who can give it the attention it requires. We are aware of a vacancy in the district court. If the need to reassign the case within the district poses a hardship, the chief judge of the district court may ask the chief judge of our court to make an appropriate designation. Upon reassignment, the new judge should undertake to resolve the issue s identified by this opinion and also develop a schedule for dete rmining any further r elief to which the

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plaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about discovery priorities in order to meet the court’s deadlines. Going forward, resolution of key issues should govern progress in the case.
IV.
For the foregoing reasons, we vacate theportion of the consent decree based on 42 U.S.C. § 1396a(a)(30), and remand for reassignment and further proceedings.

Case 3:98-cv-00168 Document 1420 Filed 12/16/10 Page 14 of 15 PageID #: 24226

Case: 09-6145 Document: 006110817784 Filed: 12/16/2010 Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOHN B., et al., Plaintiffs - Appellees,

No. 09-6145

FILED
Dec 16, 2010
LEONARD GREEN, Clerk

v.

DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration; DARIN GORDON, Deputy Commissioner, Bureau of TennCare; VIOLA MILLER, Commissioner, Tennessee Department of Children’s Services,
Defendants - Appellants.

Before: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.

AMENDED JUDGMENT

On Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the decision of the district court is VACATED IN PART, and the case is REMANDED for reassignment and further proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk Case 3:98-cv-00168 Document 1420 Filed 12/16/10 Page 15 of 15 PageID #: 24227

 
 661 F.Supp.2d 871 (2009)
JOHN B., Carrie G., Joshua M., Megan A. and Erica A., by their next friend, L.A.; Dustin P., by his next friend, Linda C.; Bayli S. by her next friend, C.W.; James D. by his next friend, Susan H; Elsie H. by her next friend, Stacy Miller; Julian C. by his next friend, Shawn C;
Troy D. by his next friend, T.W.; Ray M. by his next friend, P.D.; Roscoe W. by his next friend, K.B.; Jacob R. by his next friend, Kim B.; Justin S. by his next friend, Diane P.; Estel W. by his next friend, E.D.; individually and on behalf of all others similarly situated,
Plaintiffs, v.
Dave GOETZ, Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Deputy Commissioner, Bureau of TennCare; and Viola Miller, Commissioner, Tennessee Department of Children's Services, Defendants.
No. 3:98-0168.
United States District Court, M.D. Tennessee, Nashville Division.
September 18, 2009.
Barry Leigh Weissman, Leanna Marie Anderson, Sonnenschein, Nath & Rosenthal, Los Angeles, CA, Elizabeth Banston Hutto, George Gordon Bonnyman, Jr., Michele M. Johnson, Patricia C. Gunn, Tennessee Justice Center, Inc., Nashville, TN, Everette L. Doffermyre, Kimberly Jean Johnson, Ralph I. Knowles, Jr., Doffermyre, Shields, Canfield, Knowles & Devine, Atlanta, GA, Gregory Todd Heyman, Jason Francis Choy, Junaid Khalil, Victoria Reznik, William S.W. Chang, Sarah Kao-Yen Tsou, Vanessa C. Singh, Kirkland & Ellis, New York, NY, Jeffrey S. Goldman, Mary B. Anderson, Robert Thomas Joseph, Sonnenschein, Nath & Rosenthal, Chicago, IL, Katherine 872 Evans, Sonnenschein, Nath & Rosenthal, San *872 Francisco, CA, Mark P. Johnson, Sonnenschein Nath & Rosenthal, Kansas City, MO, for Plaintiffs.
Brian Stuart Koukoutchos, Dean John Sauer, Michael Weitzner, Charles J. Cooper, Derek L. Shaffer, Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, Charles A. Miller, Covington & Burling, Washington, DC, Carolyn E. Reed, Linda A. Ross, Janet M. Kleinfelter, Tennessee Attorney General's Office, Ronald G. Harris, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN, for Defendants.
MEMORANDUM
WILLIAM J. HAYNES, JR., District Judge.
Plaintiffs, John B., and other minors through their next friends, filed this action on behalf of themselves and other similarly situated minors under 42 U.S.C. § 1983 asserting jurisdiction under 28 U.S.C. § 1331, the federal question jurisdiction statute, with its statutory counterpart, 28 U.S.C. § 1343(a)(3) and (4). Plaintiffs' action is on behalf of a class of more than 500,000 children who are entitled under federal law to medical services that include early and periodic screenings for their physical well being, including their dental and behavioral health needs. Federal law also requires any necessary follow-up medical services. Plaintiffs' class includes children who are in the state's custody through the state's juvenile court system and other children's programs provided by the State of Tennessee.
Plaintiffs seek to enforce their rights under Title VI of the Social Security Act, 42 U.S.C. §§ 620-629 and 670-679 and Title XIX of that Act, 42 U.S.C. § 1396 et seq. as well as remedies for violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In essence, Plaintiffs allege that the Defendants deprived them of their rights to early and periodic screenings, diagnosis and treatment (EPSDT) services and

related medical care for children under State's TennCare waiver program under the Medicaid Act. The children who are in the Defendants' legal custody are also entitled to such services under Title VI.
The Defendants are state officials who are in charge of the State programs for these services that are federally funded by Congress under Title VI of the Social Security Act, 42 U.S.C. §§ 620-629 and 670-679 and Title XIX of that Act. The medical services at issue are provided under the State's TennCare program, a waiver program approved by the Center for Medicare and Medicaid Services ("CMS"). The actual providers of these medical services are the Managed Care Contractors ("MCCs") or Managed Care Companies ("MCOs") that have contracts with the State detailing their responsibilities. Some MCCs provide only management services and some MCCs specialize in dental or behavioral health services.
Contemporaneous with the filing of the complaint, Plaintiffs requested class certification and the parties moved for entry of a Consent Decree to remedy Plaintiffs' claims. (Docket Entry No. 3). The Court certified the class and entered the Consent Decree (Docket Entry No. 12) that granted declaratory and injunctive relief on Plaintiffs EPSDT claims. In sum, the Consent Decree enjoined the Defendants, as state officials, from depriving Plaintiffs and members of their class of their rights to EPSDT services; set minimum percentages of screenings for different groups of children over a period of years for compliance with EPSDT laws; and required a detailed, multi-year remedial plan to ensure the Defendants' compliance with Consent Decree. Lengthy and complex proceedings followed, including several show cause and contempt hearings (Docket Entry Nos. 228, 270, 291, 873 465 and 558) as well *873 as extensive Memoranda (Docket Entry Nos. 227, 465,1028 and 1069).
Before the Court are the following motions: (1) Defendants' motion to vacate the Consent Decree and dismiss case (Docket Entry No. 738); (2) Plaintiffs' motion for sanctions (Docket Entry No. 1045); (3) Defendants' motion for protective order (Docket Entry No. 1048); (4) Plaintiffs motion to compel compliance with the Court's October 10, 2007 Order, 2007 WL 3012808, and for a finding of contempt (Docket Entry No. 1052); (5) Defendants' motion for protective order (Docket Entry No. 1055); (6) Plaintiffs' motion for sanctions (Docket Entry No. 1210); and (7) Plaintiffs motion to approve their proposed process for in camera review of the Defendants' documents for which a privilege is asserted (Docket Entry No. 1274).
This Memorandum addresses the Defendants' motion to vacate the Consent Decree in this action. Yet, however this motion is resolved, the Plaintiffs' motions for sanctions and contempt on the discovery issues will not be moot. Red Carpet Studios Division of Source Advantage Ltd. v. Sater, 465 F.3d 642, 645-47 (6th Cir.2006). The Defendants have been under an Order to produce to Plaintiffs' counsel electronic and other information, including from their MCCs, to assess compliance since the entry of the Consent Decree in 1998 (Docket Entry No. 12 at ¶¶ 91, 105), and those issues will be addressed in a separate Memorandum.
I. Defendants' Motion to Vacate
In this motion, the Defendants contend, in sum, that Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006) ("Westside Mothers II") and Brown v. Tennessee Dept. of Finance & Admin., 561 F.3d 542 (6th Cir.2009) are significant new legal developments that require vacating of the Consent Decree as provided in paragraph 15 of the Consent Decree. In Paragraph 15 of the Consent Decree, the Defendants did "not waive any right to seek modification of this consent decree if controlling precedence establishes lack of § 1983 enforceability as to" §§ 1396(a)(43) and 1396d(r) [(the "Medicaid EPSDT Provisions")] and §§ 671(a) (16) and 675(1) and (53) [(the "Specified AAA Provisions"[1])]. (Docket Entry No. 12, Consent Decree at ¶ 15). Defendants also cite Doe v. Briley, 562 F.3d 777 (6th Cir.2009) for the timeliness of their motion, In response, Plaintiffs assert that the Defendants' motion to vacate is untimely; that neither Westside Mothers II nor Brown represents a new legal development; and that as a matter of law, the Defendants can agree to assume obligations that federal law does not require.
For the reasons set forth below, the Court concludes that based upon express statements in Brown, Westside Mothers II represents a significant change in the law and thereby renders the Defendants' motion to vacate timely and appropriate. Yet, neither Westside Mothers II nor Brown requires vacating the Consent Decree. Westside Mothers II expressly recognizes Plaintiffs' claim under 42 U.S.C. § 1396a(a)(43) for effective denial of outreach

874 services to substantial numbers of class members that is the principal remedial *874 purpose of the Consent Decree. Westside Mothers II, also recognizes as a potential claim where, as here, substantial members of the Plaintiffs' claims are effectively denied any medical services mandated by 42 U.S.C. § 1396r that are required under the State waiver plan.
Applying Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) and Westside Mothers II, the Court further concludes, consistent with several circuits, that Congress expressly mandated the provision of specific medical services for eligible children under a State's waiver plan so as to create enforceable rights under 42 U.S.C. § 1983. These statutory mandates for specific medical services distinguish the Medicaid statutes for children from the general statutory standards for the community waiver programs in Brown that involved only reimbursement assistance and a waiting list for home and community based services for mentally disabled residents. The legislative history of the Medicaid Act also confirms Congress's clear intention to confer upon eligible children as entitlements, specific and basic medical services and benefits that are also mandated by this Consent Decree. The relevant legislative history also establishes that Congress did so with the express knowledge and expectation that the eligible children possess the private right of action under 42 U.S.C. § 1983 to enforce these Congressional mandates against State officials that operate waiver plans under the Medicaid Act. Thus, the Defendants' motion to vacate should be denied.
To decide this motion and to understand the related issues, the Court deems a brief discussion of the history of this litigation necessary. Under Westside Mothers II, the Court must consider the amenability of the issues in this action to a judicial remedy. 454 F.3d at 543. Under Brown, the Court must also consider the purposes of the consent decree. 561 F.3d at 546-47. Under Gonzaga, the key inquiry is Congressional intent. Westside Mothers II, 454 F.3d at 542.
A. History of this Litigation

1. Plaintiffs' Complaint

In their original complaint, Plaintiffs alleged that the Defendants were denying eligible children under the Title VI and Title XIX the medical and related services to which they were entitled under the State's waiver plan approved under 42 U.S.C. § 1315. Plaintiffs' specific claims were that:

28. About one-third of all persons residing in Tennessee who are under 21 years old are TennCare beneficiaries. According to the 1994 Current Population Survey, Tennessee's population under 21 years of age totaled 1,509,356. Of that number, approximately 500,000 are currently enrolled in TennCare, according to state figures.

29. The Tennessee Commission on Children and Youth (TCCY) reports that approximately 12,000 children were in state custody in the fiscal year 1997, an increase of nearly 500 children from 1996. Over ninety percent of these children are enrolled in TennCare, and hence are members of the State Custody Subclass.

* * *

32. Questions of fact common to the entire class or subclass include, whether:

a. Defendants fail to ensure that the families of children enrolled in Tenn-Care are adequately informed of their children's right to receive EPSDT services, or how they might obtain such services;

b. Defendants fail to provide, or require MCOs and BHOs to provide, appropriate screening and

875

diagnosis services for TennCare children, including, *875 but not limited to, medical, vision,

hearing, dental, mental health and developmental screening at appropriate intervals that meet

reasonable standards of medical practice;

c. Defendants fail to provide, or require MCOs and BHOs to provide, treatment to alleviate or treat conditions consistent with the broad definition of medically necessary care in the Medicaid Act;
d. Defendants fail or refuse to develop and implement a coordinated system of care that provides for the mental health and developmental needs of class members;
e. Defendants fail to provide an adequate array of mental health or developmental services, including residential and nonresidential treatment;
f. Defendants fail to provide or require MCOs and BHOs to provide nonresidential mental health or developmental services or to provide such services on a timely basis;
g. Defendants fail to identify the mental health and developmental needs of children by allowing unlawful limitations and restrictions on screening and diagnostic services;
h. Defendants fail to inform responsible parties of the right to EPSDT services when a child enters the foster care system and fails to provide information needed to access these services;
i. Defendants fail to provide foster children who have mental disabilities with timely placements and services appropriate to their particular needs;
j. Defendants fail to provide foster children with legally required health services necessary to prevent them from deteriorating physically and psychologically while in state custody;
k. Defendants fail to develop and implement on a timely basis individual care plans for short and long term treatment for children in its custody; and
1. Defendants fail to monitor individual case plans as they affect treatment and adjust them to meet the needs of the class members.
33. Questions of law common to the entire class or subclass include whether:
a. Defendants' acts and omissions deprive plaintiffs of EPSDT services in violation of the Medicaid Act, 42 U.S.C. § 1396a, 1396d(a) and (r) and regulations promulgated pursuant thereto.
b. Defendants' acts or omissions deprive members of the State Custody Subclass of services necessary to address children's health needs, in violation of the Adoption Assistance Act and the Due Process Clause of the Fourteenth Amendment to the Constitution.
* * *
35. Defendants have failed or refused to act on grounds generally applicable to the class, making declaratory and injunctive relief with respect to the class as a whole appropriate and necessary, as more fully set forth in Section V, infra. The nature of the violations complained of here is such that, absent broad systemic relief for all TennCare children, it is impossible to adequately protect the rights of any single plaintiff.
(Docket Entry No. 1 at 6-8).
2. The Consent Decree and Earlier Proceedings
With the filing of the complaint, the parties agreed to certification of the class of more than 500,000 children and to the entry of the Consent Decree. This decree recognized Plaintiffs' substantive rights created by the Medicaid Act to Early Periodic Screening Diagnosis and Treatment ("ESPDT") services and any necessary and specific 876 medical services. The Consent *876 Decree also imposed specific obligations upon the Defendants and their MCCs to provide these medical services and care to the class members and to provide information of their compliance to class counsel. (Docket Entry No. 12 at ¶¶ 91-97). The parties agreed that "present problems point

up the need to afford immediate protection to children who plaintiffs allege are not now receiving the care to which the law entitles them, and who are liable to suffer serious, irreparable harm if such care is not provided. They cannot be asked to wait for additional months or years to know if policies now under development by the defendants will some day adequately protect their rights." Id. at ¶ 33.
The pertinent substantive provisions of the Consent Decree are as follows:
52. The Defendants shall achieve complete screening of 100% of TennCare children in DCS custody within 18 months of the entry of this order, and shall maintain that level of screening thereafter. The tracking system developed by DCS shall be the system which shall be used to report compliance with this standard.
* * *
54. Defendants shall ensure that, within their respective spheres of responsibility, TennCare, the MCCs and DCS provide children all medically necessary EPSDT services as listed in 42 U.S.C. § 1396d(a) and as defined in corresponding Medical regulations. Services which are required under EPSDT law, when medically necessary, are as follows:
(a) Inpatient hospital services (other than services in an institution for mental diseases);
(b) Outpatient hospital services; rural health clinic services; and services offered by a federallyqualified health center;
(c) Other laboratory and x-ray services;
(d) EPSDT services, and family planning services and supplies;
(e) Physicians' services; medical and surgical services furnished by a dentist;
(f) Medical care, or any other type of remedial care recognized under state law, furnished by licensed practitioners within the scope of their practice as defined by state law;
(g) Home health care services; (h) Private duty nursing services; (i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(l) Prescribed drugs, dentures, and prosthetic devices; eyeglasses;
(m) Other diagnostic, screening, preventive, and rehabilitative services;
(n) Services in an intermediate care facility for the mentally retarded (other than in an institution for mental diseases);
(o) Impatient psychiatric services for individuals under age 21;
(p) Services furnished by a nurse-midwife;
(q) Hospice care;
(r) Case management services and TB-related services;
(s) Respiratory care services;
(t) Services furnished by a certified pediatric nurse practitioner or certified family nurse practitioner;

(u) Personal care services furnished to an individual who is not an inpatient or resident of a

877

hospital, nursing facility, intermediate care *877 facility for the mentally retarded, or institution for

mental disease; and

(v) Any other medical care, and any other type of remedial care recognized under state law, specified by the Secretary of the Untied States Department of Health and Human Services.

In addition to the services identified in the above list, the TennCare waiver allows the used of costeffective alternative services in certain situations. These cost-effective alternative services are identified as services which may or may not be included in the above list and which are medically appropriate and cost-effective when delivered in place of other services on the list which have been determined to be medically necessary for an individual enrollee. The parties recognize that there are many kinds of services which fit under the above list of covered services and that delivery of medically necessary services may involve different service delivery mechanisms.

Id. at ¶¶ 52, 54.

The Consent Decree also set a series of deadlines for the Defendants to accomplish the delivery of these medical services:

39. Within 180 days of entry of the decree, the State shall adopt any policies and procedures necessary to ensure TennCare rules and guidelines clearly describe and allocate responsibility for, and require compliance with each specific outreach and informing requirement under federal law

* * *

40. The Defendants or their contractors shall achieve within 240 days and shall maintain thereafter, EPSDT outreach efforts designed to reach all members of the plaintiff class with information and materials conform with Section V(B)(1)(a).

* * *

4.5. Within 120 days after this order is entered, a baseline percentage of screening compliance shall be determined. The defendants, in consultation with the plaintiffs, shall determine the percentage based on the best available data on recent screening levels.

* * *

53. Within 120 days of the entry of this order, the defendants shall establish and maintain a process for reviewing the practices and procedures of the MCOs and DCS, and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another, more sophisticated level of diagnosis as needed to determine the child's physical health, behavioral health and development needs, as to medically necessary services.

* * *

60. Within 120 days of this decree, TennCare shall develop a provider handbook to specify the responsibilities of MCOs and DCS related to the provision of medically necessary services for children in DCS custody. This handbook shall assist in delineating service duty responsibilities in the area where there is the most potential for overlap, and said provider book shall provide ... [and identifies a number of requirements.]

* * *

878

*878 62. Beginning no later than 180 days after the entry of this Order, the defendants shall

require MCOs to provide each primary care provider participating in the EPSDT program an up-to-

date list of specialists to whom referrals may be made for screens, laboratory tests, further

diagnostic services and corrective treatment, This list shall be supplemented quarterly to indicate additions or deletion and shall comply with the access/availability standards of the 1115 waiver.

* * *

65. Within 180 days of this order, the State shall issue any necessary policy clarifications so that the defendants and their contractors understand their duty to provide EPSDT diagnosis and treatment services consistent with 42 U.S.C. Section 1396(D), Subsection (r). Thereafter, the defendant shall inform, in a timely manner and on an ongoing basis, all of their contractors about what federal Medicaid law requires with respect to specific screens, diagnoses and treatments.

* * *

72. Within 30 days of the entry of this Order the defendants shall submit a notice of proposed rulemaking to withdraw state rules establishing lifetime dollar limits and absolute service limits on behavioral health services to children under 21.

73. Within 120 days of the entry of this Order, the state or the state's contractor shall monitor a sample of children entering DCS custody and assess the adequacy of services provided to them by TennCare contractors prior to their entry into custody. The review will include an assessment of the effectiveness of the services provided to the child prior to the custody arrangement being made.

* * *

82. Within 180 days, the defendant shall issue regulations and policy guidance to their contractors which incorporate strategies for ensuring coordination of EPSDT services among contractors and with other programs and services enumerated above.

* * *

88. Within 120 days, the service testing process currently performed by the Tennessee Commission on Children and Youth which assesses all services, (medical, and non medical) provided to children in DCS custody, shall include on an ongoing basis an audit of EPSDT compliance with regard to the children sampled. Such testing may be conducted by the State or a DCS contractor(s)

* * *

92.... [W]ithin 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained herein for children.

Id. at ¶¶ 39, 40, 45, 60, 62, 65, 72, 73, 82, 88 and 92 (emphasis added).

Other pertinent provisions of the 1998 Consent Decree require the establishment of criteria to measure the Defendants' compliance and to monitor the Defendants' MCCs' compliance.

46. A baseline periodic screening level will be calculated by the TennCare Bureau using HCFA 416

879

mathematical methodology and enrollment and *879 encounter data to determine the number of

periodic screens that should have occurred in the federal fiscal year ending September 30, 1996.

The CPT-4 and ICD-9CM codes specified in HEDIS 3.0 as well-child visits and adolescent well-

care visits will be the primary determinants of which encounters are counted as periodic screens.

The baseline periodic screening ratio for the period from October 1, 1995 through September 30,

1996 will be calculated using HCFA 416 methodology. This baseline periodic screening ratio will

be multiplied by 100 to calculate the baseline periodic screening percentage. Subsequent periodic

screening percentages will be calculated using methodology identical to that used in calculation of

the baseline periodic screening percentage.

* * *
50. For the period of October 1, 2000 through September 30, 2001, the [Adjusted Period Screening Percentage] APSP shall be no less than 80. The APSP for the federal fiscal year ending on September 30, 2001 will be calculated by TennCare and made available to the plaintiffs by April 30, 2002.
* * *
55. The defendants shall review MCO practices with regard to making decisions about medical necessity and identify any practices that are inconsistent with the federal laws cited herein. The defendants shall issue clarifications and ensure compliance with such federal law, regarding medically necessary treatment, including but not limited to, the following clarifications:
(a) The prior authorizations and medical determinations shall be made on a case-by-case basis for each service sought for a class member.
(b) That services are provided if necessary "to correct or ameliorate defects and physical and mental illnesses and conditions...." 42 U.S.C. § 1396d(r)(5).
(c) That the definition of medical necessity shall be applied so that services are covered if they correct, compensate for, improve, or prevent a condition from worsening, even if the condition cannot be prevented or cured.
(d) That medically necessary services shall be provided, whether or not the screener is under contract with the particular managed care entity.
(e) That defendants and their contractors and subcontractors are in compliance with HCFA Office of Managed Care Operational Policy Letter No. 96.045 (December 3, 1996), and do not have financial or contractual arrangements which undermine class members' access to covered services. (See Attachment 1).
Id. at ¶¶ 46, 50 and 55 (emphasis added).
3. The 2001 Findings of the Defendants' Non-Compliance
In several post-consent decree filings, the parties' counsel submitted several documents reflecting the Defendants' intention to file a "remedial plan." (Docket Entry Nos. 27, 31 and 38). The Defendants later filed a remedial plan, but after a period of time operating under that plan, the Defendants moved to stay and to modify the Consent Decree (Docket Entry No. 69) and the Plaintiffs moved for a finding of contempt (Docket Entry No. 880 79). After an evidentiary hearing, the Honorable John T. Nixon, the then presiding judge, *880 found the Defendants' remedial plan to be fatally defective in structure and performance. In his ruling filed on December 18, 2001 (Docket Entry No. 227), Judge Nixon made the following pertinent findings of fact and conclusions about the Defendants' remedial plan and their proposed revised remedial plan:
I. Findings of Fact
A. Defendants' Revised Remedial Plan0907 Findings of Fact
1. Pursuant to the Consent Decree, the parties were to submit a specific remedial plan addressing the coordination and delivery of services under EPSDT law for children in State custody or at risk of entering State custody. After extensive negotiations, the parties jointly submitted a Remedial Plan for Children in State Custody and the Plan for children at Serious Risk for Entering State

Custody (collectively, "Remedial Plan") on May 11, 2000. The Court approved the Remedial Plan on May 16, 2000, in two Agreed Orders. (Doc. Nos. 58, 60).

2. The May, 2000 Agreed Orders imposed on the Defendants several requirements designed to improve the care of children in, or at risk of entering, State custody. The children became a subclass that was to be carved out from the larger class implicated by the Consent Decree. The Remedial Plan had four basic components. First, Defendants were to develop a Best Practice Network (BPN) comprised of primary care providers and other health care resources. The BPN would coordinate the dissemination of medical and behavioral health services to children in the subclass.

* * *

6. Soon after the entry of the May 2000 Agreed Orders, the Remedial Plan proved to be unworkable. The State created the Implementation Team, which was headed by a capable pediatrician, Dr. Larry Faust. Dr. Faust began recruiting for the Best Practice Network in May, 2000, by contacting pediatricians all over the State via e-mail, telephone, and in person, and also spoke to Steering Panel members. The Steering Panel was appointed, and subcommittees were formed. The Steering Panel and the Executive Oversight Committee met frequently.

7. However, the State has not fully adhered to the Remedial Plan. First, the State was unable to recruit sufficient physicians for the BPN Hence, the Remedial Plan was never fully implemented.

8. The State has now proposed a revised Remedial Plan. Central to the State's proposed revisions is a "carve-out" for the delivery of health services to children in State custody. The plan contemplates that these children will be enrolled in a single MCO and BHO, rather than being distributed among all of the Tenn-Care contractors. As of July 1, 2001, the State has already reassigned all children in State custody to TennCare Select, to be administered by BlueCross.

9. The State believes that limiting the plan to only one MCO and one BHO will address many of

the problems that providers had with the original Remedial Plan. The Revised Remedial Plan also

allows advocates other than DCS to make referrals and requires the State to contract with an

881

advocacy group ... Although the revised Remedial Plan proposes other *881 changes, the forgoing

are the most salient proposals.

10. The Revised Remedial Plan was formally approved by both the Steering Panel and the Executive Oversight Committee, with only Plaintiffs' counsel and an advocate disapproving, The State has begun to move forward with its plans for the revised Remedial Plan ... The State opines that only this Court's Order is necessary for it to proceed with the Revisions.

Id. at 40-44 (emphasis added and footnotes omitted).

B. EPSDT Failures

Outreach
8.... [T]he evidence presented at trial demonstrates that some outreach activities are more effective than others. While State officials have opined that "[n]o strategy [has] necessarily been proven better than the other, they implicitly acknowledge that other states have effectively and creatively conducted outreach activities. The evidence submitted at trial proves that the State's strategy of mailing fliers and brochures to inform TennCare recipients of their EPSDT rights is inadequate. The State is aware that its outreach strategies are insufficient. In fact, at least one TennCare employee recognized that a statewide broadcast and media campaign was necessary in order to inform children and their parents of EPSDT ...
* * *

10. Most importantly, the trial record demonstrates that at least some TennCare members and their parents were unaware of what EPSDT represents, or even that it conferred certain benefits upon them...[.]

Screenings

11. Under the Consent Decree, the State must comply with the federal requirements for EPSDT screens. An adequate screen must contain all components required by EPSDT law. The State was to create a committee that would devise a plan and specific guidelines to ensure the effectiveness of the screens. Additionally, the Consent Decree specified a method for quantifying and measuring screening performance, and established goals over time for adjusted periodic screening percentage (APSP) rates.

12. Specifically, the State agreed to improve its APSP annually, and reach a goal of 80% by September, 2001. The Defendants proof submitted at trial indicated that the State has failed to meet its goals. The adjusted screening rate for 1999 was 19.8% and rose to 31.5% in 2000, far short of the baseline goals for those years, and the ultimate goal of 80% for 2001. Dental Screening rates also fell short of their targets.

13. The Consent Decree also required that 100% of Children in State custody were to receive full

EPSDT screening after September 1999. As of May, 2001, 91% of children in State custody had

received the appropriate screens. Although this figure is still short of the 1999 target, the 91% may

be inflated because it may not represent fully EPSDT compliant screens because the Department

882

of Children's Services (DCS) reports a child having been adequately *882 screened even if that

child has not received the seven components required by federal law....

* * *

[Conclusions of Law]

The Court agrees that the current Remedial Plan is unworkable, and that modification may, in theory be appropriate. However, the Court is not convinced that the revised Remedial Plan adequately addresses the main problem associated with the original Remedial Plan. Specifically, the managed care structure of Tenncare may create the problems encountered by and among the State, MCOs and BHOs and providers. The new remedial plan does nothing to assuage the providers' distrust of the MCOs. The Revised Remedial Plan also does not address the apparent disconnect between the Bureau of TennCare and the Implementation Team at the Department of Health. A new Remedial Plan that still operates under the very same managed care system may not adequately address the Court's concerns with the TennCare system as it relates to the under-21 population. The Defendants have not made a showing of how the revised Remedial Plan will ultimately succeed where the current Remedial Plan has failed.
The Court also does not find sufficient reasons for modifying any part of the Consent Decree at this time, for the reasons discussed in relation to the Agreed Orders. The Defendants have failed to show how the factual situation in this case mandates revision of the Consent Decree under the Rufo test.
Id. at 8, 10-14 (emphasis added and footnotes omitted).
In his accompanying Order, Judge Nixon reiterated the Defendants' lack of an effective plan and stated: "The Court finds that a special master is necessary to mediate, and ultimately to submit to the Court, an EPSDT compliant plan." (Docket Entry No. 228). The predicates for the appointment of a special master are reflected in his findings of the Defendants' deficiencies:

The record demonstrates that the Defendants have been, for the most part, well-intentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements. In fact, Defendant officials sometimes attempted to implement the very strategies that Plaintiffs' counsel advocated, but were constrained by the realities of State Government.

* * *

3. However, from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system. The record shows that the Defendants' efforts were indeed scuttled because "essential providers and tertiary pediatric care centers refused to contract with all of the managed care companies currently participating in the TennCare program." The record also confirms that the Defendants have faced a challenging task in melding Medicaid and managed care a 0907 challenge that is by no means unique to Tennessee. Nevertheless, the institutional difficulties faced by the Defendants do not excuse their failures to follow the law. Defendants have not shown why their failure to fully comply with the 1998 Consent Decree or federal law should be excused, and thus have neither proven compliance nor any excuse for failure to comply with the federal EPSDT provisions.

* * *

883

5. Pursuant to the Consent Decree, Defendants have a responsibility to *883 achieve and

maintain outreach efforts designed to reach all members of the Plaintiff class with information and

materials in conformance with federal law... The record reflects the fact that the Defendants mostly

delegated the responsibility to conduct outreach to MCOs and BHOs, who have not successfully

implemented the outreach requirements contained in the Consent Decree. However, the

Defendants are ultimately responsible for conducting proper outreach. If the Defendants choose to

delegate this responsibility, they must do so with the understanding that they will remain ultimately

responsible for the failure of any delegatee.

* * *

TennCare employees appear to hold a laissez faire attitude toward the EPSDT outreach procedures of their contractors, preferring to allow the contractors to creatively reach out to their patient populations. That approach has not yielded effective outreach. Creative government is only effective when that creativity spurs positive change. The MCOs' outreach efforts have been insufficient, and the State has failed to engage in adequate oversight to ensure adequate outreach. As the Seventh Circuit Court of Appeals recognized twenty-seven years ago, "EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose [of EPSDT]." Stanton v. Bond, 504 F.2d 1246 (7th Cir.1974) Indeed, without proper outreach, EPSDT is worthless.

* * *

It is clear from the record that not only have Defendants failed to comply with the Department of Health and Human Services' regulations, but Defendants have simply failed to meet the bare requirements of the EPSDT laws. Defendants indicate that low screening rates in this region are partly attributable to both an ill-informed physician corps and a patient population that is not as willing to see a doctor for well-child care. However, Governments' job is to inform both the provider and consumer communities of the federal screening requirements. In fact, federal law requires that the State engage in outreach to inform the patients of EPSDT. The Court agreed that Tennessee may have a "harder road to hoe" than some other states, but that does not mean that the entrenched attitudes of providers and patients can be used as a shield against liability for failure to implement EPSDT requirements. Defendants concede that they "have not and will not meet the EPSDT percentages required by the Consent Decree." The Court agrees.

(Docket Entry No. 227 at 6, 7, 8, 28, 30 (emphasis added)).

Judge Nixon cited as a causal factor for the Defendants' noncompliance, the Defendants' wholesale delegation of matters to the MCCs. Judge Nixon found that "most of what TennCare does has to happen through its contracts with the MCOs and BHOs." Id. at p. 25.

Coordination between various private health agencies is still inadequate. The lack of coordination among various non-governmental agencies is directly attributable to the very system under which public health is administered. Tennessee State government has failed to properly coordinate and implement proper case management and coordination services.

Id. at 22.

884 In 2001, the Defendants relied on their contractors as witnesses to justify their *884 request for modification.[2] Judge Nixon made specific findings and conclusions about the deficient performance of the MCCs or MCOs and BHOs:

15. Defendants have made progress in achieving the target screening rates by contractually requiring their contractors to meet certain EPSDT screening goals. The most recent contracts show that an MCO that has not reached an 80% adjusted screening ratio is now required to contract with the county health department to perform EPSDT screenings....

* * *

17. As discussed above in relation to outreach and screening, systemic deficiencies have also made compliance with the Consent Decree's diagnosis provisions difficult. First, where there are overlapping medical and mental health issues, the MCOs and BHOs quibble over which entity is responsible for providing coverage. The State's TennCare contracts contribute to this ambiguity by sometimes failing to specify the responsible party, even though the BHOs do have coordination agreements with MCOs. In practice, individuals with overlapping issues sometimes "fall in the cracks" and fail to receive services from either a BHO or MCO, as with, for example, attention deficit disorder patients.

18. Additionally, the MCO and BHO contractors often refuse to authorize health assessments. Larry Faust of the Department of Health testified that even when MCOs and BHOs authorized services, they sometimes refused to pay the provider once the service was rendered.

19. Even worse, the State's managed care system often provides incentives for financiallymotivated denials of coverage by both MCOs and BHOs. TennCare's contractors essentially gamble that they will be able to provide services to TennCare enrollees and still be able to make a profit. Tennessee pays the MCOs and BHOs a set amount of money for all of the services that an individual requires. Hence, the contractors have an incentive to cut costs by denying coverage.

20. Further, as discussed above, MCOs and BHOs often lack adequate provider networks, creating a barrier to adequate diagnostic evaluations...[.]

* * *

22.... [T]he record demonstrates that even where the TennCare Bureau agrees that the denied

services is medically necessary, the State routinely grants the BHOs and MCOs a `good cause'

extension of time in which to provide services that the TennCare Solutions Unit has deemed

medically necessary. The trial record is that children often wait for extended periods of time to

receive medically necessary services... The record reflects similar situations involving medically

885

necessary services that, for various reasons, were either delayed *885 or never provided to the

patient.

23. On the behavioral/mental health side, the BHOs sometimes fail to connect children to an appropriate diagnostic resource capable of performing the required behavioral health assessment. As with MCOs, there is an inadequate provider network for psychologists, psychiatrists and other

behavioral health professionals. The record also demonstrates that State policy makers are wellaware of the limited BHO provider network.

24. The record reveals that a number of the providers within the limited BHO provider network are not taking new patients, thus rendering those providers unavailable to new TennCare patients.

25. Additionally, there is only one BHO in Tennessee TennCare does not adequately assure that the BHO corrects deficiencies in the BHO's provider network....

26. Thus, children frequently do not receive appropriate diagnoses through the TennCare managed care system. Defendants admit that "sometimes the system breaks down," and the Court finds that in this case, the State Government's healthcare system has indeed broken down. However, the system itself is to blame for TennCare's failures. A depleted provider network and lack of proper oversight by MCOs and BHOs is directly attributable to the TennCare managed care system, which has proven to be unable to fully comply with both the EPSDT and the Consent Decree's requirements for proper diagnosis of children under 21.

* * *

[Conclusions of Law]

TennCare does not allow individuals to receive adequate diagnosis and treatment through various providers. The incentives created by capitated payments to the MCOs and BHOs result in a failure of the State system to assure that each State resident under the age of 21 receives the care that EPSDT mandates. As the Court has previously noted, there are "pecuniary incentives that MCOs [and BHOs] have for denying, suspending, or terminating care under the TennCare system...." Daniels v. Wadley, 926 F.Supp. 1305, 1308 (M.D.Tenn.1996)....

* * *

The proof shows that the State has failed to adequately ensure the coordination of EPSDT services among the various governmental, private and non-profit providers of services. The TennCare program, although well-intentioned, is disjointed....Although the State has established an office that is essentially dedicated to ensuring EPSDT compliance, that office is powerless to address the Court's greatest concerns with the TennCare program because the office does not have the mandate to directly control the actions of the MCOs or the BHOs. Adding another sailor to a sinking ship will not prevent it from sinking. In the same way, adding yet another layer of bureaucracy to an ineffective TennCare system will not succeed in reforming it.

In many instances children lack a case manager This Court ... finds that failure to provide

adequate case management services in this case constitutes a violation of federal law. Without

effective case management, the individual child lacks an effective coordination of various services

886

that he or she *886 needs to ensure that EPSDT services are rendered.

Id. at 15-20, 32-33 (emphasis added). Judge Nixon, however, reserved a finding of contempt, "because the Court bases this decision on failure to comply with federal law, the Court will hold in abeyance a decision on whether Defendants' actions thus far constitute civil contempt ... The record indicates that the State made great efforts to comply with the Court's Orders. However, the Court reserves the right to find the Defendants in contempt in the future." Id. at 35.

The Court then directed "[t]he parties [to] attempt to work to reach a consensus on a workable plan. If, and only if, the special master determines that the parties are unable to agree on a plan, the parties shall submit plans to special master for his consideration." (Docket Entry No. 275 at 2). In an August 14, 2002 Order, the Court required the Defendants to prepare an "Itemized Assessment Protocol" ("TAP") as well as an "Initial Work Plan" ("IWP"), under the Special Master's supervision. (Docket Entry No. 291 at 3-4). In a subsequent Order, the Court ordered the Defendants to submit an "Initial Work Plan" ("IWP") to the Special Master and later granted the

Defendants an extension "that defendants shall submit their initial work plan by December 13, 2002." (Docket Entry No. 303). As discussed below, the Defendants did not prepare the IWP nor the IAP.
4. The 2004 Findings of the Defendants' Non-Compliance

On June 16, 2004, Plaintiffs filed another motion to show cause (Docket Entry No. 403) asserting the Defendants' continuing violations of the Consent Decree. After discovery, the Court held an evidentiary hearing and thereafter entered its Memorandum on October 22, 2004. Citing testimony of two key state policymakers, Judge Nixon found that the Defendants were again not in compliance with the Consent Decree and significantly, that the Defendants lacked a reliable system to measure their progress.

On June 23, 2004, Plaintiffs deposed Dave Goetz, Tennessee Commissioner of Finance and Administration, and on June 24, 2004, Plaintiffs took the deposition of Manny Martins, Deputy Commissioner of Finance and Administration for TennCare. (Docket Entry No. 420). Both deponents attested to sincerity, good intentions, and hard work of those State employees who have labored since 2001 to comply with EPSDT. Mr. Martins testified that the State is making inroads in the area of outreach. "From 1999 to 2003 we had a 175 percent increase, I believe, in our screening rates from, as an example, 19.8 percent to 53 percent. We've had a 60 percent increase in our dental screening rates, 55, 56 adjusted0907the raw is 36 to 62 for 2002, raw 54, adjusted 41.9." [Quoting the Martins Deposition at 57]. Mr. Martins also reported that TennCare has staffed 22 dental clinics and has contracted with the Department of Health for dental outreach, dental operatory, and mobile operatory. Mr. Martins has stated that by the way of a new contract with the Department of Health for $7 million, effective July 1, 2004, every single TennCare enrollee child would be contacted by their local health department from newly set-up call centers....

Mr. Goetz also made statements in his deposition which conveyed progress. With respect to

screening results, Mr. Goetz noted "dramatic improvements" over the last couple of years and

stated, "efforts to work through the county health officials have borne fruit, and that's also what we

887

were funding, continuing outreach in the budget that was just passed into law" [Quoting the Goetz

*887 Deposition at 41]. Nonetheless, while some progress has been made since the Court's

approval of the Consent Decree in 1998, testimony from Mr. Martins and Mr. Goetz, along with

reports made to the Court by the Special Master, make clear that not enough progress has not

been made. The Court is not convinced that Defendants, acting on their own, will reach full

compliance with the terms of the consent decree within a reasonable period of time. As the well-

being of 550,00 children is at stake, something more must be done to ensure that the state's

EPSDT requirements are met in accordance with the terms of the Consent Decree.

As recently as August 2004, the Special Master concluded in his status report to the Court that no feasible plan yet exists to achieve compliance for an indispensable section of the Consent Decree. The Special Master reported that the State has failed to honor its renewed commitment to produce an IAP satisfactory to the Special Master, last made in September 2004, and still refuses to engage its key officials in planning efforts to achieve compliance, verification of the quality of its data, and evaluation of the successes or failures in attaining compliance.

The Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network adequacy, case management, outreach, the effective use of information systems, and system level coordination, to name a few. The Special Master's status report informs the Court that because Defendants have never created a list of precise "outcomes" towards which their efforts are focused, not only have they failed to meet the terms of the Consent Degree, but they are not even in a position to be able to assess their own shortcomings for the purpose of making improvements.

The Court finds that the deposition testimony of Mr. Goetz and Mr. Martins conclusively support this Court's finding that, to date, the State has not achieved compliance with the terms of the

Consent Decree. Mr. Martins, the senior state official with direct responsibility for EPSDT compliance, testified, "I'm not sure that compliance with the consent decree is achievable." Martin's Dep. 29. He testified that the 100 percent screening requirement for children in state custody mandated by the Consent Decree "should be achievable" and that the Consent Decree's stated dental screening rate "can be achievable over a period of time." Martins Dep. at 33. When asked about barriers to compliance that he saw, Mr. Martins replied, "There are numerous external barriers that are out there. Some of them involve coordination with other departments, some of them involve the inability to have good data in terms of being able to have information on the system-on the child and following that child through the system." Martins Dep. 35. Mr. Martins also discussed the socio-economic barriers to achieving compliance with the consent decree and "barriers in understanding" on part of families of TennCare enrolled children who sometimes do not seek services for their children when they are healthy, in spite of the importance of preventative EPSDT measures to the continuing health of their children. Martins Dep. 35-36. Finally, Mr. Martins stated, "I think we have barriers from the standpoint of not totally understanding all the gaps that we have in our delivery systems." Martins Dep. at 36.

888

*888 Specifically, with respect to the screening requirements in the Consent Decree, Mr. Martins

testified that the State is not meeting the 80 percent standard in the Consent Decree. Mr. Martins

testified that while he would like to review the numbers, the last figures he had seen indicated that

the state is not meeting the 100 percent screening requirements under the Consent Decree for

children who are in State custody. Further, Mr. Martins stated that with respect to dental screening

and dental service, the State is not in compliance with the Consent Decree. Other areas of

particular concern testified to by Mr. Martins include the current inadequacy of behavioral health

networks, and the State's failure to meet the Consent Decree's required provision of EPSDT

services to the children in DCS custody. Martins Dep. 187 ...

* * *

This is not a finding that the State has acted in bad faith or has intentionally failed to comply with the Consent Decree. To the contrary, the Court acknowledges, as set forth above, that the state has made some progress toward compliance in some areas. However, these efforts have not produced the results mandated by the Consent decree some six years ago. The Court s compelled to grant further relief to the Plaintiffs, 550,000 TennCare enrolled children, to ensure that their EPSDT needs are met as quickly as possible....

... [A] motion for relief looks to the future, rather than the past. In looking to the future, the Court has instructed the Special Master and his experts to create a comprehensive plan to put the State in compliance with the terms of the Consent Decree. The plan is attached to this Order.... This plan is not a modification of the terms of the consent decree.

(Docket Entry No. 465 at 4-8) (emphasis added). The Court then set a deadline for objections and authorized depositions and proposed modifications of the plan that was attached to its Memorandum. Id. at 8. The Defendants did not comply with this Order nor the express provisions of the Consent Decree to develop and file a remedial plan.

B. Conclusions of Law

1. Rule 60(b)(5) Requirements

In Paragraph 15 of the Consent Decree, the Defendants did "not waive any right to seek modification of this consent decree if controlling precedence establishes lack of § 1983 enforceability as to" §§ 1396(a)(43) and 1396d(r) [(the "Medicaid EPSDT Provisions")] and §§ 671(a)(16) and 675(1) and (53) [(the "Specified AAA Provisions"[3])]. (Docket Entry No. 12, Consent Decree at ¶ 15). As described earlier, Defendants insist that Westside Mothers II decided in 2006 and Brown decided in 2008 require that the Consent Decree be vacated

and this action be dismissed. As an alternate argument, Defendants assert that the Consent Decree should be modified to vacate the portions which depend on the enforcement of a federal right that these Sixth Circuit decisions reject.
889 *889 The threshold issue raised by the Plaintiffs, is whether the Defendants have satisfied the timeliness requirement of Rule 60(b) (5) and the additional requirement that Westside Mothers II and Brown qualify as a significant changes in the law entitling the Defendants to the relief sought. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Fed.R.Civ.P. 60(b)(5), Plaintiffs insist that the defendants have failed on both requirements. The Defendants respond Westside Mothers II, a 2006 decision, overruled Westside Mothers I a 2002 Sixth Circuit decision, and thus, is a significant change in the law, rendering their motion to vacate timely and appropriate.
An examination of Westside Mothers II and Brown reflects that those decisions and the decisions that Westside Mothers II and Brown relied upon, arose from the Supreme Court's 2002 Gonzaga decision that was decided on June 20, 2002. Westside Mothers I was decided on May 15, 2002. Upon remand of Westside Mothers I, and after the Sixth Circuit issued its amended mandate on November 29, 2004, the Michigan defendants filed a motion to dismiss in that action asserting ESPDT claims, contending that Gonzaga required dismissal of that action. Westside Mothers v. Olszewski, 368 F.Supp.2d 740, 742 (E.D.Mich.2005). Thus, in 2004, other similarly situated defense counsel recognized that Gonzaga raised the issue of whether claims under ESPDT statute and Section 1396a(a)(43) are enforceable. Id. These Defendants did not raise any Gonzaga issue until 2006. (Docket Entry No. 609). From June 2004 until November 2006, the Defendants actively and zealously litigated this action, including pursuit of unnecessary discovery on collateral issues as Judge Nixon found in his recusal Order. (Docket Entry No. 584). The Defendants did not file their motion to vacate until November 20, 2006, (Docket Entry No. 778), after Plaintiffs filed their motion to compel discovery (Docket Entry No. 708) to challenge the defense counsel Charles Cooper's statement at the February 10, 2006 conference that the Defendants were in compliance with the Consent Decree[4].
In these circumstances, the Court would ordinarily conclude that the Defendants' motion is untimely. Yet, in Brown, the Sixth Circuit stated that Westside Mothers [II] represents an "important change in law," 561 F.3d at 546, and acknowledged "the significance of this change in law". Id. This Court is bound by those statements in Brown that preclude a finding of untimeliness and require a finding that Westside Mothers II is a significant change in the law. For these reasons, the Court considers the merits of the Defendants' motion to vacate.

2. Westside Mothers II

In Westside Mothers II, the plaintiffs asserted the following statutory claims that the Sixth Circuit rejected in part and permitted in part:

the defendants had refused or failed to implement the Medicaid Act, its enabling regulations, and

its policy requirements by: (1) refusing to provide, and not requiring participating HMOs to provide,

the comprehensive examinations required by 42 U.S.C. §§ 1396a(a)(43), 1396d(r)(l) and 42

C.F.R. § 441.57; (2) not requiring participating HMOs to provide the necessary health care,

diagnostic services, and treatment required by 42 U.S.C. § 1396d(r)(5); (3) not effectively

890

informing plaintiffs of the existence of *890 the screening and treatment services, as required by

42 U.S.C. § 1396a(a)(43); (4) failing to provide plaintiffs the transportation and scheduling help

needed to take advantage of the screening and treatment services, as required by 42 U.S.C. §

1396a(a)(43)(B) and 42 C.F.R. § 441.62; and (5) developing a Medicaid program that lacks the

capacity to deliver to eligible children the care required by 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(30)

(A), and 1396u-2(b)(5).

454 F.3d at 536 (emphasis added).

The Court then analyzed each statutory claims and concluded as to claims under Section 1396a(a)(8), (10) and (30).

After examining the text and the structure of the statute, we do not believe §§ 1396a(a)(8), 1396a (a)(10) require the State to provide medical services directly. The most reasonable interpretation of § 1396a(a)(8) is that all eligible individuals should have the opportunity to apply for medical assistance, i.e., financial assistance, and that such medical assistance, i.e., financial assistance, shall be provided to the individual with reasonable promptness. The most reasonable interpretation of § 1396a(a)(10) is that medical assistance, i.e., financial assistance, must be provided for at least the care and services listed in paragraphs (1) through (5), (17) and (21) of § 1396d(a). See Clark v. Richman, 339 F.Supp.2d 631, 641 (M.D.Pa.2004). The regulations that implement these provisions also indicate that what is required is a prompt determination of eligibility and a prompt payment to eligible individuals to enable them to obtain the necessary medical services. See 42 C.F.R. §§ 435.911, 435.930.

* * *

After examining the text and structure of § 1396a(a)(30), we agree with the First and Ninth Circuits that § 1396a(a)(30) fails the first prong of the Blessing test and does not therefore provide Medicaid recipients or providers with a right enforceable under § 1983. First, § 1396a(a)(30) has an aggregate focus rather than an individual focus that would evince congressional intent to confer an individually enforceable right.

* * *

Furthermore, § 1396a(a)(30) is not confined to particular services; rather, it speaks generally of "methods and procedures." See § 1396a(a)(30)(A). Such broad language suggests that § 1396a (a)(30) is "concerned with overall methodology rather than conferring individually enforceable rights on individual Medicaid recipients." Sanchez, 416 F.3d at 1059-60.

Because the text of § 1396a(a)(30) does not focus on individual entitlements, nor is the "broad and nonspecific" language of this provision amendable to judicial remedy, we are not persuaded that Congress has, with a clear voice, intended to create an individual right that either Medicaid recipients or providers would be able to enforce under § 1983. Without such unambiguous intent, plaintiffs cannot satisfy the first requirement of the Blessing test. We therefore hold that § 1396a (a)(30) does not confer enforceable rights and affirm the district court's dismissal of plaintiffs' § 1396a(a)(30) claim.

Id. at 540, 543.

Yet, Westside Mothers II expressly recognized an enforceable right under Section 1396a(a)(43)(A) for the State Defendants' ineffective outreach services in failing to inform plaintiffs of mandated medical services under the Medicaid Act and reasoned as follows:

The complaint, read in the light most favorable to the plaintiffs, supports a § 1983 claim for

891

violations of *891 § 1396a(a)(43)(A). In order to establish a § 1983 claim, plaintiffs complaint must

allege that (1) the conduct in controversy was committed by a person acting under color of law,

and (2) the conduct deprived the plaintiff of a federal right, either constitutional or statutory. Lugar

v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The amended

complaint alleges that defendants "refused or failed to effectively inform Plaintiffs and their

caretakers of the existence of the Medical Assistance children's healthcare program, the

availability of specific child healthcare services, and related assistance." (J.A. at 205.) (Emphasis

added.) In concluding that plaintiffs' allegation that defendants failed to "effectively inform" them of

the EPSDT services does not state a viable § 1983 claim, the district court ignored the Medicaid

Act's implementing regulations, which obligate participating States to "effectively" inform all eligible

individuals. See 42 C.F.R. § 441.56(a). Plaintiffs have stated a cognizable claim under § 1983 for

violations of § 1396a(a)(43)(A) and should proceed to discovery for further development of the

facts.

Id. at 543-44 (emphasis added).

Here, the Consent Decree expressly requires the Defendants to provide outreach services to ensure that children and their parents receive information on the availability of mandated medical services under the Medicaid statutes and the State's waiver plan.

39. Within 180 days of entry of this decree, the state shall adopt any policies and procedures necessary to ensure that TennCare rules and guidelines clearly describe and allocate responsibility for, and require compliance with, each specific outreach and informing requirement under federal law, including, but not limited to, the following:

(a) "aggressively and effectively" informing enrollees of the existence of the EPSDT program, including the availability of specific EPSDT screening and treatment services (e.g., lead blood assessment, anticipatory guidance, immunizations, case management);

(b) "effectively informing; individuals [and others, set forth in (e) below], in a timely manner, generally within 60 days" of the TennCare MCO's receipt of notification of the child's enrollment in its plan and "if no one eligible in the family has utilized EPSDT services, annually thereafter ..." State Medicaid Manual § 5121(C);

(c) use of clear and non-technical terms to provide a combination of written and oral information so that the program is clearly and easily understandable, see id.;

(d) use of effective methods (developed through collaboration with agencies who have established procedures for working with such individuals) to inform individuals who are illiterate, blind, deaf, or cannot understand English, about the availability of EPSDT services; see 42 C.F.R.544L56(a)(3);

(e) designing and conducting outreach to inform all eligible individuals and their biological or foster parents about what services are available under EPSDT, the benefits of preventative health care, where the services are available, and how to obtain them; and that necessary transportation and scheduling assistance is available; for children in institutions, this should include the administrator of the institution; see State Medicaid Manual § 5121(B), (C);

(f) creation of a system so that families can readily access an accurate list of names and phone

892

numbers of contract *892 providers who are currently accepting TennCare; see 42 C.F.R. §

441.61;

(g) offering both transportation and scheduling assistance prior to the due date of a child's periodic examination: see 42 C.F.R. § 441.56(a)(iv) and State Medicaid Manual § 5121(b);

(h) providing recipients assistance in scheduling appointments and obtaining transportation prior to the date of each periodic examination as requested and necessary: id.;

(i) documenting services declined by a parent or guardian or mature competent child, specifying the particular service declined so that outreach and education for other EPSDT services continues;

(j) maintaining records of the efforts taken to reach out to children who have missed screening appointments when scheduled or who have failed to schedule regular check-ups, which shall be available to defendants and plaintiffs' counsel;

(k) informing families of the costs, if any, of these services;

(1) establishing criteria for determining when an MCO may be required to target specific informing activities to particular `at risk' groups, for example: mothers with babies to be added to assistance units, families with infants, or adolescents, first time eligibles, and those not using the program for over two years, who might benefit most from oral methods of informing: see State Medicaid Manual, 5121(a);

(m) providing information on covered services to adolescent prenatal patients who enter TennCare through presumptive eligibility; and offering them, on the day eligibility is determined, assistance in making a timely first prenatal care appointment; for a woman past her first trimester; this appointment should occur within 15 days;
(n) treating a TennCare eligible woman's request for EPSDT services during pregnancy as a request for EPSDT services for the child at birth; see State Medicaid Manual § 5121(B);
(o) for institutions or homes with a number of eligible children, informing them annually, or more often when the need arises, including when a change of administrators, social workers or foster parents occurs. See State Medicaid Manual § 5121(B); and
(p) for families of uninsured children who are enrolled in TennCare through county health departments, informing them regarding benefits covered under TennCare and the importance of accessing preventive services.
Outreach Performance Standard
40. The Defendants or their contractors shall achieve within 240 days [November 8, 1998] and shall maintain thereafter, EPSDT outreach efforts designed to reach all members of the plaintiff class with information and materials which conform with Section V(B)(1)(a).
(Docket Entry No. 12 at ¶¶ 39, 40).
In 2001, Judge Nixon found that the Defendants failed to monitor the MCCs for adequate outreach efforts and that the Defendants failed to require any specific baseline standards for EPSDT from the MCCs nor engage in any oversight on their contractors. John B. v. Menke, 176 F.Supp.2d 786, 793-94 (M.D.Tenn.2001). In a word, "[t]he State is aware that its outreach strategies are insufficient." id. at 793, and that "without proper outreach, EPSDT is worthless." Id. at 803.
Although the Defendants subsequently remedied some of the cited deficiencies in the MCCs' contracts, the Monitors appointed by the Court in 2006 reported that in 2003, an expert identified 105 problem areas with the 893 Defendants' outreach efforts, *893 including "the lack of methods for identifying special subgroups" for outreach and "the absence of methods for evaluating the effectiveness of the outreach campaign" for these areas. (Docket Entry No. 795-2 at 11). The Monitor's 2007 Report reflects that the Defendants' External Quality Review Organization conducted surveys and found several MCOs' performance of outreach services to be only partially satisfactory for their outreach efforts in 2003, 2004 and 2005. Id. at 28-30. In 2006, the Monitor reported that:
during the course of conducting the Annual Quality Survey, it became apparent that there were circumstances which made it difficult to score three components of the BHO EPSDT tracking tool: Transportation/Appointment Assistance Offered, Coordination of Care with other agencies, and PCP Notification, as these components are required to be captured at the provider level instead of the "BHO level...." It would appear that a verification of these elements cannot be confirmed by the EQRO.
Id. at pp. 30-31.
The monitor also cited a University of Tennessee Social Science Research Institute survey that revealed that:
[t]he percentage of those surveyed who had heard of the TENNderCare program increased from 6.5 percent to 43.7 percent; that those who heard of EPSDT remained about the same, from 31.0 to 31.3. The surveys demonstrated that the percentage of urban and rural respondents who had heard of TENNderCare differed in that rural respondents were more likely than urban respondents to have heard of TENNderCare, In the original survey 6.9 of urban respondents had heard of the program and increased in the 2006 survey to 41.1%. The rural survey initial percentage was 4.4% and increased to 48.4% in 2006.

The Ireys Report stated that the Defendants' outreach efforts would be effective when: "At least 80 percent of families with children who have been enrolled in TennCare for at least 12 months will report that they have received information about TENNCare in the last year."

Id. at p. 43-44.

As this data reflects, under Westside Mothers II, Plaintiffs' outreach claims under Section 1396a(a)(43) are enforceable because more than half of the 500,000 plus class members have been effectively denied outreach services rendering their rights to EPSDT service worthless.

In addition, Westside Mothers II recognized potential claims under Sections 1396a(a)(8) and (10) for plaintiffs' allegations of effective denial of the right to medical assistance.

At oral argument, plaintiffs asserted that the payments were insufficient to enlist an adequate

number of providers, which effectively frustrates §§ 1396a(a)(8), 1396a(a)(10) by foreclosing the

opportunity for eligible individuals to receive the covered medical services. They now argue, for

example, that they want to show that such payments are so inadequate in the Upper Peninsula of

Michigan that there are no available providers. See Health Care for All, Inc. v. Romney, 2005 WL

1660677, at *10-11 (D.Mass. July 14, 2005) ("Setting reimbursement levels so low that private

dentists cannot afford to treat Medicaid enrollees effectively frustrates [§ 1396a(a)(8)] by

foreclosing the opportunity for enrollees to receive medical assistance at all, much less in a timely

manner."); Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 366 F.Supp.2d 1050, 1109

(N.D.Okla.2005) (finding a violation of § 1396a(a)(8) and reasoning that "[w]ithout financial

894

assistance *894 (provider reimbursement) sufficient to attract an adequate number of providers,

reasonably prompt assistance is effectively denied"); Sobky v. Smoley, 855 F.Supp. 1123

(E.D.Cal.1994) (holding defendants liable for failure to comply with § 1396a(a)(8) where

"insufficient funding ... has caused providers of methadone maintenance to place eligible

individuals on waiting lists for treatment"). Plaintiffs did not raise this argument in the amended

complaint, before the district court, or in their briefs before this court. Because this appeal is from

a dismissal for failure to state a claim, we are concerned with the sufficiency of the complaint,

which does not contain this allegation. We therefore affirm the district court's dismissal of the claim

for violations of §§ 1396a(a)(8), 1396a(a)(10). However, because plaintiffs may be able to amend

the complaint to allege that inadequate payments effectively deny the right to "medical

assistance," we modify the district court's order to reflect a dismissal without prejudice to the filing

of a motion to amend along with a proposed amendment to the complaint.

454 F.3d at 540-41 (emphasis added).

As applied here, Judge Nixon found that in 2001, the Defendants were not delivering medical services to a large number of class members who are children:

Specifically, the State agreed to improve its APSP annually, and reach a goal of 80% by September, 2001. The Defendants proof submitted at trial indicated that the State has failed to meet its goals. The adjusted screening rate for 1999 was 19.8% and rose to 31.5% in 2000, far short of the baseline goals for those years, and the ultimate goal of 80% for 2001. Dental Screening rates also fell short of their targets

(Docket Entry No. 227 at 13). In 2004, Judge Nixon similarly found that:.

From 1999 to 2003 [the defendants] had a 175 percent increase, I believe, in our screening rates from, as an example, 19.8 percent to 53 percent. We've had a 60 percent increase in our dental screening rates, 55, 56 adjusted0907the raw is 36 to 62 for 2002, raw 54, adjusted 41.9. Nonetheless, while some progress has been made since the Court's approval of the Consent Decree in 1998, testimony from Mr. Martins and Mr. Goetz along with reports made to the Court by the Special Master, make clear that not enough progress has not been made. The Court is not convinced that Defendants, acting on their own, will reach full compliance with the terms of the

consent decree within a reasonable period of time. As the well-being of 550,00 children is at stake, something more must be done to ensure that the state's EPSDT requirements are met in accordance with the terms of the Consent Decree.
* * *
The Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network adequacy, case management, outreach, the effective use of information systems, and system level coordination, to name a few....
The Court finds that the deposition testimony of Mr. Goetz and Mr. Martins conclusively support this Court's finding that, to date, the State has not achieved compliance with the terms of the Consent Decree.
(Docket Entry No. 465 at 4-8) (emphasis added and [quoting the Martins Deposition at 57]).
895 *895 In his 2006 recusal order, Judge Nixon reiterated that the Defendants are not providing medical services to substantial members of children and that "the State's own documents show that ... even in 2004 the State is below the screening targets that they should have achieved in 2001." (Docket Entry No. 584 at 4). In their January 2007 report, the five Monitors collectively agreed that "the State has failed to establish that it is in compliance with many substantial provisions of the Consent Decree" and noted "the State's complete inability and unwillingness to demonstrate the existence of a comprehensive, on-going plan of action, complete with goals and objectives, and designed to assure compliance with the Consent Decree." (Docket Entry No. 795-1 at 3, 7) (emphasis added). In summary, "it is the view of the Monitors that the State Defendants have not provided information sufficient to establish that they can `ensure an effective child health care program' as referenced in Paragraph 81 of the Consent Decree and as required by federal law. 42 C.F.R. § 441.61(c)."[5]Id. at 8.
Here, Judge Nixon's 2001, 2004 and 2006 findings demonstrate the Defendants' effective denial of mandated medical services to substantial numbers of the more than 500,000 children in this certified class. Moreover, the Defendants' longstanding noncompliance since 1998 is effectively frustrating the Congress's award to the Defendants of $7 billion dollars to provide these basic mandated services and the additional hundreds of millions of federal funds to administer this children's health program.[6] The Monitors' 2007 report reflects the Defendants' serious omissions and deliberate refusal to honor their commitments under the Consent Decree and federal law to provide for an "effective child health care program" in its waiver plan. The Court concludes that these facts are much more compelling than the factual allegations the Sixth Circuit found to state a potential claim for effective denial of medical assistance in Westside Mothers II.
Consistent with Westside Mothers II, the Court concludes Plaintiffs' claims for the effective denials of outreach services and medical assistance to large numbers of class members remain enforceable claims.
3. Brown
Brown involved claims under a "home and community based services" waiver and the specific claims were that the Defendants were: "(1) failing to provide medical assistance in `adequate amount, duration, and scope' in violation of 42 U.S.C. § 1396a(a)(10); (2) failing to provide eligible defendants a choice between ICF/MR and HBCS waiver services in violation of 42 U.S.C. § 1396n(c)(2); (3) failing to inform eligible individuals of the application process with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8); (4) failing to serve individuals with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8); and (5) failing to provide written 896 notices and an opportunity to be *896 heard when services are denied in violation of 42 U.S.C. § 1396a(a)(3) and the due process clause of the Fourteenth Amendment." 561 F.3d at 543-44. Citing Westside Mothers II, the Sixth Circuit summarized its rationale:
[I]n Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir.2003), the Seventh Circuit offered an alternative interpretation. Observing that "medical assistance" is defined in the statute as "financial

assistance," Judge Posner suggested that the state has no duty to ensure that individuals receive services, but only to provide reimbursement for their costs. Id. at 910. This distinction, he noted, "was missed in Bryson v. Shumway and Doe v. Chiles. [136 F.3d 709 (11th Cir. 1998)]." Id.

In Westside Mothers II, this Court followed Judge Posner's dicta in Bruggeman and rejected a suit by a class of Medicaid-eligible children who argued that Michigan was violating federal law by failing to provide or arrange for the provision of certain screening, diagnostic, and treatment services. 454 F.3d at 540. Observing that the Medicaid Act defined "medical assistance" as "payment of part or all of the cost of . . . care and services," 42 U.S.C. § 1396d(a), we concluded:

"The most reasonable interpretation of § 1396a(a)(8) is that all eligible individuals should have the opportunity to apply for medical assistance, i.e., financial assistance, and that such medical assistance, i.e. financial assistance, shall be provided to the individual with reasonable promptness." Id. at 540. Thus, we held that plaintiffs had failed to state a claim under either section 1396a(a)(8) because they sought to compel the state to arrange for the provision of such services or provide them itself. Id.

* * *

We believe that the Tenth Circuit's application of Westside Mothers II in Mandy R. [ex rel. Mr. and Mrs. R. v. Owens, 464 F.3d 1139 (2006) ] accurately states the law of our circuit on a state's obligations to provide "medical assistance" under the Medicaid statute and applies with equal force to this case: absent more, a waiting list for waiver services does not violate federal law because the state's duty is to pay for services, not ensure they are provided.

What matters under Rufo is not that Tennessee agreed to take the actions specified in the settlement, but what those actions were intended to remedy: if the settlement was premised on the understanding that the Medicaid statute imposed upon Tennessee a duty to ensure the provision of medical services, then Rufo counsels that we vacate the agreed order because Westside Mothers II established that no such duty exists.

561 F.3d at 545.

Bruggeman, upon which Westside Mothers II and Brown relied, involved claims by developmentally disable adults under 42 U.S.C §§§§ 1396a(a)(1), (8), (10)(B)(I)(19) and (23). 324 F.3d at 909. The Seventh Circuit then described these statutes as providing:

The statutory entitlement to reasonable promptness of medical services 42 U.S.C. § 1396a(a)(8)

is not infringed by the maldistribution (as it seems to the plaintiffs) of ICF/DDs across the state. It

is not as if the plaintiffs require relocation to such a facility on an emergency basis, in which event

the remoteness of any such facility from their homes, where they are living at present, would

deprive them of prompt treatment. Even if they did require emergency treatment, their theory of

897

violation would be a considerable stretch because the statutory reference to "assistance" *897

appears to have reference to financial assistance rather than to actual medical services, . . .

Medicaid is a payment scheme, not a scheme for state-provided medical assistance, as through

state-owned hospitals. The regulations that implement the provision indicate that what is required

is a prompt determination of eligibility and prompt provision of funds to eligible individuals to

enable them to obtain the covered medical services that they need, see 42 C.F.R. §§ 435.911(a),

.93(a)0907 (b); a requirement of prompt treatment would amount to a direct regulation of medical

services.

Id. at 910 (emphasis in the original). The Seventh Circuit noted "the Supreme Court's hostility, most recently and emphatically expressed in Gonzaga . . . to implying such rights in spending statutes." Id. at 911.

Brown decided only the "waiting list" and "provider network" claims in the context of the "medical assistance" and "reasonable promptness" clauses in Section 1396a(8)(A) To be sure, Brown addressed whether the "medical assistance" is defined in the pertinent statute solely as "financial assistance." If so, then state has no duty to

ensure that individuals receive services, but only to provide reimbursement for their costs. 561 F.3d at 545 (citing Bruggeman, 324 F.3d at 910). Yet, Brown did not address Westside Mothers II express holding on the potential claim for effective denial of medical services under Section 1396a(10) and Section 1396r to which Section 1396a (10) refers.

In S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir.2004), a post-Gonzaga decision, the Fifth Circuit, citing decisions from the First, Second, Third and Eleventh Circuits, found that Section 1396a(10)(A) and 1396r to which it refers, constitute an enforceable right under Section 1983.

The Medicaid Act provides that "[a] State Plan must provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title, to all individuals" who meet certain eligibility criteria. 42 U.S.C. § 1396a(a)(10)(A)(I). EPSDT care and services are listed in paragraph 4 of § 1396d(a) and, by reference to § 1396d(r), include all the health care, treatment, services, and other measures described in § 1396d(a) when necessary for corrective or ameliorative purposes. This is precisely the sort of "rights-creating" language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right. Accordingly, as the Third Circuit concluded, "it [is] difficult, if not impossible, as a linguistic matter, to distinguish the import of the relevant [Medicaid Act] language0907`A State Plan must provide' from the `No person shall' language of Titles VI and IX" which was held up in Gonzaga as the prototypical rights-creating language. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004) (concluding that § 1396a(a)(10)(A) creates a federal right to medical assistance for intermediate care facility services); accord Rabin v. Wilson-Coker, 362 F.3d 190, 201-2 (2d Cir.2004); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002).

The only potentially material difference between the rights-creating language contained in § 1396a

(a)(10)(A) and that contained in Titles VI and IX is that the Medicaid Act requires state action

under a medical assistance plan. The requirement of action under a plan is not, however,

dispositive of the question of whether the statute confers rights enforceable by § 1983. "In an

898

action brought to enforce a provision of [the Social Security chapter of the United *898 States

Code], such provision is not to be deemed unenforceable because of its inclusion in a section of

this chapter requiring a State plan or specifying the required contents of a State plan" 42 U.S.C. §

1320a-2; see also Harris v. James, 127 F.3d 993, 1003 (11th Cir. 1997) ("[I]n light of [§ 1320a-2], it

is clear that the mere fact that an obligation is couched in a requirement that the State file a plan is

not itself sufficient grounds for finding the obligation unenforceable under § 1983.") Thus, for all of

the forgoing reasons we conclude that the EPSDT treatment provisions of the Medicaid Act

contains the "rights-creating language critical to showing the requisite congressional intent to

confer a new right." Gonzaga, supra, 536 U.S. at 274, 122 S.Ct. 2268.

Id. at 603.

Aside from the legal analysis of the relevant statutes, Brown made it clear that the district court must also consider the purposes of the Consent Decree and rejected the Defendants' contention that as a matter of law, the Consent Decree had to be vacated.

As a result, we cannot say with certainty that Westside Mothers II had the effect Tennessee contends or warrants the relief it requests. In our view, it is difficult to determine whether this consent decree was undermined to a degree sufficient to justify relief when the basis and meaning of the decree are not clear and the district court has yet to interpret it. As a result, we hesitate to vacate the decree in its entirety at this stage. If plaintiffs' account of the underlying litigation is as revisionist as Tennessee claims, then Tennessee is entitled to full relief from prospective enforcement. But the district court will have to address this matter on remand. Second, the settlement is about to expire-its five year term runs out at the end of this year, and Tennessee's duties under it will then cease, So, given that only part of the settlement is in clear conflict with Westside Mothers II, and that Tennessee's obligations will soon end, we do not believe that equity necessarily requires that we vacate the decree in its entirety now.

Third, Tennessee may be able to obtain relief from enforcement of the settlement during its final nine months even if we do not fully grant it here. Tennessee has two safety valves available to it under the settlement itself. First, the agreement provides that Tennessee's duty to enroll additional individuals into the waiver program is conditioned on both the availability of a waiver slot and funding for that slot. J.A. 109. Second, and more significantly, section IX.B.5.d of the settlement agreement provides that if the parties return to court to litigate claims of non-compliance, "[a]fter two years following the approval of this Agreement, defendants may defend any action for noncompliance on the grounds that defendants are in compliance with the federal laws that are the basis of the underlying action which is the subject of this Agreement." J.A. at 117-18. Tennessee is currently defending a pending enforcement action on this very ground, If the district court accepts Tennessee's view of the case on remand, Tennessee will avoid all of its obligations under the settlement anyway. Because the district court has yet to rule on this motion or otherwise interpret the provisions of the settlement, we feel it is premature to vacate the settlement in its entirety at this time.

* * *

[W]e do not believe the district court abused its discretion in refusing to vacate the settlement in its

899

entirety First, *899 we vacate Tennessee's commitment to develop "provider network capacity,"

J.A 112, which does not appear to remedy any violation of federal law after Westside Mothers II.

Second, any commitment Tennessee arguably made to eliminate the waiting list for services is

likewise unenforceable after Westside Mothers II. Absent more, a waiting list for waiver services is

not inconsistent with Tennessee's duty to provide "medical assistance" to individuals eligible for its

HCBS waiver with "reasonable promptness."

Brown, 561 F.3d at 543, 544, 545, 546, 547, 548 (emphasis added).

Brown's holding concerned only Sections 1396a(a) and 1396a(a)(8), but did not address Section 1396a(10) and its relationship with Section 1396r detailing basic medical services for children that the State must provide under its waiver plan. Moreover, here, consistent with Brown, the Consent Decree does not prevent the Defendants from defending and proving their compliance with the Consent Decree as defense counsel stated at the February 10, 2006 conference. Finally, as a factual matter, Plaintiffs have also alleged that physicians are not being compensated, some times for years and thus, the state has failed to provide reimbursement as required by Westside Mothers II and Brown.[7]

4. Plaintiffs' Claims

Although the Defendants seek to apply Brown broadly, "[o]nly when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights," Blessing v. Freestone, 520 U.S. 329, 342, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (citation omitted). Of course, Westside Mothers II found an potential claim under Section 1396a(a)(10) for effective denial of medical services. Thus, the Court must consider Plaintiffs' claims based upon Sections 1396a(10) and 1396r.
In Westside Mothers II, the Sixth Circuit stated that under Gonzaga, "the appropriate inquiry" is whether Congress "intended to confer individual rights upon a class of beneficiaries." Westside Mothers, 454 F.3d at 542 (quoting Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268). In Gonzaga, the Supreme Court stated that the focus should be on whether, "the text and structure of a statute provide [any] indication that Congress intends to create new rights." 536 U.S. at 286, 122 S.Ct. 2268 (emphasis added). Gonzaga and Westside Mothers II applied Blessing's three part analysis.
We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff, Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous"

that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.

Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a

rebuttable presumption that the right is enforceable under § 1983. Because our inquiry focuses on

congressional intent, dismissal is proper if Congress "specifically foreclosed a remedy under §

900

1983." Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, *900

or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual

enforcement under § 1983.

Id. at 340-41 (citations omitted and quoting Smith v. Robinson, 468 U.S. 992, 1005, n. 9, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)).

The Defendants' services to the class arise from the State's waiver plan under the Medicaid Act. 42 U.S.C. § 1315. In Alexander v. Choate, 469 U.S. 287, 289, n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), allowing a private action under Section 504 of the Rehabilitation Act, the Supreme Court stated that "[o]nce a State voluntarily chooses to participate in Medicaid, the State must comply with the requirements of Title XIX and applicable regulations." Under Medicaid regulations, each state plan "must specify the amount, duration and scope of each service it provides for. . . each covered group of medically needy" and "[e]ach service must be sufficient in amount, duration and scope to achieve its purpose." 42 C.F.R. § 440.230(a) and (b).

Plaintiffs assert the following statutes under the Medicaid Act, 42 U.S.C. § 1396a(a)(43), 42 U.S.C. § 1396d(a), 42 U.S.C. § 1396(r)(1)(A) and (B), 42 U.S.C. § 1396d(r)(5) and 42 U.S.C. § 671(a), as well as 42 U.S.C. § 1396d (a) that is cited in the Consent decree.[8] for eligible children, Section 1397d(a) defines "medical assistance" as "payment of all or part of the cost of the following care and services". For eligible children, Congress defined the ESPDT services to include at a minimum the following services:

(r) Early and periodic screening, diagnostic, and treatment services The term "early and periodic screening, diagnostic, and treatment services" means the following items and services:

(1) Screening services . . .

(B) which shall at a minimum include0907

(i) a comprehensive health and developmental history (including assessment of both physical and mental health development),

(ii) a comprehensive unclothed physical exam,

(iii) appropriate immunizations (according to the schedule referred to in section 1396s(c)(2)(B)(I) of this title for pediatric vaccines) according to age and health history,

(iv) laboratory tests (including lead blood level assessment appropriate for age risk factors), and

(v) health education (including anticipatory guidance).

(2) Vision services. . . .

(B) which shall at a minimum include diagnosis and treatment for defects in vision, including eyeglasses.

(3) Dental services. . . .

(B) which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.

(4) Hearing services. . . .

(B) which shall at a minimum include diagnosis and treatment for defects in hearing, including hearing aids.

(5) Such other necessary health care, diagnostic services, treatment, and other measures

described in subsection (a) of this section to correct or ameliorate defects and physical and mental

illnesses and conditions discovered by the screening services, whether or not such services are

covered under the State plan. Nothing in this subchapter shall be construed as limiting providers

901

of early and periodic screening, diagnostic, and treatment services to providers who are qualified

*901 to provide all of the items and services described in the previous sentence or as preventing a

provider that is qualified under the plan to furnish one or more (but not all) of such items or

services from being qualified to provide such items and services as part of early and periodic

screening, diagnostic, and treatment services.

42 U.S.C. § 1396d(r).

In addition to financial assistance, in other provisions of the statutes, Congress refers to these basic medical services for any State's waiver plan as mandatory:

A State plan for medical assistance must provide:

(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance, including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunization against vaccine-preventable diseases,

(B) providing or arranging for the provision of such screening services in all cases where they are requested,

(C) arranging for (directly or through referral to appropriate agencies, organization or individuals) corrective treatment the need for which is disclosed by such child health screening services ....

42 U.S.C. § 1396a (43)(A)-(C) (emphasis added).

Among the applicable regulations for a State waiver plan for children medical services is 42 C.F.R. § 441.61(c) that provides: "The agency must make appropriate use of State health agencies, State vocational rehabilitation agencies, and Title V grantees (Maternal and Child Health/Crippled Children's Services). Further, the agency should make use of other public health, mental health, and education programs and related programs, such as Head Start, Title XX (Social Services) programs, and the Special Supplemental Food Program for Women, Infants and Children (WIC), to ensure an effective child health program." (emphasis added).

The legislative history of the Medicaid Act and Congress's amendments thereto also reflect Congress's mandate of medical coverage and benefits for ESPDT services.

Title XIX of the Social Security Act (Medicaid) provides for mandatory coverage by all participating States of acute care services for individuals and families receiving either Aid to Families with Dependent Children (AFDC) or Supplemental Security Income (SSI) income support payments. These groups are referred to as the "cash population" within Medicaid. In addition, participating States must extend coverage to pregnant women and children up to age six with family incomes up to 133 percent of the Federal poverty level and children born after September 1983 up to 100 percent of the Federal poverty level. The Medicaid program provides States the option to extend coverage of pregnant women and children up to age one up to 185 percent of poverty. There are many other optional and mandatory coverage groups for acute care Medicaid services, one of which is Medically Needy eligibility under which families with significant medical care expenses can "spend down" into Medicaid eligibility.

Federal law establishes a basic set of mandatory services that States must provide including:

inpatient and outpatient hospital services; laboratory and x-ray services; rural health clinic and

federally qualified health center services; nursing facility services; family planning services; early

902

and periodic *902 screening, diagnostic and treatment (EPSDT) services for children under 21

years old; home health services; and physician, nurse midwife and certain certified nurse

practitioner services. There are many other services a State may choose to offer including:

prescription drugs, case management, personal attendant care, physical therapy, rehabilitation,

and mental health services.

S. REP. No. 103-323 at 125-26 (1994) (emphasis added). In another statement of the Medicaid Act, the Senate Report again stated its view of the existing law: "Under current law, States must provide, as a minimum, five basic services: inpatient hospital services, outpatient hospital services, other laboratory and X-ray services,... and physician's services." S. REP. No. 90-744 at p. 2867(1967).

The legislative history of the Medicaid Act also reflects the Senate's and the House of Representatives's recognition that Medicaid created "entitlements" for which recipients could sue to enforce their rights to these entitlements.

The entitlement status of the current Medicaid Program permits eligible recipients and certain providers to sue State officials under Federal law....

* * *

Current law.0907The current Medicaid statute permits lawsuits brought against State officials in Federal court. 42 U.S.C.1983 authorizes such suits against State officials who, under color of State law, are alleged to have deprived any person of rights under Federal law or the Federal Constitution.

If a person sues a State official and seeks a Federal court to order that the State official comply with a Federal statute, such an order effectively operates against the State. Such an order, however, may operate prospectively only.

H.R. REP. No. 104-280(II) at 639 (1995) (emphasis added).

Congress also reflected its intention, consistent with the Consent Decree, for the setting of State goals to achieve its mandates especially for children.

Current law.0907There are no provisions for objectives and goals, except that States are required to meet participation goals in their early and periodic screening, diagnostic, and treatment [EPSDT] programs for eligibles under age 21.

Explanation of provision. A State would be required to include in its MediGrant plan a description of its strategic objectives and performance goals for providing health care services, and the manner in which the plan is designed to meet the objectives and goals. Goals and objectives related to rates of childhood immunizations and reductions in infant mortality and morbidity would be required. With regard to other objectives and goals, the State could consider factors such as priorities for providing assistance to low-income populations, priorities for general public health and health status for low-income populations, the State's financial resources and economic conditions, and the adequacy of the State's health care infrastructure. To the extent practicable, a State would be required to establish one or more performance goals for each strategic objective and describe how performance would be measured and compared against goals. Strategic objectives would be required to cover a period of at least 5 years and would have to be updated and revised at least every 3 years. Performance goals would have to be established for dates not more than 3 years apart.

* * *

903

*903 Mandatory services for all groups except the medically needy and qualified Medicare beneficiaries [QMB's] include: Inpatient and outpatient hospital services, nursing facilities [NF] services for individuals 21 or older, physicians' services, laboratory and x-ray services, early and periodic screening, diagnostic and treatment [EPSDT] services for individuals under age 21, family planning services, home health services for any individual entitled to NF care, rural health clinic and federally qualified health center [FQHC] services, and services of nurse-midwives, certified pediatric nurse practitioners, and certified family nurse practitioners. States may also offer any of a broad range of optional services.
H. Rep. No. 104-208(11) at pp. 631-32, 634 (1991) (emphasis added). The Court concludes that these excerpts from the Medicaid Act's legislative history reflect Congress's intention to establish enforceable rights for children under the State's waiver plan.
In sum, considering the text, structure and legislative history of the EPSDT Medicaid statutes and federal regulations for State waiver plans, the Court concludes that the Consent Decree appropriately recognizes enforceable rights for this class of Medicaid beneficiaries under 42 U.S.C. §§ 1396a (8), (10), (43) and 1396(r). The Consent Decree's monitoring and time tables for compliance with federal law are consistent with Congressional history. Brown's holding concerned only Sections 1396a(a) and 1396a(a)(8), but did not address Section 1396a(10) and its relationship with Section 1396r detailing basic medical services for children that the State must provide under its waiver plan.
Thus, the Defendants' motion to vacate the decree in its entirety should be denied. In addition, the Court has considered the Defendants' alternate argument in favor of modifying the decree to vacate certain portions. The Court concludes that the provisions of the decree are not premised on a duty to provide network adequacy or to terminate waiting lists subsequently eliminated as discussed in Westside Mothers II and Brown. Therefore, modification of the Consent Decree on that basis is also inappropriate at this juncture.
An appropriate Order is filed herewith.

APPENDIX A

The Medicaid statutes read as follows:

42 U.S.C. § 1396a(a)(43)

A State plan for medical assistance must provide for (A) informing all person in the State who are under the age of 21 and who have been determined to be eligible for medial assistance including services described in section 1396a(a)(4)(B) of this title, of the availability of early periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age appropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are request.

42 U.S.C. § 1396d(a) requires among other services

(2) (A) outpatient hospital services, (B) consistent with State law permitting such services, rural

health clinic services (as defined in subsection (1)(1) of this section) and any other ambulatory

services which are offered by a rural health clinic (as defined in subsection (1)(1) of this section)

and which are otherwise included in the plan, and (C) Federally-qualified health center services

904

(as defined in subsection (1)(2) of this section) and any other ambulatory services offered *904 by

a Federally-qualified health center and which are otherwise included in the plan;

(3) other laboratory and X-ray services;

(4) (A) nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older; (B) early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan

and are under the age of 21; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies;

(5) (A) physicians' services furnished by a physician (as defined in section 1395x(r)(1) of this title), whether furnished in the office, the patient's home, a hospital, or a nursing facility, or elsewhere, and (B) medical and surgical services furnished by a dentist (described in section 1395x(r)(2) of this title) to the extent such services may be performed under State law either by a doctor of medicine or by a doctor of dental surgery or dental medicine and would be described in clause (A) if furnished by a physician (as defined in section 1395x(r)(l) of this title);

* * *

(6) medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice as defined by State law;

(10) dental services;

(11) physical therapy and related services;

(12) prescribed drugs, dentures, and prosthetic devices; and eyeglasses prescribed by a physician skilled in diseases of the eye or by an optometrist, whichever the individual may select;

(13) other diagnostic, screening, preventive, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level;

* * *

(16) effective January 1, 1973, inpatient psychiatric hospital services for individuals under age 21, as defined in subsection (h) of this section;

* * *

(19) case-management services (as defined in section 1396n(g)(2) of this title) and TB-related services described in section 1396a(z)(2)(F) of this title;

(20) respiratory care services (as defined in section 1396a(e)(9)(C) of this title);

(21) services furnished by a certified pediatric nurse practitioner or certified family nurse practitioner (as defined by the Secretary) which the certified pediatric nurse practitioner or certified family nurse practitioner is legally authorized to perform under State law (or the State regulatory mechanism provided by State law), whether or not the certified pediatric nurse practitioner or certified family nurse practitioner is under the supervision of, or associated with, a physician or other health care provider;

* * *

(25) primary care case management services (as defined in subsection (t) of this section);

* * *

905

*905 (27) subject to subsection (x) of this section, primary and secondary medical strategies and

treatment and services for individuals who have Sickle Cell Disease; and

(28) any other medical care, and any other type of remedial care recognized under State law, specified by the Secretary,

42 U.S.C. § 1396(r)(1)(A) and (B)
[EPSDT] screening services which are provided (I) at intervals which meet reasonable standards of medical and dental practice, as determined by the State after consultation with recognized medical and dental organizations... which shall at a minimum include (I) comprehensive health and development history (including assessment of both physical and mental health development, (ii) a comprehensive unclothed physical exam, (iii) appropriate immunizations... according to age and health history, (iv) laboratory tests..., and (v) health education.
42 U.S.C. § 1396d(r)(5)
[and][s]uch other necessary health care, diagnosis services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defect and physical and mental illness and conditions discovered by the screening services, whether or not such services are covered under the State plan.
(emphasis added).
[1] 42 U.S.C. § 671(a) provides that
In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.
42 U.S.C. §§ 675(1) and (5) list requirements for the case plan and case review system mentioned in 42 U.S.C. § 671(a)(16).
[2] See, e.g., Docket Entry No. 156, June 19, 2001 Transcript, Vol. 11, at 282-294. The Defendants acknowledge that "the MCCs play an intricate and important role in ensuring that the State fully complies with its obligations under both the Consent Decree and the federal EPSDT law." (Docket Entry No. 932, Exhibit A thereto).
[3] 42 U.S.C. § 671(a) provides that
In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.
42 U.S.C. §§ 675(1) and (5) list requirements for the case plan and case review system mentioned in 42 U.S.C. § 671(a)(16).
[4] This assertion is at total variance from the Monitors' Report filed January 26, 2007. (Docket Entry No. 795-1 at 3, 7)
[5] This regulation provides as follows: "The agency must make appropriate use of State health agencies, State vocational rehabilitation agencies, and Title V grantees (Maternal and Child Health/Crippled Children's Services). Further, the agency should make use of other public health, mental health, and education programs and related programs, such as Head Start, Title XX (Social Services) programs, and the Special Supplemental Food Program for Women, Infants and Children (WIC), to ensure an effective child health program."
[6] (Docket Entry No. 1028 at 75-76) (listing federal funds dispensed to MCCs and citing the Defendants' receipt of millions of dollars in federal funds to administer its waiver program).
[7] See Docket Entry No. 1, Complaint at ¶¶ 55, 74, 80, 84, 87, 114, 140 149 and 152)
[8] See Appendix A for the referenced Medicaid statutes.

Save trees - read court opinions online on Google Scholar.

 
 176 F.Supp.2d 786 (2001)
JOHN B., Carrie G., Joshua M., Meagan A. and Erica A. by their next friend, L.A.; Dustin P. by his next friend, Linda C.; Bayli S. by her next friend, C.W.; James D. by his next friend, Susan H.; Elsie H. by her next friend, Stacy Miller; Julian C. by his next friend, Shawn C.;
Troy D. by his next friend, T.W.; RAY M. by his next friend, P.D.; Roscoe W. by his next friend, B.W.; William B by his next friend, K.B.; Jacob R. by his next friend, Kim R.; Justin S. by his next friend, Diane P.; Estel W. by his next friend, E.D.; individually and on behalf
of all others similarly situated, Plaintiffs, v.
Nancy MENKE, Commissioner, Tennessee Department of Health; Theresa Clarke, Assistant Commissioner Bureau of TennCare; George Hattaway, Commissioner
Tennessee Department of Children's Services, Defendants.
No. 3:98-0168.
United States District Court, M.D. Tennessee, Nashville Division.
December 19, 2001.
7878 *787 *788 Gordon Bonnyman, Michele M. Johnson, Patricia George, Gary D. Housepian, David Kozlowski, Hugh Mundy, Russel J. Overby, Tennessee Justice Center, Nashville, TN, for plaintiffs.
Paul G. Summers, Atty Gen. and Reports, Linda A. Ross, Deputy Atty. Gen., Katherine Brown, Assist. Atty. Gen., Nashville, TN, Kathryn Stephenson, Leesa A. Hinson, Paul W. Ambrosius, Doramus, Trauger & Ney, Nashville, TN, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOHN T. NIXON, Senior District Judge.
Part One. Plaintiffs' Motion to Show Cause
This civil action involves the State of Tennessee's provision of health benefits pursuant to the federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) requirement. After the Plaintiffs filed their complaint on February 25, 1998 (Doc. No. 1), the parties immediately filed a Consent Decree, governing Tennessee's duties under EPSDT. (Doc. No. 12).
Background
In 1994, the State converted its Medicaid-based fee-for-service health plan to a managed care system called TennCare.[1] Until 1994, the State participated in the traditional Medicaid program. However, in 1993 Tennessee sought and obtained from the United States Secretary of Health and Human Services a five-year waiver, effective January 1, 1994, under Section 1115 of the Social Security Act, 42 U.S.C. § 1315[2] (waiver). The original waiver, by suspending certain federal statutory and regulatory provisions, allowed the State to replace its Medicaid program with TennCare.[3]
TennCare differs from traditional Medicaid in two pertinent ways. First, TennCare converted Tennessee's Medicaid program from a fee-for-service system to a managed care system, whereby recipients obtain services from a limited number of network providers known as Managed Care Organizations (MCOs). The MCO is paid a monthly capitated rate for each beneficiary, based on eligibility characteristics of the enrollee. In return, the MCO

is required to provide the beneficiary all medically necessary health care services covered by the TennCare scope of benefits, as provided in the TennCare waiver. The MCOs then assign their enrollees to primary care providers (PCPs). The PCPs manage the individual beneficiaries' access to specialists or other medical care. The MCOs are required to spend eighty-five percent of their capitation revenue for medical services. Any shortfall must be absorbed by the MCO as a loss, subject to risk sharing agreements[4] with the State, while any excess 789 after administrative costs *789 is considered profit. The scope of the benefits covered by the risk agreement is limited by various "carve outs" that are solely the responsibility of the MCO.[5]
Approximately 9½ percent of children in the plaintiffs' class are enrolled in TennCare Select, the State's selfinsured TennCare MCO. TennCare Select provides services to populations that, for varying geographic and health care reasons, are more difficult to serve.
In addition, in 1996 the State established a behavioral health and substance abuse managed care program, known as TennCare Partners, to be managed by Behavioral Health Organizations (BHOs). The Tennessee Department of Children's Services (DCS) administers certain TennCare behavioral health services[6], and serves as a BHO in that context. TennCare Partners provides benefits to a population of individuals classified by the Department of Mental Health and Developmental Disabilities (DMHDD) as severely and persistently mentally ill (SPMI) adults or severely emotionally disturbed (SED) children. The benefits are to be provided by TennCare Partners to any TennCare child whenever medically necessary.
TennCare also differs from traditional Medicaid in that TennCare provides coverage to an expanded population. Under the terms of the waiver, benefits are made available to those who are "uninsured," defined as individuals who lack insurance coverage and do not have access to group coverage under an employer. In addition, the plan expands coverage to individuals deemed "uninsurable" by commercial insurers because of poor health or previous medical history.[7] This newly covered population is termed "waiver eligible." Waiver eligibles with incomes below the poverty line, receive coverage at no cost to them. Waiver eligibles above the poverty level pay premiums and cost sharing obligations on a sliding scale, based on income and family size.[8]
This case was initially brought in March 1998 on behalf of all individuals under age twenty-one involved in Tennessee's TennCare program. Almost immediately after the case was filed, the parties submitted to the Court a Consent Decree, granting broad declaratory and injunctive relief enforcing the EPSDT provisions of Title XIX of 790 the Social Security Act. 42 U.S.C. § 1396, et seq.[9] The Court approved the *790 Consent Decree on March 12, 1998. (Doc. No. 12).
EPSDT covers a broad range of services. As the name suggests, the purpose of EPSDT is to ensure that all medicaid-eligible children receive regular screening, vision, hearing, dental and treatment services consistent with established pediatric standards.[10] The Federal Code requires that the children receive "such other necessary health care, diagnostic services, treatment and other measures ... to correct or ameliorate defects and physical and mental illnesses under the State plan." 42 U.S.C. § 1396d(r)(5). The purpose of EPSDT is to ensure that underserved children receive preventive health care and follow-up treatment. EPSDT is premised on the idea that early detection of problems will lead to treatment of minor problems before they become major healthcare issues. By preemptively screening, diagnosing and treating current problems, EPSDT staves off larger healthcare problems in the future, and ultimately results in a more efficient and effective healthcare system with a proactive, comprehensive, and long-term focus.
The Consent Decree recognizes and attempts to address deficiencies in State EPSDT services. The Consent Decree directed the State to retain an expert to evaluate EPSDT services for children in or at risk of entering State custody. After the expert, Paul DeMuro, submitted the report in late 1998, the parties submitted two proposed agreed orders relating to EPSDT for children in this subclass. The parties entered into a remedial plan that required the State to take additional steps to improve EPSDT services for children in or at risk of entering State custody, and provided a timetable for implementation. The Court approved the proposed orders in May of 2000. (Doc. Nos.57, 59).

The State, after encountering difficulties implementing the Agreed Orders, filed a motion requesting that enforcement be stayed and requesting modification of the Agreed Orders. (Doc. Nos.63). On January 29, 2001, Plaintiffs filed a motions to show cause (Doc. No. 79), in which they alleged that the State Defendants were in contempt of court for violating both the original 1998 Consent Decree and the May 2000 Agreed Orders. The Plaintiffs requested a finding of contempt, imposition of sanctions and the appointment of a special master. This Court heard arguments from both Plaintiffs and Defendants on the above motions for a total of three weeks in June, July and early August 2001.
The Court finds that Plaintiffs' Motion to Show Cause does have some merit, and appropriate relief is therefore granted to the Plaintiffs, as discussed in detail below. In Part Two, the Court will discuss Defendants' Motion to Stay Enforcement and Motion to Modify the May 2000 Agreed Orders.
I. Findings of Fact
A. The State's Efforts to Implement the March 1998 Consent Decree
1. The Defendant State officials have attempted to comply with and implement the 1998 Consent Decree. The record demonstrates that the Defendants have been, for the most part, well-intentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements. In fact, Defendant officials sometimes 791 attempted to implement *791 the very strategies that Plaintiffs' counsel advocated, but were constrained by the realities of State Government.[11] TennCare employees are committed to the mission of TennCare-the provision of health and mental care to eligible individuals in Tennessee. For example, with the hiring of Ken Okolo and Kasi Tiller,[12] the State Defendants committed to expending resources to achieve compliance with federal law and the Consent Decree.
2. The record also indicates that TennCare and the other State Defendants have tried to work within the TennCare managed care system to achieve compliance. From the beginning, TennCare has attempted to comply with some of the concrete provisions of the Consent Decree. For example, TennCare published a Standard Operating Procedure regarding EPSDT early in 1999, and continue to operate within these parameters.[13] Additionally, the State has revised BHO and MCO contracts on a number of occasions to reflect commitments under EPSDT.[14]
3. However, from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system. The record shows that the Defendants' efforts were indeed scuttled because "essential providers and tertiary pediatric care centers refused to contract with all of the managed care companies currently participating in the TennCare program."[15] The record also confirms that the Defendants have faced a challenging task in melding Medicaid and managed care 0907 a challenge that is by no means unique to Tennessee.[16] Nevertheless, the institutional difficulties faced by the Defendants do not excuse their failure to follow the law. Defendants have not shown why their failure to fully comply with the 1998 Consent Decree or federal law should be excused, and thus have neither proven compliance nor any excuse for failure to comply with the federal EPSDT provisions. Therefore, Defendants have failed to show why the Consent Decree should be modified,
4. The TennCare system represents an innovative but ultimately failed experiment in the provision of federallymandated health services to a needy population. Although the record indicates that Defendants' employees are 792 well-intentioned and innovative,[17] the system in which they operate *792 makes it impossible to fully comply with federal mandates.[18]
B. EPSDT Failures

Outreach
5. Pursuant to the Consent Decree, Defendants have a responsibility to achieve and maintain outreach efforts designed to reach all members of the Plaintiff class with information and materials in conformance with federal law.[19] Plaintiffs allege that the Defendants did not adopt the necessary outreach strategies.[20] The record reflects the fact that the Defendants mostly delegated the responsibility to conduct outreach to MCOs and BHOs, who have not successfully implemented the outreach requirements contained in the Consent Decree. However, the Defendants are ultimately responsible for conducting proper outreach. If the Defendants choose to delegate this responsibility, they must do so with the understanding that they will remain ultimately responsible for the failure of any delegatee.
6. The Consent Decree requires that the Defendants "aggressively and effectively inform enrollees of the existence of the EPSDT program, including the availability of specific EPSDT screening and treatment services." [21] The Decree also requires that the "Defendants or their contractors shall achieve within 240 days and shall maintain thereafter, EPSDT outreach efforts designed to reach all members of the plaintiff class with information and materials ... [as required under federal law]."[22] In addition, the Consent Decree requires that Defendants engage in oral outreach,[23] as well as outreach specifically devised to inform individuals who are illiterate, blind, deaf, or non-English speakers.[24] However, the State has not successfully implemented the outreach contemplated by the Consent Decree. The outreach conducted by and on behalf of the Defendants is inadequate.
7. First, TennCare officials are aware of the Consent Decree's outreach requirement.[25] In fact, TennCare employees specifically cited the Consent Decree's requirements as demanding a coordinated approach by TennCare, and even proposed an involved outreach campaign to ensure TennCare compliance with the Consent Decree.[26] However, TennCare officials were unable to implement this proactive approach, which included oversight of providers to assure that proper outreach is being conducted.[27] TennCare, through its Quality 793 Oversight Department, did review the outreach strategies employed by the *793 MCOs.[28] TennCare also formulated a survey to ascertain what methods of outreach each MCO was utilizing.[29] However, the record does not clearly indicate that TennCare actually used the surveys and reports to correct the MCOs' deficient outreach efforts. TennCare, not the MCOs, is the party bound by the Consent Decree, and TennCare has failed to assure proper outreach activities by the various agencies that are involved in the TennCare program.
8. Second, the evidence presented at trial demonstrates that some outreach activities are more effective than others. While State officials have opined that "[n]o strategy [has] necessarily been proven better than the other," [30] they implicitly acknowledge that other states have effectively and creatively conducted outreach activities. [31] The evidence submitted at trial proves that the State's strategy of mailing fliers and brochures[32] to inform TennCare recipients of their EPSDT rights is inadequate. The State is aware that its outreach strategies are insufficient. In fact, at least one TennCare employee recognized that a statewide broadcast and media campaign was necessary in order to inform children and their parents of EPSDT.[33] Therefore, although TennCare MCOs did engage in outreach, and even conducted outreach in Spanish[34] and other languages, the outreach conducted was ultimately ineffective.
9. The State maintains that allowing different MCOs to conduct outreach in different ways will ultimately benefit all MCOs by allowing the contractors to share their successes and failures.[35] The State presented evidence from representatives of four MCOs at trial, and those representatives detailed the varied approaches that those MCOs take to outreach.[36] For example, OmniCare Outreach Coordinator Vickie Bouscher testified that OmniCare sends members EPSDT reminders on their birthdays, gives pregnant women a pager to enable OmniCare to contact them, and provides EPSDT materials in languages as varied as Somalian and Vietnamese.[37] However, Ms. Bouscher also stated that TennCare does not require any specific baseline standards for EPSDT.[38] Mia Earl-Clemmons, the TLC representative, testified that although TennCare tells TLC that it needs to conduct

outreach, TennCare does not specifically require a certain method of outreach.[39] The evidence submitted at 794 trial demonstrates that TennCare does not require a base level for *794 EPSDT oversight on the part of its
contractors.
10. Most importantly, the trial record demonstrates that at least some TennCare members and their parents were unaware of what EPSDT represents, or even that it conferred certain benefits upon them.[40] One parent, Amy Defreece stated that no one from TennCare ever spoke to her about EPSDT for her daughters, and that she did not receive any written information concerning EPSDT.[41] Another, Jennifer Stewart testified that she had never heard of EPSDT, and that she was never told about services and screenings available for her sons under EPSDT. [42] Freda Kinnie, mother of a TennCare recipient, testified that no one from her MCO (BlueCare) or TennCare had ever discussed EPSDT with her, although she did receive a card in the mail once a year reminding her of a yearly check-up.[43] TennCare clearly did not succeed in informing these individuals of EPSDT.
Screenings
11. Under the Consent Decree, the State must comply with the federal requirements for EPSDT screens.[44] An adequate screen must contain all components required by EPSDT law. The State was to create a committee that would devise a plan and specific guidelines to ensure the effectiveness of the screens.[45] Additionally, the Consent Decree specified a method for quantifying and measuring screening performance, and established goals over time for adjusted periodic screening percentage (APSP) rates.[46]
12. Specifically, the State agreed to improve its APSP annually, and reach a goal of 80% by September, 2001. [47] The Defendants' proof submitted at trial indicated that the State has failed to meet its goals. The adjusted screening rate for 1999 was 19.8% and rose to 31.5% in 2000, far short of the baseline goals for those years, and the ultimate goal of 80% for 2001.[48] Dental screening rates also fell short of their targets.[49]
13. The Consent Decree also required that 100% of Children in State custody were to receive full EPSDT screening after September 1999.[50] As of May, 2001, 91% of children in State custody had received the 795 appropriate screens.[51] Although this figure is still short of the 1999 target, the 91% may be inflated because it *795 may not represent fully EPSDT-compliant screens[52] because the Department of Children's Services (DCS) reports a child having been adequately screened even if that child has not received the seven components required by federal law.[53] In addition, screens are often conducted more than thirty days after the child has entered custody, after the child's plan of care has already been established, thus minimizing the effect of the screen on the child's actual care.[54]
14. The Consent Decree also requires that the State develop adequate screening guidelines via an EPSDT Committee, and that the State adopt the guidelines as components of EPSDT screening guidelines for the TennCare providers.[55] The State formed a Guidelines Committee, which met over a period of sixteen months to make recommendations for screening guidelines.[56] The Committee was initially briefed on its duties under the Consent Decree[57], and given a specific mission.[58] For the most part, the Committee followed its original mission.[59] The Court finds that the committee's recommendations are sound, and, if fully implemented, may be effective.[60] However, the record does demonstrate that the Committee's recommendations have not been fully implemented by the providers,[61] although the Committee did disseminate its guidelines to the providers.[62] Nevertheless, the parties stipulated to the fact that "no document exists that proves that the screening guidelines developed by the Screening Guidelines Committee are mandatory for the MCOs/BHOs and their network providers."[63]
15. Defendants have made progress in achieving the target screening rates by contractually requiring their contractors to meet certain EPSDT screening goals. The most recent contracts[64] show that an MCO that has not reached an 80% adjusted screening ratio is now required to contract with the county health department to

perform EPSDT screenings.[65] In addition, the MCOs receive rewards when they reach certain baseline 796 screening ratio levels.[66] State employees also testified at *796 trial that as of the Summer of 2001, all ninety-
five county health departments are providing EPSDT screenings.[67]
Diagnosis and Treatment
16. Pursuant to the Consent Decree, children are to be referred for a more sophisticated assessment and diagnosis as indicated by properly conducted periodic screens, or as otherwise medically necessary.[68] In practice, the Government's attempts to ensure compliance with this aspect of the Consent Decree have been undermined by the efforts of the MCOs and BHOs, and inadequate provider networks.[69] Defendants were fully aware of the deficiencies in the TennCare network,[70] and have recently taken steps to increase provider participation by, for example, providing a State guarantee to share the financial risk with providers.[71]
17. As discussed above in relation to outreach and screening, systemic deficiencies have also made compliance with the Consent Decree's diagnosis provisions difficult. First, where there are overlapping medical and mental health issues, the MCOs and BHOs quibble over which entity is responsible for providing coverage. The State's TennCare contracts contribute to this ambiguity by sometimes failing to specify the responsible party, even though the BHOs do have coordination agreements with MCOs[72] In practice, individuals with overlapping issues sometimes "fall in the cracks"[73] and fail to receive services from either a BHO or MCO, as with, for example, attention deficit disorder patients.[74]
18. Additionally, the MCO and BHO contractors often refuse to authorize health assessments. Larry Faust of the Department of Health testified that even when MCOs and BHOs authorized services, they sometimes refused to pay the provider once the service was rendered.[75]
19. Even worse, the State's managed care system often provides incentives for financially-motivated denials of coverage by both MCOs and BHOs.[76] TennCare's contractors essentially gamble that they will be able to provide services to TennCare enrollees and still be able to make a profit. Tennessee pays the MCOs and BHOs a set amount of money for all of the services that an individual requires. Hence, the contractors have an incentive to cut costs by denying coverage.
797 20. Further, as discussed above, MCOs and BHOs often lack adequate provider *797 networks, creating a barrier to adequate diagnostic evaluations.[77] The lack of provider networks is attributable, in part, to the failure of the BHOs and MCOs to pay its providers for services rendered.[78] The lack of a provider network is also attributable to a scarcity of certain specialists across the nation.[79] While the State notes this problem, it has been unable to stop the hemorrhaging of the provider networks. The proof at trial demonstrates that, in some circumstances, provider participation has drastically declined.[80]
21. Compounding this problem is the fact that children enrolled in plans with inadequate provider networks find it difficult to obtain an out-of-network diagnosis because of the health plans' poor payment history.[81]
22. The TennCare Bureau has implemented an appellate procedure, pursuant to this Court's Order in Grier v. Neel.[82] However, the record demonstrates that even where the TennCare Bureau agrees that a denied service is medically necessary, the State routinely grants the BHOs and MCOs a `good cause' extension of time in which to provide services that the TennCare Solutions Unit has deemed medically necessary.[83] The trial record is that children often wait for extended periods of time to receive medically necessary services. For example, an e-mail from Jack Welch to Mark Anderson admits that medically necessary services were not rendered in the Shea O'Neill case, a case that was admittedly "seriously past due."[84] The Child's DCS case manager expressed his frustration not only with the "utter indifference" with which the MCO handled the child's case, but also the inability

of TennCare to compel the MCO to provide services.[85] The record reflects similar situations involving medically necessary services that, for various reasons, were either delayed or never provided to the patient.[86]
23. On the behavioral/ mental health side, the BHOs sometimes fail to connect children to an appropriate diagnostic resource capable of performing the required behavioral health assessment.[87] As with MCOs, there is an inadequate provider network for psychologists, psychiatrists and other behavioral health professionals.[88] The record also demonstrates that State policy makers are well-aware of the limited BHO provider network.[89]
798 *798 24. The record reveals that a number of the providers within the limited BHO provider network are not taking new patients, thus rendering those providers unavailable to new TennCare patients.[90]
25. Additionally, there is only one BHO in Tennessee.[91] The BHO does engage in some oversight, as the testimony of Deborah Cagle, Vice President at Advocare, demonstrates. Ms. Cagle testified that Advocare reviews and audits its providers, and has hired an independent auditor to review Advocare's providers.[92] However, the record shows, that although there is only one BHO, the State has failed to adequately monitor the BHO's provision of EPSDT and Consent Decreemandated services. More specifically, the State has not ensured that the BHO strictly mandate that its providers offer adequate services to their patients. The testimony of Dennis Elliot, Manager of the Network Adequacy Unit at TennCare, demonstrates that TennCare does not adequately assure that the BHO corrects deficiencies in the BHO's provider network.[93] Specifically, Mr. Elliot testified that TennCare requires the BHO to submit a corrective action plan to TennCare in order to address a deficiency. However, that action plan is approved if "it addresses deficiencies that [TennCare has] outlined, or if it is consistent with [TennCare's] findings that ... provider[s] of [a certain] type ... do not exist [in a given area]."[94] Thus, while the State does supervise the BHOs and even requires that they submit corrective action plans, the trial record does not indicate that those corrective action plans are actually binding, but only that the BHO draft a corrective action plan that addresses a deficiency or explains it away. TennCare oversight, while seemingly wellintentioned, is insufficient in a managed care system, where BHOs must be closely monitored.
26. Thus, children frequently do not receive appropriate diagnoses through the TennCare managed care system. Defendants admit that "sometimes the system breaks down,"[95] and the Court finds that in this case, the State Government's healthcare system has indeed broken down. However, the system itself is to blame for TennCare's failures. A depleted provider network and lack of proper oversight by MCOs and BHOs is directly attributable to the TennCare managed care system, which has proven to be unable to fully comply with both the EPSDT and the Consent Decree's requirements for proper diagnosis of children under 21.
Coordination of Services
27. The Consent Decree requires that the various agencies responsible for health, education, and social services coordinate their efforts. Specifically, the Consent Decree requires that the agencies formulate interagency agreements, and meet and communicate regularly to ensure that the agreements are implemented.[96] Clearly, State employees recognize the need for coordination among the various agencies. Former Deputy Commissioner 799 John Tighe stated that coordination and interaction between various State departments is an *799 essential aspect of a health program designed to provide the best services to children.[97] TennCare has now entered into agreements with the Departments of Education, Mental Health and Developmental Disabilities, and DCS.[98] Coordination among State agencies is formalized by Commissioner Tighe's responsibility as Deputy to the Governor for Health Policy. Included in this new office is the new Children's Health Initiative, directed by Dr. Joseph McLaughlin, which is responsible for coordinating EPSDT compliance and adjudicating disagreements among various health agencies.[99]
28. In addition, the Consent Decree mandates that the State oversee the implementation of clinical case management, as required by federal law.[100] The case management services available to TennCare enrollees are insufficient. Plaintiffs' proof included the testimony of a number of parents of children with serious healthcare

needs, the very children that are most in need of case management. Although the Department of Children's Services continues to increase the number of case managers it employs,[101] the testimony of the various parents demonstrates that, at least in some circumstances, case management is often insufficient.[102] The State put forth evidence that it is making progress in increasing the number of case managers, aided in part by the Consent Decree in the Brian A. v. Sundquist case.[103] However, the Court cannot consider future promises of increased case managers in determining whether the State is currently complying with the Consent Decree and federal law.
29. The State is also required to issue and implement procedures to facilitate coordination among various contractors. Although the State issued its contractors a list of other agencies and programs with which they should coordinate EPSDT services, the exchange of information between contractors remained "disorganized" and few of the Defendants' proposals to achieve coordination were implemented.[104] Coordination between various private health agencies is still inadequate. The lack of coordination among various non-governmental agencies is directly attributable to the very system under which public health is administered. Tennessee State government has failed to properly coordinate and implement proper case management and coordination services.
II. Conclusions of Law
A. Jurisdiction
The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), as the action implicates 42 U.S.C. § 1396 et seq.
B. Consent Decree
800 A Consent decrees is both a contract between the parties and an order of *800 the Court. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141 (6th. Cir.1992); Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983) (A consent decree is both "a voluntary settlement agreement which could be fully effective without judicial intervention" and "a final judicial order ... plac [ing] the power and prestige of the court behind the compromise struck by the parties."). In enforcing a Consent Decree, a court's interpretation is limited by its language. As the Supreme Court noted, "the scope of a consent decree must be discerned within its four corners." United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). However, where the Consent Decree references federal law, the court is bound to look to the law that serves as the foundation for the four corners of the consent decree. See Frew v. Gilbert, 109 F.Supp.2d 579 (E.D.Tex.2000)(noting that a court may stray from the four corners of a consent decree "to the extent that [Medicaid Act] requirements are clearly imported by the language of the decree.").
C. EPSDT Deficiencies
Because Tennessee accepts federal funding for its Medicaid program, it must comply with the relevant federal laws. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Although the State has received a federal Medicaid waiver, it is still bound to comply with the federal EPSDT requirements, even if the State utilizes a managed care system. 42 U.S.C. § 1396u-2.
Accordingly, the State is bound by federal law to provide "medically necessary" EPSDT services that fall within the scope of services listed at 42 U.S.C. § 1396d(e) to all state residents under the age of 21. The State has discretion with respect to the provision of these services, so long as the plan "complies satisfactorily" with federal law. Chisholm v. Hood, 110 F.Supp.2d 499, 506 (E.D.La.2000).

The EPSDT section of the Medicaid Act creates specifically-enforceable rights. Frew, 109 F.Supp.2d at 655-656. Additionally, the language of the EPSDT provisions is mandatory, not precatory; the provisions describe what the state must do, not what it may do. Wilder, 496 U.S. at 502, 110 S.Ct. 2510; Frew, supra, at 662-663.
Although States may take advantage of Medicaid waivers under Section 1915 of the Social Security Act, the "waiver may not be used to deny, delay, or limit access to medically necessary services that are required to be available to all Medicaid-eligible children under federal EPSDT rules."[105] EPSDT services are not optional, and may not be limited, even pursuant to a Medicaid waiver.[106]
The record shows that Defendants have failed to meet the federal EPSDT requirements. However, the Court also notes that the State's failure to adequately meet EPSDT requirements predates the TennCare program. Nevertheless, the TennCare program has exacerbated the State's EPSDT violations. The State Defendants now 801 work within a system that makes compliance virtually impossible.[107] The TennCare system was established to *801 allow the managed care entity to accomplish most of the administrative tasks associated with the provision of health services to the Medicaid population.[108]
EPSDT cannot be simply relinquished to the MCOs, as the State remains ultimately bound by the EPSDT regulations. Frew, 109 F.Supp.2d at 631. The State contracts with MCO providers to provide TennCare services, and most of what TennCare does has to happen through its contracts with the MCOs and BHOs.[109] The State's most recent contract with the MCOs spells out the scope of benefits covered under EPSDT, and clarifies whether the MCO, BHO or the State is responsible for providing the individual services.[110] The contract also requires that "all provider agreements must contain language that references the EPSDT benefit package found in Attachment IX and the agreement shall either physically incorporate Attachment IX or include language to require that the attachment be furnished to the provider upon request."[111] Hence the contracts, the documents that enable TennCare to actually implement its mandates, contain only general aspirational language regarding the contractors' duties under EPSDT, rather than clear, unambiguous language requiring absolute compliance with EPSDT.[112] The contracts reflect a "trickle down" approach to EPSDT, whereby hortatory language by the State will result in similar language by the contractors, which ultimately will lead to the providers following the EPSDT mandates. However, EPSDT does not trickle down; it requires hard work and mandatory language.[113]
Defendants disclaim responsibility for the ultimate provision of EPSDT-compliant services by a once-removed provider. However, as stated by another court in the Medicaid context, "[t]he 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 responsibility by contracting away its obligations to a private entity." J.K. By and Through R.K. v. Dillenberg, 836 F.Supp. 694, 699 (D.Ariz.1993). Clearly, the failure of State contractors to 802 follow the federal requirements does not relieve the State Defendants of their responsibilities.[114]*802 The State has failed to ensure compliance with all aspects of the EPSDT mandate: outreach, screening, treatment, and coordination.
(i) Outreach.
First, the record demonstrates that although the State has made efforts to assure that EPSDT requirements are carried out by the MCOs, the outreach activities conducted by the State contractors are deficient. While it is true that there is no single outreach method that is necessarily superior to all others, some outreach strategies are better than others. The State must assure that the contractors provide adequate outreach efforts. In fact, both the Consent Decree and federal law require the State to do so. The federal code requires that a state plan for medical assistance must provide for:
informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance ... of the availability of early and periodic screening diagnostic, and treatment services ...

42 U.S.C. § 1396a (a) 43(A). Implementing regulations further provide that the State must:
(1) Provide for a combination of written and oral methods designed to inform effectively all EPSDT eligible individuals (or their families) about the EPSDT program.
(2) Using clear and nontechnical language, provide information about the following 0907
(i) The benefits of preventive health care; (ii) The services available under the EPSDT program and where and how to obtain those services; (iii) That the services provided under the EPSDT program are without cost ...; and (iv) That necessary transportation and scheduling assistance ... is available to the EPSDT eligible individual upon request.
. . . . .
42 C.F.R. § 441.56(a)(2001). Hence, although there is no "right" way to conduct outreach, the federal code and regulations certainly set forth guidelines for effectively conducting outreach. Thus, although a court may have a difficult time defining what adequate outreach is, it is easy to determine what it is not. In Salazar v. District of Columbia, the court found that an English-only form asking Medicaid recipients if they wish to have EPSDT services was an insufficient form of outreach. 954 F.Supp. 278 (D.D.C.1996). While the outreach conducted by the State and its providers in this case was more substantial than in Salazar,[115] the fact that in Salazar individuals did not have enough information to adequately assess whether they required EPSDT services is similarly applicable to TennCare. Under TennCare, even where people received physical notification of the EPSDT program, that information was not presented in a useful and informative form. The federal code requires that the State inform all eligible persons of the availability of EPSDT services. A person can only be deemed "informed" when she has enough information to determine that she has been informed in the first place. Here, the fact are that various individuals were not made aware of their rights under EPSDT, and that this was, a least in part, directly attributable to the failure of the State to utilize effective forms of outreach. The State has failed to pro-actively assure that its contractors conduct effective outreach.
803 *803 TennCare employees appear to hold a laissez faire attitude toward the EPSDT outreach procedures of their contractors, preferring to allow the contractors to creatively reach out to their patient populations.[116] That approach has not yielded effective outreach. Creative government is only effective when that creativity spurs positive change. The MCOs' outreach efforts have been insufficient, and the State has failed to engage in adequate oversight to ensure adequate outreach. As the Seventh Circuit Court of Appeals recognized twentyseven years ago, "EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose [of EPSDT]." Stanton v. Bond, 504 F.2d 1246 (7th Cir. 1974). Indeed, without proper outreach, EPSDT is worthless.
The State's failure to meet the federal EPSDT requirements stems not from its refusal to meet those requirements, but from a fundamental, systemic inability to merge managed care and EPSDT. While managed care recognizes the benefits associated with allowing a non-governmental entity to assume duties that were previously conducted by government, EPSDT demands compliance by the State. Therefore, the State's failure to comply with the Consent Decree's outreach requirements stems, to a large part, from the systemic roadblocks to achieving proper outreach. Hence, the system, not well-intentioned civil servants, is to blame for the EPSDT shortfalls. Nevertheless, insufficient outreach by TennCare and its contractors constitutes a violation of federal EPSDT law. Furthermore, the lack of outreach impacts the ability of the Defendants to comply with other EPSDT requirements: screening, diagnosis and treatment.
(ii) Screening.
The State has failed to meet adequate screening levels under EPSDT and the Consent Decree. The Defendants should be commended for attempting to use performance indicators to reward and penalize its contractors. However, EPSDT is a federal requirement. The State may not simply throw monetary incentives at a contractor,

as a trainer throws fish to a sea lion, in order to meet its screening mandates. Meeting EPSDT screening requirements is a duty, not something that merits a reward.
The Federal Code requires that, after a person has been informed of his or her rights under EPSDT, the State is responsible for "providing or arranging for the provision of ... [EPSDT] screening services in all cases where they are requested." 42 U.S.C. § 1396a(a)(43)(B). Furthermore, the relevant agency regulations provide that:
(1) The agency must provide to eligible EPSDT recipients who request it, screening (periodic comprehensive child health assessments); that is, regularly scheduled examinations and evaluations of the general physical and mental health, growth, development, and nutritional status of infants, children, and youth. As a minimum, these screenings must include, but are not limited to:
(i) Comprehensive health and developmental history; (ii) Comprehensive unclothed physical examination; (iii) Appropriate vision testing; (iv) Appropriate hearing testing; (v) Appropriate laboratory tests. (vi) Dental screening services ...
42 C.F.R. § 441.56(b)(2001). Additionally, the regulations require that the State agency must implement a 804 periodicity schedule for screening services that "specifies *804 screening services applicable at each stage of the
recipient's life...." 42 C.F.R. § 441.58 (2001).
It is clear for the record that not only have Defendants failed to comply with the Department of Health and Human Services' regulations, but Defendants have simply failed to meet the bare requirements of the EPSDT laws. Defendants indicate that low screening rates in this region are partly attributable to both an ill-informed physician corps and a patient population that is not as willing to see a doctor for well-child care.[117] However, Government's job is to inform both the provider and consumer communities of the federal screening requirements. In fact, federal law requires that the State engage in outreach to inform the patients of EPSDT. [118] The Court agrees that Tennessee may have a "harder road to hoe" than some other states, but that does not mean that the entrenched attitudes of providers and patients can be used as a shield against liability for failure to implement EPSDT requirements. Defendants concede that they "have not and will not meet the EPSDT percentages required by the Consent Decree." The Court agrees.
In addition, because the State of Tennessee has not received a waiver of its federal EPSDT duties,[119] the State itself remains liable for assuring compliance with federal EPSDT.[120] As already discussed, the State's Medicaid waiver does not absolve it from its responsibilities under EPSDT. First, the State has failed to adequately assure that its contractors conduct regular screens for all children. Second, even where there are screens, the State has failed to adopt and implement guidelines to ensure their effectiveness. The State Defendants have thus failed to meet their duty to comply with federal EPSDT screening requirements, as well as the Consent Decree's specific screening goals.

(iii) Diagnosis and Treatment.

Federal EPSDT law requires that after the State has engaged in outreach and screening, it is also responsible for "arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by ... screening." 42 U.S.C. § 1396a(a)(43)(C). Furthermore, federal regulations require that:

In addition to any diagnostic and treatment services included in the plan, the agency must provide

805

to eligible EPSDT recipients, the following services, the need for which is indicated by *805

screening, even if the services are not included in the plan:

(1) Diagnosis of and treatment for defects in vision and hearing, including eyeglasses and hearing aids; (2) Dental care, at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health; and (3) Appropriate immunizations. (If it is

determined at the time of screening that immunization is needed and appropriate to provide at the time of screening, then immunization treatment must be provided at that time.)
42 C.F.R. § 441.56(c)
The State has failed to meet this federal mandate. TennCare does not allow individuals to receive adequate diagnosis and treatment through the various providers. The incentives created by capitated payments to the MCOs and BHOs result in a failure of the State system to assure that each State resident under the age of 21 receives the care that EPSDT mandates. As the Court has previously noted, there are "pecuniary incentives that MCOs [and BHOs] have for denying, suspending, or terminating care under the TennCare system. ..." Daniels v. Wadley, 926 F.Supp. 1305, 1308 (M.D.Tenn.1996).
Therefore, the Court will exercise its equitable powers to find that the State Defendants have violated the federal EPSDT diagnosis and treatment requirements. The TennCare system does not allow for the delivery of necessary diagnosis treatment to the under 21 TennCare population.
(iv) Case Management and Coordination
The Consent Decree and federal law also require that the State coordinate EPSDT services with various other services and programs.[121] Government regulations further provide that "... the [State] should make use of ... public health, mental health, and education program ... to ensure an effective child health program." 42 C.F.R. § 441.61 (2001).
The proof shows that the State has failed to adequately ensure the coordination of EPSDT services among the various governmental, private and non-profit providers of services. The TennCare program, although wellintentioned, is disjointed. Defendants concede that this may have been the case, but they point to the appointment Commissioner Tighe as Deputy to the Governor for Health Policy and Dr. Joseph McLaughlin, Director of the Children's Health Initiative. Although the State has established an office that is essentially dedicated to ensuring EPSDT compliance, that office is powerless to address the Court's greatest concerns with the TennCare program because the office does not have the mandate to directly control the actions of the MCOs or the BHOs. [122] Adding another sailor to a sinking ship will not prevent it from sinking. In the same way, adding yet another layer of bureaucracy to an ineffective TennCare system will not succeed in reforming it.
In many instances children lack a case manager. The Frew court recognized that failure to provide case management services may constitute a violation of EPSDT. 109 F.Supp.2d at 674. This Court concurs, and finds 806 that failure to provide adequate *806 case management services in this case constitute a violation of federal law. Without effective case management, the individual child lacks an effective coordination of various services that he or she needs to ensure that EPSDT services are rendered.
D. Contempt
A Consent Decree is both a contract and an order of the court. Thus, as with any order, the parties have a duty to take "... all reasonable steps within their power to comply with the court's order." Glover v. Johnson, 934 F.2d 703, 708 (6th Cir.1991). Courts generally have inherent powers to assure the administration of justice. Foremost among these is the power to punish for contempt. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911); see also Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (Courts have "inherent power to enforce compliance with their lawful order through civil contempt."). Accordingly, the Court retains its inherent power to "protect the integrity of the decree with its contempt powers." Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1994).
To prove a case of civil contempt, Plaintiffs must provide clear and convincing evidence that the State violated the Court's prior order. N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir.1987); Harrison v. Metropolitan Gov't of Nashville and Davidson Co., 80 F.3d 1107, 1112. The Sixth Circuit demands substantial compliance with the Court's Order and demands that a party must show they took "all reasonable steps within their power to

comply with the court's Order." Peppers v. Barry, 873 F.2d 967 (6th Cir.1989). It is not enough for a party to claim that they made an effort to comply; the law demands substantial compliance with the Court's Order.
If the Plaintiffs successfully prove a violation of the Court's Order, the State may counter by a specific showing of a present inability to comply with the Court's Order.[123]Id. Specifically, the State may show that they took all reasonable steps to achieve substantial compliance, and that substantial compliance was, in fact, achieved. Id. at 969; see also United States v. State of Tennessee, 925 F.Supp. 1292, 1302 (W.D.Tenn.1995). Whether a party has substantially complied with the Court order is determined based on the circumstances of the individual case. See e.g. id.
The issue to be determined, therefore, is whether the State Defendants have achieved substantial compliance with the Consent Decree (a court order).
However, because the Court bases this decision on failure to comply with federal law, the Court will hold in abeyance a decision on whether Defendants' actions thus far constitute civil contempt. The Court notes, however, that the Defendants' inability to comply with the Consent Decree and Agreed Orders stems not from their recalcitrance, but from a systemic black hole into which any agreement to comply with a court order would collapse. The record indicates that the State made great efforts to comply with the Court's Orders. However, the Court reserves the right to find Defendants in contempt in the future.
Nevertheless, whereas Defendants may theoretically escape contempt by a showing of substantial compliance 807 with the Consent Decree, federal law requires strict *807 compliance. Hence, the Court finds that Defendants'
failure to comply with the EPSDT mandate does constitute a violation of federal law. Although the State Defendants attempted to comply with the Consent Decree, the Decree is itself buttressed by the federal EPSDT laws. Well-intentioned efforts to comply with the law are simply insufficient. After years of attempting to comply with federal law, TennCare, as it relates to the under-21 population, has proven to be unworkable.
E. Remedy
The Court, upon finding that Defendants have violated the federal EPSDT law, must determine what remedy should be imposed. In fashioning the appropriate sanctions, the court must seek to balance intrusiveness and effectiveness of the possible sanctions. See e.g. Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)(noting that a fine is less intrusive than imprisonment). A court has great discretion to fashion an appropriate sanction, using its understanding of the case as a basis for imposing those sanctions. Glover v. Johnson, 199 F.3d 310, 312 (6th Cir.1999).
After reviewing the record in this case, the Court declines to impose monetary sanctions on Defendants, a remedy requested by the Plaintiffs, as this is certainly not in the interest of justice.[124] Nevertheless, the Court, in its role as a court of equity, may fashion a remedy to ensure compliance with federal law. Because the TennCare program has proven to be unable to ensure that the under-21 population receives EPSDT-compliant services, the Court orders the Defendants to carve out the under-21 population from the larger pool of TennCare recipients. In order to ensure compliance with federal law, and to determine the precise contours of a carve out for the under-21 population, the Court will appoint a special master to draft an EPSDT-compliant plan for children less than 21 in Tennessee, as discussed in more detail below.
F. Special Master
Plaintiffs request that the Court appoint a special master for the purpose of "assisting the Court to ensure compliance."[125] Under Federal Rule 53, "[t]he court in which any action is pending may appoint a special master therein." Fed. R.Civ.P. 53(a). However, "[a] reference to a special master shall be the exception, not the rule ... [and the Court's authority to appoint a special master is limited to] exceptional circumstances." Fed.R.Civ.P. 53(b). See McCormick v. Western Kentucky Navigation, Inc., 993 F.2d 568, 569 (6th Cir.1993). The use of a special master to ensure compliance with a court's remedial order is well-established. See Reed v. Rhodes, 635 F.2d 556 (6th Cir.1980)(upholding the use of an "administrator of desegregation"). The Court may

appoint a special master for a variety of reasons, including the "problems associated with compliance with the district court order." United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir. 1990). However, the appointment of a special master to ensure the implementation of a court order by a government entity is "an extraordinary remedy." United States v. City of Parma, Ohio, 661 F.2d 562, 578-9 (6th Cir.1981).
808 *808 Nevertheless, "courts have long recognized their inherent powers to provide themselves with appropriate instruments for the performance of their duties, including the authority to appoint persons unconnected with the court, such as special masters ... with or without the consent of the parties." Ex Parte Peterson, 253 U.S. 300, 314, 40 S.Ct. 543, 64 L.Ed. 919 (1920); Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746 (6th Cir.1979) (authority to appoint "expert advisors or consultants" derives from either Rule 53 or court's inherent authority).
The Court will, under its inherent equitable authority, appoint a special master to facilitate the implementation of an EPSDT-compliant State Medicaid plan. The special master is charged with working with the parties to develop, through mediation, an EPSDT-compliant system for the under-21 population in Tennessee.
The Defendants claim that the appointment of a special master in this situation would violate recent Supreme Court precedent. In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court held that "it is not the role of court, but that of political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution." This Court heeds the Supreme Court's decision, and in appointing a special counsel, the Court only intends to enable to an outside entity to foster a dialogue between Plaintiffs and Defendants, and to ultimately fashion a system that comports with EPSDT.
In Lewis, the Court held that the District Court's appointment of a special master was an overly intrusive remedy, in light of the fact that the Court charged the special master with devising a remedial plan, and severely limited the remedies that the master could choose. Id. at 363, 116 S.Ct. 2174. However, this Court does not severely limit the remedies that the special master may choose in this case. In addition, the special master is specifically charged with mediating an EPSDT-compliant plan. Second, the Lewis case involved prison litigation, where the Court's remedy completely overrode the State's discretionary policy-making. The Supreme Court based its decision on the District Court's failure to accord adequate deference to State prison officials: first, the Court disapproved of the District Court's finding that the administrative restrictions on lockdown prisoners' access to law libraries was unjustified. Second, the Court found that the injunctive Order was "wildly ... obtrusive". Id. at 361, 116 S.Ct. 2174. Third, the Court found that the Order was "developed through a process that failed to give adequate consideration to the views of state prison authorities." Id.
The Court notes the concerns discussed in Lewis. However, those concerns are not applicable to the circumstances in this case. This Court only orders that the special master craft a plan, by mediation of the parties' positions, that addresses an area that the State has been repeatedly unable to address. In Lewis, the majority opinion specifically stated that the Court must give prison officials an opportunity to correct internal errors. Id at 364 n. 8, 116 S.Ct. 2174 (criticizing the dissent for misstating the holding of earlier Court precedent, mandating that the Court allow the State an opportunity to correct errors). In addition, the special master's charge is not wildly intrusive. Instead, the Court charges the special master with a limited task 0907 fashioning an EPSDTcompliant system with the aid of the parties. While this is certainly a large task, it is not a wildly obtrusive remedy that contemplates the Court becoming enmeshed in the minutiae of government operations in the name of the 809 Constitution. Id. at 361, 116 S.Ct. 2174 (internal citations omitted). Finally, the Order was developed through a *809 process that gives ample consideration to the positions of State officials. Indeed, not only has the State had an ample opportunity to inform this Court of its views, but it has had an opportunity, over the past three years, to correct the errors that led to the imposition of the Consent Decree in the first place. In addition, the State will have an opportunity to inform the special master of its viewpoints, and ultimately work with the special master, through mediation with the Plaintiffs, to craft an EPSDT-compliant system. Therefore, although this Court takes note of Lewis, that decision does not limit the ability of this Court to appoint a special master, to be chosen by both parties, to ultimately craft an EPSDT-compliant system with the advice and input of both parties.
The Court recognizes that the systemic deficiencies associated with the TennCare program make compliance with the EPSDT mandate nearly impossible. Defendants continue to contend that a deliberate process of trial and error will ultimately produce an EPSDT-compliant system. However, this very process has failed to produce an EPSDT-compliant system. Thus, while the Court hesitates to second-guess the elected branch of State

government, it will do so in this instance. The Court does not doubt that Defendants are well-intentioned and knowledgeable. However, EPSDT cannot wait for the State to perfect a system that is inherently ill-suited to provide EPSDT services. That is precisely why Defendants require an outside entity to comply with a duty that transcends the Consent Decree. However, The Court does not possess the technical expertise to adequately assure both compliance with the Consent Decree's requirements and the federal EPSDT mandate. The appointment of a special master with expertise in this area would allow the Court to adequately supervise the implementation of an EPSDT-compliant plan for all State residents under the age of 21.
The special master shall, with the input of both Defendants and Plaintiffs, draft an EPSDT-compliant plan for the carved-out under 21 population. Upon Court approval, that plan shall be immediately implemented by Defendants. Specifically, the special master shall use his or her expertise to develop a system, perhaps modeled after another State's system, that both comports with the State's duties under the Medicaid law and Medicaid Waiver and the EPSDT law. The special master shall, with the input of both parties, recommend to the Court a specific plan for ensuring EPSDT compliance.
Part Two. Defendants' Proposed Revisions
A. Defendants' Revised Remedial Plan-Findings of Fact
1. Pursuant to the Consent Decree, the parties were to submit a specific remedial plan addressing the coordination and delivery of services under EPSDT law for children in State custody or at risk of entering State custody. After extensive negotiations, the parties jointly submitted a Remedial Plan for Children in State Custody and the Plan for Children at Serious Risk of Entering State Custody (collectively, "Remedial Plan") on May 11, 2000. The Court approved the Remedial Plan on May 16, 2000, in two Agreed Orders. (Doc. Nos.58, 60).
2. The May, 2000 Agreed Orders imposed on the Defendants several requirements designed to improve the care of children in, or at risk of entering, State custody. The children became a subclass that was to be carved out from the larger class implicated by the Consent Decree. The Remedial Plan had four basic components. First, Defendants were to develop a Best Practice Network (BPN) comprised of primary care providers and other health 810 *810 care resources. The BPN would coordinate the dissemination of medical and behavioral health services to children in the subclass.
3. The second component involved the development of five Centers of Excellence (COE), designed to improve the delivery of services at a tertiary level of care. The COEs were to have a dual function: monitoring of the Best Practice guidelines and BPN providers, and serving as a reference point and "safety net" for local providers when those providers needed assistance in diagnosing or managing a child's health problems.[126]
4. Third, the plan contemplated the creation of an Implementation Team in the State Health Department. The Implementation Team was to have a variety of functions. Primarily, the Implementation Team was to serve as a swat team for children at risk of entering State Custody. The Implementation Team was to review individual cases with a variety of organizations to ensure that appropriate services were provided to the child in a timely fashion. All care deemed necessary by the implementation team would be charged to the BHO, subject to the TennCare appeal process.[127]
5. The last component of the Remedial Plan was an oversight function. The Remedial Plan contemplated the establishment of a Steering Panel, comprised of various advocates and other entities, including both Plaintiffs' and Defendants' counsel.[128] Final decision-making is vested in the Executive Oversight Committee, which includes counsel for both parties, DCS and DOH representatives, consultant Paul Demuro, and a representative for a Center of Excellence.[129]
6. Soon after the entry of the May 2000 Agreed Orders, the Remedial Plan proved to be unworkable. The State created the Implementation Team, which was headed by a capable pediatrician, Dr. Larry Faust. Dr. Faust began recruiting for the Best Practice Network in May, 2000, by contacting pediatricians all over the State via e-mail,

telephone, and in person, and also spoke to Steering Panel members.[130] The Steering Panel was appointed, and subcommittees were formed.[131] The Steering Panel and the Executive Oversight Committee met frequently.[132]
7. However, the State has not fully adhered to the Remedial Plan. First, the State was unable to recruit sufficient physicians for the BPN.[133] The providers were hesitant to contract with the State's MCOs because of past negative experiences with the MCOs.[134] The State was unable to contract with COE's because they, too, had concerns about dealing with the MCOs and about ultimately serving as "safety nets."[135] These concerns were not unfounded, given the fact that Xantus was in receivership and Access MedPlus went into supervision.[136] Hence, the Remedial Plan was never fully implemented.
811 *811 8. The State has now proposed a revised Remedial Plan. Central to the State's proposed revisions is a "carve-out" for the delivery of health services to children in State custody. The plan contemplates that these children will be enrolled in a single MCO and BHO,[137] rather than being distributed among all of the TennCare contractors. As of July 1, 2001, the State has already reassigned all children in State custody to TennCare Select, to be administered by BlueCross.[138]
9. The State believes that limiting the plan to only one MCO and one BHO will address many of the problems that providers had with the original Remedial Plan, including the hassle of having to deal with multiple TennCare contractors.[139] The Revised Remedial Plan also allows advocates other than DCS to make referrals to the Implementation Team,[140] and requires the State to contract with an advocacy group to make available additional resources for concerned individuals seeking to access services for children at risk of entering State Custody.[141] Although the Revised Remedial Plan proposes other changes, the forgoing are the most salient proposals.
10. The Revised Remedial Plan was formally approved by both the Steering Panel and the Executive Oversight Committee, with only Plaintiffs' counsel and an advocate disapproving.[142] The State has begun to move forward with its plans for the Revised Remedial Plan by working with BlueCross to develop the infrastructure necessary to create the Best Practice Network.[143] The State opines that only this Court's Order is necessary for it to proceed with the Revisions.
B. Revision of Consent Decree, including the Remedial PlanConclusions of Law
Rule 60 of the Federal Rules of Civil Procedure allows a court to "relieve a party ... from a final judgment, order, or proceeding ... [when] it is no longer equitable that the judgment should have prospective application." Fed.R.Civ.P. 60(b)(5). The Supreme Court announced its rule for the modification of institutional consent decrees in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). In Rufo, the Court held that a party seeking modification of a consent decree must show that "a significant change in circumstances warrants revision of the decree." 502 U.S. at 383, 112 S.Ct. 748. The party seeking modification may meet its initial burden by "showing either a significant change in factual circumstances or in law." Id. Modification of a consent decree is appropriate: (1) "when changed factual conditions make compliance with the decree substantially more onerous," (2) "when a decree proves to be unworkable because of unforeseen obstacles," or (3) "when enforcement of the decree without modification would be detrimental to the public interest." Id. Accord Vanguards of Cleveland, 23 F.3d 1013 (6th Cir.1994); Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992). But "modification should not be granted where a party relied upon events 812 that actually *812 were anticipated at the time it entered into a decree." Id.
Here, the State Defendants moved for a modification of the May 2000 Agreed Orders. (Doc. No. 63). In addition, Defendants claim that the Remedial Plan is unworkable, and assert that their proposed modifications "further the intent of the original parties in a more efficient way." (Def. Pretrial Br., Doc. No. 123, p. 9). In support of their

Motion, Defendants cite problems associated with convincing providers to participate in the TennCare program, and the large population of children with unmet needs. However, Defendants do not cite any authority for the proposition that a Consent Decree may be vacated upon the unwillingness of providers to sign up to a program that may not be in those providers' own interest. In fact, this has been a problem from the inception of the TennCare program.[144] Defendants fail to demonstrate how the alleged barriers to implementation represent a "changed factual circumstance" or "unforseen obstacle" that would warrant modification of the Decree or the Remedial Plan, as per Rufo. The facts indicate that Defendants were aware, long before filing their Motion to Stay the Enforcement of the Remedial Plan, that providers were unwilling to participate in some TennCare managed care organizations. In fact, this was documented in the 1998 DeMuro Report.[145] The Court does not find the existence of a substantial change in circumstances.
The Court agrees that the current Remedial Plan is unworkable, and that modification may, in theory be appropriate. However, the Court is not convinced that the Revised Remedial Plan adequately addresses the main problems associated with the original Remedial Plan. Specifically, the managed care structure of TennCare may create the problems encountered by and among the State, MCOs and BHOs and providers. The new remedial plan does nothing to assuage the providers' distrust of the MCOs. The Revised Remedial Plan also does not address the apparent disconnect between the Bureau of TennCare and the Implementation Team at the Department of Health. A new Remedial Plan that still operates under the very same managed care system may not adequately address the Court's concerns with the TennCare system as it relates to the under 21 population. The Defendants have not made a showing of how the Revised Remedial Plan will ultimately succeed where the current Remedial Plan has failed.
The Court also does not find sufficient reasons for modifying any part of the Consent Decree at this time, for the reasons discussed in relation to the Agreed Orders. The Defendants have failed to show how the factual situation in this case mandates revision of the Consent Decree under the Rufo test.
However, as discussed below in Part Three, the special master will have the authority to craft an EPSDTcompliant plan for all TennCare recipients under the age of 21 in Tennessee. The Special master shall also consider the proposed carve-out for children in State custody to determine whether the proposed Revised Remedial Plan or any different Remedial Plan would adequately address the health care needs of children in or at risk of entering State custody.
Part Three. Conclusion: The Special Master's Responsibilities
The special master is charged with developing a workable, EPSDT-compliant system for all TennCare recipients 813 under 21. As part of that charge, the special master shall also consider the specific *813 problems associated
with children in, or at risk of entering, State custody. Until that time, the Consent Decree and May 2000 Orders will remain unchanged.
The special master, appointed under this Court's inherent powers, is specifically charged with both mediation between the parties and, ultimately, the drafting of an EPSDT-compliant plan for the provision of medical and mental health services (under the TennCare waiver, or otherwise), to the under-21 population of Medicaideligibles and other TennCare enrollees in Tennessee. The special master shall be chosen by both parties. In the event that the parties are unable to agree on a special master, each party shall submit three nominees to the Court for the Court's consideration. The special master shall conduct a mediation with both parties in order to develop an EPSDT-compliant plan. The plan shall also contain necessary revisions to the Consent Decree and the Remedial Plan. In the event that the mediation does not produce a mutually-agreeable plan, each party shall then draft a plan that both complies with EPSDT and addresses this Court's problems with the current TennCare plan's provision of services to the under 21 TennCare population, as discussed in the first part of this opinion. The plans shall include appropriate revisions to the Consent Decree and the Remedial Plan. After the special master has considered both plans, the special master shall conduct a mediation to attempt to reconcile the plans. The special master shall ultimately, with the advice of both parties, draft and submit to the Court an EPSDT-compliant plan for the provision of medical and mental health services to children in the Plaintiffs' class. In addition, the plan shall specifically address the needs of children in, or at risk of entering, State custody. The special master's plan

shall either supplement or replace the Consent Decree and Remedial Plan, depending on the assent of both parties. In either case, the EPSDT-compliant plan shall be binding on the Defendants.
The Court bases this remedy on its equitable power to appoint an expert/ special master. The Court finds that the importance of the situation merits the imposition of a special master to mediate an ultimate solution to the EPSDT deficiencies inherent in the TennCare program. Although the Court's remedy is broad, it is well within this Court's equitable power. "Congress knows how to deprive a court of broad equitable power when it chooses to do so. It did not choose to do so in this instance." Stanton, 504 F.2d at 1251 (citing Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974)).
The Court recognizes that Defendants have attempted to comply with the Consent Decree. The Defendants continue to struggle with the TennCare system, more than seven years after it began. However, attempts to comply are simply not enough where the healthcare of children is involved. The Consent Decree is rooted in the federal EPSDT mandate, which recognizes the importance of early screening, diagnosis and treatment to the well-being of healthy children and adults. The Court will not find Defendants in contempt of Court at this time, for the reasons discussed above. The Court reserves the right to find Defendants in contempt in the future. Although Defendants have made strides in attempting to comply with the federal EPSDT standards, a special master is necessary to assure that Tennessee provides the healthcare that care that Congress envisioned more than thirty years ago, when EPSDT provisions were first enacted. Tennessee is not the only State that has failed to comply 814 with federal EPSDT requirement,[146] and it will not be *814 the last. However, the very State that helped create the model for the creative use of managed care in the Medicaid context, now has the opportunity to lead the nation again, by ensuring that every eligible child receives proper EPSDT services. With the cooperation of all parties involved and the Court's continued supervision, that opportunity may become a reality.
[1] For background on Medicaid managed care, with an emphasis on TennCare, see James F. Blumstein and Frank A. Sloan, Health Care Reform Through Medicaid Managed Care: Tennessee (TennCare) as a Case Study and a Paradigm, 53 Vand. L.Rev. 125 (2000).
[2] The State has received a three-year extension of the waiver, pursuant to 42 U.S.C. § 1396n.
[3] For a general discussion of section 1115 waivers, see Judith M. Rosenberg and David T. Zaring, Managing Medicaid Waivers: Section 1115, 32 Harv. J. on Legis. 545 (1995).
[4] Under the current risk arrangement, approximately 784,000 enrollees are in plans where the State is at risk. Approximately 460,000 enrollees are in plans where the State has shared risk. Of the approximately 1,429,000 total enrollees, about 655,000 are children in the Plaintiffs' class. Of those in the Plaintiffs' class, approximately 466,000 are in plans for which the State has full or shared risk, and approximately 190,000 are in plans that are at full risk.
[5] For example, nursing facility service and home and community-based services, behavioral drug services, are not subject to risk agreements.
[6] DCS administers services for children in custody. See infra.
[7] On October 1, 2001, the State attempted to amend the TennCare plan to exclude uninsurables. Another Court in this District recently preliminarily enjoined the State from enforcement of the proposed amendments. Rosen v. Tenn. Comm'r of Fin. and Admin, No. 3:98-0627 (M.D.Tenn.2001)(Haynes, J.).
[8] The Court notes that the State has proposed a revision to the TennCare program in its October, 2001 proposed waiver to the TennCare program. See State of Tennessee, Bureau of TennCare, Tenn Care Waiver, available at ht tp://www.state.tn.us/tenncare/waiverdoc.html. However, as the proposal will not even be considered by the Federal Government until the end of this year, the Court will not consider the proposal at this time.
[9] The EPSDT provisions were passed in 1967 as part of the Social Security Amendments of 1967 (P.L. 90-248). President Johnson recommended the amendments in early 1967 in response to the lack of medical care for

America's poorest children. See Welfare of Children, H.R. Doc. No. 54, 90th Cong., 1st. Sess. (1967). In 1989, the Congress bolstered the EPSDT provisions by prohibiting the states from restricting EPSDT benefits to benefits offered under a state's Medicaid program. Omnibus Budget Reconciliation Act of 1989. Pub.L. No. 101-239, § 6403, 103 Stat. 2106, 2262-64, codified at 42 U.S.C. § 1396d(r)(2001). In effect, this was a recognition of the broad scope of EPSDT.
[10] Consent Decree, pp. 4-5.
[11] For example, Commissioner John Tighe expressed his frustration with not being able to implement certain policy recommendations, and noted that his efforts were constrained by others in State Government. Pl. Exh. H 5, p. 12.
[12] Director of Quality Oversight and former Director of Policy and Planning, respectively, for TennCare.
[13] Baird Test., Trans. (Vol.XVIII G), p. 2448; Def. Exh. No. 40.
[14] Def. Exh. No. 39. (MCO and BHO Contract Amendment Highlights).
[15] Def. Pre Trial Br., Doc. No. 123, at 9
[16] See Rosenbaum test, Trans. (Vol.IV), p. 557, 561; see generally, Medicaid: Stronger Efforts Needed to Ensure Children's Access to Health Screening Services, GAO-010749, G.A.O. Report to Congressional Requesters (July, 2001)(discussing problems associated with providing EPSDT services to children in states with a managed care system).
[17] The Consent Decree itself recognized that State officials' development of the Consent Decree is "itself evidence of their genuine commitment to reform." Consent Decree, ¶ 30. As the Plaintiffs acknowledge, most State employees are "dedicated and able" and "aware of the problems" associated with the current state of TennCare. Pl. Post Trial Br. at 248. See testimony of Mark Reynolds, TennCare, Trans. (Vol XIII, p. 1614-15) (Indicating that those in charge of the TennCare program have been dedicated and able).
[18] As discussed in more detail below, the TennCare managed care system provides no incentives for an MCO to provide EPSDT services. Plaintiffs acknowledge that a "dysfunctional" State Government overrides the wellintentioned work of the State Defendants. Pl. Post Trial Brief, at 248.
[19] Consent Decree, ¶ 40
[20] Pl. Post Hearing Br., Doc. No. 188, at p. 11
[21] Consent Decree., ¶ 39(a).
[22] Id., ¶ 40.
[23] Id., ¶ 39(c)(The State must "provide a combination of written and oral information so that the program is clearly and easily understandable.").
[24] Id., ¶ 39(d).
[25] Tiller Dep. (Pl.Exh. P 23), p. 48-49.
[26] Pl. Exh. B-1, p. 1-21 (Tiller letters and plans for coordinated outreach efforts).
[27] Okolo Dep. (Pl.Exh. P 23), p. 106. (Deposition of Director of Quality Oversight at TennCare, testifying that outreach was "going o.k ... because that's what most people do. Most businesses try to connect with their customers, which is what outreach is."). Although Ms. Tiller understood the need for a coordinated approach, her letters and proposals were apparently not heeded.
[28] Pl. Exh. B 4.
[29] Pl. Exh. B 5.

[30] Tiller Dep., pp. 51-52. [31] Tiller test., Trans (Vol.IX), pp 68, 84-85, 88-89. [32] Okolo Dep., p. 106. [33] Tiller Test. Trans. (Vol.IX), p. 62. Due to budgetary constraints, however, the State did not implement outreach proposals of Ms. Tiller. [34] See, e.g., Preston Test., Trans. (Vol.XVIII A), p. 2265; Def. Exh. No. 48 (Access Med Plus EPSDT brochure in Spanish). [35] Thornton Test., Trans. Vol XIX, p. 2519; Okolo Test., Trans. (Vol.XIX), p. 2555-56. [36] Preston Test. Trans. (Vol.XVIII A), pp. 2258-61; Earl Clemmons Test., Trans. (Vol.XVIII G), pp. 2407-08; Thornton Test., Trans. Vol. IX, pp. 2508, 2512-13; Boucher Test., Trans. Vol. XIX, pp. 2603-05. [37] Boucher Test., supra, at 2594-2606. [38] Id. at 2613. [39] Earl Clemmons Test., supra, at 2422-23. [40] The Court is aware that the Plaintiffs' witnesses present a skewed subsection of the TennCare population. Nevertheless, these individuals represent TennCare members and parents that were not aware of EPSDT. [41] Defreece Dep., Pl. Exh. P 8, p. 14. [42] Stewart Test., Trans. (Vol.III), p. 474. [43] Kinnie Test., Trans. (Vol.IV), p. 605. [44] Federal law requires: (1) screening services; (2) vision services; (3) dental services; (4) hearing services; and (5) "such other necessary health care ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan." 42 U.S.C. § 1396d(r) (2001). [45] Consent Decree, ¶ 44 [46] Id. ¶ 45-47 [47] Id. ¶ 50. [48] Pl. Exh. C-65, p. 1; July 2001 Semi Annual Progress Report (Doc. 158), p. 8. [49] The Consent Decree requires that the Defendants achieve an 80% screening rate by September 30, 2003. As of the filing of the semi-annual report in 2000, only 33% of all TennCare children received dental screening that the met all of the legal requirements. July 2001 Semi Annual Report (Doc. No. 158), p. 8. [50] Consent Decree, ¶ 52 [51] July 2001 Semi Annual Report (Doc. No. 158), p. 8. [52] Franklyn test., Trans.(Vol.XV), pp. 1869-1870. [53] Id. [54] Franklyn Depo. Pl. Exh. P-12, p. 128; Pl. Exh. 0-6, pp. 6-7 (Audit of Primary Treatment Centers). [55] Consent Decree, ¶ 44. [56] McLaughlin Test., Trans. (Vol.XII), p. 1634.

[57] Pl. Exh.090757.
[58] Id., attach. No. 1.
[59] As time passed, the committee began to focus on standards that are "practical, and which do not place an undue burden upon providers." Pl. Exh. 61, p. 2. (Committee Minutes, October 9, 1998). However, the record does not indicate that the committee ignored its duties under the Consent Decree.
[60] Plaintiffs' expert, Dr. Heflinger, testified that the EPSDT Committee's recommendations were insufficient. Trans. (Vol.VII A), p. 1054. However, Dr. Heflinger's expertise is limited to mental health areas, and the Court does not find that the EPSDT committee's recommendations are inherently inadequate.
[61] See e.g. Pl. M 81, Letter from Karen Oldham to Mark Reynolds, indicating that screens were not being performed adequately as of late 2000.
[62] Def. Exh. 81, p. 20 and attach. VIII
[63] First Stipulation of Facts, ¶ 15.
[64] Def. Exh. 81 (2001 contract), § 2-9.d.2; Def. Proposed Findings of Fact and Conclusions of Law, ¶ 13.
[65] Reynolds, Trans. (Vol.XII), p. 1492.
[66] Id. at 1488.
[67] McLaughlin Test., Trans. (Vol.XIII), pp. 1652-53; Reynolds, Trans. (Vol.XII), p 1482.
[68] Consent Decree (Doc. No. 12), ¶ 53.
[69] Reynolds Dep., Pl. Exh. P 27, p. 41 (inadequate dental, specialist groups); Tighe Dep., Pl. Exh. P 32, p. 164 (inadequate behavioral health network); Demuro Dep., Pl. Exh. A 5, p. 60 (children's network); McLaughlin Dep., Pl. Exh. P 18, p. 11 (prenatal care).
[70] A 1999 Performance audit of the Department of Health finds that "... TennCare ... has experienced access/ provider network problems since its inception, and there is no evidence these problems will be solved in the near future." Pl. Exh. M 18, p. 36.
[71] Tighe Test. Trans. (Vol I), p. 33-34.
[72] Cagle Test, Trans. (Vol.XVII A), p.2054-2056. Ms. Cagle is Vice President for Planning and Program Development for AdvoCare, a management company for TennCare's BHO.
[73] Reagan Dep., P-25, p. 67 (discussing how certain issues, such as autism, are often controversial and result in difficulty providing services).
[74] Helfinger Test., Trans. (Vol.VII A), pp. 1028-1031.
[75] Faust Dep., Pl. Exh. P-11, p. 21.
[76] Rosenbaum Test., Trans. (Vol.IV), p. 564 (discussing financial incentives for denying care).
[77] Pl. Exh. 0-1, pp. 99-102. (Tr. of 5/8/01 Hearing in Greer Case); supra note 50.
[78] Hickman Test., Trans. (Vol.II), p. 278.
[79] Farmer Dep., Pl. Exh. P-10, p. 115 ("We don't have as many child psychiatrists as we would like to have, but that's true all across the United States").
[80] See e.g., Underwood Test., Trans. (Vol.XI), p. 1419 (indicating that dental network has experienced steep decline in provider participation).

[81] See, e.g., Griffin Test., Trans. (Vol.V), pp. 763-765. [82] No. 79-3107 (Consent Decree regarding due process required in the managed care context, including notice and appellate provisions) (Revised Consent Decree, Doc. No. 630). [83] Welch Dep., Pl. Exh. P 35, p. 50-52. [84] Pl. Exh. L-99, p. 6 (case involving a delay in provision of services that were first denied by Access Med Plus, but then deemed necessary after a DCS regional representative filed an expedited appeal with TennCare). [85] Id. at p. 17-19. [86] See, e.g. Pl. Exh. L-61, p. 3-5,; L 153, p. 1-6 (allowing delay due to bare MCO claim of "good cause"). [87] Hudson test., Trans. (Vol.VI A), pp. 826-827. [88] Heflinger Test., Trans. (Vol.VII A), p. 1055. [89] Tighe Dep., Pl. Exh. P-32, p. 164; Reynolds Dep., P-27, pp. 41-43. [90] Id. [91] Both Premier Behavioral Health of Tennessee and Tennessee Behavioral Health are owned by Magellan, whose subsidiary, Advocare, manages their TennCare operations. Salter Dep, Pl. Exh. P-28, pp. 5, 92-93. [92] Cagle Test., Trans. (Vol XVII A), p 2138-2141. [93] Elliot Test., Trans. (Vol.XIX), p. 2647-48, 2660-63. [94] Id. at 2662. [95] Def. Post Tr. Br., p. 34. [96] Consent Decree (Doc. No. 12), ¶ 83. [97] Tighe Dep., (Pl.Exh. P 32), p. 54 [98] Baird Test., Trans. (Vol XVIII G), pp. 2450-51. [99] McLaughlin Test., Trans. (Vol.XIII), p. 1624-25, 1628, 1632. [100] Consent Decree (Doc. No. 12), ¶ 70. [101] Steverson Test., Trans. (Vol.XIV), pp. 1708-9. (Indicting that the number of DCS case managers increased from 730 in 1998 to 1100 at the time of the hearing. The number will reach 1351 by the end of 2001). [102] Hulen Test, Trans. (Vol.IV), p. 640 (indicating that daughter Bayli never had a case manager assigned to her by the BHO); Griffin Test., Trans. (Vol.V), p. 760 (describing the `case management' that she has to provide for her children by `working the system'). [103] No. 3: 00-0445 (M.D.Tenn.2001). However, that case only pertains to children in foster care, and thus is not applicable to a large number of the class members in this case. [104] Pl. Exh. M-26, p. 14. [105] January 10, 2001 letter from Health Care Finance Administration (now the Centers for Medicaid and Medicare Services (CMS)) to State Medicaid Directors. [106] The Court is unsure of the current feasibility of obtaining an EPSDT waiver. [107] As discussed elsewhere, managed care creates incentives for cutting costs and denial of care. However, commentators have rightly observed that managed care, at least in theory, would appear to be an ideal model for

the delivery of EPSDT services because it promotes preventive and primary care. However, in practice, the first of these incentives appears to outweigh the latter. In practice, MCOs and BHOs do not appear to take a longterm approach to the provision of EPSDT services in order to prevent future expenditures in the future. See Medicaid: Stronger Efforts Needed to Ensure Children's Access to Health Screening Services, GAO-010749, G.A.O. Report to Congressional Requesters (July, 2001)
[108] Reynolds Test., Trans. (Vol.XII), p. 1470.
[109] Id. at 1468.
[110] Def. Exh. No. 81 (2001 Contract), attachment IX.
[111] Id., p. 90, 2-18.nn.
[112] The American Academy of Pediatrics' "Medicaid Policy Statement" recommends that managed care contracts "clearly specif[y]" the EPSDT benefits. 104 Pediatrics 344-347 (1999).
[113] In fact, the American Academy of Pediatrics recommends that State Medicaid agencies should closely monitor access, treatment, and provision of diagnostic and treatment services under EPSDT. Id.
[114] See generally Sylvia A. Law, Health Care in Hawai`i: An Agenda for Research and Reform, 26 Am. J.L. & Med. 205, 222-23. ("The State may not avoid EPSDT obligations simply by contracting with a managed care organization and requiring them to meet those obligations. Rather, the State must assure that comprehensive screening, diagnosis and treatment services are actually provided on a timely basis.").
[115] For example, the record indicates that materials were available in Spanish as well as English. See, e.g., Def. Exh. No. 48.
[116] Okolo Test., Trans. (Vol.IX), p. 2555-2556.
[117] Defendants' Proposed Findings of Fact and Conclusions of Law, at 9. (Citing testimony by Mark Reynolds, Director, Bureau of TennCare. Trans. (Vol.XII), p. 1462-4); Gregory Preston, Trans. (Vol.XVIII A), p. 2255.
[118] 42 U.S.C. § 1396a (a) 43(A)
[119] The Court is aware of at least two states, Florida and Oregon, that have sought and received an EPSDT waiver. See Vernellia Randall, Section 1115 Medicaid Waivers: Critiquing the State Applications, 26 Seton Hall. L.Rev. 1069 (1996). As per the Consent Decree, "The State has currently elected, with HCFA approval, to provide non-Medicaid children with the same services provided to Medicaid eligibles. The parties recognize that the state retains the authority, with HCFA approval, to treat non-Medicaid eligibles differently." Consent Decree, ¶ 17. See Daniels v. TDH, et al., 79-3107 N.A. (M.D. Tenn., order entered 6/24/94, Docs. 316, 317). But, to date, the state has not sought or obtained a waiver of EPSDT for waiver eligible children.
[120] Defendants appear to believe that "the primary responsibility for outreach is in the hands of the health plans, the MCOs." Reynolds Test., Trans. (Vol.XII., p. 1470). However, as discussed above, the ultimate responsibility for compliance with EPSDT lies with the State.
[121] Consent Decree, ¶ 78. Attachment No. 1 to the Consent Decree references Health Care Finance Administration (HCFA)(now the Centers of Medicare and Medicaid Services, CMS) directives mandating coordination and communication among various entities. State Medicaid Manual, § 5320.
[122] McLaughlin Test., Trans. (Vol.XIII), pp. 1691-1693.
[123] This is a fairly high burden to reach. TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.1983)(no good faith exception); United States v. Work Wear Corp., 602 F.2d 110, 116 (6th Cir.1979) (financial hardship does not excuse compliance with a court order).
[124] The Court finds that having a State agency pay a fine is wasteful of State resources, and would be an irresponsible use of taxpayer money. Even if the State was in contempt of Court, the Court fails to see how

paying a fine would in any way address the underlying issue that caused the State to be in contempt in the first place. The problem with TennCare is not money, but the system itself. [125] Pl. Pretrial Br. at 16 [126] Wadley Test., Trans. (Vol.I), pp. 108-110; Faust Test., Trans. (Vol II), p. 195-6; Doc. No. 60. [127] Doc. No. 60, p. 23. [128] Wadley Test., Trans. (Vol.I), pp. 111, 121-26. [129] Id. at 111-112. [130] Faust Test., Trans. (Vol.II), pp. 186-87. [131] Wadley Test., supra, p. 113. [132] Id. at 126-27. [133] Demuro Test., Trans. (Vol.II), p. 312-13; Faust Test., supra, p. 188. [134] Zelizer Dep. (Pl Exh. P 38), p. 68-70. [135] Demuro Test., supra, at 313-14; Wadley Test., supra, at 132-34. [136] Def. Proposed Findings of Fact and Conclusions of Law, p. 10. The Court notes that Access Med Plus is no longer part of the TennCare system. [137] The MCO will be Blue Care Select, and the BHO will be Advocare. [138] In fact, the record indicates that the idea of carving out children in custody may have actually originated with BlueCross. Wadley Dep., p 34, p. 132. [139] Faust Test., supra, p. 201. [140] Wadley Test, supra, p. 146-47. [141] Demuro Test., supra, p. 322. [142] Wadely Test., supra, p. 140-41. [143] Def. Proposed Findings of Fact and Conclusions of Law Re: Motion to Modify Remedial Plan, p. 14. [144] See, e.g. Tighe Test., supra, p. 87 [145] Pl. Exh. 0-5, p. 23. [146] See e.g.; Frew supra (finding a violation of EPSDT consent decree); Emily Q. v. Belshe, No. 98-4181-WDK (C.D.Cal., May. 5, 1999)(expanding the availability of EPSDT mental health services); French v. Concannon, No. 97-CV-24-B C (D.Me. July 16, 1998)(consent decree requiring improvement in delivery of EPSDT to children with disabilities); Sanders v. Lewis, 1995 WL 228308, No. 2:92-0353 (S.D.W.Va., March 1, 1995). See also Dajour B. v. City of New York,, No. 00-CIV.2044 (JGK), 2001 WL 1173504 (S.D.N.Y., October 3, 2001)(certifying class of asthmatic children under 21 who are or will be in emergency shelter in New York, and recognizing that claim is based on failure of City to meet EPSDT obligations).
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 JOHN B., et al., Plaintiffs, v. MARK EMKES, Commissioner, Tennessee Department of Finance and Administration, et al., Defendants.
Civil Action No. 3:98-cv-0168
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2011 U.S. Dist. LEXIS 20399
March 1, 2011, Filed
PRIOR HISTORY: John B. v. Goetz, 2010 U.S. App. LEXIS 25589 (6th Cir.) (6th Cir. Tenn., 2010)
COUNSEL: [*1] For John B., by their next friend, L.A., Plaintiff: Barry Leigh Weissman, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal, Los Angeles, CA; Elizabeth Banston Hutto, LEAD ATTORNEY, Christopher E. Coleman, Tennessee Justice Center, Nashville, TN; George Gordon Bonnyman, Jr., Michele M. Johnson, LEAD ATTORNEYS, Tennessee Justice Center, Inc., Nashville, TN; Jason Francis Choy, Victoria Reznik, LEAD ATTORNEYS, Andrew Dunlap, Katherine L. McDaniel, Kirkland & Ellis, New York, NY; Katherine Evans, LEAD ATTORNEY, PRO HAC VICE, Sonnenschein, Nath & Rosenthal, San Francisco, CA; Leanna Marie Anderson, LEAD ATTORNEY, PRO HAC VICE, Sonnenschein, Nath & Rosenthal, Los Angeles, CA; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal LLP, Kansas City, MO; Mary B. Anderson, Robert Thomas Joseph, LEAD ATTORNEYS, Sonnenschein, Nath & Rosenthal (Chicago), Chicago, IL; Sarah Kao-Yen Tsou, PRO HAC VICE; Kirkland & Ellis, New York, NY.
For Carrie G., by their next friend, L.A., Joshua M., by their next friend, L.A., Meagan A., by their next friend, L.A., Erica A., by their next friend, L.A., Dustin P., by his next friend, Linda C., Bayli S., by her next friend, C.W., James D. by his next friend, [*2] Susan H., Elsie H., by new hext friend, Stacy Miller, Julian C., by his next friend, Shawn C., Troy D., by his next friend, T.W., Ray M., by his next friend, P.D., Roscoe W., by his next friend, B.W., William B., by his next friend, K.B., Jacob R., by his next friend, Kim R., Justin S., by his next friend, Diane P., Estel W., by his next friend, E.D., Plaintiffs: Christopher E. Coleman, LEAD ATTORNEY, Tennessee Justice Center, Nashville, TN; Elizabeth Banston Hutto, LEAD ATTORNEY, Tennessee Justice Center, Nashville, TN; George Gordon Bonnyman, Jr., Michele M. Johnson, LEAD ATTORNEYS, Tennessee Justice Center, Inc., Nashville, TN; Jason Francis Choy, Victoria Reznik, LEAD ATTORNEYS, Andrew Dunlap, Katherine L. McDaniel, Kirkland & Ellis, New York, NY; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal LLP, Kansas City, MO; , Robert Thomas Joseph, LEAD ATTORNEYS, Sonnenschein, Nath & Rosenthal (Chicago), Chicago, IL.
For Theresa Clarke, Assistant Commissioner, Bureau of TennCare, George W. Hattaway, Commissioner, Tennessee Department of Children Services, Mark Emkes, Commissioner, Tennessee Department of Finance and Administration, also known as, Nancy Menke, [*3] Defendants: Brian Stuart Koukoutchos, Michael Weitzner, LEAD ATTORNEYs, Charles J. Cooper, Dean John Sauer, Derek L. Shaffer, Nicole J. Moss, Cooper & Kirk, Washington, DC; Carolyn E. Reed, Linda A. Ross, LEAD ATTORNEYS, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN; Charles A. Miller, LEAD ATTORNEY, Covington & Burling Washington, DC; Ronald G. Harris, LEAD ATTORNEY, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN; Michael W. Kirk, PRO HAC VICE, Cooper & Kirk, Washington, DC.
For Cooper & Kirk, Respondent: Charles J. Cooper, Cooper & Kirk, Washington, DC.
For Nashville CARES, Mark Levine, Intervenor Plaintiffs: George Edward Barrett, LEAD ATTORNEY, Barrett Johnston, LLC, Nashville, TN.

2011 U.S. Dist. LEXIS 20399, *
For Richard A. Carter, M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE #601, Interested Party: Richard A. Carter, LEAD ATTORNEY, Strategic Preventive Medicine, Nashville, TN.
For Leilani S. Boulware, Meharry Medical College, Monitor, Interested Party: Leilani Boulware, LEAD ATTORNEY, Meharry Medical College, Nashville, TN.
For Alex Hurder, Vanderbilt School of Law, Monitor, Interested Party: Alex Jay Hurder, LEAD ATTORNEY, Vanderbilt [*4] Legal Clinic, Nashville, TN.
For Susan Kay, Vanderbilt School of Law, Monitor, Interested Party: Susan Laurie Kay, LEAD ATTORNEY, Vanderbilt Legal Clinic, Nashville, TN.
For Michael Passino, Monitor, Interested Party: Michael James Passino, LEAD ATTORNEY, Federal Public Defender's Office, Nashville, TN.
For Robert L. Smith, Smith, Hirsch, Blackshear & Barnes, PLC, Monitor, Interested Party: Robert Lewis Smith, LEAD ATTORNEY, Smith & Hirsch, Nashville, TN.
For First Health Services Corporation, Interested Party: Beth L. Domenick, Scott L. Vernick, LEAD ATTORNEYS, Fox Rothschild LLP, Philadelphia, PA; Scott Hickman, LEAD ATTORNEY, Sherrard & Roe, Nashville, TN.
For UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice, Interested Party: Gary C. Shockley, John S. Hicks, LEAD ATTORNEYS, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC-Nashville, Nashville, TN.
For Unison Health Plan of Tennessee, Inc., Interested Party: John S. Hicks, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC-Nashville, Nashville, TN; Joseph C. Safar, Thomas J. Smith, LEAD ATTORNEYS, K&L Gates LLP, Pittsburgh, PA; Stephen H. Biller, LEAD ATTORNEY, Biller Law Firm, Memphis, TN.
For BlueCross [*5] Blueshield of Tennessee, Interested Party: Marc R. Jenkins, William Beesley Hubbard, LEAD ATTORNEYS, Hubbard, Berry & Harris, PLLC, Nashville, TN.
For QSource, Interested Party: Michael D. Hornback, LEAD ATTORNEY, Wyatt, Tarrant & Combs, Nashville, TN.
For Doral Dental of Tennessee, LLC, Interested Party: Kathryn Hannen Walker, Wallace Wordsworth Dietz, LEAD ATTORNEYS, Bass, Berry & Sims, Nashville, TN..
For Preferred Health Partnership of Tennessee, Inc., Interested Party: George Tolbert Lewis, III, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Memphis, TN; Martin B. Bailey, LEAD ATTORNEY, Wagner, Myers & Sanger, Knoxville, TN; Sonya R. Smith, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC-Nashville, Nashville, TN.
For Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC, Interested Parties: Charles B. Welch, Jr., Christopher Corum Webb, LEAD ATTORNEYS, Farris, Mathews, Branan, Bobango & Hellen, PLC, Nashville, TN..
For AMERIGROUP Corporation, Interested Party: Paul Savage Davidson, LEAD ATTORNEY, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN.
For Memphis Managed Care Corporation, doing business as,,TLC Family Care Health Plan, Interested [*6] Party: Taylor A. Cates, LEAD ATTORNEY, Burch, Porter & Johnson, PLLC, Memphis, TN.
For Sanford Bloch, Intervenor: George Edward Barrett, LEAD ATTORNEY, Barrett Johnston, LLC, Nashville, TN.

2011 U.S. Dist. LEXIS 20399, *
For Tim Jones, William Duncan, Mary Kathryn Duncan, Intervenor Plaintiffs: George Edward Barrett, LEAD ATTORNEY, Edmund L. Carey, Jr., Barrett Johnston, LLC, Nashville, TN; Jerry E. Martin, Office of the United States Attorney (MDTN), Nashville, TN.
JUDGES: Thomas A. Wiseman, Jr., Senior U.S. District Judge.
OPINION BY: Thomas A. Wiseman
OPINION
MEMORANDUM OF PRELIMINARY FINDINGS
Again pending before this Court are some portions of Defendants' November 2006 motion to vacate the Consent Decree (Doc. No. 738). The Sixth Circuit recently reviewed the original denial of that motion and issued an opinion reversing that decision in part and vacating those portions of the March 10, 1998 Consent Decree (Doc. No. 12) based on 42 U.S.C. ß 1396a(a)(30). John B. v. Goetz, 626 F.3d 356 (6th Cir. 2010).
In its opinion, the Sixth Circuit rejected Defendants' argument that the Medicaid statute as a whole does not confer individual rights enforceable under 42 U.S.C. ß 1983 but, in addressing Defendants' more particularized arguments aimed at "the [*7] primary statutory provision on which the consent decree and plaintiffs' claims are based," reconfirmed that 42 U.S.C. ß 1396a(a)(30) is not privately enforceable under ß 1983. John B., 626 F.3d at 362, 363. Consequently, the court vacated "the consent decree's requirement that defendants ensure that the availability of services is geographically comparable and any other provisions based on ß 1396a(a)(30)," id. at 363, without specifying exactly which other provisions of the consent decree might be based on ß 1396a(a)(30). Likewise, the court expressly held that the Adoption Assistance Act ("AAA"), 42 U.S.C. ßß 671(a)(16, 675(1), and 675(5), does not create rights that are privately enforceable under ß 1983, but declined to "ascertain the extent to which the [consent] decree is based on provisions of the [AAA]," John B., 626 F.3d at 363, leaving that issue to be resolved in the first instance by the district court.
The appellate court also reaffirmed its implicit holding in Westside Mothers v. Olszewski,454 F.3d 532, 542 (6th Cir. 2006) ("Westside Mothers II"), that 42 U.S.C. ß 1396a(a)(43)(A) confers rights that are enforceable under ß 1983, but declined to reach the question of the [*8] enforceability of the other subsections of 42 U.S.C. ß 1396a(a)(43), namely subsections (B), (C), and (D). In that regard, the court stated instead:
One open question is the extent to which Westside Mothers II's holding that a state's obligation under ßß 1396a(a)(8) and (10) is only to pay for medical assistance may be applicable to the provisions of ß 1396a(a)(43) not addressed in Westside Mothers II. The answer to this question could potentially impact the provisions of the consent decree that require actual provision of service rather than simply payment. Another issue relates to whether Westside Mothers II's determination about waiting lists is applicable to the waiting list provision of ß 1396a(a)(43)(C). Finally, Westside Mothers II only addresses one part of ß 1396a(a)(43) and leaves unresolved the private enforceability of the remaining part. While we could undertake an analysis of each of these issues, we believe that they are best left to the district court in the first instance . . . .
John B., 626 F.3d at 363.
The parties have now submitted their supplemental briefs addressing the enforceability of the remaining portions of ß 1396a(a)(43) under ß 1983, and arguing the question [*9] of what portions of the consent decree are effectively vacated by the Sixth Circuit's ruling or by any further ruling of this Court as to the private enforceability of ß 1396a(a)(43). In their brief, Defendants concede the private enforceability of ß 1396a(a)(43)(B) (hereafter "subsection (43)(B)"), but argue that, pursuant to the Sixth Circuit's holding in Westside Mothers II, that "there is no individual right [under subsection (43)(B)] to make the State itself ensure provision of such medical services (as opposed to reimbursing for them)." (Doc. No. 1428, at 18 (Defs.' Supp. Br. 14) (emphasis added).) With respect to 42 U.S.C. ß 1396a(a)(43)(C) ("subsection (43)(C)"), Defendants argue that this statutory provision only requires the state to submit a plan for the arrangement of corrective treatment once such treatment as been identified as necessary, but that "the statute does not speak to the beneficiary; it simply does not say that the beneficiary has a right to treatment." (Doc. No. 1428, at 19.) Alternatively, Defendants concede that some courts have held that subsection (43)(C) is individually enforceable under

2011 U.S. Dist. LEXIS 20399, *
ß 1983 when the claim in question is brought by an individual who [*10] has been denied coverage for a specific treatment to address a specific medical condition, but they argue that where "the claims and the relief in question are systemwide and aggregate, a cause of action will not lie under Section 1983." (Id.) Defendants further contend that numerous provisions of the Consent Decree premised upon subsections (43)(B) and (C) must be vacated, along with numerous other provisions that are implicated by, and must be vacated as a result of, the Sixth Circuit's conclusion that ß 1396a(a)(30) and the AAA do not create enforceable rights. For their part, Plaintiffs concede that two subparagraphs of the Consent Decree are subject to being vacated as a result of the Sixth Circuit's decision, and that ß 1396a(a)(43)(D) does not create privately enforceable rights. They deny that any of the remedies effected by the Consent Decree are implicated by subsection (43)(D), however, and argue that the remainder of the Consent Decree is intended to remedy violations of subsections (43)(B) and (C), which are privately enforceable.
As set forth below, the Court believes that subsections (43)(B) and (C) are privately enforceable, and that their application is unaffected by [*11] the Sixth Circuit's holding in Westside Mothers II. The Court further finds that several paragraphs of the Consent Decree should be vacated as a result of the 6th Circuit's decision, as identified below, but that the majority of the Consent Decree should remain in effect.
A. Subsections (43)(B) and (C) Are Privately Enforceable.
Plaintiffs' claims are brought under 42 U.S.C. ß 1983 against Defendants, Tennessee officials charged with implementing Tennessee's managed care program, TennCare, to enforce the early and periodic screening, diagnosis and treatment ("EPSDT") provisions of the Medicaid Act. The parties entered into a Consent Decree in March 1998 (Doc. No. 12) which imposes systemic remedies for these alleged violations. In their Rule 60(b) Motion to Vacate the Consent Decree and Dismiss the Case (Doc. No. 738), Defendants argue that the validity and enforceability of the Consent Decree are predicated on the presumption that individual subsections of the Medicaid Act are privately enforceable under ß 1983. Section 1983, however, only authorizes a private right of action to the extent the specific provision of federal law sought to be enforced has "unambiguously conferred rights, [*12] as distinguished from mere benefits or interests." Westside Mothers II, 454 F.3d at 541-42 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 282-83, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002)) (emphasis added).
In inquiring whether an individually enforceable right exists, the Sixth Circuit looks to three factors: (1) whether Congress intended the provision to benefit the plaintiff; (2) whether the statute is so "'vague and amorphous' that its enforcement would strain judicial competence"; and (3) whether the provision imposes a binding obligation on the state, i.e., it must be couched in mandatory, rather than precatory, terms. Johnson v. City of Detroit, 446 F.3d 614, 618-19 (6th Cir. 2006) (citing Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997)). With respect to the first Blessing factor, the Supreme Court in Gonzaga expressly "reject[ed] the notion that . . . anything short of an unambiguously conferred right [is sufficient] to support a cause of action brought under ß 1983," and emphasized that "it is rights, not the broader or vaguer 'benefits' or 'interests,' that may be enforced under the authority of that section." Gonzaga, 536 U.S. at 283) (emphasis in original).
Under these principles, it is clear that ß 1396a(a)(43)(B) [*13] and (C) are privately enforceable under ß 1983. The statute itself states:
A State plan for medical assistance must . . . provide for . . .
(B) providing or arranging for the provision of such screening services in all cases where they are requested, [and]
(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services. . . .
42 U.S.C. ß 1396a(a)(43)(B) & (C). 1
1 The parties agree that subsection (D) is not privately enforceable. It requires the State to submit annual reports statistical information relating to the provision of EPSDT services. Subsection (A), which the Sixth Circuit has held is privately enforceable, states:

2011 U.S. Dist. LEXIS 20399, *
A State plan for medical assistance must . . . provide for . . . informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations [*14] against vaccine-preventable diseases. . . .
Under Gonzaga, to satisfy the first Blessing factor, for a statute to "unambiguously" confer a right it must (1) contain rights-creating language that is unmistakably focused on the individuals benefitted; (2) have an individual focus, rather than a systemwide or aggregate focus; and (3) lack an enforcement scheme for aggrieved individuals. Gonzaga, 536 U.S. at 284-86. Sections 43(B), and (C) easily pass this test. First, there is no dispute that these provisions satisfy the final Gonzaga factor, because they-- like the rest of the Medicaid Act--have no independent enforcement mechanism. Harris v. Olszewski, 442 F.3d 456, 462 (6th Cir. 2006). The provisions also have rights-creating language that focuses on specific individuals. Gonzaga, 536 U.S. at 282; see also Harris, 442 F.3d at 462 ("[B]y saying that '[a] State plan . . . must . . . provide' this free choice [among medical providers], the statute uses the kind of 'rights-creating,' 'mandatory language,' that the Supreme Court and our court have held establishes a private right of action." (citations omitted)). Subsection 43(A) conforms to this requirement by identifying specific people--"all [*15] persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance"--and requiring that the State "provide for . . . informing [them] . . . of the availability of early and periodic screening, diagnostic, and treatment services." 42 U.S.C. ß 1396(a)(43)(A). Similarly, subsection 43(B) refers to the same children identified in subsection 43(A), and requires the State to "provide for . . . providing or arranging for the provision of such screening services" to those children "in all cases where they are requested." Subsection 43(C) likewise requires the State to "provide for . . . arranging for . . . corrective treatment" for those children who receive screening services, if necessary. If, as the Sixth Circuit has already determined, subsection (A) meets the first Gonzaga criterion, (43)(B) and (C) necessarily must as well.
To meet the second Gonzaga factor, subsections (43)(B) and (C) must have "an individual focus, rather than a systemwide or aggregate focus." Again, just as subsection (43)(A) focuses on specific individuals--Medicaid-eligible children--and provides that they must receive specific information, subsections (43)(B) and (C) [*16] focus on a smaller subsets of the children who are identified as the focus of subsection (43)(A): Subsection (43)(B) focuses on children who request screening services and provides that such children must receive those services, while (43)(C) focuses on children whose screening under (43)(B) reveals the need for corrective treatment and requires that such children receive that treatment.
Nor do subsections 43(B) and (C) impose a "vague and amorphous" mandate upon the State, as referenced in the second Blessing factor. As the Sixth Circuit indicated in Harris, the relevant question is whether the "mandate itself" contains "the kind of vagueness that would push the limits of judicial enforcement." 442 F.3d at 456. In Harris, the court concluded that the mandate contained in 42 U.S.C. ß 1396a(a)(23) that Medicaid plans give beneficiaries their choice of willing providers was not vague because whether a plan gave this choice or not "is likely to be readily apparent." Harris, 442 F.3d at 456. Subsection (43)(A) contains a similarly straightforward and ascertainable mandate--to provide information about screening services to all Medicaid-eligible children. Subsections (43)(B) and (C) contain [*17] equally clear mandates: that the state provide requested screening services to all Medicaid-eligible children who request them, and that it arrange for corrective treatment when necessary. Further, as Plaintiffs argue, it is all too "readily apparent" when a child who has requested screening services has not received them or when a child who needs corrective treatment goes without. Such explicit grants of easily discernible rights, coupled with readily apparent violations, plainly satisfy the second Blessing factor. Cf. Harris, 442 F. 3d at 456; see also Gean v. Hattaway, 330 F.3d 758, 772-73 (6th Cir. 2003) (holding that ß 1396a(a)(3) of the Medicaid Act--which requires a state to "grant[] an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness"--is privately enforceable because it "creates an obligation on the part of the State and is phrased in terms of benefitting Medicaid recipients").
Finally, subsections (43)(B) and (C) satisfy the third Blessing factor by unambiguously imposing a binding obligation on the State. These provisions require that the State [*18] "provid[e] or arrang[e] for the provision of" screening services, ß 1396a(a)(43)(B)" and "arrang[e] for . . . corrective treatment." ß 1396a(a)(43) (C). This language is mandatory, not precatory, and thus creates a binding obligation on States participating in Medicaid. Harris, 442 F.3d at 462.

2011 U.S. Dist. LEXIS 20399, *
As Plaintiffs point out, every court to have examined the issue since Gonzaga has likewise concluded that subsections (43)(B) and (C) confer privately enforceable rights. (See Doc. No. 1431, at 11 (collecting cases).) Defendants, in attempting to avoid this result, have tended to conflate the scope of the Consent Decree's provision of remedies for violations of the Medicaid Act with the scope of the rights conferred by the statutory provisions at issue. The Sixth Circuit has rejected that line of reasoning:
To the extent that defendants' first argument for vacating the entire decree is based on an argument that the decree's systemic remedies are not privately enforceable, this reasoning does not correctly appreciate the distinction between rights and remedies. To determine whether a statute is enforceable under ß 1983, courts examine "whether Congress intended to create a federal right," Gonzaga, 536 U.S. at 283, [*19] not the scope of the relief sought or granted. In other words, remedies vindicating individual rights may be both systemic and nonsystemic; the form of relief says nothing about the nature of the right.
John, 626 F.3d at 363 n.3 (emphasis added).
B. Subsections (43)(B) and (C) Require the States to Provide Services and Treatment
As noted above, the Sixth Circuit asked this Court to examine the scope of the rights created by subsections (43)(B) and (C), and specifically to consider whether the scope of those provisions was affected by its holding in Westside Mothers II that Sections 1396a(a)(8) and (10) require only payment for medical assistance." John B., 626 F.3d at 363. Plaintiffs concede that the one paragraph of the Consent Decree that references waiting list (Consent Decree ∂ 61(iii)) must be vacated. Otherwise, this Court concludes that Westside Mother II's interpretation of Sections (a)(8) and (10) has no effect on the construction of Section (a)(43).
First, the holding in Westside Mothers II--that a state's obligations under ß 1396a(a)(8) and (10) are limited to payment for services--turned entirely on the particular language of the statutory provisions at issue in that decision, [*20] 2 and specifically required the Sixth Circuit to construe the term "medical assistance" as it is defined by the Medicaid Act. The statutes in question here, however, expressly require the state either to provide or arrange for the provision of screening and treatment services. The Court finds that Westside Mothers II has no bearing on the construction of subsections (43)(B) and (C).
2 The referenced provisions require state Medicaid plans to:
(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals; [and]
(10) provide . . . for making medical assistance available [to eligible individuals] . . . .
42 U.S.C. ß 1396a(a)(8) & (10).
Even if that were not the case, the term "medical assistance," at the time Westside Mothers II was decided, was still defined by the Medicaid Act as "payment for part or all of the cost of the [enumerated] services" to eligible individuals "under the age of 21." 42 U.S.C. ß 1396d(a). Congress has recently clarified that the term "medical assistance" means "payment of part of all of the costs of [*21] . . . care and services, or the care and services themselves, or both." 125 Stat. 119, at ß 2304 (March 23, 2010) ("Patient Protection and Affordable Care Act" (amending Section 1905(A) of the Social Security Act as codified at 42 U.S.C. ß 1396d(a)). Under this amendment, whether a particular provision of the Medicaid Act requires payment for services or the provision of the services themselves is not controlled by the old definition of "medical assistance" as referring only to financial assistance. Indeed, the legislative history behind this amendment clearly shows that Congress intended to clarify that where the Medicaid Act refers to provision of services, a participating State is required to provide (or ensure the provision of) services, not merely to pay for them:
["Medical assistance"] is expressly defined to refer to payment but has generally been understood to refer to both the funds provided to pay for care and services and to the care and services themselves. . . . Some recent court opinions have, however, questioned the longstanding practice of using the term

2011 U.S. Dist. LEXIS 20399, *
"medical assistance" to refer to both the payment for services and the provision of the services themselves. These [*22] opinions have read the term to refer only to payment; this reading makes some aspects of the rest of Title XIX difficult and, in at least one case, absurd. If the term meant only payments, the statutory requirement that medical assistance be furnished with reasonable promptness "to all eligible individuals" in a system in which virtually no beneficiaries receive direct payments from the state or federal governments would be nearly incomprehensible.
H.R. Rep. No. 299, 111th Cong., 1st Sess. 2009, at 645-50 (Oct. 14, 2009, also available at 2009 WL 3321420, at *694*95.
The Sixth Circuit acknowledged in John B. that "[t]he definition of 'medical assistance' has changed" since Westside Mothers II, but stated that "the new definition does not affect" the holding of Westside Mothers II regarding the State's obligations under Sections (8) and (10) because "a state may still fulfill its Medicaid obligations by paying for services." John B., 626 F.3d at 360 n.2. The Sixth Circuit was silent as to the effect of the definitional change on Section (43). This Court finds that where, as in ß 1396a(a)(43)(B) and (C), the language of a provision clearly requires that the state "provide or arrange for [*23] the provision" of screening services and corrective treatment, that language cannot reasonably be construed to mean only payment for services, particularly in light of the amended definition of "medical assistance." Even if that were not the case, the holding in Westside Mothers II would affect only the scope of a state's obligations under subsections (43)(B) and (C)--it would not render them unenforceable through ß 1983.
And, to be clear, these provisions do not require the State to become a "direct medical provider," as the State asserts. (Defs.' Supp. Brief, Doc. No. 1428, at 18.) Rather, these provisions require the State to ensure that Medicaideligible children receive "screening services" and "corrective treatment" under certain circumstances. To satisfy its obligations, the State may either provide services directly or hire others to do so.
C. Those Provisions of the Consent Decree Based on Subsections (43)(A), (B), and (C) Are Not Subject to Being Vacated.
The next question that arises is this: What portions of the Consent Decree, if any, are subject to being vacated as a result of the Sixth Circuit's conclusion that 42 U.S.C. ß 1396a(a)(30)(A) ("subsection (30)(A) and the Adoption [*24] Assistance Act ("AAA") do not create rights enforceable through ß 1983, and the Plaintiffs' concession that subsection (43)(D) is likewise not privately enforceable?
In responding to that question, Defendants challenge essentially every paragraph of the Consent Decree from paragraph 41 through paragraph 93 on the basis that each is based on subsection (43)(D), subsection (30)(A), or on the AAA. In Plaintiffs' view, virtually every paragraph of the Consent Decree is premised upon subsection (43)(A), (B) or (C) and is therefore valid and enforceable, except that Plaintiffs concede that paragraphs 45 through 49 may be vacated as outdated and therefore moot, and that paragraph 61(iii) may be vacated as dependent for its authority on subsection (30)(A). The parties' positions and the Court's resolution of the dispute as to each of the other challenged paragraphs are set forth below.
Paragraphs 41-44
Paragraph 41 requires that the "TennCare rules and guidelines clearly describe, allocate responsibility for, and require compliance with, each specific screening requirement under federal law," which it then enumerates in detail. Paragraph 42 likewise requires that TennCare rules and regulations [*25] comply with federal law governing interperiodic screening. Defendants characterize paragraphs 41 and 42 as relating to "screening participation rates" and falling, as such, under the purview of subsection (43)(D), which is not individually enforceable. The Court agrees with Plaintiffs that these paragraphs are clearly intended to remedy and prevent violations of subsection (43)(B) and that they remain in full force and effect.
Parag raph 43 requires that the TennCare contractor networks be "adequate in terms of qualifications and training, as well as in numbers, to properly screen children in conformity" with federal law. Defendants characterize paragraph 43 as implicating subsection (30)(A) and the "network adequacy" requirement, while Plaintiffs again contend that the provision is meant to enforce and remedy subsection (43)(B) and its implementing regulation, 42 C.F.R. ß 441.61(b). The Court finds that the provision itself is somewhat vague and that compliance would be difficult to prove. Essentially, Defendants' obligation in proving compliance with the Consent Order and subsection (43)(B) will be to show that it is

2011 U.S. Dist. LEXIS 20399, *
effectively screening all children who request it, and the State [*26] contractors will necessarily have to have in effect adequate networks to ensure Defendants' compliance. The Court nonetheless finds that this paragraph of the Consent Decree to heavily reliant on subsection (30)(A) and too unwieldy on its own to monitor or enforce.
Paragraph 44 sets out the steps the State is to take to ensure that periodic screens effectively identify children who should be referred for further assessment of behavioral/developmental problems or possible hearing or vision impairment. Defendants characterize paragraph 44 as "enforcing the participation goal established by CMS pursuant to [subsection (43)(D)]. The Court finds that this paragraph refers to subsection (43)(B) and is intended to remedy past violations of that provision and prevent ongoing or future violations thereof. In that regard, and as a general matter with respect to Defendants' continued objection to various portions of the Consent Decree as systemic in scope, the Court again notes the critical distinction between rights conferred by the relevant statutory provisions, and the remedies provided for violations thereof. "[R]emedies vindicating individual rights may be both systemic and nonsystemic; the [*27] form of relief says nothing about the nature of the right." John B., 626 F.3d at 363 n.3 (emphasis added).
Paragraphs 50-51
Paragraphs 50 and 51 expressly incorporate the screening performance standards requiring that the State meet the 80% goal, and confirms that the Defendants will be presumed to be in compliance with their screening obligations under the law and the Consent Decree for any year in which the 80% goal is met. The Court believes that paragraph 50 in particular is premised upon subsection (43)(D) and must be vacated as the goals set forth therein are not individually enforceable. Paragraph 51 shall remain in effect, however, as indication of the parties' intent that the State's ability to meet the statutory goal (which remains in effect regardless of Plaintiffs' standing to enforce it) shall be evidence of the State's compliance with the Consent Decree.
Paragraph 52
Paragraph 52 requires the complete screening of 100% of TennCare children in the custody of the Department of Children's Services, and sets forth DCS's responsibilities with regard to developing a tracking system for reporting compliance with this provision. Defendants assert that this provision also relates [*28] to subsection (43)(D). Plaintiffs assert that this provision reflects the State's responsibility acting in loco parentis and as a Medicaid provider to ensure that all children in its custody receive EPSDT screens.
The Court agrees that Defendants, as a practical matter, have complete control over whether children in State custody request and receive screenings. The provision also reflects recognition of the fact that the State was not previously in compliance with its obligations under subsection (43)(B) and attempts to remedy that problem and as such is valid and enforceable.
Paragraphs 53-57, 59, 60(i)-(iv), 61(i), 63-70, 71(i) and (iii)-(iv), and 72-77
Defendants characterize the referenced paragraphs as enforcing subsection (43)(C), which the Court has found to be individually enforceable.
Paragraphs 58, 60(v)-(vi), 61(ii), 62, 71(ii)
Defendants characterize the referenced paragraphs as enforcing subsection (30)(A) and therefore invalid. Plaintiffs contend that these provisions generally implement subsection (43)(C) and therefore remain in effect.
Paragraph 58 states that Defendants and their contractors "shall require that utilization review and prior authorization decisions be made [*29] only by qualified personnel with education, training, or experience in child and adolescent health." The Court agrees that this provision presumes the individual enforceability of subsection (30)(A).
Paragraph 60 pertains to the development of a provider handbook specifying the state contractors' responsibilities relating to the provision of services to children in DCS custody. Parts (v) and (vi) specifically require the MCOs to demonstrate that their networks include "providers with cultural and linguistic competency, or access to translators, as may be needed for the effective treatment of children from ethnic minorities," and that each MCO demonstrate "a sufficient array of services and specialists" to meet the needs of the Plaintiff class-members. The Court finds that these provisions relate to "network sufficiency" and geographic availability of services under subsection (30)(A).
Paragraph 61(ii) requires Defendants to demonstrate "provider networks that comply" with the TennCare waiver. Defendants contend that this provision relates both to subsections (30)(A) and (43)(C). Plaintiffs contend that it enforces

2011 U.S. Dist. LEXIS 20399, *
subsection (43)(C) and its implementing regulation only. The Court finds [*30] that it is premised upon subsection (30)(A)'s geographic-comparability requirement and as such is unenforceable under John B.
Paragraph 62 requires MCOs to provide primary care providers participating in the EPSDT program an up-to-date list of specialists to whom referrals can be made for screening, diagnostic and treatment services. The Court finds that this provision is focused on remedying and preventing further violations of subsection (43)(C).
Paragraph 71(ii) expressly requires Defendants and their contractors to ensure "a comprehensive and appropriate scope of geographically accessible" services and as such falls under John B.'s recognition that subsection (30)(A) is not privately enforceable.
Paragraphs 78-83
Defendants contend that the referenced paragraphs of the Consent Decree, which require coordination among Defendants and "other children's health and education services," are tethered only to the regulation enforcing subsection (43)(C), that is, 42 C.F.R. ß 441.61(c), and not to the statute itself. Defendants further argue that regulations do not confer rights. Plaintiffs point out that the regulation explicitly implements ß (43) and therefore has statutory foundation. They [*31] also argue that Westside Mothers II recognized the enforceability of consent decrees based on the implementing regulations. See Westside Mothers II, 454 F.3d at 543-44 (finding plaintiffs stated a claim under ß 1983 for violations of subsection (43)(A) and its implementing regulation, 42 C.F.R. ß 441.56(a)).
The Court finds that implementing language of 42 C.F.R. ß 441.56(a) differs substantially from that in 42 C.F.R. ß 441.61(c). The former regulation describes the steps agencies must take to comply with the requirements in subsection (43)(A) for providing notice to individuals of the availability of EPSDT programs, including the use of written and oral methods designed to inform them effectively, the use of clear and nontechnical language, methods for informing individuals with communication-related disabilities. Without going into detail, the Court would have no difficulty in concluding that these regulations are well within the scope of the implementing statute and confer readily enforceable rights upon individuals.
The latter regulation, however, states: "The agency must make appropriate use of State health agencies, State vocational rehabilitation agencies, and Title V grantees. [*32] . . . Further, the agency should make use of other public health, mental health, and education programs and related programs . . . to ensure an effective child health program." 42 C.F.R. ß 441.61(c). This provision does not confer specific rights upon individuals. Cf. Caswell v. City of Detroit Housing Comm'n, 418 F.3d 615, 620 (6th Cir. 2005) ("Because [we cannot] point to a specific statutory provision . . . that confers a right relevant to [the defendant agency's] alleged violation of [the referenced regulation], [the plaintiff] cannot pursue his claim under ß 1983."). Even if it, did it is too vague to be individually enforceable, insofar as it refers to "appropriate use" without defining what is appropriate, and suggests (using precatory language) that the agency "should make use" of other public health programs without actually requiring that it do so.
Clearly, Defendants remain bound by the terms of 42 C.F.R. ß 441.61, but it does not appear that Plaintiffs have the ability to enforce their compliance therewith under ß 1983. Because paragraphs 78-83 of the Consent Decree are admittedly reliant for their authority on "ß 1396a(a)(43)(C) through [the] implementing regulation 42 C.F.R. ß 441.61(c)" [*33] (Pls.' Supp. Statement, Doc. No. 1454, at 2), they appear to be invalid.
Paragraphs 84-93
Paragraph 84 purports to require DCS to "ensure that the case planning and case review required under the relevant portions of the [AAA] for TennCare children in DCS custody who are subject to such Act shall identify and provide for the treatment of the behavioral health and medical needs of these children in accordance with [the AAA], as set out herein[.]" The Court would be included to vacate this paragraph as entirely reliant upon the AAA which is not individually enforceable under ß 1983.
Paragraphs 85-87 do not impose any substantive obligations on Defendants; they simply recognize that children in state custody have constitutional due-process rights.
Paragraphs 88-93, which fall under the heading "Formulation of Coordination Plan," do not refer or incorporate the AAA. Rather, they impose an obligation on the state to monitor and review compliance with EPSDT for children in DCS custody and provides for the development of a remedial plan for compliance with EPSDT. Plaintiffs contend and the Court agrees that these provisions serve to implement and enforce the State's EPSDT obligations to children [*34] in state custody under subsections (43)(B) and (C) and therefore remain valid.

2011 U.S. Dist. LEXIS 20399, *
D. Conclusion In sum, the Court reaches the preliminary conclusion that Paragraphs 43, 50, 58, 60, 61 (ii), 71 (ii), and 78-84 of the
Consent Decree, in addition to paragraphs 45-49 and 61 (iii), are subject to vacatur; the Court hereby signals its inclination to grant in part the Defendants' Motion to Vacate to reflect this finding. Pursuant to the parties' request, however, the Court's finding remains preliminary and does not constitute an appealable Order. The Court defers entry of an Order at this time, pending further discussions among the parties, entry of a case management order, and substantial progress toward resolution of the dispositive issues in this case.
/s/ Thomas A. Wiseman, Jr. Thomas A. Wiseman, Jr. Senior U.S. District Judge

 
 JOHN B., et al., Plaintiffs, DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration, et al., Defendants.
NO. 3:98-0168
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2007 U.S. Dist. LEXIS 84557
November 14, 2007, Decided November 15, 2007, Filed
SUBSEQUENT HISTORY: Stay denied by John B. v. Goetz, 2007 U.S. Dist. LEXIS 86782 (M.D. Tenn., Nov. 26, 2007) Writ of mandamus granted, in part, Set aside by, in part John B. v. Goetz, 2008 U.S. App. LEXIS 13459 (6th Cir.) (6th Cir. Tenn., 2008)
PRIOR HISTORY: John B. v. Goetz, 2007 U.S. Dist. LEXIS 75457 (M.D. Tenn., Oct. 10, 2007)
COUNSEL: [*1] For John B., by their next friend, L.A., Carrie G., by their next friend, L.A., Joshua M., by their next friend, L.A., Meagan A., by their next friend, L.A., Erica A., by their next friend, L.A., Dustin P., by his next friend, Linda C., Bayli S., by her next friend, C.W., James D., by his next friend, Susan H., Elsie H., by new hext friend, Stacy Miller, Julian C., by his next friend, Shawn C., Troy D., by his next friend, T.W., Ray M., by his next friend, P.D., Roscoe W., by his next friend, B.W., William B., by his next friend, K.B., Jacob R., by his next friend, Kim R., Justin S., by his next friend, Diane P., Estel W., by his next friend, E.D., Plaintiffs: Albert Howard Kass, LEAD ATTORNEY, Gregory Todd Heyman, LEAD ATTORNEY, Junaid Khalil, LEAD ATTORNEY, Shira Judith Schlaff, LEAD ATTORNEY, Victoria Reznik, LEAD ATTORNEY, William S. W. Chang, LEAD ATTORNEY, Kirkland & Ellis, New York, NY; George Gordon Bonnyman, Jr., LEAD ATTORNEY, Patricia C. Gunn, LEAD ATTORNEY, Michele M. Johnson, Shawn L. Caster, Tennessee Justice Center, Inc., Nashville, TN; Jeffrey S. Goldman, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal LLP, Chicago, IL; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein Nath [*2] & Rosenthal, Kansas City, MO; Ralph I. Knowles, Jr., LEAD ATTORNEY, Everette L. Doffermyre, Kimberly Jean Johnson, Doffermyre, Shields, Canfield, Knowles & Devine, The Peachtree, Atlanta, GA; Robert Thomas Joseph, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal, Chicago, IL.
For Nancy Menke, Commissioner, Tennessee Department of Health, Theresa Clarke, Assistant Commissioner, Bureau of TennCare, George W. Hattaway, Commissioner, Tennessee Department of Children Services, Defendants: Brian Stuart Koukoutchos, LEAD ATTORNEY, Dean John Sauer, LEAD ATTORNEY, Michael Weitzner, LEAD ATTORNEY, Charles J. Cooper, Derek L. Shaffer, Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, Washington, DC; Charles A. Miller, LEAD ATTORNEY, Covington & Burling, Washington, DC; Linda A. Ross, LEAD ATTORNEY, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN; Ronald G. Harris, LEAD ATTORNEY, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN.
For Richard A. Carter, M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE # 601, Interested Party: Richard A. Carter, LEAD ATTORNEY, Strategic Preventive Medicine, Nashville, TN.
For Leilani S. Boulware, [*3] Meharry Medical College, Monitor, Interested Party: Leilani Boulware, LEAD ATTORNEY, Meharry Medical College, Nashville, TN.

2007 U.S. Dist. LEXIS 84557, *
For Alex Hurder, Vanderbilt School of Law, Monitor, Interested Party: Alex Jay Hurder, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Susan Kay, Vanderbilt School of Law, Monitor, Interested Party: Susan Laurie Kay, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Michael Passino, Monitor, Interested Party: Michael James Passino, LEAD ATTORNEY, Nashville, TN.
For Robert L. Smith, Smith, Hirsch, Blackshear & Barnes, PLC, Monitor, Interested Party: Robert Lewis Smith, LEAD ATTORNEY, Smith, Hirsch, Blackshear & Harris, PLC, The Nashville House, Nashville, TN.
For First Health Services Corporation, Interested Party: Beth L. Domenick, LEAD ATTORNEY, Scott L. Vernick, LEAD ATTORNEY, Fox Rothschild LLP, Philadelphia, PA; Scott Hickman, LEAD ATTORNEY, Sherrard & Roe, Nashville, TN.
For UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice, Interested Party: Gary C. Shockley, LEAD ATTORNEY, John S. Hicks, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN.
For [*4] Unison Health Plan of Tennessee, Inc., Interested Party: Joseph C. Safar, LEAD ATTORNEY, Thomas J. Smith, LEAD ATTORNEY, Kirkpatrick & Lockhart Preston, Gates & Ellis, LLP, Pittsburgh, PA; Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For BlueCross Blueshield of Tennessee, Interested Party: Marc R. Jenkins, LEAD ATTORNEY, William Beesley Hubbard, LEAD ATTORNEY, Hubbard, Berry & Harris, PLLC, Nashville, TN.
For QSource, Interested Party: Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For Doral Dental of Tennessee, LLC, Interested Party: Kathryn Hannen Walker, LEAD ATTORNEY, Wallace Wordsworth Dietz, LEAD ATTORNEY, Bass, Berry & Sims, Nashville, TN.
For Preferred Health Partnership of Tennessee, Inc., Interested Party: John L. Miller, LEAD ATTORNEY, Martin B. Bailey, LEAD ATTORNEY, Wagner, Myers & Sanger, Knoxville, TN.
For Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC, Interested Parties: Charles B. Welch, Jr., LEAD ATTORNEY, Christopher Corum Webb, LEAD ATTORNEY, Farris, Mathews, Branan, Bobango & Hellen, PLC, Nashville, TN.
For Amerigroup Corporation, Interested Party: Paul Savage Davidson, LEAD ATTORNEY, Waller, [*5] Lansden, Dortch & Davis, LLP, Nashville, TN.
JUDGES: WILLIAM J. HAYNES, JR., United States District Judge.
OPINION BY: WILLIAM J. HAYNES, JR.
OPINION
MEMORANDUM Before the Court are several motions: the Defendants' first motion for clarification of or in the alternative reconsid-
eration of the October 10, 2007 Order requiring implementation of the Defendants' March 17, 2004 memorandum and the designation of persons to collect and review documents (Docket Entry No. 1032); the Defendants' second motion for clarification or in the alternative reconsideration of the October 10, 2007 Order involving certain data bases (Docket Entry No. 1042); Plaintiffs' motion for Rule 37 sanctions for the Defendants' failure to obey the October 10th Order to answer Interrogatory No. 22 (Docket Entry No. 1045); Defendants' motion for a protective order (Docket Entry No. 1048); Plaintiffs' motion to compel compliance with the October 10, 2007 Order (Docket Entry No. 1052); Defendants'

2007 U.S. Dist. LEXIS 84557, *
motion to file under seal (Docket Entry No. 1058) and the Defendants' motion to file under seal and motion to postpone the November 20, 2007 conference set by the Court. (Docket Entry No. 1064).
Upon review, the Court will grant the Defendants' motion to postpone [*6] the November 20th conference and sets a hearing for November 29, 2007 at 8:00 a.m., to allow the Defendants time under the rules to file a response to the Plaintiffs' motion to compel that includes a request for a finding of contempt, the appointment of discovery monitors and the imposition of sanctions. (Docket Entry No. 1052, Plaintiffs' Motion to Compel at pp. 1, 2). The Court has appointed monitors for the discovery ordered by the Court. (Docket Entry No. 1060). The Court deems a hearing necessary on the other issues in the Plaintiffs' motion to compel as well as Plaintiffs motion for Rule 37 sanctions and the Defendants' motions for a protective order.
The Defendants did not request a hearing on their motions for clarification and the Court does not deem a hearing necessary on those motions. Plaintiffs have filed replies to the Defendants' motions to clarify. (Docket Entry Nos. 1035 and 1054).
The Defendants' first motion to clarify addresses the Court's Order for implementation of the March 17, 2004 litigation hold memorandum (Docket Entry No. 1029, Order at p. 2). For this implementation, this portion of the October 10th Order directed the Defendants to identify and report "instanter" [*7] the lawyers within the State Attorney General's Office and the designated record custodians in the agencies administering the TennCare program who would implement the March 17th memorandum. These individuals were to collect and review discovery ordered by the Court. To date, the Defendants have not identified such persons. The Defendants argue that the March 17th Memorandum was intended only for a limited purpose and time and is no longer operative (Docket Entry No. 1032, Defendants' First Motion to Clarify at p. 5). The Defendants assert that they had independently instructed their employees "to archive relevant documents and ESI for collection and production in this and other TennCare litigation as a matter of course." Id. at p. 4. The Defendants note that the designation of "AG" office in the March 17th Memorandum is actually a designation for the Department of Finance and Administration for Office of Information Resources. 1 Thus, the Defendants contend that the Order seeks identification of persons from groups that do not exist. The Defendants argue that this portion of the Order for a review team is also inconsistent with the Court's Orders for preservation of ESI. (Docket Entry [*8] Nos. 734, 743 and 789). Thus, in the Defendants' view, any additional designation creates an unnecessary and alternate method of preservation.
1 The Court fails to understand why the next entry on the March 17th Memorandum has a separate mail box designation for "all email and attachments" to the Finance and Administration Team Representative" (Docket Entry No. 1028, Memorandum at p. 47) (quoting Plaintiffs' Exhibit Nos. 24(f) and 24(g).
In their response, the Plaintiffs agree, in part, that the Orders setting the protocol for preservation of ESI is superior to any designation and collection by individual custodians (Docket Entry No. 1035, Plaintiffs' Reply at p. 8). Plaintiffs, however, note that the Defendants again assert facts that are not in the record; that contrary to the Defendants' assertions, Plaintiffs raised the March 17th Memorandum prior to June 2007 evidentiary hearing on the Plaintiffs' renewed motion to compel; that the record is devoid of proof of the specifics of any litigation hold by the Defendants, other than the March 17th Memorandum; and that the Defendants' admission that the March 17th Memorandum's protocol was "briefly deployed in late 2004 and 2005" suggests [*9] a deliberate discontinuation of the preservation procedures in the March 17th Memorandum (Docket Entry No. 1035, Plaintiffs' Reply at p. 4) (quoting Defendants' Motion Docket Entry No. 1031 at p. 8, n3). Plaintiffs argue that Defendants' admission of the suspension of the March 17th Memorandum raises serious questions about the integrity of the Defendants interrogatory responses in this and related actions. Id. at pp. 6-7.
The Court agrees with the Plaintiffs that the Defendants' admission that the March 17th Memorandum was implemented only for a brief period in late 2004 or 2005, raises serious concerns about the Defendants' preservation of relevant information for this and related actions. These statements of defense counsel suggest a deliberate decision not to take the admittedly necessary steps to preserve data in the pending TennCare actions, including this action.
In its earlier Memorandum, the Court found that the Defendants' 2006 discovery responses in their paper production were seriously inadequate. (Docket Entry No. 1028, Memorandum at pp. 56-65). A notable example is that in the Defendants' 2006 paper production, the defense counsel produced 500 emails for J.D. Hickey, a [*10] key TennCare official. Id. at p. 58. The Defendants' ESI contractor's compilation later found 30,000 emails to Hickey. Id. The Court also found that some of the Defendants' ESI, including ESI of key state officials, has been destroyed. Id. at pp. 52-55. Based upon defense counsel's statement, the Court found that although there have been contested proceedings through-

2007 U.S. Dist. LEXIS 84557, *
out this action, the Defendants did not issue a litigation hold until June, 2006. Id. at p. 50. The Court also found that the managed care contractors ("MCCs")destroyed ESI relevant to issues in this action and the MCCs did not issue a litigation hold until December 2006. Id. at p. 55.
In sum, the inadequacy of the Defendants' 2006 paper production and the destruction of some ESI of some key state officials, led the Court to conclude that despite the ESI protocol in the cited Orders of the Court, there remains, in all likelihood, some responsive documents that have not been produced and exist only in hard copy. The designation of agency representatives in the October 10th Order was to facilitate a supplemental search for responsive hard copy documents, as the Defendants' 2006 paper production has been found to be seriously [*11] inadequate. The Court required the designation of lawyers in the State Attorney General's Office to assist designated representatives in each agency to search and collect any such additional documents. Current defense counsel had the prior opportunities to do so and failed to produce thousands of documents, as the Hickey emails are, but one example. To this extent, the Defendants' first motion to clarify should be granted to explain that these designees are to conduct another review of the relevants agencies' and key officials' paper records to supplement the seriously inadequate earlier paper production. This supplementary search is an effort to ameliorate the effects of the Defendants' inadequate 2006 discovery responses, the loss of ESI and the Defendants' lack of an effective and timely litigation hold. These designees are not to be involved in the ESI protocol set by the Court's other Orders. (Docket Entry Nos. 734, 743 and 789).
In their second motion for clarification or reconsideration of the October 10th Order, the Defendants address the portion of the Court's Order to produce data from the Department of Children's Services ("DCS") TNKids database and the Tennessee Department [*12] of Mental Health and Development Disabilities ("TDMHDD") Incidents and Reports database. (Docket Entry No. 1042, Defendants' Second Motion to Clarify at pp. 1-2). The specific concerns are that under the Court's Order, the Defendants cannot possibly redact all of the recordings in the "native TNKids electronic environment." Id. at p. 3. Defendant argue that the same is true for the TDMHDD in its native format. Id. at p. 4. The Defendants contend that to comply with the Court's Order, would require manual redaction of 5.3 million recordings in the TN Kids case and TDMHDD's databases. Id. at 5. Defendants estimate a year is necessary to perform such a manual redaction. Defendants cite their proof that the vast majority of this data does not involve class members. Id. at pp. 4-5. Finally, the Defendants argue for reconsideration of their legal arguments and note that the Plaintiffs never sought this data in their discovery requests.
In their reply, Plaintiffs note that "[t]he Court has already stated that [a]n appropriate protective order for discovery and trial can avoid disclosures of the identities of the children, doctor, and other protected persons." (Docket Entry No. 1054, at p. [*13] 2) (quoting Docket Entry No. 1028 Memorandum at p.176). Plaintiffs seek production of nonredacted data from these databases under a protective order. Plaintiffs assert that this motion is a rehash of contentions that the Court has already decided.
In the Court's review, the Defendants belatedly raised these state statutory based privileges. As found by the Court, the Defendants did not assert these privileges in their privilege log nor in their response to the Plaintiffs' first motion to compel. (Docket Entry No. 1028, Memorandum at p. 154). The Court also noted that in the Consent Decree, the Defendants agreed to grant Plaintiffs access to the State's data "subject to any applicable federal law." Id. The Court cited decisions of district courts from this district and other districts that do not recognize these state laws as privileged in this context. Id. at pp. 174-75. As to federal law, the HIPPA issue had been previously decided in favor of disclosure in this action and a related action. Id. at p. 177, citing Docket Entry No. 103, Order at pp. 5-6. As found by the Court, the Defendants are already providing this information in two other actions and to a private group. Id. at p. 88. [*14] The Defendants do not cite any contrary legal authority to 42 U.S.C. ß 5106a (b)(2)(A)(v) that "permits disclosures of children's records to a 'court, upon finding that information in the record is necessary for a determination of an issue before the court.'" Id. at p. 177. To avoid any further delays in this protracted discovery dispute, the Defendants shall produce this data in its native format without redaction, after entry of an appropriate protective order.
As to the Defendants' assertion that Plaintiffs' discovery request did not include data from the TNKids program, if true, then the Court has difficulty understanding why the Defendants asserted this privilege in response to Plaintiffs' motion to compel. The Court notes that in response to the Court's Order to mediate the parties' discovery disputes at the April 11, 2007 conference of computer experts, the Defendants filed documents on TNKids data as at issue on the parties' discovery disputes. See Docket Entry No. 860, Defendants' Notice of Filing at Attachments 13, 14 and 15.
For these collective reasons, the Defendants' second motion for clarification or in the alternative reconsideration of the October 10th Order should be [*15] denied.
An appropriate Order is filed herewith.

2007 U.S. Dist. LEXIS 84557, *
ENTERED this the 14th day of November, 2007. William J. Haynes, Jr. WILLIAM J. HAYNES, JR. United States District Judge

 
 JOHN B., CARRIE G., JOSHUA M., MEGAN A. and ERICA A., by their next friend, L.A.; DUSTIN P., by his next friend, Linda C.; BAYLI S. by her next friend, C.W.; JAMES D. by his next friend, Susan H.; ELSIE H. by her next friend, Stacy Miller; JULIAN C. by his next friend, Shawn C.; TROY D. by his next friend, T.W.; RAY M. by his next friend, P.D.; ROSCOE W. by his next friend, K.B.; JACOB R. by his next friend, Kim B.; JUSTIN S. by his next friend, Diane P.; ESTEL W. by his next friend, E.D.; individually and on behalf of all others similarly situated, Plaintiffs, DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration; DARIN GORDEN, Deputy Commissioner, Bureau of TennCare; and VIOLA MILLER, Commissioner, Tennessee Department of Children's Services, De-
fendants.
NO. 3:98-0168
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2007 U.S. Dist. LEXIS 86782
November 26, 2007, Decided November 26, 2007, Filed
PRIOR HISTORY: John B. v. Goetz, 2007 U.S. Dist. LEXIS 84557 (M.D. Tenn., Nov. 14, 2007)
COUNSEL: [*1] For John B., by their next friend, L.A., Carrie G., by their next friend, L.A., Joshua M., by their next friend, L.A., Meagan A., by their next friend, L.A., Erica A., by their next friend, L.A., Dustin P., by his next friend, Linda C., Bayli S., by her next friend, C.W., James D., by his next friend, Susan H., Elsie H., by new next friend, Stacy Miller, Julian C., by his next friend, Shawn C., Troy D., by his next friend, T.W., Ray M., by his next friend, P.D., Roscoe W., by his next friend, B.W., William B., by his next friend, K.B., Jacob R., by his next friend, Kim R., Justin S., by his next friend, Diane P., Estel W., by his next friend, E.D., Plaintiffs: Albert Howard Kass, LEAD ATTORNEY, Gregory Todd Heyman, LEAD ATTORNEY, Junaid Khalil, LEAD ATTORNEY, Victoria Reznik, LEAD ATTORNEY, William S. W. Chang, LEAD ATTORNEY, Kirkland & Ellis, New York, NY; George Gordon Bonnyman, Jr., LEAD ATTORNEY, Patricia C. Gunn, LEAD ATTORNEY, Michele M. Johnson, Tennessee Justice Center, Inc., Nashville, TN; Jeffrey S. Goldman, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal LLP, Chicago, IL; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein Nath & Rosenthal, Kansas City, MO; Ralph I. Knowles, Jr., [*2] LEAD ATTORNEY, Everette L. Doffermyre, Kimberly Jean Johnson, Doffermyre, Shields, Canfield, Knowles & Devine, The Peachtree, Atlanta, GA; Robert Thomas Joseph, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal, Chicago, IL.
For Nancy Menke, Commissioner, Tennessee Department of Health, Theresa Clarke, Assistant Commissioner, Bureau of TennCare, George W. Hattaway, Commissioner, Tennessee Department of Children Services, Defendants: Brian Stuart Koukoutchos, LEAD ATTORNEY, Dean John Sauer, LEAD ATTORNEY, Michael Weitzner, LEAD ATTORNEY, Charles J. Cooper, Derek L. Shaffer, Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, Washington, DC; Charles A. Miller, LEAD ATTORNEY, Covington & Burling, Washington, DC; Linda A. Ross, LEAD ATTORNEY, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN; Ronald G. Harris, LEAD ATTORNEY, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN.
For Richard A. Carter, M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE # 601, Interested Party: Richard A. Carter, LEAD ATTORNEY, Strategic Preventive Medicine, Nashville, TN.
For Leilani S. Boulware, Meharry Medical College, Monitor, Interested Party: Leilani [*3] Boulware, LEAD ATTORNEY, Meharry Medical College, Nashville, TN.
For Alex Hurder, Vanderbilt School of Law, Monitor, Interested Party: Alex Jay Hurder, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.

For Susan Kay, Vanderbilt School of Law, Monitor, Interested Party: Susan Laurie Kay, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Michael Passino, Monitor, Interested Party: Michael James Passino, LEAD ATTORNEY, Nashville, TN.
For Robert L. Smith, Smith, Hirsch, Blackshear & Barnes, PLC, Monitor, Interested Party: Robert Lewis Smith, LEAD ATTORNEY, Smith, Hirsch, Blackshear & Harris, PLC, Nashville, TN.
For First Health Services Corporation, Interested Party: Beth L. Domenick, LEAD ATTORNEY, Scott L. Vernick, LEAD ATTORNEY, Fox Rothschild LLP, Philadelphia, PA; Scott Hickman, LEAD ATTORNEY, Sherrard & Roe, SunTrust Financial Center, Nashville, TN.
For UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice, Interested Party: Gary C. Shockley, LEAD ATTORNEY, John S. Hicks, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Commerce Center, Nashville, TN.
For Unison Health Plan of Tennessee, Inc., [*4] Interested Party: Joseph C. Safar, LEAD ATTORNEY, Thomas J. Smith, LEAD ATTORNEY, Kirkpatrick & Lockhart Preston, Gates & Ellis, LLP, Pittsburgh, PA; Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For BlueCross Blueshield of Tennessee, Interested Party: Marc R. Jenkins, LEAD ATTORNEY, William Beesley Hubbard, LEAD ATTORNEY, Hubbard, Berry & Harris, PLLC, Nashville, TN.
For QSource, Interested Party: Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For Doral Dental of Tennessee, LLC, Interested Party: Kathryn Hannen Walker, LEAD ATTORNEY, Wallace Wordsworth Dietz, LEAD ATTORNEY, Bass, Berry & Sims, Nashville, TN.
For Preferred Health Partnership of Tennessee, Inc., Interested Party: John L. Miller, LEAD ATTORNEY, Martin B. Bailey, LEAD ATTORNEY, Wagner, Myers & Sanger, Knoxville, TN.
For Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC, Interested Parties: Charles B. Welch, Jr., LEAD ATTORNEY, Christopher Corum Webb, LEAD ATTORNEY, Farris, Mathews, Branan, Bobango & Hellen, PLC, Nashville, TN.
For Amerigroup Corporation, Interested Party: Paul Savage Davidson, LEAD ATTORNEY, Waller, Lansden, Dortch & Davis, LLP, Nashville, [*5] TN.
For Memphis Managed Care Corporation, doing business as TLC Family Care Health Plan, Interested Party: David H. Lillard, LEAD ATTORNEY, Burch, Porter & Johnson, PLLC, Memphis, TN.
JUDGES: WILLIAM J. HAYNES, JR., United States District Judge.
OPINION BY: WILLIAM J. HAYNES, JR.
OPINION
MEMORANDUM Before the Court is the Defendants' motion for stay pending appeal (Docket Entry No. 1080) seeking to stay the
Court's orders of November 15 and November 19, 2007. (Docket Entry Nos. 1070 and 1079) to which the Plaintiffs responded with an affidavit from their computer expert. (Docket Entry No. 1092). The Court afforded the Defendants an opportunity to respond to that affidavit, but the Defendants did not do so.

The November 15th and November 19th Orders authorize the forensic copying of the computers of the Defendants' 50 key custodians that contain electronically stored information ("ESI") relevant to this action. These Orders were to protect against the Defendants' destruction of responsive information in light of the Defendants' persistent refusals to produce ESI in violation of the Court's orders. In its November 19th Order, the Court ordered the immediate forensic imaging of any computers used for state business by [*6] fifty officials whom the Defendants designated as "key custodians" of materials responsive to the Plaintiffs' discovery requests.
In their motion for stay, the Defendants did not cite any legal authority nor present any evidence that would justify a stay. Defendants fail to submit proof that these Orders present a "grave threat ... to aspects of the State's functions and operations that are privileged, proprietary, and at the core of its sovereign interests, and to personal computers and homes of State officers and employees as to which privacy and personal concerns are paramount." (Docket Entry No. 1080 at p. 1). In their prior motions to clarify, the Defendants did not cite any factual errors in the Court's earlier ruling on Plaintiffs' renewed motion to compel. (Docket Entry No. 1028, Memorandum).
To obtain a stay the moving party must show: (1) the likelihood of success on the merits on appeal; (2) the likelihood of irreparable harm absent a stay; (3) lack of harm to others if the stay is granted; and (4) the public interest supports a stay. Ohio v. Nuclear Regulatory Commission, 812 F.2d 288, 289 (6th Cir. 1987). For the reasons set forth below, the motion should be denied.
As to the [*7] likelihood of success on the merits, unless the Defendants defy the orders and are adjudged to be in contempt, an interlocutory appeal is unavailable for orders on pretrial discovery. U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 444 F.3d 462, 471 (6th Cir. 2006). For appellate review, discovery orders are adjudged by the clear abuse of discretion standard. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 209 (6th Cir. 1995). In one hundred eighty-seven (187) pages, the Court's Memorandum detailed the Defendants' and their counsel's conduct in unilaterally setting aside Orders of the Court, including the Consent Decree's requirement for filing a detailed plan for compliance 1 (Docket Entry No. 1028, Memorandum at pp. 29-30); the Order of October 14, 2002 to prepare an Initial Assessment Plan, id. at pp. 26, 30; the Order of November 21, 2006 to produce ESI subject to the Defendants' "right to claw-back privileged documents"; id. at p. 39; and the January 14, 2007 Order to provide and preserve ESI and to file certifications of non-removal of ESI. Id. at pp. 40-41.
1 In contrast, the Defendants have prepared detailed plans for children who are not covered by the [*8] Consent Decree (Docket Entry No. 860 and attachments thereto). Such detailed plans provide an interesting contrast to the Defendants' efforts to serve the class of children covered by the Consent Decree.
The Court has held at least nine discovery conferences on ESI and discovery issues, including a conference with the parties' computer experts, another conference with the parties' and the managed care contractors' computer experts and a five days evidentiary hearing on these issues. The Defendants' assertions on ESI discovery have been inconsistent and inaccurate. The Court cannot discern a basis to set aside the discovery Orders at issue.
As to the motion for a stay, the Plaintiffs' expert presented an affidavit detailing the methods to be employed. The Court finds these methods of forensic copying are neither disruptive nor unnecessarily intrusive. The Order of November 19th addressed the Defendants' imaginary concerns about compliance with the November 15th Order.
Second, the Defendants have not demonstrated that any threat of irreparable harm. Nuclear Regulatory Commission, 812 F.2d. at 290. The November 19th Order clarified that the forensic imaging will occur under safeguards that [*9] address the expressed legitimate concerns that the Defendants had. (Docket Entry No. 1079). Tom Tigh's declaration also demonstrates how this forensic copying will be done so that these concerns of disruption and invasion of privacy are meritless. Protective orders are to be entered before production to protect any legitimate interests of the Defendants. The forensic copies made under this Order are not subject to disclosure pending further Order of the Court. (Docket Entry No. 1079, Order at p. 2).
As to the imaging of the Governor's computers, the discovery orders involve those computers on which the key custodians generated, received or stored work-related ESI. (Docket Entry No. 1079 at p. 2). The Defendants previously conceded that such ESI is under their control. See Docket Entry No. 771 at p. 8. As to the Governor's personal computers, the Defendants earlier responded that to
. .. search personal computers and domains, such as a computer domain controlled by the Governor personally or by his campaign, when these computers or domains have not been used for official state

business and would not contain any information or material that is in any way relevant or responsive to Plaintiffs' [*10] discovery requests
Id. (emphasis added). If that statement were truthful, then the current assertions about a search of the Governor's personal computers is moot. If the statement is not truthful, then serious issues arise as to the integrity of the Defendants' discovery responses and the preservation of relevant evidence. Such concerns support the prompt imaging of these computers. 2
2 When Plaintiffs' counsel questioned the Defendants' earlier answer's representation and informed defense counsel that they had evidence to the contrary, (Docket Entry No. 771, Exhibit E: Bonnyman letter of December 19, 2006, at p. 2), Defense counsel then acknowledged that the Governor had used his private domain for such purposes, but defense counsel stated that they had previously searched the domain for responsive ESI and had found two responsive emails that they failed to include in their privilege log. (Docket Entry No. 827 at pp. 1-2).
Brent Antony recently told Tom Tigh that the Governor's email has never been preserved as prescribed in the agreed preservation protocol that was approved by the Court. (Tigh Declaration at 3, P 7 and Exhibit A thereto, at n. 1). Thus, the Governor's ESI suffers the [*11] same problems of self-collection and preservation that have been previously documented. (Docket Entry No. 1028, Memorandum at pp. 59-60; and Docket Entry No. 764: Transcript at p. 49). The Governor never produced any documents from his private email domain ("bredesen.com"), but Plaintiffs found among the State's May 15, 2006 hard copy production an email that had been produced by another key custodian and that had been sent to the Governor at his personal domain address. (Plaintiffs' Exhibit 15, admitted June 19, 2007.)
The Governor has recently stated in an answer to a request for admission that he is unaware of the destruction or loss of any responsive materials, and that he has produced all responsive documents. (Exhibit 1 to this brief.) He has certified that he has not removed any ESI to detachable media, such as a personal computer. (Docket Entry No. 1044-2 at 4 of 36; cf Docket Entry No. 1053 at p. 6-7). The Governor has never certified where he saves work-related ESI. (Docket Entry No. 980).
The Defendants' historic failures to preserve responsive materials that are necessary to assess the Defendants' claims of compliance with the Consent Decree, (Docket Entry No. 1028, Memorandum [*12] at pp. 45-56), these findings coupled with Tigh's declaration describing risk of further destruction or loss (Docket Entry No. 1092, Tigh Declaration at 1-2) lead the Court to conclude that the Plaintiffs' class would be harmed by a stay. The class's interests far outweigh any potential harm to the Defendants from execution of the Orders.
As to the public interest, the integrity of the judicial process requires that the Court's Orders be obeyed and the discovery process not be compromised by failures to obey discovery orders. The Defendants have well-documented failures to obey prior discovery orders and in particular, the Orders that involve ESI. The ESI discovery at issue was ordered to be produce more than a year ago. (Docket Entry No. 743, Order at p. 2). This action involves the health and well-being of over half a million disadvantaged Tennessee children and billions of dollars in of federal funds appropriated for their care that has consistently not been provided to substantial members of the class in violation of the Consent Decree. The Orders at issue are to ensure that the parties and the Court have this critical information that is necessary to decide the controversies in [*13] this action.
For these reasons, the Defendants' motion for a stay should be denied.
An appropriate Order is filed herewith.
It is so ORDERED.
ENTERED this the 26th day of November, 2007.
William J. Haynes Jr
WILLIAM J. HAYNES, JR.
United States District Judge
ORDER

In accordance with the Memorandum filed herewith, the Defendants' motion to stay pending appeal (Docket Entry No. 1080) is DENIED.
It is so ORDERED. ENTERED this the 26th day of November, 2007. William J. Haynes Jr WILLIAM J. HAYNES, JR. United States District Judge

 
 JOHN B., CARRIE G., JOSHUA M., MEGAN A. and ERICA A., by their next friend, L.A.; DUSTIN P., by his next friend, Linda C.; BAYLI S. by her next friend, C.W.; JAMES D. by his next friend, Susan H.; ELSIE H. by her next friend, Stacy Miller; JULIAN C. by his next friend, Shawn C.; TROY D. by his next friend, T.W.; RAY M. by his next friend, P.D.; ROSCOE W. by his next friend, K.B.; JACOB R. by his next friend, Kim B.; JUSTIN S. by his next friend, Diane P.; ESTEL W. by his next friend, E.D.; individually and on behalf of all others similarly situated, Plaintiffs, DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration; DARIN GORDON, Deputy Commissioner, Bureau of TennCare; and VIOLA MILLER, Commissioner, Tennessee Department of Children's Services, De-
fendants.
NO. 3:98-0168
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2007 U.S. Dist. LEXIS 75457
October 10, 2007, Entered
SUBSEQUENT HISTORY: Motions ruled upon by, Reconsideration denied by John B. v. Goetz, 2007 U.S. Dist. LEXIS 84557 (M.D. Tenn., Nov. 14, 2007)
PRIOR HISTORY: John B. v. Menke, 176 F. Supp. 2d 786, 2001 U.S. Dist. LEXIS 23090 (M.D. Tenn., 2001)
COUNSEL: [*1] For John B., by their next friend, L.A., Carrie G., by their next friend, L.A., Joshua M., by their next friend, L.A., Meagan A., by their next friend, L.A., Erica A., by their next friend, L.A., Dustin P., by his next friend, Linda C., Bayli S., by her next friend, C. W., James D., by his next friend, Susan H., Elsie H., by new hext friend, Stacy Miller, Julian C., by his next friend, Shawn C., Troy D., by his next friend, T.W., Ray M., by his next friend, P.D., Roscoe W., by his next friend, B.W., William B., by his next friend, K.B., Jacob R., by his next friend, Kim R., Justin S., by his next friend, Diane P., Estel W., by his next friend, E.D., Plaintiffs: Albert Howard Kass, LEAD ATTORNEY, Gregory Todd Heyman, LEAD ATTORNEY, Junaid Khalil, LEAD ATTORNEY, Shira Judith Schlaff, LEAD ATTORNEY, Victoria Reznik, LEAD ATTORNEY, William S. W. Chang, LEAD ATTORNEY, Kirkland & Ellis, New York, NY; George Gordon Bonnyman, Jr., LEAD ATTORNEY, Patricia C. Gunn, LEAD ATTORNEY, Lisa J. D'Souza, Michele M. Johnson, Shawn L. Caster, Tennessee Justice Center, Inc., Nashville, TN; Jeffrey S. Goldman, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal LLP, Chicago, IL; Mark P. Johnson, LEAD ATTORNEY, [*2] Sonnenschein Nath & Rosenthal, Kansas City, MO; Ralph I. Knowles, Jr., LEAD ATTORNEY, Everette L. Doffermyre, Kimberly Jean Johnson, Doffermyre, Shields, Canfield, Knowles & Devine, The Peachtree, Atlanta, GA; Robert Thomas Joseph, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal, Chicago, IL.
For Nancy Menke, Commissioner, Tennessee Department of Health, Theresa Clarke, Assistant Commissioner, Bureau of TennCare, George W. Hattaway, Commissioner, Tennessee Department of Children Services, Defendants: Brian Stuart Koukoutchos, LEAD ATTORNEY, Dean John Sauer, LEAD ATTORNEY, Michael Weitzner, LEAD ATTORNEY, Charles J. Cooper, Derek L. Shaffer, Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, Washington, DC; Charles A. Miller, LEAD ATTORNEY, Covington & Burling, Washington, DC; Linda A. Ross, LEAD ATTORNEY, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN; Ronald G. Harris, LEAD ATTORNEY, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN.
For Richard A. Carter, M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE # 601, Interested Party: Richard A. Carter, LEAD ATTORNEY, Strategic Preventive Medicine, Nashville, TN.

2007 U.S. Dist. LEXIS 75457, *

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For Leilani [*3] S. Boulware, Meharry Medical College, Monitor, Interested Party: Leilani Boulware, LEAD ATTORNEY, Meharry Medical College, Nashville, TN.
For Alex Hurder, Vanderbilt School of Law, Monitor, Interested Party: Alex Jay Hurder, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Susan Kay, Vanderbilt School of Law, Monitor, Interested Party: Susan Laurie Kay, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Michael Passino, Monitor, Interested Party: Michael James Passino, LEAD ATTORNEY, Nashville, TN.
For Robert L. Smith, Smith, Hirsch, Blackshear & Barnes, PLC, Monitor, Interested Party: Robert Lewis Smith, LEAD ATTORNEY, Smith, Hirsch, Blackshear & Harris, PLC, Nashville, TN.
For First Health Services Corporation, Interested Party: Beth L. Domenick, LEAD ATTORNEY, Scott L. Vernick, LEAD ATTORNEY, Fox Rothschild LLP, Philadelphia, PA; Scott Hickman, LEAD ATTORNEY, Sherrard & Roe, Nashville, TN.
For UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice, Interested Party: Gary C. Shockley, LEAD ATTORNEY, John S. Hicks, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN.
For Unison [*4] Health Plan of Tennessee, Inc., Interested Party: Joseph C. Safar, LEAD ATTORNEY, Thomas J. Smith, LEAD ATTORNEY, Kirkpatrick & Lockhart Preston, Gates & Ellis, LLP, Pittsburgh, PA; Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For BlueCross Blueshield of Tennessee, Interested Party: Marc R. Jenkins, LEAD ATTORNEY, William Beesley Hubbard, LEAD ATTORNEY, Hubbard, Berry & Harris, PLLC, Nashville, TN.
For QSource, Interested Party: Stephen H. Biller, LEAD ATTORNEY, Bogatin Law Firm, PLC, Memphis, TN.
For Doral Dental of Tennessee, LLC, Interested Party: Kathryn Hannen Walker, LEAD ATTORNEY, Wallace Wordsworth Dietz, LEAD ATTORNEY, Bass, Berry & Sims, Nashville, TN.
For Preferred Health Partnership of Tennessee, Inc., Interested Party: John L. Miller, LEAD ATTORNEY, Martin B. Bailey, LEAD ATTORNEY, Wagner, Myers & Sanger, Knoxville, TN.
For Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC, Interested Parties: Charles B. Welch, Jr., LEAD ATTORNEY, Christopher Corum Webb, LEAD ATTORNEY, Farris, Mathews, Branan, Bobango & Hellen, PLC, Nashville, TN.
JUDGES: WILLIAM J. HAYNES, JR., United States District Judge.
OPINION BY: WILLIAM J. HAYNES, JR.
OPINION
MEMORANDUM TABLE [*5] OF CONTENTS
I. History of this Litigation
A. Consent Decree and Earlier Proceedings
B. The Court's 2001 Findings of the Defendants' Noncompliance

2007 U.S. Dist. LEXIS 75457, *
C. The Court's 2004 Findings of the Defendants' Noncompliance D. The Recusal Order and Reassignment E. The 2006 Discovery Proceedings II. Plaintiffs' Renewed Motion to Compel A. Findings of Fact 1. Information Requirements and Discovery Rights under the Consent Decree 2. The Lack of Preservation of Relevant Records 3. Inadequacies in the Defendants' 2006 Paper Production 4. The Necessity of Plaintiffs' ESI Discovery Requests 5. The Costs of ESI Production 6. Privileged Information in the ESI Production 7. Defendants' Failures to Answer Plaintiffs' Requests for Admissions and to Comply with the January 14th Order 8. Other ESI Production Issues B. Conclusions of Law 1. Discovery from the MCCs 2. Discovery Standards 3. Discovery Rules on Electronic Discovery 4. Duty to Preserve 5. The Undue Burden Analysis (i) Types of ESI Data (ii) Defendants' and MCCs' Databases (iii) The Costs of Production 6. The Good Cause Showing and the Rule 26(b)(2)(C) factors 7. Privilege Issues a. Attorney-Client Privilege

Page 3

2007 U.S. Dist. LEXIS 75457, *

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b. Work Product Privilege
c. Joint Defense Privilege
d. Deliberative Process Privilege
e. State Statutory Privileges
8. Defendants' Failures to Answer Plaintiffs' Requests for Admissions and to Comply with the January 14th Order
III. Remedies
Plaintiffs, [*6] John B., and other minors through their next friends, filed this action on behalf of themselves and other similarly situated minors under 42 U.S.C. ß 1983 asserting jurisdiction under 28 U.S.C. ß 1331, the federal question jurisdiction statute, with its statutory counterpart, 28 U.S.C. ß 1343(a)(3) and (4). Plaintiffs' action is on behalf of a class of approximately 550,000 children who are entitled under federal law to medical services that include early and periodic screenings for their physical well being, including their dental and behavioral health needs. Federal law also requires any necessary follow-up medical services. The Plaintiffs' class includes children who are in the state's custody through the state's juvenile court system and other children's programs provided by the State of Tennessee.
Plaintiffs seek to enforce their rights under Title VI of the Social Security Act, 42 U.S.C. ßß 620-629 and 670-679 and Title IX of that Act, 42 U.S.C. ß 1396 et seq. as well as remedies for violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In essence, Plaintiffs allege that the Defendants deprived them of their rights to early and periodic [*7] screening, diagnosis and treatment (EPSDT) services and related medical care for children under State's TennCare program and children who are in the Defendants' legal custody are also entitled to such services under Title VI.
The original Defendants were Nancy Menke, Commissioner, Tennessee Department of Health; Theresa Clarke, Assistant Commissioner, Bureau of TennCare; and George Hattaway, Commissioner, Tennessee Department of Children's Services. The successors in office and current Defendants are: David Goetz, Commissioner, Tennessee Department of Finance and Administration; J.D. Hickey, Assistant Commissioner, TennCare Bureau 1; and Viola Miller, Tennessee Department of Children's Services. The Defendants are state officials who are in charge of the State programs for these services that are federally funded by Congress under Title VI of the Social Security Act, 42 U.S.C. ßß 620-629 and 670679 and Title IX of that Act. The medical services at issue are provided under the State's TennCare program, a waiver program approved by the Center for Medicare and Medicaid Services ("CMS"). The actual providers of these medical services are the Managed Care Contractors ("MCCs") or Managed [*8] Care Companies ("MCOs") that have contracts with the State detailing their responsibilities. Some MCCs provide only management services and some MCCs specialize in dental or behavioral health services.
1 The Defendant Hickey has since left state employment and substitution of his successor has not been sought.
Contemporaneous with the filing of the complaint, Plaintiffs requested class certification and the parties agreed to entry of a Consent Decree to remedy Plaintiffs' claims and to certify the class. (Docket Entry No. 3). The Court certified the class and entered the Consent Decree (Docket Entry No. 12) that granted declaratory and injunctive relief on Plaintiff's EPSDT claims. The Consent Decree enjoined the Defendants, as state officials, from depriving Plaintiffs and members of their class of their rights to EPSDT services; set minimum percentages of screenings for different groups of children over a period of years for compliance with EPSDT laws; and required a detailed, multi-year remedial plan to ensure the Defendants' compliance with Consent Decree. Lengthy and complex proceedings followed, including several show cause and contempt hearings. (Docket Entry Nos. 79, 228, 270, [*9] 291, 465 and 558).
After a series of hearings and conferences on the parties' current discovery disputes, the Court ordered that discovery of electronically stored information ("ESI") 2 shall be provided and directed the parties' computer experts to develop a protocol for ESI discovery from the Defendants and their MCCs. On December 6, 2006, the Plaintiffs' and the State's computer experts agreed to a protocol for the ESI discovery, that was subject to modifications for the search terms and

2007 U.S. Dist. LEXIS 75457, *

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consultations with the MCCs. (Docket Entry No. 764 at pp. 14-26 and Docket Entry No. 765). The Defendants continued to oppose the terms for production of Plaintiffs' ESI discovery. Plaintiffs then renewed their motion to compel.
2 ESI can be defined as "any information created or stored in digital form whenever a computer is used to accomplish a task" Chung & Byer, The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence, 4. B.U. J. SCI. & TECH. L. 5, para. 8 (1998) or "any electronically-stored information subject to pre-trial discovery" Scheindlin & Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. REV. 327, 332-33 (2000).
Before [*10] the Court is the Plaintiffs' renewed motion to compel (Docket Entry No. 826) that asserts their discovery rights to ESI from the Defendants and the MCCs under Orders of the Court, the Federal Rules of Civil Procedure and the Consent Decree. Plaintiffs contend that the ESI is necessary to assess the Defendants' contention that they are now in compliance with the Consent Decree and to discover whether the Defendants' remain noncompliant, as earlier found by the Court. Plaintiffs ask the Court to compel the Defendants' compliance with the Court's earlier Orders for the Defendant to produce ESI and to require certain key custodians to certify that documents covered by the Plaintiffs' discovery requests have not been removed or destroyed. For their motion, Plaintiffs rely upon the Court's earlier Orders compelling the Defendants' production of:
1. Documents, ESI and information in the possession or control of the State's contractors. 3
2. ESI in the possession of the State's key custodians. 4
3. The identities of former employees of the State and its contractors with substantial EPSDT responsibilities. 5
4. Certifications from key custodians whether any responsive ESI has been removed. 6
5. [*11] Files for a sample of TennCare children who sought care from the Children's Special Services (CSS) program. 7
6. Answers, signed by all key custodians who participated in preparing the State's discovery response, to the plaintiffs' requests for admissions and interrogatories seeking assurances that responsive documents and ESI had not been destroyed and had been produced. 8
(Docket Entry No. 826, Plaintiffs' Renewed Motion to Compel at pp. 2-3). In sum, the Plaintiffs assert that their ability to protect the interests of the class requires a complete ESI production from the Defendants and their MCCs because a complete ESI production is a essential guide through the State's and MCCs' complex systems on this statewide healthcare system.
3 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 72-73) and Order of November 21, 2006 (Docket Entry No. 743 at pp. 1-2). 4 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 29, 68); Order of November 21, 2006 (Docket Entry No. 743 at p. 2). 5 Bench ruling of November 6, 2006 (Docket Entry No. 734 at p. 49) and Order of November 21, 2006 (Docket Entry No. 743 at p. 3). 6 Order of January 14, 2007 (Docket Entry No. 789 at p. 3), citing [*12] Docket Entry No. 785-2, Tigh Affidavit, P C. 7 Bench ruling of November 6, 2006 (Docket Entry No. 734 at p. 65) and Order of November 21, 2006 (Docket Entry No. 743 at p. 4). 8 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 56-64); bench ruling of December 20, 2006 (Docket Entry No. 786 at pp. 41-42); Order of November 21, 2006 (Docket Entry No. 743 at p. 3). The Defendants filed partial responses on January 30, 2007. (Docket Entry No. 799). Yet, nine former employees, including two former TennCare directors or supervisors and the Governor, did not respond personally.
In their responses, (Docket Entry Nos. 893, 898, 907, 929 and 953), Defendants and the MCCs assert, in essence, that Plaintiffs' ESI production requests are unduly burdensome based upon the extraordinary costs of production. These costs are for the actual technical production costs and substantial personnel and lawyer time to conduct the necessary privilege reviews. Moreover, the Defendants cite their earlier production of hard copies of responsive documents for the

2007 U.S. Dist. LEXIS 75457, *

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period for 2004 to April 6, 2006. 9 In their view, that paper production precludes an ESI production for the same time period. In addition, the [*13] Defendants and MCCs rely upon federal and state privacy laws that preclude the discovery of some information sought by the Plaintiffs. The MCCs also cite the need to exclude information protected by their contracts with other businesses and Medicaid programs in other states.
9 The Defendants also assert that if the Court would grant their pending motion to vacate the Consent Decree, these discovery issues would be moot. First, the Court previously addressed the contentions in their motion to vacate and the Court denied that motion. (Docket Entry No. 646, April 17, 2006 Conference at pp. 9-12). The Defendants did not appeal that ruling. Second, under Local Rule 16.01(e)(1), the pendency of a dispositive motion does not stay discovery. Third, the Court had been working on the Defendants' motion to vacate and from its research and the state of the record, the Court remains confident that ruling on the discovery disputes is appropriate. If the Defendants had not been so intransgient on discovery issues requiring extraordinary amounts of the Court's time, there would have been a ruling on the motion to vacate. The Court will continue its research on that motion, but the Court also has to [*14] give attention to other actions on this Court's docket because rulings in other actions have been delayed because of the extraordinary amount of time the Court has had to expend on the ESI issues in this action.
Also before the Court are the MCCs' related motions to allocate discovery costs. (Docket Entry Nos. 920, 921, 935) to which the Defendants responded. (Docket Entry No. 946). The MCC Doral filed a reply (Docket Entry No. 964). The MCC, BlueCross /BlueShield, has filed a motion to alter or amend the June 1, 2007 Order or motion for a partial new trial. (Docket Entry No. 931).
After extensive proceedings on the issues raised by the Plaintiffs' renewed motion to compel and shortly before the Court's filing of this Memorandum on Plaintiffs' renewed motion to compel, the Defendants filed a "Notice" of mootness. (Docket Entry No. 1023). Defendants stated that in contemplation of the Court's imminent adverse ruling, the Defendant were proceeding to produce the ESI discovery. Thus, the Defendants suggested the Plaintiffs' renewed motion to compel was moot. The Court delayed filing this Memorandum to allow Plaintiffs and any MCC the opportunity to respond to the Defendants' Notice. As [*15] reflected in the Plaintiffs' responses (Docket Entry No. 1024 and 1025) to which the Defendants filed a reply (Docket Entry No. 1027), Plaintiffs contend that the Defendants' Notice does not moot their renewed motion to compel and in fact, raises more issues. The Defendants' Notice among other things, would set a January 2007 time limit to the ESI production and limit any privilege review to a word search. Plaintiffs argue that the Defendants' Notice reflects the Defendants' bad faith litigation tactics that caused the Plaintiffs, MCCs and the Court to expend extraordinary resources on issues the defendants now declare moot.
The Court respectfully declines the defendants' suggestions of mootness. First, the Plaintiffs' responses to the Defendants' Notice reflect the actual lack of mootness and additional issues created by this Notice. Moreover, as set forth in this Memorandum and as established by the record in this action, the Court observes: (1) that the Defendants have repeatedly violated their agreements set forth in the Consent Decree; (2) that the Defendants have failed to comply with Judge Nixon's Order to submit an Initial Work Plan to remedy the Defendants' violation of federal [*16] law to conform to the Consent Decree; (3) that the Defendants refused to corporate with the Special Master appointed by the Court to develop a plan for compliance with federal law as required by the Consent Decree; (4) that the Defendants have disavowed a clear command of the Consent Decree to develop a specific remedial plan; (5) that the Defendants breached their agreement with the Plaintiffs on the dates for ESI discovery and the ESI protocol; (6) that the Defendant have ignored Court's directions to provide ESI to Plaintiffs; and (7) that the Defendants failed to comply with the Court's Orders on discovery. In these circumstances, the Court lacks confidence in the Defendants' assertions that the discovery disputes in this action are moot.
I. History of this Litigation
To decide the Plaintiffs' renewed motion to compel and to understand the related issues before the Court, a brief discussion of the history of this litigation is necessary. 10 This review provides insights to understand the ESI discovery sought by the Plaintiffs and the necessity for that discovery.
10 This section of the Memorandum is organized for the purpose of analyzing the factors in Fed. R. Civ. P. 26(b)(2)(C) as [*17] well as other rules in light of the 2006 amendments of the Rules of Civil Procedure governing ESI. The Court deeply regrets the length of the Memorandum, but a reasoned resolution of the parties' contentions requires its length.

2007 U.S. Dist. LEXIS 75457, *

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A. The Consent Decree and Earlier Proceedings
The Consent Decree certified the class, conferred substantive relief to the members of the Plaintiffs' class and imposed obligations upon the Defendants and the MCCs to provide EPSDT services to the class members and to report on their provisions of such services. (Docket Entry No. 12). Here, the pertinent substantive provisions of the 1998 Consent Decree found certain facts and established criteria for compliance, subject to practical limitations and those provisions are as follows:
29. The timetable negotiated by the parties affords the state a period of more than five years within which to achieve full compliance with EPSDT and related laws. Settlement thus gives the state a grace period within which to achieve compliance, thereby countenancing partial noncompliance for five more years.
30. Nonetheless, present officials cannot correct problems overnight which have been years in the making. Their development of the [*18] remedial plan is itself evidence of their genuine commitment to reform...
* * *
33. The fact that state policy is still being developed poses special challenges for the drafting of an appropriate order in this case. On the other hand, present problems point up the need to afford immediate protection to children who plaintiffs allege are not now receiving the care to which the law entitles them and who are liable to suffer serious, irreparable harm if such care is not provided. They cannot be asked to wait for additional months or years to know if policies now under development by the defendants will some day adequately protect their rights.
* * *
46. A baseline periodic screening level will be calculated by the TennCare Bureau using HCFA 416 mathematical methodology and enrollment and encounter data to determine the number of periodic screens that should have occurred in the federal fiscal year ending September 30, 1996. The CPT-4 and ICD-9CM codes specified in HEDIS 3.0 as well-child visits and adolescent well-care visits will be the primary determinants of which encounters are counted as periodic screens. The baseline periodic screening ratio for the period from October 1, 1995 through [*19] September 30, 1996 will be calculated using HCFA 416 methodology. This baseline periodic screening ratio will be multiplied by 100 to calculate the baseline periodic screening percentage. Subsequent periodic screening percentages will be calculated using methodology identical to that used in calculation of the baseline periodic screening percentage.
* * *
50. For the period of October 1, 2000 through September 30, 2001, the [Adjusted Period Screening Percentage] APSP shall be no less than 80. The APSP for the federal fiscal year ending on September 30, 2001 will be calculated by TennCare and made available to the plaintiffs by April 30, 2002.
For the period of October 1, 2002 through September 30, 2003, the DSP shall be no less than 80. The DSP for the federal fiscal year ending on September 30, 2003 will be calculated by TennCare and made available to the plaintiffs by April 30, 2004.
* * *
52. The Defendants shall achieve complete screening of 100% of TennCare children in DCS custody within 18 months of the entry of this order, and shall maintain that level of screening thereafter. The tracking system developed by DCS shall be the system which shall be used to report compliance with this [*20] standard.
* * *
54. Defendants shall ensure that within their respective spheres of responsibility, TennCare, the MCCs and DCS provide children all medically necessary EPSDT services as listed in 42 U.S.C.

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ß 1396d(a) and as defined in corresponding Medical regulations. Services which are required under EPSDT law, when medically necessary, are as follows:
(a) Inpatient hospital services (other than services in an institution for mental illness);
(b) Outpatient hospital services; rural health clinic services; and services offered by a federally-qualified health center;
(c) Other laboratory and x-ray services;
(d) EPSDT services, and family planning services and supplies;
(e) Physicians' services; medical and surgical services furnished by a dentist;
(f) Medical care, or any other type of remedial care recognized under state law, furnished by licensed practitioners within the scope of their practice as defined by state law;
(g) Home health care services;
(h) Private duty nursing services;
(i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(l) Prescribed drugs, dentures, and prosthetic devices; eyeglasses;
(m) Other diagnostic, screening, preventive, and rehabilitative [*21] services;
(n) Services in an intermediate care facility for the mentally retarded (other than in an institution for mental diseases);
(o) Impatient psychiatric services for individuals under age 21;
(p) Services furnished by a nurse-midwife;
(q) Hospice care;
(r) Case management services and TB-related services;
(s) Respiratory care services;
(t) Services furnished by a certified pediatric nurse practitioner or certified family nurse practitioner;
(u) Personal care services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease; and
(v) Any other medical care, and any other type of remedial care recognized under state law, specified by the Secretary of the United States Department of Health and Human Services.
In addition to the services identified in the above list, the TennCare waiver allows the used of cost-effective alternative services in certain situations. These cost-effective alternative services are identified as services which may or may not be included in the above list and which are medically appropriate and cost-effective when delivered in place of other [*22] services on the list which have been determined to be medically necessary for an individual enrollee. The parties recognize that there are many kinds of services which fit under the above list of covered services and that delivery of medically necessary services may involve different service delivery mechanisms.

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55. The defendants shall review MCO practices with regard to making decisions about medical necessity and Identify any practices that are inconsistent with the federal laws cited herein. The defendants shall issue clarifications and ensure compliance with such federal law, regarding medically necessary treatment, including but not limited to, the following clarifications:
(a) The prior authorizations and medical determinations shall be made on a case-by-case basis for each service sought for a class member.
(b) That services are provided if necessary "to correct or ameliorate defects and physical and mental illnesses and conditions. . . ." 42 U.S.C. ß 1396d(r)(5).
(c) That the definition of medical necessity shall be applied so that services are covered if they correct, compensate for, improve, or prevent a condition from worsening, even if the condition cannot be prevented or [*23] cured.
(d) That medically necessary services shall be provided, whether or not the screener is under contract with the particular managed care entity.
(e) That defendants and their contractors and subcontractors are in compliance with HCFA Office of Managed Care Operational Policy Letter No. 96.045 (December 3, 1996), and do not have financial or contractual arrangements which undermine class members' access to covered services. (See Attachment 1).

(Docket Entry No. 12 at PP 29, 30, 33, 46, 50, 52, 54, and 55) (emphasis added).
The Consent Decree also set a series of deadlines for the Defendants to accomplish these substantive provisions:
39. Within 180 days of entry of the decree, the State shall adopt any policies and procedures necessary to ensure TennCare rules and guidelines clearly describe and allocate responsibility for and require compliance with each specific outreach and informing requirement under federal law...
* * *
40. The Defendants or their contractors shall achieve within 240 days and shall maintain thereafter, EPSDT outreach efforts designed to reach all members of the plaintiff class with information and materials conform with Section V(B)(1)(a).
* * *
45. Within 120 days [*24] after this order is entered, a baseline percentage of screening compliance shall be determined. The defendants, in consultation with the plaintiffs, shall determine the percentage based on the best available data on recent screening levels.
* * *
53. Within 120 days of the entry of this order, the defendants shall establish and maintain a process for reviewing the practices and procedures of the MCOs and DCS, and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another, more sophisticated level of diagnosis as needed to determine the child's physical health, behavioral health and development needs, as to medically necessary services.
* * *
60. Within 120 days of this decree, TennCare shall develop a provider handbook to specify the responsibilities of MCOs and DCS related to the provision of medically necessary services for children in DCS custody. This handbook shall assist in delineating service duty responsibilities in the area where there is the most potential for overlap, and said provider book shall provide... [*25] [And then it identifies a number of requirements.]

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* * *
62. Beginning no later than 180 days after the entry of this Order, the defendants shall require MCOs to provide each primary care provider participating in the EPSDT program an up-to-date list of specialists to whom referrals may be made for screens, laboratory tests, further diagnostic services and corrective treatment. This list shall be supplemented quarterly to indicate additions or deletion and shall comply with the access/availability standards of the 1115 waiver.
* * *
65. Within 180 days of this order, the State shall issue any necessary policy clarifications so that the defendants and their contractors understand their duty to provide EPSDT diagnosis and treatment services consistent with 42 U.S.C. Section 1396d, Subsection (r). Thereafter, the defendant shall inform in a timely manner and on an ongoing basis all of their contractors about what federal Medicaid law requires with respect to specific screens, diagnoses and treatments.
* * *
72. Within 30 days of the entry of this Order the defendants shall submit a notice of proposed rulemaking to withdraw state rules establishing lifetime dollar limits and absolute service [*26] limits on behavioral health services to children under 21.
73. Within 120 days of the entry of this Order, the state or the state's contractor shall monitor a sample of children entering DCS custody and assess the adequacy of services provided to them by TennCare contractors prior to their entry into custody. The review will include an assessment of the effectiveness of the services provided to the child prior to the custody arrangement being made.
* * *
82. Within 180 days, the defendant shall issue regulations and policy guidance to their contractors which incorporate strategies for ensuring coordination of EPSDT services among contractors and with other programs and services enumerated above.
* * *
88. Within 120 days, the service testing process currently performed by the Tennessee Commission on Children and Youth which assesses all services, (medical, and non medical) provided to children in DCS custody, shall include, on an ongoing basis, an audit of EPSDT compliance with regard to the children sampled. Such testing may be conducted by the State or a DCS contractor.
* * *
92. Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific [*27] remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained therein for children.
Id. at PP 39, 40, 45, 53, 60, 62, 65, 72, 73, 82, 88 and 92) (emphasis added).
B. The 2001 Findings of the Defendants' Non-Compliance
In several post-consent decree filings, the parties' counsel submitted several documents reflecting the Defendants' intention to file a "remedial plan." (Docket Entry Nos. 27, 31 and 38). The Defendants later filed a remedial plan, but after a period of time operating under the Defendants' remedial plan, the Defendants moved to stay and to modify the Consent Decree (Docket Entry No. 69) and the Plaintiffs moved for a finding of contempt (Docket Entry No. 79). After an evidentiary hearing, the Honorable John T. Nixon, the then presiding judge, found the Defendants' remedial plan to be fatally defective in structure and performance. In a ruling filed on December 18, 2001 (Docket Entry No. 227), Judge Nixon made the following findings of fact and conclusions about the Defendants' remedial plan and their proposed revised remedial plan:
I. Findings of Fact

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A. Defendants' Revised Remedial Plan-- Findings of Fact
1. Pursuant to the Consent Decree, [*28] the parties were to submit a specific remedial plan addressing the coordination and delivery of services under EPSDT law for children in State custody or at risk of entering State custody. After extensive negotiations, the parties jointly submitted a Remedial Plan for Children in State Custody and the Plan for children at Serious Risk for Entering State Custody (collectively, "Remedial Plan") on May 11, 2000. The Court approved the Remedial Plan on May 16, 2000, in two Agreed Orders. (Doc. Nos. 58, 60).
2. The May, 2000 Agreed Orders imposed on the Defendants several requirements designed to improve the care of children in, or at risk of entering, State custody. The children became a subclass that was to be carved out from the larger class implicated by the Consent Decree. The Remedial Plan had four basic components. First, Defendants were to develop a Best Practice Network (BPN) comprised of primary care providers and other health care resources. The BPN would coordinate the dissemination of medical and behavioral health services to children in the subclass.
* * *
6. Soon after the entry of the May 2000 Agreed Orders, the Remedial Plan proved to be unworkable. The State created the Implementation [*29] Team, which wad headed by a capable pediatrician, Dr. Larry Faust. Dr. Faust began recruiting for the Best Practice Network in May, 2000, by contacting pediatricians all over the State via e-mail, telephone, and in person, and also spoke to Steering Panel members. The Steering Panel was appointed, and subcommittees were formed. The Steering Panel and the Executive Oversight Committee met frequently.
7. However, the State has not fully adhered to the Remedial Plan. First, the State was unable to recruit sufficient physicians for the BPN. The providers were hesitant to contract with the State's MCOs because of past negative experiences with the MCOs. The State was unable to contract with COE's because they, too, had concerns about dealing with the MCOs and about ultimately serving as "safety nets. These concerns were not unfounded, given the fact that Xantus was in receivership and Access MedPlus went into supervision. The Court notes that access MedPlus is no longer part of the TennCare system. Hence, the Remedial Plan was never fully implemented.
8. The State has now proposed a revised Remedial Plan. Central to the State's proposed revisions is a "carve-out" for the delivery of health [*30] services to children in State custody. The plan contemplates that these children will be enrolled in a single MCO and BHO, rather than being distributed among all of the TennCare contractors. As of July 1, 2001, the State has already reassigned all children in State custody to TennCare Select, to be administered by BlueCross.
9. The State believes that limiting the plan to only one MCO and one BHO will address many of the problems that providers had with the original Remedial Plan, including the hassle of having to deal with multiple TennCare contractors. The Revised Remedial Plan also allows advocates other than DCS to make referrals to the Implementation Team, and requires the State to contract with an advocacy group to make available additional resources for concerned individuals seeking to access services for children at risk of entering State Custody. Although the revised Remedial Plan proposes other changes, the forgoing are the most salient proposals.
10. The Revised Remedial Plan was formally approved by both the Steering Panel and the Executive Oversight Committee, with only Plaintiffs' counsel and an advocate disapproving. The State has begun to move forward with its plans [*31] for the revised Remedial Plan by working with Blue Cross to develop the infrastructure necessary to create the Best Practice Network. The State opines that only this Court's Order is necessary for it to proceed with the Revisions.
* * *
B. EPSDT Failures
Outreach
8 . . . [T]he evidence presented at trial demonstrates that some outreach activities are more effective than others. While State officials have opined that "[n]o strategy [has] necessarily been proven

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better than the other, they implicitly acknowledge that other states have effectively and creatively conducted outreach activities. The evidence submitted at trial proves that the State's strategy of mailing fliers and brochures to inform TennCare recipients of their EPSDT rights is inadequate. The State is aware that its outreach strategies are insufficient. In fact, at least one TennCare employee recognized that a statewide broadcast and media campaign was necessary in order to inform children and their parents of EPSDT...
* * *
10. Most importantly, the trial record demonstrates that at least some TennCare members and their parents were unaware of what EPSDT represents, or even that it conferred certain benefits upon them. . . .
Screenings
11. [*32] Under the Consent Decree, the State must comply with the federal requirements for EPSDT screens. An adequate screen must contain all components required by EPSDT law. The State was to create a committee that would devise a plan and specific guidelines to ensure the effectiveness of the screens. Additionally, the Consent Decree specified a method for quantifying and measuring screening performance, and established goals over time for adjusted periodic screening percentage (APSP) rates.
12. Specifically, the State agreed to improve its APSP annually, and reach a goal of 80% by September, 2001. The Defendants proof submitted at trial indicated that the State has failed to meet its goals. The adjusted screening rate for 1999 was 19.8% and rose to 31.5% in 2000, far short of the baseline goals for those years, and the ultimate goal of 80% for 2001. Dental Screening rates also fell short of their targets.
13. The Consent Decree also required that 100% of Children in State custody were to receive full EPSDT screening after September 1999. As of May, 2001, 91% of children in State custody had received the appropriate screens. Although this figure is still short of the 1999 target, the 91% may [*33] be inflated because it may not represent fully EPSDT compliant screens because the Department of Children's Services (DCS) reports a child having been adequately screened even if that child has not received the seven components required by federal law...
* * *
[Conclusions of Law]
The Court agrees that the current Remedial Plan is unworkable, and that modification may, in theory be appropriate. However, the Court is not convinced that the revised Remedial Plan adequately addresses the main problem associated with the original Remedial Plan. Specifically, the managed care structure of Tenncare may create the problems encountered by and among the State, MCOs and BHOs and providers. The new premedical plan does nothing to assuage the providers' distrust of the MCOs. The Revised Remedial Plan also does not address the apparent disconnect between the Bureau of TennCare and the Implementation Team at the Department of Health. A new Remedial Plan that still operates under the very same managed care system may not adequately address the Court's concerns with the TennCare system as it relates to the under-21 population. The Defendants have not made a showing of how the revised Remedial Plan will [*34] ultimately succeed where the current Remedial Plan has failed.
The Court also does not find sufficient reasons for modifying any part of the Consent Decree at this time, for the reasons discussed in relation to the Agreed Orders. The Defendants have failed to show how the factual situation in this case mandates revision of the Consent Decree under the Rufo test.
(Docket Entry No. 227 at pp. 40-41, 42-44, 10-11, 12-14, and 45-46) (emphasis added and footnotes omitted).
In its accompanying Order, the Court reiterated the Defendants' lack of an effective plan and stated: "The Court finds that a special master is necessary to mediate and ultimately to submit to the Court an EPSDT compliant plan."

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(Docket Entry No. 228). The predicates for the appointment of a special master are reflected in the following findings of fact of systemic deficiencies:
The record demonstrates that the Defendants have been, for the most part, well-intentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements. In fact, Defendant officials sometimes attempted to implement the very strategies that Plaintiffs' counsel advocated, but were constrained by the realities of State [*35] Government.
* * *
However, from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system. The record shows that the Defendants' efforts were indeed scuttled because "essential providers and tertiary pediatric care centers refused to contract with all of the managed care companies currently participating in the TennCare program." The record also confirms that the Defendants have faced a challenging task in melding Medicaid and managed care - a challenge that is by no means unique to Tennessee. Nevertheless, the institutional difficulties faced by the Defendants do not excuse their failures to follow the law. Defendants have not shown why their failure to fully comply with the 1998 Consent Decree or federal law should be excused, and thus have neither proven compliance nor any excuse for failure to comply with the federal EPSDT provisions.
* * *
Pursuant to the Consent Decree, Defendants have a responsibility to achieve and maintain outreach efforts designed to reach all members of the Plaintiff class with information and materials in conformance with federal law. . . The record reflects the fact that [*36] the Defendants mostly delegated the responsibility to conduct outreach to MCOs and BHOs, who have not successfully implemented the outreach requirements contained in the Consent Decree. However, the Defendants are ultimately responsible for conducting proper outreach. If the Defendants choose to delegate this responsibility, they must do so with the understanding that they will remain ultimately responsible for the failure of any delegatee.
* * *
TennCare employees appear to hold a laissez faire attitude toward the EPSDT outreach procedures of their contractors, preferring to allow the contractors to creatively reach out to their patient populations. That approach has not yielded effective outreach. Creative government is only effective when that creativity spurs positive change. The MCOs' outreach efforts have been insufficient, and the State has failed to engage in adequate oversight to ensure adequate outreach. As the Seventh Circuit Court of Appeals recognized twenty-seven years ago, "EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose [of EPSDT]." Stanton v. Bond, 504 F.2d 1246 (7th Cir. 1974). [*37] Indeed, without proper outreach, EPSDT is worthless.
* * *
It is clear from the record that not only have Defendants failed to comply with the Department of Health and Human Services' regulations, but Defendants have simply failed to meet the bare requirements of the EPSDT laws. Defendants indicate that low screening rates in this region are partly attributable to both an ill-informed physician corps and a patient population that is not as willing to see a doctor for well-child care. However, Governments' job is to inform both the provider and consumer communities of the federal screening requirements. In fact, federal law requires that the State engage in outreach to inform the patients of EPSDT. The Court agreed that Tennessee may have a "harder road to hoe" than some other states, but that does not mean that the entrenched attitudes of providers and patients can be used as a shield against liability for failure to implement EPSDT requirements. Defendants concede that they "have not and will not meet the EPSDT percentages required by the Consent Decree." The Court agrees.
Id. at pp. 6, 7, 8, 28, 30.

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Judge Nixon cited as a causal factor of the Defendants' noncompliance, the Defendants' [*38] wholesale delegation of matters to the MCCs. Judge Nixon found that "most of what TennCare does has to happen through its contracts with the MCOs and BHOs." Id. at p. 25.
The State is also required to issue and implement procedures to facilitate coordination among various contractors. Although the State issued its contracts a list of other agencies and programs with which they should coordinate EPSDT services, the exchange of information between contractors remained "disorganized" and few of the Defendants' proposals to achieve coordination were implemented. Coordination between various private health agencies is still inadequate. The lack of coordination among various non-governmental agencies is directly attributable to the very system under which public health is administered. Tennessee State government has failed to properly coordinate and Implement proper case management and coordination services.
Id. at p. 22.
In 2001, the Defendants relied on their contractors as witnesses to justify their request for modification. 11 Judge Nixon made specific findings and conclusions about the deficient performance of the MCCs or MCOs and BHOs:
15. Defendants have made progress in achieving the [*39] target screening rates by contractually requiring their contractors to meet certain EPSDT screening goals. The most recent contracts show that an MCO that has not reached an 80% adjusted screening ratio is now required to contract with the county health department to perform EPSDT screening. . . .
* * *
17. As discussed above in relation to outreach and screening, systemic deficiencies have also made compliance with the Consent Decree's diagnosis provisions difficult. First, where there are overlapping medical and mental health issues, the MCOs and BHOs quibble over which entity is responsible for providing coverage. The State's TennCare contracts contribute to this ambiguity by sometimes failing to specify the responsible party, even though the BHOs do have coordination agreements with MCOs. In practice, individuals with overlapping issues sometimes "fall in the cracks" and fail to receive services from either a BHO or MCO, as with, for example, attention deficit disorder patients.
18. Additionally, the MCO and BHO contractors often refuse to authorize health assessments. Larry Faust of the Department of Health testified that even when MCOs and BHOs authorized services, they sometimes [*40] refused to pay the provider once the service was rendered.
19. Even worse, the State's managed care system often provides incentives for financiallymotivated denials of coverage by both MCOs and BHOs. TennCare's contractors essentially gamble that they will be able to provide services to TennCare enrollees and still be able to make a profit. Tennessee pays the MCOs and BHOs a set amount of money for all of the services that an individual requires. Hence, the contractors have an incentive to cut costs by denying coverage.
20. Further, as discussed above, MCOs and BHOs often lack adequate provider networks, creating a barrier to adequate diagnostic evaluations. The lack of provider networks is attributable, in part, to the failure of the BHOs and MCOs to pay its providers for services rendered. The lack of a provider network is also attributable to a scarcity of certain specialists across the nation. While the State notes this problem, it has been unable to stop the hemorrhaging of the provider networks. The proof at trial demonstrates that, in some circumstances, provider participation has drastically declined. . . .
* * *
22. [T]he record demonstrates that even where the TennCare Bureau [*41] agrees that the denied services is medically necessary, the State routinely grants the BHOs and MCOs a 'good cause' extension of time in which to provide services that the TennCare Solutions Unit has deemed medically necessary. The trial record is that children often wait for extended periods of time to re-

2007 U.S. Dist. LEXIS 75457, *

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ceive medically necessary services. . . The record reflects similar situations involving medically necessary services that, for various reasons, were either delayed or never provided to the patient.
23. On the behavioral/mental health side, the BHOs sometimes fail to connect children to an appropriate diagnostic resource capable of performing the required behavioral health assessment. As with MCOs, there is an inadequate provider network for psychologists, psychiatrists and other behavioral health professionals. The record also demonstrates that State policy makers are well-aware of the limited BHO provider network.
24. The record reveals that a number of the providers within the limited BHO provider network are not taking new patients, thus rendering those providers unavailable to new TennCare patients.
25. Additionally, there is only one BHO in Tennessee. The BHO does engage in some [*42] oversight, as the testimony of Deborah Cagle, Vice President at Advocare, demonstrates, Ms. Cagle testified that Advocare reviews and audits its providers, and has hired an independent auditor to review Advocare's providers. However, the record shows, that although there is only one BHO, the State has failed to adequately monitor the BHO's provisions of EPSDT and Consent Decree-mandated services. More specifically, the State has not ensured that the BHO strictly mandate that its providers offer adequate services to their patients. The testimony of Dennis Elliot, Manger of the Network Adequacy Unit at TennCare, demonstrates that TennCare does not adequately assure that the BHO corrects deficiencies in the BHO's provider network.
26. Thus, children frequently do not receive appropriate diagnoses through the TennCare managed care system. Defendants admit that "sometimes the system breaks down, and the Court finds that in this case, the State Government's healthcare system has indeed broken down." However, the system itself is to blame for TennCare's failures. A depleted provider network and lack of proper oversight by MCOs and BHOs is directly attributable to the TennCare managed care [*43] system, which has proven to be unable to fully comply with both the EPSDT and the Consent Decree's requirements for proper diagnosis of children under 21.
* * *
[Conclusions of Law]
TennCare does not allow individuals to receive adequate diagnosis and treatment through various providers. The incentives created by capitated payments to the MCOs and BHOs result in a failure of the State system to assure that each State resident under the age of 21 receives the care that EPSDT mandates. As the Court has previously noted, there are "pecuniary incentives that MCOs [and BHOs] have for denying, suspending, or terminating care under the TennCare system. . . ." Daniels v. Wadley, 926 F. Supp. 1305, 1308 (M.D. Tenn. 1996)....
* * *
The proof shows that the State has failed to adequately ensure the coordination of EPSDT services among the various governments, private and non-profit providers of services. The TennCare program, although well-intentioned, is disjointed. ... Although the State has established an office that is essentially dedicated to ensuring EPSDT compliance, that office is powerless to address the Court's greatest concerns with the TennCare program because the office does not have the mandate [*44] to directly control the actions of the MCOs or the BHOs. Adding another sailor to a sinking ship will not prevent It from sinking. In the same way, adding yet another layer of bureaucracy to an ineffective TennCare system will not succeed in reforming it.
In many instances children lack a case manager. The Frew court recognized that failure to provide case management services may constitute a violation of EPSDT. 109 F. Supp. 2d 579, 674. This Court concurs, and finds that failure to provide adequate case management services in this case constitutes a violation of federal law. Without effective case management, the individual child lacks an effective coordination of various services that he or she needs to ensure that EPSDT services are rendered.

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Id. at pp. 15, 16-17, 18-20, 32-33 (emphasis added). Judge Nixon reserved a finding of contempt: "However, because the Court bases its decision on failure to comply with federal law, the Court will hold in abeyance a decision whether Defendants' actions thus far constitute civil contempt...The record indicates that the State made great efforts to comply with the Court's Orders. However, the Court reserves the right to find the Defendants in contempt [*45] in the future." Id. at p. 35.
11 See, e.g., Docket Entry No. 156, June 19, 2001 Transcript, Vol. 11, at pp. 282-294 (Dr. Gregory Preston, Chief Medical Officer of Blue Care, testified about the remedial plan and the development of a best practices network and moving all children in DCS custody into a single MCO); Vol. XVII-A, 8-1-01 at 2047-21 15 (Deborah Cagle, Vice President for Planning and Programming at Advocate testified on network adequacy, coordination with the MCOs and PCPs, and prior authorization process and criteria). The Defendants acknowledge that "the MCCs play an intricate and important role in ensuring that the State fully complies with its obligations under both the Consent Decree and the federal EPSDT law." (Docket Entry No. 932, Exhibit A thereto).
The Court then directed "[t]he parties...[to] attempt to work to reach a consensus on a workable plan[, and i]f, and only if, the special master determines that the parties are unable to agree on a plan, the parties shall submit plans to special master for his consideration." (Docket Entry No. 275 at p. 2). In an October 14, 2002 Order, the Court required the Defendants to prepare an "Itemized Assessment Protocol" ("IAP") [*46] as well as an "Initial Work Plan"("IWP"), under the Special Master's supervision. (Docket Entry No. 291 at pp. 3-4). In a subsequent Order, the Court ordered the Defendants to submit an "Initial Work Plan" ("IWP") to the Special Master and later granted the Defendants an extension "that defendants shall submit their initial work plan by December 13, 2002." (Docket Entry No. 303). As discussed below, the Defendants did not meet their obligation on the IWP nor the IAP.
C. The 2004 Findings of the Defendants' Non-Compliance
On June 16, 2004, Plaintiffs filed another motion to show cause (Docket Entry No. 403) asserting the Defendants' continuing violations of the Consent Decree. After discovery and an evidentiary hearing, in a Memorandum entered on October 22, 2004, citing testimony of two key state policymakers, Judge Nixon found that the Defendants were again not in compliance with the Consent Decree and significantly, lacked a reliable system to measure their progress.
On June 23, 2004, the Plaintiffs deposed Dave Goetz, Tennessee Commissioner of Finance and Administration, and on June 24, 2004, Plaintiffs took the deposition of Manny Martins, Deputy Commissioner of Finance and Administration [*47] for TennCare. Both deponents attested to sincerity, good intentions, and hard work of those State employees who have labored since 2001 to comply with EPSDT. Mr. Martins testified that the State is making inroads in the area of outreach. "From 1999 to 2003 we had a 175 percent increase, I believe, in our screening rates from, as an example, 19.8 percent to 53 percent. We've had a 60 percent increase in our dental screening rates, 55, 56 adjusted--the raw is 36 to 62 for 2002, raw 54, adjusted 41.9." [Quoting the Martins Deposition at 57]. Mr. Martins also reported that TennCare has staffed 22 dental clinics and has contracted with the Department of Health for dental outreach, dental operatory, and mobile operatory. Mr. Martins has stated that by the way of a new contract with the Department of Health for $ 7 million, effective July 1, 2004, every single TennCare enrollee child would be contacted by their local health department from newly set-up call centers...
Mr. Goetz also made statements in his deposition which conveyed progress. With respect to screening results, Mr. Goetz noted "dramatic improvements" over the last couple of years and stated, "efforts to work through the county [*48] health officials have borne fruit, and that's also what we were funding, continuing outreach in the budget that was just passed into law" [Quoting the Goetz Deposition at 41. Nonetheless, while some progress has been made since the Court's approval of the Consent Decree in 1998, testimony from Mr. Martins and Mr. Goetz along with reports made to the Court by the Special Master, make clear that not enough progress has not been made. The Court is not convinced that Defendants, acting on their own, will reach full compliance with the terms of the consent decree within a reasonable period of time. As the well-being of 550,00 children is at stake, something more must be done to ensure that the state's EPSDT requirements are met in accordance with the terms of the Consent Decree.
As recently as August 2004, the Special Master concluded in his status report to the Court that no feasible plan yet exists to achieve compliance for an indispensable section of the Consent De-

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cree. The Special Master reported that the State has failed to honor its renewed commitment to produce an IAP satisfactory to the Special Master, last made in September 2004, and still refuses to engage its key officials in [*49] planning efforts to achieve compliance, verification of the quality of its data, and evaluation of the successes or failures in attaining compliance.
The Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network adequacy, case management, outreach, the effective use of information systems, and system level coordination, to name a few. The Special Master's status report informs the Court that because Defendants have never created a list of precise "outcomes" towards which their efforts are focused, not only have they failed to meet the terms of the Consent Degree, but they are not even in a position to be able to assess their own shortcomings for the purpose of making improvements.
The Court finds that the deposition testimony of Mr. Goetz and Mr. Martins conclusively support this Court's finding that, to date, the State has not achieved compliance with the terms of the Consent Decree. Mr. Martins, the senior state official with direct responsibility for EPSDT compliance, testified, "I'm not sure that compliance with the consent decree is achievable." [*50] Martin's Dep. 29. He testified that the 100 percent screening requirement for children in state custody mandated by the Consent Decree "should be achievable" and that the Consent Decree's stated dental screening rate "can be achievable over a period of time." Martins Dep. at 33. When asked about barriers to compliance that he saw, Mr. Martins replied, "There are numerous external barriers that are out there. Some of them involve coordination with other departments, some of them involve the inability to have good data in terms of being able to have information on the system - on the child and following that child through the system." Martins Dep. 35. Mr. Martins also discussed the socio-economic barriers to achieving compliance with the consent decree and "barriers in understanding" on part of families of TennCare enrolled children who sometimes do not seek services for their children when they are healthy, in spite of the importance of preventative EPSDT measures to the continuing health of their children. Martins Dep.35-36. Finally, Mr. Martins stated, "I think we have barriers from the standpoint of not totally understanding all the gaps that we have in our delivery systems." Martins [*51] Dep. at 36.
Specifically, with respect to the screening requirements in the Consent Decree, Mr. Martins testified that the State is not meeting the 80 percent standard in the Consent Decree. Mr. Martins testified that while he would like to review the numbers, the last figures he had seen indicated that the state is not meeting the 100 percent screening requirements under the Consent Decree for children who are in State custody. Further, Mr. Martins stated that with respect to dental screening and dental service, the State is not in compliance with the Consent Decree. Other areas of particular concern testified to by Mr. Martins include the current inadequacy of behavioral health networks, and the State's failure to meet the Consent Decree's required provision of EPSDT services to the children in DCS custody. Martins Dep. 187.
Mr. Goetz testified that one factor that impedes implementation of the Consent Decree is the sheer enormity of the task, given the 550,000 children enrolled in TennCare. Goetz Dep. at 37. He also testified to learning that breakdowns in communications have also created barriers to the State's ability to achieve compliance with the terms of the consent Decree. Goetz [*52] Dep. at 37.
This is not a finding that the State has acted In bad faith or has intentionally failed to comply with the Consent Decree. To the contrary, the Court acknowledges, as set forth above, that the state has made some progress toward compliance in some areas. However, these efforts have not produced the results mandated by the Consent decree some six years ago The Court s compelled to grant further relief to the Plaintiffs, 550,000 TennCare enrolled children, to ensure that their EPSDT needs are met as quickly as possible....
...[A] motion for relief looks to the future, rather than the past. In looking to the future, the Court has instructed the Special Master and his experts to create a comprehensive plan to put the State in compliance with the terms of the Consent Decree. The plan is attached to this Order...This plan is not a modification of the terms of the consent decree.

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(Docket Entry No. 465, Memorandum and Order at pp.4-8) (emphasis added). The Court then set a deadline for objections and authorized depositions and proposals for modifications of the plan attached to its Memorandum. Id. at p. 8.
On December 13, 2005, the Court ordered that the Defendants "immediately disclose [*53] to Plaintiffs and the Special Master the plan, if any, under which the State is operating to comply with the Consent Decree and the EPSDT law as well as file by January 31, 2006, its SemiAnnual Report..." (Docket Entry No 558, Order at p.2). On December 19, 2005, Linda Ross, a Deputy Attorney General on behalf of the Defendants wrote the Special Master that:
Compliance with both EPSDT law and the Consent Decree is a high priority of the State, but neither require that the State develop a single document setting forth a "plan" for maintaining compliance. Rather, the State has put in place a clearly defined process, under the leadership of the Governor's Office of Children's Care Coordination, to ensure that both the spirit and the letter of EPSDT law and the Consent Decree continue to be met.
(Docket Entry No. 559-2).
On January 9, 2006, the Defendants' submission to the Court construed the Court's December 13th Order to relieve the Defendants from submission of any plan. This submission reads, in pertinent part:
The Court's December 13 Order did not place an affirmative obligation on Defendants to have a written plan, and no such obligation is contained in either the Consent Decree or EPSDT [*54] laws. At one time, the State was subject to an analogous obligation in this case. In its August 14, 2002 Order, see Doc. 291, at 3-4, P 4b, the Court appointed a Special Master and his selected Experts to oversee the creation and implementation of an Itemized Assessment Protocol ("IAP") and Initial Work Plan ("IWP") to be used in evaluating the State's compliance with the Consent Decree and federal EPSDT law... The IAP and IWP requirements were not resurrected in the Court's December 13 Order (Doc. No. 558 at 2). In fact, in this most recent order, the Court affirmatively limited the Special Master's responsibilities to "evaluating the State's implementation of the terms of the Consent Decree and EPSDT law." (Doc. No. 558 at 2).
Following the Court's December 13 Order, the State promptly informed both Plaintiffs and the Special Master in a letter dated December 19, 2005 that the State does not have a single document setting forth a "plan." Instead, the State has put in place a clearly defined process to ensure that both the spirit and letter of the EPSDT law and the Consent Decree continue to be met.
(Docket Entry No. 569-2 at pp. 3-4). 12
12 The Court has concerns about Defendants' counsel's [*55] statements that the Consent Decree does not require a "plan." The Consent Decree reads in pertinent part, "Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained therein for children." (Docket Entry No. 12, Consent Decree at P 92). As to Defendants' apparent reliance on Court Orders as limiting this provision of the Consent Decree, the Defendants have argued to the Court: "Thus, a consent decree depends, by definition, on the consent of the parties. The scope of the obligation to which the parties have consented is set by the terms and conditions memorialized in the consent decree. Any attempt by a district court to hold a party to terms other than those to which it has agreed is an abuse of discretion per se. See Local No. 93. Intern. Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 529, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986), United States v. Ward Baking Co., 376 U.S. 327, 334, 84 S. Ct. 763, 11 L. Ed. 2d 743 (1964); King v. Walters, 190 F.3d 784, 788 (7th Cir.1999)." (Docket Entry No. 739, Defendants' Memorandum in Support of Renewed Motion to Vacate the Consent Decree [*56] at pp. 2-3).
D. The Recusal Order and Reassignment
In November 2004, Judge Nixon held this action in abeyance to facilitate settlement negotiations. (Docket Entry No. 495). During this suspension, the parties litigated other TennCare actions. (Docket Entry No. 550). The Consent

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Decree, however, remained in effect (Docket Entry Nos. 509 and 546) and during this period, the Defendants continued their discovery efforts in this action. (Docket Entry Nos. 498, 501, 508, 511, 512, 560 and 562). In particular, the Defendants issued discovery requests to depose the Special Master to inquire about discussions of the Special Master with Plaintiffs' counsel and the Court.
In the midst of these controversies, Judge Nixon set aside the plan that had been filed by the Special Master and recused himself, stating:
Without taking into account the October 22, 2004 order, the history of this case reveals that this Court has consistently found the State to be in violation of the Consent Decree and EPSDT requirements. Indeed, the State's own documents show that they are not in compliance with the terms of the Consent Decree. (See docket entry 546 at 1, (showing that, even in 2004, the State is still below [*57] screening targets that should have been achieved in 2001)). Notwithstanding this repeated finding, the Court took to the unusual path of not holding the State in contempt or imposing monetary sanctions. Indeed, the Court has attempted to steer this case away from the needless and acrimonious litigation and focused on fashioning a solution that would increase compliance with the Consent Decree and federal EPSDT requirements. This constructive approach has been fueled by one goal: To provide the underserved children of Tennessee the entire spectrum of medical benefits to which they are entitled under federal law.
The State's pending Discovery Motion attempts to push this goal to the wayside and refocus the case on wholly unnecessary, time-consuming, costly, and highly divisive litigation. I refuse to condone a path that will waste resources and time in the face of the urgent need to improve healthcare for the children of Tennessee. Importantly, no substantive activity has occurred in this case since November 2004; it is imperative that the parties now turn their attention to the merits of the case. Accordingly, and after much consideration, I have decided to sua sponte recuse myself from [*58] this case to remove any barrier perceived or real - to the ultimate goal of increasing the State's compliance with EPSDT requirements. Let it be clear, however, that my recusal in no way adjudicates the merits of, or reflects an opinion on the allegations contained in, Defendants' Discovery Motion. Rather, it is a reflection of my view that the healthcare of Tennessee's children must come first.
Thus, I hereby RECUSE myself from the above-styled case, and direct the Clerk of the Court to reassign it to another United States District Court Judge in the Middle District of Tennessee. In light of my recusal, Defendants' Discovery Motion and Defendants' Motion to Expedite are DENIED as MOOT. Pending reassignment of the case, the Office of the Special Master shall remain intact, but INACTIVE. The new presiding Judge may decide the continuing necessity of the Office of the Special Master, and all motions pending at this time.
(Docket Entry No 584, Memorandum and Order at pp. 4-5) (emphasis added). As a related action, the action was transferred to this member of the Court.
As the succeeding judge, the Court set a status conference on February 10, 2006 to discuss outstanding issues with the parties' [*59] counsel. At that time, a point of contention was whether the Defendants were required to file a plan to remedy Judge Nixon's earlier findings of their violations of federal law. The Defendants' position on this issue, as quoted earlier, is as follows:
Compliance with both EPSDT law and the Consent Decree is a high priority of the State, but neither require that the State develop a single document setting forth a "plan" for maintaining compliance. Rather, the State has put in place a clearly defined process, under the leadership of the Governor's Office of Children's Care Coordination, to ensure that both the spirit and the letter of EPSDT law and the Consent Decree continue to be met.
(Docket Entry No. 559-2, Letter from Linda Ross to Richard Carter, MD). See also, Docket Entry No. 569 at p. 4 and Docket Entry No. 596, Transcript of Hearing of February 10, 2006 at p. 10).

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At the February 10th conference, the Court reviewed those portions of the record on this issue. First, paragraph 92 of the Consent decree reads: "Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services [*60] under EPSDT law and laws contained therein for children." (Docket Entry No. 12 at P 92) (emphasis added). In an Agreed Order submitted by counsel for the parties, counsel cited "the remedial plan called for by paragraph 92 of the consent decree." (Docket Entry Nos. 39 and 40). In an earlier submission, the Defendants reiterated that they were willing to engage a mutually agreeable expert "to facilitate further development of a plan." (Docket Entry No. 31 at p. 2). Later, the Defendants requested a conference with the Court, stating: "The proposed remedial plan was developed pursuant to Paragraph 92 of the consent decree." (Docket Entry No. 52). See also Docket Entry Nos. 54, 55, 57, 58, 59, 60, 76 and 88 that refer to the Defendants' "remedial plan". In one Agreed Order, counsel stated: "Pursuant to paragraphs 88-92 of the consent decree, the parties submitted a "remedial plan." (Docket Entry No. 59). In another Order, the Court stated that the "Consent decree provides for implementation of a remedial plan." (Docket Entry No. 103). See also Docket Entry No. 164, Order. 13 After reviewing these entries and Orders, the Court directed the Defendants to file whatever the Defendants deem [*61] to be their plan to comply with the Consent Decree. 14 (Docket Entry No. 601).
13 To be sure, in a more recent Order, Judge Nixon stated that the Consent Decree does say that the state will implement a "plan" or "process for implementing the consent decree." (Docket Entry No. 578 at p. 4). This member of the Court deems paragraph 92 controlling and the parties' filings establish the requirement for the Defendants' filing and implementation of a remedial plan. 14 The Defendants filed a series of documents, (Docket Entry Nos. 581-1, 581-2, 624), but upon review, the Court seriously questions whether those submissions constitute a coherent plan. Of course, the Defendant insist that despite its clear language the consent does not require a plan. The Consent Decree reads, in pertinent part: "Nonetheless, present officials cannot correct problems overnight which have been years in the making. Their development of the remedial plan is itself evidence of their genuine commitment to reform. . ." (Docket Entry No. 12, Consent Decree at P 30)(emphasis added).
After a review of the record, the Court retained the former Special Master and his assistants as technical advisors so as not to lose the most [*62] knowledgeable experts who had expended extraordinary resources to inform the Court about the Defendants' compliance efforts. Given Judge Nixon's prior findings of non-compliance, the contentious exchanges between the parties' counsel, the extensive scope of the Consent Decree and the state of the record, the Court deemed necessary the appointment of monitors to assist the parties and the Court in identifying issues that remain for discovery and any evidentiary hearing. A strict protocol was defined for the monitors' activities. The Monitors filed a report that the Court deemed helpful in identifying the remaining issues in the litigation. (Docket Entry Nos. 795 and 796). Regrettably, despite Judge Nixon's prior repeated findings of their non-compliance, the Defendants expressed to the Monitors their concerns about this Court's continuing oversight of this program. (Docket Entry No. 795. Monitors' Report at p. 5). 15
15 This sentiment was also expressed in the Defendants' memorandum in opposition to Plaintiffs' earlier motion to compel: "As the Court is surely aware, the Governor's commitment to constitutional federalism and his abiding faith in policy-making by democratically elected [*63] state officers, in preference to the commandeering of state agencies by federal judges, extends far beyond the present dispute over EPSDT." (Docket Entry No. 720 at p. 23) (emphasis added). In sum, the Court has intervened only when the Defendants repeatedly failed to meet their obligations to the children under the Consent Decree and federal law.
E. The 2006 Discovery Proceedings
At the February 10, 2006 conference, Michael Kirk, one of the Defendants' counsel announced that the Defendants had achieved compliance with the Consent Decree. (Docket Entry No. 596, Transcript at p. 47). "I would just like to note for the record that it is the State's view that they have been in compliance with the consent decree." Id. That contention resulted in the Plaintiffs' commencement of discovery.
The Court held a series of conferences that included discussions of ESI production. (Docket Entry Nos. 599, 601, 615, 642, 645 and 646). At a February 28, 2006 hearing, the Court heard the testimony of Brent Antony, the chief information officer of the TennCare Bureau on the Defendants' motion for a protective order concerning a utilization data request from Mr. Carter, the former Special Master appointed [*64] by Judge Nixon. Anthony's experience is in health care and Antony's computer knowledge was "really from [his] job experience." (Docket Entry No. 614, February 28, 2006 Transcript at p. 82). Anthony described the Defendants' change of computer systems.

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At the April 17, 2006 conference on the Monitors' review of relevant state data, the Court "suggested" to the Defendants that "whatever is electronically available . . . be made available to the Monitors and the Plaintiffs in electronic form unless, of course, there is an issue of privilege." (Docket Entry No. 646 at p. 33). This instruction was to provide a common base of information so as to ensure a meaningful dialogue among the parties, the monitors and the Court on contested issues. Id. The Court then denied the Plaintiffs' motion to compel such information (Docket Entry No. 651), but without prejudice to renew because the Defendants were going to provide to Plaintiffs any ESI information provided to the monitors. (Docket Entry No. 656).
On March 31, 2006, Plaintiffs propounded discovery requests seeking information and documents, including ESI, related to the State's contention of compliance with the Consent Decree. (Docket Entry [*65] No. 711). Plaintiffs' interrogatories and related document requests included the following two definitions:
9. "Communications" means any transmittal of information in any form or format, whether oral, written, or electronic, including, without limitation, all correspondence, inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations and message logs, letters, notes, memoranda, telegrams, faxes, emails, or recordings. It is understood that all categories of documents described above shall include with respect thereto all communications as defined, whether or not expressly stated. The production of electronic communications should be accompanied by a description of the software and technology used to prepare the communications and needed to read them.
* * *
15. The term "document" means all writings of any kind, including the originals and all nonidentical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including without limitation, correspondence, e-mail, memoranda, notes, diaries, statistics, checks, statements, receipts, returns, summaries, pleadings, affidavits, depositions, [*66] pamphlets, books, prospectuses, inter-office and intra-office communications, offer notations of any sort of conversations, telephone calls, meetings or other communications, bulletins, printed matter, computer printouts, information contained in any computer although not yet printed in hard copy, teletypes, telefax, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing), graphic or oral records or representations of any kind, (including without limitations, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures) and electronic, mechanical or electrical records or representations of any kind, (including without limitations, tapes, cassettes, discs, recordings).
(Docket Entry No.626-2 at p. 3, 4) (emphasis added). Plaintiffs' discovery requests also sought information and documents in the possession of the Defendants' agents and included an instruction that, "when answering an interrogatory, to the extent that an activity or responsibility has been delegated to a contractor, identify the contractor and the scope of the delegation." Id. at 2. Some interrogatories explicitly requested information [*67] related to contractors' actions and information. 16
16 See Docket Entry No. 626-2, Interrogatory 18 (f) ("Identify each class member whose death or injury has come to the attention of state officials or their contractors and that may have followed a denial of health care to the child or the child's inability to access health care"); Interrogatory 19 (i) (seeking any process in place by Defendants or their contractors to ensure employment of the correct definition of "medical necessity"); and Interrogatory 54 (c) (seeking information related to "any process or measure used by the Defendants or their contractors to assess compliance with the Consent Decree requirements.").
On May 15, 2005, the Defendants responded, but converted their ESI to hard paper copies. (Docket Entry No.709, Plaintiffs' Brief in Support of Motion to Compel Discovery at pp. 14-15). The Defendants insisted that the hard paper copies were identical to any responsive ESI and therefore did not produce the documents in ESI computer format. (Docket Entry No. 720 at p. 13, Docket Entry No. 815-2 at p. 4 and Docket Entry No. 988 at p. 186). Nicole Moss, a defense counsel conceded the Defendants served discovery requests for [*68] electronic discovery. (Docket Entry No. 734, November 6, 2006 Transcript at p. 23). Of particular note, is that the Defendants' following objection: "8. Defendants object to the Interrogatories' definition of "document" to the extent it reaches electronic versions of documents

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separate and apart from a hard-copy version of the identical document that has been identified and made available in the hard-copy form." (Docket Entry No. 815-2, Defendants' Response to Plaintiffs' Third Set of Interrogatories at p. 4) (emphasis added). The Plaintiffs provided ESI in response to the Defendants' discovery requests. Id. at pp. 24-38). Plaintiffs' ESI production included some metadata. (Docket Entry No. 719, Antony Declaration at p. 5, P 7).
The Defendants objected to providing potentially responsive information or documents from the MCCs, contending that these files are not within their own possession, custody or control except documents already provided to the State by the MCCs.
The State contends that it can fully and accurately respond to plaintiffs' discovery requests and that it need not require its EPSDT contractors to search their files for potentially responsive information or documents, [*69] and that the defendants are only obligated to produce documents or information that the contractors have already provided to the State because the rules only require the production documents in a parties' possession, custody or control. Further, the State contends that to require its contracts to have to independently respond to Plaintiffs' discovery requests would be unduly burdensome and prohibitively expensive.
(Docket Entry No. 711, Joint Discovery Statement at p. 4).
The parties' counsel continued to disagree on discovery issues and in an August 16th letter, the Plaintiffs' counsel reaffirmed that: "On that broader question regarding electronic production, we agreed to disagree, since it continues to be the Plaintiffs' position that we are owed such production under Rule 34." (Docket Entry No. 712-3 at p. 20). Further negotiations between the parties narrowed some issues, but as this Memorandum reflects, the parties did not resolve their significant discovery disputes.
On October 13, 2006, the Plaintiffs filed another motion to compel (Docket Entry No. 708), that the Defendants opposed. (Docket Entry No. 720). The Defendants also filed a motion to compel on non-ESI issues involving [*70] Plaintiffs' contacts with advocacy groups and law firms (Docket Entry No. 706) that was denied on First Amendment principles and the work product privilege. (Docket Entry No. 743). In support of their objections to Plaintiffs' ESI discovery requests, the Defendants submitted affidavits, but those affidavits made only generalized assertions of an undue burden and the interruption of the work of state employees to respond to the Plaintiffs' ESI requests. (Docket Entry No. 720 at Exhibits B and C thereto).
The Court held a discovery hearing on November 6, 2006 to decide the parties' pending discovery motions and to mediate the parties' differences on ESI discovery. As to the Plaintiffs' discovery request for ESI, the Court reiterated its understanding from the April 17, 2006 conference that whatever ESI was given to the monitors was to be provided to the Plaintiffs. (Docket Entry No. 734, November 6, 2006 Transcript at pp. 34-36). The Court also expressed the view: "it makes sense to me that if it's available on an electronic data form, that you all would share that instead of generating all of this paper." Id. at p. 68. The ESI was to be produced for the fifty (50) key custodians as agreed [*71] upon by the parties. 17 (Docket Entry No. 734 at pp. 35 and 68; Docket Entry No. 743 at p. 2). The Court further ordered the production of documents and information, including ESI, in the possession of the MCCs (Docket Entry No. 734 at pp. 71-74; Docket Entry No. 743 at pp. 1-2). The Court directed counsel to prepare an Order specifying the information sought from the MCCs, id. at pp. 69-70, because "[a]s I understand it, there is no real objection to producing what the MCOs have." Id. at p. 69. The Court, however, directed that the ESI discovery would be produced under an agreed protocol, id. at pp. 65-66 and told the parties to exchange information about their computers and software among their computer experts. Id. at pp. 66-68, 74-75, and 86-87). The Court granted the Defendants leave to seek relief if the computer experts were unable to agree on the terms of the protocol. Id. at pp. 75, 82, 90.
17 The Plaintiffs' initial designation was for more than 100 key custodians.
At the November 6th hearing, Plaintiffs' counsel also expressed concerns about the Defendants' ambiguous responses to their discovery requests on destruction of evidence. The Court ordered the Defendants to give assurances [*72] that the State had preserved responsive information and fully and accurately responded to the Plaintiffs' discovery. The Court ordered that individuals identified by the Defendants as key custodians to answer Plaintiffs' revised and simplified requests for admissions about destruction of evidence and to sign their answers personally. (Docket Entry No. 734 at pp. 56-64; Docket Entry No. 743 at p. 3; Docket Entry No. 786 at pp. 40-42). The Plaintiffs propounded their third requests for admissions and fifth set of interrogatories on this issue. (Docket Entry No. 799).

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In an Order entered on November 21, 2006, the Court ordered the Defendants to "provide responsive documents that are in electronic format." (Docket Entry No. 743, Order at p. 2.). In response to this Order, the Defendants offered Plaintiffs what the Defendants deemed an "eminently reasonable alternative solution," i.e., to provide "production of supplemental materials and those documents where record of blind carbon copy may have been omitted from prior production." (Docket Entry No. 907 at 13-14). The Defendants offered to produce only ESI after April 15, 2006, and the ESI for any "documents prior to that date that were [*73] blind copied to any recipients." Id. at p. 14. 18
18 The Defendants assert that there was not any agreement or ruling previously about how far back discovery should run. (Docket Entry No. 907 at pp. 20-21). The parties agreed that discovery would relate back to June 2004, when the last round of discovery was conducted. This agreement is reflected in the Defendants counsel's letter to the MCCs that they needed to produce information since June 2004. (Docket Entry No. 899, Exhibit A at p. 5).
On December 6, 2006, a conference was held with the parties' computer experts to decide unresolved issues on the protocol for the production of ESI under the November 21st Order. (Docket Entry No. 764 at pp. 28, 51). 19 In reliance upon precedents in this district involving complex matters, the Court directed the parties' computer experts to confer, without the presence of their counsel, to develop a protocol and/or memorandum of understanding to address the cited problems with electronic discovery. (Docket Entry No. 764, at pp. 5-6). The "experts only conference" was held without objection by any counsel and yielded positive results that were appreciated by the parties' counsel .20 At the end of the [*74] December 6th conference, the parties' experts announced their ESI discovery protocol and for the prospective preservation of responsive ESI, and electronic searches with keywords to be identified by the Plaintiffs. Id. at pp. 14-20. To ensure that all responsive ESI is preserved and searched, the Defendants were to survey the individuals identified as key custodians and ascertain whether those custodians had saved relevant ESI. At the December 6th conference, the Court also suggested that the parties hold a series of similar conferences with the MCCs, with a court reporter, to negotiate any further protocol issues on ESI production.
19 At this conference Plaintiffs insisted that without an enforced litigation hold, emails of state employees would be routinely destroyed. (Docket Entry No. 764: Transcript of December 6, 2006 at pp. 28-30, 42-50). Plaintiffs' counsel also raised the lack of a litigation hold at the November 6, 2006 hearing. (Docket Entry No. 734 at pp. 61-62). 20 Counsel for both parties responded favorably to the first "experts only conference":
[Plaintiffs' Counsel] MR. BONNYMAN: Thank you, Your Honor. We think this process has been very productive. It was very helpful for [*75] the two experts to talk. And I will acknowledge that part of the reason why that was so useful was because our side lacked -- until the pro bono help that Mr. Tigh has supplied we've lacked the sophistication to perhaps be as constructive in this as we needed to be. So we really welcome that and welcome to be able to be on a par with the resources of the State.
* * *
[Defendants' Counsel] MS. MOSS: Your Honor, the State also welcomed this opportunity. We believe that this has greatly helped in coming up with a reasonable protocol that the State can live with and takes into account the limitations that the State has.
(Docket Entry No. 764, December 6, 2006 Conference at pp. 27, 51).
As requested, the parties' computer experts submitted an order that reflected their agreement. (Docket Entry No. 784-3 and Docket Entry No. 785). Mr. Tigh, Plaintiffs' computer expert, also submitted his declaration on the need to ask custodians an additional question as to whether the custodians had removed any responsive information to any nonattached media. (Docket Entry No. 785-2, Tigh Declaration P C). On January 14, 2007, the Court entered another Order adopting Tigh's suggestion and ordered that "[t]he [*76] Defendants shall file certifications of the key custodians as to whether any material has been removed," citing the Tigh affidavit at P C. (Docket Entry No. 789 at p. 3). In the Court's view, these certifications would ensure all relevant ESI would be retrieved.
Plaintiffs' proof is that the Defendants reneged on the computer experts' agreements at the December 6th conference to use 50 keywords or search terms, (Docket Entry No. 759) and the Defendants unilaterally selected two search

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terms and insisted upon a date-limited search. (Docket Entry No. 810, Exhibit A). Defendants initially responded that this restriction was necessary to complete the search to meet the Court's date for an earlier scheduled evidentiary hearing. Later, the Defendants would contend that the ESI production was too costly.
Based upon the parties' filings, the Court concluded that the out-of-court conferences of the experts had not been as productive as the Court contemplated. Once the parties left Court, their disputes over basic ESI issues resurfaced. Given the technical nature of the discovery controversy, the Court scheduled an "experts only" conference for April 11, 2007 for the parties' and MCC's computer [*77] experts. (Docket Entry No. 857, Order) This conference was to define the parties' technical disputes and to implement the Court's Orders requiring the production of responsive ESI. A series of Orders were entered to ensure that the Court and the participants shared the same core information about the capabilities of the Defendants' and MCCs respective computer systems, including their retention policies and software programs. (Docket Entry Nos. 858 and 859). Such information was ordered to be treated as confidential. Id. All participants were also requested to file a list of outstanding discovery issues. (Docket Entry No. 859). The Defendants filed a statement of disputed issues, requested that "the November 2006 orders be modified" and raised questions about the form of the Plaintiffs' Third Request for Admission and Fifth Interrogatories. (Docket Entry No. 860, Exhibit G thereto).
The "experts only" conference was a discussion of the parties' and the MCCs' computer experts without the presence of the Court or counsel, 21 except to announce protocol for the conference and to hear the experts' reports on their progress. (Docket Entry No. 872). At the end of the conference, the parties' [*78] and the MCCs' computer experts unanimously agreed that the conference was productive. The Court directed the State's computer expert to prepare a written summary of the experts' agreements and to circulate that document among all experts for comment and file that report with the Court. (Docket Entry No. 872 at p. 228). After the April 11th conference, the parties and the MCCs had out of court conferences, and their disputes resurfaced.
21 At the beginning of the conference, counsel for two MCCs objected to the conference format. The Court cited the absence of any objections by the parties' counsel to the first such conference and quoted the parties' counsel's favorable reactions to that conference. The Court overruled those objections. A transcript of that conference was deemed confidential and ordered to be filed under seal. At the end of the conference, the Court again inquired whether any counsel objected. Plaintiffs' counsel did not object to this conference, but all counsel for the Defendants' and the MCCs objected. The legal authority for that conference is noted supra.
The Plaintiffs renewed their earlier motion to compel on all outstanding discovery and ESI issues and the Court [*79] set an evidentiary hearing on that motion. With this brief history of the litigation, the Court sets forth below its findings of fact and conclusions of law on all outstanding discovery disputes.
II. Plaintiffs' Renewed Motion to Compel
A. Findings of Fact
1. Information Requirements and Discovery Rights under the Consent Decree
In their motion, Plaintiffs rely, in part, upon the Consent Decree that requires the collection and maintenance of the data on the Defendants' compliance with the Consent Decree. In several paragraphs, under the heading, "Monitoring and Enforcement of MCO and DCS Compliance," the Consent Decree has the following paragraphs requiring the Defendants and the MCCs to track and report the medical screening and services to individual class members:
91. Upon request, the evaluators shall be afforded access to such records (including electronic data files) or persons as necessary to fulfill the responsibilities imposed by this order. Each party shall have access to information and materials obtained by the evaluators; however, except for information which originated with the parties' counsel, the evaluators may withhold the source of any information they have received. [*80] The evaluators may communicate ex parte with the parties, their agents or counsel; upon request, the evaluators shall disclose to the opposing party the general substance of such communications. The evaluators shall otherwise treat all records as confidential.
* * *
94. Within 180 days, the Defendants shall require their contractors to achieve and maintain the capability of tracking each child in the plaintiff class, for purposes of monitoring that child's re-

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ceipt of the required screening, diagnosis and treatment. The tracking system shall have the capacity of generating an immediate report on the child's EPSDT status, reflecting all encounters reported to the contractor more than 60 days prior to the date of the report.
95. Within 150 days, DCS shall achieve and maintain a tracking system as reflected above. The tracking system shall have the capacity to generate a report on the child's EPSDT screening status and shall reflect all screens received by the child more that 30 days prior to the report. DCS shall establish a procedure for notification of TennCare if a DCS case manager suspects that action or inaction by an MCO in performing its duties under the TennCare contract has caused [*81] a child to inappropriately enter DCS custody. TennCare shall receive such notification as part of its complaint processes and take whatever action is appropriate. DCS shall include this procedure as part of its departmental training.
97. The state shall compile, in a standardized electronic format capable of supporting flexible, customized analysis and reporting, data on all pertinent provider encounters which involve children, and which are covered by the TennCare program.
98. The state shall conduct ongoing audits for the purpose of authenticating such encounter data. In order to ensue the integrity of the audit reports, such audits shall be conducted by qualified personnel and shall meet generally accepted standards regarding sample size and selection.
(Docket Entry No. 12, Consent Decree at PP 91, 94, 95, 97 and 98) (emphasis added). In addition, the Consent Decree created a "process for monitoring and reporting [by the Defendants] their compliance with the requirements of this order." Id. at P 96. For these tracking and monitoring systems, the Consent Decree sets a semiannual reporting requirement for the Defendants. Id. at P 104.
Another provision of the Consent Decree also grants [*82] Plaintiffs' counsel a right of access to this data on monitoring and tracking compliance through the Defendants. Upon Plaintiffs' counsel's request, the Defendants agreed to produce this data to Plaintiffs' counsel.
Upon 30 days prior notice to TennCare, plaintiff's counsel shall have access during normal business hours to any public records relating to the state's compliance with the terms of this order, or to the monitoring, auditing or testing of such compliance. Subject to any applicable federal laws limiting the authority of a court to grant access to such records, plaintiffs' counsel shall have access to the records of members of the plaintiff class. All information related to plaintiff class members provided to plaintiffs' counsel shall be considered to be confidential and shall not be used for functions other than those directly related to compliance with this order. All such records shall be obtained, if necessary, and provided to plaintiffs' counsel through TennCare, rather than through individual MCOs.
Id. at P 105. (emphasis added).
The Defendants' and MCCs' contracts contain the following provisions on the Defendants' and other governmental agencies' access to any MCC's information [*83] about any TennCare enrollee:
The CONTRACTOR shall insure within its own organization and pursuant to any agreement the CONTRACTOR may have with any other providers of service, including, but not limited to providers, subcontractors or any person or entity receiving monies directly or indirectly by or though (sic) TennCare, the TENNCARE representatives and authorized federal, state, and Comptroller personnel including but not limited to TENNCARE, the Office of Inspector General (OIG), the Medicaid Fraud Control Unit (MFCU), the Department of Health and Human Services, Office of Inspector General (HHS OIG) and the Department of Justice (DOJ) and any other duly authorized state or federal agency shall have immediate and complete access to all records pertaining to the medical care and services provided to TennCare enrollees.
(Plaintiffs' Exhibit 28) (emphasis added).

2007 U.S. Dist. LEXIS 75457, *

Page 26

2. The Lack of Preservation of Relevant Records
From the Court's perspective, the core of this ESI discovery controversy is the absence of any effective attempt by the Defendants to preserve and segregate relevant ESI, since the filing of this action in 1998. Despite the entry of the Consent Decree in 1998, the proof is that [*84] only in March, 2004, did the Defendants prepare a litigation hold memorandum for its employees and MCCs in the TennCare program. This March 17, 2004 memorandum, prepared by then counsel for the Governor and a member of the State Attorney General's office, sets forth a detailed process for the retention, segregation and preservation of documents on this and other TennCare actions. 22
22 The March 17, 2004 memorandum or litigation hold appears to represent a shift in the Defendants' focus to a litigation strategy to seek relief from the Consent Decree on its Medicaid programs in this and related actions. The Defendants' proof is that this shift was because the Governor wanted relief from the Consent Decrees. Another manifestation of this policy shift, beyond the March 17, 2004 litigation hold memorandum, was the retention of new counsel shortly thereafter. (Docket Entry No. 383, 385).
The March 17th memorandum referred to this action by name and stated that it was "critical that we take every reasonable step now to preserve the information, documents, and/or data produced or received by the work teams, whether in hard copy or electronic form." (Plaintiffs' Exhibit 24A). 23 This memorandum [*85] refers to a variety of electronic records to be preserved, including such information from "outside sources":
[The material that must be preserved] includes, but is not limited to: (1) email and other electronic communications; (2) word processing documents, including drafts of documents; (3) spreadsheets; (4) databases; (5) power point presentations; and (6) personal notes. The material to be preserved also includes any information or data received by a work team from outside sources.
(Docket Entry No. 828, Exhibit 20 thereto).
23 At one point, Defense counsel asserted that their duty was only to issue the litigation hold, not to ensure that it was implemented. (Docket Entry No. 828, Exhibits 9, Moss Letter to Bonnyman at p. 2 ("I did suggest that the State does not have an obligation to preserve all documents simply because a consent decree is in place, but my comment was merely directed to the issue of whether the State had an obligation to do more than instruct state officials to preserve documents relevant to this litigation, which the State has done.")). There is not any documentary evidence of a litigation hold issued by current private counsel. Plaintiffs note that current lead [*86] counsel describes his firm as well experienced in "cases [that] were paper intensive, involving literally millions of documents, which we were able to index store, and search electronically." (Plaintiffs' Exhibit No. 35 at p. 2).
In summary, this memorandum constituted a "litigation hold" for the preservation of all potentially responsive materials as well as the collection and review of such materials by designated records custodians. Provisions for contemporaneous designation and segregation of privileged materials communications are included, as this memorandum described in some detail:
An initial step that needs to be implemented immediately is the appointment of a records custodian for each work group, who will be responsible for maintaining and preserving all data received and produced by each work group. In order to assist these individuals in this task, it is imperative that they receive copies of all documents, Including drafts, and other materials and that they be included in all communications, including electronic. Further, any materials that are privileged either as attorney client communication or as attorney-work product should be designated as such, so that the record [*87] custodians can segregate out those materials to preserve their confidentiality...
Limit written documents, especially the distribution of written documents ... Mark all draft materials "Working Drafts": Keep in mind that any written document could be deemed a "public record" and publicly distributed.
* * *

2007 U.S. Dist. LEXIS 75457, *

Page 27

Preservation of all records pertaining to TennCare Reform is of the highest priority. This includes all electronic documents(email, memo[] (etc).
* * *
To preserve documents as efficiently as possible: All e-mails and attachments should be cc to: AG_TennCare Team.
All email and attachments should be cc to: The F&A team Representative ("records custodian")
All future documents and email should be saved immediately to the server or as email archive or filed if "hard copy" only.
Should any employee involved in this effort leave state service, their hard drive should be imaged and retained.
Plaintiffs' Exhibit Nos. 24-F and 24-G. (emphasis added). Notwithstanding these documents, the TennCare Team mailbox was not made available by December 2, 2004, and there remained a "need to establish a policy of centralized retention of all electronic documents, (emails, files, reports, presentations, etc.), [*88] for returning to Medicaid." Plaintiffs' Exhibit 24-B.
The extent, if any, of the actual distribution of this Memorandum is unclear as the Defendants did not offer any proof on this issue. The Defendants did not present any proof from the working group's designated records custodians whose positions were identified in the March 17th Memorandum to collect all ESI from their groups so as to implement the memorandum. At the November 6, 2006 hearing, defense counsel stated that privileged documents had not been reviewed nor segregated for the Plaintiffs' ESI discovery requests until beginning in December 2006 or January 2007.
The State is not equipped today to be able to do this sort of electronic production. It doesn't have the inhouse capabilities to do it. Mr. Antony's declaration that we filed with our responses to their motion to compel details the very convoluted and complicated process that we would try to come up with, which would require State officials to try to forward all of their e-mails and electronic documents to a separate e-mail account, then have attorneys to on that account and try to review each one, and then forward it either to a non-responsive e-mail box or a privileged [*89] email box.
We're talking a tremendous amount of time and expense, both that attorneys' time certainly in the review, but we're talking time that the State officials are going to have to take time away from their normal obligations to send literally thousands and thousands of e-mails.

ORDER
In accordance with the Memorandum filed herewith, the Plaintiffs' renewed motion to compel (Docket Entry No. 826) is GRANTED except as modified by the Court for certain managed care contractors.
It is ORDERED that the Defendants shall provide complete responses to the Plaintiffs' discovery requests for ESI with the agreed search terms, the designated key custodians and for the time period of June 1, 2004 to the present within one hundred (100) days from the date of entry of this Order. The ESI required under this Order and responsive to Plaintiffs' discovery requests shall include all metadata as well as all deleted information on any computer of any of the Defendants' designated key custodians.
Given the need for hash coding of the ESI, Brent Antony's limited formal computer training and the Defendants' position about possible alteration of ESI, the Plaintiff's expert, Thomas Tigh or his designee shall [*90] be present for the Defendants' ESI production and shall provide such other services to the Defendants as arc necessary to produce the metadata, as ordered by the Court. Mr. Tigh or his designee shall inspect the Defendants' computer system to assess whether any changes have been made to hinder the ESI production required by the Consent Decree or previously Order by the Court.

2007 U.S. Dist. LEXIS 75457, *

Page 28

Given the intensity and sensitivity of these discovery disputes, the Court is considering the appointment of a monitor who has the Court's confidence and is likely to be acceptable to all parties to serve as monitor to oversee the Defendants' and MCCs' ESI production. Given the extensive delays in discovery, within three (3) days after entry of this Order, any party may submit the names of persons for this appointment. The parties have six (6) days from the date of entry of this Order to file any objections to the names submitted. As it were with the other monitors, the Monitor will communicate with the Court only in writing and will have the authority to hire a computer expert. The Monitor and any expert hired by the Monitor shall be paid by the Defendants whose conduct has caused these discovery disputes and [*91] this Order.
It is ORDERED that within eleven (11) days from the date of entry of this Order, the Defendants shall provide a complete and accurate response to Interrogatory 22 by the person whose name is mentioned in Plaintiffs' Exhibit 12. It is further ORDERED that within thirty (30) days from the date of entry of this Order, the Defendants shall provide the personal responses of each of the current key custodians and shall use their best efforts to secure responses from former key custodians to the Plaintiffs' last set of requests for admissions, as directed in the accompanying Memorandum.
It is further ORDERED that with fifteen (15) days of the entry of this Order, the Defendants shall comply with the January 14, 2007 Order requiring the Defendants' current and former key custodians to file certifications on whether any ESI has been removed from any state computer or personal computer provided by the State to the Defendants' designated current and former key custodians.
Effective upon entry of this Order, the Defendants shall implement the March 17, 2004 Memorandum and shall report to the Court instanter the names of the custodians for each working group in their agencies and the names [*92] of the lawyers in the State Attorney General's Office who, on a continuing basis, shall receive and review all ESI relevant to the Consent Decree in this action from any state agency or person who has any supervisory authority within or over the agencies that are charged with implementation of the services, policies, plans and reports required under the Consent Decree in this action.
It is ORDERED that within sixty (60) days from the date of entry of this Order, those managed care contractors ("MCC" or "MCCs") that have not agreed with the Plaintiffs on ESI discovery, shall respond to Plaintiffs' ESI discovery requests, as modified by the Court in the accompanying Memorandum. These MCCs' modified ESI production shall be with the search terms: "John B.", "ESPTD", "TennCare," and the names of any MCC employee or agent, who communicates with TennCare or state government and the names of those persons in state government with whom the MCC has had or has communications on matters under the Consent Decree in this action. These search terms shall be used to search any computer of the employee(s), agent(s) or officer(s)s of the individual MCC who respond to the Defendants or their employees [*93] or agents about any compliance or complaint(s) and who are responsible for preparation of compliance reports for ESPTD services. If the Court's modifications of the ESI production for select managed care contractors results in a seriously inadequate production, Plaintiffs may renew their motion to compel for the original search terms for the electronically stored information ("ESI") production from these MCCs. The other MCCs shall provide their ESI discovery to the Plaintiffs within 100 days of the entry of this Order and pursuant to their agreements with the Plaintiffs as to all other terms for their ESI search.
Within eleven (11) days of the entry of this Order, the Defendants shall respond why the Defendants should not be required to pay the production costs of the MCCs under this Order or any agreement between the Plaintiffs and any MCC, including the MCCs' attorney fees and costs.
In light of this Order, the MCCs' related motions to allocate discovery costs, (Docket Entry Nos. 920, 921, 935) are DENIED as moot. The MCC, BlueCross /BlueShield's motion to alter or amend the June 1, 2007 Order or motion for a partial new trial (Docket Entry No. 931) is DENIED as moot.
It is so ORDERED
Entered [*94] this the 10<th> day of October, 2007.
WILLIAM J. HAYNES, JR.
United States District Judge

 
 710 F.3d 394 United States Court of Appeals,
Sixth Circuit.
JOHN B., et al., Plaintiffs–Appellants, v.
Mark EMKES, Commissioner, Tennessee Department of Finance and Administration, et al.,
Defendants–Appellees.
No. 12–5307. |
Argued: Oct. 5, 2012. |
Decided and Filed: March 14, 2013.
Synopsis Background: Tennessee officials filed motion to vacate a consent decree entered in class-action challenging Tennessee’s managed care program on ground that it failed to provide early and periodic screening, diagnosis and treatment (EPSDT) services to covered Tennessee children in violation of the Medicaid Act. The United States District Court for the Middle District of Tennessee, Thomas A. Wiseman, Jr., J., 852 F.Supp.2d 944, and 852 F.Supp.2d 957,granted motion, and Medicaid recipients appealed.
Holdings: The Court of Appeals, Kethledge, Circuit Judge, held that:
[1] paragraphs of consent decree regarding required adequacy of health care provider networks in Tennessee’s managed care program were not enforceable;
[2] law of the case doctrine did not bind District Court regarding the statutory basis of consent decree;
[3] paragraphs of consent decree mandating case planning and case review for children in the custody of the Tennessee Department of Children’s Services (DCS) were not enforceable;
[4] paragraphs of consent decree addressing Tennessee Medicaid program’s coordination with other government agencies were not enforceable;
[5] District Court properly considered whether Tennessee’s program was in current, substantial compliance with decree;

[6] Tennessee program was in substantial compliance with outreach services provision of decree; and [7] Tennessee program was in substantial compliance with diagnosis and treatment services provision of decree.
Affirmed.

West Headnotes (20)

[1]

Health

Medicaid and similar programs in general

Medicaid is a cooperative federal-state program that provides medical care to the poor. Medicaid Act, § 1901 et seq., 42 U.S.C.A. § 1396 et seq.

Cases that cite this headnote

[2] Federal Courts Judgment by confession or consent
The court of appeals reviews a district court’s decision on a motion to vacate a consent decree for an abuse of discretion. Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A.
Cases that cite this headnote

[3] Federal Civil Procedure Amending, opening, or vacating
A court may vacate a consent decree if, among other things, a significant change in law renders its continued enforcement detrimental. Fed.Rules Civ.Proc.Rule 60(b)(5), 28 U.S.C.A.
2 Cases that cite this headnote

1

[4] Federal Civil Procedure Amending, opening, or vacating
A change in law is significant, as may warrant grant of a motion to vacate a consent decree, when the parties based their agreement on a misunderstanding of the law. Fed.Rules Civ.Proc.Rule 60(b)(5), 28 U.S.C.A.
Cases that cite this headnote

[5] Federal Civil Procedure Construction and operation
Paragraphs of consent decree regarding required adequacy of health care provider networks in Tennessee’s managed care program with respect to early and periodic screening, diagnosis and treatment (EPSDT) services were based on Medicaid Act section requiring provider networks to be comparable in size to private networks in geographic area, which was not privately enforceable under § 1983; thus, those paragraphs in consent decree were not binding on Tennessee officials. 42 U.S.C.A. § 1983; Medicaid Act, § 1902(a)(30)(A), 42 U.S.C.A. § 1396a(a)(30)(A).
Cases that cite this headnote

[6]

Courts

Other particular matters, rulings relating to

Law of the case doctrine did not bind District Court regarding the statutory basis under Medicaid Act of paragraphs of consent decree regarding required adequacy of health care provider networks in Tennessee’s managed care program with respect to early and periodic screening, diagnosis and treatment (EPSDT) services; prior Court opinion did not mention particular section of Medicaid Act in discussing those provisions of the decree or actually decide statutory basis of consent decree. Medicaid Act, § 1902(a), 42 U.S.C.A. § 1396a(a).

5 Cases that cite this headnote

[7]

Courts

Previous Decisions in Same Case as Law of

the Case

The law-of-the-case doctrine only applies to issues the court actually decided.

Cases that cite this headnote

[8] Federal Civil Procedure Construction and operation
Paragraphs of consent decree mandating case planning and case review for children in the custody of the Tennessee Department of Children’s Services (DCS) were based on federal Adoption Assistance and Child Welfare Act, which was not privately enforceable under § 1983; thus, those paragraphs in consent decree were not binding on Tennessee officials. Adoption Assistance and Child Welfare Act of 1980, § 101(a), 42 U.S.C.A. § 670; 42 U.S.C.A. § 1983.
Cases that cite this headnote

[9] Federal Civil Procedure Construction and operation
Paragraphs of consent decree addressing Tennessee Medicaid program’s coordination with other government agencies was based on federal Medicaid regulation, requiring coordination with other government agencies and programs, which was not privately enforceable under § 1983; thus, those paragraphs in consent decree were not binding on Tennessee officials. 42 U.S.C.A. § 1983; Medicaid Act, § 1902(a)(43)(C), 42 U.S.C.A. § 1396a(a)(43)(C); 42 C.F.R. § 441.61(c).
2

Cases that cite this headnote
[10] Administrative Law and Procedure Enforcement
An implementing regulation is not privately enforceable, even if its controlling statute is, when it imposes an obligation or prohibition that is not imposed generally by the controlling statute.
Cases that cite this headnote
[11] Federal Civil Procedure Form and requisites;  validity
A consent decree must further the objectives of the federal law upon which the complaint was based.
Cases that cite this headnote
[12] Federal Civil Procedure Amending, opening, or vacating
In motion to vacate consent decree, which resolved class-action challenging the Tennessee’s Medicaid program on ground that it failed to comply with federal requirements for early and periodic screening, diagnosis and treatment (EPSDT) services, District Court properly determined whether Tennessee’s program was in current, substantial compliance with decree; Court was not required to consider all of Tennessee program’s prior violations, as present, not past, compliance was issue, and Court did consider case’s long history. Medicaid Act, § 1902(a)(43)(C), 42 U.S.C.A. § 1396a(a)(43)(C).
Cases that cite this headnote

[13] Federal Courts Judgment by confession or consent
The court of appeals reviews the district court’s interpretation of the consent decree de novo.
1 Cases that cite this headnote
[14] Federal Civil Procedure Construction and operation
Under Tennessee law, a court’s primary goal in interpreting a consent decree is to give effect to the parties’ intent as expressed in the decree itself.
Cases that cite this headnote
[15] Federal Civil Procedure Compliance;  enforcement
Tennessee’s managed care program was in substantial compliance with consent decree provision, entered following class action suit, requiring it to provide outreach to all Medicaideligible children and their parents as to availability and importance of screening services, pursuant to federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) standards, as required to satisfy sunset clause of decree, where state had adopted policies and procedures to ensure outreach. Medicaid Act, § 1901 et seq., 42 U.S.C.A. § 1396 et seq.
Cases that cite this headnote
[16] Federal Civil Procedure Compliance;  enforcement
Tennessee’s managed care program was in substantial compliance with consent decree provision, following class action suit, requiring it to provide appropriate diagnosis and treatment
3

services following early and periodic screening to all Medicaid-eligible children, pursuant to federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) standards, as required to satisfy sunset clause of decree, where vast majority of diagnosis and treatment services were provided automatically, without any medical-necessity reviews. Medicaid Act, § 1901 et seq., 42 U.S.C.A. § 1396 et seq.
Cases that cite this headnote
[17] Federal Civil Procedure Compliance;  enforcement
Tennessee’s monitoring and oversight of its managed care program for all Medicaid-eligible children, pursuant to federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) standards, was in substantial compliance with consent decree, entered following class action suit against Tennessee, as required to satisfy sunset clause of decree, where state used a number of objective measurements to judge its performance; Tennessee required its managed care organizations to obtain full accreditation by National Committee for Quality Assurance (NCQA), and adopted several internal reporting methods, including required filing with court of semiannual compliance reports. Medicaid Act, § 1901 et seq., 42 U.S.C.A. § 1396 et seq.
Cases that cite this headnote
[18] Federal Civil Procedure Compliance;  enforcement
Failure of Tennessee’s managed care program to correctly calculate its screening ratio, pursuant to consent decree provision, following class action suit, requiring it to provide periodic screening to all Medicaid-eligible children, pursuant to federal Early Periodic Screening, Diagnosis and Treatment (EPSDT) standards, did not prevent program from being in substantial compliance with screening ratio requirements, as required to satisfy sunset clause of decree; the incorrect calculation of the ratio at most amounted to technical violation, the

program provided free screening services in all cases when requested, it provided all types of screening required by federal Medicaid Act, it informed all program participants under age of 21 of the availability of periodic screening, and there was no showing of any instance in which needed services were not ultimately provided. Medicaid Act, §§ 1902(a)(43)(D), 1905(r), 42 U.S.C.A. §§ 1396a(a)(43)(D), 1396d(r).
Cases that cite this headnote
[19] Federal Civil Procedure Amending, opening, or vacating
In litigation involving institutional reform, a court must take a flexible approach to a motion to vacate a consent decree, so that responsibility for discharging the State’s obligations is returned promptly to the State and its officials when the circumstances warrant. Fed.Rules Civ.Proc.Rule 60(b)(5), 28 U.S.C.A.
Cases that cite this headnote
[20] Federal Civil Procedure Amending, opening, or vacating
In applying the flexible approach, on a motion to vacate a consent decree, in litigation involving institutional reform, a court must answer two questions: first, whether the state has achieved compliance with the federal-law provisions whose violation the decree sought to remedy, and second, whether the state would continue that compliance in the absence of continued judicial supervision. Fed.Rules Civ.Proc.Rule 60(b)(5), 28 U.S.C.A.
1 Cases that cite this headnote
Attorneys and Law Firms
4

*397 ARGUED: Katherine L. McDaniel, Kirkland & Ellis LLP, New York, New York, for Appellants. Michael W. Kirk, Cooper & Kirk, PLLC, Washington, D.C., for Appellees. ON BRIEF: Katherine L. McDaniel, Kirkland & Ellis LLP, New York, New York, G. Gordon Bonnyman, Jr., Michele M. Johnson, Christopher E. Coleman, Tennessee Justice Center, Nashville, Tennessee, for Appellants. Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, PLLC, Washington, D.C., Linda A. Ross, *398 Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellees.
Before: ROGERS, COOK, and KETHLEDGE, Circuit Judges.
OPINION
KETHLEDGE, Circuit Judge.
Consent decrees are not entitlements. Instead, a decree may remain in force only as long as it continues to remedy a violation of federal law. Here, Tennessee’s Medicaid program has operated under a federal consent decree for 15 years. In recent years, however, the State moved to vacate the decree on grounds that the State is now compliant with both the decree and the Medicaid statute. The district court conducted a month-long evidentiary hearing to explore those grounds. Afterward, the court issued an exhaustive opinion in which it found that the State has vastly improved its Medicaid program and is indeed compliant with all the relevant provisions of federal law. Thus the court vacated the decree.
The plaintiffs now challenge the court’s decision on numerous grounds. Some of those grounds misstate the bases of the court’s decision. Other grounds are simply meritless. Our conclusion is therefore the same as the district court’s: control of Tennessee’s Medicaid program must now return to the State of Tennessee.
I.
[1] Medicaid is a cooperative federal-state program that provides medical care to the poor. States are not required to participate in Medicaid, but those that do must comply with the Medicaid Act, 42 U.S.C. § 1396 et seq. Tennessee participates in Medicaid through a program known as TennCare. See Tenn.Code § 71–5–102.

In relevant part, the Medicaid Act requires that TennCare administer an Early and Periodic Screening, Diagnosis, and Treatment program for all enrollees under the age of 21. See 42 U.S.C. §§ 1396a(a)(43), 1396d(r). As a part of this program, TennCare must provide two basic services: first, provide medical checkups to its enrollees on a regular basis (referred to as “screens” by the Act); and second, diagnose and treat any health problems revealed by those screens. See id. § 1396a(a)(43)(B)-(C). TennCare must also conduct outreach to educate its enrollees about these services. See id. § 1396a(a)(43)(A).
In 1998, the plaintiffs filed a putative class action under 42 U.S.C. § 1983, alleging that TennCare had failed to fulfill these obligations. The parties quickly settled, and the district court entered a consent decree that explained in detail the requirements that TennCare had to meet to “achieve and maintain compliance” with the Medicaid Act. See Consent Decree ¶ 14. The parties expressly based these requirements on the assumption that the Act created rights enforceable under § 1983. See Consent Decree ¶ 15. The decree also included a sunset clause. In relevant part, that clause provides that the decree “shall expire” when TennCare reaches an “adjusted periodic screening percentage” of 80%, and is in “current, substantial compliance” with the rest of the decree. See Consent Decree ¶ 113, at 54.
Eight years later, this court held that one part of the Medicaid Act—42 U.S.C. § 1396a(a)(30)—was unenforceable under § 1983. See Westside Mothers v. Olszewski, 454 F.3d 532, 542 (6th Cir.2006) (Westside Mothers II ). Shortly thereafter, TennCare moved to vacate the consent decree under Federal Rule of Civil Procedure 60(b), arguing that Westside Mothers *399 II had invalidated the parties’ assumption that the Medicaid Act created rights enforceable under § 1983. The district court denied the motion. TennCare appealed.
On appeal, we affirmed in part, reversed in part, and remanded. See John B. v. Goetz, 626 F.3d 356 (6th Cir.2010). Like the district court, we rejected TennCare’s argument that Westside Mothers II had left the entire Medicaid Act unenforceable under § 1983. But we agreed that certain parts of the Act—such as § 1396a(a)(30)— could not be privately enforced. Thus, we instructed the district court to determine the statutory basis of the decree, and to vacate any paragraphs based on parts of the Act that are not privately enforceable. We also ordered the case reassigned to a new district judge.
Judge Thomas A. Wiseman, Jr. took up the case on remand. The district court familiarized itself with the case’s 13–year history and ordered that the parties file
5

supplemental briefs with respect to TennCare’s Rule 60(b) motion to vacate the decree. It also held a hearing on that motion. The court later issued a 17–page opinion that examined the statutory basis of every paragraph in the decree. In that opinion, the court held that several of the decree’s paragraphs had been based upon statutory provisions or regulations that were themselves unenforceable under § 1983. Thus, the court vacated those paragraphs. But the court held that “the [d]ecree as a whole, and the principal provisions in it, remained enforceable.”
Meanwhile, TennCare filed a second motion to vacate the decree. There, TennCare argued in part that it had fulfilled the terms of the decree’s sunset clause by reaching a screening percentage greater than 80% and by achieving current, substantial compliance with the rest of the decree. Thereafter, the district court held an 18–day evidentiary hearing, during which it heard testimony from 31 witnesses and admitted 260 exhibits. The court also received 345 pages of proposed findings of fact and conclusions of law from the parties. The court later issued a 38–page opinion that included a thorough examination of TennCare’s compliance with the decree and the Medicaid Act.
The district court began that examination with a discussion of TennCare’s outreach efforts. The court found that, after enrolling in TennCare, a family with children learns about the Early and Periodic Screening, Diagnosis, and Treatment program in five different ways. First, Tennessee’s Department of Human Services (which handles the enrollment process) tells each family about the program and urges them to take their children to the doctor for a screen. Second, TennCare sends each family a welcome letter that encourages them to schedule an appointment. Third, a managed-care organization (i.e., a contractor that TennCare hires to manage part of its program) sends each family a member handbook that includes information about screening services. Fourth, a managed-care organization calls each newly enrolled family to urge them to schedule a screen. And fifth, Tennessee’s Department of Health also calls each family to tell them about the program, to offer assistance in scheduling a screen, and to offer transportation to the appointment.
The district court also found that TennCare sends at least five reminders to its enrollees about screening appointments each year. Each family receives quarterly newsletters and a postcard around the child’s birthday, all of which encourage the family to schedule a screen. Families may receive further reminders from the Department of Health, which runs a community-outreach program designed to target hard-to-reach enrollees, such

as pregnant teenagers.
*400 In addition, the district court found that TennCare makes numerous attempts to contact children that have missed a screen. When a child’s date for a screen has passed, a managed-care organization sends a reminder to the family. If a child goes an entire year without a screen, the family will receive two more reminders—one from a managed-care organization and one from TennCare. The Department of Health also runs a home-visit program to reach children that have missed a screen. Under this program, the Department sends a community-outreach worker to the home of any child who is overdue for a screen, and urges the family to schedule an appointment. Thus, if a child goes a whole year without a screen, TennCare will contact that child’s family at least nine times—four times through quarterly newsletters, one time through a postcard, three times through reminder notices, and one time through a home visit.
Next, the district court examined TennCare’s screening services. It found that TennCare provides the four types of screens required by the Medicaid Act: physical, vision, hearing, and dental. See 42 U.S.C. § 1396d(r). The court also found that TennCare had complied with the Act by adopting the periodicity schedules (i.e., schedules that state how often a child should receive each type of screen) recommended by a committee of experts in each field. See, e.g., 42 U.S.C. § 1396d(r)(1)(A)(i). TennCare provides screens to its enrollees free of charge, whether or not the screen is recommended by the relevant periodicity schedule. Thus, parents or guardians can take a child in for as many screens as they like, no matter how many times they have already done so.
The district court also examined TennCare’s diagnostic and treatment services. The court looked first at TennCare’s policies and found that “TennCare children are entitled to receive, free of charge, all medically necessary covered diagnosis and treatment services.” The court then examined how TennCare’s managed-care organizations actually applied those policies. “In practice[,]” the court found, “the vast majority of diagnosis and treatment services are provided to TennCare enrollees automatically, without any medicalnecessity review, when the service is ordered by a licensed provider.” And the court found that, even when a managed-care organization does engage in medicalnecessity review, the organization usually approves the requested service.
In the comparatively few cases where a managed-care organization denies a requested service, TennCare offers the affected family an exhaustive appeals process. An appeal begins with TennCare asking the managed-care
6

organization to have a second doctor review the request. If that doctor recommends denial, TennCare sends the case to an independent medical consultant. If the consultant also recommends denial, the case goes to an administrative law judge. Thus, on appeal, TennCare will only deny a requested service if two doctors, an independent medical consultant, and an administrative law judge all agree that the service is not medically necessary.

The district court also found that the plaintiffs’ own witnesses “largely confirmed that TennCare provides medically necessary diagnostic and treatment services.” Although these witnesses testified that TennCare did not always provide services as quickly as it should, the plaintiffs “did not identify any instance where needed services were not ultimately provided.”

The district court then examined the four primary ways that TennCare monitors its compliance with the Medicaid Act. First, the court found that Tennessee was *401 the first state in the country to require that its managed-care organizations earn full accreditation from the National Committee for Quality Assurance, which is an independent organization dedicated to improving healthcare quality. Of TennCare’s three managed-care organizations, two have earned the highest overall accreditation rating of “excellent” and the third earned the second-highest rating of “commendable.”

Second, the court found that TennCare requires its

managed-care organizations to use a measuring tool

known as the Healthcare Effectiveness Data and

Information Set (HEDIS). This tool measures the

performance of TennCare’s managed-care organizations

in 75 different areas. See HEDIS & Performance

Measurement, NATIONAL COMMITTEE FOR

QUALITY

ASSURANCE,

http://www.ncqa.

org/HEDISQualityMeasurement.aspx (last visited Feb.

19, 2013). HEDIS allows TennCare to track its year-to-

year performance and to compare itself with other health

plans across the country. The court also found that

TennCare’s HEDIS results “compare[d] favorably to

national Medicaid averages[.]” For example, TennCare’s

results exceeded, or were comparable to, the national

average for “access to and availability of care for

children, timeliness and frequency of prenatal care, child

immunization rates, and effectiveness of behavioral health

[.]” According to the court, these results compared “even

more favorably to the Southeastern regional averages.”

Third, the court found that TennCare requires its managed-care organizations to use another measuring tool known as Consumer Assessment of Healthcare Providers and Systems (CAHPS). This tool measures the

satisfaction of TennCare’s enrollees with their medical care. Again, the court found that TennCare’s CAHPS results were better than the national averages for Medicaid. For example, between 84% and 86% of TennCare’s enrollees stated that they always or usually get the care they need for their children—whereas only 77% of Medicaid recipients nationally said the same.
Fourth, the court found that TennCare had hired Qsource to serve as its External Quality Review Organization. See generally 42 C.F.R. § 438.356. In that role, Qsource performs two primary tasks: First, it reviews the policies adopted by TennCare’s managed-care organizations to determine whether they comply with federal law. Second, it reviews randomly selected medical files to make sure that TennCare’s managed-care organizations are actually implementing those policies in practice.
Finally, the district court examined TennCare’s compliance with every paragraph of the decree that the court had not already vacated. It found that TennCare was in substantial compliance with the decree and had therefore fulfilled the terms of the decree’s sunset clause. See Consent Decree ¶ 113, at 54.
Based on this extensive examination, the court found that, “compared with its performance in 1998, TennCare ha[d] dramatically improved the provision of medical services to its enrollees in every respect.” In fact, the court found that “no other state’s ... program surpasses that of Tennessee in any salient respect.” The court also concluded that TennCare is “fully compliant with the [relevant Medicaid] law and regulations.” It therefore vacated the decree in full and dismissed the case. This appeal followed.
II.
A.
[2] The plaintiffs first challenge the district court’s order granting in part *402 TennCare’s Rule 60(b) motion to vacate the decree. We review that decision for an abuse of discretion. See Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 613 (6th Cir.2011). The plaintiffs have the burden to prove that the court had no reasonable basis for granting the motion. See Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 740 (6th Cir.2012).
[3] [4] Under Rule 60(b)(5), a court may vacate a consent
7

decree if, among other things, “a significant change ... in law renders [its] continued enforcement detrimental.” Northridge Church, 647 F.3d at 613 (quotation marks omitted). A change in law satisfies that test when the parties “based their agreement on a misunderstanding” of the law. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 390, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); accord Doe v. Briley, 562 F.3d 777, 782–83 (6th Cir.2009). Here, the district court held that the parties based three clusters of paragraphs on a misunderstanding of the law. We consider each in turn.
1.
[5] The first cluster includes paragraphs 43, 58, 60(v)-(vi), 61(ii), and 71(ii) of the consent decree. Broadly stated, these paragraphs address the adequacy of TennCare’s provider network. Paragraph 43 requires that TennCare “ensure that [its managed-care organizations’] networks are adequate ... to properly screen children in conformity with the requirements of ... the Medicaid statute[.]” Paragraph 58 requires that all utilization-review and priorauthorization decisions “be made only by qualified personnel with education, training, or experience in child and adolescent health.” Paragraph 60(v) requires that TennCare’s network “include providers with cultural and linguistic competency ... as may be needed for the effective treatment of children from ethnic minorities[.]” Paragraph 60(vi) requires that TennCare’s managed-care organizations “have a sufficient array of services and specialists to meet the medical and behavioral health needs” of TennCare’s enrollees. Paragraph 61(ii) requires that TennCare’s “provider networks currently comply with the ‘Terms and Conditions for Access’ ” document issued by the Health Care Financing Administration (now the Centers for Medicare & Medicaid Services). And paragraph 71(ii) requires that TennCare “[p]rovide a comprehensive and appropriate scope of geographically accessible child and adolescent behavioral health services[.]”
The district court held that these network-adequacy paragraphs were all based on § 1396a(a)(30)(A) of the Medicaid Act, which likewise addresses network adequacy. Specifically, that subsection provides that TennCare must use procedures, including “utilization review,” to assure that its provider network is comparable in size to the private network in the geographic area. See 42 U.S.C. § 1396a(a)(30)(A). The court also held that the parties based these paragraphs on a misunderstanding of subsection 30(A)—namely, that it created a right enforceable under § 1983. See Consent Decree ¶ 15.

Westside Mothers II proved that assumption wrong, so the district court vacated these paragraphs.
[6] The plaintiffs now object to this holding on five grounds. First, they argue that the court’s decision violated the law-of-the-case doctrine. In support, they point to a 2001 opinion in which Judge John T. Nixon (who later recused himself from the case) held that TennCare had violated the consent decree. See John B. v. Menke, 176 F.Supp.2d 786, 802–06 (M.D.Tenn.2001). In that opinion, the plaintiffs say, the court concluded that the entire decree was based on § 1396a(a)(43) *403 of the Medicaid Act, which of course is enforceable pursuant to § 1983. They therefore contend that, under the law-of-thecase doctrine, the district court was required to find that subsection 43 was the statutory basis of the paragraphs at issue.
[7] The plaintiffs overread Judge Nixon’s opinion. The law-of-the-case doctrine only applies to issues the court actually decided. See United States v. Cunningham, 679 F.3d 355, 376–77 (6th Cir.2012). And Judge Nixon did not actually decide the statutory basis of the consent decree. True, Judge Nixon held that TennCare had to comply with subsection 43 in order to fulfill its obligations under the decree. But that is not the same as a holding that the entire decree—including the networkadequacy paragraphs at issue here—was based on subsection 43. Indeed, the plaintiffs have not pointed to any part of Judge Nixon’s opinion that even mentions the network-adequacy paragraphs, much less determines their statutory basis. So the law-of-the-case doctrine did not bind the district court here.
Second, the plaintiffs argue that the decree’s primary purpose was to remedy violations of subsection 43. They note that their complaint was “primarily based on” subsection 43 and that the decree identifies subsection 43 as its “overall basis.” Thus, the plaintiffs argue, the parties must have based the network-adequacy paragraphs on subsection 43. But the decree’s purpose does not determine the statutory basis of each individual paragraph. Indeed, if the plaintiffs were correct, we could not have ordered the district court to vacate a substantial portion of the decree the last time this case was before us—which of course we did. See John B., 626 F.3d at 363. So this argument too is meritless.
Third, the plaintiffs argue that none of the networkadequacy paragraphs explicitly mention subsection 30(A). That is true enough, but none of those paragraphs explicitly mention subsection 43 either. Moreover, a paragraph can be based on subsection 30(A) without mentioning it. For example, paragraph 61(ii) incorporates by reference a document titled “Terms and Conditions for
8

Access[.]” And that document repeatedly says that TennCare must provide “access [to its networks] that is equal to or greater than the currently existing practice in the fee-for-service system”—an implicit reference to subsection 30(A)’s requirement that TennCare have a provider network that is comparable in size to the private network in the geographic area. That the networkadequacy paragraphs do not mention subsection 30(A), therefore, ultimately does not matter here.
Fourth, the plaintiffs argue that TennCare needs adequate networks to comply with subsection 43’s screening and treatment requirements. Thus, they say, the networkadequacy paragraphs must be based on that subsection. But the plaintiffs overlook that TennCare also needs adequate networks to comply with subsection 30(A)’s geographic-comparability requirement. So this argument likewise goes nowhere.
Fifth, the plaintiffs argue that the language of the network-adequacy paragraphs shows that they are based on subsection 43, rather than subsection 30(A). For most of these paragraphs—namely, paragraphs 43, 60(v)-(vi), 61(ii), and 71(ii)—the plaintiffs’ argument is utterly conclusory: they merely quote the language of each paragraph, and then announce that it does not refer to subsection 30(A). Suffice it to say that the plaintiffs’ bare assertions as to these paragraphs are unconvincing.
*404 The plaintiffs develop this argument only for paragraph 58, which requires that “utilization review and prior authorization decisions be made only by qualified personnel[.]” Although paragraph 58 and subsection 30(A) both discuss “utilization review[,]” the plaintiffs argue that “there is virtually no relationship between the two [provisions].” In support, the plaintiffs contend that “[subsection] 30(A) mandates that [TennCare] employ utilization review ... [while] [p]aragraph 58 prohibits [TennCare] from using [it] ... inappropriately.” (Quotation marks omitted.) But the plaintiffs have tried to create a contradiction where none exists. There is nothing inconsistent about requiring that TennCare use utilization review, and then explaining that it must employ qualified personnel when it does so. Instead that makes perfect sense. This argument is meritless.
2.
[8] The district court also vacated paragraph 84 of the consent decree. In relevant part, that paragraph provides:
The Department of Children’s

Services shall ensure that the case planning and case review required under the relevant portions of the Adoption Assistance and Child Welfare Act[, 42 U.S.C. § 670 et seq.,] for TennCare children in DCS custody ... shall identify and provide for the treatment of the behavioral health and medical needs of these children in accordance with [the Act.]
The district court held that the parties based this paragraph on the Adoption Act. It also held that the parties based this paragraph on the belief that the Act creates rights enforceable under § 1983. See Consent Decree ¶ 15. But the Act does not do so, see John B., 626 F.3d at 363; and thus the district court vacated this paragraph.
The plaintiffs again disagree with the court’s statutorybasis determination. They argue that the parties based this paragraph on 42 U.S.C. § 1396a(a)(43), rather than the Adoption Act, because the paragraph enforces “only the parts of the [Adoption Act] that overlap with” subsection 43. But this argument proves only that the Adoption Act and subsection 43 both address children’s medical care; it does not prove which of those provisions the parties based paragraph 84 on. Moreover, the text of paragraph 84 shows that the parties based it on the Adoption Act. That paragraph says that the Department of Children’s Services must care for TennCare children “in accordance with” the Adoption Act; and it notably does not say that the Department must act in accordance with subsection 43 as well. The district court did not abuse its discretion on this point.
3.
[9] The third cluster includes paragraphs 78–83, all of which address TennCare’s coordination with other government agencies. The district court held that the parties based these paragraphs on a federal Medicaid regulation, 42 C.F.R. § 441.61(c). That regulation has two main requirements. First, it provides that TennCare “must make appropriate use of State health agencies, State vocational rehabilitation agencies, and Title V grantees.” Second, it says that TennCare “should make use of other public health, mental health, and educational programs and related programs ... to ensure an effective child health program.” The court further held that § 441.61(c) did not create rights enforceable under § 1983. It therefore
9

vacated these paragraphs.
The plaintiffs argue that the court erred when it held that § 441.61(c) is not enforceable under § 1983. To that end, the *405 plaintiffs contend that, “if a statute is privately enforceable, so too are its implementing regulations.” And because the district court held that § 441.61(c) implements a statutory provision that is privately enforceable—namely, 42 U.S.C. § 1396a(a)(43)(C)—the plaintiffs say that this regulation is enforceable as well.
[10] That a statutory provision is privately enforceable, however, does not necessarily mean that a regulation that implements the provision is privately enforceable as well. To the contrary, an implementing regulation is not privately enforceable—even if its controlling statute is— when it “imposes an obligation or prohibition that is not imposed generally by the controlling statute.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 906 (6th Cir.2004). Section 441.61(c) does precisely that: it requires that TennCare coordinate its services with other agencies, even though subsection 43(C) says nothing of the sort. Consequently, the district court did not abuse its discretion in vacating these paragraphs.
4.
[11] Finally, the plaintiffs argue that the district court should not have vacated any of the decree’s paragraphs because they all “further[ ] the objectives” of subsection 43. In support, the plaintiffs rely on Local No. 93, International Ass’n of Firefighters, AFL–CIO C.L.C. v. City of Cleveland, which says that a consent decree must “further the objectives of the law upon which the complaint was based.” 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). This argument confuses a necessary condition with a sufficient one. It is true that a decree must further the objectives of the federal law that formed the basis of the complaint. But that does not mean that a decree is enforceable simply because it does so; the decree must still be based on a provision that is privately enforceable. See John B., 626 F.3d at 362. And because the parties failed to base the paragraphs at issue here on a privately enforceable provision, the court was within its discretion to vacate them. See Briley, 562 F.3d at 782–83. Indeed, we expressly instructed the court to do so. See John B., 626 F.3d at 362–63. The plaintiffs’ reliance on Firefighters is unpersuasive.
In sum, the plaintiffs had the burden of proving that the district court abused its discretion when it vacated paragraphs 43, 58, 60(v)-(vi), 61(ii), 71(ii), and 78–84.

See Cleveland Firefighters for Fair Hiring Practices, 669 F.3d at 740. The plaintiffs have not met that burden. We therefore reject their challenge to the court’s order granting in part TennCare’s Rule 60(b) motion to vacate the decree.
B.
Next, the plaintiffs challenge the district court’s order granting TennCare’s motion to vacate the decree under the sunset clause. See Consent Decree ¶ 113, at 54. Notably absent from the plaintiffs’ challenge, however, is any effort to contest the district court’s factual findings regarding TennCare’s delivery of services to its enrollees. Those findings came after the court heard 18 days of testimony and considered hundreds of exhibits; and the findings include that TennCare reminds parents and guardians in virtually every way imaginable to obtain screens for their children free of charge; that TennCare is a national leader in implementing programs to ensure its compliance with federal law; that TennCare has dramatically improved its provision of services since 1998; and that no other state’s Medicaid program surpasses TennCare in any salient respect.
*406 What the plaintiffs argue, rather, is that the district court should have considered more evidence than it did during the evidentiary hearing, and that the court misinterpreted certain paragraphs of the decree. We consider these arguments in turn.
1.
[12] The plaintiffs argue that the district court improperly refused to consider TennCare’s past violations of the consent decree when it granted the motion to vacate. It is true, of course, that the district court told the parties that the scope of its 18–day evidentiary hearing was limited to whether TennCare was in “current, substantial compliance” with the decree. We review that limitation for an abuse of discretion. See Gonzales v. Galvin, 151 F.3d 526, 534–535 (6th Cir.1998). And that limitation was plainly within the court’s discretion. Present compliance, not past, was the ultimate issue before the court; and in deciding that issue the court was not required to conduct the equivalent of an archaeological dig. Moreover, the plaintiffs’ argument is incorrect even when considered on its own terms. The district court did consider the case’s long history—which is why the court took the trouble to become familiar with it. And the
10

court’s opinion expressly stated that TennCare had violated the decree in 2001 and that, as a result, TennCare now bore “the burden of proving ... that [it was] in substantial compliance with the [d]ecree.” See John B. v. Emkes, 852 F.Supp.2d 957, 961 (M.D.Tenn.2012).
The plaintiffs further contend that the court’s decision to limit the scope of the hearing prevented them from impeaching TennCare’s witnesses with evidence of past noncompliance with the decree. But the district court allowed the plaintiffs to do precisely that. For example, the court allowed the plaintiffs to cross-examine Dr. Wendy Long about TennCare’s problems tracking referrals—a problem that reached back to 2005. Thus, this argument simply mischaracterizes what happened in the district court.
The plaintiffs also contest several of the court’s evidentiary decisions, which we likewise review for an abuse of discretion. See United States v. Stepp, 680 F.3d 651, 660 (6th Cir.2012). First, the plaintiffs argue that the court wrongly excluded a group of 100 documents on the ground that they were “too old.” But again the plaintiffs mischaracterize the court’s decision. The court excluded those documents not because they were old, but because the plaintiffs tried to admit them en masse, at the end of the hearing, when TennCare’s witnesses could no longer respond to them. Second, the plaintiffs contend that the court excluded as “dated” the minutes from a 2008 meeting of the Tennessee Children’s Care Coordination Steering Panel. Yet the plaintiffs fail to mention that the court also based that decision on hearsay grounds: the plaintiffs offered the document for the truth of the matter asserted, and failed to identify an applicable hearsay exception. They have not done any better here, so the document was inadmissible in any event. Third, the plaintiffs object to the court’s exclusion of certain reports that court-appointed monitors wrote about TennCare in 2007. True, the court did exclude these reports as beyond the scope of the hearing; but the reports were already part of the record in the case, so they did not need to be admitted during the hearing for the court to consider them. The plaintiffs’ evidentiary arguments are meritless.
2.
The plaintiffs next challenge the merits of the district court’s order to vacate the *407 decree under the sunset clause. That clause provides, in relevant part, that the decree “shall expire” when TennCare reaches an “adjusted periodic screening percentage” of 80% and is in “current, substantial compliance” with the decree’s other

requirements. See Consent Decree ¶ 113, at 54. The district court found that TennCare had achieved both goals, so it vacated the decree. In doing so, the plaintiffs contend, the court misinterpreted the decree.
[13] [14] We review the district court’s interpretation of the consent decree de novo. See Sault Ste. Marie Tribe of Chippewa Indians v. Granholm, 475 F.3d 805, 810 (6th Cir.2007). For these purposes, we interpret the consent decree as a contract. See id. And under Tennessee law, which guides our interpretation of the decree here, our primary goal is to give effect to the parties’ intent as expressed in the decree itself. See DePasquale v. Chamberlain, 282 S.W.3d 47, 53 (Tenn.Ct.App.2008).
a.
[15] The plaintiffs first argue that the district court misinterpreted paragraph 39 of the decree, which describes TennCare’s outreach obligations. That paragraph provides that Tennessee “shall adopt any policies and procedures necessary to ensure that TennCare rules and guidelines ... require compliance with ... each specific outreach and informing requirement under federal law [.]” (Emphasis added.) The district court held that TennCare had in fact adopted such “policies and procedures,” and thus had complied with paragraph 39. See John B., 852 F.Supp.2d at 976.
But the plaintiffs contend that paragraph 39 requires more than the adoption of certain policies. Rather, they say, TennCare must show that its outreach efforts are actually “effective.” But that is not what the decree says. Paragraph 39 says that TennCare must adopt policies and procedures that themselves require compliance with federal outreach requirements. TennCare has done so; and that means it has complied with paragraph 39.
b.
[16] The plaintiffs also argue that the district court misinterpreted paragraphs 53 and 54, which describe TennCare’s diagnostic and treatment obligations. Paragraph 53 provides that
[TennCare] shall establish and maintain a process for reviewing the practices and procedures of [its managed-care organizations and the Department of Children’s
11

Services], and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another, more sophisticated level[.]
Paragraph 54 provides that “[TennCare] shall ensure that, within their respective spheres of responsibility, TennCare, [its managed-care organizations] and [the Department of Children’s Services] provide children all medically necessary ... services[.]” In sum, these two paragraphs require that TennCare provide to its enrollees all medically necessary diagnostic and treatment services.
According to the plaintiffs, the district court held that TennCare complied with these paragraphs because it “adopt[ed] policies that require [its managed-care organizations] to provide [the necessary] services”—what they refer to as a “have-a-policy” standard. But again the plaintiffs misrepresent the court’s holding. The court did not say that TennCare had complied with paragraph 53 simply because TennCare “had a policy.” Instead, the *408 court held that TennCare had actually reviewed its contractors’ practices and ordered the contractors to change them when necessary. See John B., 852 F.Supp.2d at 979. For example, the court found that Qsource— TennCare’s External Quality Review Organization— regularly reviews the policies and practices of the managed-care organizations. Qsource then works with TennCare’s Quality Oversight Unit “to identify opportunities for improvement and to develop a quality strategy[.]” Id. at 973.
Similarly, the court did not hold that TennCare had complied with paragraph 54 merely because it adopted certain policies and procedures. True, the court reviewed TennCare’s policies and found that its enrollees “[were] entitled to receive, free of charge, all medically necessary covered diagnosis and treatment services.” Id. at 970. But more to the point, the court examined how TennCare provided those services “[i]n practice[.]” See id. And the court found, for example, that “the vast majority of diagnosis and treatment services are provided to TennCare enrollees automatically, without any medicalnecessity review[.]” Id. at 970.
The court’s conclusion that TennCare complied with paragraphs 53 and 54, therefore, was based on its finding that TennCare actually provides to its enrollees the services that those paragraphs require TennCare to provide. And in making that finding, the court did not—as the plaintiffs assert here—“brush aside undisputed evidence” that TennCare had failed to comply with the

decree. Instead, the court considered the plaintiffs’ evidence and found it unpersuasive. Indeed, the court found that the plaintiffs’ own witnesses “largely confirmed that TennCare provides medically necessary diagnostic and treatment services.” Id. at 985. And the court found that the plaintiffs had not “identif[ied] any instance”—not a single one—“where needed services were not ultimately provided.” Id. at 985. The plaintiffs have not even argued, much less proved, that these findings were clearly erroneous. The district court did not err in any respect in concluding that TennCare had complied with paragraphs 53 and 54 of the decree.
c.
[17] The plaintiffs next argue that the district court misinterpreted paragraph 96, which provides that “[TennCare] shall establish ... an ongoing process for monitoring and reporting [its] compliance with the [decree’s] requirements[.]” The court held that TennCare had complied with this paragraph in two ways. First, TennCare used several third-party measurements to track its performance. See id. at 971–74. For example, TennCare required that its managed-care organizations obtain accreditation from the National Committee for Quality Assurance, which is a nonprofit organization dedicated to improving the quality of health care. Second, TennCare adopted several internal reporting methods, including the filing of semiannual compliance reports with the court and the plaintiffs. See id. at 974–75.
The plaintiffs contend that none of these monitoring processes “fully or adequately assess [TennCare’s] performance.” They therefore accuse the district court of “sidestepp[ing] the evidentiary record” and “effectively read [ing] out of the [d]ecree the requirement that [TennCare] specifically monitor its actual provision of [medical] services.” (The latter point is the supposed misinterpretation of the paragraph.) But these assertions again mischaracterize the court’s decision. The court did not sidestep the evidentiary record; instead it sifted through the record to make five pages’ worth of detailed findings *409 about TennCare’s monitoring processes. And the court did not read the monitoring requirement out of the decree. Instead it concluded—based upon factual findings that the plaintiffs do not venture to challenge here—that TennCare met that requirement. The plaintiffs’ argument that the court misinterpreted paragraph 96 is meritless.
12

d.
Finally, the plaintiffs argue that the district court misinterpreted paragraph 46. That paragraph describes a three-step process that TennCare uses to calculate the “adjusted periodic screening percentage” mentioned in the decree’s sunset clause. First, TennCare calculates a “screening ratio [,]” which is the number of “periodic screens” that TennCare provided in the past year, divided by “the number of ... screens that should have occurred” during that time. Second, TennCare multiplies the screening ratio by 100 to get a “periodic screening percentage.” Third, TennCare adjusts that screening percentage by conducting a “medical record review.” Only the first step of this process is at issue here.
In 2010, TennCare reported an adjusted periodic screening percentage of 91.3%, well above the 80% target in the sunset clause. TennCare therefore argued during the evidentiary hearing that it had satisfied the sunset clause’s requirement. The plaintiffs responded that TennCare had improperly calculated both the numerator and denominator of the screening ratio. The district court admitted expert testimony from both sides and held that TennCare had calculated the ratio correctly.
On appeal, the plaintiffs first object to TennCare’s method of counting the number of screens that it provided its enrollees in the past year (i.e., the screening ratio’s numerator). To determine that number, TennCare relies on a set of codes that doctors use to describe and bill for the services they provide. Doctors use several codes to bill TennCare for the screens they perform. Thus, every time that TennCare receives a bill using one of these screening codes, TennCare counts it toward the numerator.
The plaintiffs argue that this counting method inflates the numerator. They say a checkup should only count as a “periodic screen” if it was required by TennCare’s periodicity schedule, which states how often each child should receive a screen. Thus, the plaintiffs contend, the periodicity schedule should limit the number of screens that TennCare can count per child. For example, if a child received 10 screens in a year where the periodicity schedule required only seven, then TennCare should only count the seven screens towards the screening ratio.
The problem with this argument is that paragraph 46 expressly refutes it. That paragraph lists several billing codes that “will be the primary determinants of which [checkups] are counted as periodic screens.” And TennCare uses precisely those billing codes when counting the number of screens it provided in a particular year—which means that it calculates the screening ratio’s

numerator in precisely the manner that the decree says it should. Moreover, paragraph 46 says nothing about using the periodicity schedule to limit the number of screens that TennCare may count per child. Finally—and germane to the question of the parties’ intent—the plaintiffs do not explain how, as a practical matter, TennCare could even apply such a limit, given that the billing codes themselves say nothing about whether a screen was required by the periodicity schedule.
*410 That said, the plaintiffs try to bolster their argument in two ways. First, they contend that TennCare’s calculation method conflicts with the instructions for the CMS–416 form, which TennCare uses to report its screening ratio to the federal government. But those instructions do not apply to calculation of the numerator. Although paragraph 46 incorporates them for certain purposes, it does not do so when explaining how to count the number of screens that TennCare performed. Second, the plaintiffs point to a decision from the Northern District of Illinois, which held that a counting method similar to TennCare’s was “misleading” and “overstate[d] the actual level of ... services provided.” Memisovski ex rel. Memisovski v. Maram, No. 92 C 1982, 2004 WL 1878332, *28, *53 (N.D.Ill. Aug. 23, 2004). But that case is inapposite for the simple reason that it did not involve the decree that we construe here. The plaintiffs’ objections to TennCare’s calculation of the screening ratio’s numerator, therefore, are meritless.
The plaintiffs also object to TennCare’s method of counting the number of periodic screens that should have occurred during the past year (i.e., the screening ratio’s denominator). To determine that number, TennCare uses a formula again found in paragraph 46 of the decree. That formula incorporates TennCare’s periodicity schedule— the more screens the schedule requires, the larger the screening ratio’s denominator.
In 2010, TennCare used a periodicity schedule that required 30 total screens for outreach purposes. When calculating its screening ratio, however, TennCare used a schedule that required only 24 screens. The plaintiffs argue that TennCare’s use of the 24–screen schedule artificially decreased the number of screens that should have occurred in the past year, thereby increasing the screening ratio.
To determine which periodicity schedule TennCare should have used when calculating the screening ratio, we start with the text of the decree. Paragraph 46 begins by saying that TennCare must use “HCFA 416 mathematical methodology” to determine “the number of periodic screens that should have occurred” in the baseline year. (HCFA 416 mathematical methodology was a calculation
13

method promulgated by the Health Care Financing Administration. That method is now promulgated by the Centers for Medicare & Medicaid Services and is known as CMS–416 methodology.) Paragraph 46 then says that periodic screening percentages in later years “will be calculated using methodology identical to that used in calculation of the baseline periodic screening percentage.”
The parties disagree about the meaning of the words “methodology identical” as used in this paragraph. The plaintiffs contend that the methodology used to calculate the screening ratio in a particular year must be “identical” to the “HCFA 416 mathematical methodology” for that year. In contrast, TennCare argues that the words “methodology identical” require it to use a periodicity schedule “identical” to the one it used in the baseline year (i.e., October 1, 1995 through September 30, 1996).
The plaintiffs have the better reading of this paragraph. The periodicity schedule is merely an input for the screening-ratio methodology, not a part of the methodology itself. Thus, when TennCare changes its periodicity schedule, the denominator of its screening ratio should reflect that change. Moreover, TennCare has not consistently followed its own proposed interpretation of “methodology identical”: in the baseline year, TennCare used a 20–screen schedule to calculate its screening *411 ratio, but in 1999 it began using a 24– screen schedule. If paragraph 46 actually required TennCare to use the same periodicity schedule that it used in the baseline year, TennCare presumably would not have made that change.
Paragraph 46 therefore requires that TennCare follow the CMS–416 methodology each year. That methodology is explained in the instructions to the CMS–416 form. In relevant part, those instructions require that TennCare use its “most recent periodicity schedule” when it completes the form. The issue therefore becomes what the instructions mean by “most recent periodicity schedule[.]”
States use the CMS–416 form to comply with 42 U.S.C. § 1396a(a)(43)(D), which directs each state to “report[ ] to the Secretary [of Health and Human Services] ... information relating to early and periodic screening, diagnostic, and treatment services provided under the [state’s] plan [.]” Section 1396d(r), in turn, defines the phrase “early and periodic screening, diagnostic, and treatment services” to include screening services that are provided “at intervals which meet reasonable standards of medical ... practice, as determined by the State after consultation with recognized medical ... organizations involved in child health care[.]” 42 U.S.C. § 1396d(r)(1)(A)(i). Thus, when the CMS–416 instructions refer to the “most recent periodicity schedule,” they refer

to the schedule that the State adopted “after consultation with recognized medical ... organizations involved in child health care[,]” in compliance with § 1396d(r).
[18] Here, the district court found that TennCare had adopted the 30–screen schedule to comply with this part of § 1396d(r). See John B., 852 F.Supp.2d at 967; see also TennCare Rule 1200–13–13–04(b)(8) (adopting the “latest” periodicity schedule recommended by the American Academy of Pediatrics, which currently requires 30 total screens). Thus, when TennCare calculated its screening ratio, it should have used a 30– screen periodicity schedule rather than a 24–screen one. The court therefore misinterpreted the portion of paragraph 46 that prescribes the denominator of the screening ratio.
III.
And so the district court, in the course of making literally dozens of interpretive decisions with respect to a notoriously complex statute and decree, made a single technical mistake. We now consider whether that error was harmless. See Fed.R.Civ.P. 61. An error is harmless if it “do[es] not affect any party’s substantial rights.” Id.
TennCare’s primary argument in the district court was that it had satisfied the terms of the consent decree’s sunset clause. In the alternative, however, TennCare argued that its program had “complie[d] fully with the governing provisions of the Medicaid statute[,]” and that the district court should vacate the decree on that basis. In support, TennCare cited the Supreme Court’s decision in Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). There, the Court held, in determining whether to grant a Rule 60(b)(5) motion in institutional litigation, that the district court and court of appeals alike must determine whether “ongoing enforcement of the original order [is] supported by an ongoing violation of federal law [.]” Id. at 454, 129 S.Ct. 2579. Thus, we think it fair to construe TennCare’s alternative argument as one for relief under Rule 60(b)(5) on the ground that ongoing enforcement of the decree would not remedy an ongoing violation of federal law. Moreover, we can affirm on any basis supported by the record, see Taylor v. KeyCorp, 680 F.3d 609, 616 (6th Cir.2012); *412 so we consider whether the Supreme Court’s decision in Horne requires affirmance here.
[19] Under Rule 60(b)(5), a party can ask a court to vacate a consent decree “if a significant change ... in factual conditions ... renders [its] continued enforcement
14

detrimental.” Northridge Church, 647 F.3d at 613 (quotation marks omitted). This rule “serves a particularly important function in ... institutional reform litigation.” Horne, 557 U.S. at 447, 129 S.Ct. 2579 (quotation marks omitted). In such cases, we must take a “flexible approach” to these motions so that “responsibility for discharging the State’s obligations is returned promptly to the State and its officials when the circumstances warrant.” Id. at 450, 129 S.Ct. 2579 (quotation marks omitted).
[20] In applying this flexible approach, we must answer two questions: first, whether the state has achieved compliance with the federal-law provisions whose violation the decree sought to remedy; and second, whether the State would continue that compliance in the absence of continued judicial supervision. See id.; Bd. of Educ. of Oklahoma City Pub. Sch., Indep. Sch. Dist. No. 89, Oklahoma County, Okl. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). If the State has indeed implemented a “durable remedy[,]” then “continued enforcement of the [decree] is not only unnecessary, but improper.” Horne, 557 U.S. at 450, 129 S.Ct. 2579.
Here, the district court found that TennCare has achieved compliance with all of the provisions of federal law whose violation the decree sought to remedy. To review: TennCare “provid[es] or arrang[es] for the provision of ... screening services in all cases where they are requested” in compliance with 42 U.S.C. § 1396a(a)(43)(B). TennCare provides all four types of screens required by the Medicaid Act: physical, vision, hearing, and dental. See 42 U.S.C. § 1396d(r). TennCare has also adopted for outreaches purposes the periodicity schedules recommended by a committee of experts in each field. See, e.g., id. § 1396d(r)(1)(A)(i). And TennCare provides these screens free of charge to its enrollees whenever they request them.
TennCare also “arrang[es] for ... corrective treatment the need for which is disclosed by such child health screening services” in compliance with section 1396a(a)(43)(C). TennCare enrollees are entitled to receive all medically necessary diagnostic and treatment services. When these services are ordered by a licensed provider, TennCare provides most of them without engaging in a medicalnecessity review. When TennCare does perform that review and denies a request, it has an exhaustive appeals process available if a family wishes to take advantage of it. This process works well: during the evidentiary hearing, the plaintiffs failed to “identify any instance where needed services were not ultimately provided.” See John B., 852 F.Supp.2d at 985.

In addition, TennCare “inform[s] all persons in [Tennessee] who are under the age of 21 and who have been determined to be eligible for [Medicaid], of the availability of early and periodic screening, diagnostic, and treatment services” in compliance with section 1396a(a)(43)(A). TennCare contacts all newly enrolled families at least five times to tell them about the program and to encourage them to schedule a screening appointment. TennCare reminds each family about these services four times a year in quarterly newsletters and once per year in a postcard. If a child goes a year without a screen, TennCare sends three reminder notices and sends a community-outreach worker to the child’s *413 home to urge the family to schedule an appointment. On this point the law does not require anything further: nine reminders to bring a child in for a screen are enough.
In summary, the court found that, “compared with its performance in 1998, TennCare ha[d] dramatically improved the provision of medical services to its enrollees in every respect”; that “no other state’s ... program surpasses that of Tennessee in any salient respect”; and that TennCare is “fully compliant with the [relevant Medicaid] law and regulations.”
The court also found that TennCare will continue to comply with federal law in the absence of judicial supervision. During the 18–day evidentiary hearing, TennCare’s director testified that TennCare will continue to use “independent, nationally recognized third-party monitoring and oversight tools ... to ensure that children continue to receive the services to which they are entitled under federal law.” John B., 852 F.Supp.2d at 975. The district court found this testimony credible because TennCare used those same monitoring tools for adults, even though federal law does not require it to do so. See id. The court also found credible the director’s testimony that TennCare has no plans to cut services to its enrollees. See id. at 970.
The court also rejected the plaintiffs’ arguments that TennCare would stop complying with federal law if the decree were vacated. The plaintiffs had argued, for example, that TennCare might eliminate the Quality Services Review process, which it used to comply with paragraph 88 of the decree. The court acknowledged that theoretical possibility, but pointed out that “[TennCare’s] obligation, going forward, is not to remain in compliance with each precise term of the [d]ecree[.]” Id. at 983. Rather, the court said, TennCare had to “remain in compliance with federal law[.]” Id. And other than “speculation as to what the future holds[,]” the court saw no reason to believe that TennCare would fail to remain in compliance. See id. Neither do we. The record shows, instead, that TennCare has implemented a durable remedy
15

for its past violations of the Medicaid Act.
In Horne, the Supreme Court held that, in determining whether to terminate a consent decree, the courts must go beyond “an inquiry into whether the original order [i.e., the decree] ha[s] been satisfied.” 557 U.S. at 454, 129 S.Ct. 2579. Instead, the Supreme Court said, a “Court of Appeals need[s] to ascertain whether ongoing enforcement of the original order [is] supported by an ongoing violation of federal law[.]” Id. Here, the district court’s findings make clear that TennCare has implemented durable remedies to comply with the provisions of federal law that the decree was intended to enforce. Upon this record, therefore, “continued enforcement of the [decree] is not only unnecessary, but improper.” Horne, 557 U.S. at 450, 129 S.Ct. 2579.
TennCare’s mistake with respect to the calculation of the denominator for its screening ratio does not change this result. That mistake at most amounts to a technical violation of 42 U.S.C. § 1396a(a)(43)(D); and the plaintiffs themselves argued in the district court that none of the consent decree’s provisions were based on subsection 43(D), and indeed that subsection 43(D) is not enforceable under § 1983 in any event. See John B., 852 F.Supp.2d at 947. Thus, TennCare’s violation of subsection 43(D), to the extent there is one, does not provide us with any lawful basis to continue enforcement of the decree. Instead, given the district court’s undisputed findings with respect to the sincerity of TennCare’s directors, we are confident that TennCare *414 will promptly remedy any technical violation of subsection 43(D) on its own.

Finally, our decision in Gonzales v. Galvin, 151 F.3d 526 (6th Cir.1998) is not contrary to our decision here. For two reasons: first, to the extent of any conflict between the two cases, Horne trumps Gonzales; and second, Gonzales concerned termination of a consent decree sua sponte, rather than by motion.
The district court’s error thus did not affect the substantial rights of the parties, and was harmless.
* * *
The district court’s handling of this case after our remand last year was exemplary. The court conducted an exhaustive evidentiary hearing, reviewed 345 pages of proposed findings of fact and conclusions of law from the parties, and familiarized itself with thousands of pages of evidence already in the record. And on the basis of all of that evidence, the court found, in a thorough and carefully reasoned opinion, that TennCare had vastly improved its delivery of services to enrollees, and indeed become a national leader in its compliance with the Medicaid statute.
The court’s conclusions were sound. Its judgment is affirmed.
All Citations
710 F.3d 394

16

 
 517 Fed.Appx. 409 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
JOHN B., et al., Plaintiffs–Appellants, v.
Mark EMKES, Commissioner, Tennessee Department of Finance and Administration, et al.,
Defendant–Appellee.
No. 12–5414. |
March 13, 2013.
Synopsis Background: In action arising from a dispute over Tennessee’s Medicaid program, known as TennCare, in which TennCare was sanctioned for failing to comply with its discovery orders, plaintiffs appealed from order of the United States District Court for the Middle District of Tennessee, which, following reassignment on remand, vacated the sanctions order.
Holdings: The Court of Appeals, Kethledge, Circuit Judge, held that:
[1] District Court did not apply wrong legal standard when it vacated the sanctions order;
[2] District Court’s order was not too conclusory to allow for meaningful appellate review; and
[3] awarding plaintiffs attorney fees based on TennCare’s failure to cooperate in discovery would be unjust.
Affirmed.
West Headnotes (3)

[1] Federal Civil Procedure Failure to respond;  sanctions
District Court did not apply wrong legal standard, in action arising from a dispute over Tennessee’s Medicaid program, when it vacated discovery sanctions order without identifying an intervening change of controlling law, new evidence, or a need to correct a clear error or prevent injustice; rather, District Court had discretion to determine if the prior ruling should have been reconsidered.
1 Cases that cite this headnote
[2] Federal Civil Procedure Failure to respond;  sanctions
District Court’s order vacating earlier sanctions order in action arising from a dispute over Tennessee’s Medicaid program was not too conclusory to allow for meaningful appellate review, where, in its order, the District Court made clear that it vacated the sanctions order because it did not agree that TennCare had violated judge’s discovery orders.
Cases that cite this headnote
[3] Federal Civil Procedure Failure to respond;  sanctions
In action arising from a dispute over Tennessee’s Medicaid program, known as TennCare, awarding plaintiffs attorney fees based on TennCare’s failure to cooperate in discovery would be unjust, where sanctions order against TennCare was unjustified and was vacated on remand. Fed.Rules Civ.Proc.Rule 37(a)(5)(A), (b)(2)(C), 28 U.S.C.A.
Cases that cite this headnote
1

*410 On Appeal from the United States District Court for the Middle District of Tennessee.
Before: ROGERS, COOK, and KETHLEDGE, Circuit Judges.
Opinion
KETHLEDGE, Circuit Judge.
**1 This case arises from a dispute over Tennessee’s Medicaid program, known as TennCare. During that dispute, the district court sanctioned TennCare under Fed.R.Civ.P. 37 for failing to comply with its discovery orders. We later reassigned the case to a new district-court judge. On remand, the district court found the sanctions order unjustified, and vacated it. The plaintiffs’ appeal that decision. We affirm.
In 1998, the plaintiffs filed a class-action suit alleging that TennCare had violated the Medicaid Act. The parties promptly entered into a consent decree. Eight years later, District Court Judge William J. Haynes, Jr. ordered discovery to determine whether TennCare was in compliance with the decree. During that process, the plaintiffs filed two motions to compel, which the district court granted. The plaintiffs then filed two motions for sanctions under Fed.R.Civ.P. 37, which the court granted as well. Finally, the plaintiffs applied for attorney’s fees that resulted from the motion to compel, and TennCare filed a response in opposition. The court did not rule on the plaintiffs’ application.
Around the same time, TennCare filed a motion to vacate the consent decree. The district court denied that motion. On appeal, TennCare asked this court to reassign the case to a new district-court judge. We granted that request, finding that the court had created a situation that “combine[d] serious management failures, fundamental misunderstandings that potentially prejudice [d] defendants, and a developing adversarial relationship between the judge and the defendants.” John B. v. Goetz, 626 F.3d 356, 365 (6th Cir.2010). The case was then reassigned to Judge Thomas A. Wiseman, Jr.
On remand, the district court addressed the plaintiffs’ unresolved application for attorney’s fees. The court first construed TennCare’s response in opposition to that application as a motion to reconsider the sanctions order. The court then said that it had reviewed the record and decided that the sanctions order was unjustified. See Mem. and Order at 4. Thus, the court vacated the order.

We review this decision for an abuse of discretion. See United States v. Cunningham, 679 F.3d 355, 376–77 (6th Cir.2012).
[1] The plaintiffs make three arguments on appeal. First, the plaintiffs argue that the district court applied the wrong legal standard when it vacated the sanctions order without identifying “(1) an intervening change of controlling law; (2) new evidence ...; or (3) a need to correct a clear error or prevent injustice.” But we have repeatedly refused to put these kinds of limitations on the district court’s discretion. See, e.g., United States v. Todd, 920 F.2d 399, 403 (6th Cir.1990). To the contrary, we have said that “[i]t is within the sole discretion of a court to determine if a prior ruling should be reconsidered.” Id. Here, the court did not apply the wrong legal standard.
[2] Second, the plaintiffs argue that the district court’s order was too conclusory to allow for meaningful appellate review. A court’s order is too conclusory only if it does not “give us a clear understanding of the analytical process by which *411 ultimate findings were reached and to assure us that the trial court took care in ascertaining the facts.” Gonzales v. Galvin, 151 F.3d 526, 532 (6th Cir.1998).
**2 We understand perfectly well the analytical process by which the court reached its decision here. In its order, the court found that the sanctions order was based on Judge Haynes’s belief that TennCare had not cooperated with his discovery orders. Mem. and Order at 3. But the court recognized that “the record lack[ed] evidence that defendants [had] intentionally destroyed relevant [information] in the past, and nothing in the record indicate[d] that defendants [were] unwilling, or [would] refuse, to preserve and produce all relevant [information] in the future.” Id. (quoting John B. v. Goetz, 531 F.3d 448, 460 (6th Cir.2008)). Moreover, the court recognized that the very reason we ordered the case reassigned was that “[t]he district court’s skewed view of the actual state of the record with regard to defendants’ noncompliance with the consent decree [had] create[d] an appearance that its judgment could be flawed with respect to defendants’ compliance with discovery.” Id. at 1–2 (quoting John B., 626 F.3d at 364). Thus the court made its reasoning clear: the court vacated the sanctions order because it did not agree that TennCare had violated Judge Haynes’s discovery orders. The plaintiffs’ second argument is meritless.
[3] Finally, the plaintiffs argue that the district court erred when it denied their application for attorney’s fees because both Rule 37(a)(5)(A) and Rule 37(b)(2)(C) make the award of those fees mandatory. Both rules provide, however, that the court should not order the
2

payment of attorney’s fees if doing so would be “unjust.” See Fed.R.Civ.P. 37(a)(5)(A), 37(b)(2)(C). Here, the district court vacated the sanctions order precisely because that order was “unjustified”; and that finding was patently correct. So this argument too is meritless.
The district court’s judgment is affirmed.

All Citations 517 Fed.Appx. 409, 2013 WL 979211

3

 
 CASE−CLOSED,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:98−cv−00168

B., et al v. Emkes, et al Assigned to: Senior Judge Thomas Wiseman Demand: $0 Case in other court: 02−05125
02−05200 02−05308 6CCA, 12−05307 Cause: 42:1396 Medicaid Plaintiff
John B. by their next friend, L.A.

Date Filed: 02/25/1998 Date Terminated: 02/14/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Barry Leigh Weissman Sonnenschein, Nath &Rosenthal 601 S Figueroa Street Los Angeles, CA 90017−5704 Email: bweissman@sonnenschein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Gordon Bonnyman , Jr. Tennessee Justice Center, Inc. 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: gbonnyman@tnjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Francis Choy Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 Email: jchoy@kirkland.com TERMINATED: 05/26/2011 LEAD ATTORNEY
Katherine Evans Sonnenschein, Nath &Rosenthal 525 Market Street 26th Floor San Francisco, CA 94105−2708 Email: kevans@sonnenschein.com TERMINATED: 06/07/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leanna Marie Anderson Sonnenschein, Nath &Rosenthal 601 S Figueroa Street Los Angeles, CA 90017−5704 (213) 623−9300 Fax: (213) 623−9924 Email: landerson@sonnenschein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 1 of 170

Mark P. Johnson Sonnenschein, Nath &Rosenthal LLP 4520 Main Street Suite 1100 Kansas City, MO 64111 Email: mjohnson@sonnenschein.com TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary B. Anderson Sonnenschein, Nath &Rosenthal (Chicago) Sears Tower 233 S Wacker Drive Suite 8000 Chicago, IL 60606 Email: mbanderson@sonnenschein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele M. Johnson Tennessee Justice Center, Inc. 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: mjohnson@tnjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Joseph Sonnenschein, Nath &Rosenthal (Chicago) Sears Tower 233 S Wacker Drive Suite 8000 Chicago, IL 60606 (312) 876−8000 Email: rjoseph@sonnenschein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Reznik Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: vreznik@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert Howard Kass Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: akass@kirkland.com TERMINATED: 07/01/2009
Andrew Dunlap Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4879 Email: andrewdunlap@quinnemanuel.com ATTORNEY TO BE NOTICED
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 2 of 170

Christina M. Yerian Public Defender's Office Metropolitan Nashville and Davidson County Parkway Towers Building 404 James Robertson Parkway Suite 2022 Nashville, TN 37219 (615) 862−5730 Fax: (615) 862−5736 TERMINATED: 08/03/2009

Christopher E. Coleman Tennessee Justice Center 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: ccoleman@tnjustice.org ATTORNEY TO BE NOTICED

David Arthur Kozlowski Legal Aid Society of Middle TN and the Cumberlands P O Box 1256 104 W Seventh Street Columbia, TN 38402 (931) 381−5533 Email: dkozlowski@lglaid.org TERMINATED: 01/07/2002

Elizabeth Banston Hutto Tennessee Justice Center 301 Charlotte Avenue Nashville, TN 37201 (843) 571−7238 Fax: (615) 255−0354 Email: ehutto@tnjustice.org TERMINATED: 03/02/2012

Everette L. Doffermyre Doffermyre, Shields, Canfield, Knowles &Devine The Peachtree 1355 Peachtree Street, NE Suite 1600 Atlanta, GA 30309−3269 (404) 881−8900 Email: edoffermyre@dsckd.com TERMINATED: 02/21/2011

Gregory Todd Heyman Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 TERMINATED: 01/11/2010

Case: 3:98-cv-168

Jeffrey S. Goldman Sonnenschein, Nath &Rosenthal (Chicago) Sears Tower 233 S Wacker Drive Suite 8000 Chicago, IL 60606 (312) 876−8955 Email: jgoldman@sonnenschein.com
As of: 06/13/2013 04:14 PM CDT 3 of 170

TERMINATED: 02/22/2011

Junaid Khalil Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: jkhalil@kirkland.com TERMINATED: 02/22/2011

Katherine L. McDaniel Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: katherine.mcdaniel@kirkland.com ATTORNEY TO BE NOTICED

Kimberly Jean Johnson Doffermyre, Shields, Canfield, Knowles &Devine The Peachtree 1355 Peachtree Street, NE Suite 1600 Atlanta, GA 30309−3269 (404) 881−8900 Email: kjohnson@dsckd.com TERMINATED: 02/21/2011

Lenny Lee Croce Tennessee Justice Center, Inc. 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: lcroce@tnjustice.org TERMINATED: 01/25/2000

Lisa J. D'Souza Public Defender's Office Metropolitan Nashville and Davidson County Parkway Towers Building 404 James Robertson Parkway Suite 2022 Nashville, TN 37219 (615) 862−5730 Fax: (615) 862−5736 Email: lisad'souza@jis.nashville.org TERMINATED: 10/15/2007

Marjorie A. Bristol The Bristol Firm, PLLC 3203 Brick Church Pike Nashville, TN 37207 (615) 228−6977 Fax: (615) 228−6976 Email: marjorie@bristolfirm.com TERMINATED: 08/13/2007

Case: 3:98-cv-168

Michael H. Reed Kirkland &Ellis Citigroup Center 601 Lexington Avenue New York, NY 10022−4611 (212) 446−6473
As of: 06/13/2013 04:14 PM CDT 4 of 170

Email: michael.reed@kirkland.com ATTORNEY TO BE NOTICED

Patricia C. Gunn Tennessee Justice Center 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: pgunn@tnjustice.org TERMINATED: 02/22/2011

Ralph I. Knowles , Jr. Doffermyre, Shields, Canfield, Knowles &Devine The Peachtree 1355 Peachtree Street, NE Suite 1600 Atlanta, GA 30309−3269 (404) 881−8900 Email: rknowles@dsckd.com TERMINATED: 02/21/2011

Ronald Cantrell Jones Email: r.cantrell.jones@snrdenton.com ATTORNEY TO BE NOTICED

Russell James Overby Tennessee Justice Center, Inc. 301 Charlotte Avenue Nashville, TN 37201 (615) 255−0331 Email: roverby@las.org TERMINATED: 01/05/2006

Sarah Kao−Yen Tsou Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 TERMINATED: 05/26/2011 PRO HAC VICE

Shawn L. Caster Metro Public Defender's Office 404 James Robertson Parkway Suite 2022 Nashville, TN 37219 (615) 862−7288 Email: shawncaster@jis.nashville.org TERMINATED: 11/21/2007

Shira Judith Schlaff Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: sschlaff@kirkland.com TERMINATED: 11/20/2007

Case: 3:98-cv-168

Tamara Lynn Seltzer 1101 15th Street, NW Suite 1212 Washington, DC 20005−5002 (202) 223−0409 ext16 Email: tammy@bazelon.org TERMINATED: 08/03/2006
As of: 06/13/2013 04:14 PM CDT 5 of 170

Tony L. Richardson Email: tony.l.richardson@snrdenton.com ATTORNEY TO BE NOTICED

Vanessa C. Singh Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 TERMINATED: 02/22/2011 PRO HAC VICE

William S. W. Chang Kirkland &Ellis (NY) 601 Lexington Avenue New York, NY 10022−4611 (212) 446−4800 Email: wswchang@gmail.com TERMINATED: 02/22/2011

Plaintiff
Carrie G. by their next friend, L.A.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 6 of 170

TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 7 of 170

Shawn L. Caster (See above for address) TERMINATED: 11/21/2007

Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007

Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Joshua M. by their next friend, L.A. TERMINATED: 04/20/2011

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 8 of 170

(See above for address) TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 9 of 170

Plaintiff
Meagan A. by their next friend, L.A.

TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
William S. W. Chang (See above for address) TERMINATED: 02/22/2011
represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY
Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Reznik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert Howard Kass (See above for address) TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 10 of 170

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 11 of 170

(See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Erica A. by their next friend, L.A.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 12 of 170

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) TERMINATED: 04/08/2013
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 13 of 170

Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Dustin P. by his next friend, Linda C.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 14 of 170

TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007 Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 15 of 170

Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Bayli S. by her next friend, C.W. TERMINATED: 04/20/2011

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 16 of 170

(See above for address) TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
William S. W. Chang (See above for address) Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 17 of 170

Plaintiff
James D. by his next friend, Susan H.

TERMINATED: 02/22/2011
represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY
Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Reznik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert Howard Kass (See above for address) TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 18 of 170

Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
William S. W. Chang Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 19 of 170

(See above for address) TERMINATED: 02/22/2011

Plaintiff
Elsie H. by new hext friend, Stacy Miller

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002

Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 20 of 170

Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 21 of 170

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Julian C. by his next friend, Shawn C.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002

Elizabeth Banston Hutto (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 22 of 170

TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 23 of 170

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Troy D. by his next friend, T.W.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002

Elizabeth Banston Hutto Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 24 of 170

(See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Tony L. Richardson (See above for address) Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 25 of 170

Plaintiff
Ray M. by his next friend, P.D.

ATTORNEY TO BE NOTICED
William S. W. Chang (See above for address) TERMINATED: 02/22/2011
represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY
Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Reznik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert Howard Kass (See above for address) TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 26 of 170

Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Tony L. Richardson Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 27 of 170

(See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Roscoe W. by his next friend, B.W.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 28 of 170

Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 29 of 170

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
William B. by his next friend, K.B.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 30 of 170

TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006 Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 31 of 170

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Jacob R. by his next friend, Kim R.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

David Arthur Kozlowski Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 32 of 170

(See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer (See above for address) Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 33 of 170

Plaintiff
Justin S. by his next friend, Diane P.

TERMINATED: 08/03/2006
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
William S. W. Chang (See above for address) TERMINATED: 02/22/2011
represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY
Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Reznik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert Howard Kass (See above for address) TERMINATED: 07/01/2009
Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED
Christina M. Yerian (See above for address) TERMINATED: 08/03/2009

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 34 of 170

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Tamara Lynn Seltzer Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 35 of 170

(See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Estel W. by his next friend, E.D.

represented by Christopher E. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Gordon Bonnyman , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Francis Choy (See above for address) TERMINATED: 05/26/2011 LEAD ATTORNEY

Mark P. Johnson (See above for address) TERMINATED: 06/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele M. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Thomas Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Albert Howard Kass (See above for address) TERMINATED: 07/01/2009

Andrew Dunlap (See above for address) ATTORNEY TO BE NOTICED

Christina M. Yerian (See above for address) TERMINATED: 08/03/2009
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 36 of 170

David Arthur Kozlowski (See above for address) TERMINATED: 01/07/2002
Elizabeth Banston Hutto (See above for address) TERMINATED: 03/02/2012
Everette L. Doffermyre (See above for address) TERMINATED: 02/21/2011
Gregory Todd Heyman (See above for address) TERMINATED: 01/11/2010
Jeffrey S. Goldman (See above for address) TERMINATED: 02/22/2011
Junaid Khalil (See above for address) TERMINATED: 02/22/2011
Katherine L. McDaniel (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jean Johnson (See above for address) TERMINATED: 02/21/2011
Lenny Lee Croce (See above for address) TERMINATED: 01/25/2000
Lisa J. D'Souza (See above for address) TERMINATED: 10/15/2007
Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Patricia C. Gunn (See above for address) TERMINATED: 02/22/2011
Ralph I. Knowles , Jr. (See above for address) TERMINATED: 02/21/2011
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Shawn L. Caster (See above for address) TERMINATED: 11/21/2007
Shira Judith Schlaff (See above for address) TERMINATED: 11/20/2007
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 37 of 170

Tamara Lynn Seltzer (See above for address) TERMINATED: 08/03/2006

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

William S. W. Chang (See above for address) TERMINATED: 02/22/2011

Plaintiff
Jasmine A. by her next friend, J.A.

represented by Michael H. Reed (See above for address) TERMINATED: 04/08/2013

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Zachary B. by his own motion

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bonnie B. by her next friend, J.B.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Binta B. by her next friend, S.A.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address)

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 38 of 170

ATTORNEY TO BE NOTICED

Plaintiff
Jacob F. by his next friend, C.F.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Catherine G. by their next friend, L.G.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Branson G. by their next friend, L.G.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lakale J. by his next friend, S.K.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Aiden L. by their next friend S.L.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 39 of 170

Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Nakia L. by their next friend, S.L.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Princeton M. by his next friend, P.M.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ladontay P. by his next friend, J.P.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jackie R. by their next friend, L.R.
Plaintiff Savannah R. by their next friend, L.R.

represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 40 of 170

Plaintiff Sarai R. by their next friend, T.R.
Plaintiff Amber R. by their next friend, T.R.
Plaintiff Albreona T. by her next friend, D.E.
Plaintiff Gunnar U. by his next friend, M.U.

Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael H. Reed (See above for address) ATTORNEY TO BE NOTICED
Ronald Cantrell Jones (See above for address) ATTORNEY TO BE NOTICED
Tony L. Richardson (See above for address) ATTORNEY TO BE NOTICED

V. Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 41 of 170

Defendant
Mark Emkes Commissioner, Tennessee Department of Finance and Administration also known as Nancy Menke

represented by Brian Stuart Koukoutchos Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: bkoukoutchos@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn E. Reed Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 532−9632 Fax: (615) 532−1120 Email: carolyn.reed@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles A. Miller Covington &Burling 1201 Pennsylvania Avenue, NW Washington, DC 20004−2401 (202) 662−6000 Email: cmiller@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Minkoff 509 Almonte Court Nashville, TN 37215 (615) 665−4358 Email: eminkoff@vanguardhealth.com TERMINATED: 09/17/2002 LEAD ATTORNEY

Linda A. Ross Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: Linda.Ross@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Weitzner Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: mweitzner@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald G. Harris Neal &Harwell 150 Fourth Avenue, N 2000 First Union Tower Nashville, TN 37219−2498 (615) 244−1713 Email: rharris@nealharwell.com
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 42 of 170

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aubrey B. Harwell , Jr. Neal &Harwell 150 Fourth Avenue, N 2000 First Union Tower Nashville, TN 37219−2498 (615) 244−1713 Fax: (615) 726−0573 Email: aharwell@nealharwell.com ATTORNEY TO BE NOTICED
Charles J. Cooper Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Email: ccooper@cooperkirk.com ATTORNEY TO BE NOTICED
Dean John Sauer Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: djohnsauer@yahoo.com TERMINATED: 02/16/2012
Derek L. Shaffer Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Email: derekshaffer@quinnemanuel.com ATTORNEY TO BE NOTICED
Hamish P.M. Hume Cooper &Kirk 1500 K Street Suite 200 Washington, DC 20005 (202) 220−9600 TERMINATED: 03/03/2006
Janet M. Kleinfelter Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202−0207 (615) 741−3491 Email: janet.kleinfelter@ag.tn.gov ATTORNEY TO BE NOTICED
Katherine Anne Brown Harris, Brown &Associates, PLLC 2211 Crestmoor Road Suite 201 P O Box 158005 Nashville, TN 37215 (615) 783−0111 Fax: (888) 609−7232 Email: kbrown@harrisbrownlaw.com TERMINATED: 01/25/2002
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 43 of 170

Kathryn A. Stephenson Trauger &Tuke The Southern Turf Building 222 Fourth Avenue, N Nashville, TN 37219 (615) 256−8585 Email: kstephenson@tntlaw.net TERMINATED: 07/31/2002
Kathryn L. Wheelbarger Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 TERMINATED: 03/03/2006
Leesa A. Hinson unknown address TERMINATED: 07/31/2002
Michael W. Kirk Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Email: mkirk@cooperkirk.com PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas G. Aemisegger , Jr. unknown address (615) 741−3491 TERMINATED: 01/17/2006
Nicole J. Moss Cooper &Kirk 1523 New Hampshire Avenue, NW Washington, DC 20036 (202) 220−9600 Fax: (202) 220−9601 Email: nmoss@cooperkirk.com ATTORNEY TO BE NOTICED
Paul W. Ambrosius Trauger &Tuke The Southern Turf Building 222 Fourth Avenue, N Nashville, TN 37219 (615) 256−8585 Email: pambrosius@tntlaw.net TERMINATED: 07/31/2002
Paul C. Ney , Jr. Waddey &Patterson Roundabout Plaza 1600 Division Street Suite 500 Nashville, TN 37203 (615) 242−2400 Email: pcn@iplawgroup.com TERMINATED: 07/31/2002
Philip D. Irwin Neal &Harwell 150 Fourth Avenue, N
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 44 of 170

2000 First Union Tower Nashville, TN 37219−2498 (615) 244−1713 Email: pirwin@nealharwell.com ATTORNEY TO BE NOTICED

Defendant
Theresa Clarke Assistant Commissioner, Bureau of TennCare

represented by Brian Stuart Koukoutchos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn E. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles A. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Minkoff (See above for address) TERMINATED: 09/17/2002 LEAD ATTORNEY

Linda A. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ronald G. Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aubrey B. Harwell , Jr. (See above for address) ATTORNEY TO BE NOTICED

Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED

Dean John Sauer (See above for address) TERMINATED: 02/16/2012

Derek L. Shaffer (See above for address) ATTORNEY TO BE NOTICED

Hamish P.M. Hume (See above for address) TERMINATED: 03/03/2006

Janet M. Kleinfelter (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 45 of 170

Defendant
George W. Hattaway Commissioner, Tennessee Department of Children Services

ATTORNEY TO BE NOTICED
Katherine Anne Brown (See above for address) TERMINATED: 01/25/2002
Kathryn A. Stephenson (See above for address) TERMINATED: 07/31/2002
Kathryn L. Wheelbarger (See above for address) TERMINATED: 03/03/2006
Leesa A. Hinson (See above for address) TERMINATED: 07/31/2002
Michael W. Kirk (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas G. Aemisegger , Jr. (See above for address) TERMINATED: 07/31/2002
Nicole J. Moss (See above for address) ATTORNEY TO BE NOTICED
Paul W. Ambrosius (See above for address) TERMINATED: 07/31/2002
Paul C. Ney , Jr. (See above for address) TERMINATED: 07/31/2002
Philip D. Irwin (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Stuart Koukoutchos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn E. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles A. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. Minkoff (See above for address) TERMINATED: 09/17/2002 LEAD ATTORNEY

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 46 of 170

Linda A. Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Weitzner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald G. Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aubrey B. Harwell , Jr. (See above for address) ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED
Dean John Sauer (See above for address) TERMINATED: 02/16/2012
Derek L. Shaffer (See above for address) ATTORNEY TO BE NOTICED
Hamish P.M. Hume (See above for address) TERMINATED: 03/03/2006
Janet M. Kleinfelter (See above for address) ATTORNEY TO BE NOTICED
Katherine Anne Brown (See above for address) TERMINATED: 01/25/2002
Kathryn A. Stephenson (See above for address) TERMINATED: 07/31/2002
Kathryn L. Wheelbarger (See above for address) TERMINATED: 03/03/2006
Leesa A. Hinson (See above for address) TERMINATED: 07/31/2002
Michael W. Kirk (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas G. Aemisegger , Jr. (See above for address) TERMINATED: 01/17/2006
Nicole J. Moss Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 47 of 170

(See above for address) ATTORNEY TO BE NOTICED
Paul W. Ambrosius (See above for address) TERMINATED: 07/31/2002
Paul C. Ney , Jr. (See above for address) TERMINATED: 07/31/2002
Philip D. Irwin (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Cooper &Kirk

represented by Michael W. Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
Nashville CARES TERMINATED: 11/23/2004

represented by George Edward Barrett Barrett Johnston, LLC 217 Second Avenue, N Nashville, TN 37201 (615) 244−2202 Fax: (615) 252−3798 Email: gbarrett@barrettjohnston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Mark Levine TERMINATED: 11/23/2004

represented by George Edward Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Richard A. Carter M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE #601

represented by Richard A. Carter Strategic Preventive Medicine 1242 Temple Ridge Drive Nashville, TN 37221−4329 (615) 662−3272 Fax: 615−662−3272 Email: stratprevmed@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party

Leilani S. Boulware Meharry Medical College, Monitor TERMINATED: 03/01/2011

represented by Leilani Boulware Meharry Medical College 1005 DB Todd Boulevard

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 48 of 170

Nashville, TN 37208 (615) 327−6904 Fax: (615) 327−6540 TERMINATED: 03/01/2011 LEAD ATTORNEY

Interested Party
Alex Hurder Vanderbilt School of Law, Monitor

represented by Alex Jay Hurder Vanderbilt Legal Clinic Vanderbilt School of Law 131 21st Avenue, S Nashville, TN 37203 (615) 322−4964 Fax: (615) 343−6562 Email: alex.hurder@vanderbilt.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Susan Kay Vanderbilt School of Law, Monitor

represented by Susan Laurie Kay Vanderbilt Legal Clinic Vanderbilt School of Law 131 21st Avenue, S Nashville, TN 37203 (615) 322−4964 Email: susan.kay@vanderbilt.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Michael Passino Monitor

represented by Michael James Passino Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 (615) 736−5047 Fax: (615) 736−5265 Email: Michael_Passino@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Robert L. Smith Smith, Hirsch, Blackshear &Barnes, PLC, Monitor

represented by Robert Lewis Smith Smith &Hirsch Levering Office Building 3250 Dickerson Pike Suite 121 Nashville, TN 37207 (615) 242−5003 Email: rlsmith@smithhirschlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party

First Health Services Corporation

represented by Beth L. Domenick Fox Rothschild LLP 2000 Market Street 10th Floor Philadelphia, PA 19103 (215) 299−2000 Email: bdomenick@foxrothschild.com LEAD ATTORNEY

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 49 of 170

ATTORNEY TO BE NOTICED

Scott Hickman Sherrard &Roe 150 Third Avenue South Suite 1100 Nashville, TN 37201 (615) 742−4200 Email: shickman@sherrardroe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott L. Vernick Fox Rothschild LLP 2000 Market Street 10th Floor Philadelphia, PA 19103 (215) 299−2000 Email: svernick@foxrothschild.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice

represented by Gary C. Shockley Baker, Donelson, Bearman, Caldwell &Berkowitz, PC (Nash) 211 Commerce Street Suite 800 Nashville, TN 37201 (615) 726−5600 Email: gshockley@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John S. Hicks Baker, Donelson, Bearman, Caldwell &Berkowitz, PC (Nash) 211 Commerce Street Suite 800 Nashville, TN 37201 (615) 726−5600 Email: jhicks@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Unison Health Plan of Tennessee, Inc.

represented by John S. Hicks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C. Safar KLGates LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355−6500 Fax: (412) 355−6501 Email: joe.safar@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen H. Biller Biller Law Firm
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6000 Poplar Avenue Suite 250 Memphis, TN 38119 (901) 261−5454 Fax: (901) 261−5457 Email: sbiller@thebillerfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Smith KLGates LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355−6500 Fax: (412) 355−6500 Email: thomas.smith@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party BlueCross Blueshield of Tennessee

represented by Marc R. Jenkins Hubbard, Berry &Harris, PLLC SunTrust Bank Building 201 Fourth Avenue, N Suite 1420 Nashville, TN 37219 (615) 251−5462 Email: mjenkins@hubbardberry.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Beesley Hubbard Hubbard, Berry &Harris, PLLC SunTrust Bank Building 201 Fourth Avenue, N Suite 1420 Nashville, TN 37219 (615) 251−5444 Email: whubbard@hubbardberry.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party QSource

represented by Michael D. Hornback Wyatt, Tarrant &Combs (Lexington) 250 W Main Street Suite 1600 Lexington, KY 40507 (859) 233−2012 Fax: (859) 259−0649 Email: mhornback@wyattfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen H. Biller (See above for address) TERMINATED: 05/18/2009

Interested Party

Doral Dental of Tennessee, LLC

represented by Kathryn Hannen Walker Bass, Berry &Sims (Nashville) 150 Third Avenue South

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Suite 2800 Nashville, TN 37201 (615) 742−6200 Email: kwalker@bassberry.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wallace Wordsworth Dietz Bass, Berry &Sims (Nashville) 150 Third Avenue South Suite 2800 Nashville, TN 37201 (615) 742−6200 Email: wdietz@bassberry.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Preferred Health Partnership of Tennessee, Inc.

represented by George Tolbert Lewis , III Baker, Donelson, Bearman, Caldwell &Berkowitz, PC (Memphis) First Tennessee Building 165 Madison Avenue Suite 2000 Memphis, TN 38103 (901) 526−2000 Email: blewis@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin B. Bailey Wagner, Myers &Sanger 1801 First Tennessee Plaza 800 S Gay Street Knoxville, TN 37929 (865) 525−4600 Fax: (865) 291−0419 Email: mbailey@wmspc.com TERMINATED: 03/14/2013 LEAD ATTORNEY

John L. Miller Wagner, Myers &Sanger 1801 First Tennessee Plaza 800 S Gay Street Knoxville, TN 37929 (865) 525−4600 Email: jmiller@wmspc.com TERMINATED: 12/22/2008

Sonya Smith Wright Marshall Thomas Burnett, PL 214 W Main Street Murfreesboro, TN 37130 (615) 896−8000 Fax: (615) 896−8088 Email: swright@mtblaw.com ATTORNEY TO BE NOTICED

Interested Party Schaller Anderson of Tennessee, LLC

Interested Party

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Tennessee Behavioral Health, Inc.

represented by Charles B. Welch , Jr. Farris, Mathews, Branan, Bobango &Hellen, PLC 618 Church Street Suite 300 Nashville, TN 37219 (615) 726−1200 Email: cwelch@farrismathews.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Corum Webb Farris, Mathews, Bobango, PLC 618 Church Street Suite 300 Nashville, TN 37219 (615) 726−1200 Fax: (615) 726−1776 Email: cwebb@farrismathews.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Premier Behavioral Systems of Tennessee, LLC

represented by Charles B. Welch , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Corum Webb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party AMERIGROUP Corporation

represented by Paul Savage Davidson Waller, Lansden, Dortch &Davis, LLP (Nashville) Nashville City Center 511 Union Street Suite 2700 Nashville, TN 37219 (615) 244−6380 Email: paul.davidson@wallerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Memphis Managed Care Corporation doing business as TLC Family Care Health Plan

represented by Taylor A. Cates Burch, Porter &Johnson, PLLC 130 N Court Avenue Memphis, TN 38103 (901) 524−5165 Fax: (901) 524−5024 Email: tacates@bpjlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David H. Lillard Burch, Porter &Johnson, PLLC 130 N Court Avenue Memphis, TN 38103 (901) 524−5176 Fax: (901) 524−5024
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Interested Party Ronald J. Hedges
Interested Party United States of America Department of Justice

Email: dlillardlaw@comcast.net TERMINATED: 04/26/2010

V.
Intervenor
Sanford Bloch TERMINATED: 11/23/2004

represented by George Edward Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Tim Jones TERMINATED: 02/03/2006

represented by George Edward Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Rivera Office of the United States Attorney 110 Ninth Avenue, S Suite A961 Nashville, TN 37203−3870 (615) 736−5151 Email: david.rivera2@usdoj.gov

Edmund L. Carey , Jr. Barrett Johnston, LLC 217 Second Avenue, N Nashville, TN 37201 (615) 244−2202

Intervenor Plaintiff
William Duncan TERMINATED: 02/03/2006

represented by George Edward Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Rivera (See above for address)

Edmund L. Carey , Jr. (See above for address)

Intervenor Plaintiff
Mary Kathryn Duncan TERMINATED: 02/03/2006

represented by George Edward Barrett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Rivera (See above for address)

Edmund L. Carey , Jr. (See above for address)
Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 54 of 170

Date Filed 02/25/1998 02/25/1998
02/25/1998 02/25/1998 02/25/1998 02/25/1998 02/25/1998 02/26/1998 02/26/1998 03/04/1998 03/04/1998 03/04/1998 03/10/1998 03/11/1998
03/12/1998 03/13/1998 03/26/1998 06/01/1998

# Docket Text
1 COMPLAINT (Summons(es) issued) Filing fee paid in the amount of : $150.00 Receipt # 62123 (bbj) (Entered: 02/27/1998)
2 CONSENT DECREE BRIEF for Medicaid−Based Early &Periodic Screening, Diagnosis &treatment Services FILED by pltf John B., pltf Carrie G., pltf Joshua M., pltf Meagan A., pltf Erica A., pltf Dustin P., pltf Bayli S., pltf James D., pltf Elsie H., pltf Julian C., pltf Troy D., pltf Ray M., pltf Roscoe W., pltf William B., pltf R., pltf Justin S., pltf Estel W. regarding [1−1] (bbj) (Entered: 02/27/1998)
3 JOINT MOTION by pltf, deft to approve class action settlement (bbj) (Entered: 02/27/1998)
4 NOTICE of Initial Case Management Conference ; Case Management Conference set for 11:00 4/7/98 , Case referred to Magistrate Judge William J. Haynes Jr. (bbj) (Entered: 02/27/1998)
5 RETURN OF SERVICE executed upon deft Nancy Menke on 2/25/98 (dm) (Entered: 02/27/1998)
6 RETURN OF SERVICE executed upon deft George W. Hattaway on 2/25/98 (dm) (Entered: 02/27/1998)
7 RETURN OF SERVICE executed upon deft Theresa Clarke on 2/25/98 (dm) (Entered: 02/27/1998)
8 NOTICE by pltfs to Court. Pltfs request that the Court take notice that the seventeen named pltfs in this case are referred to in the cmp by pseudonyms to protect their privacy (dm) (Entered: 02/27/1998)
9 MOTION by pltfs for order FILED UNDER SEAL (Attached proposed order) (dm) (Entered: 02/27/1998)
PROPOSED Agreed Order (dm) (Entered: 03/04/1998)
ATTORNEY APPEARANCE for defts by Jennifer Helton Small per signature on proposed order (gi) (Entered: 03/13/1998)
10 RESPONSE by deft to motion [9−1] FILED UNDER SEAL (gi) (Entered: 03/13/1998)
11 ORDER by Judge John T. Nixon: Hearing is set for 10:00 on 3/11/98 to consider whether a consent decree submitted jointly by the parties shall be approved. EOD 3/11/98 (cc: all counsel) (gi) (Entered: 03/11/1998)
12 CONSENT DECREE by Judge John T. Nixon for Medicaid based early and periodic secreening, diagnosis and treatment services. This Consent Decree shall expire upon proof that defts have reached an Adjusted Periodic Screening Percentage and Dental Screening Percentage of 80 percent and are in current, substantial compliance with the requirements herein. (See decree for complete details) EOD 3/12/98 (cc: all counsel) (gi) (Entered: 03/12/1998)
13 CLERK'S RESUME: Hearing held 3/11/98 on mtn to certify the class. Granted. The Court approved the notice. (gi) (Entered: 03/13/1998)
14 ORDER by Judge John T. Nixon FILED UNDER SEAL regarding [9−1] (cc: all counsel) EOD 3/17/98 (dm) (Entered: 03/17/1998)
15 JOINT NOTICE by parties of filing of Class Notice, Attachment 4. This Attachment 4 should be substituted for the Attachment 4 filed by the parties on 2/25/98 (Attachment) (dm) (Entered: 03/26/1998)
16 ORDER by Judge John T. Nixon: ORDERED that the parties who submitted material under seal ([10−1]), shall retrieve the same w/i 10 days of entry of this order on the docket. If the material is not retrieved w/i the time specified, the clerk is directed to destroy the material (cc: all counsel)EOD 6/3/98 (dm) (Entered: 06/03/1998)

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06/24/1998 07/16/1998 07/29/1998
07/30/1998 08/06/1998 08/06/1998 08/13/1998 08/20/1998 08/25/1998
12/11/1998 12/11/1998 01/13/1999 01/19/1999
01/28/1999
01/29/1999 02/01/1999 02/02/1999 02/08/1999 02/17/1999 02/17/1999

17 RESPONSE by pltfs to order of 6/1/98 [16−1]; this serves as pltfs' notice of two issues still outstanding in this action(tlc) Modified on 06/24/1998 (Entered: 06/24/1998)
18 JOINT NOTICE AND MOTION by ptys for an extension of 20 days through &including 8/6/98 prior to submission of itemizations to this Court (w/proposed order) (jb) (Entered: 07/17/1998)
19 ORDER by Judge John T. Nixon granting motion for an extension of 20 days through &including 8/6/98 prior to submission of itemizations of attys fees and expenses to this Court [18−1] (cc: all counsel) (EOD 7/29/98) (tlc) (Entered: 07/29/1998)
20 NOTICE by defts of filing semi−annual progress report; w/attachments (tlc) (Entered: 07/30/1998)
21 JOINT MOTION by parties to extend time to 8/21/98 to submit atty fees to court (tlc) (Entered: 08/07/1998)
PROPOSED Order granting motion,DE #21 (tlc) (Entered: 08/07/1998)
22 ORDER by Judge John T. Nixon; time is extended for the filing of pltf's affidavits and itemizations of atty fees and expenses to the Court, up through and including 8/21/98 (cc: all counsel) (EOD 8/14/98) (tlc) (Entered: 08/14/1998)
23 JOINT NOTICE by parties re attorney fees (w/proposed order) (dm) (Entered: 08/21/1998)
24 ORDER by Judge John T. Nixon: Pursuant to Joint Notice [23−1], attorney fees are hereby ORDERED in this case as follows: Michele Johnson $55,804.85, Gordon Bonnyman $36,347.00, Jane Perkins $4,635.00, Mary Gilbert $1,876.00 (cc: all counsel) EOD 8/26/98 (dm) (Entered: 08/26/1998)
25 NOTICE by defts of filing Report of the Review Team for the EPSDT Consent Decree (w/attachments) (dm) (Entered: 12/14/1998)
26 NOTICE by defts of filing Proposed Remedial Plan (w/attachment) (dm) (Entered: 12/14/1998)
PROPOSED Agreed Order ext ddl to 2/1/99 for pltfs to respond to deft's Remedial Plan (dm) (Entered: 01/13/1999)
27 AGREED ORDER approved by Judge John T. Nixon: The pltfs shall respond to the defts' Remedial Plan [26−1] by 2/1/99. ORDERED that the pltfs shall submit their response to defts' Remedial Plan no later than 2/1/99 (cc: all counsel)EOD 1/20/99 (dm) (Entered: 01/20/1999)
28 MAGISTRATE JUDGE'S REPORT/ORDER by Magistrate Judge William J. Haynes Jr: the Court has entered a Consent Decree, accordingly, there will be no further proceedings before the Mag Judge. (cc: all counsel) EOD 1/29/99 (bj) (Entered: 01/29/1999)
29 NOTICE by pltfs of filing January 1999 Semi−Annual Progress Report (dm) (Entered: 01/29/1999)
PROPOSED Agreed Order to continue the response ddl for pltf to respond to deft's Remedial Plan to 2/17/99 (dm) (Entered: 02/02/1999)
30 ATTORNEY APPEARANCE for defts by Linda A. Ross (dm) (Entered: 02/03/1999)
31 ORDER by Judge John T. Nixon: Pltfs shall respond to the Remedial Plan [26−1] no later than 2/17/99 (cc: all counsel) EOD 2/9/99 (dm) (Entered: 02/09/1999)
32 RESPONSE by pltf to Proposed Remedial Plan [26−1] (w/attachment) (dm) (Entered: 02/18/1999)
33 NOTICE by pltfs of filing copy of Declaration of Linda and Walter Allen which was filed in case 3:98−127 (w/attachments) (dm) (Entered: 02/18/1999)

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02/17/1999

34 DECLARATION of Susan Hale in support of [32−1] (dm) (Entered: 02/18/1999)

03/04/1999

35 SUPPLEMENT by pltfs to response [32−1] to Proposed Remedial Plan. (bj) (Entered: 03/05/1999)

03/04/1999

36 SECOND NOTICE by pltfs of Filing Documents (to be accepted as exhibits). (attachments) (bj) (Entered: 03/05/1999)

03/08/1999

37 LETTER from Linda A. Ross, atty for defts requesting a status conf. (bj) (Entered: 03/09/1999)

03/10/1999

PROPOSED Agreed Order re schedule for filings (tlc) (Entered: 03/10/1999)

03/15/1999

38 AGREED ORDER approved by Judge John T. Nixon: Defts will have 30 days from the entry of this order to file a reply to pltfs' Response [32−1] to the Proposed Remedial Plan [26−1] (cc: all counsel) EOD 3/16/99 (dm) (Entered: 03/16/1999)

04/13/1999

PROPOSED Agreed Order: Defts will have 30 days from the entry of this order to file a reply to pltfs' response to defts' proposed remedial plan (dm) (Entered: 04/13/1999)

05/17/1999

39 ORDER by Judge John T. Nixon allowing the defts 30 days from the entry of this Order to file a reply to the pltfs' response to the defts' proposed remedial plan (cc: all counsel) (EOD 5/18/99) (jb) (Entered: 05/18/1999)

06/16/1999

PROPOSED Order granting extension of time to reply to proposed remedial plan (gi) (Entered: 06/17/1999)

07/01/1999

40 AGREED ORDER by Judge John T. Nixon allowing defts until 6/30/99 to file a reply to the pltfs' response to the defts' proposed remedial plan (cc: all counsel) (EOD 7/1/99) (jb) (Entered: 07/01/1999)

07/20/1999

41 MOTION by defts for extension of time of 30 days to file a revised proposed remedial plan (jb) (Entered: 07/21/1999)

07/20/1999

42 REPLY by defts to pltfs' response to proposed remedial plan [26−1] (jb) (Entered: 07/21/1999)

07/30/1999

43 JULY 1999 SEMI−ANNUAL PROGRESS REPORT by state defts (gi) (Entered: 08/02/1999)

08/06/1999

44 ORDER by Judge John T. Nixon granting motion for extension of time of 30 days to file a revised proposed remedial plan [41−1] (cc: all counsel) (EOD 8/9/99) (jb) (Entered: 08/09/1999)

08/20/1999

45 PARTIES' JOINT REPORT AND MOTION by pltfs &defts for order to hold in abeyance the Court's deliberations on the ptys pending contentions regarding the terms of a remedial plan for the care of child in, or at risk of entering, state custody &for order allowing until 10/15/99 to implement the negotiation procedures outlined in this motion (jb) (Entered: 08/23/1999)

08/27/1999

46 ORDER by Judge John T. Nixon granting the parties' joint motion for order to hold in abeyance the Court's deliberations on the ptys pending contentions regarding the terms of a remedial plan for the care of child in, or at risk of entering, state custody [45−1] &for order allowing until 10/15/99 to implement the negotiation procedures outlined this motion [45−2]; Ptys will report back to the Court by 10/15/99 regarding a proposed timetable for future negotiations. (cc: all counsel) (EOD 8/30/99) (jb) (Entered: 08/30/1999)

10/14/1999

47 JOINT STATUS REPORT by pltfs &defts of the proposed timetable for the completion of the process for negotiating the development of a comprehensive remedial plan for the care of children in, or at risk of entering, state custody. (jb) (Entered: 10/15/1999)

12/01/1999

48 MOTION by class pltfs to withdraw attorney Lenny L. Croce as counsel of record (jb) (Entered: 12/02/1999)

01/24/2000

49 ORDER by Judge John T. Nixon granting motion to withdraw attorney Lenny L. Croce as counsel of record [48−1] for pltfs. (cc: all counsel) (EOD 1/25/00) (jb) (Entered: 01/25/2000)

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01/31/2000 02/15/2000 02/18/2000 02/24/2000 04/13/2000 04/17/2000 04/28/2000 05/04/2000
05/11/2000 05/12/2000
05/12/2000 05/12/2000
05/12/2000 07/31/2000 08/08/2000

50 JANUARY 2000 SEMI−ANNUAL PROGRESS REPORT by the State Defts (w/attached Semi−annual Progress Report) (jb) (Entered: 02/01/2000)
51 NOTICE by defts of filing of proposed Health Plan For Children In State Custody (w/attached Health Plan) (jb) (Entered: 02/16/2000)
52 MOTION by defts for a case management conference (w/attachment) (jb) (Entered: 02/18/2000)
53 ORDER by Judge John T. Nixon granting motion for a case management conference [52−1]; Case Management Conference set for 10:00 3/6/00 (cc: all counsel) (EOD 2/25/00) (jb) (Entered: 02/25/2000)
PROPOSED Agreed Order re Plan to implement the requirements of the Consent Decree with respect to the pltf subclass. (jb) (Entered: 04/14/2000)
54 AGREED ORDER by Judge John T. Nixon; the court finds the proposed procedure as to a plan to implement the requirements of the Consent Decree w/respect to the pltf subclass is reasonable and should be adopted (cc: all counsel) (EOD 4/18/00) (tlc) (Entered: 04/18/2000)
PROPOSED Order re remedial plan (gi) (Entered: 05/01/2000)
55 AGREED ORDER by Judge John T. Nixon; The ptys report to the Court that they have reached an agreement in principle regarding the elements of the plan. However, the ptys are still finalizing a document to be filed with the Court. Hearing set for 1:00 5/11/00 at which time the Court will review the ptys proposed remedial plan. (cc: all counsel) (EOD 5/4/00) (jb) (Entered: 05/04/2000)
56 CLERK'S RESUME; Hearing on Remedial Plan for Children held 5/11/00 ; Remedial Plan approved. Order will enter; C/R: Charlotte Sloan (jb) (Entered: 05/12/2000)
57 AGREED ORDER by Judge John T. Nixon governing children at serious risk of entering state custody. The Court finds that the Serious Risk Plan is fair, adequate, reasonable to those it affects, &consistent with the public interest. The Court therefore accepts &incorporates by reference the terms of the Serious Risk Plan as an amendment to the Consent Decree. the Court notes, however, that the Serious Risk Plan was based on the structure of the TennCare Program in place as of 5/11/00. In the event that TennCare undergoes programmatic structural changes, the ptys will assess whether related modification to this plan are made necessary, will work together to develop appropriate modifications, and, if unsuccessful in that effort, will seek appropriate relief from the Court. (cc: all counsel) (EOD 5/16/00) (jb) (Entered: 05/16/2000)
58 PARTIES PLAN FOR CHILDREN AT SERIOUS RISK OF ENTERING STATE CUSTODY re Order [57−1] (jb) (Entered: 05/16/2000)
59 AGREED ORDER by Judge John T. Nixon governing the coordination and delivery of health services to children in state custody; The Court finds that the remedial plan is fair, adequate, reasonable to those it affects, &consistent with the public interest. The Court therefore accepts &incorporates by reference the terms of the remedial plan as an amendment to the Consent Decree. The Court notes, however, that the remedial plan was based on the structure of the TennCare program in place as of 5/11/00. In the event that TennCare undergoes programmatic structural changes, the ptys will assess whether related modifications ot this remedial plan are made necessary, will work together to develop appropriate modifications, and if unsuccessful in that effort, will seek appropriate relief from the Court. (cc: all counsel) (EOD 5/16/00) (jb) (Entered: 05/16/2000)
60 PARTIES' REMEDIAL PLAN FOR CHILDREN IN STATE CUSTODY re Order [59−1] (jb) (Entered: 05/16/2000)
61 JULY 2000 SEMI−ANNUAL PROGRESS REPORT by defts (jb) (Entered: 07/31/2000)
62 NOTICE by defts of late filed attachment to July 2000 Semi−Annual Progress Report (w/attachment) (jb) (Entered: 08/08/2000)

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11/16/2000 11/16/2000 11/27/2000
12/08/2000
12/15/2000 12/18/2000 12/18/2000
12/18/2000
01/02/2001 01/02/2001 01/02/2001 01/02/2001
01/16/2001 01/16/2001
01/16/2001
01/22/2001
01/29/2001 01/29/2001 01/29/2001 01/30/2001

63 MOTION by defts to stay enforcement of the remedial plan pending resolution of proposed modifications (jb) (Entered: 11/17/2000)
64 AFFIDAVIT of Fredia Wadley in support of motion to stay [63−1] (jb) (Entered: 11/17/2000)
65 BRIEF by pltfs in opposition to defts' motion to stay enforcement of the remedial plan pending resolution of proposed modifications [63−1] (w/attached exh. A) (jb) (Entered: 11/28/2000)
66 REPLY BRIEF by defts to pltfs' brief in opposition to defts' motion to stay enforcement of the remedial plan pending resolution of proposed modifications [63−1] (jb) (Entered: 12/11/2000)
67 TRANSCRIPT filed of the proceedings before the Hon. Senior Judge John T. Nixon on 5/11/00; CR: Charlotte H. Sloan (jb) (Entered: 12/15/2000)
68 MOTION by defts for designation of a Magistrate Judge . (dlt) (Entered: 12/20/2000)
69 MOTION by defts to modify the Remedial Plan for children in custody and the plan for children at serious risk of entering state custody . (w/ attachments) (dlt) (Entered: 12/20/2000)
70 MEMORANDUM by deft in support of motion to modify the Remedial Plan for children in custody and the plan for children at serious risk of entering state custody [69−1]. (w/ attachment) (dlt) (Entered: 12/20/2000)
71 MOTION by pltfs to compel discovery (jb) (Entered: 01/03/2001)
72 BRIEF by pltfs in support of motion to compel discovery [71−1] (jb) (Entered: 01/03/2001)
73 CERTIFICATE by pltfs of counsel in support of pltfs' motion to compel discovery (w/attached exhs. a−j) (jb) (Entered: 01/03/2001)
74 RESPONSE by pltfs to defts' motion to modify the Remedial Plan for children in custody and the plan for children at serious risk of entering state custody [69−1] (jb) (Entered: 01/03/2001)
75 MEMORANDUM by defts in opposition to pltfs' motion to compel discovery [71−1] (w/attached exhs. A−M) (jb) (Entered: 01/17/2001)
76 MOTION by defts for setting of a prehearing discovery conference and for entry of a scheduling order (w/attached proposed order re: hearing and proposed scheduling order) (jb) (Entered: 01/17/2001)
77 MEMORANDUM by defts in support of motion for setting of a prehearing discovery conference [76−1] and for entry of a scheduling order [76−2] (w/attached exhs. 1 &2) (jb) Modified on 01/17/2001 (Entered: 01/17/2001)
78 ORDER by Judge John T. Nixon granting motion for designation of a Magistrate Judge [68−1]; The Clerk of Court will assign a Magistrate to this case in the usual manner. Case assigned to Magistrate Judge E. C. Knowles. (cc: all counsel) (EOD 1/23/01) (jb) (Entered: 01/23/2001)
79 MOTION by pltfs for order to show cause (w/attached certificate of counsel) (jb) (Entered: 01/30/2001)
80 CERTIFICATE by pltfs of counsel (jb) (Entered: 01/30/2001)
81 BRIEF by pltfs in support of motion for order to show cause [79−1] (jb) (Entered: 01/30/2001)
82 ORDER by Magistrate Judge E. C. Knowles denying motion for setting of a prehearing discovery conference [76−1] and for entry of a scheduling order [76−2]; Fed.R.Civ.P. 26(f) does not apply in the context of defts' motion to modify the remedial plan, and pltfs seek to take only one deposition. (cc: all counsel) (EOD 1/30/01) (jb) (Entered: 01/30/2001)

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01/30/2001
01/30/2001 01/31/2001 02/01/2001 02/01/2001 02/13/2001 02/28/2001
03/01/2001 03/05/2001
04/11/2001 04/11/2001 04/11/2001 04/13/2001 04/13/2001 04/13/2001
04/16/2001
04/17/2001 04/18/2001 04/18/2001 04/19/2001 04/20/2001

83 ORDER by Magistrate Judge E. C. Knowles granting motion to compel discovery [71−1]; Defts shall produce Deputy Commissioner John Tighe for a deposition on or before 2/16/01. (cc: all counsel) (EOD 1/30/01) (jb) (Entered: 01/30/2001)
PROPOSED Agreed Case Mangement Order (jb) (Entered: 01/31/2001)
84 JANUARY 2001 SEMI−ANNUAL PROGRESS REPORT submitted by State Defts (jb) (Entered: 02/01/2001)
85 ATTORNEY APPEARANCE for State Defts Nancy Menke, Theresa Clarke, &George W. Hattaway by Katherine Anne Brown (jb) (Entered: 02/01/2001)
86 ATTORNEY APPEARANCE for State Defts Nancy Menke, Theresa Clarke, &George W. Hattaway by Nicholas G. Aemisegger Jr. (jb) (Entered: 02/01/2001)
PROPOSED Agreed Order granted an extension of time until 5/28/01 in which to respond to the pltfs' motion to show cause. (jb) (Entered: 02/13/2001)
87 AGREED ORDER by Judge John T. Nixon: The pre−hearing brief filed by the defts shall also serve as an answer to the pltfs' motion to show cause, filed with this Court on 1/29/01. The defts are granted an extension of time up to &including 5/28/01 in which to respond to the pltfs' motion for order to show cause [79−1]. (cc: all counsel) (EOD 2/28/01) (jb) (Entered: 02/28/2001)
PROPOSED Amended Agreed Case Management Order (dlt) (Entered: 03/02/2001)
88 AMENDED AGREED CASE MANAGEMENT ORDER approved by Judge John T. Nixon; Evidentiary Hearing set for 6/18/01 at 9:00 a.m.; Written Discovery ddl set for 3/12/01; The ptys shall submit a final case management order by 5/7/01; Pre−hearing Briefs ddl 5/28/01 (cc: all counsel) (EOD 3/6/01) (jb) (Entered: 03/06/2001)
89 MOTION by defts for protective order . (w/ att'd exhibit A) (dlt) (Entered: 04/12/2001)
90 MEMORANDUM by deft in support of motion for protective order [89−1]. (w/ att'd exhibit 1) (dlt) (Entered: 04/12/2001)
91 JOINT STATEMENT of counsel of the matters at issue in this discovery dispute. (dlt) (Entered: 04/12/2001)
92 MOTION by pltfs to compel discovery (jb) (Entered: 04/16/2001)
93 RESPONSE by pltfs to defts' motion for protective order [89−1] (w/attached exh. 1) (jb) (Entered: 04/16/2001)
94 BRIEF by pltfs in support of motion to compel discovery [92−1] and in opposition to defts' motion for protective order [93−1] (w/attachment 1) (jb) (Entered: 04/16/2001)
95 CLERK'S RESUME; Hearing re: discovery matters ; Hearing re: defts' motion for protective order−under advisement. Order will enter. State to respond to pltfs' motion to compel. Hearing to be held 4/19/01 at 10:00; Tape No. 2001−28 MK (jb) (Entered: 04/17/2001)
96 RESPONSE by defts to pltfs' motion to compel discovery [92−1] (jb) (Entered: 04/18/2001)
97 MOTION by pltfs for order to allow pltfs additional depositions (w/attached proposed order) (jb) (Entered: 04/18/2001)
98 BRIEF by pltf in support of motion for order to allow pltfs additional depositions [97−1] (w/attached exhs. 1 &2) (jb) (Entered: 04/18/2001)
99 CLERK'S RESUME: Hearing re: discovery matters. Order to enter. C/R : Tape No.: 2001−28 MK (dlt) (Entered: 04/19/2001)
100 ORDER by Magistrate Judge E. C. Knowles: Hearing held 4/19/01; For the reasons stated on the record at the hearing pltf's motion to compel discovery [92−1] is

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granted with regard to Interrogatory Nos. 5, 11 (as modified), 12 (as modified), and 15 (as modified). Pltfs' motion with regard to requests for production Nos. 3, 16, and 25 are granted. Pltfs' motion with regard to Interrogatory No. 35 is denied. A separate Order will be entered concerning Request for Production No. 15. (cc: all counsel) (EOD 4/23/01) (jb) (Entered: 04/23/2001)

04/23/2001

101 ORDER by Magistrate Judge E. C. Knowles granting motion for order to allow pltfs additional depositions [97−1] (cc: all counsel) (EOD 4/24/01) (jb) (Entered: 04/24/2001)

04/23/2001

102 AGREED ORDER by Magistrate Judge E. C. Knowles: Each pty, in response to respective interrogatories, will disclose the names of expert witnesses, and provide the Rule 26(a)(2)(B) statements, to the other by 5/7/01. (cc: all counsel) (EOD 4/24/01) (jb) (Entered: 04/24/2001)

04/23/2001

103 ORDER by Magistrate Judge E. C. Knowles denying motion for protective order [89−1] to the extent that it is based upon Sec. 290dd−2; pltf's motion to compel with regard to Interrogatory No. 15 is granted in part and defts shall respond by identifying and stating the requested information upon which they rely for the propositions stated in that Interrogatory; defts' motion for protective order with regard to Request No. 32, Interrogatory No. 28, 29, Request No. 35, Request No. 34, Request for Production No. 11, Request Nos. 40, 41, Interrogatory No. 3, Request No. 24, Interrogatory No. 8, Interrogatory No. 27, Request No. 33, Request No. 12, Interrogatory No. 21 and Interrogatory No. 24 are denied; defts' motion for protective order with regard to Interrogatory No. 30, and 36 is granted; Assuming the ptys are unable to agree concerning Request Nos. 13, 14 &44, they shall submit supplemental briefs to the Court concerning these particular issues and the status of their negotiations on or before 4/30/01; To the extent that the Court has denied defts'motion for protective order as discussed in this Order, defts shall respond to the specific Interrogatories and produce the documents requested on or before 5/7/01. (cc: all counsel) (EOD 4/24/01) (jb) (Entered: 04/24/2001)

04/30/2001 104 MOTION by defts for a case management conference (jb) (Entered: 05/01/2001)

04/30/2001

105 MOTION by pltfs for an extension of time until 5/17/01 within which to provide expert witness reports (w/attached affidavit) (jb) (Entered: 05/01/2001)

04/30/2001

106 AFFIDAVIT of David Kozlowski in support of motion for extension of time [105−1] (jb) (Entered: 05/01/2001)

05/01/2001

108 ORDER by Magistrate Judge E. C. Knowles: The Court has recently entered two Orders [100−1] [103−1] concerning discovery disputes in the referenced case. The Court stated that a separate Order would be entered concerning Request for Production No. 15 which is one of the subjects of pltfs' motion to compel [92−1]. Pltf's motion to compel with regard to Request for Production No. 15 is granted for the reasons set forth in the Court's Order entered 4/24/01 (docket Entry No. 103). Defts shall produce the documents requested on or before 5/15/01. (cc: all counsel) (EOD 5/3/01) (jb) (Entered: 05/03/2001)

05/02/2001

107 RESPONSE by pltfs to defts' motion for a case management conference [104−1] (jb) (Entered: 05/02/2001)

05/02/2001

109 MOTION by defts to continue the trial set to begin on 6/18/01 (jb) (Entered: 05/03/2001)

05/02/2001

110 MEMORANDUM by deft in support of motion to continue the trial set to begin on 6/18/01 [109−1] (w/attachments) (jb) (Entered: 05/03/2001)

05/04/2001

111 RESPONSE by pltf to motion for continuance [109−1] (w/attached exh. A) (jb) (Entered: 05/04/2001)

05/04/2001

112 CLERK'S RESUME; Hearing on Motions/Case Management Conference held 5/4/01 ; Deft's motion for a continuance−denied. Order to enter modifying case management order. Tape No. 2001−33 MK; 2001−34 MK (jb) (Entered: 05/04/2001)

05/07/2001

113 ORDER by Magistrate Judge E. C. Knowles; Case Management Conference held 5/4/01 ; Defts' motion to continue the trial set to begin on 6/18/01 [109−1] is

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05/07/2001 05/09/2001
05/09/2001 05/10/2001
05/17/2001 05/17/2001 05/21/2001 05/21/2001 05/21/2001 05/23/2001 05/29/2001 05/29/2001 05/30/2001
05/31/2001

denied; The motion for an extension of time until 5/17/01 within which to provide expert witness reports [105−1] is granted. The Agreed Amended Scheduling Order is modified to allow pltfs and defts the period of time from June 4 through June 15 in which to take depositions of persons identified in the other pty's witness list who have not been previously deposed. Defts shall present their proof concerning the motion to modify the remedial plan [69−1] first, after which time pltfs may present their proof concerning the contempt proceeding. (cc: all counsel) (EOD 5/7/01) (jb) (Entered: 05/07/2001)
PROPOSED Final Case Mangement Order (jb) (Entered: 05/08/2001)
114 CLERK'S RESUME; Hearing on discovery Disputes held 5/9/01 ; Court orders all documents to be produced by noon 5/11/01 in a central location for inspection and copying by the pltfs. Pltfs to advise the Court in writing on Monday if documents are produced as ordered. Tape No. 2001−37 MK (jb) (Entered: 05/10/2001)
115 MOTION by pltfs to compel discovery and for sanctions (w/attached copy of certificate of counsel in support of pltf's motion to compel discovery, proposed order and attachments) (jb) (Entered: 05/10/2001)
116 ORDER by Magistrate Judge E. C. Knowles; Hearing held 5/9/01; Pltfs' motion to compel discovery [115−1] is granted, and defts shall produce the documents described in Items 1−7 of the motion to compel by noon 5/11/01. Pltfs shall file a written report with the Court on 5/14/01; Pltfs' oral motion to extend the current ddl of 5/17/01 in which to provide their Rule 26(a)(2)(B) expert statements to defts is granted. The ddl is extended indefinitely. Pltfs' counsel shall provide such statements as soon as they are reasonably able to do so. Pltfs' oral motion to be allowed to review documents produced by defts on weekends and after regular business hours is denied. Pltfs' motion for sanction [115−2] will be taken under advisement pending further proceedings in this case. (cc: all counsel) (EOD 5/11/01) (jb) (Entered: 05/11/2001)
117 RENEWED MOTION by pltfs for an order to compel discovery and impose sanctions (w/attachments) (jb) (Entered: 05/18/2001)
118 BRIEF by pltfs in support of motion for an order to compel discovery [117−1] and impose sanctions (jb) (Entered: 05/18/2001)
119 RESPONSE by defts in opposition to pltfs' renewed motion for an order to compel discovery [117−1] and impose sanctions [117−2] (w/attachments) (jb) (Entered: 05/21/2001)
120 AFFIDAVIT of Andrea Thaler in support of defts' response in opposition to pltfs' renewed motion for an order to compel discovery and impose sanctions [119−1] (w/attached exhs. A−D) (jb) (Entered: 05/21/2001)
121 AFFIDAVIT of David Simms in support of defts' response in opposition to pltfs' renewed motion for an order to compel discovery and impose sanctions [119−1] (jb) (Entered: 05/21/2001)
122 SUPPLEMENTAL BRIEF by pltfs in support of renewed motion for an order to compel discovery [117−1] and impose sanctions (w/attachments A &B) (jb) (Entered: 05/24/2001)
123 TRIAL BRIEF FILED by defts (jb) (Entered: 05/30/2001)
124 PRE−TRIAL BRIEF FILED by pltfs (jb) (Entered: 05/30/2001)
125 FINAL CASE MANAGEMENT ORDER approved by Judge John T. Nixon; Discovery, disclosure of witnesses and exhs, and other pretrial matters are governed by the Amended Agreed Case Management Order [88−1] [88−2], as modified by subsequent orders entered by the U.S. Magistrate Judge, acting as case manager. (cc: all counsel) (EOD 5/30/01) (jb) (Entered: 05/30/2001)
126 CLERK'S RESUME; Hearing held on motion to compel [117−1]/ discovery matters on 5/31/01 ; Expedited hearing on pltf's renewed motion to compel; Order to enter; Tape No. 2001−40 MK (jb) (Entered: 06/01/2001)

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05/31/2001

127 ATTORNEY APPEARANCE for defts by Paul W. Ambrosius (jb) (Entered: 06/01/2001)

05/31/2001

128 ATTORNEY APPEARANCE for defts by Leesa A. Hinson (jb) (Entered: 06/01/2001)

05/31/2001

129 ATTORNEY APPEARANCE for defts by Kathryn A. Stephenson (jb) (Entered: 06/01/2001)

06/01/2001

130 SECOND MOTION by defts for continuance (jb) Modified on 06/01/2001 (Entered: 06/01/2001)

06/01/2001

131 MEMORANDUM OF LAW by defts in support of second motion for continuance [130−1] (jb) (Entered: 06/01/2001)

06/01/2001

132 ORDER by Magistrate Judge E. C. Knowles denying pltf's motion for an order to compel discovery [117−1] and pltf's motion for sanctions [117−2], to the extent that it seeks sanctions other than those outlined in this order, is taken under advisement pending further proceedings in this case. Defts are ordered to segregate and produce to pltfs, by noon 6/7/01 at the latest, the appeals filed for the class members listed in the telecopy communication of 5/29/01, from pltfs' counsel to defts' counsel. Defts agreed to give the phone numbers that they have for persons on that list by noon 6/7/01. Agreed Case Management Order [88−1] is amended to allow pltfs additional time until 6/11/01 in which to amend their witness list and/or exhibit list to add witnesses or exhibits that can reasonably be identified as having come to pltfs' attention as a result of their receipt of the discovery referred to in this Order. Defts are ordered to determine immediately whether there are OCC minutes. If such minutes exist, defts are ordered to produce them to pltfs' counsel by 6/5/01 at the latest. The Agreed Case Management Order [88−1] is amended to allow pltfs additional time until 6/9/01 in which to amend their witness list and/or exhibit list to add witnesses or ehxhibits that can reasonably be identified as having come to pltfs' attention as a result of their receipt of these minutes. (cc: all counsel) (EOD 6/4/01) (jb) (Entered: 06/04/2001)

06/04/2001

133 DECLARATION by pltfs of David Kozlowski (w/attachment) (jb) (Entered: 06/05/2001)

06/04/2001 134 WITNESS list submitted by defts (jb) (Entered: 06/05/2001)

06/05/2001

135 MOTION by defts for order to include witnesses not previously identified in response to pltfs' discovery requests (jb) (Entered: 06/06/2001)

06/05/2001

136 MEMORANDUM OF LAW by defts in support of motion for order to include witnesses not previously identified in response to pltfs' discovery requests [135−1] (jb) (Entered: 06/06/2001)

06/05/2001

137 RESPONSE by pltfs to defts' motion for continuance [130−1] (jb) (Entered: 06/06/2001)

06/06/2001

138 RESPONSE by pltfs to defts' motion for order to include witnesses not previously identified in response to pltfs' discovery requests [135−1] (jb) (Entered: 06/06/2001)

06/06/2001

139 ORDER by Magistrate Judge E. C. Knowles denying defts' second motion for continuance [130−1] (cc: all counsel) (EOD 6/7/01) (jb) (Entered: 06/07/2001)

06/06/2001

140 ORDER by Magistrate Judge E. C. Knowles; Deft's motion for order to include witnesses not previously identified in response to pltfs' discovery requests [135−1] is granted with regard to Dr. Madeline Farmer, Sandy Baker, and Sherry Harrison, with the requirement that defts immediately describe in some detail the testimony that Ms. Baker will offer. Defts' motion is granted with regard to Mike Stone and Lynn Williams. Defts' motion with regard to Ms. Carolyn Hill and Mr. Mark Anderson is denied. (cc: all counsel) (EOD 6/7/01) (jb) (Entered: 06/07/2001)

06/08/2001

141 MOTION by defts for pretrial conference (w/attached proposed order) (jb) (Entered: 06/11/2001)

06/08/2001

142 NOTICE by defts of filing document as a late filed attachment to the January 2001 Semi−Annual Progress Report as referenced at page 11 of that Report, paragraph

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06/08/2001 06/11/2001 06/11/2001 06/12/2001 06/12/2001 06/12/2001
06/13/2001 06/13/2001 06/28/2001 06/29/2001 06/29/2001 06/29/2001 07/11/2001 07/12/2001 07/13/2001 07/19/2001 07/26/2001
07/30/2001 07/31/2001

15 Review of Appeals (w/attached document) (jb) (Entered: 06/11/2001)
143 EXHIBIT list by defts (jb) (Entered: 06/11/2001)
144 ATTORNEY APPEARANCE for all deft by Paul C. Ney Jr. (jb) (Entered: 06/11/2001)
PROPOSED Agreed Order allowing the defts an extension of time until 6/12/01 to provide to the pltfs all documents which they were directed to produce in the Order of 6/4/01. (jb) (Entered: 06/12/2001)
145 RESPONSE by pltfs to motion for pretrial conference [141−1] (jb) (Entered: 06/12/2001)
146 ATTORNEY APPEARANCE for deft Nancy Menke, deft Theresa Clarke, &deft George W. Hattaway by Elizabeth B. Minkoff (jb) (Entered: 06/13/2001)
149 AGREED ORDER by Magistrate Judge E. C. Knowles: The ddl for the defts to provide to the pltfs all documents which they were directed to produce in the Order of 6/4/01 is extended to noon on 6/12/01. The pltfs shall have until 6/18/01 to supplement their witness or exhibit lists to include new witnesses or documents discovered as a result of the defts' production of such records. All other matters are reserved. (cc: all counsel) (EOD 6/14/01) (jb) (Entered: 06/14/2001)
147 ATTORNEY APPEARANCE for pltfs by Tamara Lynn Seltzer (w/attached certificate of good standing) (jb) (Entered: 06/13/2001)
148 CERTIFICATE of Good Standing filed by pltfs for Tamara Lynn Seltzer from the USDC/District of Columbia (jb) (Entered: 06/13/2001)
150 RESPONSE by pltfs in opposition to defts' request for continuance [130−1] (jb) (Entered: 06/28/2001)
151 RESPONSE by defts to pltfs' filing regarding scheduling [150−1] (jb) (Entered: 06/29/2001)
152 EXHIBIT list by pltfs (jb) (Entered: 07/02/2001)
REMARK: Exhs to the 6/18/01 hearing are located in the Hall Closet in Judge Nixon's Chambers. (jb) (Entered: 07/02/2001)
153 TRANSCRIPT filed of the proceedings on 6/18/01; Vol. I; before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 07/11/2001)
154 RESPONSE by defts to pltfs' proposed scheduling order (w/attached proposed scheduling order) (jb) (Entered: 07/13/2001)
155 TRANSCRIPT filed of the hearing before the Hon. John T. Nixon on 6/27/01; Vol. IX; CR: John W. Tummel (jb) (Entered: 07/13/2001)
156 TRANSCRIPT filed of the proceedings on 6/19/01, Vol. II, before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 07/19/2001)
157 SCHEDULING ORDER by Judge John T. Nixon; defts shall conclude their defense to the pltfs' motion to show cause on 7/10, 7/12, and 7/30−8/3/01; pltfs shall file their post−trial brief and proposed findings of fact and conclusions of law by 9/4/01; defts shall file a motion to strike with regard to any of pltfs' exhs to which they object by 9/24/01; defts shall file their post−trial brief and proposed findings of fact and conclusions of law by 10/8/01; Court shall reserve 10/15/01 for either ptys who requests a hearing on any factual disputes relating to the evidentiary issues raised in the defts' motion to strike (cc: all counsel) (EOD 7/27/01) (jb) (Entered: 07/27/2001)
276 TRANSCRIPT filed of the proceedings on 6/20/01, Vol. III, before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 04/29/2002)
158 JULY 2001 SEMI−ANNUAL PROGRESS REPORT by defts. (dlt) (Entered: 08/01/2001)

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08/02/2001
08/07/2001 08/07/2001 08/08/2001 08/08/2001 08/13/2001
08/13/2001 08/14/2001
08/16/2001 08/16/2001
08/16/2001 08/16/2001 08/17/2001 08/17/2001 08/20/2001

159 AGREED ORDER by Judge John T. Nixon: both ptys recognize that the identities of specific pltf class members, regardless in what form the document might be, should remain confidential, and any document which identifies a class member should not be made public; the ptys have agreed that all exhs presented to the Court by either pty will be placed under seal and not be made available to the general public; the documents are being placed under seal to protect the privacy of individual class members; counsel for either ptys may make copies of the documents and may use them for any otherwise proper purpose, as long as any information which could be used to identify a specific class member is redacted (cc: all counsel) (EOD 8/3/01) (jb) (Entered: 08/03/2001)
160 TRANSCRIPT filed of the proceedings on 6/21/01; Vol. IV; before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/08/2001)
161 EXHIBIT list by defts (jb) (Entered: 08/09/2001)
162 CLERK'S RESUME: Hearing held on the motion to modify the remedial plan [69−1] and motion to show cause on 6/18/01 ; Motion taken under advisement; (w/attached exh/wit list) C/R: Charlotte Sloan (jb) (Entered: 08/09/2001)
PROPOSED Agreed Order re Category "L" documents (jb) (Entered: 08/09/2001)
163 ORDER by Judge John T. Nixon: W/ respect to Category L documents submitted by ptlfs containing portions of records of individual children, defts may submit w/ their proposed findings of fact and conclusions of law additional portions of the files of any children w/in Category L. W/ respect to those children w/in Category L for whom defts submit records, pltf may by close of business on 10/12/01, submit any additional portions of records &any corresponding supplemental proposed findings and briefs. EOD 8/14/01 (cc: all counsel) (dlt) (Entered: 08/14/2001)
164 TRANSCRIPT (Volume V) filed of proceedings on 6/22/01 before Judge Nixon. C/R: Charlotte Sloan (dlt) (Entered: 08/14/2001)
165 ORDER by Judge John T. Nixon; pending before the Court are defts' motion to modify the remedial plan for children in state custody and the plan for children at serious risk of entering state custody [69−1] and pltf's motion to show cause why the state defts should not be held in contempt of the consent decree [79−1]; in order to facilitate a prompt resolution of these matters, the Court has requested the ptys to submit proposed findings of fact and conclusions of law (cc: all counsel) (EOD 8/15/01) (jb) (Entered: 08/15/2001)
166 MOTION by pltfs for order to substitute the correctly paginated 1999 Department of Health Audit Report, pltfs' Exh M−90 in place of the Audit Report (w/attached Audit Report) (jb) (Entered: 08/16/2001)
167 NOTICE by pltfs of filing errata sheets for the following depositions: Christy Ballard, exh P−3; Edythe Cundall, exh. P−7; Larry Faust, exh P−11; Mary Beth Franklyn, exh P−12; Sherry Harrison, exh P−14; George Hattaway, exh P−15; Sandra Hunt, exh P−16; Patricia Newton, exh P−21; Isaac Nwaise, exh P−22; Mary Linden Salter, exh P−28; Josephine Thaler, exh P−30; Fredia Wadley, exh P−34; &Jack Welch, exh P−35 (w/attached errata sheets) (jb) (Entered: 08/16/2001)
168 NOTICE by pltfs of filing deposition of Victor White taken on 7/27/01 (w/attached deposition) (jb) (Entered: 08/16/2001)
169 DEPOSITION of Victor White taken on the following date(s): 7/27/01 (jb) (Entered: 08/16/2001)
170 TRANSCRIPT filed UNDER SEAL of the proceedings on 6/25/01, Vol. VI−A before the Hon Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/17/2001)
171 TRANSCRIPT filed of the proceedings on 6/25/01, Vol. VI−B before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/17/2001)
172 TRANSCRIPT filed UNSER SEAL, Vol. VII−A, of the proceedings on 6/26/01 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/20/2001)

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08/20/2001 08/23/2001 08/23/2001 08/27/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001 08/30/2001
08/31/2001 09/04/2001 09/04/2001
09/05/2001 09/06/2001
09/06/2001
09/14/2001
09/17/2001 09/17/2001
09/17/2001 09/17/2001

173 TRANSCRIPT filed, Vol. VII−B, of the proceedings before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/20/2001)
174 TRANSCRIPT filed of the proceedings on 6/28/01, Vol. X, before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/24/2001)
175 TRANSCRIPT filed of the proceedings on 6/29/01; Vol. XI, before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/24/2001)
176 TRANSCRIPT filed of the proceedings, Vol. XII, on 8/3/01 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 08/27/2001)
177 TRANSCRIPT filed UNDER SEAL of the proceedings on 6/26/01 before the Hon. John T. Nixon; Vol. VIII−A; CR: Beverly "Becky" Cole (jb) (Entered: 08/31/2001)
178 TRANSCRIPT filed of the proceedings on 6/26/01 before the Hon. John T. Nixon; Vol. VIII−B; CR: Beverly "Becky" Cole (jb) (Entered: 08/31/2001)
179 TRANSCRIPT filed UNDER SEAL of the proceedings on 6/26/01 before the Hon. John T. Nixon; Vol. VIII−C; CR: Beverly "Becky" Cole (jb) (Entered: 08/31/2001)
180 TRANSCRIPT filed of the proceedings on 8/7/01 before the Hon. Senior Judge John T. Nixon; Vol. XIII; CR: Charlotte H. Sloan (jb) (Entered: 08/31/2001)
181 PARTIAL TRANSCRIPT filed of the proceedings; testimony of the witness Kenneth Steverson; on 7/12/01 before the Hon. Senior Judge John T. Nixon; Vol. XIV; CR: Charlotte H. Sloan (jb) (Entered: 08/31/2001)
182 MOTION by pltf to revise scheduling order (w/attached proposed revised scheduling order) (jb) (Entered: 09/04/2001)
183 TRANSCRIPT filed of the proceedings on 7/10/01; Vol. XV; before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 09/04/2001)
184 MOTION by pltfs for order to substitute the unobscured page 9 of exh L61 which is attached to this motion in place of the page 9 of exh L61 which is currently in the possession of the Court (w/attachment) (jb) (Entered: 09/05/2001)
185 TRANSCRIPT filed of the proceedings on 7/12/01; Vol. XVI; before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 09/05/2001)
186 ORDER by Judge John T. Nixon: granting motion for order to substitute the unobscured page 9 of exh L61 which is attached to this motion in place of the page 9 of exh L61 which is currently in the possession of the Court [184−1] (cc: all counsel) EOd 9/7/01 (bj) (Entered: 09/07/2001)
187 REVISED SCHEDULING ORDER by Judge John T. Nixon: granting motion to revise scheduling order [182−1]; pltfs shall file their post−trial brief and PFFCL by 9/14/01 and defts by 10/18/01. (cc: all counsel) EOD 9/7/01 (bj) (Entered: 09/07/2001)
188 POST−HEARING BRIEF FILED by pltfs "Proof" Copy (w/attached appendices to the pltfs' post−trial brief submitted UNDER SEAL) (jb) Modified on 09/17/2001 (Entered: 09/17/2001)
189 TRANSCRIPT filed of the proceedings, Vol. XVII−A, on 7/31/01 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 09/17/2001)
190 UNDER SEAL TRANSCRIPT filed of the proceedings, Vol. XVII−B, on 7/31/01 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 09/17/2001)
191 TRANSCRIPT filed of the proceedings on 7/31/01 before the Hon. Senior Judge John T. Nixon; Vol. XVII−C; CR: Charlotte H. Sloan (jb) (Entered: 09/17/2001)
192 UNDER SEAL TRANSCRIPT filed of the proceedings on 7/31/01 before the Hon., Senior Judge John T. Nixon; Vol. XVII−D; CR: Charlotte H. Sloan (jb) (Entered: 09/17/2001)

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09/17/2001

193 TRANSCRIPT filed of the proceedings on 7/31/01 before the Hon. Senior Judge John T. Nixon; Vol. XVII−E; CR: Charlotte H. Sloan (jb) (Entered: 09/17/2001)

09/19/2001

194 FIRST STIPULATION of facts (jb) (Entered: 09/20/2001)

09/24/2001

195 TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−A; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

196 UNDER SEAL TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−B; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

197 TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−C; CR: Charolotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

198 UNDER SEAL TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−D; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

199 TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−E; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

200 UNDER SEAL TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−F; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/24/2001

201 TRANSCRIPT filed of the proceedings on 8/1/01 before the Hon. Senior Judge John T. Nixon; Vol. XVIII−G; CR: Charlotte H. Sloan (jb) (Entered: 09/25/2001)

09/27/2001

202 MOTION by defts for an extension of time until 10/26/01 in which to file their motion to strike and an extension of time until 11/9/01 in which to file their proposed findings of fact and conclusions of law and supporting brief (jb) (Entered: 09/28/2001)

09/27/2001

203 MOTION by defts for an expedited ruling on motion for extension of time (jb) (Entered: 09/28/2001)

09/28/2001

204 RESPONSE by pltfs to motion for an extension of time until 10/26/01 in which to file their motion to strike and an extension of time until 11/9/01 in which to file their proposed findings of fact and conclusions of law and supporting brief [202−1] (jb) (Entered: 09/28/2001)

09/28/2001

205 TRANSCRIPT Volume XIX filed of proceeding on 8/2/01 before Judge Nixon. C/R: Charlotte Sloan. (dlt) (Entered: 10/01/2001)

10/01/2001

206 ORDER by Judge John T. Nixon granting motion for an extension of time in which to file motion to strike and an extension of time in which to file their proposed findings of fact and conclusions of law and supporting [202−1]; the Court revises the timetable in the following manner: pltfs shall file their revised findings of fact and conclusions of law by 10/1/01; defts shall file their motion to strike by 10/12/01; defts shall file their proposed findings of fact and conclusion of law and accompanying brief by 10/26/01; the Court grants defts leave to file a brief in excess of 25 pages (cc: all counsel) (EOD 10/2/01) (jb) Modified on 10/02/2001 (Entered: 10/02/2001)

10/05/2001

207 MOTION by pltfs for leave to file final post−hearing brief (w/attached original pltf's final post−hearing brief) (jb) (Entered: 10/09/2001)

10/10/2001

208 ORDER by Judge John T. Nixon granting motion for leave to file final post−hearing brief [207−1]; in addition, the Court grants leave for the pltfs to file a brief in excess of 25 pages (cc: all counsel) (EOD 10/11/01) (jb) (Entered: 10/11/2001)

10/10/2001 209 FINAL POST−HEARING BRIEF FILED by pltfs (jb) (Entered: 10/11/2001)

10/12/2001

210 UNDER SEAL MOTION by defts to strike (w/attached exhs. A−D) (jb) (Entered: 10/15/2001)

10/12/2001

211 MEMORANDUM OF LAW by defts in support of motion to strike [210−1] (jb) (Entered: 10/15/2001)

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10/17/2001
10/18/2001 10/24/2001 10/24/2001
10/25/2001 10/26/2001 10/26/2001 10/26/2001 10/26/2001
10/29/2001
10/31/2001 11/09/2001
11/19/2001 12/11/2001 12/11/2001 12/19/2001 12/19/2001

212 ORDER by Judge John T. Nixon setting hearing on motion to strike [210−1] 10:00 10/25/01; the Court amends Scheduling Order [206−1] to allow defts to file their final post−hearing brief and Proposed Findings of Fact and Conclusions of Law on 11/2/01 (cc: all counsel) (EOD 10/17/01) (jb) (Entered: 10/18/2001)
213 NOTICE by defts of filing of corrected pages for motion to strike (w/attached corrected pages 7−8) (jb) (Entered: 10/19/2001)
214 MOTION by defts to quash (jb) (Entered: 10/25/2001)
215 ORDER by Judge John T. Nixon striking order [212−1]; the hearing on the defts' motion to strike [210−1] is now set for 10:00 10/29/01; defts' proposed findings of fact and conclusions of law and accompanying brief is due on 10/26/01 (cc: all counsel) (EOD 10/25/01) (jb) (Entered: 10/25/2001)
216 RESPONSE by pltfs to motion to quash [214−1] (w/attached exhs. 1−3) (jb) (Entered: 10/26/2001)
217 RESPONSE by pltfs to defts' motion to strike [210−1] (w/attachments A−G) (jb) (Entered: 10/29/2001)
218 POST−TRIAL BRIEF FILED by defts UNDER SEAL (jb) (Entered: 10/29/2001)
219 POST−TRIAL BRIEF by defts in support of motion to modify the Remedial Plan for children in custody and the plan for children at serious risk of entering state custody [69−1] (jb) (Entered: 10/29/2001)
220 ORDER by Judge John T. Nixon granting motion to quash [214−1]; the Court quashes the subpoenas issued by the pltfs for Commissioners George Hattaway, Elizabeth Rukeyser, and Fredia Wadley, Susie Baird, Wendy Long, Kenneth Okolo, Mark Reynolds, John Tighe and Jack Welch; the defts are ordered to assure the presence of an individual from each of three State Agencies: TennCare, DCS and the Department of Health on 10/29/01 (cc: all counsel) (EOD 10/29/01) (jb) (Entered: 10/29/2001)
221 CLERK'S RESUME; Status Hearing held 10/29/01 ; Attys should attempt to agree on a post hearing briefing schedule; also, the ptys shall agree on a date to take the deposition of the mental health representative; w/attached exh/wit list; C/R: Charlotte Sloan (jb) Modified on 10/31/2001 (Entered: 10/31/2001)
222 NOTICE by defts of withdrawal of objections made in their motion to strike filed 10/12/01 (w/attached exh. A) (jb) (Entered: 11/01/2001)
223 UNDER SEAL MEMORANDUM ORDER by Judge John T. Nixon granting in part and denying in part defts' motion to strike [210−1] as outlined in this Order; the Court will not consider any exhs that it strikes herein in drafting its Findings of Fact and Conclusions of Law; any citations to exhs that are struck from the record will not be considered by the Court; w/attached defts' objections to exhs cited in pltfs' brief (cc: all counsel) (EOD 11/13/01) (jb) (Entered: 11/13/2001)
224 MOTION by pltfs for leave to file reply brief (w/attached original reply brief) (jb) (Entered: 11/20/2001)
225 NOTICE by pltfs of filing documents, following the Court's evidentiary rulings in this case, for purposes of the completing the record regarding evidentiary issues (w/attached exhs. 1−5) (jb) (Entered: 12/12/2001)
226 DEPOSITION of Sherry Frazier Harrison taken on the following date(s): 11/15/01 (jb) (Entered: 12/12/2001)
227 FINDINGS OF FACT AND CONCLUSIONS OF LAW (cc: all counsel) EOD 12/20/01 (gi) (Entered: 12/20/2001)
228 ORDER by Judge John T. Nixon denying motion to stay enforcement of the remedial plan pending resolution of proposed modifications [63−1]; denying motion to modify the Remedial Plan for children in custody and the plan for children at serious risk of entering state custody [69−1]; granting in part motion for order to show cause [79−1] for reasons discussed in the accompanying memorandum. The Court finds that a special master is necessary to mediate and

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12/21/2001 12/28/2001 01/03/2002
01/07/2002 01/07/2002
01/08/2002 01/08/2002 01/15/2002
01/18/2002 01/22/2002 01/22/2002 01/22/2002 01/22/2002 01/22/2002 01/23/2002
01/24/2002 01/24/2002 01/25/2002 01/25/2002

submit to the Court an EPSDT−compliant plan. The Court orders both parties to submit to the Court, within 5 business days of entry of this order, an agreed order on a qualified and available person to serve as the special master. If parties fail to agree on an individual, then they are to submit the names and qualifications of three nominees to the Court for approval. The special master shall mediate and confer with the parties in order to address the EPSDT−deficiencies inherent in the current TennCare plan as discussed in Part Three of the accompanying memorandum. The special master shall submit an EPSDT−compliant plan for the Court's review within 90 days of entry of this order. EOD 12/20/01 (cc: all counsel) (gi) (Entered: 12/20/2001)
229 JOINT MOTION by pltfs &defts for an extension of time until 1/8/02 to submit special master nominations (jb) (Entered: 12/21/2001)
230 MOTION by pltfs to withdraw attorney David Kozlowski (jb) (Entered: 12/31/2001)
231 ORDER by Judge John T. Nixon granting motion for an extension of time until 1/8/02 to submit special master nominations [229−1] (cc: all counsel) (EOD 1/3/02) (jb) (Entered: 01/03/2002)
232 MOTION by pltfs to withdraw attorney Gary Housepian (jb) (Entered: 01/08/2002)
233 ORDER by Judge John T. Nixon granting motion to withdraw attorney David Kozlowski [230−1] for Estel W., Justin S., Jacob R., William B., Roscoe W., Ray M., Troy D.,Julian C., Elsie H., James D., Bayli S., Dustin P., Erica A., Meagan A., Joshua M., Carrie G., John B. (cc: all counsel) (EOD 1/8/02) (jb) (Entered: 01/08/2002)
234 NOTICE by pltfs of concurrence in nomination of special masters per Order DE #228 (jb) (Entered: 01/09/2002)
235 NOTICE by defts of submission of nominees for special master per Order DE #228 (jb) (Entered: 01/09/2002)
236 ORDER by Judge John T. Nixon granting motion to withdraw attorney Gary Housepian [232−1] as counsel of record for the pltf class (cc: all counsel) (EOD 1/15/02) (jb) (Entered: 01/15/2002)
237 MOTION by pltfs for status conference on 1/23/02 at 1:30 p.m. (jb) (Entered: 01/18/2002)
238 MOTION by deft for reconsideration , or, in the alternative to stay pending appeal (mg) (Entered: 01/23/2002)
239 DECLARATION by defts re [238−1], re [238−2] (mg) (Entered: 01/23/2002)
240 MEMORANDUM by defts in support of motion for reconsideration [238−1], of motion to stay pending appeal [238−2] (mg) (Entered: 01/23/2002)
241 NOTICE OF APPEAL by defts from Dist. Court decision [228−1] (mg) (Entered: 01/23/2002)
242 RECEIVED filing fee for $105, rcpt #83806 (mg) (Entered: 01/23/2002)
243 ORDER by Judge John T. Nixon finding the motion for status conference on 1/23/02 at 1:30 p.m. [237−1] moot. (cc: all counsel) EOD 1/25/02 (mg) (Entered: 01/25/2002)
REMARK: Copy of NOA and docket sheet sent to the parties. (mg) Modified on 01/24/2002 (Entered: 01/24/2002)
SR Record on Appeal sent to 6th CCA re [241−1] (mg) (Entered: 01/24/2002)
244 NOTICE by pltf of filing Special Master Nominees and response to defts' nominees (mg) Modified on 01/25/2002 (Entered: 01/25/2002)
245 MOTION by deft to withdraw attorney Katherine A. Brown as atty for defts (mg) (Entered: 01/25/2002)

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01/25/2002 01/25/2002 01/25/2002
01/28/2002 01/31/2002 01/31/2002 02/01/2002 02/01/2002 02/01/2002 02/01/2002
02/06/2002 02/06/2002 02/06/2002 02/06/2002 02/07/2002 02/07/2002
02/11/2002 02/11/2002 02/14/2002 02/14/2002 02/15/2002 02/25/2002 02/26/2002

246 OBJECTIONS by defts to the appointment of a special master other than as chosen by the parties. (mg) (Entered: 01/28/2002)
246 RESPONSE by defts to pltfs' nominees [244−1] (mg) (Entered: 01/28/2002)
247 ORDER by Judge John T. Nixon granting motion [245−1] to withdraw attorney Katherine A. Brown as atty for defts George W. Hattaway, Theresa Clarke, Nancy Menke (cc: all counsel) EOD 1/29/02 (mg) (Entered: 01/29/2002)
248 SUPPLEMENT by defts to RESPONSE [246−1] with attachments (mg) (Entered: 01/29/2002)
249 STATUS REPORT (January 2002 Semi−Annual Progress Report) by defts (mg) (Entered: 02/01/2002)
250 RESPONSE by pltf to motion for reconsideration [238−1], to motion to stay pending appeal [238−2] (mg) (Entered: 02/01/2002)
251 NOTICE OF APPEAL by pltfs from Dist. Court decision [228−1] (mg) (Entered: 02/01/2002)
REMARK: Copy of NOA sent to the parties. (mg) (Entered: 02/01/2002)
252 RECEIVED filing fee and forwarded to 6th CCA, rcpt #83983 (mg) (Entered: 02/01/2002)
253 ORDER by Judge John T. Nixon denying motion for reconsideration [238−1]; motion to stay pending appeal [238−2] set for hearing 1:00 2/7/02 (cc: all counsel) EOD 2/4/02 (mg) (Entered: 02/04/2002)
SR Record on Appeal sent to 6th CCA re [251−1] (mg) (Entered: 02/06/2002)
254 REPLY by defts to response to motion to stay pending appeal [238−2] (mg) (Entered: 02/06/2002)
255 SECOND DECLARATION of Mark Reynolds by defts re [254−1] (mg) (Entered: 02/06/2002)
256 NOTICE by pltfs of filing documents re the TN Medical Association's nomination of Dr. Mark Mahler (w/attachments 1 &2) (gi) (Entered: 02/07/2002)
257 NOTICE by pltfs of filing document entitled "Newsletter for Children with Special Healthcare Needs Steering Panel" (gi) (Entered: 02/07/2002)
258 CLERK'S RESUME: Hrg held 2/7/02 on motion to stay pending appeal [238−2] Special master to be appointed. Hrg cont'd until next week. (with Defts' Exh 1 &2 attached) C/R : Charlotte Sloan (mg) (Entered: 02/08/2002)
259 TRANSCRIPT filed on proceedings before Judge Nixon on 2/7/01; CR: Charlotte Sloan (mg) (Entered: 02/12/2002)
260 NOTIFICATION by 6th CCA of Appellate Docket Number 02−5125 (mg) (Entered: 02/14/2002)
TRANSCRIPT Order Form re [241−1] Transcripts already on file (mg) (Entered: 02/15/2002)
261 NOTICE by defts to withdraw heir motion for stay pending appeal (with attachment) (mg) Modified on 02/15/2002 (Entered: 02/15/2002)
262 ATTORNEY APPEARANCE for pltfs by Lisa J. D'Souza (mg) (Entered: 02/19/2002)
263 NOTIFICATION by 6th CCA of Appellate Docket Number 02−5200 (mg) (Entered: 02/26/2002)
264 ORDER by Judge John T. Nixon: The Court names Richartd A. Carter, M.D., M.P.H as Special Master Status conference set for 1:30 2/28/02 (cc: all counsel) EOD 2/26/02 (mg) (Entered: 02/26/2002)

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02/26/2002 02/28/2002 02/28/2002 02/28/2002 03/05/2002 03/05/2002 03/05/2002 03/21/2002 03/22/2002 03/28/2002 04/02/2002
04/08/2002 04/09/2002 04/12/2002 04/16/2002 04/17/2002
05/03/2002
05/06/2002 05/13/2002

TRANSCRIPT Order Form re [251−1] Transcript already on file (mg) (Entered: 02/27/2002)
265 CLERK'S RESUME Status conference held 2/28/02 Special Master/Mediator appointed. Proposed plan due in 90 days C/R : Charlotte Sloan (mg) (Entered: 03/04/2002)
266 NOTICE OF APPEAL by deft from Dist. Court decisions, [253−1] and 264 (mg) (Entered: 03/04/2002)
267 RECEIVED filing fee and forwarded to 6th CCA, rcpr #84448 (mg) (Entered: 03/04/2002)
REMARK: Copy of NOA sent to the parties (mg) (Entered: 03/05/2002)
REMARK: Copy of docket sheet from 1/24/02−3/5/02 sent to the parties (mg) (Entered: 03/05/2002)
SR Record on Appeal sent to 6th CCA re [266−1] (mg) (Entered: 03/05/2002)
268 NOTIFICATION by 6th CCA of Appellate Docket Number 02−5308 (mg) (Entered: 03/22/2002)
269 ORDER by Judge John T. Nixon Status conference set for 1:00 3/26/02 (cc: all counsel) EOD 3/22/02 (mg) (Entered: 03/22/2002)
PROPOSED Order regarding powers of special master (af) (Entered: 04/01/2002)
270 ORDER by Judge John T. Nixon: It is ORDERED w/out objection that the special master shall exercise powers and adhere to procedures set out in this order in his discharge of the responsibilities previously entrusted to him as outlined in the FFCL of 12/20/01 (cc: all counsel) (EOD 4/3/02) (af) (Entered: 04/03/2002)
271 MOTION by pltfs for status conference (w/ att'd exhibit B) (af) (Entered: 04/09/2002)
272 RESPONSE by defts to pltfs' motion for status conference [271−1] (jb) (Entered: 04/10/2002)
273 ORDER by Judge John T. Nixon granting motion for status conference [271−1]; Status conference set for 1:00 4/16/02 (cc: all counsel) (EOD 4/12/02) (jb) (Entered: 04/12/2002)
274 CLERK'S RESUME: Status conference held 4/16/02; Pltf asked Court to clarify the meaning of "holding in abeyance" the contempt order; Court to enter an order of clarification; OCR John Tummel (dcap) (Entered: 04/17/2002)
275 MEMORANDUM ORDER by Judge John T. Nixon: The Court re−affirms the continuing viability of the consent decree; The Court's decision to hold a contempt finding in abeyance does not prevent it from finding contempt at some future date. (cc: all counsel) (EOD 4/19/02) (af) (Entered: 04/19/2002)
277 ORDER by Judge John T. Nixon: The costs of Dr. Richard Carter's services as Special Master in this case are apportioned against the State. Dr. Carter shall submit invoices directly to the State, who are responsible for paying fees at $125 per hr. as well as all costs associated with his services within 30 days of being invoiced. Apportionment of the special master's compensation is made pursuant to FRCP 53(a) EOD 5/6/02 (cc: all counsel) (mk) (Entered: 05/06/2002)
REMARK: Invoices dated 3/18/02 and 4/8/02 mailed to AG's office with copy of order #277 (mk) (Entered: 05/06/2002)
278 ORDER from 6th CCA: Defts' mtn to dismiss Case No. 02−5200 is granted (cross appeal) and Case Nos 02−5125 (appeal of 12/20/01 order) and 02−5308 (defts' appeal of denial of reconsideration and order appointing special master) are partially dismissed sua sponte to the extent that they seek review of the district Court's ruling on pltfs' mtn for contempt and the order appointing Special Master. (mk) (Entered: 05/14/2002)

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06/03/2002

279 MOTION by defts Nancy Menke, Theresa Clarke &George W. Hattaway to withdraw as attorneys of record (af) (Entered: 06/04/2002)

06/03/2002

280 MANDATE from 6CCA dismissing the appeal [251−1] no. 02−5200 pursuant to the court's disposition filed 5/9/02 (af) (Entered: 06/04/2002)

06/12/2002

281 NOTICE by defts of new Tenncare waiver and request for modification of consent decree (w/attached proposed order) (jb) (Entered: 06/12/2002)

06/12/2002

281 MOTION by defts for modification of consent decree (Contained in Notice of new Tenncare waiver DE #281) (jb) (Entered: 06/12/2002)

06/20/2002

282 MOTION by pltfs for additional time to respond to the defts' ntc of new TennCare waiver and request for modification of consent decree . (dlt) (Entered: 06/21/2002)

06/20/2002

283 (FILED UNDER SEAL) Special Master's Report w/ attachments I−VIII. (dlt) (Entered: 06/21/2002)

06/26/2002

284 ORDER by Judge John T. Nixon granting motion for additional time through 07/08/02 to respond to the defts' ntc of new waiver and request for modification of consent decree [282−1]. EOD 06/27/02 (cc: all counsel) (ot) (Entered: 06/27/2002)

07/05/2002

285 BRIEF by pltfs in response to defts' notice of new Tenncare waiver and request for modification of consent decree [281−1] (w/attached appendix A−E) (jb) (Entered: 07/08/2002)

07/09/2002

286 ORDER by Judge John T. Nixon: The Court is in receipt of defts' Ntc of New Tenncare Waiver and Request for Modification of Consent Decree. The Court finds that the issues raised merit a hearing which is set for 11:00 on 7/25/02. EOD 7/10/02 (cc: all counsel) (gi) (Entered: 07/10/2002)

07/23/2002

287 MOTION by defts for attorney Charles A. Miller to appear pro hac vice (w/attached copy of certificate of good standing) (jb) (Entered: 07/24/2002)

07/29/2002

288 CLERK'S RESUME: Status Conference held 7/25/02 on motion to modify the consent decree. The Court allowed 45 days for additional information to the submitted. C/R: Charlotte Sloan (jb) (Entered: 07/31/2002)

07/31/2002

289 JULY 2002 SEMI−ANNUAL PROGRESS REPORT by defts (jb) (Entered: 08/01/2002)

07/31/2002

290 ORDER by Judge John T. Nixon granting motion to withdraw as attorneys of record [279−1]; withdrawing attorneys Paul C. Ney Jr., Kathryn A. Stephenson, Leesa A. Hinson, &Paul W. Ambrosius for defts (cc: all counsel) (EOD 8/1/02) (jb) (Entered: 08/01/2002)

08/13/2002

291 MEMORANDUM ORDER by Judge John T. Nixon: The Court will not modify the Consent Decree at this time. The Court retains its authority over the Consent Decree. The Court recognizes that ptys' assent to the recission of the Agreed Orders regarding children in, or at risk of entering State custody (DE #57, 59), and the Agreed Orders are rescinded. The Special Master shall provide the State with the attached itemized breakdown of the Consent Decree, to be known as the Itemized Assessment Protocol which will be used by the State, Special Master, and the Court, in assessing compliance with the terms of the Consent Decree and federal EPSDT law. Order DE #270 is amended as outlined in this Order. Within 60 days of the entry of this order, the State shall complete a baseline assessment utilizing the Special Master's IAP, and provide the Special Master with a copy of the baseline assessment. Within 90 days of the entry of this Order, the State shall provide both the Special Master and pltfs' counsel with an initial Work Plan, referencing the Special Master's IAP. The Court shall periodically measure the State's adherence to the terms of EPSDT law and the Consent Decree. The Court shall set quarterly, in−court status conferences to discuss the State's progress. The first of these conferences is set for 10/30/02 at 10:00. All other matters are reserved, and the Court continues to hold a finding on the State's contempt in abeyance. (cc: all counsel) (EOD 8/14/02) (jb) (Entered: 08/14/2002)

09/06/2002

292 MOTION by pltfs for an extension of time of an additional 30 day extension to respond to State's motion to modify the consent decree (w/attached exh. 1) (jb) (Entered: 09/06/2002)

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09/10/2002 09/17/2002
09/17/2002
10/01/2002
10/09/2002
10/23/2002
10/23/2002 10/31/2002 11/04/2002 11/04/2002 11/08/2002 11/12/2002
11/19/2002 12/13/2002
12/19/2002 12/19/2002 12/20/2002 12/31/2002
01/06/2003 01/14/2003 01/21/2003

293 MOTION by defts for withdrawal of Elizabeth B. Minkoff as counsel of record (w/attachment) (jb) (Entered: 09/10/2002)
294 ORDER by Judge John T. Nixon granting motion for an extension of time of an additional 30 day extension to respond to State's motion to modify the consent decree [281−1] [292−1] (cc: all counsel) (EOD 9/17/02) (jb) (Entered: 09/17/2002)
295 ORDER by Judge John T. Nixon granting motion for withdrawal of Elizabeth B. Minkoff as counsel of record [293−1] for the defts (cc: all counsel) (EOD 9/17/02) (jb) (Entered: 09/17/2002)
296 MOTION by defts for clarification regarding the appropriate process and procedure to be followed with respect to the submission of claims for, and the reimbursement of costs and expenses associated with the services of the Special Master (w/attachments) (jb) (Entered: 10/02/2002)
297 SUPPLEMENTAL BRIEF IN RESPONSE by pltfs to defts' notice of new TennCare waiver and request for modification of consent decree [281−1] (w/attachment A) (jb) (Entered: 10/09/2002)
298 REPLY by defts to pltfs' supplemental brief filed in response to notice to Court of new waiver and request for modification [281−1] (w/attached exhs. A−D) (jb) (Entered: 10/24/2002)
PROPOSED Order to modify the consent decree (jb) (Entered: 10/24/2002)
299 ORDER by Judge John T. Nixon: Status Conference is reset for 11:00 11/15/02. (cc: all counsel) (EOD 11/1/02) (jb) (Entered: 11/01/2002)
300 TRANSCRIPT filed of the proceedings on 7/25/02 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 11/04/2002)
301 SECOND SUPPLEMENTAL BRIEF IN RESPONSE by pltfs to defts' request for modification of consent decree [281−1] (jb) (Entered: 11/04/2002)
302 ORDER from 6th CCA dated 11/6/02 dismissing appeal pursuant to mtn for voluntary dismissal by appellants (mk) (Entered: 11/12/2002)
303 ORDER by Judge John T. Nixon granting the defts an extension for submission of an Initial Work Plan. The Court orders that the defts submit their Initial Work Plan by 12/13/02. (cc: all counsel) (EOD 11/13/02) (jb) (Entered: 11/13/2002)
304 CLERK'S RESUME: Status Conference held 11/15/02. The State needs additional time to prepare the IAP. C/R: Charlotte Sloan (jb) (Entered: 11/20/2002)
305 ORDER by Judge John T. Nixon: Status conference set for 1:30 on 12/19/02 to discuss the appropriate procedure for reimbursement of the Special Master's expenses. EOD 12/13/02 (cc: all counsel) (gi) (Entered: 12/13/2002)
306 NOTICE by pltfs of filing two documents regarding the defts' motion to modify pending before the Court (w/attached exhs. 1 &2) (jb) (Entered: 12/19/2002)
307 CLERK'S RESUME: Status conference held on 12/19/02 . C/R: John Tummel (dlt) (Entered: 12/20/2002)
PROPOSED Order re: cost stmts of the fees &expenses of the Special Master. (dlt) (Entered: 12/23/2002)
308 NOTICE OF FILING by defts of document relating to ntc of New TennCare Waiver and Request for modification of consent decree (w/attachments) (vh) (Entered: 01/02/2003)
309 RESPONSE by pltfs to deft's notice of filing documents [308−1] (w/attachment) (jb) (Entered: 01/08/2003)
310 DEFTS' COMMENTS ON INVOICE OF SPECIAL MASTER (jb) (Entered: 01/15/2003)
311 ORDER by Judge John T. Nixon: Status Conference is set for 10:00 2/21/03. (cc: all counsel) (EOD 1/22/03) (jb) (Entered: 01/22/2003)

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01/23/2003
01/31/2003 02/11/2003 02/21/2003 03/07/2003 03/12/2003 03/25/2003 03/25/2003
04/01/2003 04/01/2003
04/04/2003 04/07/2003 04/17/2003 04/18/2003

312 ORDER by Judge John T. Nixon granting motion for clarification regarding the appropriate process and procedure to be followed with respect to the submission of claims for, and the reimbursement of costs and expenses associated with the services of the Special Master [296−1]. The cost statements for the fees and expenses of the Special Master, his office, staff, and independent experts/monitors, in accordance with the Memorandum Order of 8/14/02, are to be submitted directly to the Court, with a contemporaneous copy to the State. (cc: all counsel) (EOD 1/23/03) (jb) (Entered: 01/23/2003)
313 JANUARY 2003 SEMI−ANNUAL PROGRESS REPORT by defts (gi) (Entered: 02/03/2003)
314 JOINT NOTICE by parties regarding attorneys' fees (w/attached proposed order) (km) (Entered: 02/12/2003)
315 CLERK'S RESUME: Status Conference held 2/21/03. New date of plan implementation for benefits 4/1/03. Meeting w/special master beneficial. Status Conference to be set in 90 days. C/R: John Tummel (jb) (Entered: 02/24/2003)
316 MOTION by pltfs to withdraw attorney Mary Giliberti (jb) (Entered: 03/07/2003)
317 ORDER by Judge John T. Nixon granting motion to withdraw attorney Mary Giliberti [316−1] for the pltfs (cc: all counsel) (EOD 3/13/03) (jb) (Entered: 03/13/2003)
318 ORDER by Judge John T. Nixon awarding atty's fees. Pursuant to the ptys' Joint Notice Regarding Attorney's Fees [314−1], attys' fees and expenses are Ordered as follows: Tennessee Justice Center $1,336,152.00 and Bazelon Center $15,715.61. (cc: all counsel) (EOD 3/26/03) (jb) Modified on 03/26/2003 (Entered: 03/26/2003)
319 ORDER by Judge John T. Nixon: Pending before the Court is Defts' Notice of New TennCare Waiver and Request for Modification of Consent Decree [281−1] [281−1]. The Court has concluded that additional briefing and a hearing are required for proper resolution of the issues outlined in this Order. The Court Orders that the ptys submit briefs on the questions in this Order by 4/16/03. Hearing is set for 1:00 4/24/03 at which time argument on the issues in this Order will be heard. (cc: all counsel) (EOD 3/26/03) (jb) Modified on 03/26/2003 (Entered: 03/26/2003)
320 ORDER by Judge John T. Nixon granting motion for attorney Charles A. Miller to appear pro hac vice [287−1] by defts (cc: all counsel) (EOD 4/1/03) (jb) (Entered: 04/01/2003)
321 ORDER by Judge John T. Nixon: The Court is in receipt of invoices from the Special Master for January and February expenses. Defts have not filed objections to the two invoices within the fourteen days allowed under the payment procedure approved by the Court re DE #312. The Court orders that defts promptly reimburse the Special Master $32,364.03 for January expenses and $35,825.85 for February expenses. (cc: all counsel) (EOD 4/1/03) (jb) (Entered: 04/01/2003)
322 JOINT MOTION by pltfs &defts to hold in abeyance briefing of deft's motion to modify consent decree (w/attached proposed order) (jb) (Entered: 04/07/2003)
323 ORDER by Judge John T. Nixon: The briefing schedule set in the Court's March 26, 2003 order will be held in abeyance pending negotiations of the parties re [322−1]. (cc: all counsel) (EOD 4/8/03) (jb) (Entered: 04/08/2003)
324 NOTICE by counsel for pltfs of change of address to: Tennessee Justice Center, 301 Charlotte Ave., Nashville, TN 37201 (xc: af) (jb) (Entered: 04/18/2003)
325 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice form the Special Master for March expenses. The Court has found one minor error in calculation in the invoice. The subtotal of salaries and travel expenses should be $35,066.88 rather than $35,036.16; therefore, the grand total should be $38,953.03 rather than $38,922.31. The Court orders that defts promptly reimburse the Special Master for March expenses in the amount of $38,953.03. (cc: all counsel) (EOD 4/18/03) (jb) (Entered: 04/18/2003)

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05/06/2003 05/13/2003 05/14/2003 05/28/2003 05/28/2003
06/10/2003 06/10/2003
07/10/2003 07/15/2003
07/31/2003 08/04/2003 08/06/2003
08/19/2003
08/27/2003 08/28/2003 09/16/2003 09/19/2003

326 NOTICE by special master Richard A. Carter of change of address to: Richard A. Carter, MD, MPH, Office of Special Master, One Vantage Way, Suite E−210, Nashville, TN 37228 (xc: af) (jb) (Entered: 05/14/2003)
327 ORDER by Judge John T. Nixon: Quarterly Status Conference is set for 1:00 on 5/28/03. (cc: all counsel) (EOD 5/14/03) (jb) (Entered: 05/14/2003)
REMARK − Address updated for Special Master, Richard A. Carter, per DE No. 326 (af) (Entered: 05/14/2003)
328 LETTER from special master Richard A. Carter re: April expenses w/attached invoices which totals to: $30,742.92. (jb) (Entered: 05/28/2003)
329 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice [328−1] from the Special Master for April expenses. Defts have not filed any objections to this invoice within 14 days allowed under the payment procedure approved by the Court. The Court orders that defts promptly reimburse the Special Master for April expenses in the amount of $30,742.92. (cc: all counsel) (EOD 5/28/03) (jb) (Entered: 05/28/2003)
330 LETTER from special master Richard A. Carter re: May expenses w/attached invoices which totals to: $29,251.99. (jb) (Entered: 06/11/2003)
331 ORDER by Judge John T. Nixon: The Court is in reciept of an invoice from the Special Master for May expenses re [330−1]. The Court orders that defts promptly reimburse the Special Master for May expenses in the amount of $29,251.99. (cc: all counsel) (EOD 6/11/03) (jb) (Entered: 06/11/2003)
332 ORDER by Judge John T. Nixon: Status Conference is reset for 1:30 on 8/21/03. (cc: all counsel) (EOD 7/11/03) (jb) Modified on 07/11/2003 (Entered: 07/11/2003)
333 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for June expenses. Defts have not filed any objections to this invoice. The Court orders that defts promptly reimburse the Special Master for June expenses in the amount of $38,658.90. EOD 7/15/03 (cc: all counsel) (gi) (Entered: 07/15/2003)
334 JULY 2003 SEMI−ANNUAL PROGRESS REPORT by defts (jb) (Entered: 08/01/2003)
335 ATTORNEY APPEARANCE for pltfs by Shawn L. Caster (jb) (Entered: 08/04/2003)
336 NOTICE by defts of filing the attached document: July 2003 Semi−Annual Report, Modified 8/6/03. The Report is identical to the Report filed on 7/31/03, with the exception that the John B. Chronology on pages 1−17 of that Report has been deleted at the request of the Special Master, and the original pagination of that Report has been changed accordingly. (jb) (Entered: 08/06/2003)
337 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for July expenses. Defts have not filed any objections to this invoice. The Court orders that defts promptly reimburse the Special Master for July expenses in the amount of $41,585.61. (cc: all counsel) (EOD 8/20/03) (jb) (Entered: 08/20/2003)
338 NOTICE by defts of withdrawal of notice of new Tenncare waiver and request for modification of consent decree DE #281 (jb) Modified on 08/28/2003 (Entered: 08/28/2003)
339 ORDER by Judge John T. Nixon finding the pltfs' motion for leave to file reply brief [224−1] moot. (cc: all counsel) (EOD 8/28/03) (jb) (Entered: 08/28/2003)
340 COMMENTS by defts on Special Master's invoice for August 2003 (gi) (Entered: 09/17/2003)
341 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for August expenses. The Court orders that defts promptly reimburse the Special Master for August expenses in the amount of $35,903.27. (cc: all counsel) (EOD 9/19/03) (jb) (Entered: 09/19/2003)

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09/24/2003

342 ORDER by Judge John T. Nixon: Status conference is set for 10:00 on 11/21/03. (cc: all counsel) (EOD 9/24/03) (jb) (Entered: 09/24/2003)

09/29/2003

343 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for expenses incurred by experts Dr. Paul Newacheck and Dr. Larry J. Platt through August 31. The Court orders that defts promptly reimburse the Special Master for these expenses in the amount of $16,317. (cc: all counsel) (EOD 9/30/03) (jb) (Entered: 09/30/2003)

10/03/2003

344 STATUS REPORT by Special Master Richard A. Carter with attached Exhs 1−19 (mk) (Entered: 10/06/2003)

10/07/2003

345 COMMENTS by defts on Special Master's invoice for September 2003 (jb) (Entered: 10/07/2003)

10/16/2003

346 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for September expenses. Defts submitted comments on this invoice DE #345, noting an error in calculation. This Order reflects that revision. The Court orders that defts promptly reimburse the Special Master for September expenses in the amount of $48,696.17. (cc: all counsel) (EOD 10/16/03) (jb) (Entered: 10/16/2003)

10/16/2003

347 LETTER from special master Richard A. Carter re: August 2003 expenses w/attached invoices which totals to: $16,317.81. (jb) (Entered: 10/16/2003)

10/16/2003

348 LETTER from special master Richard A. Carter re: September 2003 expenses w/attached invoices which totals to: $48,440.67. (jb) (Entered: 10/16/2003)

11/12/2003

349 DEFTS' COMMENTS ON SPECIAL MASTER'S INVOICE (Expenses incurred from October 1, 2003 − October 31, 2003) (jb) (Entered: 11/13/2003)

11/17/2003

350 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for October expenses. The Court orders that defts promptly reimburse the Special Master for October expenses in the amount of $61,375.67. (cc: all counsel) (EOD 11/18/03) (jb) (Entered: 11/18/2003)

12/17/2003

351 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for November expenses. The Court notes an error in calculation in the invoice; this Order reflects the corrected caluulation. The Court orders that defts promptly reimburse the Special Master for November expenses in the amount of $45,385.56. (cc: all counsel) (EOD 12/18/03) (jb) (Entered: 12/18/2003)

01/26/2004

352 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for December expenses. The Court orders that defts promptly reimburse the Special Master for December expenses in the amount of $46,325.14. (cc: all counsel) (EOD 1/26/04) (jb) (Entered: 01/26/2004)

01/29/2004

353 APPLICATION by pltfs for award of attorneys' fees and expenses (jb) (Entered: 01/29/2004)

01/29/2004

354 MEMORANDUM by pltf in support of application for award of attorneys' fees and expenses [353−1] (jb) (Entered: 01/29/2004)

01/29/2004

355 DECLARATION by pltfs of Jane Beasley re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

01/29/2004

356 DECLARATION by pltfs of Gordon Bonnyman, Jr. re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

01/29/2004

357 DECLARATION by pltfs of Chelsey Burns re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

01/29/2004

358 DECLARATION by pltfs of Chelsey Burns re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

01/29/2004

359 DECLARATION by pltfs of Shawn L. Caster re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

01/29/2004

360 DECLARATION by pltfs of Lisa J. D'Souza re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)

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01/29/2004 01/29/2004 01/29/2004 01/29/2004 01/30/2004 02/02/2004 02/10/2004 02/17/2004
02/18/2004 02/25/2004 02/26/2004 03/09/2004 03/15/2004
04/16/2004
04/16/2004
05/18/2004
05/20/2004 05/20/2004 05/20/2004

361 DECLARATION by pltfs of Michele M. Johnson re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)
362 DECLARATION by pltfs of Katherine Lacy re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)
363 DECLARATION by pltfs of Russell Overby re [353−1] (w/attachment) (jb) (Entered: 01/29/2004)
PROPOSED Agreed Order extending the deadline for deft's response to pltfs' motion for an award of attorneys' fees (jb) (Entered: 01/29/2004)
364 JANUARY 2004 SEMI−ANNUAL PROGRESS REPORT by defts (w/attachments A &B) (jb) (Entered: 01/30/2004)
365 AGREED ORDER by Judge John T. Nixon extending the deadline until 3/12/04 for deft's response to pltfs' motion for award of attorneys' fees [353−1] (cc: all counsel) (EOD 2/3/04) (jb) (Entered: 02/03/2004)
366 ORDER by Judge John T. Nixon: Status Conference is set for 10:00 a.m. on 2/23/04. (cc: all counsel) (EOD 2/10/04) (jb) (Entered: 02/10/2004)
367 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for January expenses. The Court has reviewed this invoice and orders that defts promptly reimburse the Special Master for January expenses in the amount of $59,264.11. (cc: all counsel) (EOD 2/17/04) (jb) (Entered: 02/17/2004)
514 NOTICE by defts of filing the attached copy of the supplement to the 9/24/04 proposed amendment to the TennCare Demonstration Project (jb) (Entered: 02/22/2005)
368 JOINT NOTICE by pltfs &defts regarding attorneys' fees (w/attached proposed order awarding attorneys' fees) (jb) (Entered: 02/25/2004)
369 ORDER approved by Judge John T. Nixon awarding attorneys' fees re [368−1]. Tennessee Justice Center $140,392.12. (cc: all counsel) (EOD 2/26/04) (jb) (Entered: 02/26/2004)
370 ORDER by Judge John T. Nixon: Status Conference is set for 10:00 a.m. on 5/20/04. (cc: all counsel) (EOD 3/9/04) (jb) (Entered: 03/09/2004)
371 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for February expenses. The Court has reviewed this invoice and orders that defts promptly reimburse the Special Master for February expenses in the amount of $51,870.23. (cc: all counsel) (EOD 3/15/04) (jb) (Entered: 03/15/2004)
372 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for March expenses. The Court has reviewed this invoice and orders that defts promptly reimburse the Special Master for March expenses in the amount of $57,002.77. (cc: all counsel) (EOD 4/19/04) (jb) (Entered: 04/19/2004)
373 ORDER by Judge John T. Nixon: The Court is in receipt of a letter from the Special Master requesting permission to purchase a server computer. The Court is persuaded that this is a prudent purchase and hereby authorizes the purchase of a server computer. (cc: all counsel) (EOD 4/19/04) (jb) (Entered: 04/19/2004)
374 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for April expenses. The Court has reviewed this invoice and hereby order that defts promptly reimburse the Special Master for March expenses in the amount of $65,353.60. (EOD 5/19/04) (cc: all counsel) (km) (Entered: 05/19/2004)
375 MOTION by pltf for evidentiary hearing (jb) (Entered: 05/21/2004)
376 BRIEF by pltfs in support of motion for evidentiary hearing [375−1] (jb) (Entered: 05/21/2004)
377 CERTIFICATE by pltfs in support of motion for evidentiary hearing (jb) (Entered: 05/21/2004)

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05/21/2004 05/28/2004 06/01/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/04/2004 06/10/2004 06/10/2004 06/10/2004
06/10/2004 06/10/2004

378 CLERK'S RESUME: Status conference held 5/20/04. Motion for contempt will be filed by pltfs. Limited discovery. Depositions to be taken in open Court. Order will enter. (jb) (Entered: 05/21/2004)
379 RESPONSE by defts to pltfs' proposed scheduling order (km) (Entered: 05/28/2004)
380 ORDER by Judge John T. Nixon granting motion for evidentiary hearing [375−1]; Hearing set on the pltfs' motion beginning at 10:00 a.m. on 8/9/04. All other matters reserved. (EOD 6/2/04) (cc: all counsel) (km) (Entered: 06/02/2004)
381 MOTION by defts for attorney Hamish P. M. Hume to appear pro hac vice (w/attached certificate of good standing)(PHV fee paid 6/7/04) (jb) Modified on 06/15/2004 (Entered: 06/04/2004)
382 CERTIFICATE of Good Standing filed by defts for Hamish P. M. Hume from USDC/DC (jb) (Entered: 06/04/2004)
383 MOTION by defts for attorney Michael W. Kirk to appear pro hac vice (w/attached certificate of good standing)(PHV fee paid 6/7/04) (jb) Modified on 06/15/2004 (Entered: 06/04/2004)
384 CERTIFICATE of Good Standing filed by defts for Michael W. Kirk from USDC/DC (jb) (Entered: 06/04/2004)
385 MOTION by defts for attorney Charles J. Cooper to appear pro hac vice (w/attached certificates of good standing)(PHV fee paid 6/7/04) (jb) Modified on 06/15/2004 (Entered: 06/04/2004)
386 CERTIFICATE of Good Standing filed by defts for Charles J. Cooper from USDC/DC (jb) (Entered: 06/04/2004)
387 MOTION by defts for attorney Derek L. Shaffer to appear pro hac vice (w/attached certificate of good standing)(PHV fee paid 6/7/04) (jb) Modified on 06/15/2004 (Entered: 06/04/2004)
388 CERTIFICATE of Good Standing filed by defts for Derek L. Shaffer from USDC/DC (jb) (Entered: 06/04/2004)
389 RESPONSE by defts in opposition to pltfs' motion for evidentiary hearing [375−1] and motion to reconsider scheduling order (w/attachments) (jb) (Entered: 06/04/2004)
389 MOTION by defts to reconsider scheduling order (Contained in same document as defts' response in opposition to pltf's motion for evidentiary hearing DE #389.) (jb) (Entered: 06/04/2004)
390 MOTION by defts for oral argument on pltfs' motion for evidentiary hearing, the State's response in opposition, and the State's motion to reconsider scheduling order (jb) (Entered: 06/04/2004)
391 MOTION by pltfs for Rule 706 designation of Court's expert witnesses and, to compel defts to comply with reporting requirements (jb) (Entered: 06/10/2004)
392 BRIEF by pltfs in support of motion for Rule 706 designation of Court's expert witnesses [391−1], and to compel defts to comply with reporting requirements [391−2] (w/attached exhs. A &B) (jb) (Entered: 06/10/2004)
393 ORDER by Judge John T. Nixon granting motion for oral argument [390−1]. The ptys are Ordered to present oral arguments on 6/15/04 at 1:00 p.m. on pltfs' motion for evidentiary hearing [375−1]. (cc: all counsel) (EOD 6/10/04) (jb) (Entered: 06/10/2004)
394 MOTION by defts for protective order (w/attachments and proposed order) (jb) (Entered: 06/14/2004)
395 MEMORANDUM by defts in support of motion for protective order [394−1] (w/attachments) (jb) (Entered: 06/14/2004)

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06/10/2004 06/10/2004 06/10/2004
06/14/2004 06/14/2004 06/15/2004
06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/18/2004
06/18/2004
06/18/2004 06/18/2004 06/18/2004 06/18/2004

396 NOTICE by defts of filing of the attached declaration of M.D. Goetz, Jr. submitted in support of defts' motion for protective order (jb) (Entered: 06/14/2004)
397 DECLARATION by defts of M.D. Goetz, Jr. re [394−1] (jb) (Entered: 06/14/2004)
398 CERTIFICATE by defts of counsel. On 6/10/04 a telephone conference took place with pltf's counsel in a good faith effort to resolve by agreement the issues that are raised in the defts' motion for protective order. Those efforts were not successful. (jb) (Entered: 06/14/2004)
399 BRIEF by pltfs in opposition to defts' motion for protective order [394−1] (jb) (Entered: 06/14/2004)
400 ATTORNEY APPEARANCE for defts by Ronald G. Harris, Aubrey B. Harwell Jr., &Philip D. Irwin (jb) (Entered: 06/14/2004)
401 ORDER by Judge John T. Nixon: The defts are Ordered to file a response to the motion for Rule 706 designation of Court's expert witnesses [391−1], and to compel defts to comply with reporting requirements [391−2] by the end of business on 6/21/04. (cc: all counsel) (EOD 6/16/04) (jb) (Entered: 06/16/2004)
402 NOTICE by pltfs of filing the attached late−filed exhs. A &B to the June 15, 2004 hearing (jb) (Entered: 06/16/2004)
403 MOTION by pltfs to show cause (w/attached exhs. A−D) (jb) (Entered: 06/16/2004)
404 BRIEF by pltfs in support of motion to show cause [403−1] (jb) (Entered: 06/16/2004)
405 CERTIFICATE by pltfs in support of motion for evidentiary hearing (jb) (Entered: 06/16/2004)
406 COMMENTS by defts on Special Master's Invoice (jb) (Entered: 06/16/2004)
407 RESPONSE by defts to pltfs' ntc of filing [402−1] (gi) (Entered: 06/17/2004)
408 CLERK'S RESUME: Hearing on motion for evidentiary hearing [375−1] &status conference held on 6/15/04. Order will enter. C/R : Charles Cooper (dlt) (Entered: 06/18/2004)
409 ORDER by Judge John T. Nixon: The Court sets aside its Order of 6/2/04 [380−1][380−2] setting a hearing for 10:00 a.m. on 8/9/04. Hearing set for 8/9/04 is set aside. Defts mtn for protective order [394−1] is denied. Scheduling conference set for 10:00 a.m. on 7/7/04 , at which the parties &the Court will have the benefit of discovery gained after the entry of this Order. EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)
410 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for May expenses. The Court has reviewed this invoice &hereby orders that defts promptly reimburse the Special Master for May expenses in the amount of $63,298.70. EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)
411 ORDER by Judge John T. Nixon granting motion for attorney Hamish P. M. Hume to appear pro hac vice [381−1] by defts. EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)
412 ORDER by Judge John T. Nixon granting motion for attorney Michael W. Kirk to appear pro hac vice [383−1] by defts EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)
413 ORDER by Judge John T. Nixon granting motion for attorney Charles J. Cooper to appear pro hac vice [385−1] by defts. EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)
414 ORDER by Judge John T. Nixon granting motion for attorney Derek L. Shaffer to appear pro hac vice [387−1] by deft. EOD 6/18/04 (cc: all counsel) (dlt) (Entered: 06/18/2004)

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06/21/2004 06/21/2004
06/30/2004 07/02/2004 07/06/2004 07/07/2004 07/09/2004 07/13/2004 07/13/2004 07/13/2004
07/13/2004 07/13/2004 07/13/2004 07/13/2004 07/13/2004 07/13/2004 07/13/2004 07/13/2004 07/13/2004
07/15/2004
07/15/2004 07/15/2004 07/16/2004

415 TRANSCRIPT filed of proceedings on 6/15/04 at 1:00 p.m. before the Hon. Senior Judge John T. Nixon CR: Charlotte H. Sloan (jb) (Entered: 06/21/2004)
416 OPPOSITION by defts to pltfs' motion for Rule 706 designation of Court's expert witnesses [391−1] and to compel defts to comply with reporting requirements [391−2] (w/attachment) (jb) (Entered: 06/22/2004)
417 RESPONSE by defts to pltfs' motion to show cause [403−1] (jb) (Entered: 07/01/2004)
418 BRIEF FILED by pltfs regarding case scheduling (w/attached exhs. 1−5) (jb) Modified on 07/16/2004 (Entered: 07/02/2004)
419 BRIEF FILED by defts re: case scheduling (mk) (Entered: 07/06/2004)
420 NOTICE by defts of filing (copies) deposition transcripts of Dave Goetz &Manuel Martins. (w/ attachments) (dlt) (Entered: 07/07/2004)
421 CLERK'S RESUME: Status conference held on 7/7/04 . Order will enter regarding show cause hearing. C/R: Charlotte Barr−Sloan (dlt) (Entered: 07/09/2004)
422 MOTION by pltfs to compel discovery (jb) (Entered: 07/14/2004)
423 BRIEF by pltfs in support of motion to compel discovery [422−1] (jb) (Entered: 07/14/2004)
424 NOTICE by pltfs of filing documents in support of motion to compel (w/attached declarations of Marjorie Bristol, Chelsey Burns, Shawn Caster, Lisa J.D'Souza, Keri Fowler, &Russell J. Overby) (jb) (Entered: 07/14/2004)
425 DECLARATION by pltfs of Marjorie Bristol re [424−1] (jb) (Entered: 07/14/2004)
426 DECLARATION by pltfs of Chelsey M. Burns re [424−1] (jb) (Entered: 07/14/2004)
427 DECLARATION by pltfs of Shawn Caster re [424−1] (jb) (Entered: 07/14/2004)
428 DECLARATION by pltfs of Lisa J. D'Souza re [424−1] (jb) (Entered: 07/14/2004)
429 DECLARATION by pltfs of Keri Fowler re [424−1] (jb) (Entered: 07/14/2004)
430 DECLARATION by pltfs of Russell J. Overby re [424−1] (jb) (Entered: 07/14/2004)
431 CERTIFICATE by pltfs in support of motion to compel discovery (w/attachments) (jb) (Entered: 07/14/2004)
432 JOINT STATEMENT of discovery issues in dispute by pltfs &defts (jb) (Entered: 07/14/2004)
433 MEMORANDUM ORDER by Judge John T. Nixon: The motion for Rule 706 designation of Court's expert witnesses [391−1] is denied. The Court holds in abeyance pltfs' motion to compel defts to comply with reporting requirements [391−2]. (cc: all counsel) (EOD 7/14/04) (jb) (Entered: 07/14/2004)
434 ORDER by Judge John T. Nixon referring to Magistrate Judge E. C. Knowles the motion to compel discovery [422−1] (cc: all counsel) (EOD 7/15/04) (jb) (Entered: 07/15/2004)
435 SUPPLEMENTAL BRIEF by pltfs regarding case scheduling re [418−1] (jb) (Entered: 07/16/2004)
436 NOTICE by pltfs of filing documents (w/attached copy of declaration of John C. Ring, M.D.) (jb) (Entered: 07/16/2004)
437 UNDER SEAL TRANSCRIPT filed of the Status Conference on 5/20/04 at 10:00 a.m. before Dr. Richard Carter, Special Master; CR: Martha A. Denton (jb) Modified on 07/16/2004 (Entered: 07/16/2004)

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07/19/2004 07/20/2004
07/26/2004 07/27/2004 07/28/2004
07/30/2004 07/30/2004 07/30/2004 08/02/2004 08/05/2004 08/06/2004 08/06/2004 08/06/2004 08/09/2004 08/09/2004
08/10/2004 08/10/2004 08/10/2004 08/19/2004 08/20/2004
08/24/2004

438 SUPPLEMENTAL BRIEF by defts regarding case scheduling [419−1] (jb) (Entered: 07/19/2004)
439 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for June expenses. The Court has reviewed this invoice and hereby orders that defts promptly reimburse the Special Master for June expenses in the amount of $53,155.84. (cc: all counsel) (EOD 7/21/04) (jb) Modified on 07/21/2004 (Entered: 07/21/2004)
440 TRANSCRIPT filed of proceedings on 7/7/04 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 07/26/2004)
441 RESPONSE by defts to pltfs' motion to compel discovery [422−1] (jb) (Entered: 07/27/2004)
442 ORDER by Judge John T. Nixon: Several motions are pending before the court in this matter, including pltfs' motion to show cause and supporting memorandum (Doc. Nos. 402, 404) to which defts have responded DE #417. Status Conference is set for 1:30 p.m. on 8/9/04. (cc: all counsel) (EOD 7/28/04) (jb) (Entered: 07/28/2004)
443 SUPPLEMENTAL BRIEF by pltfs in support of motion to show cause [403−1] (jb) (Entered: 08/02/2004)
444 MOTION by pltfs for clarification or reconsideration (jb) (Entered: 08/02/2004)
445 BRIEF by pltfs in support of motion for clarification [444−1] or reconsideration [444−2] (jb) (Entered: 08/02/2004)
446 JULY 2004 SEMI−ANNUAL PROGRESS REPORT by defts (jb) (Entered: 08/02/2004)
447 UNOPPOSED MOTION by defts to take deposition of John C. Ring, M.D. in Washington, D.C. (jb) (Entered: 08/05/2004)
448 RESPONSE by defts to pltfs' motion for clarification [444−1] or reconsideration [444−2] (jb) (Entered: 08/06/2004)
449 RESPONSE by defts to pltfs' supplemental brief in support of motion to show cause [403−1] (jb) (Entered: 08/06/2004)
450 MOTION by pltfs for leave to file reply brief in support of motion to compel discovery (w/attached original reply brief) (jb) (Entered: 08/09/2004)
451 CLERK'S RESUME: Status Conference held 8/9/04. Pltf to file a motion for further release. Deft shall file response. (jb) (Entered: 08/10/2004)
452 ORDER by Judge John T. Nixon granting motion to take deposition of John C. Ring, M.D. in Washington, D.C. commencing at 9:00 a.m. on 8/25/04 [447−1] (cc: all counsel) (EOD 8/10/04) (jb) (Entered: 08/10/2004)
453 LETTER (Copy) from Charles J. Cooper to Judge Nixon re: reaction to Court's instruction at Status Conference held 8/9/04 (jb) (Entered: 08/10/2004)
454 MOTION by pltfs for further relief (jb) (Entered: 08/10/2004)
455 BRIEF by pltfs in support of motion for further relief [454−1] (jb) (Entered: 08/10/2004)
456 NOTICE by defts of filing the attached proposed TennCare Waiver Amendment (jb) (Entered: 08/19/2004)
457 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for July expenses. The Court has reviewed this invoice and orders that defts promptly reimburse the Special Master for July expenses in the amount of $76,278.19. EOD 8/22/04 (cc: all counsel) (gi) (Entered: 08/22/2004)
458 RESPONSE by defts to motion for further relief [454−1] (gi) (Entered: 08/25/2004)

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08/30/2004

459 TRANSCRIPT filed of status conference held on 8/9/04 before Judge Nixon. C/R BEverly Cole (hv) (Entered: 08/30/2004)

09/10/2004

460 ORDER by Judge John T. Nixon ; Status conference set for 1:00 9/14/04 (cc: all counsel) EOD 9/10/04 (hv) (Entered: 09/10/2004)

09/15/2004

461 CLERK'S RESUME: Status Conference held 9/14/04. C/R: Charlotte Sloan (jb) (Entered: 09/15/2004)

09/27/2004

462 NOTICE by defts of filing the attached proposed amendment to the TennCare Demonstration Project which was submitted by the State on 9/24/04 to the Centers for Medicare and Medicaid Services, US Dept of Health and Human Services (jb) (Entered: 09/27/2004)

09/30/2004

463 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for August expenses. The Court has reviewed this invoice and has found a mathematical error in the computation of Special Master Richard Carter's Consulting Fees. The line item "Richard Carter Consulting Fees (176.25 hours @ 150/hour)" should total $26,437.50, making the total amount due for August expenses $83,992.67. The Court Orders that defts promptly reimburse the Special Master for August expenses in the amount of $83,992.67. (cc: all counsel) (EOD 9/30/04) (jb) (Entered: 09/30/2004)

10/18/2004

464 OBJECTIONS by defts to invoice of the Special Master re September services and expenses (jb) (Entered: 10/19/2004)

10/22/2004

465 MEMORANDUM ORDER by Judge John T. Nixon granting in part motion for further relief [454−1]. The Court denies the conditions that pltfs proposed for defts within their mtn for further relief. The Court has instructed the Special Master and his experts to create a comprehensive plan to put the State into compliance with the terms of the Consent Decree (see Attachment A to this order). Parties shall have 15 working days from the entry of this order to review the plan and file any objections. The Court shall conduct a scheduling conference on 11/15/04 at 1:00 to set a date for the parties to depose the Special Master and his experts regarding the plan. The Court shall also set a ddl for the parties to submit additional modifications or improvements to the plan. Reports prepared by the Special Master and relied upon by the Court in the issuance of this order shall be made available to the parties upon their request. At the close of the post−deposition comment period, the Court shall review the comments and suggestions submitted by the parties and make a final determination as to the content of the plan to be instated. EOD 10/22/04 (cc: all counsel) (gi) (VACATED See Order 558 .) Modified on 12/13/05 (jb). (Entered: 10/22/2004)

10/25/2004

466 ORDER by Judge John T. Nixon: The Court has reviewed the invoice from the Special Master for September expenses and Orders that defts promptly reimburse the Special Master for September expenses in the amount of $92,746.50. (cc: all counsel) (EOD 10/25/04) (jb) (Entered: 10/25/2004)

11/10/2004

467 JOINT MOTION by the parties to continue scheduling conference and filing deadlines (hv) (Entered: 11/10/2004)

11/12/2004

468 ORDER by Judge John T. Nixon granting joint motion to continue scheduling conference and filing deadlines [467−1]. Status Conference is reset for 1:00 p.m. on 11/22/04. The ptys are advised that depositions of the Speical Master and his experts, jointly, are tentatively scheduled for 11/29/04 and 11/30/04. All other ddls set forth in the Order DE #465 regarding the filing ddls for comments, objections, and suggestions for improvements upon the proposed remedial plan set forth by the Court shall be disregarded. Instead, the ptys shall have until 11/22/04 to file any initial objections or comments regarding the proposed plan. At the status conference on 11/22/04, the Court shall reset all other ddls. (cc: all counsel) (EOD 11/12/04) (jb) (Entered: 11/12/2004)

11/12/2004

469 EMERGENCY MOTION by Nashville CARES, Sanford Bloch and Mark Levine to intervene for limited purposes (w/attached Exhibits A &B) (gi) (Entered: 11/15/2004)

11/12/2004

470 MEMORANDUM by Nashville CARES, Sanford Bloch and Mark Levine in support of emergency motion to intervene [469−1] (gi) (Entered: 11/15/2004)

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11/15/2004

471 MOTION by pltfs for temporary modification of consent decree (gi) (Entered: 11/15/2004)

11/15/2004

472 BRIEF by pltfs in support of motion for temporary modification of consent decree [471−1] (gi) (Entered: 11/15/2004)

11/16/2004

473 ORDER by Judge John T. Nixon: Status Conference is reset for 9:00 a.m. on 11/19/04. At this status conference the Court shall reset all other ddls, as necessary. Proposed pltfs−intervenors' emergency motion to intervene DE #469 shall also be heard at the 11/19/04 status conference. (cc: all counsel) (EOD 11/16/04) (jb) (Entered: 11/16/2004)

11/18/2004

474 INITIAL OBJECTIONS by deft to proposed remedial plan for further relief [465−1] (w/attached exh. A) (jb) (Entered: 11/18/2004)

11/18/2004

475 MOTION by defts for discovery from the special master and experts concerning ex parte communications with the court (jb) (Entered: 11/18/2004)

11/18/2004

476 MEMORANDUM by defts in support of motion for discovery from the special master and experts concerning ex parte communications with the court [475−1] (w/attached defts' discovery requests to James Crall, Burton Edelstein, Paul Newacheck, Larry Platt, Sarah Rosenbaum, Marci White, &to the Special Master) (jb) (Entered: 11/18/2004)

11/19/2004

477 CLERK'S RESUME: Status conference held 11/19/04 ; State will respond to pltf's motion to modify consent decree &then pltf will w/draw mtn. Disc. mtn filed by State. Mr. Bonnyman will have 10 days to respond. Depositions date will be continued. Mr. Kirk to put in writing. Monitoring by Special Master will be suspended. Status conference will be set after Thanksgiving holidays. Court suggest appointing a mediator, ned Ray McWherter. C/R: Charlotte Sloan (km) (Entered: 11/19/2004)

11/19/2004

478 CLERK'S RESUME: Mtn to intervene by Nashville Cares &3 Individuals hearing held 11/19/04 ; State objs to intervention by Nashville Cares. George Barrett to file modification to mtn to intervene to include children. C/R: Charlotte Sloan (km) (Entered: 11/19/2004)

11/19/2004

479 MEMORANDUM in opposition by pltfs to motion to intervene [469−1] (w/attachment) (km) (Entered: 11/19/2004)

11/19/2004

480 AMENDED EMERGENCY MOTION by intervenor pltfs Nashville CARES, Sanford Bloch, Mark Levine, Tim Jones, William Duncan &Mary Kathryn Duncan to intervene for limited purposes (jb) (Entered: 11/22/2004)

11/19/2004

481 MEMORANDUM by intervenor pltfs in support of amended emergency motion to intervene for limited purposes [480−1] (jb) (Entered: 11/22/2004)

11/19/2004

482 MOTION by pltf to temporarily suspend proceedings in order to facilitate negotiations (jb) (Entered: 11/22/2004)

11/19/2004

483 MEMORANDUM by pltfs in support of motion to temporarily suspend proceedings in order to facilitate negotiations [482−1] (jb) (Entered: 11/22/2004)

11/22/2004

484 INITIAL COMMENTS by pltfs on the proposed remedial plan and further relief (km) (Entered: 11/23/2004)

11/23/2004

485 RESPONSE by defts to motion for temporary modification of consent decree [471−1] (gi) (Entered: 11/23/2004)

11/23/2004

486 SUPPLEMENTAL SUBMISSION by defts regarding scheduling of depositions [475−1] (gi) (Entered: 11/23/2004)

11/23/2004

487 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for October expenses. The Court Orders that defts promptly reimburse the Special Master for October expenses in the amount of $54,061.81. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)

11/23/2004

488 ORDER by Judge John T. Nixon: The Court grants the proposed pltfs−intervenors' amended emergency motion to intervene [480−1] [469−1] on behalf of the two individually named minor children, William and Mary Kathryn Duncan, who are

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11/23/2004 11/23/2004 11/23/2004 11/23/2004 11/23/2004
11/23/2004 11/23/2004
11/24/2004 11/29/2004 11/30/2004 12/03/2004 12/21/2004 01/10/2005 01/10/2005 01/12/2005
01/19/2005

TennCare enrolled children who stand to lose their medical coverage if Tennessee returns to a traditional Medicaid program. The Court denies the proposed pltfs−intervenors' amended emergency motion to intervene in the John B. matter to the extent that they seek to intervene on behalf of Nashville CARES, Sanford Block, and Mark Levine. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)
489 ORDER by Judge John T. Nixon: The Court hereby instructs the Clerk's Office to file UNDER SEAL the attached Draft of the Proposed Plan for Further Relief. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)
490 UNDER SEAL Draft of the Proposed Plan for Further Relief by special master Richard A. Carter (jb) (Entered: 11/24/2004)
491 ORDER by Judge John T. Nixon: The Court hereby instructs the Clerk's Office to file UNDER SEAL the Special Master's August 2, 2004 Status Report. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)
492 UNDER SEAL August 2, 2004 Status Report by special master Richard A. Carter (jb) (Entered: 11/24/2004)
493 ORDER by Judge John T. Nixon: The Court hereby instructs the Clerk's Office to file UNDER SEAL the attached electronic mail document "Subject: Dental (3) and Legal (1) Expert Resumes" along with the attached and corresponding resumes. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)
494 UNDER SEAL Electronic Mail Document "Subject: Dental (3) and Legal (1) Expert Resumes" w/ attached and corresponding resumes by special master Richard A. Carter (jb) (Entered: 11/24/2004)
495 ORDER by Judge John T. Nixon: Pending before the Court is pltf's motion to temporarily suspend proceedings in order to facilitate negotiations [482−1], filed with an accompanying memorandum [483−1]. The Court has reviewed the motion and memorandum and hereby orders that all proceedings in this case are suspended until 1/17/05. (cc: all counsel) (EOD 11/24/04) (jb) (Entered: 11/24/2004)
496 NOTICE by pltfs of withdrawal of motion for temporary modification of consent decree (jb) (Entered: 11/29/2004)
497 TRANSCRIPT filed of proceedings−Status Conference on 11/19/04 before the Hon. Senior Judge John T. Nixon; CR: Charlotte H. Sloan (jb) (Entered: 11/29/2004)
498 MOTION by defts to reconsider order temporarily suspending proceedings (jb) (Entered: 12/01/2004)
499 MEMORANDUM IN RESPONSE by pltfs to defts' motion to reconsider order temporarily suspending proceedings [498−1] (w/attachment) (jb) (Entered: 12/06/2004)
500 OBJECTIONS by defts to invoice of the special master (w/attachment) (jb) (Entered: 12/21/2004)
501 STATUS REPORT by defts on TennCare Reform and motion to vacate order suspending proceedings (w/attached exh A) (jb) (Entered: 01/10/2005)
501 MOTION by defts to vacate order suspending proceedings (Contained in same document as Status Report DE #501.) (jb) (Entered: 01/10/2005)
502 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for November expenses. The Court Orders that defts promptly reimburse the Special Master for November expenses in the amount of $50,532.07. (jb) (Entered: 01/14/2005)
503 NOTICE by defts of filing the attached copy of a proposed supplement to the 9/24/04 proposed amendment to the waiver for the TennCare demonstration project (jb) (Entered: 01/19/2005)

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01/25/2005 01/25/2005 01/28/2005
01/31/2005 01/31/2005 01/31/2005 02/07/2005
02/11/2005 02/11/2005 02/11/2005
02/22/2005
02/22/2005 02/22/2005 02/22/2005 02/22/2005 02/22/2005 02/22/2005 02/23/2005
02/25/2005
02/28/2005
02/28/2005

504 MOTION by pltf to hold proceedings in Abeyance (jb) (Entered: 01/25/2005)
505 MEMORANDUM by pltf in support of motion to hold proceedings in Abeyance [504−1] (jb) (Entered: 01/25/2005)
506 NOTICE by defts of filing of copy of proposed amendments to the Tennessee Title XIX Medicaid State Plan (State Plan Amendments), which have been transmitted to counsel for pltfs and pltf−intv (w/attachments) (km) (Entered: 01/31/2005)
507 OBJECTIONS by defts to invoice of the special master. (dlt) (Entered: 02/01/2005)
508 RESPONSE (MEMORANDUM IN OPPOSITION) by defts to motion to hold proceedings in Abeyance [504−1]. (dlt) (Entered: 02/01/2005)
509 JANUARY 2005 SEMI−ANNUAL PROGRESS REPORT by defts. (dlt) (Entered: 02/01/2005)
510 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for December expenses. The Court orders that defts promptly reimburse the Special Master for December expenses in the amount of $26,584.27. (cc: all counsel) (EOD 2/8/05) (jb) (Entered: 02/08/2005)
511 MOTION by defts for immediate resolution of defts' motion to conduct discovery into ex parte contacts (w/attachments) (jb) (Entered: 02/14/2005)
512 MOTION by defts to divide the class into subclasses and to disqualify current class counsel as counsel for the Tenncare standard population (jb) (Entered: 02/14/2005)
513 MEMORANDUM by defts in support of motion to divide the class into subclasses [512−1] and to disqualify current class counsel as counsel for the Tenncare standard population [512−2] (jb) (Entered: 02/14/2005)
515 RESPONSE by pltfs to motion for discovery from the special master and experts concerning ex parte communications with the court [475−1] (FILED UNDER SEAL) (hv) (Entered: 02/22/2005)
516 MOTION by pltfs for attorney Ralph I. Knowles to appear pro hac vice (fee paid) (hv) (Entered: 02/22/2005)
517 CERTIFICATE of Good Standing filed by pltfs for Ralph I. Knowles Jr from USDC ND GA (hv) (Entered: 02/22/2005)
518 MOTION by pltfs for attorney Kimberly J. Johnson to appear pro hac vice (fee paid) (hv) (Entered: 02/22/2005)
519 CERTIFICATE of Good Standing filed by pltfs for Kimberly J. Johnson from USDC ND GA (hv) (Entered: 02/22/2005)
520 MOTION by pltf for attorney Everette L. Doffermyre to appear pro hac vice (fee paid) (hv) (Entered: 02/22/2005)
521 CERTIFICATE of Good Standing filed by pltfs for Everette L. Doffermyre from USDC ND GA (hv) (Entered: 02/22/2005)
522 RESPONSE by pltfs to defts' motion to divide the class into subclasses [512−1] and to disqualify current class counsel as counsel for the Tenncare standard population [512−2] (w/attached Appendix A) (jb) (Entered: 02/23/2005)
523 RESPONSE by pltf−intervenors to defts' motion to divide the class [512−1] and disqualify current class counsel as counsel for the Tenncare standard population [512−2] (jb) (Entered: 02/28/2005)
524 ORDER by Judge John T. Nixon granting motion for attorney Ralph I. Knowles to appear pro hac vice [516−1] by pltfs (cc: all counsel) (EOD 3/1/05) (jb) (Entered: 03/01/2005)
525 ORDER by Judge John T. Nixon granting motion for attorney Kimberly J. Johnson to appear pro hac vice [518−1] by pltfs (cc: all counsel) (EOD 3/1/05) (jb) (Entered: 03/01/2005)

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02/28/2005 03/10/2005 03/10/2005 03/11/2005 03/17/2005 03/24/2005
03/28/2005 04/15/2005 04/25/2005 04/25/2005 04/26/2005
04/29/2005
05/04/2005 05/12/2005 05/23/2005
06/09/2005 06/24/2005 06/27/2005 07/15/2005

526 ORDER by Judge John T. Nixon granting motion for attorney Everette L. Doffermyre to appear pro hac vice [520−1] by pltfs (cc: all counsel) (EOD 3/1/05) (jb) (Entered: 03/01/2005)
527 MOTION by defts for attorney Nicole Moss to appear pro hac vice (w/attached certificate of good standing) (PHV Fee Paid) (jb) (Entered: 03/10/2005)
528 CERTIFICATE of Good Standing filed by defts for Nicole J. Moss from USDC/District of Columbia (jb) (Entered: 03/10/2005)
529 OBJECTIONS by defts to invoice of the special master (jb) (Entered: 03/11/2005)
530 ORDER by Judge John T. Nixon granting motion for attorney Nicole Moss to appear pro hac vice [527−1] by defts. EOD 3/18/05 (cc: all counsel) (gi) (Entered: 03/18/2005)
531 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Speicial Master for December expenses. The Court hereby Orders that defts promptly reimburse the Special Master for February expenses in the amount of $32,420.47. (cc: all counsel) (EOD 3/25/05) (jb) (Entered: 03/25/2005)
532 ORDER by Magistrate Judge E. C. Knowles denying motion to compel discovery [422−1] w/o prejudice with leave to refile the motion if and as may be appropriate (cc: all counsel) (EOD 3/29/05) (jb) (Entered: 03/29/2005)
533 OBJECTIONS by defts to invoice of the Special Master (jb) (Entered: 04/18/2005)
534 MOTION by defts for attorney Kathryn L. Wheelbarger to appear pro hac vice (w/attached certificate of good standing (PHV Fee Paid) (jb) (Entered: 04/25/2005)
535 CERTIFICATE of Good Standing filed by defts for Kathryn L. Wheelbarger, Esq. from USDC/CD/CA (jb) (Entered: 04/25/2005)
536 NOTICE by defts of filing to apprise the Court of a settlement agreement reached between the defts, the pltfs−intervenors, the deft−intervenor Tennessee Hospital Association, and the amici curiae safety net hospitals, the Regional Medical Center at Memphis, et al., in the Grier matter (w/attached exh A) (jb) (Entered: 04/26/2005)
537 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for March expenses. Defts are Ordered to promptly reimburse the Special Master for March expenses in the amount of $16,606.38. (cc: all counsel) (EOD 4/29/05) (jb) (Entered: 04/29/2005)
538 ORDER by Judge John T. Nixon granting motion for attorney Kathryn L. Wheelbarger to appear pro hac vice [534−1] by defts (cc: all counsel) (EOD 5/5/05) (jb) (Entered: 05/05/2005)
539 OBJECTIONS by defts to invoice (dated 5/4/05) of the special master (jb) (Entered: 05/13/2005)
540 ORDER by Judge John T. Nixon: The Court is in receipt of an invoice from the Special Master for April expenses. The Court orders that defts promptly reimburse the Special Master for April expenses in the amount of $15,122.08. (cc: all counsel) (EOD 5/23/05) (jb) (Entered: 05/23/2005)
541 OBJECTIONS by defts to invoice (dated 6/2/05) of the Special Master (jb) (Entered: 06/09/2005)
542 ORDER by Judge John T. Nixon ; Status conference set for 2:00 6/27/05 following the conclusion of the status conference in Geier v. Goetz 3:79−3107. (cc: all counsel) EOD 6/24/05 (hv) (Entered: 06/24/2005)
543 Clerk's Resume: Status Conference held before Judge John T. Nixon on 6/27/2005. Pending motions held in abeyance. (Court Reporter Charlotte Sloan.) (jb, ) (Entered: 06/28/2005)
544 OBJECTIONS. (Ross, Linda) (Entered: 07/15/2005)

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07/25/2005 07/29/2005 08/11/2005 08/19/2005 10/10/2005 11/15/2005 11/15/2005 11/15/2005 11/30/2005 12/02/2005 12/05/2005 12/05/2005
12/07/2005 12/13/2005

545 ORDER: The Court is in receipt of an invoice from the Special Master for May expenses. The Court Orders that defts promptly reimburse the Special Master for May expenses in the amount of $19,743.87. Signed by Judge John T. Nixon on 7/22/05. (jb) (Entered: 07/25/2005)
546 NOTICE by Nancy Menke of Filing John B. July 31, 2005 Semi−Annual Progress Report (Attachments: # 1 John B. Semiannual Progress Report July 31, 2005 pp 1−64# 2 John B. Semiannual Progress Report pp 65−128)(Ross, Linda) (Entered: 07/29/2005)
547 OBJECTIONS to Invoice of the Special Master. (Ross, Linda) (Entered: 08/11/2005)
548 ORDER: The Court is in receipt of an invoice from the Special Master for June expenses. The Court orders that defts promptly reimburse the Special Master for June expenses in the amount of $11,622.90. Signed by Judge John T. Nixon on 8/19/05. (jb) (Entered: 08/19/2005)
549 OBJECTIONS to Invoice of the Special Master. (Ross, Linda) (Entered: 10/10/2005)
550 ORDER: Status Conference is set for 11/30/05 at 10:00 AM to discuss the pending motions previously held in abeyance. Signed by Judge John T. Nixon on 11/15/05. (jb) (Entered: 11/15/2005)
551 ORDER: The Court Orders that defts promptly reimburse the Special Master for July expenses in the amount of $13,843.97. Signed by Judge John T. Nixon on 11/15/05. (jb) (Entered: 11/15/2005)
552 ORDER: The Court is in receipt of an invoice from the Special Master for August and September expenses. The Court Orders Defts to promptly reimburse the Special Master for August and September expenses in the amount of $19,754.49. Signed by Judge John T. Nixon on 11/15/05. (jb) (Entered: 11/17/2005)
553 Minute Entry for proceedings held before Judge John T. Nixon: Status Conference held on 11/30/05. An Order will enter. (Court Reporter Susan D. Delac.) (jb) (Entered: 12/01/2005)
554 TRANSCRIPT of Proceedings held on 11/30/05 before Judge Nixon. Court Reporter: Susan Delac. (This document is NOT available on−line. Please contact the Court at 615−736−2364 for the telephone number of the court reporter to purchase a copy) (aef, ) (Entered: 12/05/2005)
555 NOTICE of Filing Documents by John B. (Attachment: (1) Attachment 1 to 12−05−05 Notice of Filing − Exhibit R258)(Johnson, Michele) Modified Text on 12/5/05 (jb). (Entered: 12/05/2005)
556 MEMORANDUM in Support of Request (Oral Motion on 11/30/05 at Status Conference re 553 ) to set aside the 10/22/04 Order, for submission of the State's current EPSDT Plan and for the development of a new order of reference re Notice of Filing Documents 555 by John B. (Johnson, Michele) Modified Text on 12/5/2005 (jb). (Entered: 12/05/2005)
557 OBJECTIONS to Invoice of the Special Master. (Ross, Linda) (Entered: 12/07/2005)
558 ORDER: Status Conference held 11/30/05. The Court vacates its 10/22/04 Order and Orders the defts to immediately disclose to pltfs and the Special Master the plan, if any under which the State is operating to comply with the Consent Decree and EPSDT law, as well as file, by 1/31/06, its Seminannual Report. The role of Special Master, Dr. Richard A. Carter, M.D., M.P.H. is limited to evaluating the State's implementation of the terms of the consent Decree and EPSDT law. Defts' Motion for Discovery 475 is denied as moot. Defts' Motion to Divide the Class into Subclasses and Disqualify Current Class Counsel as Counsel for the TennCare Standard Population 512 513 is denied. Defts' request that the Special Master not incur any further fees and expenses is denied as moot. The Court finds that pending motions 281 353 389 391 403 444 450 471 498 501 504 are denied as moot. Signed by Judge John T. Nixon on 12/13/05. (jb) (Entered: 12/13/2005)

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12/14/2005 12/20/2005 12/21/2005
12/21/2005 12/22/2005
12/29/2005
12/29/2005 01/03/2006 01/04/2006 01/05/2006
01/05/2006 01/09/2006
01/09/2006 01/09/2006

Per DE No. 558, Special Master, Richard A. Carter, M.D., M.P.H., permitted to register as a Filing User and file documents electronically in accordance with the Administrative Practices and Procedures for Electronic Case Filing in the USDC/MDTN. Login &Password issued this date. (aef, ) (Entered: 12/14/2005)
559 MOTION for Clarification of Order of December 13, 2005 558 by John B. (Attachment: (1) Attachment A − 12−19−05 Fax from Ross to Dr. Carter RE response to request)(Johnson, Michele) Modified Text on 12/21/05 (jb). (Entered: 12/20/2005)
560 RENEWED MOTION for Discovery from the Special Master and Experts Concerning Ex Parte Communications with the Court and Motion for Reinstating the Moratorium on the Special Master's Activities by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 1/9/2006. (Attachment: (1) Memorandum in Support of Renewed Motion)(Cooper, Charles) Modified Text on 12/21/2005 (jb). (Entered: 12/21/2005)
NOTE TO FILER RE: DE #96−Motion for Discovery w/Memorandum in Support filed as attached exhibit: The Memorandum in Support needs to be REFILED as a separate filing using the event "Memorandum in Support" under other documents. (jb) (Entered: 12/21/2005)
561 MEMORANDUM in Support of 560 RENEWED MOTION for Discovery from the Special Master and Experts Concerning Ex Parte Communications with the Court and Motion for Reinstating the Moratorium on the Special Master's Activities filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 12/22/2005)
562 MOTION to Expedite Consideration of the State's Motion to Reinstate the Moratorium on the Special Master's Activities by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 1/17/2006 (Attachments: # 1 Exhibit A − 12/21/05 Letter from Carter to Ross# 2 Exhibit B − 12/22/05 Letter from Carter to Ross# 3 Exhibit C − 11/19/04 Hearing Transcript)(Cooper, Charles) (Entered: 12/29/2005)
563 MOTION to Withdraw as Attorney Russell Overby by John B.. Responses due by 1/17/2006 (Overby, Russell) (Entered: 12/29/2005)
782 ORDER: 770 Motion to Compel is denied without prejudice to renew for the reasons stated in open court. Signed by Judge William J. Haynes on 12/20/06. (km, ) (Entered: 01/04/2007)
564 NOTICE of Change of Address by Charles J. Cooper (Cooper, Charles) (Entered: 01/04/2006)
565 MOTION for Clarification of Role of Intervenors re: 558 Terminate Deadlines and Hearings, Order, Terminate Motions, by John B. (Attachments: # 1 Attachment A# 2 Attachment B# 3 Attachment C# 4 Attachment D# 5 Attachment E# 6 Attachment F)(Johnson, Michele) Modified Text on 1/6/2006 (dt). (Entered: 01/05/2006)
566 ORDER granting 563 Motion to Withdraw as Attorney. Attorney Russell James Overby terminated . Signed by Judge John T. Nixon on 1/5/06. (dt) (Entered: 01/05/2006)
567 RESPONSE in Opposition re 560 RENEWED MOTION for Discovery from the Special Master and Experts Concerning Ex Parte Communications with the Court and Motion for Reinstating the Moratorium on the Special Master's Activities filed by John B. (Attachments: (1) Attachment A (2) Attachment B (3) Attachment C (4) Attachment D (5) Attachment E (6) Attachment F)(Bristol, Marjorie) Modified Text on 1/10/06 (jb). (Entered: 01/09/2006)
568 DECLARATION of Michele M. Johnson filed by John B.. (Attachments: # 1 Attachment A# 2 Attachment B)(Johnson, Michele) (Entered: 01/09/2006)
569 RESPONSE in Opposition re 559 MOTION for Clarification of Order of December 13, 2005 558 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit A − Declaration of Susie Baird (2) Exhibit B

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− Declaration of Mary Beth Franklin (3) Exhibit C − Declaration of Thomas Catron)(Cooper, Charles) Modified Text on 1/10/06 (jb). (Entered: 01/09/2006)

01/10/2006

NOTE TO FILER RE: EXHS TO DE #569: In the future, when filing original declarations, please file separately using the event "Declaration" under Other Documents. (jb) (Entered: 01/10/2006)

01/10/2006

570 NOTICE of Filing by John B. (Attachments: (1) Attachment 1 (2) Attachment 2−Declaration of Michele M. Johnson (3) Attachment A to Declaration of Michele M. Johnson (4) Attachment B to Declaration of Michele M. Johnson)(Bristol, Marjorie) Modified Text on 1/10/06 (jb). (Entered: 01/10/2006)

01/10/2006

NOTE TO FILER RE: EXHS TO DE #570: In the future, when filing original declarations, please file separately using the event "Declaration" under Other Documents. (jb) (Entered: 01/10/2006)

01/12/2006

571 MOTION for Leave to Leave to File a Reply Brief re 559 MOTION for Clarification of Order of December 13, 2005 558 by John B.. Responses due by 1/30/2006 (Bristol, Marjorie) (Entered: 01/12/2006)

01/12/2006

572 REPLY to Response to Motion re 571 MOTION for Leave to Leave to File a Reply Brief re 559 MOTION for Clarification of Order of December 13, 2005 558 , 559 MOTION for Clarification of Order of December 13, 2005 558 filed by John B.. (Attachments: # 1 Attachment 1)(Johnson, Michele) (Entered: 01/12/2006)

01/12/2006

573 RESPONSE to Motion re 562 MOTION to Expedite Consideration of the State's Motion to Reinstate the Moratorium on the Special Master's Activities filed by John B.. (Bristol, Marjorie) (Entered: 01/12/2006)

01/13/2006

NOTE TO FILER: Re: Document Nos. 571−572; In the future, the Reply should be filed as an attachment to the Motion for leave until the Court rules on the Motion. (km, ) (Entered: 01/13/2006)

01/17/2006

574 MOTION for Leave to File Reply Brief in Response to Plaintiffs' Opposition to Defendants' Renewed Motion for Discovery from the Special Master and Experts re 567 Response in Opposition to Motion, by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 2/3/2006 (Attachments: # 1 Exhibit A − Reply Brief in Support of Defendants' Renewed Motion for Discovery from the Special Master and Experts Concerning Ex Parte Communications With the Court)(Cooper, Charles) (Entered: 01/17/2006)

01/17/2006

575 ORDER: Defts shall promptly reimburse the Special Master for October and November expenses in the amount of $18,591.18. Signed by Judge John T. Nixon on 1/17/06. (jb) (Entered: 01/17/2006)

01/20/2006

576 ORDER granting 574 Motion for Leave to File Reply Brief in Response to Pltfs' Opposition to Defts' Renewed Motion for Discovery From the Special Master and Experts. Signed by Judge John T. Nixon on 1/20/06. (jb) (Entered: 01/20/2006)

01/20/2006

577 REPLY BRIEF in support of Defts' 560 Renewed Motion for Discovery from the Special Master and Experts Concerning Ex Parte Communications with the Court filed by defts. (jb) (Entered: 01/20/2006)

01/20/2006

578 ORDER: Pending before the Court is Pltfs' Motion For Clarification 559 Defts' Renewed Motion For Discovery From The Special Master and Experts Concerning Ex Parte Communications With The Court and Motion For Reinstating The Moratorium On The Special Master's Activities 560 ; and Defts' Motion To Expedite Consideration of the State's Motion to Reinstate The Moratorium On the Special Master's Activites 562 . The Court Orders the defts to explain the "clearly defined process" the State has created to ensure coordination, implementation and monitoring of the Consent Decree. Such affidavit shall include a detailed explanation of the "process" and be accompanied by supporting documentation, if any. The affidavit shall be filed by 1/31/06, along with the Semiannual Report. Until otherwise ordered, the affidavit and supporting documentation shall be filed Under Seal, and a copy provided to pltfs' counsel. Without discussing the merits of defts' discovery motion or motion to expedite, the Court imposes a temporary moratorium on the Special Master's activites in order for the court to adequately consider them. The Special Master and his experts are to cease all activity on this

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case from the date of entry of this order to 1/31/06. Signed by Judge John T. Nixon on 1/20/06. (jb) (Entered: 01/20/2006)

01/31/2006

579 JANUARY 2006 SEMI−ANNUAL PROGRESS REPORT by Nancy Menke (Attachments: (1) John B. January 2006 Semi−Annual Progress Report (2) Attachment I)(Ross, Linda) Modified Text on 2/1/06 (jb). (Entered: 01/31/2006)

01/31/2006

580 RESPONSE to Motion re 565 MOTION for Calification of Role of Intervenors filed by Sanford Bloch. (Barrett, George) Modified Text on 2/1/06 (jb). (Entered: 01/31/2006)

01/31/2006

581 Sealed Document Declaration of Thomas Catron, Ph.D. filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Programmatic Process Response to the John B. Consent Decree)(Cooper, Charles) (Entered: 01/31/2006)

02/02/2006

582 MOTION for Leave re 581 for time to file a response to the Declaration of Thomas Catron by John B. Responses due by 2/21/2006 (Johnson, Michele) Modified on 2/2/2006 (aef, ). (Entered: 02/02/2006)

02/03/2006

583 ORDER: Due to the change in circumstances and the Pltfs−Intervenors desire to withdraw, the Court holds that Pltfs' Motion to Clarify 565 is granted and Pltfs−Intevenors are permitted to withdraw from the case. Signed by Judge John T. Nixon on 1/31/06. (jb) (Entered: 02/03/2006)

02/03/2006

584 MEMORANDUM ORDER: Recusal of Judge John T. Nixon. Case reassigned to Judge William J. Haynes for all further proceedings. Defts' Discovery Motion 560 and Defts' Motion to Expedite 562 are denied as moot. Pending reassignment of the case, the Office of the Special Master shall remain intact, but INACTIVE. The new presiding Judge may decide the continuing necessity of the Office of the Special Master, and all motions pending at this time. Signed by Judge John T. Nixon on 2/3/06. (jb) (Entered: 02/06/2006)

02/07/2006

585 MOTION for Status Conference by John B. Responses due by 2/24/06. (D'Souza, Lisa) Modified Text on 2/8/06 (jb). (Entered: 02/07/2006)

02/07/2006

587 ORDER: 585 Motion for Status Conference is denied as moot in light of the Court's earlier 586 Order. Signed by Judge William J. Haynes on 2/7/06. (jb) (Entered: 02/08/2006)

02/08/2006

586 ORDER: This action is set for a hearing on 2/10/06 at 2:00 p.m. on all pending motions [ 571 582 . Signed by Judge William J. Haynes on 2/7/06. (jb) (Entered: 02/08/2006)

02/08/2006

588 ORDER granting 571 Motion for Leave to File Reply Brief in Support of Motion for Clarification of Order of December 13, 2005 . Signed by Judge William J. Haynes on 2/8/06. (jb) (Entered: 02/08/2006)

02/08/2006

589 MOTION to Postpone Hearing Scheduled for February 10, 2006 re 586 Order Setting Hearing on Motion by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 2/27/06. (Cooper, Charles) Modified Text on 2/9/06 (jb). (Entered: 02/08/2006)

02/08/2006

590 ORDER denying 589 Motion to Postpone Hearing Scheduled for 2/10/06. Signed by Judge William J. Haynes on 2/8/06. (dt) Modified on 2/9/06 (jb). (Entered: 02/09/2006)

02/10/2006

591 Motion to File Plaintiffs' Notice of Filing and Accompanying Documents Under Seal by John B. Responses due by 2/27/06. (Bristol, Marjorie) Modified Text on 2/13/06 (jb). (Entered: 02/10/2006)

02/10/2006

592 Sealed Document Plaintiffs' Memorandum filed by John B.. (Johnson, Michele) (Entered: 02/10/2006)

02/10/2006

593 Sealed Document Plaintiffs' Notice of Filing Documents filed by John B.. (Attachments: # 1 Declaration of Shawn L. Caster# 2 Exhibit A to Shawn L. Caster Declaration# 3 Exhibit B to Shawn L. Caster Declaration# 4 Exhibit C to Shawn L. Caster Declaration# 5 Exhibit D to Shawn L. Caster Declaration# 6 Exhibit E to Shawn L. Caster Declaration# 7 Appeal File of Stephen A. Bates Number 000001 to 000037# 8 Appeal File of Stephen A. Bates Number 000038 to 000078# 9

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Appeal File of Madison W. Bates Number 000100 to 000144# 10 Appeal File of Madison W. Bates Number 000145 to 000180# 11 Appeal File of Dylan O. Bates Number 000300 to 000340# 12 Appeal File of Dylan O. Bates Number 000341 to 000383# 13 Excerpt from the Deposition of Manny Martins)(Bristol, Marjorie) (Entered: 02/10/2006)

02/10/2006

594 Sealed Document Declaration of Shawn L. Caster filed by John B.. (Attachments: # 1 Exhibit A to Shawn L. Caster Declaration# 2 Exhibit B to Shawn L. Caster Declaration# 3 Exhibit C to Shawn L. Caster Declaration# 4 Exhibit D to Shawn L. Caster Declaration# 5 Exhibit E to Shawn L. Caster Declaration# 6 Appeal of Stephen A. Bates Number 000001 to 000037# 7 Appeal File of Stephen A. Bates Number 000038 to 000078# 8 Appeal File of Madison W. Bates Number 000100 to 000144# 9 Appeal File of Madison W. Bates Number 000145 to 000180# 10 Appeal File of Dylan O. Bates Number 000300 to 000340# 11 Appeal File of Dylan O. Bates Number 000341 to 000383)(Caster, Shawn) (Entered: 02/10/2006)

02/13/2006

NOTICE TO FILER RE: DE #593 &#594−In the future, when filing an original declaration, it is not necessary to attach the declaration to the notice of filing as an attachment and file the document separately. The original declaration should only be filed as a separate entry using the event "Declaration" under Other Documents or in this case as a "Sealed Document." A copy of a declaration should be the only declaration treated as an attachment. (jb) (Entered: 02/13/2006)

02/13/2006

595 MOTION for Case Conference by John B. Responses due by 3/2/06. (Johnson, Michele) Modified Text on 2/13/06 (jb). (Entered: 02/13/2006)

02/13/2006

596 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 2/10/06 at 2:00 p.m. before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) Modified on 2/13/06 (jb). (Entered: 02/13/2006)

02/13/2006

597 ORDER granting 591 Motion to File Pltfs' Notice of Filing and Accompanying Documents Under Seal. Signed by Judge William J. Haynes on 2/13/06. (jb) (Entered: 02/13/2006)

02/14/2006

598 SUPPLEMENTAL MEMORANDUM in Support of 595 MOTION for Case Conference &592 Sealed Memorandum filed by John B. (Bonnyman, George) Modified Text on 2/14/06 (jb). (Entered: 02/14/2006)

02/14/2006

599 Minute Entry for proceedings held before Judge William J. Haynes : Hearing held on 2/10/06. Pltf 's Counsel to draft an Order on the issues discussed in open Court. Pltf to submit Order by 9:00 a.m. on 2/13/06. Defts to file response by 5:00 p.m. on 2/13/06. (Court Reporter Peggy Turner.) (jb) (Entered: 02/14/2006)

02/14/2006

600 ORDER granting Pltfs' Request for Case Conference 595 . The Conference is set for 2/28/06 at 10:00 a.m. to give the Defts the opportunity to respond to the Pltfs' prior Memorandum on the February 10th Conference and the issues raised in this request. Signed by Judge William J. Haynes on 2/14/06. (jb) (Entered: 02/14/2006)

02/14/2006

601 ORDER: The Court set a conference in this action on 2/10/06 to discuss pending motions and the issues about the role of the Special Master in this action in light of the Order of Recusal of the Hon. John T. Nixon 584 . The Court incorporates by reference its review of Judge Nixon's prior Orders, Memoranda, findings, and the provisions of the Consent Decree at the February 10th conference. Within 30 days from the 2/10/06 conference the defts shall file any documents which the deft contends, represents their remedial plan of compliance. The parties may commence discovery immediately on the status of the defts' compliance of the Consent Decree and this Court's Orders as well as the status of any plan or process of the defts to do so. Within 20 days of this Order, the defts shall produce the documents listed in the Pltfs' counsel's motion (DE # 592 , at p.16, Section C through p. 17 up to and including paragraph 5). Within 20 days of this Order, the defts shall produce the information requested by the former Special Master as set forth in his letter 12/21/05 to State's counsel that is attached to the Defts' motion 562 . The parties shall have at least 90 days from the date of the February 10th conference to conduct and complete discovery. The current Special Master is relieved of his duties as Special Master, but shall remain and is appointed as a technical advisor for this non−traditional litigation under the inherent authority of this Court. This

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02/14/2006 02/15/2006
02/21/2006 02/21/2006 02/21/2006 02/21/2006 02/22/2006 02/23/2006 02/27/2006

appointment extends to the persons selected by the Special Master who prepared or contributed to the proposed remedial plan submitted by the Special Master. In addition to the proposed plan that reflects the Special Master's or his assistants' report on an appropriate remedial plan, within 20 days of the entry of this Order, the former Special Master and his assistants shall provide the parties with the documents, exhibits, and publications as outlined in this order. At an appropriate time, the Court will appoint a monitor(s) for this litigation with prior notice to the parties and with a statment of the monitor(s)' authority. An Evidentiary Hearing will be held on 6/19/06 at 10:00 a.m. on the defts' compliance with the Consent Decree and this Court's Orders. Given the length of these proceedings and the absence of an approved remedial plan, the Court will undertake and the parties and their counsel should undertake efforts to expedite the resolution of the issues in this action. Signed by Judge William J. Haynes on 2/14/06. (jb) (Entered: 02/14/2006)
Set Hearing: Evidentiary Hearing is set for 6/19/06 at 10:00 AM before District Judge William J. Haynes per Order 601 . (jb) (Entered: 02/14/2006)
602 ORDER: In light of the pltfs' request re 595 Motion for Case Conference citing among other things the immediate need for the selection of a monitor and in contemplation of the appointment of monitors in this action to replace the Special Master and his assistants appointed by the Hon. John T. Nixon, Senior Judge, the Court invites the following persons to attend the 2/28/06 conference at 10:00 a.m.: Leilani S. Boulware, General Counsel, Meharry Medical College; Professor Alex Hurder, Vanderbilt School of Law; Professor Susan Kay, Vanderbilt School of Law; Michael Passino; and Robert L. Smith, Smith, Hirsch, Blackshear &Barnes, PLC. The parties may comment on the appointment of these persons and either jointly or separately, may recommend other persons for appointment. Any such recommendations shall be filed by 2/21/06. These persons will be asked of their availability to serve individaully or collectively as court appointed monitors in this action. If these persons elect to accept the Court's invitation to discuss their appointment, each such person is requested to read the Consent Decree, the Court Orders and Memoranda. (Docket Entry Nos. 12, 227, 291, 465, 578 and 584). The Clerk shall make copies of each of these documents and mail the documents to each of the above listed persons and any other person recommended by a party. The monitors shall be compensated by the Defts whom this Court has found to be not in compliance with the Consent Decree and the Orders of this Court. Signed by Judge William J. Haynes on 2/15/06. (jb) (Entered: 02/16/2006)
603 DECLARATION of Brent Antony filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 02/21/2006)
604 MOTION for Protective Order by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 3/10/2006 (Attachments: # 1 Exhibit A − Declaration of Brent Antony# 2 Exhibit B − Dec. 21, 2005 Letter from R. Carter to L. Ross# 3 Exhibit C − Jan. 20, 2005 Email from L. Ross to Dr. Carter)(Cooper, Charles) (Entered: 02/21/2006)
605 RESPONSE filed by John B. to Order of February 15, 2006 602 . (Attachments: (1) Attachment A (Part 1) Special Masters' Incidence and Activity (2) Attachment A (Part 2) Special Masters' Incidence and Activity)(Bonnyman, George) Modified Text on 2/22/06. (jb). (Entered: 02/21/2006)
606 RESPONSE filed by Nancy Menke, Theresa Clarke, George W. Hattaway to Order of February 15, 2006 602 . (Cooper, Charles) Modified Text on 2/22/06 (jb). (Entered: 02/21/2006)
607 ORDER: Defts' Motion for a Protective Order 604 will be heard at the 2/28/06 hearing. Mr. Antony shall be present. Signed by Judge William J. Haynes on 2/22/06. (jb) (Entered: 02/22/2006)
608 RESPONSE in Opposition re 604 MOTION for Protective Order filed by John B. (Johnson, Michele) Modified text on 2/24/2006 (gi, ). (Entered: 02/23/2006)
609 MOTION for Reconsideration re 602 Order,,,,,,, 601 Order,,,,,,,,,, by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 3/16/2006 (Cooper, Charles) (Entered: 02/27/2006)

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02/27/2006

610 RESPONSE filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 592 Sealed Document filed by John B., Plaintiffs' Memorandum of February 10, 2006. (Attachments: # 1 Exhibit A − Letter of Withdrawal dated Feb. 11, 2006)(Cooper, Charles) (Entered: 02/27/2006)

02/27/2006

611 RESPONSE in Opposition re 604 MOTION for Protective Order, 609 MOTION for Reconsideration re 602 Order,,,,,,, 601 Order,,,,,,,,,, filed by John B.. (Attachments: # 1 Appendix 4−5−04 Letter from Linda Ross)(Bonnyman, George) (Entered: 02/27/2006)

03/01/2006

612 ORDER: For the reasons stated in the prior Orders in this action, at the 2/10/06 conference, in this Court's earlier Order 601 and at the 2/28/06 hearing, the Court finds that the circumstances of this action require the immediate need for the appointment of monitors to replace the Special Master and his assistants appointed by the Hon. John T. Nixon, Senior Judge. The following persons are appointed monitors in this action: Leilani S. Boulware, Alex Hurder, Susan Kay, Michael Passino, &Robert L. Smith. The monitors shall be compensated by the defts based upon the Court's earlier Order on the defts' noncompliance with the Consent Decree and the Court's inability to decide remedial issues without the assistance. A monitor may submit an interim request for payment. The defts' objections to this appointment shall be addressed in a separate Memorandum and Order. The monitors are assigned the responsibilities of monitoring the defts' compliance with the Consent Decree and shall identify issues of compliance that need to be addressed by the parties and the Court with a statement of the reasons therefore as well as any relevant information, including documents, as the monitor shall determine. The monitors shall file any reports that the monitors deem necessary. Any reports from the monitors will be reviewed de novo. The monitors shall communicate with the Court only by written reports. The monitors shall elect one of their number to serve as lead monitor for the purposes of receiving requests from the parties' counsel. The parties shall designate one of their counsel or other representative to serve as the contact person for the lead monitor or any other monitor. The parties shall serve the monitors with their designations by 3/3/06. Each monitor may engage administrative and technical assistance, including a computer specialist. The monitor shall give forty eight hours prior written notice to the parties' lead counsel before retaining such a person. The monitor shall be allowed access to interview any pltf, class member, employee of the defts, the Special Master and his assistants. Any discussions between the monitors and any persons involved in this action shall be deemed confidential, inadmissible as evidence in this action, and shall not be publicly disclosed w/o the consent of all affected persons. These monitors will serve in a quasi−judical capacity pursuant to an appointment Order of this Court under the inherent authority of the Court to appoint persons to assist the Court in the performance of its judicial duties. The monitors shall not be subject to discovery nor shall any monitor be called to testify in any action. Signed by Judge William J. Haynes on 2/28/06. (jb) (Entered: 03/01/2006)

03/01/2006

613 Minute Entry for proceedings held before Judge William J. Haynes: Conference held on 2/28/06. Monitors were appointed by the Court to replace the Special Master and his assistants. Court to enter order. (Court Reporter Peggy Turner.) (jb) (Entered: 03/01/2006)

03/01/2006

614 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 2/10/06 before Judge William J. Haynes, Jr.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 03/01/2006)

03/02/2006

615 ORDER: Upon review of the 2/28/06 conference, a Status Conference is set for 4/17/06 at 10:00 AM to review the initial reports of the monitors who are requested, if practicable, to file a written initial report by close of business on 4/14/06. The Defts' motion for a Protective Order 604 is granted in part, and denied in part, so as to require the Defts to provide to Dr. Carter by 3/30/06, the material requested by Dr. Carter for fiscal year 2002, 2003 and 2004. These materials shall also be provided to counsel for the Pltfs, and the monitors. The Defts shall produce the 2005 fiscal year data requested by Dr. Carter by 5/1/06, with copies to Pltfs' counsel and the monitors. Within 10 days from the date of this Order, the Defts are Ordered to submit any additional legal authorities i.e., court decisions, statutes or

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03/02/2006
03/02/2006
03/02/2006
03/02/2006 03/03/2006 03/03/2006 03/06/2006 03/13/2006 03/13/2006 03/13/2006 03/14/2006 03/31/2006 04/03/2006 04/10/2006 04/10/2006
04/11/2006 04/13/2006

rules to support their contentions in the Defts' motion to reconsider 609 . Signed by Judge William J. Haynes on 3/2/06.(jb) (Entered: 03/02/2006)
616 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 2/28/06 before Judge William J. Haynes, Jr.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 03/02/2006)
617 ORDER: The Court Reporter shall provide transcripts of the February 10 and February 28, 2006 conferences to the monitors at the court's expense. Signed by Judge William J. Haynes on 3/2/06. (cc: Court Reporter &af)(jb) (Entered: 03/02/2006)
618 (AMENDED)TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 2/10/06 before Judge William J. Haynes, Jr.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 03/03/2006)
620 Mail Returned as Undeliverable. 590 Order. Mail sent to Kathryn L. Wheelbarger, Esq. (jb) (Entered: 03/03/2006)
619 EXHIBIT AND WITNESS LIST prepared by Deputy Clerk at Conference held 2/28/06 before Judge William J. Haynes, Jr. re: 613 . (jb) (Entered: 03/03/2006)
Phoned Mr. Cooper's Office and was informed that Ms. Wheelbarger &Hamish Hume are no longer with the firm of Cooper &Kirk and are no longer on this case. (jb) (Entered: 03/03/2006)
621 MOTION for Clarification of Orders 612 615 by John B. (Johnson, Michele) Modified Text on 3/6/06 (jb) (Entered: 03/06/2006)
622 RESPONSE filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 615 Order of March 2, 2006. (Cooper, Charles) Modified Text on 3/14/06 (jb). (Entered: 03/13/2006)
623 RESPONSE to Motion re 621 MOTION for Clarification of Orders 612 615 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 03/13/2006)
624 RESPONSE filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 601 Order (Attachment: (1) Consent Decree Grid)(Cooper, Charles) Modified Text on 3/14/06 (jb). (Entered: 03/13/2006)
625 SUPPLEMENTAL MOTION to Supplement 621 MOTION for Clarification of Orders 612 615 by John B. Responses due by 3/31/06. (Johnson, Michele) Modified Text on 3/15/06 (jb). (Entered: 03/14/2006)
626 MOTION to Exceed the Number of Interrogatories Allowed by John B.. Responses due by 4/17/06. (Attachment: (1) Appendix)(Johnson, Michele) Modified Text on 3/31/06 (jb). (Entered: 03/31/2006)
627 ORDER granting 626 Motion to Exceed the Number of Interrogatories Allowed. Signed by Judge William J. Haynes on 4/3/06. (hv) (Entered: 04/03/2006)
628 MOTION to Reschedule Hearing re 615 Order by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 4/27/06. (Cooper, Charles) Modified Text on 4/10/06 (jb). (Entered: 04/10/2006)
629 (DISREGARD−DUPLICATE OF DE NO. 628−THIS MOTION HAS BEEN TERMINATED) MOTION to Reschedule Hearing by Nancy Menke, Theresa Clarke, George W. Hattaway. Responses due by 4/27/2006 (Cooper, Charles) Modified on 4/10/2006 (aef, ). (Entered: 04/10/2006)
630 ORDER: The Motion to Reschedule Hearing 628 is granted to reset the Hearing for 4/17/06 at 1:30 p.m. Signed by Judge William J. Haynes on 4/11/06. (jb) (Entered: 04/11/2006)
631 PLTFS' MOTION for Order Regulating Discovery of Former Special Master and His Experts by John B. Responses due by 5/1/06. (Attachment: (1) Attachment A,

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04/14/2006 04/14/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/18/2006 04/18/2006
04/18/2006
04/18/2006 04/18/2006 04/18/2006

4−6−06 Ltr to Dr. Richard A. Carter)(Johnson, Michele) Modified Text on 4/14/06 (jb). (Entered: 04/13/2006)
632 STATUS REPORT of the Monitors by Michael Passino. (Passino, Michael) (Entered: 04/14/2006)
633 MOTION to Continue Time of 4/17/06 Status Conference by Michael Passino. Responses due by 5/1/2006 (Passino, Michael) (Entered: 04/14/2006)
634 ORDER granting Motion to Move Time of Status Conference 633 . The Conference is reset for 4/17/06 at 3:00 PM. Signed by Judge William J. Haynes on 4/17/06. (jb) (Entered: 04/17/2006)
635 RESPONSE to Motion re 631 PLTFS' MOTION for Order Regulating Discovery of Former Special Master and His Experts filed by Richard A. Carter. (Carter, Richard) (Entered: 04/17/2006)
636 ORDER: Upon review of the record, the 582 Pltfs' Request for Time to File Response to Declaration of Thomas Catron is denied as moot. Signed by Judge William J. Haynes on 4/17/06. (jb) (Entered: 04/18/2006)
638 ORDER: The 621 Pltfs' Motion for Clarification is denied as moot in light of the discussion of the parties' positions at the April 17, 2006 Conference. Signed by Judge William J. Haynes on 4/17/06. (jb) (Entered: 04/18/2006)
639 ORDER: The 625 Pltfs' Supplemental Motion for Clarification is denied as moot for reasons stated in the companion Order. Signed by Judge William J. Haynes on 4/17/06. (jb) (Entered: 04/18/2006)
640 ORDER: Based upon the April 17th Conference, the 631 Pltfs' Motion for Order Regulating Discovery of Former Special Master and His Experts is denied as moot. Signed by Judge William J. Haynes on 4/17/06. (jb) (Entered: 04/18/2006)
637 ORDER granting 609 Defts' Motion for Reconsideration. The Court reaffirms its earlier Orders based upon the reasons stated in open Court. Signed by Judge William J. Haynes on 4/18/06. (jb) Modified on 4/18/06 (jb). (Entered: 04/18/2006)
641 ORDER: Upon review of the response of Richard Carter, M.D., M.P.H., former Special Master and recently appointed technical advisor to Pltf's motion for order regulation of discovery, the Court instructs the former Special Master and his assistants that they are now technical advisors who will perform the same duties, except as witnesses. They shall no longer report to or communicate with the Court, but must be prepared to testify on their studies in their assigned areas. They will be compensated by the defts and may submit vouchers for payment for their services. The Clerk shall mail a copy of this Order to the former Special Master at the address listed on his response for distribution to his assistants. Signed by Judge William J. Haynes on 4/18/08. (cc: Richard Carter, M.D., M.P.H.) (jb) (Entered: 04/18/2006)
642 Minute Entry for proceedings held before Judge William J. Haynes: Hearing held on 4/17/06. The following motions were ruled upon (Docket Entry Nos. 582, 609, 621, 625, 631, and 633). The Court accepted the monitors report. Next conference set for 6/9/06 at 3:00 p.m. (Court Reporter Peggy Turner.) (jb) Modified on 4/18/06 (jb). (Entered: 04/18/2006)
643 ORDER: Based upon the monitor's report, the next Conference is set for 6/9/06 at 3:00 PM. The former Special Master and his assistants are requested to be present. Signed by Judge William J. Haynes on 4/18/06. (jb) (Entered: 04/18/2006)
644 PROPOSED AGREED ORDER extending the deadline for responding to pltfs' third set of interrogatories and third set of requests for documents by the Parties (Cooper, Charles) Modified Text on 4/19/06 (jb). (Entered: 04/18/2006)
645 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on April 17, 2006 at 2:30 p.m. before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 04/19/2006)

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04/19/2006
04/20/2006 05/01/2006 05/03/2006 05/04/2006 05/04/2006 05/09/2006 05/09/2006
05/22/2006 05/23/2006 05/25/2006 05/26/2006
05/30/2006

NOTE TO FILER RE: DE #644 Proposed Agreed Order filed as a Notice−In the future, please file proposed orders as an attachment to an electronically filed motion or other request for relief. Proposed Orders should NOT be filed as an attachment to a Notice or filed as a Notice. The only exception is if the judge specifically directs the filing of a proposed order during a court hearing. In that case, the proposed order should be attached to a Notice explaining that the party was directed by the Judge to file the proposed order.(jb) (Entered: 04/19/2006)
646 TRANSCRIPT (Amended Version) prepared by OCR Peggy Turner for Proceedings held on April 17, 2006 at 2:30 p.m. before Judge William J. Haynes, Jr.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 04/21/2006)
647 Letter from Leonard Green, Clerk 6CCA to Judge Haynes re: petition for writ of mandamus. (mk, ) (Entered: 05/02/2006)
648 Joint Motion to Extend Deadline for Pltfs to Respond to Defts' Written Discovery by John B. Responses due by 5/22/06. (Attachment: (1) Proposed Agreed Order Extending Deadline for Plaintiffs to Respond to Defendants' Written Discovery)(Johnson, Michele) Modified Text on 5/3/06 (jb). (Entered: 05/03/2006)
649 Copy of response to 6CCA from Judge Haynes re: Writ of Mandamus. (copy of certified docket sheet to 6CCA and copy of response sent to all counsel of record as directed) (mk, ) (Entered: 05/04/2006)
650 ORDER granting 648 Motion for Extension of Time to Complete Discovery. The pltf have until 5/23/06 to respond to defts' interrogatorries &request for production of documents. Signed by Judge William J. Haynes on 5/4/06. (hv) (Entered: 05/04/2006)
651 MOTION to Compel Defts to Disclose Documents Made Available to Monitors by John B. Responses due by 5/26/06. (Johnson, Michele) Modified Text on 5/10/06 (jb). (Entered: 05/09/2006)
652 BRIEF in Support of 651 MOTION to Compel Defts to Disclose Documents Made Available to Monitors filed by John B. (Attachments: (1) Exhibit A. 4−19−06 Bonnyman LTR to Kirk (2) Exhibit B. 4−25−06 Kirk LTR to Bonnyman (3) Exhibit C. 4−26−06 Bonnyman LTR to Kirk (4) Exhibit D. Kirk e−mail to Bonnyman (5) Exhibit E. 5−1−06 Moss e−mail to Bonnyman)(Johnson, Michele) Modified Text on 5/10/06 (jb). (Entered: 05/09/2006)
653 Joint MOTION to Extend Deadlines for Pltfs to Respond to Defts' Written Discovery by the parties. Responses due by 6/8/06. (Attachment: (1) Proposed Agreed Order Extending Deadlines for Pltfs to Respond to Defts' Written Discovery)(Johnson, Michele) Modified Text on 5/23/06 (jb). (Entered: 05/22/2006)
654 AGREED ORDER Extending Deadline for Pltfs to Respond to Defts' Written Discovery re 653 . Pltfs have until 5/30/06 to respond to Defts' First Request for Production to Pltfs. Signed by Judge William J. Haynes on 5/23/06. (jb) (Entered: 05/23/2006)
655 RESPONSE in Opposition re 651 MOTION to Compel Defts to Disclose Documents Made Available to Monitors filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 05/25/2006)
656 ORDER: The 651 Pltfs' Motion to Compel is denied w/o prejudice to renew. Based upon the defts' response DE # 655 , the defts counsel shall prepare a list of these documents and shall send that list to the former special master and his expert assistants. The former special master and his assistants shall then file a statement identifying which of the documents on the list reflect the communications between the defts and the special master and his assistants. The Court does intend to preserve the confidentiality of any such communications. Signed by Judge William J. Haynes on 5/26/06. (jb) (Entered: 05/26/2006)
657 Second PROGRESS REPORT of the Monitors. (Kay, Susan) Modified Text on 5/31/06 (jb). (Entered: 05/30/2006)

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06/07/2006 06/12/2006 06/14/2006 06/15/2006
06/16/2006 06/21/2006 06/22/2006 06/23/2006
06/26/2006 06/28/2006
06/28/2006 07/06/2006 07/07/2006
07/12/2006

658 RESPONSE filed by John B. re 657 Status Report filed by Robert L. Smith,, Richard A. Carter,, Susan Kay,, Leilani S. Boulware,, Alex Hurder,, Michael Passino, Plaintiffs' Response to Second Progress Report of the Monitors. (Johnson, Michele) (Entered: 06/07/2006)
659 ORDER of USCA in re: M.D. Goetz granting petitioners' mtn to exceed pg limit, but denying petition for a writ of mandamus. (mk, ) (Entered: 06/13/2006)
660 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on June 9, 2006 at 3:00 p.m. before Judge William J. Haynes, Jr.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb (Entered: 06/15/2006)
661 ORDER: Based upon the 6/12/06 status conference, the Court accepts the Monitors' Second Report 657 and adopts the suggested schedule therein for the filing of future reports. The Order 601 setting the evidentiary hearing that is scheduled for 6/16/06 at 10:00 a.m. is modified and that hearing is cancelled. Signed by Judge William J. Haynes on 6/15/06. (jb) (Entered: 06/16/2006)
662 BRIEF Regarding the Monitoring Process re 657 filed by John B. (Attachment: (1) Appendix Attachment A − Cooper &Kirk web page)(Johnson, Michele) Modified Text on 6/16/06 (jb). (Entered: 06/16/2006)
663 First MOTION to Clarify re Monitors' Fees 661 Order 612 Order by Susan Kay. (Kay, Susan) Modified Text on 6/21/06 (jb). (Entered: 06/21/2006)
664 ORDER granting 663 Motion to Clarify. The monitors shall submit to defts' counsel a billing of hours listing the work performed. Absent an objection as to the amount, defts shall pay the billing within 10 business days after receipt. Signed by Judge William J. Haynes on 6/21/06. (gi, ) (Entered: 06/22/2006)
665 RESPONSE filed by Defts to 662 Pltf's Brief Regarding the Monitoring Process. (Attachments: (1) Exhibit Excerpt from Consent Decree Grid (2) Exhibit Excerpt from Interrogatory Responses (3) Exhibit Excerpt from the Appendix Supplement)(Cooper, Charles) Modified Text on 6/26/06 (jb). (Entered: 06/23/2006)
666 MOTION for Clarification on Submission of Invoices for Services Provided by the Court Appointed Technical Advisors re 312 Order, 291 Order, &601 Order by Richard A. Carter. (Carter, Richard) Modified Text on 6/26/06 (jb). (Entered: 06/26/2006)
667 ORDER granting 666 Motion for Clarification on Submission of Invoices for services provided by the Court Appointed Technical Advisors. The technical advisors shall follow the same procedure for payment as the monitors as described in the Court's Order 664 , a copy of which is attached. Signed by Judge William J. Haynes on 6/28/06. (Attachment: (1) Copy of Order DE # 664 ) (jb) (Entered: 06/28/2006)
668 Minute Entry for proceedings held before Judge William J. Haynes: Status Conference held on 6/9/06. Parties given two weeks to file briefs. (Court Reporter Peggy Turner.) (jb) (Entered: 06/28/2006)
669 MOTION to Withdraw as Tamara Seltzer as Counsel for John B. Responses due by 7/24/06. (Seltzer, Tamara) Modified Text on 7/7/06 (jb). (Entered: 07/06/2006)
NOTE TO FILER RE: DE #669−This pleading is a scanned document. Scanning should be used ONLY for documents that do not exist in electronic format on your computer. Examples of documents that may be scanned are police reports, executed contracts, or documents that contain signatures other than that of the filing user (see section 8 − "Signatures" of our Administrative Practices and Procedures for Electronic Case Filing). Also, please remember to add the following to your signature line: s/Tamara Seltzer. This document does not need to be refiled unless otherwise directed by the Court. (jb) (Entered: 07/07/2006)
670 OBJECTIONS to the Proposed Fees Submitted by Monitors on June 27, 2006. (Attachments: # 1 Exhibit 6−27−06 Bill from Monitors)(Cooper, Charles) (Entered: 07/12/2006)

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07/13/2006 07/17/2006
07/18/2006 07/28/2006 07/28/2006 08/02/2006 08/03/2006 08/03/2006 08/03/2006 08/03/2006 08/04/2006
08/04/2006
08/04/2006
08/04/2006

671 MOTION for Directions from the Court regarding the filing of statement verifying documents reflecting communications with the defts re 656 Order by Former Special Master Richard A. Carter. (Carter, Richard) Modified Text on 7/13/06 (jb). (Entered: 07/13/2006)
672 ORDER granting 671 Request for Directions from the Court regarding the filing of his statement verifying documents reflecting communications with the Defts. The former special master's statement, as described by the Court, will be filed only with the Court and shall not be served on any party. This submission is for review only by the Court. Signed by Judge William J. Haynes on 7/17/06. (jb) (Entered: 07/17/2006)
673 OBJECTIONS to Invoices Submitted by Marci White, Larry Platt, and Sara Rosenbaum. (Attachments: # 1 Exhibit A − Invoice from Marci White# 2 Exhibit B − Invoice from Sara Rosenbaum# 3 Exhibit C − Invoice from Larry Platt)(Cooper, Charles) (Entered: 07/18/2006)
674 Sealed Document Report of former Special Master on order #661 list of documents filed by Richard A. Carter. (Carter, Richard) (Entered: 07/28/2006)
675 NOTICE of Filing by Nancy Menke July 2006 Semi−Annual Progress Report (Attachments: # 1 John B. July 2006 Semi−Annual Progress Report)(Ross, Linda) (Entered: 07/28/2006)
676 OBJECTIONS to the Invoice Submitted by Paul Newacheck filed by defts. (Attachment: (1) Exhibit A − Newacheck invoice)(Cooper, Charles) Modified Text on 8/2/06 (jb). (Entered: 08/02/2006)
677 ORDER granting 669 Motion to Withdraw Tamara Seltzer as Counsel for the Pltf Class. Attorney Tamara Lynn Seltzer terminated. Signed by Judge William J. Haynes on 8/1/06. (jb) (Entered: 08/03/2006)
678 SEALED ORDER re 674 Sealed Document filed by Richard A. Carter. Signed by Judge William J. Haynes on 7/31/06. (jb) (Entered: 08/03/2006)
679 ORDER: Mr. Newacheck shall file a written response to the 676 objections to the invoice submitted by Paul Newacheck within 10 days of this Order. Signed by Judge William J. Haynes on 8/3/06. (jb) (cc: Mr. Newacheck by email) Modified on 8/3/06 (jb). (Entered: 08/03/2006)
680 ORDER: The 670 Defts' Objections are Overruled. The Defts shall pay the Monitors' fees forthwith. Signed by Judge William J. Haynes on 8/3/06. (jb) (Entered: 08/03/2006)
681 MOTION for attorney Jeffrey S. Goldman to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Jeffrey S. Goldman from USDC/ND/IL)(Johnson, Michele) (PHV Fee Paid) Modified Text on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)
682 MOTION for attorney Gregory Todd Heyman to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Gregory Todd Heyman from USDC/SD/NY)(Johnson, Michele) (PHV Fee Paid) Modified on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)
683 MOTION for attorney Robert Thomas Joseph to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Robert Thomas Joseph from USDC/ND/IL)(Johnson, Michele) (PHV Fee Paid) Modified Text on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)
684 MOTION for attorney Albert Howard Kass to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Albert Howard Kass from Appellate Division of the Supreme Court of the State of NY First Judicial Department)(Johnson, Michele) (PHV Fee Paid−Certificate of Good Standing Not in Compliance with Local Rule 83.01(d)) Modified Text on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)

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08/04/2006
08/04/2006 08/04/2006
08/04/2006
08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/07/2006 08/10/2006 08/10/2006 08/11/2006

685 MOTION for attorney Junaid Khalil to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Junaid Khalil from Appellate Division of the Supreme Court of the State of NY Second Judicial Department)(Johnson, Michele)(PHV Fee Paid−Certificate of Good Standing Not in Compliance with Local Rule 83.01(d)) Modified Text on 8/4/06 (jb). Modified on 9/25/06 (jb). (Certificate of Good Standing f/USDC/SD/NY 704 filed 10/11/06 ) Modified on 10/12/06 (jb). (Entered: 08/04/2006)
686 MOTION for attorney Victoria Reznik to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Victoria Reznik from USDC/SD/NY) (Johnson, Michele) (PHV Fee Paid) Modified on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)
687 MOTION for attorney Shira Judith Schlaff to Appear Pro Hac Vice by John B. Responses due by 8/21/06. (Attachment: (1) Attachment 1 − Certificate of Good Standing for Shira Judith Schlaff from Appellate Division of the Supreme Court of the State of NY First Judicial Department)(Johnson, Michele)(PHV Fee Paid−Certificate of Good Standing Not in Compliance with Local Rule 83.01(d)) Modified Text on 8/4/06 (jb). Modified on 9/25/06 (jb). (Entered: 08/04/2006)
NOTE TO FILER RE: DE Nos. 684, 685, &687−The Certificates of Good Standing for the following attorneys are not in Compliance with Local Rule 83.01(d): Albert Howard Kass, Junaid Khalil, &Shira Judith Schlaff. The Certificates of Good Standing must be from a Federal Court. Please file the correct certificates of good standing for these attorneys as soon as possible. Also, in the future, Certificates of Good Standing should be filed as a separate filing using the event "Certificate" under other documents. REMINDER−Please forward the $75.00 per attorney filing fee to the Clerk's Office. (jb) (Entered: 08/04/2006)
688 ORDER granting 681 Motion for Jeffery S. Goldman to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
689 ORDER granting 682 Motion for Gregory Todd Heyman to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
690 ORDER granting 683 Motion for Robert Thomas Joseph to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
691 ORDER granting 684 Motion for Albert Howard Kass to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
692 ORDER granting 685 Motion for Junaid Khalil to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
693 ORDER granting 686 Motion for Victoria Reznik to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
694 ORDER granting 687 Motion for Shira Judith Schlaff to Appear Pro Hac Vice for pltfs. Signed by Judge William J. Haynes on 8/4/06. (jb) (Entered: 08/07/2006)
695 Sealed Document Re−submission of Statement 674 for effective review re 678 Order filed by Richard A. Carter. (Carter, Richard) Modified Text on 8/8/06 (jb). (Entered: 08/07/2006)
696 MOTION to Clarify re 641 Order by Richard A. Carter. (Carter, Richard) Modified Text on 8/11/06 (jb). (Entered: 08/10/2006)
697 NOTICE of Filing Response to 676 by Richard A. Carter (Attachment: (1) Exhibit−Respone of Paul Newacheck, DrPH, to Defendants' Objections to the invoice submitted by Paul Newacheck, Dr.PH (Document 676−1))(Carter, Richard) Modified Text on 8/11/06 (jb). (Entered: 08/10/2006)
NOTE TO FILER RE: DE #697 Notice of Filing Response−In the future, please file original response as a separate filing. This Response should have been filed using the event "Response" under other documents. This document does not need to be refiled unless otherwise directed by the Court. (jb) (Entered: 08/11/2006)

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08/11/2006

698 REVISED OBJECTIONS re 673 676 to the Invoices submitted by Marci White, Larry Platt, Sara Rosenbaum and Paul Newacheck filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 8/11/06 (jb). (Entered: 08/11/2006)

08/11/2006

699 ORDER: The 696 Motion for Clarification of 641 Order is granted. Any informal discussions of the former Special Master and his assistants is limited to the monitors. These technical advisors may make written requests for any information they deem relevant to assist the court in their assigned subjects. The defts must file any objections to these requests within 10 days after service. Signed by Judge William J. Haynes on 8/11/06. (jb) (Entered: 08/11/2006)

08/11/2006

700 OBJECTIONS to the Invoice of the Former Special Master by the defts. (Attachment: (1) Exhibit A − Invoice of the Former Special Master)(Cooper, Charles) Modified Text on 8/14/06 (jb). (Entered: 08/11/2006)

09/22/2006

701 MOTION to Alter Timeline by Susan Kay. Responses due by 10/10/06. (Kay, Susan) Modified Text on 9/25/06 (jb). (Entered: 09/22/2006)

09/25/2006

702 RECEIPT #111143 in the amount of $525.00 posted on 8/11/06 for PHV Fee for Goldman, Heyman, Joseph, Kass, Khalil, Reznik, Schlaff re 681 682 683 684 685 686 687 . (jb) (Entered: 09/25/2006)

09/26/2006

703 ORDER granting 701 Motion to Alter Timeline. Proposed draft report submitted to the parties no later than 10/15/06. Parties' responses to the Report submitted to the Monitors no later than 11/15/06. Monitors meetings with parties to discuss the proposed draft Report and the responses to be concluded by 12/7/076. Final report of the Monitors due to the Court no later than 12/31/06. Signed by Judge William J. Haynes on 9/26/06. (jb) (Entered: 09/26/2006)

10/11/2006

704 CERTIFICATE OF GOOD STANDING for Junaid Khalil from USDC/SD/NY in support of 685 Motion to Appear Pro Hac Vice filed by John B. (Johnson, Michele) Modified Text on 10/12/06 (jb). (Entered: 10/11/2006)

10/12/2006

705 CERTIFICATE OF GOOD STANDING for Shira J. Schlaff from USDC/ED/PA re 687 Motion to Appear Pro Hac Vice filed by John B. (Johnson, Michele) Modified Text on 10/16/06 (jb). (Entered: 10/12/2006)

10/13/2006

706 MOTION to Compel Discovery by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Joint Statement Regarding Discovery Dispute)(Cooper, Charles) (Entered: 10/13/2006)

10/13/2006

707 MEMORANDUM in Support of 706 MOTION to Compel Discovery filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A− Document Production Index# 2 Exhibit B− Privilege Log# 3 Exhibit C− Letter from M. Johnson to N. Moss dated 6−30−06)(Cooper, Charles) (Entered: 10/13/2006)

10/13/2006

708 MOTION to Compel Discovery by pltfs. (Johnson, Michele) Modified Text on 10/16/06 (jb). (Entered: 10/13/2006)

10/13/2006

709 BRIEF filed by pltfs re 708 Motion to Compel. (Johnson, Michele) Modified Text on 10/16/06 (jb). (Entered: 10/13/2006)

10/13/2006

710 STATEMENT of Counsel in Support of 708 Plaintiffs' Motion to Compel filed by pltfs. (Bonnyman, George) Modified Text on 10/16/06 (jb). (Entered: 10/13/2006)

10/13/2006

711 JOINT STATEMENT Regarding Discovery Dispute re 706 708 Motions to Compel filed by the parties. (Johnson, Michele) Modified Text on 10/16/06 (jb). (Entered: 10/13/2006)

10/13/2006

712 NOTICE of Filing by pltfs re 709 Brief (Attachments: # 1 Exhibit A − part 1, Correspondence re: Discovery June 16, 2006 − August 28, 2006# 2 Exhibit A − part 2, Correspondence re: Discovery June 16, 2006 − August 28, 2006# 3 Exhibit B − part 1, Correspondence re: Discovery August 29, 2006 − September 20, 2006# 4 Exhibit B − part 2, Correspondence re: Discovery August 29, 2006 − September 20, 2006# 5 Exhibit B − part 3, Correspondence re: Discovery August 29, 2006 − September 20, 2006# 6 Exhibit C − Amendend and Restated Contractor Risk Agreement paragraph 2−12.a# 7 Exhibit D − Newberry v. Neel, No. 3:98−1127,

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10/16/2006 10/16/2006 10/20/2006 10/20/2006
10/23/2006 10/27/2006 10/27/2006 10/27/2006 10/27/2006
10/31/2006 11/01/2006 11/01/2006

(M.D. Tenn. Mar. 11, 2002) (Doc. 180)# 8 Exhibit E − Diagnosis and Treatment Workgroup Meeting Notes, Aug. 17, 2005# 9 Exhibit F − GOCCC Meeting with Diagnosis and Treatment Director Meeting Notes, Aug. 18, 2005 (Draft)# 10 Exhibit G − Gordon Bonnyman Declaration dated October 13, 2006# 11 Exhibit H − Rosen v. Goetz, No. 3:97−0627 (M.D. Tenn.), (3−31−05, Hickey Test.), 60.# 12 Exhibit I − Letter from Wheelbarger to Bonnyman dates April 4, 2005 (Rosen PX 400)# 13 Exhibit J − Collective Exhibit: Email correspondence provided from state in Discovery between Tam Gordon and J.D. Hickey Bates No. TC−JB0406−K01096−97; Two−page Fax 8−21−2004 to Michele Johnson from Linda Ross re: Governor Bredesen's involvement in EPSDT# 14 Exhibit K − Grier v. Goetz, No. 79−3107 (M.D. Tenn.), Trans. Vol. IV−A (7−5−05, Martins' Test.), 714−15)(Johnson, Michele) Modified Text on 10/16/06 (jb). (Entered: 10/13/2006)
NOTICE TO FILER RE: DE #712 Declaration attached to Notice of Filing−In the future, please file a declaration as a separate filing using the event "Declaration" under other documents. This document does not need to be refiled. (jb) (Entered: 10/16/2006)
713 SUPPLEMENTAL NOTICE re 712 of Filing Documents in support of 709 Brief filed by pltfs. (Attachment: (1) Exhibit L − Email exchange between Gordon Bonnyman and Nicole Moss, October 9−10, 2006 regarding discovery dispute)(Johnson, Michele) Modified Text on 10/17/06 (jb). (Entered: 10/16/2006)
714 RESPONSE to Motion re 706 MOTION to Compel Discovery filed by John B.. (Attachments: # 1 Int'l Soc'y for Krishna Consciousness, Inc. v. Lee# 2 Britt v. Superior Court)(Johnson, Michele) (Entered: 10/20/2006)
715 DECLARATION of Gordon Bonnyman filed by John B. re: 714 Response to Motion. (Attachments: # 1 Exhibit 1 − Sample of Press Coverage# 2 Exhibit 2 − Governor's Communication Office News Release# 3 Exhibit 3 − Confidential State Documents Produced in Rosen# 4 Exhibit 4 − Grier v. Goetz Transcript Excerpt# 5 Exhibit 5 − Governor's Press Remarks, January 10, 2005# 6 Exhibit 6 − State of the State Address, January 31, 2005# 7 Exhibit 7 − Rosen v. State of TN Transcript Excerpt# 8 Exhibit 8 − Sample of Press Coverage# 9 Exhibit 9 − Email from Lola Potter, May 18, 2004# 10 Exhibit 10 − Tennessean Article "TennCare advocate: Grants cut as payback")(Johnson, Michele) (Entered: 10/20/2006)
716 OBJECTIONS to the Proposed Fees Submitted by Robert Smith on October 12, 2006. (Attachment: (1) Exhibit A)(Cooper, Charles) Modified Text on 10/23/06 (jb). (Entered: 10/23/2006)
717 DECLARATION of Nicole Jo Moss filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 10/27/2006)
718 DECLARATION of Thomas Catron, Ph.D. filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 10/27/2006)
719 DECLARATION of Brent Antony filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 10/27/2006)
720 RESPONSE in Opposition re 708 MOTION to Compel Discovery filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A − Declaration of Nicole Jo Moss# 2 Exhibit B − Declaration of Thomas Catron, Ph.D.# 3 Exhibit C − Declaration of Brent Antony)(Cooper, Charles) (Entered: 10/27/2006)
721 JOINT MOTION to Set Oral Argument on 706 708 Motions to Compel Discovery by the parties. (Johnson, Michele) Modified Text on 10/31/06 (jb). (Entered: 10/31/2006)
722 MOTION for Extension of Time to File Response/Reply to Monitors' Draft Reports by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/01/2006)
723 ORDER: The motions ( 706 708 ) are set for 11/6/06 at 3:00 p.m. re 721 JOINT MOTION to Set Oral Argument on 706 708 Motions to Compel Discovery. Signed by Judge William J. Haynes on 11/1/06. (jb) (Entered: 11/01/2006)

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11/02/2006 11/02/2006
11/03/2006 11/03/2006 11/03/2006
11/06/2006 11/06/2006 11/09/2006 11/10/2006 11/10/2006 11/13/2006
11/14/2006 11/14/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006

724 CERTIFICATE OF GOOD STANDING from USDC/SD/NY as to Albert Howard Kass re 684 Motion to Appear Pro Hac Vice filed by John B. (Johnson, Michele) Modified Text on 11/2/06 (jb). (Entered: 11/02/2006)
725 (FILED IN ERROR PER ATTY−ATTY TO REFILE) OBJECTIONS to the Proposed Fees Submitted by Robert Smith on October 12, 2006 filed by defts (Attachment: (1) Exhibit A)(Cooper, Charles) Modified Text on 11/2/06 (jb). Modified Text on 11/6/2006 (dt). (Entered: 11/02/2006)
726 MOTION for Leave to File 708 Reply Brief by Pltfs. (Bonnyman, George) Modified Text on 11/6/06 (jb). (Entered: 11/03/2006)
727 REPLY BRIEF in support of 708 MOTION to Compel Discovery filed by pltfs. (Bonnyman, George) Modified Text on 11/6/06 (jb). (Entered: 11/03/2006)
728 NOTICE of Filing Exhibits to 727 Reply Brief in support of 708 Motion to Compel Discovery by pltfs. (Attachments: (1) Exhibit 11−2−06 Letter from Gordon Bonnyman to Nicole Jo Moss and 11−3−06 reply (2) Exhibit B − Commr. Goetz notes 2004 thru 2−05 (3) Exhibit C − Martins depo. excerpts−Grier 5−25−05)(Bonnyman, George) Modified Text on 11/6/06 (jb). (Entered: 11/03/2006)
729 OBJECTIONS to the Invoice of Dr. Richard Carter. (Attachment: (1) Exhibit A)(Cooper, Charles) Modified Text on 11/6/06 (jb). (Entered: 11/06/2006)
730 ORDER granting 726 Motion for Leave to File Reply Brief in support of 708 Motion to Compel Discovery. Signed by Judge William J. Haynes on 11/6/06. (See DE # 727 for Reply Brief) (jb) (Entered: 11/06/2006)
731 NOTICE of Filing by Pltfs of Proposed Order re 706 708 MOTIONS to Compel Discovery (Attachment: (1) Proposed Order)(Bonnyman, George) Modified Text on 11/13/06 (jb). (Entered: 11/09/2006)
732 DECLARATION of Richard Booth filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/10/2006)
733 NOTICE of Filing by Defts of Proposed Order re 706 708 MOTIONS to Compel Discovery (Attachment: (1) Proposed Order)(Cooper, Charles) Modified Text on 11/13/06 (jb). (Entered: 11/10/2006)
734 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 11/6/06 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 11/13/2006)
735 RESPONSE filed by Pltfs to 733 NOTICE of Filing by Defts of Proposed Order re 706 708 MOTIONS to Compel Discovery. (Johnson, Michele) Modified Text on 11/15/06 (jb). (Entered: 11/14/2006)
736 PROPOSED REVISED TIMELINE re 703 by Susan Kay. (Kay, Susan) Modified Text on 11/15/06 (jb). (Entered: 11/14/2006)
737 MOTION for Leave to File Excess Pages by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/20/2006)
738 MOTION to Vacate the Consent Decree &Dismiss the Case by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/21/06 (jb). (Entered: 11/20/2006)
739 MEMORANDUM in support of 738 MOTION to Vacate the Consent Decree &Dismiss the Case by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/21/06 (jb). (Entered: 11/20/2006)
740 NOTICE of Filing re 738 MOTION the Consent Decree &Dismiss the Case by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachment: 1) Exhibit TennCare E−Discovery Report)(Cooper, Charles) Modified Text on 11/21/06 (jb). (Entered: 11/20/2006)

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11/21/2006 11/21/2006 11/21/2006
11/29/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006 11/29/2006

741 ORDER granting 737 Motion to Exceed the Page Limit. Signed by Judge William J. Haynes on 11/21/06. (jb) (Entered: 11/21/2006)
742 ORDER: This 736 Proposed Revised Time Line is adopted as an Order of the Court. Signed by Judge William J. Haynes on 11/21/06. (jb) (Entered: 11/22/2006)
743 ORDER: The 708 Pltfs' Motion to Compel is granted in part and denied in part. It is Ordered that within 10 days from the date of entry of this Order, the Defts shall produce for the Pltfs' discovery requests, any responsive information and documents that are the custody, possession or control of the Defts' contractors. It is further Ordered that Pltfs' discovery requests are narrowed, as discussed at the conference. In the event that the parties cannot agree by 12/8/06 on the protocol for electronic discovery or the allocation of costs of such discovery, the Court will entertain a discovery conference on 12/9/06 at 10:00 a.m. for which the parties shall produce their computer experts. It is further Ordered that the State and its contractors shall disclose to the Pltfs those present or former employees of state agencies or contractors with "substanital responsibility" for some aspect of EPSDT and Consent Decree compliance. The State is Ordered to produce records on a randomly selected sample of 100 such children, plus all cases involving children with PKU. The State need only produce these records electronically, and such production shall be subject to the electronic discovery protocol that the parties have been directed to develop. The 706 Defts' Motion to Compel is denied. Signed by Judge William J. Haynes on 11/21/06. (jb) (Entered: 11/22/2006)
744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
745 DECLARATION of AmeriChoice re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway(Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
746 DECLARATION of Memphis Managed Care Corporation re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
747 DECLARATION of Michele Blackwell re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
748 DECLARATION of QSource re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
749 DECLARATION of Sonya Nelson re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
750 DECLARATION of Stacey Hill re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
751 DECLARATION of Unison Health Plan of Tennessee, Inc. re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)
752 DECLARATION of Windsor Health Plan, Inc. re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/30/06 (jb). (Entered: 11/29/2006)

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11/30/2006 11/30/2006
12/01/2006 12/04/2006 12/05/2006 12/06/2006 12/06/2006 12/06/2006
12/07/2006 12/07/2006
12/07/2006 12/07/2006 12/07/2006 12/11/2006
12/12/2006 12/14/2006 12/14/2006

753 RESPONSE to Motion re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006. filed by John B.. (Johnson, Michele) (Entered: 11/30/2006)
754 NOTICE of Filing Documents re 753 RESPONSE to Motion re 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 by John B. (Attachments: (1) Exhibit Exhibit A −− 11−28−06 Letter from Gordon Bonnyman to Nicole Moss and Michael Kirk (2) Exhibit Exhibit B − 11−28−06 Michael Kirk letter to Gordon Bonnyman)(Johnson, Michele) Modified Text on 12/1/06 (jb). (Entered: 11/30/2006)
755 ORDER: The 744 MOTION to Amend the Deadlines Established in the 743 Court's Order of November 22, 2006 is set for Hearing on 12/6/06 at 10:30 AM. Signed by Judge William J. Haynes on 12/1/06. (jb) (Entered: 12/01/2006)
756 MOTION for Extension of Time to File Response/Reply as to 738 MOTION to Vacate the Consent Decree &Dismiss the Case by John B.. (Caster, Shawn) (Entered: 12/04/2006)
757 ORDER granting 756 Motion for Extension of Time to Respond to the State's Motion to Vacate The Consent Decree and Dismiss the Case for the time requested. Signed by Judge William J. Haynes on 12/5/06. (jb) (Entered: 12/05/2006)
758 NOTICE of Filing by John B. re 743 Order on Motion to Compel,,,,,,,,,,, (Johnson, Michele) (Entered: 12/06/2006)
759 NOTICE of Filing by John B. re 758 Notice (Other), 743 Order on Motion to Compel,,,,,,,,,,, Plaintiffs' Proposed Electronic Discovery Protocol (Johnson, Michele) (Entered: 12/06/2006)
765 TRANSCRIPT (Excerpted Proceedings) prepared by OCR Peggy Turner for Proceedings held on 12/6/06 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 12/11/2006)
760 RESPONSE to Proposed E−Discovery Protocol Created at the Hearing on December 6, 2006. (Cooper, Charles) (Entered: 12/07/2006)
761 Minute Entry for hearing held before Judge William J. Haynes on 12/6/06. Defense has until COB (12/7/06) to submit proposed order to the Court as discussed in open Court. Status conference set for 12/20/06 at 1:30 PM. (Court Reporter: Peggy Turner) (gi, ) (Entered: 12/08/2006)
762 ORDER setting Status Conference for 12/20/2006 at 01:30 PM in Courtroom A859 before District Judge William J. Haynes. Signed by Judge William J. Haynes on 12/7/06. (gi, ) (Entered: 12/08/2006)
763 Letter from Larry J. Platt, MD to Linda A. Ross, Deputy Atty General, dated 11/21/06 (Attachments: # 1 Exhibits)(gi, ) (Entered: 12/08/2006)
764 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 12/6/06 before Judge Haynes.(This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (gi, ) (Entered: 12/08/2006)
766 MOTION for attorney William S. W. Chang to Appear Pro Hac Vice by pltfs. (Attachment: (1) Chang Certificate of Good Standing from USDC/SD/NY)(Caster, Shawn) (PHV Fee Paid) Modified on 12/12/06 (jb). Modified on 12/15/06 (jb). (Entered: 12/11/2006)
Note to Filer re: DE # 766 : Certificates of good standing should be filed as separate events, not as attachments to otherpleadings. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 12/12/2006)
767 ORDER granting 766 Motion for William S. W. Chang to Appear Pro Hac Vice . Signed by Judge William J. Haynes on 12/13/06. (jb) (Entered: 12/14/2006)
Emailed William S. W. Chang, Esq. re: $75.00 filing fee for PHV Motion &ECF Registration. (jb) (Entered: 12/14/2006)

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12/15/2006 12/20/2006
12/20/2006 12/20/2006
12/20/2006 12/20/2006 12/20/2006 12/20/2006 12/21/2006
12/27/2006 12/28/2006 12/28/2006 12/28/2006 01/03/2007

768 RECEIPT #112755 in the amount of $75.00 for PHV Fee for William Chang re 766 Motion to Appear Pro Hac Vice. (jb) (Entered: 12/15/2006)
769 NOTICE of Filing Proposed ESI Preservation Order re 761 Motion Hearing by John B. (Attachments: (1) Proposed Order Pltfs. proposed ESI preservation order (2) Exhibit 12−8−06 Antony to Tigh letter (3) Exhibit 12−18−06 Tigh Letter to Antony (4) Exhibit 12−19−06 Michele Johnson letter to Nicole Moss)(Johnson, Michele) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
770 MOTION to Compel Discovery by John B. (Johnson, Michele) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
771 NOTICE of Filing in support of 770 Motion to Compel Discovery by John B. (Attachments: (1) Exhibit Exh. A − 12−7−06 Defs. Answers to 2nd Requuest for Admissions (2) Exhibit 12−7−06 Defs. Answers to 4th Set of Interrogatories (3) Exhibit Exh. C − 12−12−06 Gordon Bonnyman letter to Nicole Moss, et al. (4) Exhibit Exh. D − 12−18−06 Nicole Moss letter to Gordon Bonnyman (5) Exhibit Exh. E − 12−19−06 Gordon Bonnyman letter to Michael Kirk, et al.)(Johnson, Michele) Modified Text 12/20/06 (jb). (Entered: 12/20/2006)
772 STATEMENT of Pltfs' Counsel in support of 770 Renewed Motion to Compel filed by John B. (Johnson, Michele) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
773 Additional Attachments to Main Document re: 769 Notice of Filing Proposed ESI Preservation Order re 761 Motion Hearing. (Johnson, Michele) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
774 Additional Attachments to Main Document re: 769 Notice of Filing Proposed ESI Preservation Order re 761 Motion Hearing. (Johnson, Michele) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
775 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachment: (1) Proposd Order)(Cooper, Charles) Modified Text on 12/20/06 (jb). (Entered: 12/20/2006)
776 Minute Entry for proceedings held before Judge William J. Haynes: Status Conference held on 12/20/06. Parties have one week to submit order defining terms "forensic" and "equivalent folder." Pltf's motion to compel is denied without prejudice so Pltf can restate its requests for admission 3 &4, and make #5 a second request with a companion to be sent to each individual in the State with responsibility for producing documents in response to Pltf's discovery requests. (Court Reporter Peggy Turner.) (jb) (Entered: 12/21/2006)
777 NOTICE of Filing Proposed Order re 776 by John B. (Attachment: (1) Proposed Order re: Electronic Discovery)(Johnson, Michele) Modified Text on 12/27/06 (jb). (Entered: 12/27/2006)
778 DECLARATION of Brent Antony filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit A − 12−22−06 e−mail from T. Tigh to B. Antony (2) Exhibit B − 12−27−06 e−mail from B. Antony to T. Tigh)(Cooper, Charles) Modified Text on 12/28/06 (jb). (Entered: 12/28/2006)
779 RESPONSE to 777 Plaintiffs' Notice of Filing and Proposed Order. (Attachments: (1) Exhibit A − Declaration of Brent Antony (incl. Exhibits) (2) Proposed Order)(Cooper, Charles) Modified Text on 12/28/06 (jb). (Entered: 12/28/2006)
780 REPLY to 779 Defendants? Response to Plaintiffs? Notice of Filing and Proposed Order filed by John B. (Bonnyman, George) Modified Text on 12/29/06 (jb). (Entered: 12/28/2006)
781 ORDER: In light o fthe defts' response (D/E No 779), the Court requests each party's expert to review each proposed order and advise the Court on which proposal reflects the experts' understanding. The experts shall do so wihtout interference of any counsel. If the expert cannot agree, each expert shall submit proposed language for an Order . Signed by Judge William J. Haynes on 1/3/07. (km, ) (Entered: 01/04/2007)

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01/05/2007 01/05/2007 01/08/2007 01/09/2007 01/09/2007 01/11/2007 01/11/2007 01/14/2007
01/17/2007 01/18/2007
01/18/2007 01/18/2007 01/19/2007 01/26/2007

783 RESPONSE in Opposition re 738 MOTION to Vacate the Consent Decree &Dismiss the Case filed by Julian C., Troy D., Ray M., Roscoe W., William B., Jacob R., Justin S., Estel W., John B., Carrie G., Joshua M., Meagan A., Erica A., Dustin P., Bayli S., James D., Elsie H.. (Chang, William) (Entered: 01/05/2007)
784 DECLARATION of Brent Antony filed by Theresa Clarke re: 781 Order,. (Attachments: # 1 Exhibit Email Correspondence# 2 Proposed Order Proposed Order on Preservation)(Cooper, Charles) (Entered: 01/05/2007)
786 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on December 20, 2007 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 01/09/2007)
785 NOTICE of Filing Declaration of Tom Tigh re 781 Order by John B. (Attachment: (1) Exhibit Declaration of Tom Tigh)(Bonnyman, George) Modified Text on 1/9/07 (jb). (Entered: 01/09/2007)
Note to Filer re: DE #785−Signed declarations should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 01/09/2007)
787 ORDER denying as moot 722 Defts' Motion for an Extension of Time to Submit Their Response to Monitors' Draft Reports. Signed by Judge William J. Haynes on 1/11/07. (jb) (Entered: 01/11/2007)
788 ORDER: In light of the discussion of the computer experts, the 744 Motion to Amend the Deadlines Established in the Court's Order of 11/22/06 is denied. Signed by Judge William J. Haynes on 1/11/07. (jb) (Entered: 01/11/2007)
789 ORDER: Reflecting the consensus of the parties' experts on the method for preservation based on exchange during and following the status conference on 12/20/06 and the prior agreement of the parties to the experts e−discovery protocol at the hearing on 12/6/06, it is Ordered that the defts may use zip software, instead of forensic methods, to preserve copies of the electronically stored information located on identified custodians local computers that defts were ordered on 12/20/06 to preserve. Reflecting the consensus of the parties' experts on the definition of "equivalent" folders and modification of the protocol, it is Ordered that the defts execute the agreed survey of identified custodians and subsequently preserve the My Documents folder and any identified equivalent folders for those identified custodians by 2/19/07. Preservation of the My Documents folder and any identified equivalent folders for the 50 priority custodians shall be completed by 1/29/07. Defts shall preserve through the zip method described in this Order all documents residing in the custodians' My Documents folder or any identified equivalent folder as well as any email archives located on these local computers. Signed by Judge William J. Haynes on 1/14/07. (jb) (Entered: 01/16/2007)
790 MOTION for Leave to File Reply Brief by defts. (Attachment: (1) Exhibit Reply Brief)(Cooper, Charles) Modified Text on 1/18/07 (jb). (Entered: 01/17/2007)
791 Joint MOTION to Extend Deadline for Defts to Respond to Pltfs' Written Discovery by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachment: (1) Exhibit Agreed Order Extending Deadline For Defendants to Respond to Plaintiffs' Written Discovery)(Cooper, Charles) Modified Text on 1/18/07 (jb). (Entered: 01/18/2007)
792 ORDER granting 790 Motion for Leave to File Reply Brief . Signed by Judge William J. Haynes on 1/18/07. (jb) (Entered: 01/18/2007)
793 REPLY MEMORANDUM in support of 738 Motion to Vacate the Consent Decree &Dismiss the Case filed by the defts. (jb) (Entered: 01/18/2007)
794 MOTION for Extension of Time to File Final Report of Monitors by Susan Kay. (Kay, Susan) (Entered: 01/19/2007)
795 MONITORS' REPORT by Susan Kay. (Attachments: (1) Supplement Monitors Report on Outreach (2) Supplement Monitors Report on Early and Periodic Screening (3) Supplement Monitors Report on Coordination of Services (4)

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Supplement Monitors Report on Diagnosis and Treatment)(Kay, Susan) Modified Text on 1/29/07 (jb). (Entered: 01/26/2007)

01/29/2007

796 Additional Attachments to 795 Monitors' Report−Report of Monitors on the DCS and At−Risk Subclass Pages 1−50. (Attachments: (1) Report of Monitors on the DCS and At−Risk Subclass Pages 51−95)(Passino, Michael) Modified Text on 1/29/07 (jb). (Entered: 01/29/2007)

01/29/2007

797 ORDER granting 794 Monitors' Motion to Alter Timeline. Signed by Judge William J. Haynes on 1/29/07. (jb) (Entered: 01/29/2007)

01/29/2007

803 NOTICE from US Supreme Court that the petition for a writ of certiorari was filed on 12/27/06 and placed on the docket 1/4/07 as No. 06−901. (km, ) (Entered: 02/01/2007)

01/30/2007

798 January 2007 Semi−Annual Progress Report filed by the defts. (Attachment: (1) John B. January 2007 Semi−Annual Progress Report)(Ross, Linda) Modified Text on 1/30/07 (jb). (Entered: 01/30/2007)

01/30/2007

799 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Exhibit A − RFAs − Part 1# 2 Exhibit A − RFAs − Part 2# 3 Exhibit A − RFAs − Part 3# 4 Exhibit A − RFAs − Part 4# 5 Exhibit A − RFAs − Part 5# 6 Exhibit A − RFAs − Part 6# 7 Exhibit A − RFAs − Part 7# 8 Exhibit A − RFAs − Part 8# 9 Exhibit A − RFAs − Part 9# 10 Exhibit A − RFAs − Part 10# 11 Exhibit A − RFAs − Part 11# 12 Exhibit A − RFAs − Part 12# 13 Exhibit B − Report from the Office of the Attorney General of the State of Tennessee)(Cooper, Charles) (Entered: 01/30/2007)

01/31/2007

800 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachment: (1) Exhibit Proposed Order)(Cooper, Charles) (PHV Fee Paid) Modified on 1/31/07 (jb). Modified on 2/1/07 (jb). (Entered: 01/31/2007)

01/31/2007

801 CERTIFICATE of Brian S. Koukoutchos re 800 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 1/31/07 (jb). (Entered: 01/31/2007)

01/31/2007

802 CERTIFICATE OF GOOD STANDING on behalf of Brian S. Koukoutchos from USDC/DC re 800 MOTION for attorney Brian S. Koukoutchos to Appear Pro Hac Vice filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 1/31/07 (jb). (Entered: 01/31/2007)

02/01/2007

804 RECEIPT #113373 in the amount of $75.00 for PHV Fee on behalf Brian Koukoutchos re 800 Motion to Appear Pro Hac Vice. (jb) (Entered: 02/01/2007)

02/08/2007

805 Letter from Paul W. Newacheck, DrPH. Dated 1/30/07 requesting the Defts to be Ordered to pay the amount due for professional services rendered in relation to this matter. (Attachment: (1) Exhibit − Service Invoice Dated 7/5/06)(jb) (Entered: 02/08/2007)

02/08/2007

806 Letter from Laurence J. Platt, MD, FAAPM requesting the Defts to be Ordered to pay the amount due for services rendered in relation to this matter. (Attachments: (1) Exhibit − Service Invoices Dated 2/6/06, 7/5/06, &1/26/07 (2) Exhibit − Travel Expenses (Oakland, CA to Nashville, TN June 8 to June 10, 2006))(jb) Modified on 2/8/07 (jb). (Entered: 02/08/2007)

02/08/2007

807 ORDER: Upon review of the papers re 805 806 filed by the technical advisors on payment for their services, the Defts have not established that the work was not in this case. Given the complexity of this action, the technical advisors' presence at Court hearing is permissible and necessary for the exercise of their obligations to the Court. The Defts shall pay those invoices promptly. Signed by Judge William J. Haynes on 2/8/07. (jb) (Entered: 02/08/2007)

02/20/2007

808 ORDER: The parties have 20 days to file their responses to the Monitors' Reports. Evidentiary Hearing is set for 5/1/07 at 9:00 AM on the Defts' compliance efforts and other remedial measures that the Defts have taken in response to Hon. John T. Nixon's ruling that the Defts have not complied with the Consent Decree. Signed

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by Judge William J. Haynes on 2/20/07. (jb) (Entered: 02/20/2007)

02/22/2007

809 MOTION to Unseal the Record of March 11, 1998 for the limited purpose of obtaining a transcribed copy of the proceeding by John B. (Caster, Shawn) Modified Text on 2/22/07 (jb). (Entered: 02/22/2007)

02/22/2007

810 MOTION for Status Conference re 795 796 808 by John B. (Attachment: (1) Exhibit Attachment A − 2−21−07 Moss Letter to Bonnyman)(Johnson, Michele) Modified Text on 2/22/07 (jb). (Entered: 02/22/2007)

02/23/2007

811 CORRECTED MOTION for Status Conference re 795 796 808 John B. (Johnson, Michele) Modified Text on 2/23/07 (jb). (Entered: 02/23/2007)

02/26/2007

812 ORDER: The 809 Pltfs' Motion to Unseal the Record of the March 11, 1998 for the Limited Purpose of Obtaining a Transcribed copy of the Proceeding is granted to allow pltfs to obtain a copy of the transcript, but the transcript shall remain under seal. Signed by Judge William J. Haynes on 2/26/07. (jb) (Entered: 02/26/2007)

02/26/2007

813 ORDER granting 811 Pltfs' Corrected MOTION for a Status Conference. Status Conference is set for 3/9/07 at 3:00 PM. Signed by Judge William J. Haynes on 2/26/07. (jb) (Entered: 02/26/2007)

02/27/2007

814 MOTION to Compel by John B.. (Attachments: # 1 Joint Discovery Statement# 2 Plaintiffs' Counsel Statement# 3 Exhibit 1−8−07 Letter Re: Transactional Data# 4 Exhibit 1−22−07 Defs. Response to 4th RFPs# 5 Exhibit 2−22−07 Letter Re: Feb 13 Meeting# 6 Exhibit 12−22−06 Letter Re: 4th RFPs)(Bonnyman, George) (Entered: 02/27/2007)

02/27/2007

815 BRIEF filed by John B. re 814 Motion to Compel,. (Attachments: # 1 Exhibit 5−15−06 Resp to Plaintiffs' Interrogs# 2 Exhibit 12−5−06 Letter Re: E−discovery protocol# 3 Exhibit 12−22−06 Pltfs 4th RFPs − transaction data# 4 Exhibit 1−8−07 Letter Re: Transactional Data# 5 Exhibit 1−8−07 Letter to NMoss Re: Transactional Data# 6 Exhibit 2−23−07 Letter Re: Feb 13 Meeting Follow−up)(Bonnyman, George) (Entered: 02/27/2007)

02/27/2007

Note to Filer re DE #814−Joint Discovery Statement &Pltf Counsel's Statment should be filed as separate events, not as attachments to a motion. These documents do not need to be refiled unless otherwise directed by the Court. (jb) (Entered: 02/27/2007)

03/02/2007

816 RESPONSE to 810 MOTION for Status Conference re 795 796 808 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit 1 − 08/09/06 Bonnyman Letter (2) Exhibit 2 − 12/15/06 Johnson Letter (3) Exhibit 3 − 01/09/07 Johnson Letter (4) Exhibit 4 − 02/23/07 Bonnyman Letter (5) Exhibit 5 − 02/21/07 Moss Letter (6) Exhibit 6 − 12/15/06 Johnson Letter (7) Exhibit 7 − 12/15/06 Moss Letter (8) Exhibit 8 − 12/15/06 Johnson Letter (9) Exhibit 9 − 12/18/06 Bonnyman Letter (10) Exhibit 10 − 12/18/06 State's Contractors Letter (11) Exhibit 11 − 12/19/06 Roberts Letter (12) Exhibit 12 − 01/23/07 Johnson Letter (13) Exhibit 13 − 12/11/06 Bonnyman Letter (14) Exhibit 14 − 02−23−07 Bonnyman Letter)(Cooper, Charles) Modified Text on 3/2/07 (jb). (Entered: 03/02/2007)

03/02/2007

817 Unopposed MOTION to Change the Time of the Status Conference by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 3/2/07 (jb). (Entered: 03/02/2007)

03/05/2007

818 TRANSCRIPT of Hearing held on 3/11/98 at 1:00 p.m. before Judge John T. Nixon. Court Reporter: John W. Tummel. (This document is NOT available on−line. Please contact the Court at 615−736−2364 for the telephone number of the court reporter to purchase a copy) (jb) (Entered: 03/05/2007)

03/06/2007

819 MOTION for attorney Dean John Sauer to Appear Pro Hac Vice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (PHV Fee Paid) Modified on 3/6/07 (jb). Modified on 3/8/07 (jb). (Entered: 03/06/2007)

03/06/2007

820 CERTIFICATE OF GOOD STANDING for Dean John Sauer from USDC/ED/MI re 819 MOTION for attorney Dean John Sauer to Appear Pro Hac Vice filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified

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Text on 3/6/07 (jb). (Entered: 03/06/2007)

03/06/2007

821 ORDER granting 817 Unopposed Motion to Change the Time of the Status Conference. The Conference is reset for 10:30 a.m. The monitors are requested to be present. Signed by Judge William J. Haynes on 3/6/07. (jb) (Entered: 03/06/2007)

03/07/2007

822 ORDER granting 819 Motion for Dean John Sauer to Appear Pro Hac Vice. Signed by Judge William J. Haynes on 3/7/07. (dt) (Entered: 03/07/2007)

03/07/2007 03/08/2007
03/08/2007 03/08/2007

Email notification to pro hac vice Atty Dean John Sauer re mandatory registration for ECF accounts. (dt) (Entered: 03/07/2007)
823 MOTION for attorney Mark P. Johnson to Appear Pro Hac Vice by John B. (Attachment: (1) Exhibit−Certificate of Good Standing from USDC/WD/MO)(Caster, Shawn) (PHV Fee Paid) Modified Text on 3/8/07 (jb). Modified on 3/13/07 (jb). (Entered: 03/08/2007)
824 SUPPLEMENTAL RESPONSE to 810 Pltfs' MOTION for Status Conference re 795 796 808 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 3/8/07 (jb). (Entered: 03/08/2007)
825 RECEIPT #113877 in the amount of $75.00 for PHV Fee for John Dean Sauer re 819 Motion to Appear Pro Hac Vice. (jb) (Entered: 03/08/2007)

03/08/2007

826 Renewed MOTION to Compel Discovery by John B. (Bonnyman, George) Modified Text on 3/8/07 (jb). (Entered: 03/08/2007)

03/08/2007

Note to Filer re DE #823−Certificate of Good Standing should be filed as a separate event, not as an attachment to the motion. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 03/08/2007)

03/08/2007 03/08/2007

827 STATEMENT of Counsel in support of 826 Pltfs' Motion to Compel filed by John B. (Attachments: (1) Exhibit Correspondence November 20, 2006 (2) Exhibit Correspondence November 28 − Dec 5, 2006 (3) Exhibit Correspondence Dec 5 − 13, 2006 (4) Exhibit Correspondence Dec 13−21, 2006 (5) Exhibit Correspondence Dec 22 − Jan 17, 2007 (6) Exhibit Correspondence Jan − Feb 27, 2007 (7) Exhibit Correspondence Jan 25 − 30, 2007 (8) Exhibit Correspondence Jan 31 − Feb 5, 2007 (9) Exhibit Correspondence Feb 6−14, 2007 (10) Exhibit Correspondence Feb 14−20, 2007 (11) Exhibit Correspondence Feb 21 − March 1, 2007 (12) Exhibit Correspondence March 2−5, 2007)(Bonnyman, George) Modified Text on 3/8/07 (jb). (Entered: 03/08/2007)
828 BRIEF in support of 826 Renewed Motion to Compel filed by John B. (Attachments: (1) Exhibit Declaration of Tom Tigh (2) Exhibit Declaration of Eric Sidler (3) Exhibit 2−6−07 Bonnyman Ltr to Moss (4) Exhibit 02−23−07 Bonnyman ltr to Moss − Kirk (5) Exhibit 02−27−07 Moss ltr to Bonnyman (6) Exhibit 01−12−07 Moss ltr to Bonnyman (7) Exhibit Collective Exhibit re Discovery Requests (8) Exhibit 02−21−07 Moss ltr to Bonnyman (9) Exhibit 09−13−06 Moss ltr to Bonnyman (10) Exhibit Tigh − Antony emails re e−discovery (11) Exhibit Response to RFAs (12) Exhibit DCS meeting minutes (13) Exhibit 03−02−07 Moss ltr to Johnson (14) Exhibit 02−23−07 Reznik ltr to Moss (15) Exhibit 02−05−07 Bonnyman ltr to Moss − Kirk (16) Exhibit Responses to RFAs (17) Exhibit 02−06−07 Moss ltr to Bonnyman (18) Exhibit Moss − Bonnyman e−mails re MOtion to Compel (19) Errata Handwritten meeting notes (20) Exhibit Collective Exhibit re Document Preservation (21) Exhibit Defendants' Objections and Responses 3rd Interr (22) Exhibit 01−10−07 Moss ltr to Bonnyman w−attachment (23) Exhibit Affidavit of Rose M Ray − part 01 (24) Exhibit Affidavit of Rose M Ray − part 02 (25) Exhibit Affidavit of Rose M Ray − part 03 (26) SEALED Exhibit Affidavit of Rose M Ray − part 04 (27) SEALED Exhibit Affidavit of Rose M Ray − part 05 (28) SEALED Exhibit Affidavit of Rose M Ray − part 06 (29) SEALED Exhibit Affidavit of Rose M Ray − part 07 (30) SEALED Exhibit Affidavit of Rose M Ray − part 08 (31) SEALED Exhibit Affidavit of Rose M Ray − part 09 (32) SEALED Exhibit Affidavit of Rose M Ray − part 10 (33) SEALED Exhibit Affidavit of Rose M Ray − part 11 (34) SEALED Exhibit Affidavit of Rose M Ray − part 12 (35) SEALED Exhibit Affidavit of Rose M Ray − part 13 (36) SEALED Exhibit Affidavit of Rose M Ray − part 14 (37) SEALED

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03/09/2007 03/09/2007 03/09/2007 03/12/2007
03/12/2007 03/12/2007 03/12/2007 03/12/2007 03/14/2007
03/14/2007 03/14/2007 03/15/2007 03/15/2007 03/16/2007 03/19/2007 03/20/2007

Exhibit Affidavit of Rose M Ray − part 15 (38) SEALED Exhibit Affidavit of Rose M Ray − part 16 (39) SEALED Exhibit Affidavit of Rose M Ray − part 17 (40) SEALED Exhibit Affidavit of Rose M Ray − part 18 (41) SEALED Exhibit Affidavit of Rose M Ray − part 19 (42) SEALED Exhibit Affidavit of Rose M Ray − part 20 (43) SEALED Exhibit Affidavit of Rose M Ray − part 21 (44) Exhibit Excerpt of State and MCO contract)(Bonnyman, George) Modified Text on 3/9/07 (jb). (Entered: 03/08/2007)
829 EXPEDITED MOTION to Seal Report of Brent H. Antony dated 2/22/07 re 828 Brief by John B. (Johnson, Michele) Modified Text on 3/9/07 (jb). (Entered: 03/09/2007)
830 ORDER granting 829 Pltfs' Expedited Motion to Seal Report of Brent H. Antony dated 2/22/07 re 828 Brief. Signed by Judge William J. Haynes on 3/9/07. (jb) (Entered: 03/09/2007)
831 ORDER granting 823 Motion for Mark P. Johnson to Appear Pro Hac Vice for the pltfs. Signed by Judge William J. Haynes on 3/9/07. (jb) (Entered: 03/09/2007)
832 Minute Entry for proceedings held before Judge William J. Haynes: Status Conference held on 3/9/07. Another status conference is scheduled for 3/23/07 at 10:00 a.m. Counsel will notify the Court if an agreement is reached. (Court Reporter Peggy Turner.) (jb) (Entered: 03/12/2007)
833 ORDER: Status Conference is set for 3/23/07 at 10:00 AM. Signed by Judge William J. Haynes on 3/12/07. (jb) (Entered: 03/12/2007)
834 RESPONSE to 795 Monitors' Reports filed by pltfs. (Attachments: (1) Exhibit 1 (2) Exhibit 2 (3) Exhibit 3 (4) Exhibit 4 (5) Exhibit 5 (6) Exhibit 6a (7) Exhibit 6b)(D'Souza, Lisa) Modified Text on 3/12/07 (jb). (Entered: 03/12/2007)
835 RESPONSE to 795 Monitors' Reports filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 3/13/07 (jb). (Entered: 03/12/2007)
836 RECEIPT #113939 in the amount of $75.00 for PHV Fee for Mark Johnson re 823 Motion to Appear Pro Hac Vice. (jb) (Entered: 03/13/2007)
837 MOTION for Extension of Time to File Response/Reply as to 826 Renewed MOTION to Compel Discovery, 828 Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), Brief (non−appeal), 827 Statement of facts,, Requesting Suspension of Deadline by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 03/14/2007)
838 MOTION for attorney Patricia C. Gunn to Appear Pro Hac Vice by John B.. (Caster, Shawn) (PHV Fee Paid) Modified Text on 3/15/07 (dt). Modified on 3/19/07 (jb). (Entered: 03/14/2007)
839 CERTIFICATE OF GOOD STANDING of Patricia C. Gunn filed by John B.. (Caster, Shawn) Modified on 3/15/2007 (aef, ). (Entered: 03/14/2007)
840 ORDER granting 838 Motion for Patricia C. Gunn to Appear Pro Hac Vice . Signed by Judge William J. Haynes on 3/15/07. (jb) (Entered: 03/15/2007)
841 OPPOSITION to 837 Defts' MOTION to Suspend the Deadline for Defts' Response to 826 Pltfs' Motion to Compel Discovery filed by pltfs. (Johnson, Michele) Modified Text on 3/16/07 (jb). (Entered: 03/15/2007)
842 RESPONSE to Dr. Carter's Letter of March 12, 2007 by defts. (Cooper, Charles) Modified Text on 3/19/07 (jb). (Entered: 03/16/2007)
843 RECEIPT #114031 in the amount of $75.00 for PHV Fee on behalf of Patricia Gunn re 838 Motion to Appear Pro Hac Vice. (jb) (Entered: 03/19/2007)
844 MOTION for attorney Michael Weitzner to Appear Pro Hac Vice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (PHV Fee Paid) Modified on 3/20/07 (jb). Modified on 3/21/07 (jb). (Entered: 03/20/2007)

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03/20/2007

845 CERTIFICATE OF GOOD STANDING for Michael Weitzner in support of 844 Motion for Leave to Appear Pro Hac Vice filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 3/20/07 (jb). (Entered: 03/20/2007)

03/21/2007

846 RECEIPT #114069 in the amount of $75.00 for PHV Fee on behalf of Michael Weitzner re 844 Motion to Appear Pro Hac Vice. (jb) (Entered: 03/21/2007)

03/22/2007

847 ORDER granting 844 Motion for Michael Weitzner to Appear Pro Hac Vice. Signed by Judge William J. Haynes on 3/22/07. (dt) (Entered: 03/22/2007)

03/23/2007

848 DECLARATION of Rose M. Ray, Ph.D. filed by John B.. (Attachments: # 1 Response to Rose Ray)(Bonnyman, George) (Entered: 03/23/2007)

03/23/2007

849 DECLARATION of Rose M. Ray, Ph.D. filed by John B.. (Attachments: # 1 Rose Ray − Summary)(Bonnyman, George) (Entered: 03/23/2007)

03/23/2007

850 DECLARATION of Thomas Tigh filed by John B.. (Attachments: # 1 Appendix Response from Several MCCs# 2 Appendix Response from First Health# 3 Appendix Response from MMCC part 1# 4 Appendix Response from MMCC part 2# 5 Appendix Response from MMCC part 3# 6 Appendix Response from MMCC part 4# 7 Appendix Response from MMCC part 5# 8 Appendix Response from MMCC part 6# 9 Appendix Response from MMCC part 7# 10 Appendix Response from MMCC part 8# 11 Appendix Response from MMCC part 9# 12 Appendix Response from BCBST)(D'Souza, Lisa) (Entered: 03/23/2007)

03/26/2007

851 Minute Entry for proceedings held before Judge William J. Haynes: Status Conference held on 3/23/07. Parties must set a conference with computer experts on what is technically feasible and the Court suggests a court reporter be present. Parties have one week from the conference to submit affidavits on areas of contention regarding the technical issues. Defendant has one week to respond to Plaintiff's renewed motion to compel and for protective orders. Plaintiff has one week to reply to Defendant's response. Parties will submit proposed agreed order setting up conference. (Court Reporter Peggy Turner.) (jb) (Entered: 03/26/2007)

03/27/2007

852 MOTION for Clarification of the Court's wishes regarding the conference of information technology experts re 764 828 by John B. (Attachments: (1) Attachment A (2) Attachment B)(Gunn, Patricia) Modified Text on 3/28/07 (jb). (Entered: 03/27/2007)

03/28/2007

853 RESPONSE in Opposition re 852 MOTION for Clarification of the Court's wishes regarding the conference of information technology experts re 764 828 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 03/28/2007)

03/28/2007

855 NOTICE from US Supreme Court that the petition for a writ of certiorari is denied. (km, ) (Entered: 03/29/2007)

03/29/2007

854 NOTICE of Filing Proposed Agreed Order re 851 Status Conference by Nancy Menke, Theresa Clarke, George W. Hattawa. (Attachment: (1) Proposed Agreed Order)(Cooper, Charles) Modified Text on 3/29/07 (jb). (Entered: 03/29/2007)

03/29/2007

856 NOTICE of Filing Letters in Response to 852 MOTION for Clarification of the Court's wishes regarding the conference of information technology experts as well as the 851 Court's instruction for the parties to arrange a conference between the parties and the state contractors' technical personnel by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit A − 03−28−07 J Miller letter to M Kirk (2) Exhibit B − 03−29−07 S VERNICK letter to N MOSS (3) Exhibit C − 03−29−07 W HUBBARD letter to M KIRK (4) Exhibit D − 03−29−07 T SMITH letter to N MOSS)(Cooper, Charles) Modified Text on 3/30/07 (jb). Modified on 4/2/07 (jb). (Entered: 03/29/2007)

03/30/2007

857 ORDER: The Conference of the computer experts of the parties and the Deft's contractors is set for 4/11/07 at 9:00 AM in Courtroom A845, 8th Floor, U.S. Courthouse, 8th &Broadway, Nashville, Tennessee. Counsel for the parties and contractors may attend this conference subject to conditions to be announced at the beginning of the conference. Signed by Judge William J. Haynes on 3/30/07. (jb) (Entered: 03/30/2007)

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04/02/2007 04/03/2007 04/05/2007
04/05/2007
04/05/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007
04/09/2007

858 ORDER: At least 3 days prior to the 4/11/07 discovery conference, the Defts shall provide Pltfs with copies of their electronic document retention policies and procedures and shall file a copy of these documents under seal. The documents produced shall be deemed confidential and cannot be disclosed except to Pltfs' counsel and their computer and technical experts who must sign an affidavit to be bound by the Order of Confidentiality. Signed by Judge William J. Haynes on 4/2/07. (jb) (Entered: 04/02/2007)
859 ORDER: At least 3 days prior to the 4/11/07 discovery conference, counsel for the parties and for any state contractor shall have their computer expert(s) or technician(s) file with the Court and serve on opposing counsel the information as outlined in this Order. The Court deems this information necessary to understand and decide the outstanding discovery issues and to ensure that all participants share a common base of basic information on any technical issues . Signed by Judge William J. Haynes on 4/3/07. (km, ) (Entered: 04/03/2007)
860 Sealed Document Notice of Filing filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A − Part 1 − Document Retention Policies and Procedures# 2 Exhibit A − Part 2 − Document Retention Policies and Procedures# 3 Exhibit A − Part 3 − Document Retention Policies and Procedures# 4 Exhibit A − Part 4 − Document Retention Policies and Procedures# 5 Exhibit B − TennCare E−Discovery Report# 6 Exhibit C − Part 1 − State Transaction Systems Report# 7 Exhibit C − Part 2 − State Transaction Systems Report# 8 Exhibit C − Part 3 − State Transaction Systems Report# 9 Exhibit C − Part 4 − State Transaction Systems Report# 10 Exhibit C − Part 5 − State Transaction Systems Report# 11 Exhibit D − Response to Rose Ray# 12 Exhibit E − Part 1 − TnKids Business Rules# 13 Exhibit E − Part 2 − TnKids Business Rules# 14 Exhibit E − Part 3 − TnKids Business Rules# 15 Exhibit E − Part 4 − TnKids Business Rules# 16 Exhibit F − Incident Reports Documentation# 17 Exhibit G − List of Outstanding E−Discovery Issues)(Cooper, Charles) (Entered: 04/05/2007)
861 Sealed Document Notice of Filing filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A − Doral Submission# 2 Exhibit B − Part 1 − Unison Submission# 3 Exhibit B − Part 2 − Unison Submission# 4 Exhibit C − BCBST Submission# 5 Exhibit D − Magellan Submission# 6 Exhibit E − Part 1 − SAT Submission# 7 Exhibit E − Part 2 − SAT Submission# 8 Exhibit E − Part 3 − SAT Submission# 9 Exhibit E − Part 4 − SAT Submission# 10 Exhibit F − PHP Submission# 11 Exhibit G − Q−Source Submission# 12 Exhibit H − MMC Submission)(Cooper, Charles) (Entered: 04/05/2007)
862 RESPONSE to 859 Order of April 3, 2007. (Attachments: (1) Appendix Declaration of Rose Ray (2) Appendix Declaration of Thomas L. Tigh)(Johnson, Michele) Modified Text on 4/9/07 (jb). (Entered: 04/05/2007)
863 RESPONSE in accordance with the 859 Court's April 3, 2007 Order filed by First Health Services Corporation. (Hickman, Scott) Modified Text on 4/9/07 (jb). (Entered: 04/06/2007)
864 NOTICE of Filing re 859 Order of Statement in Response to 04−03−07 Order by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) Modified Text on 4/9/07 (jb). (Entered: 04/06/2007)
865 MOTION for Leave to To File Documents Under Seal by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 04/06/2007)
866 Sealed Statement in Response to 859 April 3, 2007 Order filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Attachments: (1) Exhibit 1 − Description of Computer System (2) Exhibit 2 − Description of Software (3) Exhibit 3 − Description of MACESS (4) Exhibit 4 − Slides Describing Information and Technology Services (5) Exhibit 5 − Information Technology Policy and Procedure (6) Exhibit 6 − Excerpt from Employee Intranet (7) Exhibit 7 − March 21, 2007 Letter to Nicole Moss (8) Exhibit 8 − April 3, 2007 Letter to Brent Anthony)(Hicks, John) Modified Text on 4/9/07 (jb). (Entered: 04/06/2007)
Note to Filer re DE #862−Signed declarations should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed

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unless otherwise directed by the Court. (jb) (Entered: 04/09/2007)

04/09/2007

867 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 2/10/06 at 2:00 p.m. before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 04/09/2007)

04/09/2007

868 ORDER granting 865 United Healthcare Plan of the River Valley, Inc. 's Motion for Leave to File Documents Under Seal. Signed by Judge William J. Haynes on 4/9/07. (jb) (Entered: 04/09/2007)

04/10/2007

869 (DISREGARD THIS ENTRY−ATTY REFILED−SEE DE # 870 ) NOTICE of Filing Proposed Order of Confidentiality re 859 858 Orders by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified on 4/10/07 (jb). (Entered: 04/10/2007)

04/10/2007

870 NOTICE of Filing Proposed Order of Confidentiality re 859 858 Orders by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachment: (1) Proposed Order of Confidentiality)(Cooper, Charles) Modified Text on 4/10/07 (jb). (Entered: 04/10/2007)

04/11/2007

871 ORDER OF CONFIDENTIALITY: All documents and information filed by defts under seal in response to the Court's orders 858 &859 , unless otherwise publicly available, are considered confidential and are not to be disclosed to anyone other than pltfs' counsel and their computer and technical experts. Signed by Judge William J. Haynes on 4/11/07. (gi, ) (Entered: 04/11/2007)

04/11/2007

872 UNDER SEAL TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 4/11/07 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 04/16/2007)

04/24/2007

873 ORDER OF CONFIDENTIALITY: All documents and information filed by defts under seal in response to the Court's orders 858 &859 , unless otherwise publicly available, are considered confidential and are not to be disclosed to anyone other than pltfs' counsel and their computer and technical experts. The Court has separately directed the parties to file proposed protective orders and briefs in support thereof by 4/25/07. The Court will address the issues related to the confidential information contained in the Defts and their contractor's databases at that time. Signed by Judge William J. Haynes on 4/24/07. (jb) (Entered: 04/24/2007)

04/26/2007

874 ORDER: As stated at the "experts only" discovery conference, it is Ordered that the agenda for that conference, a copy of which is attached hereto, that is a distillation of the issues in the parties' and contractors discovery submissions, shall be filed and made part of the record in this action. Signed by Judge William J. Haynes on 4/26/07. (Attachment: (1) Protocol for Experts Only Conference)(jb) (Entered: 04/26/2007)

04/26/2007

875 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Exhibit A − Protocol for Experts Only Conference, Section III)(Cooper, Charles) (Entered: 04/26/2007)

04/27/2007

Note to Filer re DE #875−Be sure to remember to include filer's name typed in the space where the signature would otherwise appear preceded by the symbol "s/" or inserted by facsimile signature on the Certificate of Service. This document does not need to be re−filed unless otherwise directed by the Court.(jb) (Entered: 04/27/2007)

05/21/2007

876 Joint MOTION for Protective Order by the parties. (Attachment: (1) Proposed Protective Order)(Cooper, Charles) Modified Text on 5/21/07 (jb). (Entered: 05/21/2007)

05/22/2007

877 ORDER granting 876 Joint Motion for Protective Order . Signed by Judge William J. Haynes Jr. on 5/21/07. (jb) (Entered: 05/22/2007)

05/22/2007

878 PROTECTIVE ORDER re handling of confidential information. Signed by Judge William J. Haynes Jr. on 5/21/07. (jb) (Entered: 05/22/2007)

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05/25/2007 05/29/2007
05/30/2007 05/30/2007 05/31/2007 05/31/2007
06/01/2007
06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/05/2007

879 MOTION to Reinstate Briefing on Motions to Compel Discovery and Defendants' Status Report, and Statement of Disputed Issues by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 05/25/2007)
880 ORDER: This MOTION to Reinstate Briefing on Motions to Compel Discovery and Defendants' Status Report, and Statement of Disputed Issues 879 is Granted in part. An Evidentiary Hearing set for 6/19/2007 at 09:00 AM before District Judge William J. Haynes Jr. Signed by Judge William J. Haynes Jr. on 5/29/07. (dt) (Entered: 05/29/2007)
881 MOTION for Clarification of 880 Order by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 5/30/07 (jb). (Entered: 05/30/2007)
882 MOTION for Clarification of 880 Order of May 29, 2007 and REPLY to 879 Defendants' Status Report by John B. (Attachments: (1) Appendix Attachment A − Part 1 (2) Appendix Attachment A − Part 2)(Bonnyman, George) Modified Text on 5/30/07 (jb). (Entered: 05/30/2007)
883 RESPONSE to Motion re 882 MOTION for Clarification of 880 Order of May 29, 2007 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 05/31/2007)
884 ORDER: The 881 Defts' Motion for Clarification is granted in part. The filing of the protocal is reflected in the transcript at p. 228 lines 10−17. The request to take the deposition of Mr. Tigh is denied given the extensive conferences of the parties' experts and the exchanges among those experts in the discovery disputes. Signed by Judge William J. Haynes Jr. on 5/31/07. (jb) (Entered: 05/31/2007)
885 ORDER: For the reasons set forth in this Order, the 882 Pltfs' Motion for Clarification is granted in part and denied in part. The Defts and the MCCs are Ordered to file with the Court the following information: 1) The Defts shall provide for each year, since the entry of the Consent Decree; the amount of federal funds received for the medical services provided under the Consent Decree, the amounts of those funds acutally expended on class members and the amounts of those funds expended for administrative and/or support services by state personnel and 2) Each MCC shall provide for each year, since the entry of the Consent Decree, a statement of total funds received from the State for services under the Consenct Decree and the amount of such funds expended for medical care actually provided to class members under the Consent Decree. Signed by Judge William J. Haynes Jr. on 6/1/07. (jb) (Entered: 06/01/2007)
886 MOTION for attorney Thomas J. Smith to Appear Pro Hac Vice by Unison Health Plan of Tennessee, Inc. (Attachment: (1) Proposed Order) (PHV Fee Paid)(jb) (Entered: 06/04/2007)
887 CERTIFICATE OF GOOD STANDING from USDC/WD/PA on behalf of Thomas John Smith re 886 MOTION for attorney Thomas J. Smith to Appear Pro Hac Vice filed by Unison Health Plan of Tennessee, Inc. (jb) (Entered: 06/04/2007)
888 RECEIPT #115004 in the amount of $75.00 posted on 6/4/07 on behalf of Thomas J. Smith re 886 Motion to Appear Pro Hac Vice. (jb) (Entered: 06/04/2007)
889 MOTION for attorney Joseph C. Safar to Appear Pro Hac Vice by Unison Health Plan of Tennessee, Inc. (Attachment: (1) Proposed Order) (PHV Fee Paid)(jb) (Entered: 06/04/2007)
890 CERTIFICATE OF GOOD STANDING from USDC/WD/PA on behalf of Joseph Safar re 889 Motion to Appear Pro Hac Vice filed by Unison Health Plan of Tennessee, Inc. (jb) (Entered: 06/04/2007)
891 RECEIPT #115001 in the amount of $75.00 posted on 6/4/07 on behalf of Joseph Safar re 889 Motion to Appear Pro Hac Vice. (jb) (Entered: 06/04/2007)
892 MOTION for Leave to File a Separate Response by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified Text on 6/5/07 (jb). (Entered: 06/05/2007)

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06/05/2007

893 MEMORANDUM pursuant to 885 Court's June 1 Order re 892 MOTION for Leave to File a Separate Response filed by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified Text &Link on 6/5/07 (jb). (Entered: 06/05/2007)

06/05/2007

894 ORDER granting 889 Motion for Joseph C. Safar to Appear Pro Hac Vice . Signed by Judge William J. Haynes Jr. on 6/5/07. (jb) (Entered: 06/05/2007)

06/05/2007

895 ORDER granting 886 Motion for Thomas J. Smith to Appear Pro Hac Vice . Signed by Judge William J. Haynes Jr. on 6/5/07. (jb) (Entered: 06/05/2007)

06/05/2007

896 NOTICE of Appearance by Stephen H. Biller on behalf of QSource (Biller, Stephen) (Entered: 06/05/2007)

06/05/2007

897 MOTION for Leave to File Motion to Allocate Discovery Costs by Doral Dental of Tennessee, LLC. (Attachment: (1) Exhibit Doral's Motion to Allocate Discovery Costs and other supplemental pleadings)(Walker, Kathryn) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

898 BRIEF As Directed by the 880 Court's May 29, 2007 Order filed by Unison Health Plan of Tennessee, Inc. (Smith, Thomas) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

899 DECLARATION of Thomas J. Smith in support of 898 BRIEF As Directed by the 880 Court's May 29, 2007 Order filed by Unison Health Plan of Tennessee, Inc. (Attachments: (1) Exhibits A−G (2) Exhibits H−K (3) Exhibits L−N)(Smith, Thomas) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

900 DECLARATION of David W. Thomas in support of 898 BRIEF As Directed by the 880 Court's May 29, 2007 Order filed by Unison Health Plan of Tennessee, Inc. (Attachments: (1) Exhibit A (2) Exhibit B)(Smith, Thomas) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

901 DECLARATION of Rick Shank in support of 898 BRIEF As Directed by the 880 Court's May 29, 2007 Order filed by Unison Health Plan of Tennessee, Inc. (Smith, Thomas) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

902 MOTION for Leave to File a Separate Response and to Allocate Future Discovery Costs by QSource. (Attachment: (1) Proposed Order)(Biller, Stephen) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

903 MEMORANDUM in Support of 902 MOTION for Leave to File a Separate Response and to Allocate Future Discovery Costs filed by QSource. (Biller, Stephen) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

904 MOTION for Leave to File Separate Response re 885 Order on Motion to Clarify by First Health Services Corporation. (Attachment: (1) Exhibit Memorandum of Law of First Health Submitted in Response to Plaintiffs' Discovery)(Hickman, Scott) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

905 **STRICKEN−SEE ORDER 924 ** DECLARATION of Michael Holdren in support of 904 MOTION for Leave to File Separate Response re 885 Order on Motion to Clarify filed by First Health Services Corporation. (Attachments: (1) Exhibit First Health's Response to Court's April 3, 2007 Order (2) Exhibit April 30, 2007 Letter from Scott Vernick to Nicole Jo Moss (3) Exhibit April 25, 2007 Letter from Beth Domenick to Nicole Jo Moss (4) Exhibit Suggested MCC Key Words (5) Exhibit Suggested Searches Using Plaintiffs' Revised Key Words (6) Exhibit May 23, 2007 Email from Beth Domenick to Nicole Moss)(Hickman, Scott) Modified Text on 6/6/07 (jb). Modified on 6/7/2007 (dt, ). (Entered: 06/05/2007)

06/05/2007

906 MOTION for Leave to File Excess Pages by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 06/05/2007)

06/05/2007

907 RESPONSE to 814 826 882 880 Pltfs' Motions to Compel Discovery filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit 1 − Message of Rose Ray (2) Exhibit 2 − Letter of Scott L. Vernick (3) Exhibit 3 − Message of Nicole Jo Moss (4) Exhibit 4 − Declaration of David Moser# 5 Exhibit 5 − Letter of Thomas J. Smith (6) Exhibit 6 − Letter of John S. Hicks (7) Exhibit 7 − Letter of Paul W. Ambrosius (8) Exhibit 8 − Letter of Marc Jenkins (9) Exhibit 9 − Letter of Thomas J. Smith (Unison) (10) Exhibit 10 − Letter of John L. Miller

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(11) Exhibit 11 − AmeriChoice Contract Excerpt (12) Exhibit 12 − Doral Dental Contract Expcerpt (13) Exhibit 13 − First Health Contract Excerpt (14) Exhibit 14 − Letter of Scott L. Vernick)(Cooper, Charles) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

908 BRIEF Pursuant to the 880 Court's May 29, 2007 Order filed by Preferred Health Partnership of Tennessee, Inc. (Miller, John) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/05/2007

909 **STRICKEN−SEE ORDER 926 ** DECLARATION of Peggy McCurry in support of 908 BRIEF Pursuant to the 880 Court's May 29, 2007 Order filed by Preferred Health Partnership of Tennessee, Inc. (Attachment: (1) Exhibit April 16, 2007 Rose Ray Letter)(Miller, John) Modified Text on 6/6/07 (jb). Modified Text on 6/7/2007 (dt). (Entered: 06/05/2007)

06/05/2007

910 **STRICKEN−SEE ORDER 927 ** DECLARATION of William Dean in support of 908 BRIEF Pursuant to the 880 Court's May 29, 2007 Order filed by Preferred Health Partnership of Tennessee, Inc. (Attachments: (1) Exhibit April 25, 2007 PHP Proposal (2) Exhibit May 2, 2007 Plaintiffs' Counterproposal (3) Exhibit May 16, 2007 PHP Response)(Miller, John) Modified Text on 6/6/07 (jb). Modified Text on 6/7/2007 (dt). (Entered: 06/05/2007)

06/05/2007

911 MOTION for Leave to File Memorandum by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Attachment: (1) Exhibit Proposed Memorandum in Response to Motion to Compel and in Support of Allocation of Costs)(Hicks, John) Modified Text on 6/6/07 (jb). (Entered: 06/05/2007)

06/06/2007

Note to Filer re DE Nos. 902 &903−These documents have been scanned. Scanning should be used only for documents that are not created on your computer. These documents do not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 06/06/2007)

06/06/2007

912 Letter from Deputy Clerk to Beth L. Domenick re Compliance with Local Rule 83.01. (jb) (Entered: 06/06/2007)

06/06/2007

913 Letter from Deputy Clerk to Scott L. Vernick re Compliance with Local Rule 83.01. (jb) (Entered: 06/06/2007)

06/06/2007

914 MOTION for Extension of Time to File Reply to the Responses to 814 826 Motions to Compel by John B. (D'Souza, Lisa) Modified Text on 6/6/07 (jb). (Entered: 06/06/2007)

06/07/2007

915 ORDER: Joint Motion for Extension of Time to File Response to Written Discovery 791 is Denied as moot. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

916 ORDER granting 800 Motion for Brian S. Koukoutchos to Appear Pro Hac Vice. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

917 ORDER: This Motion for Extension of Time to File Response to Motion to Compel Discovery 837 is Denied as Moot. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

918 ORDER: Plaintiff's Motion for Clarification of the Court's Wishes Regarding the Conference of Information Technology Experts 852 is Denied as moot. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

919 ORDER granting 892 Motion for Leave to File a Separate Response. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

920 ORDER: This Motion for Leave to File a Memorandum 897 is Granted. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

921 MEMORANDUM In Support of Motion to Allocate Discovery Costs re: 920 Order on Motion for Leave to File Memorandum filed by Doral Dental of Tennessee, LLC. (Attachments: # 1 Exhibit A−Case Law)(dt) (Entered: 06/07/2007)

06/07/2007

922 ORDER: QSource's Motion for Leave to File a Separate Response 902 is Granted. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

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06/07/2007

923 ORDER: Pursuant to the Court's Order, this Motion for Leave to File a Separate Response 904 is Granted. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

924 ORDER: This declaration 905 is Stricken. The Court will consider only testimony at the hearing. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

925 ORDER: Defendants' Motion for Leave to File Excess Pages 906 is Granted. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

926 ORDER: This Declaration 909 is Stricken. The Court will consider only testimony at the hearing. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

927 ORDER: This Declaration 910 is Stricken. The Court will consider only testimony at the hearing. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

928 ORDER: This Motion for Leave to Memorandum in Response to Motion to Compel 911 is Granted, pursuant to the Court's earlier Order. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/07/2007

929 MEMORANDUM in Opposition 826 Renewed MOTION to Compel Discovery filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (dt) (Entered: 06/07/2007)

06/07/2007

930 ORDER granting 914 Motion for Extension of Time to File Reply to Motions to Compel 814 826 . Replies due by 6/14/2007. Signed by Judge William J. Haynes Jr. on 6/7/07. (dt) (Entered: 06/07/2007)

06/11/2007

931 MOTION to Alter Judgment Amend or Clarify Court's June 1, 2007 Order, or in the Alternative, Motion for A Partial New Trial by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 06/11/2007)

06/11/2007

932 MEMORANDUM in support of 931 MOTION to Alter Judgment Amend or Clarify Court's June 1, 2007 Order, or in the Alternative, Motion for A Partial New Trial by BlueCross Blueshield of Tennessee. (Attachment: (1) Exhibit Letter from Michael Kirk to C. Timothy Gary)(Hubbard, William) Modified Text on 6/12/07 (jb). (Entered: 06/11/2007)

06/12/2007

Note to Filer re DE #932−The Memorandum in Support was filed incorrectly as a motion. The Memorandum in Support event is found under Other Filings, Other Documents. The motion has been terminated and the text has been edited. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 06/12/2007)

06/12/2007

933 MOTION for attorney Scott L. Vernick to Appear Pro Hac Vice by First Health Services Corporation. (Attachment: (1) Exhibit−Certificate of Good Standing from USDC/ED/PA)(Hickman, Scott) (PHV FEE PAID) Modified Text on 6/13/07 (jb). Modified on 6/15/07 (jb). (Entered: 06/12/2007)

06/12/2007

934 MOTION for attorney Beth L. Domenick to Appear Pro Hac Vice by First Health Services Corporation. (Attachment: (1) Exhibit− Certificate of Good Standing from USDC/ED/PA)(Hickman, Scott) (PHV FEE PAID) Modified Text on 6/13/07 (jb). Modified on 6/15/07 (jb). (Entered: 06/12/2007)

06/12/2007

935 RESPONSE to 826 Motion to Compel and MOTION to Release QSource from further Discovery Obligations or to Allocate Future Discovery Costs filed by QSource. (Attachments: (1) Exhibit QSource's Declaration in Support of Reply to Court's Order of 6/1/2007 and Motion to be Released from Further Discovery (2) Exhibit Letter from Plaintiffs' counsel acknowledging that QSource has satisfied its discovery request (3) Proposed Order Granting QSource's Motion)(Biller, Stephen) Modified Text on 6/13/07 (jb). (Entered: 06/12/2007)

06/12/2007

MOTION to Release QSource from Further Discovery Obligations or to Allocate Future Discovery Costs by QSource. (DOCKETED AS MOTION FOR INTERNAL TRACKING PURPOSES ONLY−CONTAINED IN SAME DOCUMENT AS RESPONSE DE #935−NO PDF ATTACHED−SEE DE # 935

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06/13/2007
06/13/2007
06/13/2007 06/13/2007 06/13/2007 06/14/2007 06/14/2007 06/14/2007 06/14/2007 06/14/2007 06/15/2007 06/15/2007 06/15/2007 06/17/2007 06/18/2007
06/18/2007 06/18/2007 06/18/2007

FOR PDF) (jb) (Entered: 06/13/2007)
Note to Filer re DE Nos. 933 &934−A Certificate of Good Standing should be filed as a separate event, not as an attachment to the motion. These documents do not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 06/13/2007)
Note to Filer re DE #935−This document has been scanned. Scanning should be used only for documents that are not created on your computer. Signed declarations should be filed as separate events, not as attachments to other pleadings. A Motion should be filed as a separate event, not included in a response. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 06/13/2007)
936 ORDER granting 933 Motion for Scott L. Vernick to Appear Pro Hac Vice . Signed by Judge William J. Haynes Jr. on 6/13/07. (jb) (Entered: 06/13/2007)
937 ORDER granting 934 Motion for Beth L. Domenick to Appear Pro Hac Vice . Signed by Judge William J. Haynes Jr. on 6/13/07. (jb) (Entered: 06/13/2007)
Remark−Beth L. Domenick &Scott L. Vernick were notified by e−mail to register for an ECF Account. (jb) (Entered: 06/13/2007)
938 DEPOSITION of Natasha Flener taken on 4−3−07 by John B.. (Attachments: # 1 Errata Natasha Flener Signed Errata Sheet)(Bristol, Marjorie) (Entered: 06/14/2007)
939 MOTION for Leave to File Excess Pages by John B.. (Bonnyman, George) (Entered: 06/14/2007)
940 MOTION to Seal Document Plaintiffs' Reply Brief by John B.. (Bonnyman, George) (Entered: 06/14/2007)
941 Sealed Reply Brief filed by John B. (Attachments: (1) Exhibit MMC Proposed Keywords (2) Exhibit Privilege Log (3) Exhibit Case Recording Request, Rose Ray)(Bonnyman, George) Modified Text on 6/15/07 (jb). (Entered: 06/15/2007)
942 RECEIPT #115216 in the amount of $150.00 posted on 6/14/07 for PHV Fee on behalf of attorneys Scott L. Vernick &Beth L. Domenick re 933 934 Motions to Appear Pro Hac Vice. (jb) (Entered: 06/15/2007)
943 ORDER granting 940 Motion to Seal Reply Brief. Signed by Judge William J. Haynes Jr. on 6/15/07. (jb) (Entered: 06/15/2007)
944 ORDER granting 939 Pltf's Motion to Exceed Page Limit. Signed by Judge William J. Haynes Jr. on 6/15/07. (jb) (Entered: 06/15/2007)
945 STATEMENT OF ISSUES TO BE DECIDED re 920 885 filed by Doral Dental of Tennessee, LLC. (Walker, Kathryn) Modified Text on 6/15/07 (jb). (Entered: 06/15/2007)
946 RESPONSE to Motion re 897 MOTION for Leave to File Motion to Allocate Discovery Costs filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 06/17/2007)
947 STATEMENT regarding funds received and expended as directed by the 885 Court's June 1, 2007 Order filed by Unison Health Plan of Tennessee, Inc. (Attachment: (1) Exhibit 1)(Safar, Joseph) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
948 RESPONSE to 885 Order filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
949 MOTION for Leave to File Document Under Seal by First Health Services Corporation. (Hickman, Scott) (Entered: 06/18/2007)
950 NOTICE of Filing by First Health Services Corporation (Attachments: # 1 Exhibit Claim Dollars Paid Out by First Health Services)(Hickman, Scott) (Entered: 06/18/2007)

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06/18/2007 06/18/2007
06/18/2007 06/18/2007 06/18/2007 06/18/2007 06/18/2007 06/18/2007 06/18/2007 06/18/2007 06/19/2007 06/19/2007 06/19/2007 06/19/2007 06/21/2007 06/21/2007

951 Sealed Document Exhibit 2 to 950 Notice of Filing filed by First Health Services Corporation. (Hickman, Scott) Modified Text on 8/16/07 (jb). (Entered: 06/18/2007)
952 MOTION for Leave to File Reply To Defendants' Response To Doral Dental of Tennessee, LLC's Motion To Allocate Discovery Costs by Doral Dental of Tennessee, LLC. (Attachments: # 1 Exhibit A−Proposed Reply To Defendants' Response To Doral Dental of Tennessee, LLC's Motion To Allocate Discovery Costs)(Walker, Kathryn) (Entered: 06/18/2007)
953 RESPONSE to 885 Order filed by Doral Dental of Tennessee, LLC. (Walker, Kathryn) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
954 NOTICE of Filing re 885 Order by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: (1) Exhibit A − BCBST Data (2) Exhibit B − Magellan Data (3) Exhibit C − MMC Data (4) Exhibit D − Windsor Data)(Cooper, Charles) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
955 STATEMENT of Common Issues by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice., First Health Services Corp., Unison Health Plan of Tennessee, Inc. (Hicks, John) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
956 MOTION for Leave to File Document Under Seal [Financial Information] by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 06/18/2007)
958 Sealed Document [Statement of Revenue and Expenditures] filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Attachments: # 1 Exhibit A − Breakdown of Medical Expenses Paid by Year)(Hicks, John) (Entered: 06/18/2007)
959 MOTION Leave to File Statement of MCC Issues re 885 Order on Motion to Clarify,,, by Preferred Health Partnership of Tennessee, Inc.. (Attachments: # 1 Exhibit Statement of MCC Issues)(Miller, John) (Entered: 06/18/2007)
960 MOTION to Seal Document 957 Notice (Other) by Preferred Health Partnership of Tennessee, Inc.. (Miller, John) (Entered: 06/18/2007)
961 NOTICE of Filing of State Funds Received and Expended re 885 Order by Schaller Anderson of Tennessee, LLC. (Ambrosius, Paul) Modified Text on 6/19/07 (jb). (Entered: 06/18/2007)
Note to Filer re DE #961−Pursuant to Clerk's Office procedure, Certificates of Service must include the names and full addresses for all persons served, whether served electronically or by other means. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 06/19/2007)
962 ORDER granting 956 Motion for Leave to File Statement of Revenue and Expenditures Under Seal. Signed by Judge William J. Haynes Jr. on 6/19/07. (jb) (Entered: 06/20/2007)
963 ORDER granting 952 Deft Doral Dental of Tennessee, LLC's Motion for Leave to File Reply . Signed by Judge William J. Haynes Jr. on 6/19/07. (jb) (Entered: 06/20/2007)
964 REPLY to Response to 897 MOTION to Allocate Discovery Costs filed by Doral Dental of Tennessee, LLC. (Attachments: (1) Exhibit 1−Contract Sec. A.11.5dd (2) Exhibit 2−Contract Sec. A.19.1)(jb) (Entered: 06/20/2007)
966 Minute Entry for proceedings held before Judge William J. Haynes Jr.: Hearing on 826 Renewed Motion to Compel held on 6/19/07. Counsel instructed to submit exhibits in open Court. Court will resume on 6/20/07 at 9:00 a.m. (Court Reporter Peggy Turner.) (jb) (Entered: 06/22/2007)
967 Minute Entry for proceedings held before Judge William J. Haynes Jr.: Hearing on 826 Renewed Motion to Compel held on 6/20/07. Court will resume on 6/21/07 at 9:00 a.m. (Court Reporter Peggy Turner.) (jb) (Entered: 06/22/2007)

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06/21/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/22/2007 06/23/2007 06/25/2007 06/25/2007 06/26/2007
06/26/2007
06/26/2007 06/26/2007

968 Minute Entry for proceedings held before Judge William J. Haynes Jr.: Hearing on 826 Renewed Motion to Compel held on 6/21/07. Court will resume on 6/22/07 at 9:00 a.m. (Court Reporter Peggy Turner.) (jb) (Entered: 06/22/2007)
965 (DISREGARD THIS ENTRY−ATTY REFILED−SEE DE #977 SIGNED BRIEF) BRIEF Opposing State's Claim of Privilege re 885 Order filed by John B. (Bonnyman, George) Modified on 6/25/07 (jb). (Entered: 06/22/2007)
969 Sealed Document−DECLARATION of Timothy Gary filed by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified on 6/25/07 (jb). (Entered: 06/22/2007)
970 MOTION for Leave to File Document Under Seal Response to Court's June 21, 2007 Order by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 06/22/2007)
971 Sealed Document Response To Court's June 21, 2007 Order filed by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 06/22/2007)
972 MOTION for Leave to File Document Under Seal by Preferred Health Partnership of Tennessee, Inc.. (Miller, John) (Entered: 06/22/2007)
973 Sealed Document Statement Regarding Joint Defense Agreement filed by Preferred Health Partnership of Tennessee, Inc.. (Miller, John) (Entered: 06/22/2007)
974 MOTION for Leave to File Document Under Seal Declaration of Timothy Gary by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 06/22/2007)
975 MOTION for Leave to File Document Under Seal (Brill Declaration) by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 06/22/2007)
976 Sealed Document (Brill Declaration) filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 06/22/2007)
979 Minute Entry for proceedings held before Judge William J. Haynes Jr.: Hearing on Motion to Compel re 814 826 held on 6/22/07. Court will resume on 6/25/07 at 8:00 a.m. (Court Reporter Peggy Turner.) (jb) (Entered: 06/25/2007)
977 SIGNED BRIEF Opposing State's Claim of Privilege re 964 Reply filed by John B. (Bonnyman, George) Modified Text on 6/25/07 (jb). (Entered: 06/23/2007)
978 RESPONSE to 977 Pltfs' Brief Opposing The State's Claim of Privilege filed by Nancy Menke, Theresa Clarke, George W. Hattaway filed by John B. (Cooper, Charles) Modified Text on 6/25/07 (jb). (Entered: 06/25/2007)
980 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Exhibit A − Part 1 − IT Survey Responses# 2 Exhibit A − Part 2 − IT Survey Responses)(Cooper, Charles) (Entered: 06/25/2007)
981 Minute Entry for proceedings held before Judge William J. Haynes Jr.: Hearing on Motion to Compel re 814 826 held on 6/25/07. Counsel has 10 days from today (6/25/07) to file a supplemental factural memorandum. The Court will render a decision as soon as possible. (Court Reporter Peggy Turner.) (jb) (Entered: 06/26/2007)
982 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on June 19, 2007 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 06/26/2007)
983 RESPONSE in Opposition re 931 MOTION to Alter Judgment Amend or Clarify Court's June 1, 2007 Order, or in the Alternative, Motion for A Partial New Trial filed by John B.. (D'Souza, Lisa) (Entered: 06/26/2007)
984 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on June 20, 2007 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 06/27/2007)

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06/29/2007 07/01/2007 07/01/2007 07/01/2007 07/05/2007 07/05/2007 07/09/2007 07/09/2007 07/10/2007 07/10/2007 07/10/2007 07/10/2007 07/10/2007 07/10/2007 07/10/2007 07/10/2007

985 MOTION for Clarification of the Deadline for Filing Supplemental Factual Memorandume re 981 by Unison Health Plan of Tennessee, Inc. (Smith, Thomas) Modified Text on 6/29/07 (jb). (Entered: 06/29/2007)
986 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 6/21/07 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 07/02/2007)
987 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 6/22/07 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 07/02/2007)
988 TRANSCRIPT prepared by OCR Peggy Turner for Proceedings held on 6/25/07 before Judge William J. Haynes, Jr. (This document is NOT available on−line. Contact the court reporter at 615−726−4893 to purchase a copy) (jb) (Entered: 07/02/2007)
989 MEMORANDUM pursuant to 981 Court's June 25, 2007 Instruction at Evidentiary Hearing filed by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified Text on 7/5/07 (jb). (Entered: 07/05/2007)
990 ORDER granting 985 Motion for Clarification of the Deadline for Filing Supplemental Factual Memorandum. All additional briefs are due by 7/10/07. Signed by Judge William J. Haynes Jr. on 7/3/07. (jb) (Entered: 07/05/2007)
991 (DISREGARD ENTRY−ATTY TO REFILE) MOTION for Leave to File Document Under Seal by First Health Services Corporation. (Domenick, Beth) Modified on 7/10/07 (jb). (Entered: 07/09/2007)
992 (DISREGARD ENTRY−ATTY TO REFILE) Sealed Document Declaration of Douglas Lipton Submitted On Behalf of First Health Services Corporation filed by First Health Services Corporation. (Domenick, Beth) Modified on 7/10/07 (jb). (Entered: 07/09/2007)
Note to Filer re DE Nos. 991 &992−These documents are not completely signed. These documents need to be RE−FILED. (jb) (Entered: 07/10/2007)
993 MOTION for Leave to File Document Under Seal by First Health Services Corporation. (Domenick, Beth) (Entered: 07/10/2007)
994 Declaration of Douglas Lipton Submitted On Behalf of First Health Services Corporation filed by First Health Services Corporation. (Domenick, Beth) Modified on 7/17/07 (jb). (Entered: 07/10/2007)
Note to Filer re DE #993−This document has been scanned. Scanning should be used only for documents that are not created on your computer. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 07/10/2007)
995 SUPPLEMENTAL FACTUAL MEMORANDUM pursuant to the 981 Court's June 25, 2006 Order filed by Unison Health Plan of Tennessee, Inc. (Safar, Joseph) Modified Text on 7/10/07 (jb). (Entered: 07/10/2007)
996 POST−HEARING MEMORANDUM OF FACTS AND LAW re 990 Order on Motion to Clarify filed by John B. (Johnson, Michele) Modified Text on 7/11/07 (jb). (Entered: 07/10/2007)
997 SUPPLEMENTAL FACTUAL AND LEGAL MEMORANDUM regarding the June 19, 2007 Evidentiary Hearing re 981 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 7/11/07 (jb). (Entered: 07/10/2007)
998 DECLARATION of Linda A. Ross re 997 SUPPLEMENTAL FACTUAL AND LEGAL MEMORANDUM regarding the June 19, 2007 Evidentiary Hearing re 981 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 7/11/07 (jb). (Entered: 07/10/2007)

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07/10/2007

999 SUPPLEMENTAL MEMORANDUM pursuant to the Court's June 25, 2007 Instructions re 990 Order on Motion to Clarify filed by Preferred Health Partnership of Tennessee, Inc. (Attachments: (1) Exhibit Transcript Excerpt 6−19−07 (2) Exhibit Transcript Excerpt 6−20−07 (3) Exhibit Transcript Excerpts 6−25−07 (4) Exhibit Plaintiffs' Exh. 36 Excerpt (p. 23))(Miller, John) Modified Text on 7/11/07 (jb). (Entered: 07/10/2007)

07/10/2007

1000 POST EVIDENTIARY HEARING COMMENTS regarding Discovery Compliance by Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC. (jb) (Entered: 07/11/2007)

07/11/2007

1001 REPLY to 997 Defts' Supplemental Factual and Legal Memorandum filed by John B. (Attachments: (1) Under Seal Exhibit Attachment 1 − Randal Lea email of 5−26−05 (2) Exhibit Attachment 2 − Lea email 5−20−05)(Johnson, Michele) Modified Text on 7/16/07 (jb). (Entered: 07/11/2007)

07/13/2007

1002 First MOTION to Place Document Under Seal re 1001 Reply to 997 Defts' Supplemental Factual and Legal Memorandum by John B. (Johnson, Michele) Modified Text on 7/16/07 (jb). (Entered: 07/13/2007)

07/16/2007

1003 ORDER granting 1002 Motion to Place Document Under Seal re Attachment 1 to 1001 Reply to 997 Defts' Supplemental Factual and Legal Memorandum. Signed by Judge William J. Haynes Jr. on 7/16/07. (jb) (Entered: 07/16/2007)

07/16/2007 1004 NOTICE of Change of Address by counsel to defts. (Cooper, Charles) Modified Text on 7/17/07 (jb). (Entered: 07/16/2007)

07/16/2007 1005 MOTION for Leave to File Reply Brief by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 07/16/2007)

07/16/2007

1006 REPLY to 1001 Pltfs' Memoranda Regarding the June 19, 2007 Evidentiary Hearing filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified on 7/16/07 (jb). (Entered: 07/16/2007)

07/17/2007 1007 Amended 1004 NOTICE of Change of Address by counsel to defts. (Cooper, Charles) Modified Text on 7/17/07 (jb). (Entered: 07/17/2007)

07/17/2007

1008 ORDER: The 993 Motion for Permission to File Declaration Under Seal is DENIED. The Court ordered all such affidavits to be filed prior to the Court's ruling on the issue at the hearing. Signed by Judge William J. Haynes Jr. on 7/17/07. (jb) (Entered: 07/17/2007)

07/17/2007

1009 ORDER: The 1005 Defts' Motion for Leave to File Reply Brief is granted, but only as to evidence introduced at the hearing. Signed by Judge William J. Haynes Jr. on 7/17/07. (jb) (Entered: 07/17/2007)

07/19/2007 1010 Letter from Deputy Clerk to Joseph C. Safar re: Compliance with Local Rule 83.01. (jb) (Entered: 07/19/2007)

07/19/2007 1011 Letter from Deputy Clerk to Thomas J. Smith re: Compliance with Local Rule 83.01. (jb) (Entered: 07/19/2007)

07/31/2007

1012 July 2007 Semi−Annual Progress Report by Nancy Menke. (Attachment: (1) John B. July 2007 Semi−Annual Progress Report)(Ross, Linda) Modified Text on 8/1/07 (jb). (Entered: 07/31/2007)

08/01/2007 1013 NOTICE of Appearance by Stephen H. Biller on behalf of Unison Health Plan of Tennessee, Inc. (Biller, Stephen) (Entered: 08/01/2007)

08/02/2007

Note to Filer re DE #1013−This document has been scanned. Scanning should be used only for documents that are not created on your computer. This document does not need to be re−filed unless otherwise directed by the Court.(jb) (Entered: 08/02/2007)

08/09/2007 1014 MOTION to Withdraw as Attorney by John B.. (Bristol, Marjorie) (Entered: 08/09/2007)

08/13/2007

1015 ORDER granting 1014 Motion to Withdraw Marjorie A. Bristol as counsel for the pltf class. Signed by Judge William J. Haynes Jr. on 8/13/07. (jb) (Entered: 08/13/2007)

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08/15/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/16/2007 09/20/2007 09/21/2007 09/21/2007 09/26/2007 09/26/2007 10/09/2007
10/10/2007

1022 ORDER granting 949 Motion for Permission to File Exhibit Under Seal . Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1016 ORDER granting 975 Motion for Leave to File Declaration for In Camera Review Under Seal. Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1017 ORDER granting 974 Motion for Leave to File Declaration of Timothy Gary Under Seal . Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1018 ORDER granting 972 Motion to File Statement Regarding Joint Defense Agreement Under Seal. Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1019 ORDER granting 960 Motion to Seal Document No. 957 Statement. Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1020 ORDER granting 959 Motion to File Statement of Managed Care Contractor Issues Pursuant to the Court's June 1, 2007 Order. Signed by Judge William J. Haynes Jr. on 8/15/07. (jb) (Entered: 08/16/2007)

1021 STATEMENT of Managed Care Contractor Issues Pursuant to the 885 Court's June 1, 2007 Order filed by Preferred Health Partnership of Tennessee, Inc. (jb) (Entered: 08/16/2007)

1023 NOTICE by Nancy Menke, Theresa Clarke, George W. Hattaway of Mootness Regarding Certain Discovery Issues Previously in Dispute (Cooper, Charles) (Entered: 09/20/2007)

1024 (DISREGARD THIS ENTRY−ATTY TO REFILE) REPLY filed by John B. re 1023 Notice (Other) filed by George W. Hattaway,, Nancy Menke,, Theresa Clarke,. (Johnson, Michele) Modified Text on 9/21/07 (jb). (Entered: 09/21/2007)

1025 REPLY to 1023 Defts' Purported Notice of Mootness Regarding Certain Discovery Issues Previously in Dispute filed by John B. (Johnson, Michele) Modified Text on 9/21/07 (jb). (Entered: 09/21/2007)

1026 ORDER: In light of the Pltfs' Renewed Motion to Compel that addresses the same issues, this 814 Motion to Compel Discovery is denied as moot. Signed by Judge William J. Haynes Jr. on 9/20/07. (jb) (Entered: 09/26/2007)

1027 RESPONSE to 1025 Plaintiffs' Reply Regarding the Defendants' Notice of Mootness Regarding Certain Discovery Issues Previously in Dispute. (Cooper, Charles) Modified on 9/27/07 (jb). (Entered: 09/26/2007)

1028 *Substituted at 1341 * MEMORANDUM−Pages 1−47: Order to enter. Signed by Judge William J. Haynes Jr. on 10/9/07. (Attachments: (1) Memo Continued, Pages 48−94 (2) Memo Continued, Pages 95−144 (3) Memo Continued, Pages 145−187)(jb) Modified text on 2/8/2010 (tmw). (Entered: 10/10/2007)

1029

ORDER: In accordance with the Memorandum filed herewith, the Pltfs' 826 Renewed Motion to Compel is granted except as modified by the Court for certain managed care contractors. The Defts shall provide complete responses to the Pltfs' discovery requests for ESI with the agreed search terms, the designated key custodians and for the time period of 6/1/04 to the present within 100 days from the date of entry of this Order. Within 11 days from the date of entry of this Order, the Defts shall provide a complete and accurate response to Interrogatory 22 by the person whose name is mentioned in Pltfs' Exhibit 12. Within 30 days from the date of entry of this Order, the Defts shall provide the personal responses of each of the current key custodians and shall use their best efforts to secure responses from former key custodians to the Pltfs' last set of requests for admissions, as directed in the accompanying Memorandum. Within 15 days of the entry of this Order, the Defts shall comply with the 1/14/07 Order requiring the Defts' current and former key custodians to file certifications that ESI has been removed from any state computer or personal computer provided by the State to the Defts' designated current and former key custodians. Effective upon entry of this Order, the Defts shall implement the 3/17/04 Memorandum and shall report to the court instanter as

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outlined in this Order. Within 60 days from the date of entry of this Order, those managed care contractors ("MCC" or "MCCs") that have not agreed with the Pltfs on ESI discovery, shall respond to Pltfs' ESI discovery requests, as modified by the Court in the accompanying Memorandum. Within 11 days of the entry of this Order, the Defts shall respond why the Defts should not be required to pay the production costs of the MCCs under this Order or any agreement between the Pltfs and any MCC, including the MCCs' attorney fees and costs. In light of this Order, the MCCs' related motions to allocate discovery costs, (Docket Entry Nos. 920 , 921 , 935 ) are denied as moot. The MCC, BlueCross/BlueShield's motion to alter or amend the 6/1/07 Order or motion for a partial new trial (Docket Entry No. 931 ) is denied as moot. Signed by Judge William J. Haynes Jr. on 10/10/07. (jb) Modified on 10/10/07 (jb). ***Amended − See Order #1145*** (km). (Entered: 10/10/2007)

10/12/2007

1030 MOTION to Withdraw as Attorney by John B.. (D'Souza, Lisa) (Entered: 10/12/2007)

10/15/2007

1031 ORDER granting 1030 Motion to Withdraw Lisa J. D'Souza as Attorney for pltfs. Signed by Judge William J. Haynes Jr. on 10/15/07. (jb) (Entered: 10/15/2007)

10/15/2007

1032 MOTION for Clarification or, in the alternative, Reconsideration of the 1029 Order of October 10, 2007 by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 10/16/07 (jb). (Entered: 10/15/2007)

10/15/2007

1033 NOMINATION of Ronald J. Hedges for Appointment as Monitor of Discovery re 1029 Order. (Attachment: (1) Exhibit Rsum − Ronald J. Hedges)(Johnson, Michele) Modified Text on 10/16/07 (jb). (Entered: 10/15/2007)

10/15/2007

1034 RESPONSE to the 1029 Court's Request for Nominees to Serve as a Monitor Overseeing Electronic Discovery filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 10/16/07 (jb). (Entered: 10/15/2007)

10/16/2007

1035 REPLY to 1032 MOTION for Clarification or, in the alternative, Reconsideration of the 1029 Order of October 10, 2007 filed by John B. (Johnson, Michele) Modified Text on 10/16/07 (jb). (Entered: 10/16/2007)

10/17/2007 1036 NOTICE of Appearance by Paul Savage Davidson on behalf of Amerigroup Corporation (Davidson, Paul) (Entered: 10/17/2007)

10/17/2007

1037 SUPPLEMENTAL REPLY to Response to Motion re 1032 MOTION for Clarification or, in the alternative, Reconsideration of the 1029 Order of October 10, 2007 filed by John B. (Johnson, Michele) Modified Text on 10/18/07 (jb). (Entered: 10/17/2007)

10/17/2007

1038 NOTICE by First Health Services Corporation For The Appointment of The Honorable (Ret.) Edward N. Cahn As The Monitor of The Production of Electronically Stored Information (Domenick, Beth) (Entered: 10/17/2007)

10/18/2007

1039 OBJECTIONS to Nominees Other Than the Court's Magistrate Judges to Oversee Electronic Discovery re 1029 Order filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 10/19/07 (jb). (Entered: 10/18/2007)

10/22/2007

1040 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Appendix A −− Defendants' Supplemental Answer to Interrogatory No. 22)(Cooper, Charles) (Entered: 10/22/2007)

10/22/2007

1041

OPPOSITION To An Award Of Attorney's Fees To Plaintiffs And/Or Of Costs and Attorneys' Fees To MCCs. (Attachments: # 1 Exhibit 1 −− Defendants' Response to Plaintiffs' Motion to Compel Discovery# 2 Exhibit 2 −− 7/8/04 Letter from D. Shaffer to G. Bonnyman# 3 Exhibit 3 −− 7/6/04 Letter from G. Bonnyman to R. Harris and L. Ross# 4 Exhibit 4 −− 7/7/04 Letter from G. Bonnyman to D. Shaffer, L. Ross, and P. Irwin# 5 Exhibit 5 −− Plaintiffs' Brief in Support of Motion to Compel Discovery# 6 Exhibit 6 −− Plaintiffs' Reply Brief in Support of Motion to Compel Discovery# 7 Exhibit 7 −− Joint Statement of Discovery Issues in Dispute# 8 Exhibit 8 −− Order# 9 Exhibit 9 −− 8/3/04 Letter From L. Ross to M. Johnson# 10 Exhibit 10 −− Memorandum Order)(Cooper, Charles) Modified on

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10/24/2007 10/25/2007 10/25/2007 10/30/2007 10/30/2007 10/30/2007
10/30/2007
10/31/2007 10/31/2007 11/01/2007 11/02/2007

10/25/07 (jb). (Entered: 10/22/2007)

1042 Second MOTION for Clarification or, in the alternative, Reconsideration of the 1029 Court's Order and 1028 Memorandum Opinion of October 10, 2007 by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 10/25/07 (jb). (Entered: 10/24/2007)

1043 REPLY to 1041 Defendants' Opposition to an Award of Attorneys' Fees to Plaintiffs filed by John B. (Bonnyman, George) Modified Text on 10/25/07 (jb). (Entered: 10/25/2007)

1044

NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway re 1028 Memorandum and 1029 Order. (Attachments: (1) Exhibit 1: Certificates 1−30 (2) Exhibit 2: Certificates 1−36 (3) Exhibit 3: Certificates 1−40 (4) Exhibit 4: Certificates 1−28 (5) Exhibit 5: Certificates 1−24)(Cooper, Charles) Modified Text on 10/29/07 (jb). (Entered: 10/25/2007)

1045 MOTION for Sanctions by John B.. (Bonnyman, George) (Entered: 10/30/2007)

1046 STATEMENT Regarding an Award of Costs and Fees to MCCs by Unison Health Plan of Tennessee, Inc. (Smith, Thomas) Modified Text on 10/30/07 (jb). (Entered: 10/30/2007)

1047

BRIEF filed by John B. re 1040 Notice (Other). (Attachments: # 1 Exhibit Exhibit A − Cites in original answer to Interrog 22 Pt. 1# 2 Exhibit Exhibit A − Cites in original answer to Interrog 22 Pt. 2# 3 Exhibit Exhibit A − Cites in original answer to Interrog 22 Pt. 3# 4 Exhibit Exhibit A − Cites in original answer to Interrog 22 Pt. 4# 5 Exhibit Exhibit A − Cites in original answer to Interrog 22 Pt. 5# 6 Exhibit Exhibit B − Declaration of Chris Yerian# 7 Exhibit Exhibit C − Dec 2004 E−mails re. Respite Autism# 8 Exhibit Exhibit D − Jan 2005 Exclusion Spreadsheet# 9 Exhibit Exhibit E − Oct 2004 Email Re Exclusions Gordon Hickey Baird Long# 10 Exhibit Exhibit F − Oct 2004 email Baird re Exclusions# 11 Exhibit Exhibit G − May 2004 Analysis of 10 autistic children# 12 Exhibit Exhibit H − May 2004 Franklyn email Re ABT# 13 Exhibit Exhibit I − Annotated working draft of TC exclusions# 14 Exhibit Exhibit J − TennCare exclusions# 15 Exhibit Exhibit K − TennCare Medicaid exclusions Jan 2006# 16 Exhibit Exhibit L − Non−Covered benefits estimates chart# 17 Exhibit Exhibit M − PoGo Excerpt)(Bonnyman, George) (Entered: 10/30/2007)

1048

MOTION for Protective Order With Respect To Privileged and Protected Materials Sought by Plaintiffs by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Exhibit 1−−10/26/07 Letter from M. Johnson to N. Moss# 2 Exhibit Exhibit 2−−10/17/07 Letter from G. Bonnyman to J. Sauer# 3 Exhibit Exhibit 3−−10/30/07 Letter from N. Moss to M. Johnson# 4 Exhibit Exhibit 4−−10/30/07 Letter from N. Moss to G. Bonnyman)(Cooper, Charles) (Entered: 10/30/2007)

Note to Filer re DE #1047, Exhibit B: A signed declaration should be filed as a separate event, not as an attachment to another pleading. It is not necessary to re−file this document. (gi) (Entered: 10/31/2007)

1049

MOTION ror Partial Modification of the 1029 Court's October 10, 2007 Memorandum Opinion by First Health Services Corporation. (Attachments: (1) Exhibit A (2) Exhibit B (3) Exhibit C (4) Exhibit D1 (5) Exhibit D2 (6) Exhibit D3 (7) Exhibit D4 (8) Exhibit E (9) Exhibit F)(Domenick, Beth) Modified Text on 11/1/07 (jb). (Entered: 10/31/2007)

Note to Filer re DE #1049−This document has been scanned. Scanning should be used only for documents that are not created on your computer. The mandatory description field, for each exhibit filed, should be used to accurately describe the contents of your attachment (labeling as Exhibit A, B C or Exhibit 1, 2, 3 is not sufficient). This document does not need to be re−filed unless otherwise directed by the Court.(jb) (Entered: 11/01/2007)

1050 SUPPLEMENTAL BRIEF in support 1045 Motion for Rule 37 Sanctions for defendants' failure to obey order to answer Interrogatory No. 22 filed by John B. (Attachment: (1) Exhibit 11−1−07 Moss Letter to Bonnyman)(Bonnyman, George)

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Modified Text on 11/5/07 (jb). (Entered: 11/02/2007)

11/05/2007

1051 ORDER denying 1049 Motion for Partial Modification of the Court's October 10, 2007 Memorandum Opinion. Signed by Judge William J. Haynes Jr. on 11/2/07. (jb) (Entered: 11/06/2007)

11/06/2007

1052 MOTION to Compel Compliance with the Order of October 10, 2007 by John B.. (Bonnyman, George) (Entered: 11/06/2007)

11/06/2007

1053

BRIEF in support of 1052 MOTION to Compel Compliance with the Order of October 10, 2007 filed by John B. (Attachments: (1) Exhibit A Pltfs Summary of Dfts Custodian Responses (2) Exhibit B Antony −Tigh emails re Forensic Exam (3) Exhibit C Antony Tigh emails re supp production (4) Exhibit 2 June 19, 2007 Omitted Evidence − List of Custodians)(Johnson, Michele) Modified Text on 11/6/07 (jb). (Entered: 11/06/2007)

11/07/2007

1054 REPLY to 1042 Defendants' Second MOTION for Clarification or, in the alternative, Reconsideration of the 1029 Court's Order and 1028 Memorandum Opinion of October 10, 2007 filed by John B. (Bonnyman, George) Modified Text on 11/7/07 (jb). (Entered: 11/07/2007)

11/07/2007

1055 MOTION for Protective Order With Respect To Privileged and Protected Materials Inadvertently Produced by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/07/2007)

11/07/2007

1056

MEMORANDUM in Support of 1055 MOTION for Protective Order With Respect To Privileged and Protected Materials Inadvertently Produced filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A −− 11/01/07 Letter# 2 Exhibit B −− 11−02−07 GB Letter to NM re Clawback# 3 Exhibit C −− 3/22/05 Rosen Transcript# 4 Exhibit D −− 11/6/06 Transcript of Hearing# 5 Exhibit E −− 6/19/07 Transcript of Hearing# 6 Exhibit F −− 6/25/07 Transcript of Hearing# 7 Exhibit G −− Stuart Gold Decision# 8 Exhibit H −− Pinnacle Pizza Decision# 9 Exhibit I −− Grace Community Church Decision# 10 Exhibit J −− Fleet Decision# 11 Exhibit K −− Chanel McGree Decision# 12 Exhibit L −− Evenflo Decision# 13 Exhibit M −− Hawkins Decision# 14 Exhibit N −− Sundar Decision)(Cooper, Charles) (Entered: 11/07/2007)

11/07/2007 1057 AFFIDAVIT of Nicole Jo Moss by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/07/2007)

11/07/2007

1058 MOTION for Leave to File Document Under Seal A Notice of Filing of Inadvertantly Produced Privileged Materials by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/07/2007)

11/07/2007

1059

Sealed Document Defendants' Notice of Filing of Inadvertantly Produced Privileged Materials filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A −− TCJB0406−D−00633−00655# 2 Exhibit B −− TCJB0406−D−00496# 3 Exhibit C −− TCJ0406−D−00515# 4 Exhibit D −− TCJB0406−D−00553# 5 Exhibit E −− TCJB0406−D−00573# 6 Exhibit F −− TCJB0406−D−00591# 7 Exhibit G −− TCJB0406−D−006611# 8 Exhibit H −− TCJB0406−K−00572# 9 Exhibit I −− TCJB0406−A−00287−00289# 10 Exhibit J −− TCJB0406−A−00967)(Cooper, Charles) (Entered: 11/07/2007)

11/08/2007 1060 SEALED ORDER. Signed by Judge William J. Haynes Jr. on 11/7/07. (cc: all counsel by regular mail) (jb) (Entered: 11/08/2007)

11/09/2007

1061 SUPPLEMENTAL NOTICE of Filing re 1044 Notice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachment: (1) Supplement − Supplemental Certifications)(Cooper, Charles) Modified Text on 11/15/07 (jb). (Entered: 11/09/2007)

11/13/2007

1062 SUPPLEMENTAL NOTICE of Filing re 1044 Notice by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachment: (1) Exhibit A − Signed Certification)(Cooper, Charles) Modified Text on 11/15/07 (jb). (Entered: 11/13/2007)

11/13/2007 1063 MOTION for Leave to File Under Seal a Motion for Postponement of Conference by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles)

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Modified Text on 11/15/07 (jb). (Entered: 11/13/2007)

11/13/2007

1064 Sealed Document Defendant's Motion for Postponement of Conference filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/13/2007)

11/14/2007

1065 RESPONSE to Motion re 1048 MOTION for Protective Order With Respect To Privileged and Protected Materials Sought by Plaintiffs filed by John B.. (Attachments: # 1 Exhibit Exh. A − Excerpt of Defs' 11−8−07 Reply to RFAs)(Bonnyman, George) (Entered: 11/14/2007)

11/14/2007

1066 MOTION for Clarification of the 1060 Court's November 7, 2007 Order by First Health Services Corporation. (Domenick, Beth) Modified Text on 11/15/07 (jb). (Entered: 11/14/2007)

11/15/2007

1067 ORDER: It is hereby Ordered that the attached letter shall be filed UNDER SEAL. Signed by Judge William J. Haynes Jr. on 11/14/07. (jb) (Entered: 11/15/2007)

11/15/2007 1068 Sealed Letter filed per 1067 Order. (jb) (Entered: 11/15/2007)

11/15/2007

1069 MEMORANDUM: Order to enter. Signed by Judge William J. Haynes Jr. on 11/14/07. (jb) (Entered: 11/15/2007)

11/15/2007

1070

ORDER: In accordance with the Memorandum filed herewith, the Defts' motion to postpone the 11/20/07 hearing is granted. The hearing is reset for 11/29/07 at 8:00 AM. The 1032 Defts' first motion for clarification or in the alternative reconsideration of the Order of 10/10/07 is granted in part to clarify that the implementation of the 3/17/04 Memorandum is limited to a second review of the Defts' paper documents for relevance to this action, production to the Pltfs and preservation. This motion is otherwise denied. The Defts shall designate instanter the individuals in the State Attorney General's Office and the agencies that implement the Consent Decree in this action who will conduct this supplemental paper review for relevance to this action, production to the Pltfs and preservation. The 1042 Defts' second motion for clarification or in the alternative reconsideration of the 10/10/07 Order is denied. The Pltfs' computer expert Michael Tigh, his computer expert and Mr. Ronald J. Hedges, the Court's monitor, shall forthwith inspect the State's computer system and any computers of the 50 key custodians that contain information relevant to the action. The USM or his designated deputies shall accompany Mr. Tigh, his computer expert and Mr. Hedges to ensure that this Order is fully executed. Signed by Judge William J. Haynes Jr. on 11/14/07. (cc: USM) (jb) (Entered: 11/15/2007)

11/15/2007

1071 MOTION to File Under Seal Response to First Health's Motion for Clarification of the Court's November 7, 2007 Order by Unison Health Plan of Tennessee, Inc.(Smith, Thomas) Modified Text on 11/19/07 (jb). (Entered: 11/15/2007)

11/15/2007

1072 Sealed Document Non−Party Unison Health Plan of Tennessee, Inc.'s Response to First Health's Motion for Clarification of the Court's November 7, 2007 Order filed by Unison Health Plan of Tennessee, Inc.. (Smith, Thomas) (Entered: 11/15/2007)

11/15/2007

1073 ORDER: The 1066 Motion for Clarification of the Court's November 7, 2007 Order is granted. The Court does not require these counsel to appear at the cited hearing. Signed by Judge William J. Haynes Jr. on 11/14/07. (jb) (Entered: 11/15/2007)

11/16/2007

1074 ORDER: The 1071 Motion to file Under Seal Response to Motion for Clarification of the Court's November 7, 2007 Order is denied as moot. Signed by Judge William J. Haynes Jr. on 11/16/07. (jb) (Entered: 11/16/2007)

11/16/2007

1075 Emergency MOTION for Clarification and/or Reconsideration of the 1070 Court's Order of November 15, 2007 by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/19/07 (jb). (Entered: 11/16/2007)

11/16/2007

1076 RESPONSE to 1075 Emergency MOTION for Clarification and/or Reconsideration of the 1070 Court's Order of November 15, 2007 filed by John B. (Bonnyman, George) Modified Text on 11/19/07 (jb). (Entered: 11/16/2007)

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11/16/2007 11/19/2007 11/19/2007 11/19/2007
11/19/2007 11/19/2007 11/19/2007
11/19/2007
11/20/2007 11/20/2007 11/20/2007 11/20/2007 11/20/2007 11/20/2007

1077 NOTICE by Nancy Menke, Theresa Clarke, George W. Hattaway of Identities of Designees (Ross, Linda) (Entered: 11/16/2007)

1078 RESPONSE of Non−Party First Health Services Corporation to Defendants' Opposition to An Award of Attorneys' Fees and Costs of Production to the MCCs. (Attachments: # 1 Appendix Declaration of Thomas P. Wehrle)(Domenick, Beth) (Entered: 11/19/2007)

Note to DE #1078−Signed declarations should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 11/19/2007)

1079

ORDER: The 1075 Emergency MOTION for Clarification and/or Reconsideration of the 1070 Court's Order of November 15, 2007 is granted in part and denied in part as outlined in this Order. The Court's November 15, 2007 Order shall be executed forthwith. Signed by Judge William J. Haynes Jr. on 11/19/07. (cc: USM) (jb) (Entered: 11/19/2007)

1080 MOTION to Stay Pending Appeal re 1070 Order by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified Text on 11/20/07 (jb). (Entered: 11/19/2007)

1081 MOTION for Leave to File Excess Pages by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/19/2007)

1082

RESPONSE in Opposition re 1045 MOTION for Sanctions FOR ALLEGED FAILURE TO OBEY ORDER TO ANSWER INTERROGATORY NO. 22 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Exhibit A −− 8−9−2006 Letter from G. Bonnyman to N. Moss &L. Ross# 2 Exhibit Exhibit B −− 8−16−2006 Letter from G. Bonnyman to N. Moss &L. Ross# 3 Exhibit Exhibit C −− 11−6−2006 Tr. of Hr'g# 4 Exhibit Exhibit D −− 6−25−2007 Tr. of Hr'g# 5 Exhibit Exhibit E −− 6−21−2007 Tr. of Hr'g# 6 Exhibit Exhibit F −− Treace v. Unum Life Ins. Co.# 7 Exhibit Exhibit G −− Beattie v. Centurytel# 8 Exhibit Exhibit H −− Gardias v. San Jose State University# 9 Exhibit Exhibit I −− Sloan v. Oakland Police Dep't# 10 Exhibit Exhibit J −− Asia Strategic Investment Alliances v. General Electric# 11 Exhibit Exhibit K −− Miracle Indust., Inc. v. Getty Petroleum Corp.)(Cooper, Charles) (Entered: 11/19/2007)

1083

DECLARATION of WENDY LONG, M.D. filed by Nancy Menke, Theresa Clarke, George W. Hattaway re: 1082 Response in Opposition to Motion. (Attachments: # 1 Exhibit Exhibit A −− TennCare Rule 1200−13−13−.10# 2 Exhibit Exhibit B −− Spreadsheet from Cole Email# 3 Exhibit Exhibit C −− Spreadsheet 2 from Cole Email# 4 Exhibit Exhibit D −− 6−25−2007 Tr. of Hr'g# 5 Exhibit Exhibit E −− TennCare Medical Necessity Guidelines for ABA# 6 Exhibit Exhibit F −− Management of Children with Autism Spectrum Disorders)(Cooper, Charles) Modified Text on 11/20/07 (jb). (Entered: 11/19/2007)

Note to Filer re DE Nos. 1081−1083: The Response and Declaration should have been filed as attachments to the Motion to Exceed the Page Limitation, not as separate entries. These documents do not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 11/20/2007)

1084 Letter from Shira J. Schlaff, Esq to withdraw appearance. (jb) (Entered: 11/20/2007)

1085 MOTION to Withdraw as Attorney by John B.. (Caster, Shawn) (Entered: 11/20/2007)

1086 NOTICE of Appearance by David H. Lillard on behalf of Memphis Managed Care Corporation (Lillard, David) (Entered: 11/20/2007)

1087 Sealed Document−Mail Returned Undeliverable as to 1060 Under Seal Order. (jb) (Entered: 11/20/2007)

1088 MOTION for Leave to Obtain 1060 Sealed Order by Memphis Managed Care Corporation. (Lillard, David) Modified Text on 11/20/07 (jb). (Entered: 11/20/2007)

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11/20/2007 11/20/2007
11/20/2007 11/20/2007
11/20/2007 11/20/2007 11/21/2007 11/21/2007 11/21/2007 11/26/2007 11/26/2007 11/26/2007 11/26/2007 11/26/2007 11/26/2007 11/26/2007
11/26/2007

1089 NOTICE OF APPEAL as to Orders 1070 &1079 . (Attachments: # 1 Exhibit A: Orders 1070 and 1079)(Cooper, Charles) Modified text on 11/26/2007 (gi). (Entered: 11/20/2007)

1090

SUPPLEMENT filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1080 Motion to Stay, 1070 Order on Motion for Exparte,,,,,,,,,,,, Order on Motion for Leave to File Document Under Seal,,,,, 1079 Order,, Terminate Motions,. (Attachments: # 1 Exhibit A: Motion in Sixth Circuit for Stay Pending Appeal)(Cooper, Charles) (Entered: 11/20/2007)

1091 RESPONSE in Opposition re 1080 MOTION to Stay Pending Appeal re 1070 Order filed by John B.. (Attachments: # 1 Exhibit Exh. 1 − Defs' Supplemental Answer to RFA)(Johnson, Michele) (Entered: 11/20/2007)

1092 DECLARATION of Thomas L. Tigh filed by John B. re: 1070 Order on Motion for Exparte,,,,,,,,,,,, Order on Motion for Leave to File Document Under Seal,,,,,. (Attachments: # 1 Exhibit Exh. A − Antony email with Process Outline# 2 Errata Exh. B − Antony−Tigh emails)(Johnson, Michele) (Entered: 11/20/2007)

1093 ORDER granting 1081 Motion for Leave to File Excess Pages. Signed by Judge William J. Haynes Jr. on 11/20/07. (km) (Entered: 11/21/2007)

1094 ORDER granting 1088 Motion for Leave to obtain sealed order. Signed by Judge William J. Haynes Jr. on 11/20/07. (cc: copy of this order and sealed order #1060 to David H. Lillard, Jr.) (km) (Entered: 11/21/2007)

1095 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway re 1070 1079 Orders, 1089 Notice of Appeal. (Cooper, Charles) Modified Text on 11/26/07 (jb). (Entered: 11/21/2007)

1096 ORDER granting 1085 Motion of Atty Shawn L. Caster to Withdraw as Attorney for the pltf class. Signed by Judge William J. Haynes Jr. on 11/21/07. (gi) (Entered: 11/21/2007)

1097 NOTICE of Filing by John B. (Attachments: # 1 Appendix Transcript of November 21, 2007)(Bonnyman, George) (Entered: 11/21/2007)

1098 Sealed Document filed by John B.. (Attachments: # 1 Appendix Plaintiffs' Supp. Response to Motion for Stay Pending Appeal)(Bonnyman, George) (Entered: 11/26/2007)

1099 SUPPLEMENT filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1080 Motion to Stay, 1090 Supplement,. (Attachments: # 1 Appendix A: Reply to Plaintiffs' Opposition)(Cooper, Charles) (Entered: 11/26/2007)

1100 MEMORANDUM AND OPINION. Signed by Judge William J. Haynes Jr. on 11/26/07. (gi) (Entered: 11/26/2007)

1101 ORDER denying 1080 Motion to Stay Pending Appeal in accordance with the accompanying memorandum. Signed by Judge William J. Haynes Jr. on 11/26/07. (gi) (Entered: 11/26/2007)

1102 ORDER: Mr. Ronald Hedges is excused from attending the 11/29/07 hearing. Mr. Ben Purser is requested to be present, if he is available. Signed by Judge William J. Haynes Jr. on 11/26/07. (gi) (Entered: 11/26/2007)

1103 RESPONSE in Opposition re 1055 MOTION for Protective Order With Respect To Privileged and Protected Materials Inadvertently Produced filed by John B.. (Bonnyman, George) (Entered: 11/26/2007)

1104 RESPONSE in Opposition re 1052 MOTION to Compel Compliance with the Order of October 10, 2007 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A: 1/2/2007 Email from Tom Tigh to Brent Antony)(Cooper, Charles) (Entered: 11/26/2007)

1105 DECLARATION of Lacosta Wix filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/26/2007)

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11/26/2007

1106 DECLARATION of Samuel Dunn filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/26/2007)

11/26/2007

1107

(ATTY TO RESUBMIT DECLARATION ONLY−NO SIGNATURE INCLUDED) DECLARATION of Brent Antony filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Exhibit A −− 10−23−07 Tigh Email to Antony# 2 Exhibit Exhibit B −− 10−24−07 Antony Email to Tigh# 3 Exhibit Exhibit C −− 10−24−07 Tigh Email to Antony# 4 Exhibit Exhibit D −− 11−1−07 Antony Email to Tigh# 5 Exhibit Exhibit E −− 10−27−07 Antony Email to Tigh# 6 Exhibit Exhibit F −− 11−1−07 Tigh Email to Antony# 7 Exhibit Exhibit G −− 11−5−07 Antony Email to Tigh# 8 Exhibit Exhibit H −− 11−13−07 Antony Email to Tigh# 9 Exhibit Exhibit I −− 12−13−07 Tigh Email to Antony# 10 Exhibit Exhibit J −− 1−2−07 Antony Email to Tigh# 11 Exhibit Exhibit K −− Discovery Survey# 12 Exhibit Exhibit L −− 1−25−07 Antony Email to Tigh# 13 Exhibit Exhibit M −− 11−4−07 Antony Email to Tigh)(Cooper, Charles) Modified on 11/27/2007 (af). (Entered: 11/26/2007)

11/26/2007

1110 USCA Appeal Fees received $ 455 receipt number 3467500032 re 1089 Notice of Appeal filed by Nancy Menke, George W. Hattaway, Theresa Clarke (km) (Entered: 11/27/2007)

11/27/2007

DE No. 1107, Declaration of Brent Antony, does not contain signature. Attorney to resubmit declaration w/out attachments. (af) (Entered: 11/27/2007)

11/27/2007 1108 DECLARATION of Brent Antony filed by Nancy Menke, Theresa Clarke, George W. Hattaway re: 1107 Declaration,,,. (Cooper, Charles) (Entered: 11/27/2007)

11/27/2007

1109 ORDER: The hearing set for 11/29/07 is continued pending further Order of the Court. Signed by Judge William J. Haynes Jr. on 11/27/07. (km) (Entered: 11/27/2007)

11/27/2007 1111 Mail Returned as Undeliverable. 1067 Order. Mail sent to Ronald J. Hedges (km) (Entered: 11/28/2007)

11/27/2007 1112 ORDER granting 970 Motion for Leave to File Document Under Seal. Signed by Judge William J. Haynes Jr. on 11/27/07. (km) (Entered: 11/28/2007)

11/28/2007 1113 NOTICE by Nancy Menke, Theresa Clarke, George W. Hattaway of Identities of Supplemental Designees (Ross, Linda) (Entered: 11/28/2007)

11/28/2007

1114

ORDER of USCA as to 1089 Notice of Appeal filed by Nancy Menke, George W. Hattaway, Theresa Clarke that the district court's orders are STAYED pending further order of the court. This stay shall be of limited duration. The district court may respond, should it so chose, but it is not required to do so. The pltfs may supplement their response, not to exceed 15 pages, to address in particular the request for relief in mandamus. Any response should be filed by December 4. The designated panel of this court intends to further consider this matter at is previously scheduled motions panel conference on December 6. (km) (Entered: 11/28/2007)

11/29/2007

1115 Joint MOTION for Protective Order Regarding Court−Ordered Production From MCCs by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Proposed Order Protective Order Regarding Court−Ordered Discovery from the MCCs)(Cooper, Charles) (Entered: 11/29/2007)

11/30/2007 1116 PROTECTIVE ORDER regarding Court−Ordered Production from MCC's. Signed by Judge William J. Haynes Jr. on 11/30/07. (km) (Entered: 11/30/2007)

11/30/2007

1117 ORDER granting Joint Motion for entry of protective order regarding Court−Ordered production from MCC's 1115 . Signed by Judge William J. Haynes Jr. on 11/30/07. (km) (Entered: 11/30/2007)

11/30/2007 1118 MOTION for Protective Order by John B.. (Attachments: # 1 Proposed Order Pltfs proposed protective order)(Bonnyman, George) (Entered: 11/30/2007)

11/30/2007

1119

(DISREGARD − Atty re−filed − See DE #1122)NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Exhibit Exhibit A − 6CA Motion for Leave to File a Supplemental Brief# 2 Exhibit Exhibit B − 6CA Supplemental Brief in Support of Motion for a Stay)(Cooper, Charles) Modified on 12/3/2007 (km). (Entered: 11/30/2007)

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11/30/2007
11/30/2007
11/30/2007
12/03/2007 12/04/2007 12/06/2007
12/06/2007 12/07/2007 12/07/2007 12/07/2007 12/10/2007 12/11/2007 12/12/2007 12/17/2007 12/17/2007 12/20/2007 12/21/2007

1120

NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway re 1070 Order on Motion for Exparte,,,,,,,,,,,, Order on Motion for Leave to File Document Under Seal,,,,, (Attachments: # 1 Exhibit A: Defendants' Proposed Protective Order# 2 Exhibit B: 11−29−07 Letter From M. Johnson to N. Moss)(Cooper, Charles) (Entered: 11/30/2007)

1121

DECLARATION of Michael Bowie filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Exhibit A −− Case Recording Request# 2 Exhibit Exhibit B −− Enterprise Information Security Policies# 3 Exhibit Exhibit C −− Abbreviated Security Process)(Cooper, Charles) (Entered: 11/30/2007)

1122 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Exhibit A − 6CA Motion for Leave to File Supplemental Brief# 2 Exhibit B − 6CA Supplemental Brief in Support of Motion for Stay)(Cooper, Charles) (Entered: 11/30/2007)

1123 NOTICE of Filing by John B. (Attachments: # 1 Exhibit Ex. 1 Transcript of Conference call 11 am# 2 Exhibit Ex. 2 Transcript of Aftn Conference call# 3 Exhibit Ex.3 State Inventory &Email)(Bonnyman, George) (Entered: 12/03/2007)

1124 NOTICE of Filing by John B. re 1114 USCA Order,, (Attachments: # 1 Supplement Response in Opposition to Motion for Stay)(Bonnyman, George) (Entered: 12/04/2007)

1125 NOTICE of Filing by John B. (Attachments: # 1 Exhibit Transcript of Monitor's 12−6−07 phone conference# 2 Exhibit Exh. 2− 12−5−07 Custodians' Equipment Inventory# 3 Exhibit 12−6−07 N. Moss Letter re. Equip. Inventory)(Johnson, Michele) (Entered: 12/06/2007)

1127 Mail Returned as Undeliverable. 1068 Sealed Document and 1067 Order. Mail sent to Robert Lewis Smith. (km) (Entered: 12/07/2007)

1126 NOTICE of Filing by John B. re 1125 Notice (Other), Notice (Other) Corrected Transcript (Attachments: # 1 Exhibit Corrected Transcript of 12−6−06)(Bonnyman, George) (Entered: 12/07/2007)

1128 ORDER: The Clerk shall file this attached letter under seal. Signed by Judge William J. Haynes Jr. on 12/6/07. (km) (Entered: 12/07/2007)

1129 Sealed Letter filed per Order 1128 . (km) (Entered: 12/07/2007)

1130 ORDER of USCA as to 1089 Notice of Appeal filed by Nancy Menke, George W. Hattaway, Theresa Clarke that the motion to stay is granted. The clerk is directed to expedite the briefing and submission of this appeal. (km) (Entered: 12/10/2007)

1131 SECOND SUPPLEMENTAL NOTICE of identities of designees filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1113 Notice. (Ross, Linda) Modified text on 12/12/2007 (km). (Entered: 12/11/2007)

1132 MOTION for Protective Order by Preferred Health Partnership of Tennessee, Inc.. (Attachments: # 1 Proposed Order (Proposed Protective Order))(Miller, John) (Entered: 12/12/2007)

1133 ORDER granting 1132 Motion for Protective Order regarding information to be produced by MCC Preferred Health Partnership of Tennessee, Inc. Signed by Judge William J. Haynes Jr. on 12/13/07. (km) (Entered: 12/18/2007)

1134 PROTECTIVE ORDER regarding information to be produced by MCC Preferred Health Partnership of Tennessee, Inc. Signed by Judge William J. Haynes Jr. on 12/13/07. (km) (Entered: 12/18/2007)

1137 Mail Returned as Undeliverable; 1067 &1068 addressed to Richard A. Carter. (gi) (Entered: 12/21/2007)

1135 MOTION for Protective Order by Tennessee Behavioral Health, Inc.. (Webb, Christopher) (Entered: 12/21/2007)

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12/21/2007 12/26/2007
12/27/2007 12/27/2007 01/04/2008 01/04/2008 01/04/2008 01/04/2008 01/07/2008
01/07/2008
01/08/2008 01/08/2008 01/16/2008 01/22/2008

1136 Proposed Order by Tennessee Behavioral Health, Inc. (Webb, Christopher) Modified text on 12/26/2007 (km). (Entered: 12/21/2007)

Note to Filer re DE 1135 &1136: Pursuant to Administrativc Order No. 167, Section 5.08, proposed orders should be included as an attachment to an electronically filed motion or other request for relief. If the Court orders that counsel submit a proposed order, it should be submitted as an attachment to a Notice of Filing. Pursuant to court policy and procedure, Certificates of Service must include the names and full addresses for all persons served (whether served electronically or by other means), what was served, method of service and date of service. (See Local Rule 5.01.). These documents do not need to be re−filed unless otherwise directed by the Court. Please file a conformed Certificate of Service for these documents. (km) (Entered: 12/26/2007)

1138 CERTIFICATE OF SERVICE by Tennessee Behavioral Health, Inc. re 1135 MOTION for Protective Order (Webb, Christopher) (Entered: 12/27/2007)

1139 NOTICE of Filing by John B. (Attachments: # 1 Exhibit A − Transcript of 12−19−07 Conference Call# 2 Exhibit B − 12−19−07 Bonnyman email questions# 3 Exhibit C − Transcript of 12−21−07 Conference Call)(Bonnyman, George) (Entered: 12/27/2007)

1140 MOTION for Extension of Time to Complete Discovery by BlueCross Blueshield of Tennessee. (Jenkins, Marc) (Entered: 01/04/2008)

1141 MEMORANDUM in Support of 1140 MOTION for Extension of Time to Complete Discovery filed by BlueCross Blueshield of Tennessee. (Jenkins, Marc) (Entered: 01/04/2008)

1142 DECLARATION of Mark Hooton filed by BlueCross Blueshield of Tennessee re: 1141 Memorandum in Support, 1140 MOTION for Extension of Time to Complete Discovery. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Jenkins, Marc) (Entered: 01/04/2008)

1143 Mail Returned as Undeliverable. 1102 Order, 1101 Order and 1100 Memorandum &Opinion. Mail sent to Ronald J. Hedges (km) (Entered: 01/07/2008)

Note to Filer re DE 1142: Pursuant to Administrative Order No. 167, Section 8, electronically filed documents shall set forth the Filing Users name, address, telephone number and Board of Professional Responsibility registration number. The filers name should be typed in the space where the signature would otherwise appear preceded by the symbol s/ or inserted by facsimile signature. The mandatory description field should be used to accurately describe the contents of your attachment (labeling as Exhibit A,B C or Exhibit 1,2,3 is not sufficient). This document needs to be re−filed. (km) (Entered: 01/07/2008)

1144

DECLARATION of Mark Hooton (Unsigned) filed by BlueCross Blueshield of Tennessee re: 1140 MOTION for Extension of Time to Complete Discovery, 1142 Declaration, Docket Annotation,,. (Attachments: # 1 Exhibit A − April 25, 2007 Letter from Hubbard, Berry &Harris, PLLC to Brent Antony and Nicole Moss# 2 Exhibit B − May 2, 2007 Letter from Michele Johnson to Nicole Moss)(Jenkins, Marc) (Entered: 01/07/2008)

1145 ORDER: 1140 Motion to Modify Court's 10/10/07 Order regarding the production of emails and user files by non−party BlueCross BlueShield of TN is granted for the dates requested. Signed by Judge William J. Haynes Jr. on 1/7/08. (km) (Entered: 01/08/2008)

1146 UNDER SEAL ORDER. Signed by Judge William J. Haynes Jr. on 1/8/08. (km) (Entered: 01/09/2008)

1147 MOTION for Extension of Time to Complete Discovery (ESI) by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 01/16/2008)

1149 ORDER: 1147 Motion for brief extension of time to produce ESI is granted. Signed by Judge William J. Haynes Jr. on 1/17/08. (km) (Entered: 01/23/2008)

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01/23/2008 01/28/2008
01/31/2008 02/12/2008 02/13/2008
02/15/2008 02/29/2008 03/26/2008 04/09/2008 04/09/2008
04/10/2008 04/10/2008
04/10/2008 04/16/2008 04/22/2008 04/23/2008
04/23/2008

1148 NOTICE of Filing by John B. (Attachments: # 1 Exhibit A − Letter from Linda Ross to Judge John Nixon, dated October 10, 2003)(Bonnyman, George) (Entered: 01/23/2008)

1150 NOTICE of Filing by John B. (Attachments: # 1 Exhibit 01−04−08 Transcript# 2 Exhibit 12−28−07 Email from Moss Re. Inventory# 3 Exhibit Attachment to 12−28−07 Email − Inventory List# 4 Exhibit 01−02−08 Email Moss to Bonnyman Re. Inventory Clarification)(Johnson, Michele) (Entered: 01/28/2008)

1151 NOTICE of Filing by Nancy Menke January 2008 Semi−Annual Progress Report (Attachments: # 1 John B. January 2008 Semi−Annual Progress Report)(Ross, Linda) (Entered: 01/31/2008)

1152 NOTICE of Appearance for Christina M. Yerian by George Gordon Bonnyman, Jr on behalf of John B. (Bonnyman, George) Modified text on 2/13/2008 (km). (Entered: 02/12/2008)

Note to Filer re DE #1152: When a Notice of Appearance was filed, the association between the party and the attorney was not made. The Clerks Office has created the association. This document does not need to be re−filed unless otherwise directed by the Court. (km) (Entered: 02/13/2008)

1153 ORDER: 1135 Motion for Protective Order is granted. Signed by Judge William J. Haynes Jr. on 2/14/08. (km) (Entered: 02/15/2008)

1154 MOTION to Ascertain Status of Protective Order by John B.. (Bonnyman, George) (Entered: 02/29/2008)

1155 MOTION for Leave to Obtain Sealed Documents by Memphis Managed Care Corporation. (Lillard, David) (Entered: 03/26/2008)

1157 PROTECTIVE ORDER Regarding Information Produced by MCCs Tennessee Behavioral Health, Inc. &Premier Behavioral Systems of Tennessee, LLC. Signed by District Judge William J. Haynes, Jr on 4/9/08. (jb) (Entered: 04/10/2008)

1158

ORDER: The 1154 Motion to Ascertain Status of the Protective Order Governing the State's Production of the Department of Children's Services TennKids and the Tennessee Mental Health and Developmental Disabilities Incident and Incident Reports Databases as denied as moot. Signed by District Judge William J. Haynes, Jr on 4/9/08. (jb) (Entered: 04/10/2008)

1156 ORDER: The 1155 Motion for Leave to Obtain Sealed Documents is unopposed and granted. Signed by District Judge William J. Haynes, Jr on 4/9/08. (jb) (Entered: 04/10/2008)

1159 PROTECTIVE ORDER for the Department of Children's Services TNKids and the Tennessee Mental Health and Developmental Disabilities Incident and Incident Reports Databases. Signed by District Judge William J. Haynes, Jr on 4/10/08. (jb) (Entered: 04/10/2008)

Emailed copies of Sealed Documents DE Nos. 1146, 1098, &1129 re 1156 Order to attorney David Lillard. (jb) (Entered: 04/10/2008)

1160 MOTION for Protective Order Regarding Information To Be Produced to Defendants by Preferred Health Partnership of Tennessee, Inc.. (Attachments: # 1 Proposed Order)(Miller, John) (Entered: 04/16/2008)

1161 MOTION for attorney Jason Francis Choy to Appear Pro Hac Vice by John B.. (Bonnyman, George) (Entered: 04/22/2008)

Note to Filer re DE #1161: In addition to the motion for pro hac vice, pursuant to Local Rule 83.01, a Certificate of Good Standing signed by the Clerk of a United States District Court to which the attorney is admitted is to be filed. (gi) (Entered: 04/23/2008)

1162 PROTECTIVE ORDER regarding information to be produced to defts by MCC Preferred Health Partnership of TN, Inc. re 1160 . Signed by District Judge William J. Haynes, Jr on 4/23/08. (gi) (Entered: 04/24/2008)

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04/24/2008 04/28/2008 04/28/2008 04/28/2008
05/29/2008 06/30/2008
07/03/2008
07/07/2008 07/08/2008 07/08/2008 07/09/2008 07/10/2008 07/10/2008 07/10/2008

1163 MOTION to Clarify re 1159 Order on Motion for Protective Order by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Entered: 04/24/2008)

1164 ORDER granting 1161 Motion for Jason Francis Choy to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr on 4/28/08. (gi) (Entered: 04/28/2008)

1165 ORDER granting 1163 Motion for Clarification or Modification of the Protective Order. Signed by District Judge William J. Haynes, Jr on 4/28/08. (gi) (Entered: 04/28/2008)

1166

ORDER: The Protective Order 1159 is clarified and/or modified to make clear that defts' production of data to pltfs pursuant to this order can include just class member data if it is possible to segregate class from non−class information and will not result in an undue delay. Signed by District Judge William J. Haynes, Jr on 4/28/08. (gi) (Entered: 04/28/2008)

1167 MOTION for Protective Order by John B.. (Attachments: # 1 Proposed Order Proposed Protective Order)(Bonnyman, George) (Entered: 05/29/2008)

1168

INFORMATION COPY and JUDGMENT from 6CCA: For the foregoing reasons, we grant defts' petition for mandamus and set aside those provisions of the district court's 11/15/07 and 11/19/07 orders that require the forensic imaging of state−owned and privately owned computers, including the provisions that require the USM or his designee to assist pltfs' computer expert in the execution of the orders. We recognize that the two contested orders also contain provisions related to the inspection of defts' computer system. We decline to address those provisions to the extent that those provisions can be executed in a manner with this opinion and without undue intrusion. (km) (Entered: 07/01/2008)

1169

Letter from Gordon Bonnyman &Nicole Moss. (Attachments: # 1 Supplement 6−27−08 Letter from Bonnyman to Def. Counsel − 6th Cir Ruling Follow−up, # 2 Supplement 7−1−08 Kirk Letter to Bonnyman Re. Mandamus Ruling, # 3 Supplement Attachment 1 to Kirk letter, # 4 Supplement Attachment 2 to Kirk letter)(Bonnyman, George) (Entered: 07/03/2008)

1172 ORDER: Based upon submissions by counsel for the parties at Mr. Hedges' direction, all discovery, including any directives from Mr. Hedges, is stayed pending further order of the Court. Signed by District Judge William J. Haynes, Jr on 7/7/08. (gi) (Entered: 07/08/2008)

1170 MOTION for attorney Vanessa C. Singh to Appear Pro Hac Vice (PHV FEES PAID) by John B. (Attachments: # 1 Supplement Singh − Certificate of Good Standing)(Bonnyman, George) Modified text on 7/11/2008 (tmw). Modified text on 7/16/2008 (tmw). (Entered: 07/08/2008)

1171 MOTION for attorney Sarah Kao−Yen Tsou to Appear Pro Hac Vice (PHV FEES PAID) by John B. (Attachments: # 1 Certificate of Good Standing − Sarah Kao−Yen Tsou)(Bonnyman, George) Modified text on 7/11/2008 (tmw). Modified text on 7/16/2008 (tmw). (Entered: 07/08/2008)

1173 MOTION to Ascertain Status of Protective Order re 1167 by John B.. (Bonnyman, George) (Entered: 07/09/2008)

1174 ORDER granting 1170 Motion for Vanessa C. Singh to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr on 7/10/08. (tmw) (Entered: 07/11/2008)

1175 ORDER granting 1171 Motion for Sarah Kao−Yen Tsou to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr on 7/10/08. (tmw) (Entered: 07/11/2008)

1176 ORDER: PROTECTIVE ORDER granted re 1167 Motion for Protective Order. Signed by District Judge William J. Haynes, Jr., on 7/10/08. (tmw) (Entered: 07/11/2008)

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07/11/2008

1177 NOTICE of Filing by John B. Transcripts (Attachments: # 1 Transcript of 12−18−07 telephone conference, # 2 Transcript of 7−01−08 Telephone Conference)(Bonnyman, George) (Entered: 07/11/2008)

07/11/2008

1178 ORDER: This Motion to Ascertain Status of Protective Order Governing the Production of Electronically Stored Information by TennCare Managed Care Contractors 1173 is Denied as Moot. Signed by District Judge William J. Haynes, Jr on 7/11/08. (dt) (Entered: 07/14/2008)

07/11/2008

Email notification to Attys Singh &Tsou re mandatory registration for a CM/ECF account. (tmw) (Entered: 07/16/2008)

07/15/2008

1179 NOTICE of Filing by John B. (Attachments: # 1 6−27−08 Transcript of Telephonic Hearing before Ronald Hedges)(Bonnyman, George) (Entered: 07/15/2008)

07/15/2008

1180 RECEIPT #34675003341 in the amount of $150, PHV fees for Attys Singh &Tsou, by John B. (tmw) (Entered: 07/16/2008)

07/28/2008

1181 MOTION to Rescind Stay of Discovery pursuant to 1172 Order, by John B.. (Bonnyman, George) Modified on 7/29/2008 (gi). (Entered: 07/28/2008)

07/29/2008

1182

ORDER Setting Hearing on 1181 MOTION to Rescind Stay of Discovery pursuant to 1172 Order. Motion Hearing set for 8/1/08, at 3:00 PM, in Courtroom A859 before District Judge William J. Haynes, Jr. The Monitor is requested to attend. Signed by District Judge William J. Haynes, Jr., on 7/29/08. (cc: Mr. Hedges via fax) (tmw) Modified text on 7/30/2008 (tmw). (Entered: 07/29/2008)

07/30/2008 1183 Letter from parties to Judge Haynes 07−30−08. (Bonnyman, George) (Entered: 07/30/2008)

07/30/2008

1184 Faxed Letter with ORDER. The request is GRANTED. This Order and the Order setting the August 1st conference to be faxed to Mr. Hedges. Signed by District Judge William J. Haynes, Jr., on 7/30/08. (cc: Mr. Hedges via fax) (tmw) (Entered: 07/30/2008)

07/31/2008 1185 Letter from Scott L. Vernick. (Domenick, Beth) (Entered: 07/31/2008)

07/31/2008

1186 NOTICE of Filing by Nancy Menke of July 2008 Semi−Annual Progress Report (Attachments: # 1 July 2008 Semi−Annual Progress Report)(Ross, Linda) (Entered: 07/31/2008)

08/02/2008

1187

Minute Entry for proceedings held before District Judge William J. Haynes, Jr.: Status Conference held on 8/1/08. Pltfs to submit proposal by 8/4/08; Defts have one week to respond. Pltfs have 30 days to complete discovery. Supplemental motion due 9/24/08. Hearing on sanction will be 10/8/08. (Court Reporter Peggy Turner.) (tmw) (Entered: 08/04/2008)

08/04/2008

1188

Transcript filed for date of 8/1/08, before Judge William J. Haynes, Jr. Court Reporter/Transcriber: Peggy Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 8/13/2008. Redaction Request due 8/22/2008. Redacted Transcript Deadline set for 9/2/2008. Release of Transcript Restriction set for 10/30/2008. (tmw) (Entered: 08/04/2008)

08/04/2008

1189

ORDER: Based upon the discussion at the 8/1/08 conference, the Pltfs' motion to rescind the stay of discovery 1181 is GRANTED. By 8/4/08, Pltfs shall provide their expert's proposal to retrieve Defendants' officers' and employees' deleted e−mails and the Defts shall have until 8/11/08, to inform Pltfs of their acceptance of that proposal. The parties have 30 days thereafter to conduct discovery on the preservation and production of deleted files. An Evidentiary Hearing is set for 10/8/08, at 1:00 PM, in Courtroom A859 before District Judge William J. Haynes Jr., on the Pltfs' 1045 Motion for Sanctions. Signed by District Judge William J. Haynes, Jr., on 8/4/08. (tmw) (Entered: 08/04/2008)

08/05/2008

1190 MOTION for attorney Barry Leigh Weissman to Appear Pro Hac Vice (PHV FEE PAID) by John B. (Attachments: # 1 Certificate of Good Standing − Barry Leigh Weissman)(Bonnyman, George) Modified text on 8/13 &15/08 (tmw). (Entered:

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08/05/2008)

08/12/2008

1191 ORDER granting 1190 Motion for Barry Weissman to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr., on 8/12/08. (tmw) (Entered: 08/12/2008)

08/13/2008

Bar status for Atty Weissman of CA verified as active this date. (tmw) (Entered: 08/13/2008)

08/13/2008

Email notification to Atty Weissman re phv payment and mandatory registration for a CM/ECF account. (tmw) (Entered: 08/13/2008)

08/13/2008

1192 NOTICE of Appearance by Carolyn E. Reed on behalf of Nancy Menke, Theresa Clarke, George W. Hattaway (Reed, Carolyn) (Entered: 08/13/2008)

08/14/2008

1193 RECEIPT #34675003701 in the amount of $75, PHV fee for Atty Weissman, posted by John B. (tmw) (Entered: 08/15/2008)

08/18/2008

1194 MOTION for attorney Leanna M. Anderson to Appear Pro Hac Vice by John B.. (Johnson, Michele) (Entered: 08/18/2008)

08/18/2008

1195 CERTIFICATE OF GOOD STANDING of Attorney Leanna M. Anderson from the United States District Court for the Southern of California filed by John B.. (Johnson, Michele) (Entered: 08/18/2008)

08/19/2008 1196 FACSIMILE Letter to District Judge William J. Haynes, Jr., from Atty Scott L. Vernick. (tmw) (Entered: 08/19/2008)

08/21/2008

1197 ORDER granting 1194 Motion for Atty Leanna Anderson to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr., on 8/21/08. (tmw) Modified on 8/26/2008 (tmw). (Entered: 08/21/2008)

08/26/2008

Bar status for Atty Leanna Anderson of CA verified as active this date. (tmw) (Entered: 08/26/2008)

08/26/2008 1198 MOTION for attorney Katherine Evans to Appear Pro Hac Vice by John B.. (Johnson, Michele) (Entered: 08/26/2008)

08/26/2008

1199 CERTIFICATE OF GOOD STANDING of Attorney Katherine Evans from the United States District Court for the Northern of California filed by John B.. (Johnson, Michele) (Entered: 08/26/2008)

09/03/2008

1200 ORDER granting 1198 Motion for Katherine Evans to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr., on 9/3/08. (tmw) (Entered: 09/03/2008)

09/08/2008

1201 MOTION for Leave to Exceed the Number of Interrogatories Allowed by Federal Rules by John B.. (Attachments: # 1 Exhibit A − Plaintiffs 7th Interrogs 6th RFPs, # 2 Exhibit B − 8−22−08 Plaintiffs 6th Interrogs 5th RFPs)(Johnson, Michele) (Entered: 09/08/2008)

09/09/2008 1202 RECEIPT #34675004027 in the amount of $75, PHV fee for Atty Evans, posted by John B. re 1198 Motion to Appear Pro Hac Vice. (tmw) (Entered: 09/10/2008)

09/12/2008

1203 Joint MOTION Reschedule Hearing and Approve Agreed Pre−Hearing Order by John B.. (Attachments: # 1 9−12−08 Proposed Agreed Pre−Hearing Order)(Johnson, Michele) (Entered: 09/12/2008)

09/17/2008

1204 ORDER granting 1201 Motion for Leave to Propound More than 25 Interrogatories and to Expedite the Defts' Responses. The response time is shortened to 14 days from the date of this Order. Signed by District Judge William J. Haynes, Jr., on 9/17/08. (tmw) (Entered: 09/17/2008)

09/17/2008

1205 MOTION for Reconsideration re 1204 Order on Motion for Leave, by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 09/17/2008)

09/18/2008

1206 ORDER: This Motion for Reconsideration 1205 is Granted in light of the reulting of the evidentiary hearing to extend the Defendants' time fore responses. Given the complexity of this action the motion is Denied as to the number of interrogatories.

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Signed by District Judge William J. Haynes, Jr on 9/18/08. (dt) (Entered: 09/19/2008)

09/19/2008

1207 ORDER granting 1203 Motion to Re−Schdule Hearing Date and Approve Agreed Pre−Hearing Order. Signed by District Judge William J. Haynes, Jr on 9/17/08. (dt) (Entered: 09/19/2008)

09/19/2008

1208 AGREED PRE−HEARING ORDER: Evidentiary Hearing reset for 10/28/2008, at 09:00 AM, in Courtroom A859 before District Judge William J. Haynes Jr. Signed by District Judge William J. Haynes, Jr., on 9/19/08. (tmw) (Entered: 09/19/2008)

09/22/2008

1209 MOTION for Extension of Time to File Supplemental Sanctions Motions by John B.. (Bonnyman, George) (Entered: 09/22/2008)

09/24/2008 1210 MOTION for Sanctions by John B.. (Bonnyman, George) (Entered: 09/24/2008)

09/24/2008

1211 BRIEF filed by John B. re 1207 Order on Motion for Miscellaneous Relief, 1210 Motion for Sanctions. (Bonnyman, George) (Entered: 09/24/2008)

09/25/2008

1212 ORDER granting 1209 Motion for Extension of Time to File Supplemental Sanctions Motions. Signed by District Judge William J. Haynes, Jr on 9/25/08. (dt) (Entered: 09/25/2008)

09/25/2008

1213

MOTION to Ascertain Status of The Court's Consideration Of Whether To Award Reasonable Attorneys' Fees And Costs To Non−Party First Health Services Corporation, by First Health Services Corporation. (Attachments: # 1 Exhibit A: Court's Order of October 10, 2007 [Doc. 1029], # 2 Exhibit B: Defendants' Brief In Opposition To An Award Of Attorneys' Fees And Costs [Doc. 1041], # 3 Exhibit C: First Health Services Corporation's Response To Defendants' Opposition To An Award Of Attorneys' Fees And Costs [Doc. 1078], # 4 Exhibit D: First Health Letter Dated July 31, 2008)(Domenick, Beth) Modified text on 9/29/2008 (tmw). (Entered: 09/25/2008)

09/30/2008

1214 ORDER: Evidentiary Hearing reset to 10/14/2008, at 9:00 AM, in Courtroom A859 before District Judge William J. Haynes, Jr. Signed by District Judge William J. Haynes, Jr., on 9/30/08. (tmw) (Entered: 09/30/2008)

10/01/2008

1215

Minute Entry for proceedings held before District Judge William J. Haynes, Jr.: Telephone Conference to Reset Hearing held on 9/29/2008. For the reasons stated via telephone conference, the Court will contact counsel on 9/30/08, at 10:30 a.m., to confirm dates and ddls. (Court Reporter: Tape Recorder) (tmw) (Entered: 10/01/2008)

10/01/2008

1216

Minute Entry for proceedings held before District Judge William J. Haynes, Jr.: Follow−up Telephone Conference to Reset Evidentiary Hearing held on 10/1/2008. Counsel agreed to the new evidentiary hearing date of 10/14/08, at 9:00 a.m. All dates regarding ddls will be outlined in the Court's Order. (Court Reporter : Tape Recorder.) (tmw) (Entered: 10/01/2008)

10/03/2008

1217

MOTION to Compel by John B. (Attachments: # 1 Exhibit A − Plaintiffs' sixth interrogatories and fifth set of requests for production, # 2 Exhibit B − Plaintiffs' seventh interrogatories and sixth set of requests for production, # 3 Exhibit C − 08−22−08 Helou email to GB MJ Re. Index of John B. Boxes, # 4 Exhibit D − 08−26−08 Brent Antony Deposition, # 5 Exhibit E − 08−27−08 Susie Baird Deposition, # 6 Exhibit F − 08−28−08 Dave Cooley Deposition, # 7 Exhibit G − 09−04−08 Bob Corney Deposition, # 8 Exhibit H − 08−21−08 Natasha Flener Deposition, # 9 Exhibit I − 08−19−08 Goetz Deposition, # 10 Exhibit J − 09−03−08 Darin Gordon Deposition, # 11 Exhibit K − 09−02−08 Tam Gordon Deposition, # 12 Exhibit L − 08−20−08 Wendy Long Deposition)(Yerian, Christina) Modified text on 10/8/2008 (tmw). (Entered: 10/03/2008)

10/07/2008

1218 "Defts' Motion in Limine to Exclude Undisclosed Expert Testimony, or in the Alternative to Compel Disclosure and Supplemental Deposition," by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified text on 10/8/2008 (tmw). Modified on 10/9/2008 (tmw). (Entered: 10/07/2008)

10/07/2008 1219 MEMORANDUM in Support of 1218 MOTION in Limine to Exclude Undisclosed Expert Testimony, or in the Alternative to Compel Disclosure and Supplemental

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10/08/2008 10/09/2008
10/10/2008 10/10/2008 10/10/2008 10/10/2008 10/10/2008
10/13/2008 10/13/2008 10/13/2008 10/13/2008

Deposition, filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Tigh Deposition Excerpts, # 2 Exhibit 10−2−08 Bonnyman Letter, # 3 Exhibit 10−2−08 Shaffer Letter, # 4 Exhibit 10−6−08 Bonnyman Letter)(Cooper, Charles) Modified text on 10/8/2008 (tmw). (Entered: 10/07/2008)

1220 Pltfs' RESPONSE to Defts' 1218 MOTION in Limine to Exclude Undisclosed Expert Testimony, or in the Alternative to Compel Disclosure and Supplemental Deposition, filed by John B. (Bonnyman, George) Modified text on 10/9/2008 (tmw). (Entered: 10/08/2008)

1221

RESPONSE in Opposition re 1217 MOTION to Compel filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Plaintiffs' Sixth Interrogatories and Fifth Set of Requests for Production, # 2 Exhibit Plaintiffs' Seventh Interrogatories and Sixth Set of Requests for Production, # 3 Exhibit Excerpts from June 25, 2007 Transcript, # 4 Exhibit Excerpts from June 21, 2007 Transcript)(Cooper, Charles) (Entered: 10/09/2008)

1222 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway re 1221 Response in Opposition to Motion, (Attachments: # 1 Exhibit Western United Life Assurance Co. v. Fifth Thrid Bank)(Cooper, Charles) (Entered: 10/10/2008)

1223 SUPPLEMENT filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1131 Supplement. (Ross, Linda) (Entered: 10/10/2008)

1224 ORDER denying as moot 1217 Motion to Compel. Resolution of the controversy over these latter discovery requests is RESERVED as these requests involve the Deft's assertions of privilege. Signed by District Judge William J. Haynes, Jr., on 10/10/08. (tmw) (Entered: 10/10/2008)

1225

Minute Entry for proceedings held before District Judge William J. Haynes, Jr.: Joint Discovery Conference held on 10/9/2008. Counsel presented their issues to the Court. Court provided counsel with instructions and they are to respond accordingly. (Court Reporter Peggy Turner.) Signed by Megan Gregory, Courtroom Deputy. (tmw) (Entered: 10/10/2008)

1226

Transcript filed for date of 10/9/08 before Judge William J. Haynes, Jr. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 10/22/2008. Redaction Request due 10/28/2008. Redacted Transcript Deadline set for 11/7/2008. Release of Transcript Restriction set for 1/5/2009. (tmw) (Entered: 10/10/2008)

1227 MOTION for Leave to To Exceed Page Limit by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 10/13/2008)

1228

RESPONSE in Opposition re 1210 MOTION for Sanctions filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A −− McDaniel v. Transcender, LLC, # 2 Exhibit B −− Adkins v. Wolever, # 3 Exhibit C −− Darling v. J.B. Expedited Services, # 4 Exhibit D −− Scott v. Eastman Chemical Co.)(Cooper, Charles) (Entered: 10/13/2008)

1229 BRIEF filed by John B. re 1224 Order on Motion to Compel, 1217 Motion to Compel. (Bonnyman, George) Modified text on 10/14/2008 (tmw). (Entered: 10/13/2008)

1230

NOTICE of Filing by John B. re 1214 Order, Set Deadlines/Hearings (Attachments: # 1 Exhibit Brent Antony deposition, August 26, 2008, # 2 Exhibit Susie Baird Deposition, August 27, 2008, # 3 Exhibit Dave Cooley deposition, August 28, 2008, # 4 Exhibit Bob Corney deposition, September 5, 2008, # 5 Exhibit Natasha Flener deposition, April 3, 2007, # 6 Exhibit Natasha Flener deposition, August 21, 2008, # 7 Exhibit Dave Goetz deposition, August 19, 2008, # 8 Exhibit Darin Gordon deposition, September 3, 2008, # 9 Exhibit Tamara Gordon deposition, September 2, 2008, # 10 Exhibit Wendy Long deposition,

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August 20, 2008)(Bonnyman, George) (Entered: 10/13/2008)

10/14/2008

1231 MOTION for Leave to to File Manually and Under Seal by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A −− Privilege Log, # 2 Exhibit B −− Individuals from the State's Privilege Log)(Cooper, Charles) (Entered: 10/14/2008)

10/14/2008

1232 ORDER granting 1231 Motion for Leave to File Manually and Under Seal. Signed by District Judge William J. Haynes, Jr., on 10/14/08. (tmw) (Entered: 10/14/2008)

10/15/2008

1233 Minute Entry for proceedings held before District Judge William J. Haynes, Jr: Evidentiary Hearing held on 10/14/2008. Counsel presented their evidence before the Court. The Court will take the matter under advisement. (Court Reporter Peggy Turner.) (dt) (Entered: 10/15/2008)

10/15/2008

1234 Manual filing of under seal documents received in Clerk's Office on today per Order 1232 . (tmw) (Entered: 10/15/2008)

10/15/2008

1237

Transcript filed for date of 10/15/08 before Judge William J. Haynes, Jr. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 10/24/2008. Redaction Request due 11/3/2008. Redacted Transcript Deadline set for 11/12/2008. Release of Transcript Restriction set for 1/12/2009. (tmw) (Entered: 10/16/2008)

10/16/2008

1235 Supplemental NOTICE of Filing by John B. re 1230 Notice, (Attachments: # 1 Tigh Deposition with Designations)(Bonnyman, George) Modified text on 10/21/2008 (tmw). (Entered: 10/16/2008)

10/16/2008 1236 MOTION to Clarify re 1233 Evidentiary Hearing, by John B.. (Bonnyman, George) (Entered: 10/16/2008)

10/20/2008

1238 ORDER denying as moot Defts' 1218 Motion in Limine to Exclude Undisclosed Expert Testimony, or in the Alternative to Compel Disclosure and Supplemental Deposition. Signed by District Judge William J. Haynes, Jr., on 10/20/08. (tmw) (Entered: 10/20/2008)

10/20/2008 1239 ORDER granting 1227 Motion for Leave to Exceed Page Limit. Signed by District Judge William J. Haynes, Jr., on 10/20/08. (tmw) (Entered: 10/20/2008)

10/21/2008

1240

NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Attachments: # 1 Attachment A −− Defendants' Exhibit 22, # 2 Attachment B −− Defendants' Exhibit 23, # 3 Attachment C −− Defendants' Exhibit 24, # 4 Attachment D −− Defendants' Exhibit 25, # 5 Attachment E −− Defendants' Exhibit 26, # 6 Attachment F −− Defendants' Exhibit 27, # 7 Attachment G −− Defendants' Exhibit 28, # 8 Attachment H −− Defendants' Exhibit 29, # 9 Attachment I −− Defendants' Exhibit 30, # 10 Attachment J −− Defendants' Exhibit 31, # 11 Attachment K −− Defendants' Exhibit 32, # 12 Attachment L −− Defendants' Exhibit 33, # 13 Attachment M −− Defendants' Exhibit 34)(Cooper, Charles) (Entered: 10/21/2008)

10/21/2008

1241 NOTICE of Filing by John B. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Bonnyman, George) (Entered: 10/21/2008)

10/21/2008

Note to filers re 1240 &1241 : Each exhibit's mandatory description field should be used to accurately describe the contents of your attachment (labeling as Exhibit A, B, C or 1, 2, 3 or simply Exhibit is not sufficient). It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 10/22/2008)

10/22/2008

1242 NOTICE of Filing by John B. (Attachments: # 1 Exhibit PX 79 − 11−29−06 N. Moss email to D. FitzGerald, # 2 Exhibit PX 80 − 4−23−07 N. Moss email to gshockley, # 3 Exhibit PX 81 − 4−24−07 N. Moss email to W. Kennedy)(Bonnyman, George) (Entered: 10/22/2008)

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10/28/2008 10/28/2008 10/30/2008 11/03/2008 11/04/2008 11/10/2008 11/12/2008 11/14/2008 11/14/2008 11/14/2008
11/14/2008
11/14/2008
11/17/2008

1243 OBJECTIONS to Plaintiffs' Post−Hearing Compilations filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1241 Notice (Other). (Cooper, Charles) (Entered: 10/28/2008)

1244 NOTICE of Filing by John B. re 1240 Notice. (Attachments: # 1 Exhibit PX 82 − Plaintiffs' Summary in Response to DX 32, # 2 Exhibit PX 83 − Plaintiffs' Summary in Response to DX 34)(Bonnyman, George) Modified text on 11/7/2008 (tmw). (Entered: 10/28/2008)

1245 REPLY filed by John B. re 1241 Notice, filed by John B., 1243 Objections filed by Nancy Menke, George W. Hattaway, Theresa Clarke. (Bonnyman, George) Modified text on 11/7/2008 (tmw). (Entered: 10/30/2008)

1246 OBJECTIONS to Plaintiffs' Post−Hearing Compilations filed by Nancy Menke, Theresa Clarke, George W. Hattaway re 1244 Notice. (Cooper, Charles) Modified text on 11/7/2008 (tmw). (Entered: 11/03/2008)

1247 REPLY filed by John B. re 1246 Objections filed by Nancy Menke, George W. Hattaway, Theresa Clarke, 1244 Notice, filed by John B.. (Attachments: # 1 Errata Pltfs' Exh. 82−A CORRECTED summary in reply to DX 32)(Bonnyman, George) Modified text on 11/7/2008 (tmw). (Entered: 11/04/2008)

1248 NOTICE of Filing by John B. re 1210 MOTION for Sanctions (Attachments: # 1 Errata PX 62−A Corrected Attachment A to PX 61, Defs' Objections to Pltfs' Seventh Interrogatories)(Bonnyman, George) (Entered: 11/10/2008)

Note to filer re 1248 : All documents should be filed so that they may be read without the necessity of rotation. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 11/12/2008)

1249 Pltfs' Supplemental NOTICE of Filing Rebuttal Exhibits, by John B. re 1210 MOTION for Sanctions (Bonnyman, George) Modified text on 11/17/2008 (tmw). (Entered: 11/14/2008)

1250 MOTION for Leave to File Excess Pages by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 11/14/2008)

1251

Proposed Findings of Fact and Conclusions of Law by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit A −− MacSteel, Inc. v. Eramet N. Am., # 2 Exhibit B −− Krumwiede v. Brighton, # 3 Exhibit C −− Adkins v. Wolever, # 4 Exhibit D −− Darling v. J.B. Expedited Servs., # 5 Exhibit E −− Mai Sys. Corp. v. Walbert, # 6 Exhibit F −− Eady v. Cigna Prop. &Cas. Cos., # 7 Exhibit G −− Reino de Espana v. Am Bureau of Shipping)(Cooper, Charles) (Entered: 11/14/2008)

1252

Pltfs' NOTICE of Filing Exhibits, by John B. re 1029 Order on Motion to Compel, Order on Motion to Alter Judgment, Order on Motion for Miscellaneous Relief, 1028 Memorandum &Opinion, (Attachments: # 1 Exhibit PX 87 − Defendants' Supplemental Responses to Plaintiffs' Third Requests for Admissions 11−8−07)(Johnson, Michele) Modified text on 11/17/2008 (tmw). (Entered: 11/14/2008)

1253

BRIEF entitled, "Pltfs' Proposed Findings of Fact and Conclusions of Law," filed by John B. re 1210 Motion for Sanctions. (Attachments: # 1 Appendix Appendix of Unreported Cases, # 2 Appendix Cincinnati Ins. Co. v. Mid−South Drillers Supply, # 3 Appendix Jackson v. Nissan, # 4 Appendix McLean v. Bourget's, # 5 Appendix Qualcomm v. Broadcom− Jan 07 ruling, # 6 Appendix Qualcomm v. Broadcom − March 07 ruling, # 7 Appendix Sedona Principles, # 8 Appendix Technology Recycling v. City of Taylor)(Johnson, Michele) Modified text on 11/17/2008 (tmw). (Entered: 11/14/2008)

1254

Additional Attachments to Main Document re: 1249 Notice (Other). (Attachments: # 1 Exhibit PX 84 − 2−16−07 Memo from Hartranft to Perry Re. My Docs info, # 2 Exhibit PX 85 − Bredesen Custodian Collection Log, # 3 Exhibit PX 86 − Baird Custodian Collection Log, # 4 Exhibit PX 65A − 10−13−08 Moss email to CMY Re Privilege log − ATT − 10−13−08 Privilege Log− Final v1)(Bonnyman, George) (Entered: 11/17/2008)

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11/20/2008

1255 ORDER granting 1250 Motion for Leave to File Excess Pages. Signed by District Judge William J. Haynes, Jr., on 11/20/08. (tmw) (Entered: 11/20/2008)

12/03/2008

1256 MOTION for attorney Elizabeth Bangston Hutto (PHV FEE PAID) to Appear Pro Hac Vice by John B.. (Johnson, Michele) Modified text on 12/24/2008 (tmw). (Entered: 12/03/2008)

12/03/2008

1257 CERTIFICATE OF GOOD STANDING of Attorney Elizabeth Bangston Hutto from the United States District Court of South Carolina filed by John B.. (Johnson, Michele) (Entered: 12/03/2008)

12/05/2008

Bar status for Atty Hutto of SC verified as active this date. (tmw) (Entered: 12/05/2008)

12/18/2008

1258 NOTICE of Appearance by Martin B. Bailey on behalf of Preferred Health Partnership of Tennessee, Inc. (Bailey, Martin) (Entered: 12/18/2008)

12/18/2008

1259 MOTION to Withdraw as Attorney by Preferred Health Partnership of Tennessee, Inc.. (Miller, John) (Entered: 12/18/2008)

12/22/2008

1260 ORDER granting 1259 Motion to Withdraw as Attorney. Attorney John L. Miller terminated from case. Signed by District Judge William J. Haynes, Jr on 12/22/08. (af) (Entered: 12/22/2008)

12/23/2008 1261 RECEIPT #34675005461 in the amount of $75, PHV fee for Atty Hutto, posted by pltfs re 1256 Motion to Appear Pro Hac Vice. (tmw) (Entered: 12/23/2008)

01/08/2009

1262

ORDER granting 1213 Motion to Ascertain Status of the Court's Consideration of Whether to Award Reasonable Attys' Fees and Costs to Non−party First Health Services Corp. The attys' fees issue will be decided in conjunction with the hearing on the Pltfs' motion for sanctions. Signed by District Judge William J. Haynes, Jr on 1/8/09. (tmw) (Entered: 01/08/2009)

01/30/2009

1263 NOTICE of Filing by Nancy Menke of January 2009 Semi−Annual Progress Report (Attachments: # 1 January 2009 Semi−Annual Progress Report)(Ross, Linda) (Entered: 01/30/2009)

02/02/2009

1264 MOTION entitled, "NOTICE of Filing," re Special Monitor Ronald Hedges, by Nancy Menke, Theresa Clarke, George W. Hattaway (Cooper, Charles) Modified on 2/9/2009 (tmw). (Entered: 02/02/2009)

02/03/2009

1265 ORDER granting 1256 Motion for Atty Elizabeth B. Hutto to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr on 2/3/09. (tmw) (Entered: 02/03/2009)

02/04/2009

1266 MOTION for attorney Mary Anderson (PHV FEE PAID) to Appear Pro Hac Vice by John B.. (Johnson, Michele) Modified text on 2/17/2009 (tmw). (Entered: 02/04/2009)

02/04/2009

1267 CERTIFICATE OF GOOD STANDING of Attorney Mary Anderson from the United States District Court of Northern Illinois filed by John B.. (Johnson, Michele) (Entered: 02/04/2009)

02/09/2009

Bar status for Atty Mary B. Anderson of IL verified as active this date. (tmw) (Entered: 02/09/2009)

02/13/2009

1268 RECEIPT #34675006167 in the amount of $75, PHV fee for Atty Anderson, posted by pltfs re 1266 Motion to Appear Pro Hac Vice. (tmw) (Entered: 02/17/2009)

03/05/2009

1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions by John B.. (Bonnyman, George) (Entered: 03/05/2009)

03/05/2009

1270

MEMORANDUM in Support of 1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions filed by John B. (Attachments: # 1 Exhibit PX 88 − 2−10−09 Nicole Moss letter to Gordon Bonnyman, # 2 Exhibit PX 89 2−13−09 Bonnyman ltr. to Moss, # 3 Exhibit PX 90 10−13−08 Cost−Shifting Agreement, # 4 Exhibit PX 91 3−4−09 Moss ltr. to Bonnyman)(Bonnyman, George) Modified text on 3/9/2009 (tmw). (Entered:

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03/05/2009
03/16/2009
03/16/2009 03/17/2009 03/18/2009 03/19/2009
03/26/2009 03/26/2009 03/27/2009 04/02/2009 04/02/2009
04/02/2009
04/02/2009 04/06/2009

03/05/2009)

1271

DECLARATION of Emily Einstein filed by John B. re: 1269 MOTION to Reopen Record of 10/14/08 Hearing re 1045 Motion for Sanctions. (Attachments: # 1 Appendix List of Deleted Documents from before 1−11−08, # 2 Appendix Attach. 1 to PX 92 8−2−06 email exchange − Baird and Myszka, # 3 Appendix Attach. 3 to PX 92 − 1−6−05 Myszka memo to Long, # 4 Appendix Attach. 4 to PX 92 − Myszka − Franklyn email)(Bonnyman, George) Modified text on 3/9/2009 (tmw). (Entered: 03/05/2009)

1272

Supplemental MOTION to Reopen Record re 1269 MOTION to Reopen Record, by John B. (Attachments: # 1 Exhibit PX 93 3−11−09 Nicole Moss email exchange with Gordon Bonnyman, # 2 Exhibit 3−16−09 Declaration of Thomas Tigh, # 3 Appendix Attach. 1 to PX 94 − Sample page from Exception Report)(Bonnyman, George) Modified text on 3/17/2009 (tmw). (Entered: 03/16/2009)

1273 MEMORANDUM in Support of 1272 Supplemental MOTION to Reopen Record, by John B. (Bonnyman, George) Modified text on 3/17/2009 (tmw). (Entered: 03/16/2009)

Note to filer re 1272 : Signed affidavits/declarations should be filed as separate events, not as attachments to other pleadings. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 03/17/2009)

1274 MOTION to approve proposed process for in camera review by John B.. (Johnson, Michele) (Entered: 03/18/2009)

1275

RESPONSE to Motion re 1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions and Defedants' Motion for Additional Time to Respond to Plaintiffs' Newly Profferred Exhibit 92 filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 03/19/2009)

1276 MOTION for Protective Order by John B.. (Attachments: # 1 Attachment A − 3−26−09 Joint Statement re. discovery dispute − Tigh Depo)(Johnson, Michele) (Entered: 03/26/2009)

1277 BRIEF filed by John B. re 1272 Supplemental Motion to Reopen Record. (Johnson, Michele) Modified text on 3/30/2009 (tmw). (Entered: 03/26/2009)

1278 ORDER granting 1276 Motion for Protective Order. Signed by District Judge William J. Haynes, Jr on 3/27/09. (af) (Entered: 03/27/2009)

1279 Defts' NOTICE of Filing re Pltfs' withdrawal of declaration and motion to reopen record, and Defts' not filing response at this time, by Nancy Menke, Theresa Clarke, George W. Hattaway (Cooper, Charles) Modified text on 4/3/2009 (tmw). (Entered: 04/02/2009)

1280

Pltfs' NOTICE of Withdrawal of Supplemental Motion to Reopen Record, by John B. re 1272 MOTION to Reopen Record re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions, MOTION Reopen Record, 1273 Memorandum in Support. (Bonnyman, George) Modified text on 4/3/2009 (tmw). (Entered: 04/02/2009)

1281

Corrected DECLARATION of Emily Einstein filed by John B. re: 1271 Declaration, 1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions, 1270 Memorandum in Support. (Attachments: # 1 Appendix Attachment 1 − List of Deleted Documents Prior to 1−11−08)(Bonnyman, George) Modified text on 4/3/2009 (tmw). (Entered: 04/02/2009)

1282 Pltfs' NOTICE of Filing of Corrected Declaration of Emily Einstein, by John B. re 1281 Declaration. (Bonnyman, George) Modified text on 4/3/2009 (tmw). (Entered: 04/02/2009)

1283 Joint MOTION for Extension of Time to File Response/Reply as to 1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions, 1281 Declaration, by Nancy Menke, Theresa Clarke,

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04/06/2009
04/07/2009 04/13/2009 04/21/2009 04/21/2009 04/23/2009 04/23/2009
05/05/2009

George W. Hattaway. (Attachments: # 1 Proposed Order Agreeing to Extend Time)(Cooper, Charles) (Entered: 04/06/2009)

1284

RESPONSE to Motion re 1274 MOTION to approve proposed process for in camera review filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Exhibit Index, # 2 Exhibit A −− June 26, 2008 Letter from Gregory Heyman to Nicole Moss, # 3 Exhibit B −− June 27, 2008 Email from Gregory Heyman to Nicole Moss, # 4 Exhibit C −− September 26, 2008 Letter from Nicole Moss to Gregory Heyman, # 5 Exhibit D −− December 12, 2008 Letter from Mary Anderson to Nicole Moss, # 6 Exhibit E −− December 16, 2008 Letter from Nicole Moss to Mary Anderson, # 7 Exhibit F −− February 27, 2009 Letter from Mary Anderson to Nicole Moss, # 8 Exhibit G −− March 9, 2009 Letter from Nicole Moss to Mary Anderson, # 9 Exhibit H −− March 18, 2009 Letter from Mary Anderson to Nicole Moss)(Cooper, Charles) (Entered: 04/06/2009)

1285 ORDER re 1283 Joint Motion to Extend Ddl for Defts to Respond to Pltfs' 1269 MOTION to Reopen Record and 1281 Corrected Declaration of Emily Einstein. This motion is GRANTED for the time requested. Signed by District Judge William J. Haynes, Jr on 4/7/09. (tmw) (Entered: 04/07/2009)

1286

RESPONSE to Motion re 1269 MOTION Reopen Record of 10−14−08 Hearing re 1045 MOTION for Sanctions, 1210 MOTION for Sanctions filed by Nancy Menke. (Attachments: # 1 Exhibit Attachment 1 −− Defendants' Proposed Exhibit 35 (Revised Version of Plaintiffs' Proposed Corrected Exhibit 92), # 2 Exhibit Attachment 2 −− Defendants' Proposed Exhibit 36 (Spreadsheet of Womack docs), # 3 Exhibit Attachment 3 −− Defendants' Proposed Exhibit 37 (Spreadsheet of Peterson docs), # 4 Exhibit Attachment 4 −− Defendants' Proposed Exhibit 38 (Spreadsheet of Fitzpatrick docs))(Cooper, Charles) (Entered: 04/13/2009)

1287 *DISREGARD − Atty to re−file* MOTION for Leave to re 1284 Response to Motion, 1274 MOTION to approve proposed process for in camera review by John B. (Attachments: # 1 Plaintiffs Reply Re. In Camera Review)(Johnson, Michele) Modified text on 4/21/2009 (tmw). (Entered: 04/21/2009)

1288 MOTION for Leave to File Reply re 1284 Response to Motion, 1274 MOTION to approve proposed process for in camera review by John B. (Attachments: # 1 CORRECTED Reply Re. In Camera Review)(Johnson, Michele) Modified text on 4/27/2009 (tmw). (Entered: 04/21/2009)

1289

MOTION for Leave to File Reply re 1286 Response to Motion, by John B. (Attachments: # 1 Plaintiffs CURRENT Reply re Reopening Record, # 2 4−17−09 Bonnyman email to Moss, # 3 4−20−09 Shaffer Moss email to Bonnyman)(Johnson, Michele) Modified text on 4/27/2009 (tmw). (Entered: 04/23/2009)

1290

NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway re 1286 Response to Motion,, of Revised Evidentiary Response to Plaintiffs' Motion to Reopen Record and Revised DX 38 (Attachments: # 1 Revised Defendants' Evidentiary Response to Plaintiffs' Motion to Reopen Record, and to Revise Their Proposed Findings of Fact and Conclusions of Law in Light of New Evidence, # 2 Attachment 1 to Revised Defendants' Response: Proposed DX 35, # 3 Attachment 2 to Revised Defendants' Response: Proposed DX 36, # 4 Attachment 3 to Revised Defendants' Evidentiary Response: Proposed DX 37, # 5 Attachment 4 to Revised Defendants' Response: Corrected Proposed DX 38)(Cooper, Charles) (Entered: 04/23/2009)

1291

*DISREGARD − Entered in incorrect case* Transcript filed for date of 5/4/09, before Judge Haynes. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 5/14/2009. Redaction Request due 5/26/2009. Redacted Transcript Deadline set for 6/2/2009. Release of Transcript Restriction set for 7/31/2009. (tmw) Modified text on 5/6/2009 (tmw). (Entered: 05/05/2009)

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05/08/2009 05/11/2009
05/12/2009
05/12/2009 05/18/2009 05/26/2009
06/09/2009
06/10/2009 06/11/2009 06/12/2009 06/16/2009 06/16/2009 06/18/2009 06/18/2009
06/18/2009 06/18/2009
06/18/2009

1292 Joint MOTION to Substitute Attorney by QSource. (Attachments: # 1 Proposed Order)(Biller, Stephen) (Entered: 05/08/2009)
1293 MOTION to Ascertain Status of Pending Motion to Vacate the Consent Decree and Dismiss the Case re 738 by Nancy Menke, Theresa Clarke, George W. Hattaway. (Attachments: # 1 Doe v. Briley, # 2 Brown v. Tennessee Department of Finance &Administration)(Cooper, Charles) (Entered: 05/11/2009)
Note to filer re 1292 : Pursuant to Local Rule 5.01, Certificates of Service must include the names and addresses for all persons served, whether served electronically or by other means, what was served, method of service and date of service. PLEASE FILE a conformed Certificate of Service. The Certificate of Service event is found under the Service of Process category. (tmw) (Entered: 05/12/2009)
1294 CERTIFICATE OF SERVICE by QSource re 1292 Joint MOTION to Substitute Attorney (Biller, Stephen) (Entered: 05/12/2009)
1295 ORDER granting 1292 Motion to Substitute Attorney. Added attorney Michael D. Hornback for QSource. Attorney Stephen H. Biller for QSource terminated. Signed by District Judge William J. Haynes, Jr on 5/18/09. (tmw) (Entered: 05/18/2009)
1296 RESPONSE in Opposition re 1293 MOTION to Ascertain Status of Pending Motion to Vacate the Consent Decree and Dismiss the Case re 738 MOTION to Ascertain Status of Pending Motion to Vacate the Consent Decree and Dismiss the Case re 738 filed by John B.. (Bonnyman, George) (Entered: 05/26/2009)
1297 ORDER granting 1293 Motion to Ascertain Status of Pending Motion to Vacate the Consent Decree and Dismiss the Case ( 738 ). See 1028 at p 8 and complete text of no. 9. Signed by District Judge William J. Haynes, Jr on 6/9/09. (tmw) (Entered: 06/09/2009)
1298 ORDER: Status Conference set for 6/19/2009, at 11:00 AM in Courtroom A859 before District Judge William J. Haynes Jr. Signed by District Judge William J. Haynes, Jr on 6/10/09. (tmw) (Entered: 06/10/2009)
1299 MOTION to Clarify re 1298 Order, Set Hearings by First Health Services Corporation. (Domenick, Beth) (Entered: 06/11/2009)
1300 ORDER re 1299 Motion to Clarify: Non−parties may elect to attend this conference. Signed by District Judge William J. Haynes, Jr on 6/12/09. (tmw) (Entered: 06/12/2009)
1301 ORDER granting 1266 Motion for Atty Mary Anderson to Appear Pro Hac Vice. Signed by District Judge William J. Haynes, Jr on 6/16/09. (tmw) (Entered: 06/16/2009)
Email notification to Attys Mary Anderson and Leanna Anderson re mandatory registration for a CM/ECF account. (tmw) (Entered: 06/16/2009)
1302 ORDER granting 1287 Motion for Leave to File Reply. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)
1303 ORDER granting 1288 Motion for Leave to File Reply in Support of Their Motion for Approval of Proposal for In Camera Review of Certain Docs Contained on the State's Privilege Log. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)
1304 REPLY to Response to 1274 MOTION to approve proposed process for in camera review, filed by Pltfs, per Order 1303 . (tmw) (Entered: 06/18/2009)
1305 ORDER granting 1289 Motion for Leave to File Reply in Support of Their Motion to Reopen the Record and to Revise Their Proposed Findings of Fact and Conclusions of Law in Light of New Evidence. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)
1306 ORDER granting 1058 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)

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06/18/2009 06/18/2009 06/18/2009 06/19/2009 06/20/2009
06/24/2009 06/24/2009
06/26/2009 06/26/2009 07/02/2009 07/24/2009 07/24/2009

1307 ORDER re 1236 Motion to Clarify the Status of Admitted Exhibits. This motion is GRANTED so that joint Exhibits 1 through 11 are ADMITTED and Pltfs' Exhibit No. 57 is WITHDRAWN. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)

1308 ORDER re 1264 MOTION/NOTICE of Filing. The Court thanks Mr. Hedges for his service, but a monitor is no longer necessary on the discovery issues. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)

1309 ORDER granting 1269 Motion to Reopen Record and to Amend Their Proposed Findings of Fact and Conclusions of Law in Light of New Evidence. Signed by District Judge William J. Haynes, Jr on 6/18/09. (tmw) (Entered: 06/18/2009)

1310 Minute Entry for proceedings held before District Judge William J. Haynes, Jr: Status Conference held on 6/19/2009. Parties are instructed to summarize all necessary pending matters in one filing within one week. (Court Reporter Peggy Turner.) (tmw) (Entered: 06/19/2009)

1311

Transcript filed for dates of 6/19/09, before Judge Haynes. Court Reporter/Transcriber: Peggy G. Turner, Telephone number: (615) 726−4893, E−Mail Address: Peggy_Turner@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 6/30/2009. Redaction Request due 7/8/2009. Redacted Transcript Deadline set for 7/20/2009. Release of Transcript Restriction set for 9/15/2009. (tmw) (Entered: 06/22/2009)

1312 MOTION Motion for award of fees and expenses to former special master and current technical advisor, Richard A Carter, MD, MPH by Richard A. Carter. (Carter, Richard) (Entered: 06/24/2009)

1313

NOTICE of Filing Docs in Support of 1312 MOTION for award of fees and expenses to former special master and current technical advisor, Richard A Carter, MD, MPH, by Richard A. Carter. (Attachments: # 1 Exhibit Document 667 Order on motion to clarify, # 2 Exhibit Part 1 Special Master Invoice, # 3 Exhibit Part 2 Special Master Invoice: Time, # 4 Exhibit Part 1 Technical Advisor Fee Letter, # 5 Exhibit Part 2 Technical Advisor Invoice: Time, # 6 Exhibit Document #700 Objections to Special Master Invoice, # 7 Exhibit Doc #729 Defendants Objections to Technical Advisor Invoice, # 8 Exhibit Document #807 Order to pay Technical Advisors, # 9 Exhibit Letter requesting Special Master and Technical Advisor fees, # 10 Exhibit Document #842 Defendants response former special master and current technical advisors request for fees, # 11 Exhibit Document #679 Order to Newacheck to file response to Defendants objections, # 12 Exhibit Response of former special master and technical advisors to defendants objections)(Carter, Richard) Modified text on 6/26/2009 (tmw). (Entered: 06/24/2009)

1314 DISCOVERY STATEMENT by Nancy Menke, Theresa Clarke, George W. Hattaway.(Cooper, Charles) (Entered: 06/26/2009)

1315 STATUS REPORT by John B.. (Attachments: # 1 Appendix Attachment 1 − Plaintiffs' Summary of Outstanding Motions &Evidentiary Disputes)(Bonnyman, George) (Entered: 06/26/2009)

1316

ORDER re Response of Former Special Master and Technical Advisor Richard Carter, M.D. to Objs to Invoices. Upon review of Dr. Carter's expenses, the Defts' objs are OVERRULED. The Defts shall pay the invoices at issue as submitted by Dr. Carter. Signed by District Judge William J. Haynes, Jr on 7/2/09. (tmw) (Entered: 07/06/2009)

1317 Letter from Diane Schnur, Case Mgr. that the petition for writ of mandamus or prohibition has been docketed as case number 09−5852. (Attachments: # 1 Petition for Writ of Mandamus to the MD/TN)(km) (Entered: 07/24/2009)

1318 Pltfs' Consolidated and Revised Proposed Findings of Fact and Conclusions of Law, by John B. (Johnson, Michele) Modified text on 7/27/2009 (tmw). (Entered: 07/24/2009)

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07/24/2009

1319 Defts' Revised Proposed Findings of Fact and Conclusions of Law, by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified text on 7/27/2009 (tmw). (Entered: 07/24/2009)

07/30/2009

1320 NOTICE of Filing by Nancy Menke, Theresa Clarke, George W. Hattaway (Cooper, Charles) (Entered: 07/30/2009)

07/31/2009

1321 MOTION to Withdraw as Attorney by John B.. (Yerian, Christina) (Entered: 07/31/2009)

07/31/2009

1322 NOTICE of Filing by Nancy Menke of July 2009 Semi−Annual Progress Report (Attachments: # 1 July 2009 Semi−Annual Progress Report)(Ross, Linda) (Entered: 07/31/2009)

08/12/2009

1323 ORDER granting 1321 Motion to Withdraw as Attorney. Christina M. Yerian terminated. Signed by District Judge William J. Haynes, Jr on 8/12/09. (tmw) (Entered: 08/12/2009)

09/08/2009

1324 ORDER re Pltfs' 1272 Supplemental Motion to Reopen Record. This motion was withdrawn, 1279 , and is DENIED as moot. Signed by District Judge William J. Haynes, Jr on 9/8/09. (tmw) (Entered: 09/08/2009)

09/08/2009

1325 ORDER re 1312 Motion for Award of Fees and Expenses. This motion was granted. See 1316 . Signed by District Judge William J. Haynes, Jr on 9/8/09. (tmw) (Entered: 09/08/2009)

09/15/2009

1326

ORDER of USCA: In this petition for a writ of mandamus, the State asks that we direct the district court to rule upon that Rule 60(b)(5) motion. It therefore is ORDERED that the district court state in writing, within 60 days of the entry of this order, any reason that this petition should not be granted. In lieu of a response, the district court may submit its ruling on the States pending motion to vacate. (Attachments: # 1 Cover Letter)(km) Modified text on 10/1/2009 (km). Modified text on 10/1/2009 (km). (Entered: 09/15/2009)

09/15/2009 1327 MOTION for Leave to leave to Supplement Reply to Motion to Vacate Consent Decree by John B.. (Bonnyman, George) (Entered: 09/15/2009)

09/18/2009 1328 MEMORANDUM OF THE COURT. Signed by District Judge William J. Haynes, Jr on 9/18/09. (af) (Entered: 09/18/2009)

09/18/2009 1329 ORDER denying 738 Motion to Vacate. Signed by District Judge William J. Haynes, Jr on 9/18/09. (af) (Entered: 09/18/2009)

09/21/2009

1330 ORDER denying as moot Pltfs' 1327 Motion for Leave to File Supplemental Reply in Opposition to Motion to Vacate. Signed by District Judge William J. Haynes, Jr on 9/21/09. (tmw) (Entered: 09/21/2009)

09/22/2009

1331 NOTICE OF APPEAL as to 1329 Order on Motion to Vacate by Nancy Menke, Theresa Clarke, George W. Hattaway. Filing fee $ 455, receipt number 06500000000000749969. (Attachments: # 1 Exhibit A −− Memorandum, # 2 Exhibit B −− Order)(Cooper, Charles) (Entered: 09/22/2009)

10/01/2009

1332

ORDER from USCA: In a prior order, we directed the district court to state in writing within 60 days any reason that this petition for a writ of mandamus should not be granted, or to submit its ruling on the petitioners' pending motion to vacate. On September 17, 2009, the district court entered an order and a memorandum that denies the petitioners' motion. The court has submitted that ruling along with its response. The petitioners now suggest that this petition is moot. We agree. To the extent that this petition sought to compel a ruling on the motion to vacate, there is no longer any relief that this court can grant. Further, the petitioners have appealed from the September 17 order and may raise all appropriate issues in that appeal. Therefore, this petition is DISMISSED as moot (Attachments: # 1 Cover Letter)(km) (Entered: 10/01/2009)

11/20/2009 1333 MOTION to Withdraw by W.S.W. Chang as counsel for Plaintiffs by John B.. (Bonnyman, George) (Entered: 11/20/2009)

11/23/2009 1334 ORDER granting 1333 Motion by Attorney William S.W. Chang to Withdraw as counsel for the plaintiffs. Signed by District Judge William J. Haynes, Jr on

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02/03/2010 02/03/2010
02/03/2010 02/03/2010 02/03/2010

11/23/09. (af) (Entered: 11/23/2009)

1335 MOTION to Ascertain Status of re 1045 , 1210 , 1328 , 1052 Plaintiffs' Sanctions Motions by John B.. (Johnson, Michele) (Entered: 01/05/2010)

1336 MOTION to Withdraw as Attorney by Gregory Heyman by John B.. (Bonnyman, George) (Entered: 01/06/2010)

1337 ORDER granting 1336 Motion to Withdraw as Attorney. Attorney Gregory Todd Heyman terminated. Signed by District Judge William J. Haynes, Jr on 1/11/10. (tmw) (Entered: 01/11/2010)

1338 SEALED MEMORANDUM. An appropriate Order is filed herewith. Signed by District Judge William J. Haynes, Jr on 1/14/10. (tmw) (Entered: 01/14/2010)

1339 SEALED ORDER. This Order and the accompanying Memorandum shall be filed under seal pending further Order of the Court. Signed by District Judge William J. Haynes, Jr on 1/14/10. (tmw) (Entered: 01/14/2010)

Docket Entry Nos. 1338 and 1339 emailed to all attorneys of record this date. (tmw) (Entered: 01/14/2010)

1340 ORDER denying as moot 1335 Motion to Ascertain Status of Sanctions Motions. Signed by District Judge William J. Haynes, Jr on 1/15/10. (tmw) (Entered: 01/15/2010)

1341

ORDER: Upon review of the file, the Court found errors and omissions in its prior Memorandum of 10/9/2007 1028 . The attached Memorandum corrects those errors and omissions, but the underlying substance of the Memorandum remains unchanged. Thus, the attached Memorandum shall be substituted for Docket Entry No. 1028 . Signed by District Judge William J. Haynes, Jr on 1/27/2010. (Attachments: # 1 Memorandum pages 1−70, # 2 Memorandum pages 71−130, # 3 Memorandum pages 131−186, # 4 Order)(dt) (Entered: 01/28/2010)

1342 NOTICE of Filing by Nancy Menke of January 2010 Semi−Annual Progress Report (Attachments: # 1 January 2010 Semi−Annual Progress Report)(Ross, Linda) (Entered: 01/28/2010)

1343 MOTION for Leave to File Document Under Seal by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 02/03/2010)

1344 Sealed Document Costs and Attorneys' Fees Notice filed by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 02/03/2010)

1345

Sealed Document Declaration of Mark Hooton filed by BlueCross Blueshield of Tennessee. (Attachments: # 1 Exhibit A − Part 1 of 5, # 2 Exhibit A − Part 2 of 5, # 3 Exhibit A − Part 3 of 5, # 4 Exhibit A − Part 4 of 5, # 5 Exhibit A − Part 5 of 5, # 6 Exhibit B, # 7 Exhibit C − Part 1 of 6, # 8 Exhibit C − Part 2 of 6, # 9 Exhibit C − Part 3 of 6, # 10 Exhibit C − Part 4 of 6, # 11 Exhibit C − Part 5 of 6, # 12 Exhibit C − Part 6 of 6, # 13 Exhibit D)(Hubbard, William) (Entered: 02/03/2010)

1346 NOTICE of Appearance by Taylor A. Cates on behalf of Memphis Managed Care Corporation (Cates, Taylor) (Entered: 02/03/2010)

1347 Sealed Document. NOTICE of Filing by Memphis Managed Care Corporation (Attachments: # 1 Exhibit Affidavit of Steven H. Burkett)(Placed under seal by Clerk's Office per atty's request via phone)(Cates, Taylor) Modified text on 2/4/2010 (tmw). (Entered: 02/03/2010)

1348 MOTION for Leave to File Document Under Seal by First Health Services Corporation. (Hickman, Scott) (Entered: 02/03/2010)

1349 Sealed Document Application of Non−Party First Health Services Corporation for Attorneys' Fees, Costs and Expenses filed by First Health Services Corporation. (Hickman, Scott) (Entered: 02/03/2010)

1350 Sealed Document Declaration of Scott L. Vernick filed by First Health Services Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hickman, Scott) (Entered: 02/03/2010)

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02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010
02/03/2010 02/03/2010
02/03/2010 02/03/2010 02/03/2010 02/03/2010

1351 MOTION for Leave to File Document Under Seal by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 02/03/2010)

1352 Sealed Document Declaration of Scott Hickman filed by First Health Services Corporation. (Attachments: # 1 Exhibit A)(Hickman, Scott) (Entered: 02/03/2010)

1353 Sealed Document Declaration of William L. Harbison filed by First Health Services Corporation. (Attachments: # 1 Exhibit A)(Hickman, Scott) (Entered: 02/03/2010)

1354 Sealed Document Declaration of Thomas P. Wehrle filed by First Health Services Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hickman, Scott) (Entered: 02/03/2010)

1355 Sealed Document filed by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 02/03/2010)

1356 Sealed Document filed by Doral Dental of Tennessee, LLC. (Walker, Kathryn) (Entered: 02/03/2010)

1357 MOTION for Leave to File Document Under Seal by John B.. (Johnson, Michele) (Entered: 02/03/2010)

1358 MOTION for Leave to File Document Under Seal by Premier Behavioral Systems of Tennessee, LLC. (Webb, Christopher) (Entered: 02/03/2010)

1359 Sealed Document Application for Attorneys Fees and Expenses Pursuant to January 14, 2010 Order filed by John B.. (Johnson, Michele) (Entered: 02/03/2010)

1360

Sealed Document Declaration of Gordon Bonnyman filed by John B.. (Attachments: # 1 Exhibit AA, # 2 Exhibit BB, # 3 Exhibit CC, # 4 Exhibit DD, # 5 Exhibit EE, # 6 Exhibit FF, # 7 Exhibit GG, # 8 Exhibit A, # 9 Exhibit B, # 10 Exhibit C, # 11 Exhibit D, # 12 Exhibit E, # 13 Exhibit F, # 14 Exhibit G, # 15 Exhibit H, # 16 Exhibit I, # 17 Exhibit J, # 18 Exhibit K, # 19 Exhibit L, # 20 Exhibit M, # 21 Exhibit N, # 22 Exhibit O, # 23 Exhibit P, # 24 Exhibit Q, # 25 Exhibit R, # 26 Exhibit S, # 27 Exhibit T, # 28 Exhibit U)(Johnson, Michele) (Entered: 02/03/2010)

1361 Sealed Document filed by Premier Behavioral Systems of Tennessee, LLC. (Attachments: # 1 Exhibit Affidavit of Charles B. Welch, Jr.)(Webb, Christopher) (Entered: 02/03/2010)

1362

Sealed Document Declaration of Vickie Reznik filed by John B.. (Attachments: # 1 Exhibit A −− V Reznik Resume, # 2 Exhibit B −− KE Attorneys Fees, # 3 Exhibit C −− KE Associate Resumes, # 4 Exhibit D −− KE Attorney Expenses, # 5 Exhibit E −− KE Expert Expenses, # 6 Exhibit F −− KE Storage Expenses, # 7 Exhibit G −− Declaration of S Ohri, # 8 Exhibit Exhibit H −− Exhibit A to Ohri Declaration)(Johnson, Michele) (Entered: 02/03/2010)

1363 Sealed Document Declaration of Robert T. Joseph filed by John B.. (Attachments: # 1 Ex A − RJoseph Resume, # 2 Ex B − SNR Fees, # 3 Ex C − SNR Resumes, # 4 Ex D − Other Atty Resumes, # 5 Ex E − Expenses)(Johnson, Michele) (Entered: 02/03/2010)

1364 Sealed Document Brief in Support of Attorneys.Fees Application filed by John B.. (Attachments: # 1 Exh.1 − Grier Fees Ruling 8−13−09, # 2 Exh.2 − Day Declaration, # 3 Exh.3 − MacLean Declaration, # 4 Exh.4 − Walker Declaration)(Johnson, Michele) (Entered: 02/03/2010)

1365 Sealed Document Notice of Filing filed by John B.. (Attachments: # 1 Exh. A, # 2 Exh. B, # 3 Exhibit C, # 4 Exh. D, # 5 Exh. E, # 6 Exh. F, # 7 Exh. G, # 8 Exh. H, # 9 Exh. I, # 10 Exh. J)(Johnson, Michele) Modified text on 2/4/2010 (tmw). (Entered: 02/03/2010)

1366 MOTION for Leave to File Document Under Seal by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 02/03/2010)

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 148 of 170

02/03/2010
02/03/2010
02/03/2010 02/03/2010 02/03/2010 02/03/2010
02/04/2010 02/04/2010 02/04/2010 02/04/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010
02/05/2010 02/08/2010 02/09/2010

1367 Sealed Document Statement Regarding Attorneys' Fees and Costs filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 02/03/2010)
1368 Sealed Document Declaration of John S. Hicks filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Attachments: # 1 Exhibit A − Statements)(Hicks, John) (Entered: 02/03/2010)
1369 NOTICE of Appearance by John S. Hicks on behalf of Unison Health Plan of Tennessee, Inc. (Hicks, John) (Entered: 02/03/2010)
1370 MOTION for Leave to File Document Under Seal by Unison Health Plan of Tennessee, Inc.. (Hicks, John) (Entered: 02/03/2010)
1371 Sealed Document Statement Regarding Attorneys' Fees and Costs filed by Unison Health Plan of Tennessee, Inc.. (Hicks, John) (Entered: 02/03/2010)
1372 Sealed Document Declaration of David W. Thomas filed by Unison Health Plan of Tennessee, Inc.. (Attachments: # 1 Exhibit A − Summary of fees and expenses)(Hicks, John) (Entered: 02/03/2010)
1373 MOTION to Seal Document 1347 Notice (Other), Notice (Other) by Memphis Managed Care Corporation. (Cates, Taylor) (Entered: 02/04/2010)
1374 MOTION to Seal Document by John B.. (Bonnyman, George) (Entered: 02/04/2010)
1375 Sealed Document filed by John B.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Bonnyman, George) (Entered: 02/04/2010)
1376 Sealed Document filed by John B.. (Bonnyman, George) (Entered: 02/04/2010)
1377 ORDER granting 1343 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1378 ORDER granting 1348 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1379 ORDER granting 1351 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1380 ORDER granting 1357 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1381 ORDER granting 1358 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1382 ORDER granting 1366 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1383 ORDER granting 1370 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/05/2010)
1384 Sealed Document Notice of Appearance filed by Nancy Menke. (Barrett, George) (Entered: 02/05/2010)
1385 MOTION for Leave to to File Under Seal by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) (Entered: 02/05/2010)
1386 Sealed Document Defendants' Motion and Supporting Memorandum for Stay Pending Appeal filed by Nancy Menke, Theresa Clarke, George W. Hattaway. (Cooper, Charles) Modified on 2/19/2010 (af). (Entered: 02/05/2010)
1388 ORDER granting 1374 Motion to File Documents Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/08/2010)
1387 ORDER granting 1373 Motion to File Under Seal. Signed by District Judge William J. Haynes, Jr on 2/5/10. (tmw) (Entered: 02/08/2010)
1389 Sealed Document filed by John B.. (Johnson, Michele) (Entered: 02/09/2010)

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 149 of 170

02/10/2010 02/10/2010

1390 MOTION for Leave to File Document Under Seal by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 02/10/2010)
1391 Sealed Document Notice of Filing Corrected Exhibit filed by BlueCross Blueshield of Tennessee. (Attachments: # 1 Exhibit A (Corrected))(Hubbard, William) (Entered: 02/10/2010)

02/10/2010 1392 Sealed Document filed by John B.. (Johnson, Michele) (Entered: 02/10/2010)

02/10/2010

1393 SEALED ORDER. Signed by District Judge William J. Haynes, Jr on 2/10/10. (cc: all attys of record via email) (tmw) (Entered: 02/10/2010)

02/11/2010 02/11/2010
02/11/2010 02/11/2010

1394 MOTION for Reconsideration re 1341 Order by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified on 2/19/2010 (af). (Entered: 02/11/2010)
1395 *FILED IN ERROR−ATTY TO RE−FILE CORRECTED MEMORANDUM* MEMORANDUM in Support of 1394 MOTION for Reconsideration re 1341 Order,, filed by BlueCross Blueshield of Tennessee. (Hubbard, William) Modified Text on 2/11/2010 (dt). (Entered: 02/11/2010)
1396 MEMORANDUM in Support of 1394 MOTION for Reconsideration re 1341 Order,, filed by BlueCross Blueshield of Tennessee. (Hubbard, William) (Entered: 02/11/2010)
1397 ORDER granting 1390 Motion for Leave to File Document Under Seal. Signed by District Judge William J. Haynes, Jr on 2/11/10. (tmw) (Entered: 02/11/2010)

02/17/2010 1398 Sealed Document filed by John B.. (Attachments: # 1 Exhibit Email exchange re. cost of inspections)(Johnson, Michele) (Entered: 02/17/2010)

02/17/2010 02/17/2010
02/17/2010 02/17/2010 02/18/2010

1399 MOTION to Seal by Cooper &Kirk. (Cooper, Charles) (Entered: 02/17/2010)
1400 Sealed Document filed by Cooper &Kirk. (Attachments: # 1 Proposed Brief, # 2 Exhibit A, # 3 Addendum of Unpublished Cases)(Cooper, Charles) (Entered: 02/17/2010)
1401 MOTION to Seal Document by Nancy Menke. (Ross, Linda) (Entered: 02/17/2010)
1402 Sealed Document Response in Opposition filed by Nancy Menke. (Ross, Linda) (Entered: 02/17/2010)
1403 MOTION for Extension of Time to File Response/Reply as to 1028 Memorandum Opinion of the Court, 1395 Memorandum in Support, 1341 Order,, 1394 MOTION for Reconsideration re 1341 Order,, by John B.. (Johnson, Michele) (Entered: 02/18/2010)

02/18/2010 1404 ORDER denying as moot 1389 Motion for Order. Signed by District Judge William J. Haynes, Jr on 2/18/10. (tmw) (Entered: 02/18/2010)

02/18/2010 02/19/2010
02/19/2010 02/19/2010 02/19/2010

1405 ORDER granting 1399 Motion For Leave to File Under Seal. Signed by District Judge William J. Haynes, Jr on 2/18/10. (tmw) (Entered: 02/18/2010)

1406

ORDER of USCA as to 1331 Notice of Appeal, filed by Nancy Menke, George W. Hattaway, Theresa Clarke: The motion to expedite and to exceed the page limitation is GRANTED. The motion to file a notice of no opposition is DENIED. The motion for a stay of all proceedings in the district court pending appeal is GRANTED. (Attachments: # 1 Cover Letter)(km) (Entered: 02/19/2010)

1407 ORDER granting 1385 Motion for Leave to file Motion for Stay Pending Appeal and Supporting Memorandum (DE 1386) under seal. Signed by District Judge William J. Haynes, Jr on 2/19/10. (af) (Entered: 02/19/2010)

1408 ORDER granting 1401 Motion to Seal Response in Opposition (DE 1402) to Pltfs' and Managed Care Contractor's Requests for Attorneys' Fees. Signed by District Judge William J. Haynes, Jr on 2/19/10. (af) (Entered: 02/19/2010)

1409 ORDER granting 1403 Motion for Extension of Time to 3/22/10 to File Response to the Motion for Reconsideration filed 2/11/10 (DE 1394). Signed by District Judge William J. Haynes, Jr on 2/19/10. (af) (Entered: 02/19/2010)

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 150 of 170

02/23/2010 02/24/2010 03/10/2010 03/15/2010 04/20/2010
04/20/2010
04/21/2010 04/26/2010 04/27/2010 04/29/2010 07/30/2010 11/30/2010 11/30/2010 12/16/2010 12/16/2010

1410 NOTICE of Appearance by Christopher E. Coleman on behalf of John B. (Coleman, Christopher) (Entered: 02/23/2010)

Bar status of Atty Christopher E. Coleman of TN verified as active this date. (tmw) (Entered: 02/24/2010)

1411 NOTICE of Appearance by Sonya R. Smith and George T. Lewis on behalf of Preferred Health Partnership of Tennessee, Inc. (Smith, Sonya) Modified text on 3/15/2010 (tmw). (Entered: 03/10/2010)

Bar status of Attys Sonya R. Smith and George T. Lewis of TN verified as active this date. (tmw) (Entered: 03/15/2010)

1412

Transcript filed for date of 3/9/2007, before Judge William J. Haynes Jr.. Court Reporter/Transcriber: Peggy Turner, 615−726−4893, peggy_turner@tnmd.uscourts.gov. 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. Intent to Request Transcript Redaction due 4/27/2010. Redaction Request due 5/11/2010. Redacted Transcript Deadline set for 5/21/2010. Release of Transcript Restriction set for 7/19/2010. (tmw) (Entered: 04/20/2010)

1413

Transcript filed for date of 3/23/2007, before Judge William J. Haynes Jr.. Court Reporter/Transcriber: Peggy Turner, 615−726−4893, peggy_turner@tnmd.uscourts.gov. 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. Intent to Request Transcript Redaction due 4/27/2010. Redaction Request due 5/11/2010. Redacted Transcript Deadline set for 5/21/2010. Release of Transcript Restriction set for 7/19/2010. (tmw) (Entered: 04/20/2010)

1414 MOTION to Withdraw as Attorney by Memphis Managed Care Corporation. (Cates, Taylor) (Entered: 04/21/2010)

1415 ORDER granting 1414 Motion to Withdraw as Attorney. Attorney David H. Lillard terminated. Signed by District Judge William J. Haynes, Jr on 4/26/10. (tmw) (Entered: 04/26/2010)

1416 Sealed Document filed by John B.. (Attachments: # 1 Attachment Plaintiffs' Letter)(Johnson, Michele) (Entered: 04/27/2010)

1417 Sealed Document filed by John B.. (Attachments: # 1 Exhibit 1 − Email exchange, # 2 Exhibit 2 − Pltfs Letter)(Johnson, Michele) (Entered: 04/29/2010)

1418 NOTICE of Filing by Nancy Menke of July 2010 Semi−Annual Progress Report (Attachments: # 1 July 2010 Semi−Annual Progress Report)(Ross, Linda) (Entered: 07/30/2010)

1419 USCA OPINION/ JUDGMENT: It is ORDERED that the decision of the district court is REVERSED IN PART, and the case is REMANDED for reassignment and further proceedings consistent with the opinion of this court. (Mandate to issue) (Attachments: # 1 Cover Letter)(ab) (Entered: 11/30/2010)

Appeal Terminated re 1331 Notice of Appeal, filed by Nancy Menke, George W. Hattaway, Theresa Clarke, 1089 Notice of Appeal filed by Nancy Menke, George W. Hattaway, Theresa Clarke. (ab) (Entered: 11/30/2010)

1420 USCA AMENDED OPINION/JUDGMENT: It is ORDERED that the decision of the district court is VACATED IN PART, and the case is REMANDED for reassignment and further proceedings consistent with the opinion of this court. (Attachments: # 1 Cover Letter)(ab) (Entered: 12/16/2010)

1421

ORDER: I hereby recuse myself in the above−styled action. This case shall be returned to the Honorable Todd J. Campbell, Chief Judge, for reassignment. It is so ORDERED. Case reassigned to District Judge Aleta A. Trauger for all further proceedings. District Judge William J. Haynes, Jr no longer assigned to case. Signed by District Judge William J. Haynes, Jr on 12/16/10. (tmw) (Entered: 12/16/2010)

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 151 of 170

12/17/2010

1422

ORDER: I hereby recuse myself in this case. The file shall be returned to the Clerk for reassignment to another judge. It is so ORDERED. Case reassigned to Chief Judge Todd J. Campbell for all further proceedings. District Judge Aleta A. Trauger no longer assigned to case. Signed by District Judge Aleta A. Trauger on 12/17/10. (tmw) (Entered: 12/17/2010)

12/17/2010

1423 ORDER: I hereby recuse myself from this action. IT IS SO ORDERED. Case reassigned to Senior Judge Thomas Wiseman for all further proceedings. Chief Judge Todd J. Campbell no longer assigned to case. Signed by Chief Judge Todd J. Campbell on 12/17/10. (tmw) (Entered: 12/17/2010)

12/23/2010

1424 SEALED ORDER re 1386 SEALED MOTION filed by Nancy Menke, George W. Hattaway, Theresa Clarke. Signed by Senior Judge Thomas Wiseman on 12/22/10. (rd) (Entered: 12/23/2010)

01/10/2011 1425 MANDATE of USCA. (Attachments: # 1 Cover Letter)(ab) (Entered: 01/12/2011)

01/18/2011

1426

ORDER: Pursuant to the Sixth Circuit's directive, the parties are hereby ORDERED to submit supplemental briefs on these issues outlined by the Sixth Circuit and herein. Because most if not all of these issues have already been briefed for purposes of the appeal and in support of prior motions, Defendants, as the original proponents of the motion to vacate the Consent Decree, shall submit their brief by or before the close of business on Tuesday, February 1, 2011. Plaintiffs' response brief shall be submitted no later than Tuesday, February 8, 2011. As far as the Court can ascertain, the only outstanding actual motion currently pending in this matter is non−party BlueCross BlueShield of Tennessee's Rule 60(b)(1) Motion for Relief from, and, Alternatively, Motion to Reconsider the Court's October 9−10, 2007 and January 28, 2010 Memoranda and Orders (Doc. No. 1394 ). Plaintiffs shall submit their response in opposition to that motion, or indicate that they do not oppose the motion, no later than Tuesday, February 1, 2011. Further discovery is STAYED pending determination of these remaining issues. Once these issues have been resolved, a scheduling order will be worked out providing for the expedited resolution of any remaining discovery issues, and a trial date fixed. Signed by Senior Judge Thomas Wiseman on 1/18/11. (tmw) (Entered: 01/18/2011)

01/28/2011

1427 NOTICE of Filing by Mark Emkes of January 2011 Semi−Annual Progress Report (Attachments: # 1 January 2011 Semi−Annual Progress Report)(Ross, Linda) (Entered: 01/28/2011)

02/01/2011

1428 Supplemental BRIEF filed by Theresa Clarke, Mark Emkes, George W. Hattaway re 738 Motion to Vacate. (Cooper, Charles) Modified text on 2/2/2011 (tmw). (Entered: 02/01/2011)

02/01/2011

1429

RESPONSE to Motion re 1394 MOTION for Reconsideration re 1341 Order filed by John B.. (Attachments: # 1 Attachment Daniels v. Menke (Apr. 22, 1998), # 2 Attachment Tenn. R. &Regs. 1200−13−13−.04, # 3 Attachment VSHP Contractor Risk Agreement, # 4 Attachment Children's Hospital of Philadelphia v. Horizon NJ (E.D. Pa. 2008), # 5 Attachment Tenn. R. &Regs. 1200−13−13−.06, # 6 Attachment TennCare TSOP Addenda, # 7 Attachment Tenn. R. &Regs. 1200−13−13−.11)(Coleman, Christopher) (Entered: 02/01/2011)

02/08/2011 1430 MOTION for Leave to File Excess Pages by John B.. (Bonnyman, George) (Entered: 02/08/2011)

02/08/2011

1431

RESPONSE in Opposition re 1394 MOTION for Reconsideration, filed by John B. (Attachments: # 1 Exhibit HHS Letter re. TennCare Waiver Terms, # 2 Exhibit Doc. No. 1 − Complaint, # 3 Exhibit Doc. No. 12 − Consent Decree, # 4 Exhibit Doc. No. 818 − 3/11/98 Fairness Hearing Transcript, # 5 Exhibit Affordable Care Act Section 2304 legislative history, # 6 Exhibit Doc. No. 25 − DeMuro Report)(Johnson, Michele) Modified text on 2/9/2011 (tmw). (Entered: 02/08/2011)

02/10/2011 1432 ORDER: Pltfs' 1430 Motion to Exceed Page Limit is GRANTED. Signed by Senior Judge Thomas Wiseman on 2/10/11. (rd) (Entered: 02/10/2011)

02/11/2011 1433 MOTION for Leave to File Reply Brief re 1429 Response to Motion,, by BlueCross Blueshield of Tennessee. (Attachments: # 1 Attachment Reply Brief, # 2

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Exhibit A − Excerpts of Contractor Risk Agreement, # 3 Exhibit B − Excerpts of TennCare Rules &Regulations)(Hubbard, William) (Entered: 02/11/2011)

02/14/2011

1434 NOTICE of Hearing: Status Conference set for 2/23/2011, at 10:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. (tmw) (Entered: 02/14/2011)

02/14/2011

1435 ORDER denying 1433 Motion for Leave to File Reply Brief. Signed by Senior Judge Thomas Wiseman on 2/14/11. (tmw) (Entered: 02/14/2011)

02/15/2011

1436 NOTICE of Hearing: Status Conference AND ORAL ARGUMENT ON DEFTS' MOTION TO VACATE THE CONSENT DECREE set for 2/23/2011, at 10:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. (tmw) (Entered: 02/15/2011)

02/15/2011

1437 MOTION for attorney(s) Andrew R. Dunlap to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−1025119) by John B.. (Attachments: # 1 Attachment Certificate of Good Standaing for Andrew R. Dunlap)(Coleman, Christopher) (Entered: 02/15/2011)

02/15/2011

1438 MOTION for Leave to File a Reply Brief re 738 MOTION to Vacate the Consent Decree &Dismiss the Case by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Exhibit A − Reply in Support of Motion to Vacate the Consent Decree)(Kirk, Michael) (Entered: 02/15/2011)

02/16/2011

Bar status of Atty Andrew R. Dunlap of NY verified as active this date. (tmw) (Entered: 02/16/2011)

02/17/2011

1439

ORDER: Before the Court is the Motion For Leave to Appear Pro Hac Vice on behalf of the Plaintiffs, 1437 . The Plaintiffs already have lawyers from New York, California, Georgia, Illinois, and Missouri in addition to the lawyers and support personnel of the Justice Center. Fees will be awarded at some point in this case. The Court, therefore, believes it has a responsibility not to increase those fees from the public fisc more than is necessary. The Movant will appear at the motion hearing set for February 23 on this motion as well and will show cause why an additional lawyer is necessary. IT IS SO ORDERED. Signed by Senior Judge Thomas Wiseman on 2/17/11. (tmw) (Entered: 02/17/2011)

02/17/2011 1440 ORDER granting 1438 Motion for Leave to File Reply Brief. Signed by Senior Judge Thomas Wiseman on 2/17/11. (tmw) (Entered: 02/17/2011)

02/17/2011

1441 MOTION to Withdraw as Attorney Everette L. Doffermyre, Kimberly Jean Johnson and Ralph I. Knowles, Jr. by John B.. (Coleman, Christopher) (Entered: 02/17/2011)

02/18/2011

1442 MOTION to Withdraw as Attorney Junaid Khalil, Albert Howard Kass, Vanessa C. Singh, William S.W. Chang, Jeffrey S. Goldman by John B.. (Coleman, Christopher) (Entered: 02/18/2011)

02/18/2011 1443 NOTICE by United States of America Department of Justice re 1428 Brief (non−appeal) STATEMENT OF INTEREST (Raish, Anne) (Entered: 02/18/2011)

02/18/2011 1444 MOTION to Withdraw as Attorney Patricia Gunn by John B.. (Coleman, Christopher) (Entered: 02/18/2011)

02/18/2011

1445

Supplemental MOTION for attorney(s) Katherine L. McDaniel to Appear Pro Hac Vice and Response to the Court's Order to Show Cause (paid $75 PHV fee; receipt number 0650−1027662) by John B.. (Attachments: # 1 Attachment Certificate of Good Standing for Katherine L. McDaniel)(Coleman, Christopher) (Entered: 02/18/2011)

02/21/2011

1446 ORDER granting 1441 Motion to Withdraw as Attorney. Attorneys Ralph I. Knowles, Jr; Everette L. Doffermyre and Kimberly Jean Johnson terminated. Signed by Senior Judge Thomas Wiseman on 2/21/11. (tmw) (Entered: 02/22/2011)

02/22/2011

1447 ORDER granting 1442 Motion to Withdraw as Attorney. Attorneys Junaid Khalil; Vanessa C. Singh; William S. W. Chang, Jeffrey S. Goldman and Albert H. Kass terminated. Signed by Senior Judge Thomas Wiseman on 2/22/11. (tmw) (Entered:

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02/22/2011 02/22/2011 02/23/2011 02/23/2011 02/23/2011 02/24/2011 02/24/2011
02/24/2011
02/25/2011
02/25/2011 03/01/2011

02/22/2011)

1448 ORDER granting 1444 Motion to Withdraw as Attorney. Attorney Patricia C. Gunn terminated. Signed by Senior Judge Thomas Wiseman on 2/22/11. (tmw) (Entered: 02/22/2011)

Bar status of Atty Katherine Leigh McDaniel of NY verified as active this date. (tmw) (Entered: 02/22/2011)

1449 ORDER granting 1437 Motion for Atty Andrew R. Dunlap to Appear Pro Hac Vice. Signed by Senior Judge Thomas Wiseman on 2/23/11. (tmw) (Entered: 02/23/2011)

1450 ORDER granting 1445 Motion for Atty Katherine L. McDaniel to Appear Pro Hac Vice. Signed by Senior Judge Thomas Wiseman on 2/23/11. (tmw) (Entered: 02/23/2011)

1451 NOTICE of Hearing: Continued Status Conference and Hearing on Defts' Motion to Vacate the Consent Decree set for 2/24/2011, at 1:30 PM in Courtroom 783 before Senior Judge Thomas Wiseman. (tmw) (Entered: 02/24/2011)

1452 NOTICE of Change of Address by Scott Hickman (Hickman, Scott) (Entered: 02/24/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Motion Hearing held on 2/23/2011 re 738 MOTION to Vacate the Consent Decree &Dismiss the Case filed by Nancy Menke, George W. Hattaway, Theresa Clarke; [1437 and 1445] Motions to Appear Pro Hac Vice; and Status Conference. 1437 MOTION for attorney(s) Andrew R. Dunlap to Appear Pro Hac Vice is GRANTED (paid $75 PHV fee; receipt number 0650−1025119) filed by John B. 1445 Supplemental MOTION for attorney(s) Katherine L. McDaniel to Appear Pro Hac Vice is GRANTED (paid $75 PHV fee; receipt number 0650−1027662) filed by John B. The Court hears argument. The Court will be taking over the case management of this case. The hearing is CONTINUED to February 24, 2011 at 1:30 p.m. (Court Reporter Charlotte Sloan.) (nd) (Entered: 02/24/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Motion Hearing held on 2/24/2011 re 738 MOTION to Vacate the Consent Decree &Dismiss the Case filed by Nancy Menke, George W. Hattaway, Theresa Clarke, and Status Conference held on 2/24/2011. The Court defers any consideration of the matters under seal until after we get to the merits of the case. The parties indicate that they have met and made some progress. The Court will issue a preliminary finding regarding the Motion to Vacate the Consent Decree. The Plaintiff shall promptly file a supplemental brief as discussed in Court. A hearing will be set after the Court's findings have been filed. IN CHAMBERS: The Court and counsel discussed in−camera matters. (Court Reporter Charlotte Sloan.) (nd) Modified on 2/25/2011 (af). Modified on 3/1/2011 (nd). (Entered: 02/25/2011)

1453

ORDER: Pending in this matter is a motion filed by non−party BlueCross BlueShield of Tennessee ("BCBST") seeking relief pursuant to Rule 60(b)(1) or, alternatively, reconsideration the Court's October 9 and 10, 2007 and January 28, 2010 Memoranda and Orders 1394 . The motion is therefore DENIED, and this Court declines to reach the question of whether the MCCs are or are not state actors. It is so ORDERED. Signed by Senior Judge Thomas Wiseman on 2/25/11. (tmw) (Entered: 02/25/2011)

1454 SUPPLEMENT Statement of the Statutory Bases of the Consent Decree, filed by John B. re Motion Hearing, Status Conference. (Coleman, Christopher) Modified text on 2/28/2011 (tmw). (Entered: 02/25/2011)

1455

MEMORANDUM OF PRELIMINARY FINDINGS. Again pending before this Court are some portions of Defendants' November 2006 motion to vacate the Consent Decree 738 . In sum, the Court reaches the preliminary conclusion that Paragraphs 43, 50, 58, 60, 61(ii), 71(ii), and 78−84 of the Consent Decree, in addition to paragraphs 45−49 and 61(iii), are subject to vacatur; the Court hereby signals its inclination to grant in part the Defendants' Motion to Vacate to reflect this finding. Pursuant to the parties' request, however, the Court's finding remains

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preliminary and does not constitute an appealable Order. The Court defers entry of an Order at this time, pending further discussions among the parties, entry of a case management order, and substantial progress toward resolution of the dispositive issues in this case. Signed by Senior Judge Thomas Wiseman on 3/1/11. (tmw) (Entered: 03/01/2011)

03/01/2011

1456

ORDER: A Case Management Conference is set before Judge Thomas A. Wiseman, Jr. on THURSDAY, MARCH 31, 2011, at 10:00 a.m. in Courtroom #783. The parties shall confer and prepare a joint case management order (CMO) which shall be filed on or before March 29, 2011. If the parties cannot agree on a matter or date, the proposal of each shall be included in the CMO. The following questions shall be included in the CMO (see Order). IT IS SO ORDERED. Signed by Senior Judge Thomas Wiseman on 3/1/11. (tmw) (Entered: 03/01/2011)

03/09/2011

1457

Transcript filed for date of 2/23/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Charlotte Sloan, 615−726−0355, charlotte_sloan@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 3/16/2011. Redaction Request due 3/30/2011. Redacted Transcript Deadline set for 4/11/2011. Release of Transcript Restriction set for 6/7/2011. (tmw) (Entered: 03/09/2011)

03/09/2011

1458

Transcript filed for date of 2/24/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Charlotte Sloan, 615−726−0355, charlotte_sloan@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 3/16/2011. Redaction Request due 3/30/2011. Redacted Transcript Deadline set for 4/11/2011. Release of Transcript Restriction set for 6/7/2011. (tmw) (Entered: 03/09/2011)

03/09/2011 1459 SEALED Transcript filed for date of 2/24/2011, before Judge Thomas Wiseman. (tmw) (Entered: 03/09/2011)

03/29/2011

1460 NOTICE of Filing by Theresa Clarke, Mark Emkes, George W. Hattaway of Proposed Case Management Order (Attachments: # 1 Proposed Case Management Order)(Kirk, Michael) Modified text on 3/30/2011 (tmw). (Entered: 03/29/2011)

03/30/2011 1461 MOTION for Discovery by John B.. (Bonnyman, George) (Entered: 03/30/2011)

03/30/2011 1462 MEMORANDUM in Support, filed by John B. re 1461 Motion for Discovery. (Bonnyman, George) Modified text on 4/1/2011 (tmw). (Entered: 03/30/2011)

03/30/2011

1463

NOTICE of Filing by John B. re 1462 Memorandum in Support, 1461 MOTION for Discovery Production of HEDIS documents (Attachments: # 1 Attachment Declaration of Dr. Rose Ray, # 2 Attachment Order in Newberry v. Menke)(Bonnyman, George) Modified text on 4/1/2011 (tmw). (Entered: 03/30/2011)

03/31/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Case Management Conference held on 3/31/2011. George Bonnyman, Jr. lead attorney for Plaintiffs and Michael Kirk lead attorney for Defendants. The Court and

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03/31/2011
04/01/2011 04/05/2011
04/13/2011
04/13/2011 04/14/2011 04/14/2011 04/14/2011 04/15/2011

counsel review the proposed agreed case management order. The final case management order will be filed by separate order. The pretrial conference is set for October 17, 2011 at 10:00 a.m. and the bench trial is set for October 31, 2011; length of trial estimated at four weeks. (Court Reporter Dorothy Stiles.) (nd) (Entered: 03/31/2011)

1464

CASE MANAGEMENT ORDER: Bench Trial set for 10/31/2011, at 10:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. Pretrial Conference set for 10/17/2011, at 10:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. On or before April 1, 2011, Defendants (the "State") shall file their motion for a declaration that the Consent Decree, 12 , has expired pursuant to the second Paragraph 113 of the Decree. Discovery due by 7/15/2011. Joint Proposed Pretrial Order due by noon on 10/15/2011. Signed by Senior Judge Thomas Wiseman on 3/31/11. (tmw) (Entered: 03/31/2011)

1465 MOTION to Vacate All Injunctive Relief, Terminate the Decree and Dismiss the Case by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 04/01/2011)

1466

Transcript filed for date of 3/31/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 4/12/2011. Redaction Request due 4/26/2011. Redacted Transcript Deadline set for 5/6/2011. Release of Transcript Restriction set for 7/4/2011. (tmw) (Entered: 04/05/2011)

1467

RESPONSE in Opposition re 1461 MOTION for Discovery filed by BlueCross Blueshield of Tennessee. (Attachments: # 1 Exhibit Declaration of Irv Koehler, # 2 Exhibit Exhibit A to Declaration of Irv Koehler Part 1 of 5 (HEDIS Audit Reports), # 3 Exhibit Exhibit A to Declaration of Irv Koehler Part 2 of 5 (HEDIS Audit Reports), # 4 Exhibit Exhibit A to Declaration of Irv Koehler Part 3 of 5 (HEDIS Audit Reports), # 5 Exhibit Exhibit A to Declaration of Irv Koehler Part 4 of 5 (HEDIS Audit Reports), # 6 Exhibit Exhibit A to Declaration of Irv Koehler Part 5 of 5 (HEDIS Audit Reports), # 7 Exhibit Declaration of Carol Rose, # 8 Exhibit Declaration of Roslyn M. White, # 9 Exhibit Declaration of Julie Burgoon)(Hubbard, William) (Entered: 04/13/2011)

1468 RESPONSE in Opposition re 1461 MOTION for Discovery filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Attachment Declaration of Patrick Dahill)(Kirk, Michael) (Entered: 04/13/2011)

1469 RESPONSE in Opposition re 1461 MOTION for Discovery filed by AMERIGROUP Corporation. (Attachments: # 1 Attachment Declaration of Jiong Huang)(Davidson, Paul) (Entered: 04/14/2011)

1470 RESPONSE in Opposition re 1461 MOTION for Discovery filed by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice. (Hicks, John) (Entered: 04/14/2011)

1471 NOTICE of Filing by UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice re 1470 Response in Opposition to Motion (Attachments: # 1 Attachment Declaration of Kim L. Seay, # 2 Exhibit Exhibit A to Seay Declaration)(Hicks, John) (Entered: 04/14/2011)

1472 RESPONSE in Opposition re 1465 MOTION to Vacate All Injunctive Relief, Terminate the Decree and Dismiss the Case filed by John B.. (Coleman, Christopher) (Entered: 04/15/2011)

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04/19/2011 04/19/2011 04/19/2011 04/20/2011 04/20/2011
04/21/2011
04/29/2011 04/29/2011
05/04/2011 05/06/2011 05/25/2011 05/25/2011
05/26/2011 05/26/2011 05/27/2011 05/31/2011

1473 SUGGESTION OF DEATH Upon the Record; MOTION for Leave to Substitute Named Members of Pltf Class, by John B. (Bonnyman, George) Modified text on 4/19(tmw). (Entered: 04/19/2011)

1474 MOTION to Seal Document by John B.. (Bonnyman, George) (Entered: 04/19/2011)

1475 Sealed Document filed by John B.. (Bonnyman, George) (Entered: 04/19/2011)

1476 ORDER granting 1474 Motion for Leave to File Document Under Seal. Signed by Senior Judge Thomas Wiseman on 4/20/11. (tmw) (Entered: 04/20/2011)

1477

ORDER re 1473 Suggestion of Death of Named Pltfs and Motion for Leave to Substitute Named Members of Pltf Class: APPROVED. Jasmine A., Zachary B., Bonnie B., Binta B., Jacob F., Catherine G., Branson G., Lakale J., Aiden L., Nakia L., Princeton M., Ladontay P., Jackie R., Savannah R., Sarai R., Amber R., Albreona T. and Gunnar U. added. Joshua M. and Bayli S. terminated. Signed by Senior Judge Thomas Wiseman on 4/20/11. (tmw) (Entered: 04/20/2011)

1478

ORDER: Plaintiffs' Motion For Production of Documents From Which TennCare HEIDIS Reports Are Compiled, Document #1461, is set for hearing on THURSDAY, MAY 5, 2011, at 10:00 a.m. in Courtroom #783. This will be an evidentiary hearing. As the proponent of the motion, Plaintiff will have the burden of showing that the motion should be granted. At the hearing, the non−party objectors may be heard through the Defendant or as witnesses called by either party. Signed by Senior Judge Thomas Wiseman on 4/21/2011. (hb) (Entered: 04/21/2011)

1479 MOTION to Withdraw Document 1461 MOTION for Discovery by John B.. (Bonnyman, George) (Entered: 04/29/2011)

1480 ORDER re 1479 Motion to Withdraw re 1461 MOTION for Production of Documents. APPROVED, and the May 5, 2011 hearing date on Plaintiffs' Motion for Production of Documents is VACATED. Signed by Senior Judge Thomas Wiseman on 4/29/11. (tmw) (Entered: 04/29/2011)

1481 Joint MOTION to Amend/Correct the Protective Order by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Proposed Order)(Kirk, Michael) (Entered: 05/04/2011)

1482 AMENDED PROTECTIVE ORDER. Signed by Senior Judge Thomas Wiseman on 5/6/11. (tmw) (Entered: 05/06/2011)

1483 MOTION to Withdraw as Attorney Sarah Tsou and Jason Choy by John B.. (Coleman, Christopher) (Entered: 05/25/2011)

1484 MOTION for attorney(s) Michael H. Reed to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−1086106) by John B.. (Attachments: # 1 Attachment Certificate of Good Standing for Michael H. Reed)(Coleman, Christopher) (Entered: 05/25/2011)

1485 ORDER granting 1483 Motion to Withdraw. Attorney Jason Francis Choy and Sarah Kao−Yen Tsou terminated. Signed by Senior Judge Thomas Wiseman on 5/26/11. (af) (Entered: 05/26/2011)

1486 ORDER denying 1484 Motion for Michael H. Reed to Appear Pro Hac Vice. Signed by Senior Judge Thomas Wiseman on 5/26/11. (af) Modified on 5/27/2011 (af). (Entered: 05/26/2011)

NOTICE TO COUNSEL re DE 1456. It should read: ORDER denying 1484 Motion for Michael H. Reed to Appear Pro Hac Vice. Signed by Senior Judge Thomas Wiseman on 5/26/11. (af) (af) (Entered: 05/27/2011)

1487

MOTION for Reconsideration re 1486 Appear Pro Hac Vice by John B.. (Attachments: # 1 Attachment Declaration of G. Gordon Bonnyman, Jr., # 2 Attachment Declaration of Robert T. Joseph, # 3 Attachment Resume of Robert T. Joseph, # 4 Attachment Declaration of Vickie Reznick, # 5 Attachment Resume of Vickie Reznick)(Coleman, Christopher) (Entered: 05/31/2011)

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06/01/2011

1489 ORDER granting 1487 Motion to Reconsider, and Michael H. Reed may appear pro hac vice for Pltfs in this case in place of the Kirkland &Ellis attys recently permitted to withdraw. Signed by Senior Judge Thomas Wiseman on 6/1/11. (tmw) (Entered: 06/02/2011)

06/02/2011

1488 RESPONSE to Motion re 1487 MOTION for Reconsideration re 1486 Appear Pro Hac Vice, filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) Modified text on 6/2/2011 (tmw). (Entered: 06/02/2011)

06/02/2011

Bar status of Atty Michael H. Reed of NY verified as active this date. (tmw) (Entered: 06/02/2011)

06/03/2011

1490

MOTION for attorney(s) Tony L. Richardson and R. Cantrell Jones to Appear Pro Hac Vice in Place of Attorneys Seeking Leave to Withdraw (paid $150 PHV fee; receipt number 0650−1091581) by John B.. (Attachments: # 1 Attachment Certificate of Good Standing for Tony L. Richardson, # 2 Attachment Certificate of Good Standing for R. Cantrell Jones)(Coleman, Christopher) (Entered: 06/03/2011)

06/07/2011

1491

ORDER granting 1490 MOTION for attorney(s) Tony L. Richardson and R. Cantrell Jones to Appear Pro Hac Vice in Place of Attorneys Seeking Leave to Withdraw, and Katherine Evans and Mark P. Johnson are withdrawn as counsel for the pltf class. Tony L. Richardson and R. Cantrell Jones may appear pro hac vice in the place of Katherine Evans and Mark P. Johnson. Signed by Senior Judge Thomas Wiseman on 6/7/11. (tmw) (Entered: 06/07/2011)

06/24/2011

1492 MOTION in Limine and Memorandum Of Law In Support by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kirk, Michael) (Entered: 06/24/2011)

06/28/2011 1493 MOTION to Amend 1464 Order, Set Deadlines/Hearings, by John B. (Bonnyman, George) Modified text on 7/1/2011 (tmw). (Entered: 06/28/2011)

06/29/2011 1494 RESPONSE in Opposition re 1492 MOTION in Limine and Memorandum Of Law In Support filed by John B.. (Bonnyman, George) (Entered: 06/29/2011)

06/30/2011

1495 MOTION for Leave to to File Reply in Support of Motion in Limine and Memorandum of Law in Support by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Attachment Reply in Support of Motion in Limine)(Kirk, Michael) (Entered: 06/30/2011)

06/30/2011

1496 ORDER: Plaintiffs' Motion, 1493 , is GRANTED and the Case Management Order, 1464 , is modified as follows: (See Order). Signed by Senior Judge Thomas Wiseman on 6/30/11. (tmw) (Entered: 06/30/2011)

06/30/2011 1497 ORDER granting 1495 Motion for Leave to File Reply. Signed by Senior Judge Thomas Wiseman on 6/30/11. (tmw) (Entered: 06/30/2011)

06/30/2011

1498 REPLY to Response to Motion re 1492 MOTION in Limine and Memorandum Of Law In Support, filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (tmw) (Entered: 06/30/2011)

07/01/2011

1499 NOTICE of Hearing: Status Conference and Hearing re Defts' Motion in Limine 1492 set for 7/20/2011, at 11:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. (tmw) (Entered: 07/01/2011)

07/15/2011

1500 NOTICE of Filing by Mark Emkes of July 2011 Semi−Annual Progress Report (Attachments: # 1 July 2011 Semi−Annual Progress Report)(Ross, Linda) (Entered: 07/15/2011)

07/18/2011

1501

MOTION for Leave to re 1492 MOTION in Limine and Memorandum Of Law In Support by John B.. (Attachments: # 1 Attachment Supplemental Memorandum, # 2 Attachment Expert Witness Statement − Adams, # 3 Attachment Expert Witness Statement − Allen, # 4 Attachment Expert Witness Statement − Faust, # 5 Attachment Expert Witness Statement − M. Gaylord, # 6 Attachment Expert Witness Statement − N. Gaylord, # 7 Attachment Expert Witness Statement − Green, # 8 Attachment Expert Witness Statement − Hayes, # 9 Attachment Expert Witness Statement − Jones, # 10 Attachment Expert Witness Statement − Martins, # 11 Attachment Expert Witness Statement − Perkett, # 12 Attachment Expert Witness Statement − Rosenbaum, # 13 Attachment Expert Witness Statement −

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07/19/2011 07/19/2011
07/20/2011
07/26/2011
07/27/2011 08/26/2011 08/26/2011 08/31/2011 09/06/2011

Seefeldt, # 14 Attachment Expert Witness Statement − Seyler, # 15 Attachment Expert Witness Statement − Stern, # 16 Attachment Summary Fact Witness Testimony)(Bonnyman, George) (Entered: 07/18/2011)

1502 ORDER granting 1501 Motion for Leave to File Supplemental Memorandum in Opposition to State's Motion in Limine. Signed by Senior Judge Thomas Wiseman on 7/19/11. (tmw) (Entered: 07/19/2011)

1503

Supplemental MEMORANDUM in Opposition to Motion re 1492 MOTION in Limine, filed by John B. (Attachments: # 1 Expert Witness Statement − Adams, # 2 Expert Witness Statement − Allen, # 3 Expert Witness Statement − Faust, # 4 Expert Witness Statement − M. Gaylord, # 5 Expert Witness Statement − N. Gaylord, # 6 Witness Statement − Green, # 7 Expert Witness Statement − Hayes, # 8 Expert Witness Statement − Jones, # 9 Expert Witness Statement − Martins, # 10 Expert Witness Statement − Perkett, # 11 Expert Witness Statement − Rosenbaum, # 12 Expert Witness Statement − Seefeldt, # 13 Expert Witness Statement − Seyler, # 14 Expert Witness Statement − Stern, # 15 Summary Fact Witness Testimony)(tmw) (Entered: 07/19/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Status Conference held on 7/20/2011, Motion Hearing held on 7/20/2011 re 1492 MOTION in Limine and Memorandum Of Law In Support filed by George W. Hattaway, Mark Emkes, Theresa Clarke. The Court hears argument. Under Rule 403, the Court has the right and duty to exclude unnecessary cumulative evidence. Defendant's Motion in Limine, Document #1492, is DENIED. IT IS SO ORDERED. The Defendant is directed to file their witness list with a brief statement of what their testimony will be. Fact rebuttal witness disclosure is reserved for the time of trial, but rebuttal expert witnesses shall be supplied as required by the Case Management Order. (Court Reporter Peggy Turner.) (nd) (Entered: 07/20/2011)

1504

Transcript filed for date of 7/20/2011 before Judge Thomas Wiseman. Court Reporter/Transcriber: Peggy Turner, 615−726−4893, peggy_turner@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 8/2/2011. Redaction Request due 8/16/2011. Redacted Transcript Deadline set for 8/26/2011. Release of Transcript Restriction set for 10/24/2011. (tmw) (Entered: 07/26/2011)

1505 Witness List and Summary of Witness Testimony by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 07/27/2011)

1506 MOTION in Limine To Exclude Plaintiffs' Expert Sara Rosenbaum, J.D. by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 08/26/2011)

1507 MEMORANDUM in Support of 1506 MOTION in Limine To Exclude Plaintiffs' Expert Sara Rosenbaum, J.D. filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Kirk, Michael) (Entered: 08/26/2011)

1508 RESPONSE in Opposition re 1506 MOTION in Limine To Exclude Plaintiffs' Expert Sara Rosenbaum, J.D. filed by John B.. (Bonnyman, George) (Entered: 08/31/2011)

1509 NOTICE of Filing by John B. (Attachments: # 1 Proposed Order Proposed Protective Order)(Bonnyman, George) (Entered: 09/06/2011)

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09/06/2011 09/07/2011 09/08/2011
09/08/2011 09/15/2011 09/16/2011 09/27/2011 09/27/2011 09/27/2011 09/28/2011 10/14/2011 10/14/2011 10/14/2011
10/14/2011 10/18/2011

1510 MOTION for Protective Order for Class Members Confidential Personal Health Information by John B.. (Attachments: # 1 Proposed Order PROPOSED PROTECTIVE ORDER FOR CLASS MEMBERS CONFIDENTIAL PERSONAL HEALTH INFORMATION)(Coleman, Christopher) (Entered: 09/06/2011)

1511 PROTECTIVE ORDER. Signed by Senior Judge Thomas Wiseman on 9/7/11. (tmw) (Entered: 09/07/2011)

1512

ORDER: Before the Court is the State's Motion in Limine (ECF No. 1506 ) seeking to exclude the testimony of Plaintiffs' designated expert, Sara Rosenbaum. Plaintiffs oppose the motion. (ECF No. 1508 ). The State has failed to show either that Sara Rosenbaum's testimony is precluded by Judge Nixon's July 14, 2004 order or that Ms. Rosenbaum's testimony, in its entirety, will invade the province of the Court to determine the legal issues in this matter. The motion is therefore DENIED, but without prejudice to the State's ability either to file a motion to exclude on the basis that Ms. Rosenbaum's testimony does not meet the criteria set forth in Rule 702, or to object to specific portions of Ms. Rosenbaum's testimony at the time the Plaintiffs seek to introduce it. It is so ORDERED. Signed by Senior Judge Thomas Wiseman on 9/8/11. (tmw) (Entered: 09/08/2011)

1513 PROTECTIVE ORDER. Signed by Senior Judge Thomas Wiseman on 9/8/11. (tmw) (Entered: 09/08/2011)

1514 Joint MOTION to Amend/Correct 1496 Order on Motion to Amend/Correct, 1464 Order,,, Set Deadlines/Hearings,, by John B.. (Bonnyman, George) (Entered: 09/15/2011)

1515 ORDER granting 1514 Joint Motion to Modify Case Management Order. Signed by Senior Judge Thomas Wiseman on 9/16/11. (tmw) (Entered: 09/16/2011)

1516 MOTION for Leave to File Document Under Seal by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 09/27/2011)

1517 Sealed Document Expert Witness Report of Jeanne James, M.D. filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 09/27/2011)

1518 NOTICE of Filing by Theresa Clarke, Mark Emkes, George W. Hattaway Notice of Filing of Expert Witness Reports (Attachments: # 1 Attachment Expert Witness Report of Wendy Long, M.D., M.P.H)(Kirk, Michael) (Entered: 09/27/2011)

1519 ORDER granting 1516 Motion for Leave to File Document Under Seal. Signed by Senior Judge Thomas Wiseman on 9/28/11. (tmw) (Entered: 09/28/2011)

1520 NOTICE of Hearing: Pretrial Conference reset for 10/18/2011, at 10:00 AM in Courtroom 783 before Senior Judge Thomas Wiseman. (tmw) (Entered: 10/14/2011)

1521 MOTION in Limine to Exclude Plaintiffs' Expert Rose Ray, PH. D. by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 10/14/2011)

1522

MEMORANDUM in Support of 1521 MOTION in Limine to Exclude Plaintiffs' Expert Rose Ray, PH. D. filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Exhibit A − Rose Ray, PH. D. Expert Report, # 2 Exhibit B − Rose Ray, PH. D. Deposition Transcript, # 3 Exhibit C− George Adams, D.D.S. Deposition Transcript Pages, # 4 Exhibit D − Correspondence, # 5 Attachment Unpublished Cases)(Kirk, Michael) (Entered: 10/14/2011)

1523 NOTICE of Filing of Agreed Pretrial Order by John B. re 1464 Order. (Attachments: # 1 Proposed Agreed Pretrial Order)(Bonnyman, George) Modified text on 10/18/2011 (tmw). (Entered: 10/14/2011)

1524

RESPONSE in Opposition re 1521 MOTION in Limine to Exclude Plaintiffs' Expert Rose Ray, PH. D. filed by John B.. (Attachments: # 1 Exhibit A − Ray Declaration, # 2 Exhibit B − DeWalt Expert Report, # 3 Exhibit C − 6−19−07 Hearing Transcript, # 4 Exhibit D − CMS−416 Instructions, # 5 Exhibit E − HEDIS 2011, # 6 Exhibit F − CHIPRA Measure 8, # 7 Exhibit G − Long Expert Report, # 8 Exhibit H − Antony Deposition, # 9 Exhibit I − Expenditure Totals in East TN for ABA)(Coleman, Christopher) (Entered: 10/18/2011)

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10/18/2011
10/21/2011 10/26/2011 10/27/2011 10/28/2011 10/31/2011 10/31/2011 10/31/2011 10/31/2011
11/01/2011 11/01/2011 11/02/2011 11/03/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Final Pretrial Conference held on 10/18/2011. The bench trial date is MONDAY, OCTOBER 31, 2011, at 10:00 a.m. The Movant, Defendant, has the burden of proof. The Court and counsel discuss the issues in the Agreed Pretrial Order, Document #1523. Counsel shall file Findings of Fact and Conclusions of Law by Monday morning, October 31, 2011. The Court will rule on the admissibility of exhibits as they are introduced. Agreed Pretrial Order, Pages 9−11, #3a−d, the Court takes UNDER ADVISEMENT. The parties agree to the method of direct testimony of experts. The Court will not be in session on November 11, 24, or 25. All issues will be ruled on during the trial. The Court sets a Daubert Hearing on the State's Motion in Limine on the first morning of trial, October 31, 2011, at 10:00 a.m. The State's reply is due by Friday, October 21, 2011. Dr. Ray shall be present at the Daubert Hearing. The rule is invoked. (Court Reporter Charlotte Sloan.) (nd) (Entered: 10/21/2011)
1525 REPLY to Response to Motion re 1521 MOTION in Limine to Exclude Plaintiffs' Expert Rose Ray, PH. D. filed by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Exhibit 1 − 10/19/11 Email)(Kirk, Michael) (Entered: 10/21/2011)
1526 STIPULATION Agreed Factual and Evidentiary Stipulations by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 10/26/2011)
1527 Proposed Findings of Fact and Conclusions of Law by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 10/27/2011)
1528 NOTICE of Filing by Theresa Clarke, Mark Emkes, George W. Hattaway Notice of Agreement Regarding the Use of Deposition Testimony (Kirk, Michael) (Entered: 10/28/2011)
1529 Proposed Findings of Fact by John B.. (Coleman, Christopher) (Entered: 10/31/2011)
1530 Exhibit List by John B... (Coleman, Christopher) (Entered: 10/31/2011)
1531 Exhibit List Final Exhibit List by Theresa Clarke, Mark Emkes, George W. Hattaway.. (Kirk, Michael) (Entered: 10/31/2011)
Minute Entry for proceedings held before Senior Judge Thomas Wiseman. Plaintiffs' counsel present: Victoria Reznik, Gordon Bonnyman, Jr. and Michelle Johnson. Defendants' counsel present: AG Robert Cooper, Jr., Michael Kirk, Derek Shaffer, Linda Ross, and Nicole Moss. Daubert hearing on Defendants' Motion in Limine To Exclude Plaintiffs' Expert Dr. Rose Ray, Document #1521: Dr. Rose M. Ray is sworn and testifies. Exhibits are marked and admitted per the Exhibit and Witness List. For the reasons stated on the record, Defendants' Motion in Limine To Exclude Plaintiffs' Expert Dr. Rose Ray, Document #1521, is DENIED. Bench Trial: Mr. Kirk gives Defendants' opening statement. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/01/2011)
Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Two held on 11/1/2011. Michelle Johnson gives opening statement for Plaintiff. Dr. Wendy Long is sworn, qualified as an expert and examined. Exhibits are marked and admitted per Exhibit and Witness List. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/02/2011)
1532 AGREED PRETRIAL ORDER. Signed by Senior Judge Thomas Wiseman on 11/1/11. (tmw) (Entered: 11/02/2011)
Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Three held on 11/2/2011. Witnesses sworn and testify per Exhibit and Witness List. Exhibits marked and admitted per Exhibit and Witness List. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/03/2011)
Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Four held on 11/3/2011. Witnesses sworn and testify, and exhibits marked and admitted per the Exhibit and Witness List. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/04/2011)

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11/07/2011

1533

Transcript − Volume 1, filed for date of 10/31/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/14/2011. Redaction Request due 11/28/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (tmw) (Entered: 11/07/2011)

11/07/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Five held on 11/4/2011. Witnesses sworn and testify and exhibits marked and admitted per Exhibit and Witness List. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/07/2011)

11/07/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Six held on 11/7/2011. Witnesses sworn and testify and exhibits marked and admitted per Exhibit and Witness List. Continued to 10 a.m. on November 8, 2011. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/07/2011)

11/08/2011

1534

Transcript − Volume 2, filed for date of 11/1/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/15/2011. Redaction Request due 11/29/2011. Redacted Transcript Deadline set for 12/9/2011. Release of Transcript Restriction set for 2/6/2012. (tmw) (Entered: 11/08/2011)

11/08/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Seven held on 11/8/2011. Witnesses sworn and testify and exhibits marked and admitted per Exhibit and Witness List. Trial continued to 10:00 a.m. on November 9, 2011. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/09/2011)

11/09/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 8 held on 11/9/2011. Witnesses sworn and testify and exhibits marked and admitted per the Exhibit and Witness List. This trial is continued to Thursday, November 10, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/10/2011)

11/10/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Nine held on 11/10/2011. Witnesses are sworn and testify and Exhibits are marked and admitted per the Exhibit and Witness List. This matter is continued to Monday, November 14, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/14/2011)

11/14/2011

1535

Transcript − Volume 3, filed for date of 11/2/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC

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AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/21/2011. Redaction Request due 12/5/2011. Redacted Transcript Deadline set for 12/15/2011. Release of Transcript Restriction set for 2/13/2012. (tmw) (Entered: 11/14/2011)

11/14/2011

1536

Transcript − Volume 4, filed for date of 11/3/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/21/2011. Redaction Request due 12/5/2011. Redacted Transcript Deadline set for 12/15/2011. Release of Transcript Restriction set for 2/13/2012. (tmw) (Entered: 11/14/2011)

11/14/2011

1537

Transcript − Volume 5, filed for date of 11/4/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/21/2011. Redaction Request due 12/5/2011. Redacted Transcript Deadline set for 12/15/2011. Release of Transcript Restriction set for 2/13/2012. (tmw) (Entered: 11/14/2011)

11/14/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Ten held on 11/14/2011. Witnesses are sworn and testify, exhibits are marked and admitted per the Exhibit and Witness List. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/15/2011)

11/15/2011

1538

Transcript − Volume 6, filed for date of 11/7/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/22/2011. Redaction Request due 12/6/2011. Redacted Transcript Deadline set for 12/16/2011. Release of Transcript Restriction set for 2/13/2012. (tmw) (Entered: 11/15/2011)

11/15/2011

1539

Transcript filed for date of 10/18/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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

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PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/22/2011. Redaction Request due 12/6/2011. Redacted Transcript Deadline set for 12/16/2011. Release of Transcript Restriction set for 2/13/2012. (tmw) (Entered: 11/16/2011)

11/15/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day Eleven held on 11/15/2011. Witnesses sworn and testify, Exhibits are marked and admitted per the Exhibit and Witness List. The trial is continued to Wednesday, November 16, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/16/2011)

11/16/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 12 held on 11/16/2011. Ms. Ross makes statements to the Court regarding the total amount spent in litigation costs on this law suit by the State since 1998. Witnesses are sworn and testify and exhibits are marked and admitted per Exhibit and Witness List. Defense counsel objects to portions of Dr. Heflinger's testimony and moves to strike that portion. The Court will take that under consdieration. This matter is CONTINUED to THURSDAY, NOVEMBER 17, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/17/2011)

11/17/2011

1540 RESPONSE in Opposition to Defendants' 1542 Motion to Strike Portions of the Testimony of Craig Anne Heflinger, Ph.D., by John B. (Coleman, Christopher) Modified text on 11/21/2011 (tmw). (Entered: 11/17/2011)

11/17/2011 1541 NOTICE of Filing by Theresa Clarke, Mark Emkes, George W. Hattaway Litigation Costs (Kirk, Michael) (Entered: 11/17/2011)

11/17/2011

1542 MOTION to Strike Portions of the Testimony of Craig Anne Heflinger PhD, by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (tmw) (Entered: 11/18/2011)

11/17/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 13 held on 11/17/2011. Witnesses are sworn and testify and exhibits are marked and admitted per the Exhibit and Witness List. This matter is CONTINUED to Monday, November 21, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/18/2011)

11/18/2011

1543

Transcript − Volume 7, filed for date of 11/8/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/25/2011. Redaction Request due 12/9/2011. Redacted Transcript Deadline set for 12/19/2011. Release of Transcript Restriction set for 2/16/2012. (tmw) (Entered: 11/18/2011)

11/18/2011 1544 DECLARATION of Gordon Bonnyman filed by John B. re: 1541 Notice (Other). (Bonnyman, George) (Entered: 11/18/2011)

11/21/2011

1545

Transcript − Volume 8, filed for date of 11/9/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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

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PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/28/2011. Redaction Request due 12/12/2011. Redacted Transcript Deadline set for 12/22/2011. Release of Transcript Restriction set for 2/21/2012. (tmw) (Entered: 11/21/2011)

11/21/2011

1546

Transcript − Volume 9, filed for date of 11/10/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 11/28/2011. Redaction Request due 12/12/2011. Redacted Transcript Deadline set for 12/22/2011. Release of Transcript Restriction set for 2/21/2012. (tmw) (Entered: 11/21/2011)

11/21/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 14 held on 11/21/2011. Defendant's Motion to Strike Portions of Testimony of Dr. Heflinger, Document #1542, is DENIED. The Court makes a further record of the striking of the testimony of Dr. Elizabeth Perkett on Thursday, November 17. Witnesses are sworn and testify and Exhibits are marked and admitted per the Exhibit and Witness List. The trial is CONTINUED to TUESDAY, November 22, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/22/2011)

11/22/2011

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 15 held on 11/22/2011. Witnesses were sworn and testify and exhibits are marked and admitted per Exhibit and Witness List. This matter is CONTINUED to Monday, November 28, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/28/2011)

11/28/2011

1547 BRIEF filed by John B. re 1530 Exhibit List. (Attachments: # 1 Attachment PTX1889, # 2 Attachment Pltfs' Contentions Excerpt)(Bonnyman, George) (Entered: 11/28/2011)

11/28/2011

1548

Transcript − Volume 10, filed for date of 11/14/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/5/2011. Redaction Request due 12/19/2011. Redacted Transcript Deadline set for 12/29/2011. Release of Transcript Restriction set for 2/27/2012. (tmw) (Entered: 11/28/2011)

11/28/2011

1549 Transcript − Volume 11, filed for date of 11/15/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline

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11/28/2011
11/28/2011
11/28/2011 11/29/2011 11/30/2011 11/30/2011 11/30/2011

for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/5/2011. Redaction Request due 12/19/2011. Redacted Transcript Deadline set for 12/29/2011. Release of Transcript Restriction set for 2/27/2012. (tmw) (Entered: 11/28/2011)

1550

Transcript − Volume 12, filed for date of 11/16/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/5/2011. Redaction Request due 12/19/2011. Redacted Transcript Deadline set for 12/29/2011. Release of Transcript Restriction set for 2/27/2012. (tmw) (Entered: 11/28/2011)

1551

Transcript − Volume 13, filed for date of 11/17/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/5/2011. Redaction Request due 12/19/2011. Redacted Transcript Deadline set for 12/29/2011. Release of Transcript Restriction set for 2/27/2012. (tmw) (Entered: 11/28/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 16 held on 11/28/2011. Witnesses are sworn and testify and exhibits are marked and admitted per the Exhibit and Witness List. This matter is continued to 10:00 a.m. on 11/29/2011. (Court Reporter Dorothy Stiles.) (nd) (Entered: 11/29/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 17 held on 11/29/2011. Witnesses are sworn and testify and exhibits are marked and admitted per the Exhibit and Witness List. This matter is CONTINUED to WEDNESDAY, NOVEMBER 30, 2011, at 10:00 a.m. (Court Reporter Dorothy Stiles.) (nd) (Entered: 12/01/2011)

1552 Sealed Document filed by John B.. (Bonnyman, George) (Entered: 11/30/2011)

1553 NOTICE by John B. of Proffer (Attachments: # 1 Attachment Spreadsheet of Proffered Exhibits)(Coleman, Christopher) (Entered: 11/30/2011)

Minute Entry for proceedings held before Senior Judge Thomas Wiseman: Bench Trial Day 18 completed on 11/30/2011. After hearing oral argument and considering Plaintiffs' Brief, Document #1547, on Plaintiff's Motion to Admit Exhibits 1889 and 1889−A, the Court finds proper foundation has not been laid and Exhibits 1889 and 1889−A are received for identification purposes and purposes of

Case: 3:98-cv-168 As of: 06/13/2013 04:14 PM CDT 166 of 170

appellate review only. Further exhibits are marked and admitted per the Exhibit and Witness List filed this date. Both sides rest. Counsel shall file their Findings of Fact and Conclusions of Law on or before DECEMBER 20, 2011. The Court will not take up any in−camera matters until this case is decided on the merits. (Court Reporter Dorothy Stiles.) (nd) (Entered: 12/01/2011)

11/30/2011

1554 EXHIBIT AND WITNESS LIST prepared by Deputy Clerk re: Bench Trial. (tmw) (Entered: 12/01/2011)

12/01/2011

1555 CORRECTED Page 17 of EXHIBIT AND WITNESS LIST prepared by Deputy Clerk re: Bench Trial. (tmw) (Entered: 12/01/2011)

12/02/2011

1556

Transcript − Volume 14, filed for date of 11/21/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/9/2011. Redaction Request due 12/23/2011. Redacted Transcript Deadline set for 1/3/2012. Release of Transcript Restriction set for 3/1/2012. (tmw) (Entered: 12/02/2011)

12/02/2011

1557

Transcript − Volume 15, filed for date of 11/22/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/9/2011. Redaction Request due 12/23/2011. Redacted Transcript Deadline set for 1/3/2012. Release of Transcript Restriction set for 3/1/2012. (tmw) (Entered: 12/02/2011)

12/05/2011

1558

Transcript − Volume 16, filed for date of 11/28/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/12/2011. Redaction Request due 12/26/2011. Redacted Transcript Deadline set for 1/5/2012. Release of Transcript Restriction set for 3/5/2012. (tmw) (Entered: 12/05/2011)

12/06/2011

1559

Transcript − Volume 17, filed for date of 11/29/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE

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12/06/2011
12/16/2011 12/20/2011 12/20/2011 12/30/2011 12/30/2011 01/23/2012 01/24/2012 01/31/2012 02/08/2012 02/14/2012 02/14/2012

TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/13/2011. Redaction Request due 12/27/2011. Redacted Transcript Deadline set for 1/6/2012. Release of Transcript Restriction set for 3/5/2012. (tmw) (Entered: 12/06/2011)

1560

Transcript − Volume 18, filed for date of 11/30/2011, before Judge Thomas Wiseman. Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. 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. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 12/13/2011. Redaction Request due 12/27/2011. Redacted Transcript Deadline set for 1/6/2012. Release of Transcript Restriction set for 3/5/2012. (tmw) (Entered: 12/06/2011)

1561 NOTICE of Objection. (Attachments: # 1 Exhibit A − DHS Memorandum)(tmw) (Entered: 12/19/2011)

1562 Proposed Findings of Fact and Conclusions of Law by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 12/20/2011)

1563 Proposed Findings of Fact by John B.. (Attachments: # 1 Attachment Leonard v. Goetz, No. 07−2503−II (Chan. Ct., Feb. 11, 2009))(Coleman, Christopher) (Entered: 12/20/2011)

1564 NOTICE of Filing by John B. Plaintiffs' Amended Post−Trial Findings of Fact and Conclusions of Law (Attachments: # 1 Attachment Plaintiffs' Amended Post−Trial Proposed Findings of Fact and Conclusions of Law)(Coleman, Christopher) (Entered: 12/30/2011)

1565 Additional Attachments to Main Document re: 1564 Notice (Other). (Attachments: # 1 Attachment Leonard v. Goetz, No. 07−2503−II (Chan. Ct., Feb. 11, 2009))(Coleman, Christopher) (Entered: 12/30/2011)

1566 MOTION Defendants' Unopposed Motion to Allow E−mail Archiving by Theresa Clarke, Mark Emkes, George W. Hattaway. (Attachments: # 1 Proposed Order Agreed Order)(Kirk, Michael) (Entered: 01/23/2012)

1567 AGREED ORDER re Defts' 1566 Unopposed Motion to Allow E−mail Archiving. Signed by Senior Judge Thomas Wiseman on 1/24/12. (tmw) (Entered: 01/24/2012)

1568 NOTICE of Filing by Mark Emkes of January 2012 Semi−Annual Progress Report (Attachments: # 1 January 2012 Semi−Annual Progress Report)(Ross, Linda) (Entered: 01/31/2012)

1569 SUPPLEMENTAL Proposed Findings of Fact and Conclusions of Law filed by John B. re 1564 Notice. (Bonnyman, George) Modified on 2/9/2012 (rd). (Entered: 02/08/2012)

1570 MOTION to Strike 1569 Supplement Proposed Findings of Fact and Conclusions of Law filed by John B. by Theresa Clarke, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 02/14/2012)

1571 SEALED ORDER. Signed by Senior Judge Thomas Wiseman on 2/14/12. (xc: counsel of record by email notification.)(rd) (Entered: 02/14/2012)

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02/14/2012
02/14/2012 02/14/2012
02/14/2012 02/14/2012 03/01/2012 03/02/2012 03/05/2012 03/05/2012
03/08/2012 03/09/2012
03/13/2012 03/15/2012 03/15/2012 03/16/2012 03/21/2012 04/03/2012

1572 MEMORANDUM OPINION AND ORDER: Defts' 738 Motion to Vacate the Consent Decree is DENIED IN PART and GRANTED IN PART as to the provisions set out specifically within this order. Signed by Senior Judge Thomas Wiseman on 2/14/12. (rd) (Entered: 02/14/2012)

1573 MEMORANDUM OPINION. Signed by Senior Judge Thomas Wiseman on 2/14/12. (rd) (Entered: 02/14/2012)

1574

ORDER: The State's 1465 Motion to Vacate All Injunctive Relief, Terminate the Consent Decree and Dismiss the Case is hereby GRANTED. The Consent Decree (Doc. No. 12) is VACATED, and all heretofore granted injunctive relief is DISSOLVED. This matter is DISMISSED, except that the Court retains jurisdiction of the action solely for the purpose of considering outstanding fee applications and cost determinations, and to review contemp citations. Signed by Senior Judge Thomas Wiseman on 2/14/12. (rd) (Entered: 02/14/2012)

1575 ORDER: Defts' 1570 Motion to Strike Pltfs' Proposed Supplemental Findings of Fact and Conclusions of Law is DENIED as moot. Signed by Senior Judge Thomas Wiseman on 2/14/12. (rd) (Entered: 02/14/2012)

1576 ENTRY OF JUDGMENT re 1573 Memorandum Opinion, 1574 Order. (rd) (Entered: 02/14/2012)

1577 MOTION to Withdraw as Attorney by John B.. (Hutto, Elizabeth) (Entered: 03/01/2012)

1578 ORDER: Pltfs' 1577 Motion to Withdraw as Attorney is GRANTED. Attorney Elizabeth Banston Hutto terminated. Signed by Senior Judge Thomas Wiseman on 3/2/12. (rd) (Entered: 03/02/2012)

1579 MOTION for Leave to File Document Under Seal and to Exceed Page Limit by John B.. (Coleman, Christopher) (Entered: 03/05/2012)

1580

Sealed Document filed by John B.. (Attachments: # 1 Attachment Appendix A − Compilation, # 2 Attachment Bonnyman Supplemental Declaration, # 3 Attachment Index of Unpublished Opinions, # 4 Attachment Index of Documents from Sixth Circuit Proceedings, # 5 Attachment Index of Documents from Other Cases)(Coleman, Christopher) (Entered: 03/05/2012)

1581 ORDER: Pltfs' 1579 Motion to File Under Seal and to Exceed Page Limit is GRANTED. Signed by Senior Judge Thomas Wiseman on 3/8/12. (rd) (Entered: 03/08/2012)

1582

NOTICE OF APPEAL as to 1573 Memorandum Opinion of the Court, 1572 Order on Motion to Vacate, 1574 Order Dismissing Case,, by John B.. (Attachments: # 1 Exhibit A − 1572 Memo and Order, # 2 Exhibit B − 1573 − John B. Merits Ruling, # 3 Exhibit C − 1574 Order Re. Motion to Vacate, # 4 Exhibit D − 1576 Entry of Judgment)(Johnson, Michele) (Entered: 03/09/2012)

1583 RECEIPT #34675020824 in the amount of $455.00 posted by pltfs re 1582 Notice of Appeal. (rd) (Entered: 03/13/2012)

1584 MOTION for Leave to File Document Under Seal and To Exceed the Page Limit by Theresa Clarke, Cooper &Kirk, Mark Emkes, George W. Hattaway. (Kirk, Michael) (Entered: 03/15/2012)

1585 Sealed Document filed by Theresa Clarke, Cooper &Kirk, Mark Emkes, George W. Hattaway. (Attachments: # 1 Attachment Appendix, # 2 Attachment Addendum A, # 3 Attachment Addendum B)(Kirk, Michael) (Entered: 03/15/2012)

1586 ORDER: Defts' 1584 Joint Motion to File Under Seal and to Exceed Page Limit is GRANTED. Signed by Senior Judge Thomas Wiseman on 3/16/12. (rd) (Entered: 03/16/2012)

USCA Case Number 12−5307 for 1582 Notice of Appeal, filed by John B., et al. Case Manager Laura A. Jones. (rd) (Entered: 03/21/2012)

1587 MOTION for Leave to File Document Under Seal by John B.. (Coleman, Christopher) (Entered: 04/03/2012)

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04/03/2012
04/04/2012 04/04/2012 04/05/2012
04/12/2012 04/12/2012 04/13/2012 04/13/2012 04/18/2012 03/13/2013 03/14/2013 04/08/2013 04/10/2013

1588 Sealed Document filed by John B.. (Attachments: # 1 Attachment Representatons re other litigation holds, # 2 Attachment Key Custodians' testimony re Lit Holds)(Coleman, Christopher) (Entered: 04/03/2012)
1589 ORDER granting 1587 Motion for Leave to File Document Under Seal. Signed by Senior Judge Thomas Wiseman on 4/4/2012. (hb) (Entered: 04/04/2012)
1590 SEALED MEMORANDUM AND ORDER. Signed by Senior Judge Thomas Wiseman on 4/4/12. (dt) (Entered: 04/04/2012)
SEALED MEMORANDUM AND ORDER OF THE COURT 1590 emailed to Michelle Johnson, Gordon Bonnyman, Linda Ross, Michael Kirk, and George Barrett this date. (af) (Entered: 04/05/2012)
1591 MOTION for Leave to File Document Under Seal by John B.. (Johnson, Michele) (Entered: 04/12/2012)
1592 SEALED NOTICE OF APPEAL filed by John B. (Attachment: # 1 Exhibit A)(Johnson, Michele) Modified on 4/13/2012 (rd). (Entered: 04/12/2012)
1593 ORDER: Pltfs' 1591 Motion for Leave to File Under Seal is GRANTED. Signed by Senior Judge Thomas Wiseman on 4/13/12. (rd) (Entered: 04/13/2012)
1594 RECEIPT #34675021266 in the amount of $455.00 posted by pltfs re 1592 Sealed Notice of Appeal. (rd) (Entered: 04/13/2012)
USCA Case Number 12−5414 for 1592 Sealed Notice of Appeal filed by pltfs. Case Manager Laura A. Jones. (rd) (Entered: 04/18/2012)
1595 INFORMATION COPY from 6CCA: The district court's judgment is affirmed. (MANDATE TO ISSUE) (rd) (Entered: 03/13/2013)
1596 INFORMATION COPY from 6CCA: The judgment of the district court is AFFIRMED. (MANDATE TO ENTER) (rd) (Entered: 03/14/2013)
1597 MANDATE of USCA as to 1592 Sealed Notice of Appeal, filed by John B. (rd) Modified on 4/10/2013 (rd). (Entered: 04/08/2013)
1598 MANDATE of USCA as to 1582 Notice of Appeal, filed by John B. (rd) (Entered: 04/10/2013)

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 531 F.3d 448 (2008)
JOHN B.; Carrie G.; Joshua M.; Meagan A.; Erica A., by their next friend, L.A.; Dustin P. by his next friend, Linda C.; Bayli S. by her next friend, C.W.; James D. by his next friend,
Susan H.; Elsie H. by her next friend, Stacy Miller; Julian C. by his next friend, Shawn C.; Troy D. by his next friend, T.W.; Ray M. by his next friend, P.D.; Roscoe W. by his next
friend, K.B.; William B. by his next friend, K.B.; Jacob R. by his next friend, Kim R.; Justin S. by his next friend, Diane P.; Estel W. by his next friend, E.D.; individually and on behalf
of all others similarly situated, Plaintiffs-Appellees, v.
M.D. GOETZ, Jr., Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Assistant Commissioner, Bureau of TennCare; Viola P. Miller,
Commissioner, Tennessee Department of Children's Services, Defendants-Appellants.
No. 07-6373.
United States Court of Appeals, Sixth Circuit.
Argued: March 20, 2008. Decided and Filed: June 26, 2008.
450 *450 ARGUED: Michael W. Kirk, Cooper & Kirk, Washington, D.C., for Appellants. Michele M. Johnson, Tennessee Justice Center, Nashville, Tennessee, for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Brian S. Koukoutchos, Nicole Jo Moss, Derek L. Shaffer, Cooper & Kirk, Washington, D.C., Linda A. Ross, Office of the Tennessee Attorney General, Nashville, Tennessee, Ronald G. Harris, Aubrey B. Harwell, Jr., Neal &
451 Harwell, Nashville, Tennessee, for Appellants. Michele M. Johnson, G. Gordon Bonnyman, *451 Jr., Tennessee Justice Center, Nashville, Tennessee, for Appellees. William P. Marshall, Ohio Attorney General Office, Columbus, Ohio, Michael A. Cox, Michigan Department of Attorney General, Lansing, Michigan, Gregory D. Stumbo, Office of the Attorney General, Frankfort, Kentucky, Sarah Somers, Jane Perkins, National Health Law Program, Chapel Hill, North Carolina, Elizabeth A. Alexander, Christopher E. Coleman, Lieff, Cabraser, Heimann & Bernstein, Nashville, Tennessee, Kelly M. Dermody, Allison S. Elgert, Lieff, Cabraser, Heimann & Bernstein, San Francisco, California, for Amici Curiae.
Before: COLE, GIBBONS, and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. COLE, J. (pp. 461-62), delivered a separate concurring opinion.
449 *449 OPINION
ROGERS, Circuit Judge.
State defendants seek mandamus relief from two discovery orders issued by the district court during the course of this class-action litigation. The district court issued the orders after a discovery dispute arose regarding defendants' duty to preserve and produce electronically stored information relevant to the litigation. In the first order, the district court directed plaintiffs' computer expert and a court-appointed monitor to inspect the state's computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed. The second order denies reconsideration of the first order and directs that the first order be executed forthwith. Both orders allow plaintiffs' computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state's key custodians, but also any privately owned computers on which the custodians may have performed or received work relating to the TennCare program. The orders also direct the U.S. Marshal, or his designated deputies, to accompany

plaintiffs' computer expert to ensure full execution of the orders. This court entered an emergency stay of implementation of the orders on December 7, 2007. For the reasons stated below, we now grant in part defendants' petition for mandamus.
I.
This case arises from class-action litigation related to Tennessee's TennCare program. In 1993, Tennessee obtained a waiver from the Secretary of Health and Human Services to replace its fee-for-service Medicaid program with a managed care system called TennCare. In 1998, the instant action was filed on behalf of a class of approximately 500,000 children enrolled in the TennCare program, seeking to enforce certain provisions of the Social Security Act. Title XIX of the Social Security Act requires state plans that accept federal funding, like TennCare, to provide Medicaid-eligible persons under the age of 21 with certain Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services. See 42 U.S.C. §§ 1396a(a)(43), 1396d(r). These services include regular medical screening, vision, hearing, and dental services. § 1396d(r).
Almost immediately after the case was filed, the parties entered into a Consent Decree. The decree recognized a number of deficiencies in the TennCare program and set goals and time frames for compliance with federal law. 452 Pursuant to the decree, the state retained an expert to evaluate EPSDT services for children. *452 After the expert submitted a report in late 1998, the parties submitted two proposed agreed-upon orders and entered into a remedial plan. The district court approved the orders in May 2000. Eventually, the state encountered difficulty implementing the remedial plan and moved to stay implementation of the plan and modify the agreed-upon orders. In response, plaintiffs moved to hold defendants in contempt for violating both the Consent Decree and the May 2000 orders.
In December 2001, the district court, with Judge Nixon then presiding, ruled on the motions after three weeks of hearings. The court noted that "[t]he record demonstrates that the Defendants have been, for the most part, wellintentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements," but expressed that "from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system." John B. v. Menke, 176 F.Supp.2d 786, 790, 791 (M.D.Tenn. 2001). Ultimately, the district court concluded that the state had not established compliance with federal EPSDT requirements, and held in abeyance consideration of whether defendants were in contempt for violating the Consent Decree. Id. at 791, 800, 806-07. As a remedy, the district court appointed a special master to confer with the parties and to submit a plan to address the deficiencies in the TennCare program. Id. at 807-08.
In 2004, the Governor of Tennessee proposed TennCare reform to control the mounting costs of the program. On account of these reforms, the parties again began to dispute issues related to the state's compliance with the Consent Decree. In June 2004, plaintiffs moved for an order to show cause why defendants should not be held in contempt for violating the decree. On October 22, 2004, the district court issued a second order finding the state noncompliant and instructing the special master to create a remedial plan.
On November 18, 2004, defendants moved for leave to take discovery on the ground that the court's October 22, 2004 order and plan were the product of allegedly improper ex parte communications between the court and the special master.[1] Thereafter, the case was held in abeyance for a time. On December 13, 2005, the court, at the proposal of both plaintiffs and defendants, vacated its October 22, 2004 order and denied as moot defendants' discovery requests. However, on December 21, 2005, defendants renewed their motion for discovery, contending that the vacatur of the October 22, 2004 order did not eliminate the potential prejudice resulting from the ex parte communications between the judge and the special master.
In response to defendants' renewed motion for discovery, Judge Nixon recused himself from the case. In his order of recusal of February 3, 2006, Judge Nixon wrote that he recused himself "to remove any barrier 0907 perceived or real 0907 to the ultimate goal of increasing the State's compliance with EPSDT requirements." The case was then transferred to Judge Haynes, who had handled another branch of TennCare litigation. Judge Haynes held a status conference on February 10, 2006, to discuss outstanding issues with the parties' counsel. After

453 review of the record, Judge Haynes decided to retain the special master as a technical advisor *453 and appoint monitors to assist the parties and the court in identifying issues remaining in the case.
At the February 10, 2006 conference, defendants took the position that the state had achieved compliance with the Consent Decree. In response, plaintiffs propounded discovery requests in March 2006 seeking information and documents, including electronically stored information ("ESI"), relevant to the state's compliance. Defendants responded on May 15, 2006, but converted responsive ESI to hard paper copies. Between May and August 2006, the parties disputed whether the state was required to produce ESI as opposed to hard copies, and also disputed whether the state was required to provide responsive documentation from managed care contractors ("MCCs"). [2] When the parties could not resolve these issues, plaintiffs filed a motion to compel discovery on October 13, 2006. Prior to the dispute over ESI production, defendants had produced massive amounts of information by hard paper copy.
On November 21, 2006, the district court granted the plaintiffs' motion to compel in part. The court ordered defendants to provide responsive documents to plaintiffs in electronic format, subject to defendants' right to "claw-back" privileged documents. The court also ordered defendants to provide a written description of the technical specifications regarding the state's electronic data, and further provided that the parties were to create a protocol for production of electronic records. Because defendants conceded that some hard documents provided were produced in incomplete form, the court permitted the plaintiffs to obtain assurances on the completeness of discovery responses by requesting certification of all persons who were involved in searching the records and making discovery available on the state's behalf. The district court also ordered defendants to produce responsive documents in the possession of the MCCs.
On December 6, 2006, the district court held an "experts only" conference, where it directed the parties' computer experts to confer to develop a protocol to address problems with electronic discovery. At the end of the conference, the parties' experts announced a protocol for discovery and preservation of responsive ESI. The parties settled on electronic searches with keywords to be identified by the plaintiffs. The defendants were obliged to survey individuals identified as designated record custodians to ascertain whether those individuals had preserved relevant ESI.[3] On January 14, 2007, the court entered an order that authorized defendants to use zip software instead of forensic methods to preserve ESI.[4] The court also ordered defendants to file certifications from all record custodians as to whether any relevant information had been "removed" from their computers.
454 *454 In the ensuing weeks, the parties continued to dispute issues related to the production of ESI. The dispute culminated in the plaintiffs' filing a renewal of their motion to compel discovery on March 8, 2007. The district court conducted a hearing on the motion in June 2007 and, on October 9, 2007 and October 10, 2007, issued a 187-page memorandum opinion and accompanying order granting the motion to compel. In the memorandum opinion, the district court concluded that, from its perspective, "the core of this ESI discovery controversy is the absence of any effective attempt by the Defendants to preserve and segregate relevant ESI, since the filing of this action in 1998." The district court made several findings of fact, including the following:
(1) only in March 2004 did defendants prepare a litigation hold memorandum for employees and MCCs in TennCare;
(2) even if defendants distributed the March 17, 2004 litigation hold memorandum, it was not effectively implemented;[5]
(3) under the state's standard email system, emails older than 180 days automatically roll off the system unless archived;
(4) in some instances, state employees had not archived emails, and some employees left employment without preserving relevant documents;
(5) defendants did not tell the MCCs to preserve and produce responsive information until November 2006;

(6) the defendants' survey of state record custodians did not comply with the January 14, 2007 order.
In its conclusions of law, the district court discussed the defendants' duty to preserve ESI, and concluded that defendants had a duty to preserve such information from the beginning of the litigation. The court again noted that defendants did not create any meaningful litigation hold until March 17, 2004, and, even then, did not implement that litigation hold memorandum effectively. The court concluded that while officials and employees may have been reminded of the obligation to preserve responsive documents, they were left "to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant [or] material information in this complex action." Finally, after noting that other courts have sanctioned litigants for failing to preserve ESI, the court reserved discussion of sanctions until "completion of the ESI discovery ordered by the Court."
In its accompanying order of October 10, 2007, the district court directed defendants to provide complete responses to plaintiffs' discovery requests for ESI with the agreed terms, for the designated custodians, and for the time period of June 1, 2004 to the present. The court ordered that the ESI include all metadata and all deleted information on any computer of any of the designated custodians. Additionally, the order provided that plaintiffs' computer expert was to "inspect the Defendants' computer system to assess whether any changes have been made to hinder the ESI production." The court also ordered defendants to implement the March 17, 2004 litigation hold memorandum, to comply with the January 14, 2007 order, and to have designated custodians file certifications regarding whether any ESI had been removed from any computer. Following entry of the 455 memorandum *455 opinion and order, the court appointed Ronald J. Hedges, a former U.S. magistrate for the District of New Jersey, to serve as monitor for the ESI discovery.
Between October 15, 2007 and November 6, 2007, the parties filed a number of motions with the district court pertaining to electronic discovery. On October 15, 2007, defendants moved for reconsideration or clarification of the court's October 10, 2007 order, arguing that the court misunderstood the origin, purpose, and scope of the March 17, 2004 litigation hold memorandum. Defendants contended that the memorandum was directed to team leaders of the "TennCare Transformation Work Teams," which no longer exist. Defendants further argued that implementation of the March 17, 2004 memorandum would be redundant in light of other court-ordered ESI preservation procedures and that implementation of the memorandum "may very well be impossible."
On October 16, 2007 and October 17, 2007, plaintiffs filed a reply and supplemental reply to defendants' motion for reconsideration and clarification. Plaintiffs questioned defendants' "belated" contention regarding the narrow scope of the March 17, 2004 litigation hold memorandum. Plaintiffs also argued that defendants had taken inconsistent positions with respect to that memorandum. On October 24, 2007, defendants filed a second motion for reconsideration and clarification of the October 10, 2007 order. Among other things, defendants argued that the redaction of certain confidential information from the ESI ordered produced was not possible.
On October 30, 2007, plaintiffs requested an order imposing sanctions on defendants for failure to comply with the October 10, 2007 order. On November 6, 2007, plaintiffs also filed a motion to compel defendants to comply with the October 10, 2007 order. Plaintiffs claimed that "[d]efendants' defiance of the Order threatens to make it impossible to retrieve deleted discovery documents or assess the full extent of the State's destruction of electronically stored information."
In response to these motions, the district court issued the two discovery orders contested here. The court issued the first order on November 15, 2007, denying in part and granting in part defendants' first motion for reconsideration and denying in full defendants' second motion for reconsideration. While the court clarified that implementation of the March 17, 2004 litigation hold memorandum "is limited to a second review of the Defendants' paper documents for relevance to this action, production to the Plaintiffs and preservation," the court denied the remainder of defendants' requests. Like the order of October 10, 2007, the November 15, 2007 order included an inspection provision. The court ordered plaintiffs' computer expert, Michael Tigh, and monitor Ronald Hedges to inspect the state's computer system and any computers of the 50 key custodians that contain relevant information to "assess whether any production of information required by the Consent Decree or previous Order

[s] of the Court and the October 10, 2007 Order of the Court, has been impaired or compromised or removed." In addition, however, the November 15, 2007 order further provided that Tigh and Hedges

shall make forensic copies of any computer inspected to ensure the preservation of all existing

electronically stored information ("ESI"). The United States Marshal or his designated deputies

shall accompany Mr. Tigh, his computer expert and Mr. Hedges to ensure that this Order is fully

456

executed. Mr. Hedges shall provide any necessary guidance to *456 the United States Marshal or

his designee in executing this Order.

On November 16, 2007, defendants filed an emergency motion for clarification and/or reconsideration of the November 15, 2007 order. Defendants contended that the November 15 order was "extraordinarily intrusive and wholly unwarranted," and requested clarification from the district court that (1) any forensic copies will be taken into the custody of the United States Marshal and retained under seal pending further order of the court, (2) Tigh will ensure that any forensic examination be conducted in a manner that protects against disruption of regular state operations, and (3) the personal computers and homes of relevant officials are not within the scope of the order.

On November 19, 2007, the district court issued the second order. The court granted in part and denied in part defendants' emergency motion. The court stated that it had "entered an earlier Order [the January 14, 2007 order] predicated on the parties' experts' agreement to ensure preservation of ESI in a less intrusive manner (Docket Entry No 789, Order), but the Defendants breached that agreement and violated that Order." The court found defendants' suggestions that Tigh and Hedges would be disruptive in making forensic copies "at best disingenuous." The court then supplemented the November 15 order by providing that the U.S. Marshal will assume custody of the forensic images and that the court will maintain those images under seal pending further order. For privately-owned computers not located on state property, the court provided that "the U.S. Marshal or his designee shall arrange with state security personnel to go to the locations where such computers are located and shall remove the computers to a state office where Mr. Tigh can image them under the Monitor's oversight." In all other respects, the court's order of November 15, 2007 was to be executed "forthwith."

Thereafter, defendants sought an emergency stay from the district court. The district court denied defendants' motion to stay on November 26, 2007. In denying the stay, the court issued a memorandum opinion further explaining its bases for the November 15 and 19 orders. The court explained that "[t]hese Orders were to protect against the Defendants' destruction of responsive information in light of the Defendants' persistent refusals to produce ESI in violation of the Court's orders." The court stated its belief that "[d]efendants' assertions on ESI discovery have been inconsistent and inaccurate" and that the methods of forensic copying presented by the plaintiffs' expert "are neither disruptive nor unnecessarily intrusive." The court expressed that no threat of irreparable harm existed to defendants because "the forensic imaging will occur under safeguards that address the expressed legitimate concerns that the Defendants had."

On November 21, 2007, defendants filed an emergency motion with this court to stay the November 15 and 19 orders. This court granted the stay on December 7, 2007. We now address whether defendants are entitled to relief from the district court's orders.

II.

Because certain aspects of the district court's November 15 and 19 orders constitute a demonstrable abuse of discretion, we grant defendants' petition for mandamus. We set aside those portions of the orders that call for the forensic imaging of all hard drives and other devices that contain relevant ESI, including those provisions that 457 require the U.S. Marshal or his designee to accompany plaintiffs' computer *457 expert in the execution of the orders. We express no opinion with respect to other provisions in the orders that can be executed in a manner consistent with this opinion.
It is axiomatic that "[m]andamus relief is an extraordinary remedy, only infrequently utilized by this court." In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997). Mandamus from this court is generally reserved for "questions of unusual importance necessary to the economical and efficient administration of justice" or "important issues of

first impression." Id. (quoting EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982)). Indeed, for the writ to issue, petitioners must demonstrate a "clear abuse of discretion" on the part of the district court. Mallard v. U.S. Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989); In re King World Prods., Inc., 898 F.2d 56, 58 (6th Cir.1990).
In an effort to distinguish between "errors that are merely reversible and not subject to mandamus, and those errors that are of such gravity that mandamus is proper," In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 303 n. 5 (6th Cir.1984) (citation omitted), this court balances five factors. We examine whether: (1) the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired; (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the district court's order is clearly erroneous as a matter of law; (4) the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) the district court's order raises new and important problems, or issues of law of first impression. In re Perrigo Co., 128 F.3d at 435 (citing In re Chimenti, 79 F.3d 534, 540 (6th Cir.1996)). These factors need not all be met, and some factors will often be balanced in opposition to each other. Id. Because the first, second, third, and fifth factors all weigh in favor of granting the writ, this case presents the type of extraordinary circumstance that warrants mandamus relief.
At the outset, it is clear that defendants have no other adequate means to attain the relief they desire. This court has recognized that mandamus may be used as a "means of immediate appellate review of orders compelling the disclosure of documents and information claimed to be protected from disclosure by privilege or other interests in confidentiality." United States ex rel. Pogue v. Diabetes Treatment Centers of Am., Inc., 444 F.3d 462, 472 (6th Cir.2006) (quoting In re Perrigo Co., 128 F.3d at 436); see also In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir.2003) (noting that mandamus has been found appropriate where discovery orders implicate privacy rights). The orders at issue here compel the imaging and production of various state-owned and privately owned computers and electronic devices, and that media will almost certainly contain confidential state or private personal information that is wholly unrelated to the TennCare litigation. Plaintiffs are correct that the discovery orders merely call for the imaging of the relevant media and that the district court has yet to determine how to proceed with respect to the information contained on that media. Nevertheless, the mere imaging of the media, in and of itself, raises privacy and confidentiality concerns. Duplication, by its very nature, increases the risk of improper exposure, whether purposeful or inadvertent. Further, counsel for plaintiffs conceded at oral argument that the information contained on the hard drives, including information not related to this litigation, must eventually be accessed to determine relevance.
458 *458 Moreover, discovery orders such as those at issue here are generally not immediately appealable under the final judgment rule or the collateral order doctrine. See United States ex rel. Pogue, 444 F.3d at 471-72. This is so because a party "can obtain effective review of the district court order by failing to comply with the order and perfecting an appeal should the district court impose sanctions" or a contempt citation. Dow Chem. Co. v. Taylor, 519 F.2d 352, 355 (6th Cir.1975); see also Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir.1992). Although it is true that nothing prevents defendants in this case from disobeying the district court's orders and incurring a citation for contempt from which they could appeal, that approach would not afford defendants an adequate means to attain relief. The orders at issue here extend not only to computers and devices in the personal custody of defendants, but also to computers and devices in the custody of individuals that are not party to this litigation. As a consequence, defendants' refusal to obey the district court's orders will not preclude other individuals subject to the orders from complying. Because defendants, as state officers, maintain an interest in preventing the imaging of all computers and devices that contain confidential state information, an appeal from a contempt citation would not suffice to protect this interest.[6] Accordingly, the first factor weighs in favor of mandamus relief.
With respect to the second mandamus factor, the record indicates that the district court's orders will cause defendants to suffer at least some damage or prejudice that cannot be corrected on appeal. Contrary to the district court's conclusion, these orders cannot be executed without some disruption of state business. The orders require the plaintiffs' computer expert, accompanied by a deputy U.S. Marshal, to enter state agencies, and the offices and homes of state officials, to make forensic copies of hard drives and other devices that contain information related to the TennCare program. Leaving aside for the moment other federalism and comity concerns implicated by the orders, such procedures cannot be carried out without disrupting state business to

some degree. And, as discussed, the imaging of these computers and devices will result in the duplication of confidential and private information unrelated to the TennCare litigation. This duplication implicates significant privacy and confidentiality interests 0907 regardless of whether the imaged media are initially held under seal 0907 and these interests cannot be fully protected ex post. For these reasons, the second mandamus factor weighs in favor of granting the writ.
Most importantly, the district court's orders are clearly erroneous as a matter of law, thus meeting the third mandamus factor. Although district courts generally maintain broad discretion in matters of discovery, see Criss v. 459 City of Kent, 867 *459 F.2d 259, 261 (6th Cir.1988), this court will find an abuse of that discretion if "left with `a definite and firm conviction that the court below committed a clear error of judgment.'" Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 209 (6th Cir.1995) (quoting Taylor v. U.S. Parole Comm'n, 734 F.2d 1152, 1155 (6th Cir.1984)). The provisions in the orders that require the forensic imaging of all computers containing responsive ESI constitute an abuse of discretion.
As a general matter, it is beyond question that a party to civil litigation has a duty to preserve relevant information, including ESI, when that party "has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation." See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-18 (S.D.N.Y. 2003); The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Second Edition 11, 28 (The Sedona Conference Working Group Series, 2007), available at http://www.thesedona conference.org/content/miscFiles/ TSC_ PRINCP_2nd_ed_607.pdf. It is the responsibility of the parties to ensure that relevant ESI is preserved, and when that duty is breached, a district court may exercise its authority to impose appropriate discovery sanctions. See Fed.R.Civ.P. 37(b), (e)LQ; The Sedona Principles, supra, at 70 (noting that sanctions should be considered only if the court finds a clear duty to preserve, a culpable failure to preserve and produce relevant ESI, and a reasonable probability of material prejudice to the adverse party).
There is less clarity, however, surrounding the question of a district court's authority to compel the forensic imaging and production of computer hard drives as a means by which to preserve relevant electronic evidence. Because litigants are generally responsible for preserving relevant information on their own, such procedures, if at all appropriate, should be employed in a very limited set of circumstances. Cf. The Sedona Principles, supra, at 33 (noting that, because all litigants are obligated to preserve relevant information in their possession, preservation orders generally must be premised on a demonstration that a real danger of evidence destruction exists, a lack of any other available remedy, and a showing that the preservation order is an appropriate exercise of the court's discretion). In this case, the district court ordered the forensic imaging predominantly for preservation purposes, explaining that "[t]hese Orders were to protect against the Defendants' destruction of responsive information in light of the Defendants' persistent refusals to produce ESI in violation of the Court's orders." In so doing, the district court committed a clear error in judgment.
To be sure, forensic imaging is not uncommon in the course of civil discovery. See Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 WL 763668, at *3 (D.Kan. March 24, 2006). A party may choose on its own to preserve information through forensic imaging, and district courts have, for various reasons, compelled the forensic imaging and production of opposing parties' computers. See, e.g., Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *3-*6 (E.D.Mo. Dec.27, 2006), amended by 2007 WL 685623 (E.D.Mo. Feb.23, 2007); Cenveo Corp. v. Slater, No. 06-CV-2632, 2007 WL 442387, at *1-*3 (E.D.Pa. Jan. 31, 2007); Frees, Inc. v. McMillian, No. 05-1979, 2007 WL 184889, at *2 (W.D.La. Jan.22, 2007). Nevertheless, 460 "[c]ourts have been cautious in requiring the mirror *460 imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature." Balboa Threadworks, 2006 WL 763668, at *3; see also Balfour Beatty Rail, Inc. v. Vaccarello, No. 3:06-CV-551-J-20MCR, 2007 WL 169628, at *2-*3 (M.D.Fla. Jan.18, 2007); Diepenhorst v. City of Battle Creek, No. 1:05-CV-734, 2006 WL 1851243, at *2-*4 (W.D. Mich. June 30, 2006). As the Tenth Circuit has noted, albeit in an unpublished opinion, mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures. See McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed.Appx. 822, 831 (10th Cir.2001). And the Sedona Principles urge general caution with respect to forensic imaging in civil discovery:

Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail.... [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.
The Sedona Principles, supra, at 34, 47. Thus, even if acceptable as a means to preserve electronic evidence, compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures. Cf. Fed.R.Civ.P. 34(a) Advisory Committee Note (2006) ("Courts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.").
The district court's compelled forensic imaging orders here fail to account properly for the significant privacy and confidentiality concerns present in this case. The district court has ordered plaintiffs' computer expert, accompanied by deputy U.S. Marshals, to enter state agencies, and the offices and homes of state officials, to make forensic images of hard drives and other devices, whether state-owned or privately owned, that contain information relevant to the instant litigation. As discussed, the media at issue will almost certainly contain confidential state or private personal information that is wholly unrelated to the litigation. Although the risk of improperly exposing such information, standing alone, might not preclude the employment of forensic imaging in all cases, the forensic imaging must be premised on an interest significant enough to override that risk. Such an interest is not demonstrably present in this case.
In its memorandum opinion of October 9, 2007, the district court explained that it issued the contested orders because it believed that defendants had failed to comply with various discovery orders and had not properly preserved relevant ESI throughout the course of this litigation. The record is not sufficient for this court to question those conclusions. Even so, the record lacks evidence that defendants have intentionally destroyed relevant ESI in the past, and nothing in the record indicates that defendants are unwilling, or will refuse, to preserve and produce all relevant ESI in the future. Furthermore, forensic imaging is not the only available means by which the district court may respond to what it perceives to be discovery misconduct. The district court maintains authority to impose sanctions for discovery violations under the federal rules and pursuant to its 461 inherent powers. Although we take no position regarding the *461 propriety of sanctions in this case, such measures can be less intrusive than forensic imaging, and it is not apparent from the record that the district court has exercised its sanctioning authority. In fact, the district court expressly reserved discussion of sanctions in its October 9, 2007 opinion.
Aside from these privacy and confidentiality considerations, this case raises other obvious issues that counsel against the forensic imaging procedures ordered by the district court. As directives to state officials, these orders implicate federalism and comity considerations not present in typical civil litigation. Many of the computers subject to the orders are in the custody of high ranking state officials, and these computers will contain information related to confidential state matters. Further, the orders call for federal law enforcement officers to accompany plaintiffs' computer expert into state agencies 0907 and, in some cases, the homes and offices of state officials 0907 to effect the imaging. These procedures clearly do not take adequate account of federalism and comity considerations. If the use of federal law enforcement officers in matters of civil discovery is proper under some circumstances, those circumstances are not present here.
Certainly, state officials are not immune from complying with federal discovery mandates. However, where less intrusive means are available to address the perceived discovery violations of state parties, those means should be employed before resorting to inherently intrusive measures like forensic imaging, especially in cases where there is no evidence of purposeful or intentional destruction of relevant ESI. In light of the significant confidentiality and federalism concerns present in this case, the district court's forensic imaging orders constitute the type of "demonstrable abuse of discretion" that warrants mandamus relief. See In re Wilkinson, 137 F.3d 911, 914 (6th Cir.1998). The third mandamus factor thus weighs in favor of granting the writ.
Finally, the fifth mandamus factor weighs in favor of mandamus relief. This case involves important issues related to electronic discovery and forensic imaging. It also raises issues of federalism and comity that are not present in

typical civil litigation. Addressing these issues now serves to provide district courts with guidance on such matters in the future.
For the foregoing reasons, we grant defendants' petition for mandamus and set aside those provisions of the district court's November 15, 2007 and November 19, 2007 orders that require the forensic imaging of stateowned and privately owned computers, including the provisions that require the U.S. Marshal or his designee to assist plaintiffs' computer expert in the execution of the orders. We recognize that the two contested orders also contain provisions related to the inspection of defendants' computer system. We decline to address those provisions to the extent that those provisions can be executed in a manner consistent with this opinion and without undue intrusion.
R. GUY COLE, JR., Circuit Judge, concurring.
I concur in the majority's thoughtful opinion and write separately only to recognize the district court's efforts to resolve this extensive and complex proceeding, which has been made more difficult by Defendants' repeated delays and the institutional inefficiencies that plague the TennCare system.
This case has been pending for ten years. Since spring 2006 alone, the district court has overseen a discovery 462 process that has included nine hearings and conferences, generating a record that *462 spans more than 1,700
transcript pages. After finding that Defendants repeatedly violated their agreements set forth in the Consent Decree, breached their agreement with Plaintiffs regarding the dates for ESI discovery, and ignored the district court's directions to provide ESI to Plaintiffs, the court understandably concluded that extraordinary action was necessary to preserve potentially relevant ESI. And I would ordinarily defer to the discretion of the district court, which has had the arduous job of managing this difficult case 0907 along with another branch of TennCare litigation 0907 for the past decade.
This case is unique, however, in that the court's order includes the forensic imaging of computers in the custody of individuals not party to this matter, and that the order may lead to confrontations between federal marshals and state officials. Under these circumstances, I agree with the majority that, without evidence that Defendants intentionally destroyed relevant ESI in the past or that they are affirmatively unwilling to preserve all relevant ESI in the future, the district court should first employ less intrusive means to address the perceived discovery violations.
It is clear that the district court's focus has been to assist the parties in forging a solution that would ensure that Tennessee's children receive the benefits owed to them under the Consent Decree and federal law. Defendants' continual noncompliance and acrimonious litigation practice has unfortunately steered this case away from such goal, with the costs borne by the judicial system and the citizens of Tennessee. The district court has thus far reserved the exercise of its wide discretion to hold Defendants in contempt or to impose monetary sanctions. If the district court resorts to such measures and Defendants nevertheless continue to disregard their undisputed duty to preserve and produce relevant ESI, the preservation order at issue in this case, in my view, may no longer be considered inappropriate.
[1] The dispute regarding the ex parte communications involved the special master's submission of an August 2, 2004 status report to the court. The status report allegedly "repeatedly cited statements Defendants had made in confidence to the Special Master's Office pursuant to the compliance evaluation process."
[2] MCCs deliver the health care services to the plaintiff class.
[3] For discovery purposes, there are 50 key record custodians that were apparently proposed by plaintiffs and accepted by defendants. The state also provided a list of over 160 designated record custodians (of which the 50 key custodians are part) whose files were reviewed for the purpose of responding to discovery requests.
[4] Prior to the January 14, 2007 order, the district court entered an order at a December 20, 2006 status conference that instructed defendants to "make a forensic copy of the current `My Documents' or equivalent folder from the local machines of all designated custodians." In response, the state raised questions about the

method of preservation of responsive ESI and, based on the consensus of the parties, the court allowed defendants to use zip software rather than forensic copying to preserve responsive ESI.
[5] On March 17, 2004, the state issued a memorandum to work teams established by the Governor to reform the TennCare program. This memorandum acknowledged a duty to preserve relevant ESI and other information, and set out procedures for such preservation. The parties have disputed the scope and purpose of this memorandum.
[6] These facts also give the district court's orders some of the markings of immediate appealability articulated in Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Under Perlman, "a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance." Church of Scientology of Cal. v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). This court has noted that the Perlman exception "was designed to allow the holder of the privilege and not the custodian of the documents to immediately appeal without being subject to contempt." United States v. James T. Barnes & Co., 758 F.2d 146, 146 (6th Cir.1985). Because defendants in this case are record custodians, this case does not fit precisely within the Perlman exception. And because our authority in mandamus is clear here, there is no need to apply Perlman to the facts of this case.
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 JOHN B., CARRIE G., JOSHUA M., MEGAN A. and ERICA A., by their next friend, L.A.; DUSTIN P., by his next friend, Linda C.; BAYLI S. by her next friend, C.W.; JAMES D. by his next friend, Susan H.; ELSIE H. by her next friend, Stacy Miller; JULIAN C. by his next friend, Shawn C.; TROY D. by his next friend, T.W.; RAY M. by his next friend, P.D.; ROSCOE W. by his next friend, K.B.; JACOB R. by his next friend, Kim B.; JUSTIN S. by his next friend, Diane P.; ESTEL W. by his next friend, E.D.; individually and on behalf of all others similarly situated, Plaintiffs, DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration; DARIN GORDON, Deputy Commissioner, Bureau of TennCare; and VIOLA MILLER, Commissioner, Tennessee Department of Children's Services, De-
fendants.
NO. 3:98-0168
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2010 U.S. Dist. LEXIS 8821
January 28, 2010, Filed
PRIOR HISTORY: John B. v. Goetz, 661 F. Supp. 2d 871, 2009 U.S. Dist. LEXIS 86303 (M.D. Tenn., 2009)
COUNSEL: [*1] For John B., by their next friend, L.A., Plaintiff: Leanna Marie Anderson, LEAD ATTORNEY, PRO HAC VICE, Barry Leigh Weissman, LEAD ATTORNEY, Sonnenschein, Nath & Rosenthal, Los Angeles, CA; Elizabeth Banston Hutto, George Gordon Bonnyman, Jr., Michele M. Johnson, Patricia C. Gunn, LEAD ATTORNEYS, Tennessee Justice Center, Inc., Nashville, TN; Everette L. Doffermyre, Kimberly Jean Johnson, Ralph I. Knowles, Jr., LEAD ATTORNEYS, Doffermyre, Shields, Canfield, Knowles & Devine, Atlanta, GA; Jason Francis Choy, Junaid Khalil, Victoria Reznik, LEAD ATTORNEYS, Sarah Kao-Yen Tsou, Vanessa C. Singh, PRO HAC VICE, William S. W. Chang, Kirkland & Ellis, New York, NY; Jeffrey S. Goldman, Mary B. Anderson, Robert Thomas Joseph, LEAD ATTORNEYS, Sonnenschein, Nath & Rosenthal, Chicago, IL; Katherine Evans, LEAD ATTORNEY, PRO HAC VICE, Sonnenschein, Nath & Rosenthal, San Francisco, CA; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein Nath & Rosenthal, Kansas City, MO.
For Carrie G., by their next friend, L.A., Estel W., by his next friend, E.D., Justin S., by his next friend, Diane P., Jacob R., by his next friend, Kim R., William B., by his next friend, K.B., Roscoe W., by his next friend, B.W., Ray [*2] M., by his next friend, P.D., Troy D., by his next friend, T.W., Julian C., by his next friend, Shawn C., Elsie H., by new hext friend, Stacy Miller, James D., by his next friend, Susan H., Bayli S., by her next friend, C.W., Dustin P., by his next friend, Linda C., Erica A., by their next friend, L.A., Meagan A., by their next friend, L.A., Joshua M., by their next friend, L.A., Plaintiffs: Elizabeth Banston Hutto, George Gordon Bonnyman, Jr., Michele M. Johnson, Patricia C. Gunn, LEAD ATTORNEYS, Tennessee Justice Center, Inc., Nashville, TN; Everette L. Doffermyre, Kimberly Jean Johnson, Ralph I. Knowles, Jr., LEAD ATTORNEYS, Doffermyre, Shields, Canfield, Knowles & Devine, Atlanta, GA; Jason Francis Choy, Junaid Khalil, Victoria Reznik, LEAD ATTORNEYS, William S. W. Chang, Kirkland & Ellis, New York, NY; Jeffrey S. Goldman, Mary B. Anderson, Robert Thomas Joseph, LEAD ATTORNEYS, Sonnenschein, Nath & Rosenthal, Chicago, IL; Mark P. Johnson, LEAD ATTORNEY, Sonnenschein Nath & Rosenthal, Kansas City, MO.
For Nancy Menke, Commissioner, Tennessee Department of Health, George W. Hattaway, Commissioner, Tennessee Department of Children Services, Theresa Clarke, Assistant Commissioner, Bureau [*3] of TennCare, Defendants: Brian Stuart Koukoutchos, Dean John Sauer, Michael Weitzner, LEAD ATTORNEYS, Charles J. Cooper, Derek L. Shaffer, Michael W. Kirk, Nicole J. Moss, Cooper & Kirk, Washington, DC; Carolyn E. Reed, Linda A. Ross, LEAD ATTORNEYS, Janet M. Kleinfelter, Tennessee Attorney General's Office, Nashville, TN; Charles A. Miller, LEAD

ATTORNEY, Covington & Burling, Washington, DC; Ronald G. Harris, LEAD ATTORNEY, Aubrey B. Harwell, Jr., Philip D. Irwin, Neal & Harwell, Nashville, TN.
For Nashville CARES, Mark Levine, Intervenor Plaintiffs: George Edward Barrett, LEAD ATTORNEY, Barrett, Johnston & Parsley, Nashville, TN.
For Richard A. Carter, M.D., Relieved as Special Master/Appointed as Technical Advisor per Order DE # 601, Interested Party: Richard A. Carter, LEAD ATTORNEY, Strategic Preventive Medicine, Nashville, TN.
For Leilani S. Boulware, Meharry Medical College, Monitor, Interested Party: Leilani Boulware, LEAD ATTORNEY, Meharry Medical College, Nashville, TN.
For Alex Hurder, Vanderbilt School of Law, Monitor, Interested Party: Alex Jay Hurder, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Susan Kay, Vanderbilt School of Law, Monitor, [*4] Interested Party: Susan Laurie Kay, LEAD ATTORNEY, Vanderbilt Legal Clinic, Vanderbilt School of Law, Nashville, TN.
For Michael Passino, Monitor, Interested Party: Michael James Passino, LEAD ATTORNEY, Nashville, TN.
For Robert L. Smith, Smith, Hirsch, Blackshear & Barnes, PLC, Monitor, Interested Party: Robert Lewis Smith, LEAD ATTORNEY, Smith & Hirsch, Nashville, TN.
For First Health Services Corporation, Interested Party: Beth L. Domenick, Scott L. Vernick, LEAD ATTORNEYS, Fox Rothschild LLP, Philadelphia, PA; Scott Hickman, LEAD ATTORNEY, Sherrard & Roe, SunTrust Financial Center, Nashville, TN.
For UnitedHealthcare Plan of the River Valley, Inc., d/b/a AmeriChoice, Interested Party: Gary C. Shockley, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC-Nashville, Commerce Center, Nashville, TN; John S. Hicks, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC-Nashville, Nashville, TN.
For Unison Health Plan of Tennessee, Inc., Interested Party: Joseph C. Safar, Thomas J. Smith, LEAD ATTORNEYS, K&L Gates LLP, Pittsburgh, PA; Stephen H. Biller, LEAD ATTORNEY, Biller Law Firm, Memphis, TN.
For BlueCross Blueshield of Tennessee, Interested Party: Marc R. Jenkins, [*5] William Beesley Hubbard, LEAD ATTORNEYS, Hubbard, Berry & Harris, PLLC, Nashville, TN.
For QSource, Interested Party: Michael D. Hornback, LEAD ATTORNEY, Wyatt, Tarrant & Combs, Nashville, TN.
For Doral Dental of Tennessee, LLC, Interested Party: Kathryn Hannen Walker, Wallace Wordsworth Dietz, LEAD ATTORNEYS, Bass, Berry & Sims, Nashville, TN.
For Preferred Health Partnership of Tennessee, Inc., Interested Party: Martin B. Bailey, LEAD ATTORNEY, Wagner, Myers & Sanger, Knoxville, TN.
For Tennessee Behavioral Health, Inc., Premier Behavioral Systems of Tennessee, LLC, Interested Parties: Charles B. Welch, Jr., Christopher Corum Webb, LEAD ATTORNEYS, Farris, Mathews, Branan, Bobango & Hellen, PLC, Nashville, TN.
For Amerigroup Corporation, Interested Party: Paul Savage Davidson, LEAD ATTORNEY, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN.
For Memphis Managed Care Corporation, doing business as TLC Family Care Health Plan, Interested Party: David H. Lillard, LEAD ATTORNEY, Burch, Porter & Johnson, PLLC, Memphis, TN.

For Sanford Bloch, Intervenor: George Edward Barrett, LEAD ATTORNEY, Barrett, Johnston & Parsley, Nashville, TN.

For Tim Jones, Mary Kathryn Duncan, William Duncan, Intervenor [*6] Plaintiffs: George Edward Barrett, LEAD ATTORNEY, Edmund L. Carey, Jr., Gerald E. Martin, Barrett, Johnston & Parsley, Nashville, TN.

JUDGES: WILLIAM J. HAYNES, JR., United States District Judge.

OPINION BY: WILLIAM J. HAYNES, JR.

OPINION MEMORANDUM
I. History of this Litigation

*2*TABLE OF CONTENTS

A. Consent Decree and Earlier Proceedings

B. The Court's 2001 Findings of the Defendants' Noncompliance

C. The Court's 2004 Findings of the Defendants' Noncompliance

D. The Recusal Order and Reassignment

E. The 2006 Discovery Proceedings

II. Plaintiffs' Renewed Motion to Compel

A. Findings of Fact

1. Information Requirements and Discovery Rights under the Consent Decree

2. The Lack of Preservation of Relevant Records

3. Inadequacies in the Defendants' 2006 Paper Production

4. The Necessity of Plaintiffs' ESI Discovery Requests

5. The Costs of ESI Production

6. Privileged Information in the ESI Production

7. Defendants' Failures to Answer Plaintiffs' Requests for Admissions and to Comply with the January 14th Order

8. Other ESI Production Issues

B. Conclusions of Law

1. Discovery from the MCCs

2. Discovery Standards

*2*TABLE OF CONTENTS 3. Discovery Rules on Electronic Discovery 4. Duty to Preserve
5. The Undue Burden Analysis
(i) Types of ESI Data
(ii) Defendants' and MCCs' Databases
(iii) The Costs of Production
6. The Good Cause Showing and the Rule 26(b)(2)(C) factors
7. Privilege Issues
a. Attorney -Client Privilege
b. Work Product Privilege
c. Joint Defense Privilege
d. Deliberative Process Privilege
e. State Statutory Privileges
8. Defendants' Failures to Answer Plaintiffs' Requests for Admissions and to Comply with the January 14th Order
III. Remedies Plaintiffs, [*7] John B., and other minors through their next friends, filed this action on behalf of themselves and
other similarly situated minors under 42 U.S.C. ß 1983, asserting jurisdiction under 28 U.S.C. ß 1331, the federal question jurisdiction statute, with its statutory counterpart, 28 U.S.C. ß 1343(a)(3) and (4). Plaintiffs' action is on behalf of a class of approximately 550,000 children who are entitled under federal law to medical services that include early and periodic screenings for their physical well being, including their dental and behavioral health needs. Federal law also requires any necessary follow-up medical services. The Plaintiffs' class includes children who are in the state's custody through the state's juvenile court system and other children's programs provided by the State of Tennessee.
Plaintiffs seek to enforce their rights under Title VI of the Social Security Act, 42 U.S.C. ßß 620-629 and 670-679 and Title XIX of that Act, 42 U.S.C. ß 1396 et seq. as well as remedies for violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In essence, Plaintiffs allege that the Defendants deprived them of their rights to early and periodic [*8] screening, diagnosis and treatment (EPSDT) services and related medical care for children under State's TennCare program and children who are in the Defendants' legal custody and are also entitled to such services under Title VI.
The original Defendants were Nancy Menke, Commissioner, Tennessee Department of Health; Theresa Clarke, Assistant Commissioner, Bureau of TennCare; and George Hattaway, Commissioner, Tennessee Department of Children's Services. The successors in office and current Defendants are: David Goetz, Commissioner, Tennessee Department of Finance and Administration; J.D. Hickey, Assistant Commissioner, TennCare Bureau 1 ; and Viola Miller, Tennessee Department of Children's Services. The Defendants are state officials who are in charge of the State programs for these services that are federally funded by Congress under Title VI of the Social Security Act, 42 U.S.C. ßß 620-629 and 670679 and Title XIX of that Act. The medical services at issue are provided under the State's TennCare program, a waiver program approved by the Center for Medicare and Medicaid Services ("CMS"). The actual providers of these medical services are the Managed Care Contractors ("MCCs") or Managed [*9] Care Companies ("MCOs") that have contracts

with the State detailing their responsibilities. Some MCCs provide only management services and some MCCs specialize in dental or behavioral health services.
1 The Defendant Hickey has since left state employment and substitution of his successor has not been sought.
Contemporaneous with the filing of the complaint, Plaintiffs requested class certification and the parties agreed to entry of a Consent Decree to remedy Plaintiffs' claims and to certify the class. (Docket Entry No. 3). The Court certified the class and entered the Consent Decree (Docket Entry No. 12) that granted declaratory and injunctive relief on Plaintiffs EPSDT claims. The Consent Decree enjoined the Defendants, as state officials, from depriving Plaintiffs and members of their class of their rights to EPSDT services; set minimum percentages of screenings for different groups of children over a period of years for compliance with EPSDT laws; and required a detailed, multi-year remedial plan to ensure the Defendants' compliance with Consent Decree. Lengthy and complex proceedings followed, including several show cause and contempt hearings. (Docket Entry Nos. 79, 228, 270, [*10] 291, 465 and 558).
After a series of hearings and conferences on the parties' current discovery disputes, the Court ordered that discovery of electronically stored information ("ESI") 2 shall be provided and directed the parties' computer experts to develop a protocol for ESI discovery from the Defendants and their MCCs. On December 6, 2006, the Plaintiffs' and the State's computer experts agreed to a protocol for the ESI discovery that was subject to modifications for the search terms and consultations with the MCCs. (Docket Entry No. 764 at pp. 14-26 and Docket Entry No. 765). The Defendants continued to oppose the terms for production of Plaintiffs' ESI discovery. Plaintiffs then renewed their motion to compel.
2 ESI can be defined as "any information created or stored in digital form whenever a computer is used to accomplish a task" Chung & Byer, The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence, 4. B.U. J. SCI. & TECH. L. 5, para. 8 (1998) or "any electronically-stored information subject to pre-trial discovery" Scheindlin & Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. REV. 327, 332-33 (2000).
Before [*11] the Court is the Plaintiffs' renewed motion to compel (Docket Entry No. 826) that asserts their discovery rights to ESI from the Defendants and the MCCs under Orders of the Court, the Federal Rules of Civil Procedure and the Consent Decree. Plaintiffs contend that the ESI is necessary to assess the Defendants' contention that they are now in compliance with the Consent Decree and to discover whether the Defendants' remain noncompliant, as earlier found by the Court. Plaintiffs ask the Court to compel the Defendants' compliance with the Court's earlier Orders for the Defendants to produce ESI and to require certain key custodians to certify that documents covered by the Plaintiffs' discovery requests have not been removed or destroyed. For their motion, Plaintiffs rely upon the Court's earlier Orders compelling the Defendants' production of:
1. Documents, ESI and information in the possession or control of the State's contractors. 3
2. ESI in the possession of the State's key custodians. 4
3. The identities of former employees of the State and its contractors with substantial EPSDT responsibilities. 5
4. Certifications from key custodians whether any responsive ESI has been removed. 6
5. [*12] Files for a sample of TennCare children who sought care from the Children's Special Services (CSS) program. 7
6. Answers, signed by all key custodians who participated in preparing the State's discovery responses to the Plaintiffs' requests for admissions and interrogatories seeking assurances that responsive documents and ESI had not been destroyed and had been produced. 8
(Docket Entry No. 826, Plaintiffs' Renewed Motion to Compel at pp. 2-3). In sum, the Plaintiffs assert that their ability to protect the interests of the class requires a complete ESI production from the Defendants and their MCCs because a complete ESI production is a essential guide through the State's and MCCs' complex systems on this statewide healthcare system.

3 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 72-73) and Order of November 21, 2006 (Docket Entry No. 743 at pp. 1-2). 4 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 29, 68); Order of November 21, 2006 (Docket Entry No. 743 at p. 2). 5 Bench ruling of November 6, 2006 (Docket Entry No. 734 at p. 49) and Order of November 21, 2006 (Docket Entry No. 743 at p. 3). 6 Order of January 14, 2007 (Docket Entry No. 789 at p. 3), citing [*13] Docket Entry No. 785-2, Tigh Affidavit, P C. 7 Bench ruling of November 6, 2006 (Docket Entry No. 734 at p. 65) and Order of November 21, 2006 (Docket Entry No. 743 at p. 4). 8 Bench ruling of November 6, 2006 (Docket Entry No. 734 at pp. 56-64); bench ruling of December 20, 2006 (Docket Entry No. 786 at pp. 41-42); Order of November 21, 2006 (Docket Entry No. 743 at p. 3). The Defendants filed partial responses on January 30, 2007. (Docket Entry No. 799). Yet, nine former employees, including two former TennCare directors or supervisors and the Governor, did not respond personally.
In their responses, (Docket Entry Nos. 893, 898, 907, 929 and 953), Defendants and the MCCs assert, in essence, that Plaintiffs' ESI production requests are unduly burdensome based upon the extraordinary costs of production. These costs are for the actual technical production costs and substantial personnel and lawyer time to conduct the necessary privilege reviews. Moreover, the Defendants cite their earlier production of hard copies of responsive documents for the period for 2004 to April 6, 2006. 9 In their view, that paper production precludes an ESI production for the same time period. In addition, the [*14] Defendants and MCCs rely upon federal and state privacy laws that preclude the discovery of some information sought by the Plaintiffs. The MCCs also cite the need to exclude information protected by their contracts with other businesses and Medicaid programs in other states.
9 The Defendants also assert that if the Court would grant their pending motion to vacate the Consent Decree, these discovery issues would be moot. First, the Court previously addressed the contentions in their motion to vacate and the Court denied that motion. (Docket Entry No. 646, April 17, 2006 Conference at pp. 9-12). The Defendants did not appeal that ruling. Second, under Local Rule 16.01(e)(1), the pendency of a dispositive motion does not stay discovery. Third, the Court had been working on the Defendants' motion to vacate and from its research and the state of the record, the Court remains confident that ruling on the discovery disputes is appropriate. If the Defendants had not been so intransgient on discovery issues requiring extraordinary amounts of the Court's time, there would have been a ruling on the motion to vacate. The Court will continue its research on that motion, but the Court also has to [*15] give attention to other actions on this Court's docket because rulings in other actions have been delayed because of the extraordinary amount of time the Court has had to expend on the ESI issues in this action.
Also before the Court are the MCCs' related motions to allocate discovery costs. (Docket Entry Nos. 920, 921, 935) to which the Defendants responded. (Docket Entry No. 946). The MCC Doral filed a reply (Docket Entry No. 964). The MCC BlueCross /BlueShield has filed a motion to alter or amend the June 1, 2007 Order or motion for a partial new trial. (Docket Entry No. 931).
After extensive proceedings on the issues raised by the Plaintiffs' renewed motion to compel and shortly before the Court's filing of this Memorandum on Plaintiffs' renewed motion to compel, the Defendants filed a "Notice" of mootness. (Docket Entry No. 1023). Defendants stated that in contemplation of the Court's imminent adverse ruling, the Defendant were proceeding to produce the ESI discovery. Thus, the Defendants suggested the Plaintiffs' renewed motion to compel was moot. The Court delayed filing this Memorandum to allow Plaintiffs and any MCC the opportunity to respond to the Defendants' Notice. As reflected [*16] in the Plaintiffs' responses (Docket Entry No. 1024 and 1025) to which the Defendants filed a reply (Docket Entry No. 1027), Plaintiffs contend that the Defendants' Notice does not moot their renewed motion to compel and in fact, raises more issues. The Defendants' Notice among other things, would set a January 2007 time limit to the ESI production and limit any privilege review to a word search. Plaintiffs argue that the Defendants' Notice reflects the Defendants' bad faith litigation tactics that caused the Plaintiffs, MCCs and the Court to expend extraordinary resources on issues the Defendants now declare moot.
The Court respectfully declines the Defendants' suggestions of mootness. First, the Plaintiffs' responses to the Defendants' Notice reflect the actual lack of mootness and additional issues created by this Notice. Moreover, as set forth in this Memorandum and as established by the record in this action, the Court observes: (1) that the Defendants have repeatedly violated their agreements set forth in the Consent Decree; (2) that the Defendants have failed to comply with

Judge Nixon's Order to submit an Initial Work Plan to remedy the Defendants' violation of federal law to [*17] conform to the Consent Decree; (3) that the Defendants refused to corporate with the Special Master appointed by the Court to develop a plan for compliance with federal law as required by the Consent Decree; (4) that the Defendants have disavowed a clear command of the Consent Decree to develop a specific remedial plan; (5) that the Defendants breached their agreement with the Plaintiffs on the dates for ESI discovery and the ESI protocol; (6) that the Defendant have ignored the Court's directives to provide ESI to Plaintiffs; and (7) that the Defendants failed to comply with the Court's Orders on discovery. In these circumstances, the Court lacks confidence in the Defendants' assertions that the discovery disputes in this action are moot.
I. History of this Litigation
To decide the Plaintiffs' renewed motion to compel and to understand the related issues before the Court, a brief discussion of the history of this litigation is necessary. 10 This review provides insights to understand the ESI discovery sought by the Plaintiffs and the necessity for that discovery.
10 This section of the Memorandum is organized for the purpose of analyzing the factors in Fed. R. Civ. P. 26(b)(2)(C) as well [*18] as other rules in light of the 2006 amendments of the Rules of Civil Procedure governing ESI. The Court deeply regrets the length of the Memorandum, but a reasoned resolution of the parties' contentions requires its length.
A. The Consent Decree and Earlier Proceedings
The Consent Decree certified the class, conferred substantive relief to the members of the Plaintiffs' class and imposed obligations upon the Defendants and the MCCs to provide EPSDT services to the class members and to report on their provisions of such services. (Docket Entry No. 12). Here, the pertinent substantive provisions of the 1998 Consent Decree found certain facts and established criteria for compliance, subject to practical limitations and those provisions are as follows:
29. The timetable negotiated by the parties affords the state a period of more than five years within which to achieve full compliance with EPSDT and related laws. Settlement thus gives the state a grace period within which to achieve compliance, thereby countenancing partial noncompliance for five more years.
30. Nonetheless, present officials cannot correct problems overnight which have been years in the making. Their development of the remedial [*19] plan is itself evidence of their genuine commitment to reform. . .
* * *
33. The fact that state policy is still being developed poses special challenges for the drafting of an appropriate order in this case. On the other hand, present problems point up the need to afford immediate protection to children who plaintiffs allege are not now receiving the care to which the law entitles them and who are liable to suffer serious, irreparable harm if such care is not provided. They cannot be asked to wait for additional months or years to know if policies now under development by the defendants will some day adequately protect their rights.
* * *
46. A baseline periodic screening level will be calculated by the TennCare Bureau using HCFA 416 mathematical methodology and enrollment and encounter data to determine the number of periodic screens that should have occurred in the federal fiscal year ending September 30, 1996. The CPT-4 and ICD-9CM codes specified in HEDIS 3.0 as well-child visits and adolescent well-care visits will be the primary determinants of which encounters are counted as periodic screens. The baseline periodic screening ratio for the period from October 1, 1995 through September [*20] 30, 1996 will be calculated using HCFA 416 methodology. This baseline periodic screening ratio will be multiplied by 100 to calculate the baseline periodic screening percentage. Subsequent periodic screening percentages will be calculated using methodology identical to that used in calculation of the baseline periodic screening percentage.
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50. For the period of October 1, 2000 through September 30, 2001, the [Adjusted Period Screening Percentage] APSP shall be no less than 80. The APSP for the federal fiscal year ending on September 30, 2001will be calculated by TennCare and made available to the plaintiffs by April 30, 2002.
For the period of October 1, 2002 through September 30, 2003, the DSP shall be no less than 80. The DSP for the federal fiscal year ending on September 30, 2003 will be calculated by TennCare and made available to the plaintiffs by April 30, 2004.
* * *
52. The Defendants shall achieve complete screening of 100% of TennCare children in DCS custody within 18 months of the entry of this order, and shall maintain that level of screening thereafter. [*21] The tracking system developed by DCS shall be the system which shall be used to report compliance with this standard.
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54. Defendants shall ensure that within their respective spheres of responsibility, TennCare, the MCCs and DCS provide children all medically necessary EPSDT services as listed in 42 U.S.C. ß 1396d(a) and as defined in corresponding Medical regulations. Services which are required under EPSDT law, when medically necessary, are as follows:
(a) Inpatient hospital services (other than services in an institution for mental illness);
(b) Outpatient hospital services; rural health clinic services; and services offered by a federally-qualified health center;
(c) Other laboratory and x-ray services;
(d) EPSDT services, and family planning services and supplies;
(e) Physicians' services; medical and surgical services furnished by a dentist;
(f) Medical care, or any other type of remedial care recognized under state law, furnished by licensed practitioners within the scope of their practice as defined by state law;
(g) Home health care services;
(h) Private duty nursing services;
(i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(l) Prescribed drugs, [*22] dentures, and prosthetic devices; eyeglasses;
(m) Other diagnostic, screening, preventive, and rehabilitative services;
(n) Services in an intermediate care facility for the mentally retarded (other than in an institution for mental diseases);
(o) Impatient psychiatric services for individuals under age 21;
(p) Services furnished by a nurse-midwife;
(q) Hospice care;
(r) Case management services and TB-related services;
(s) Respiratory care services;
(t) Services furnished by a certified pediatric nurse practitioner or certified family nurse practitioner;

(u) Personal care services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for the mentally retarded, or institution for mental disease; and
(v) Any other medical care, and any other type of remedial care recognized under state law, specified by the Secretary of the United States Department of Health and Human Services.
In addition to the services identified in the above list, the TennCare waiver allows the used of costeffective alternative services in certain situations. These cost-effective alternative services are identified as services which may or may not be included [*23] in the above list and which are medically appropriate and cost-effective when delivered in place of other services on the list which have been determined to be medically necessary for an individual enrollee. The parties recognize that there are many kinds of services which fit under the above list of covered services and that delivery of medically necessary services may involve different service delivery mechanisms.
55. The defendants shall review MCO practices with regard to making decisions about medical necessity and identify any practices that are inconsistent with the federal laws cited herein. The defendants shall issue clarifications and ensure compliance with such federal law, regarding medically necessary treatment, including but not limited to, the following clarifications:
(a) The prior authorizations and medical determinations shall be made on a case-by-case basis for each service sought for a class member.
(b) That services are provided if necessary "to correct or ameliorate defects and physical and mental illnesses and conditions. . . ." 42 U.S.C. ß 1396d(r)(5).
(c) That the definition of medical necessity shall be applied so that services are covered if they correct, compensate [*24] for, improve, or prevent a condition from worsening, even if the condition cannot be prevented or cured.
(d) That medically necessary services shall be provided, whether or not the screener is under contract with the particular managed care entity.
(e) That defendants and their contractors and subcontractors are in compliance with HCFA Office of Managed Care Operational Policy Letter No. 96.045 (December 3, 1996), and do not have financial or contractual arrangements which undermine class members' access to covered services. (See Attachment 1).
(Docket Entry No. 12 at PP 29, 30, 33, 46, 50, 52, 54, and 55) (emphasis added).
The Consent Decree also set a series of deadlines for the Defendants to accomplish these substantive provisions:
39. Within 180 days of entry of the decree, the State shall adopt any policies and procedures necessary to ensure TennCare rules and guidelines clearly describe and allocate responsibility for and require compliance with each specific outreach and informing requirement under federal law...
* * *
43. The Defendants or their contractors shall achieve within 240 days and shall maintain thereafter, EPSDT outreach efforts designed to reach all members of the plaintiff [*25] class with information and materials conform with Section V(B)(1)(a).
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45. Within 120 days after this order is entered, a baseline percentage of screening compliance shall be determined. The defendants, in consultation with the plaintiffs, shall determine the percentage based on the best available data on recent screening levels.
* * *
53. Within 120 days of the entry of this order, the defendants shall establish and maintain a process for reviewing the practices and procedures of the MCOs and DCS, and require such modifications of those practices and procedures as are necessary to ensure that children can be appropriately referred from one level of screening or diagnosis to another, more sophisticated level of diagnosis as needed to determine the child's physical health, behavioral health and development needs, as to medically necessary services.
* * *
60. Within 120 days of this decree, TennCare shall develop a provider handbook to specify the responsibilities of MCOs and DCS related to the provision of medically necessary services for children in DCS custody. This handbook shall assist in delineating service duty responsibilities in the area where there is the most potential for [*26] overlap, and said provider book shall provide... [And then it identifies a number of requirements.]
* * *
62. Beginning no later than 180 days after the entry of this Order, the defendants shall require MCOs to provide each primary care provider participating in the EPSDT program an up-to-date list of specialists to whom referrals may be made for screens, laboratory tests, further diagnostic services and corrective treatment. This list shall be supplemented quarterly to indicate additions or deletion and shall comply with the access/availability standards of the 1115 waiver.
* * *
65. Within 180 days of this order, the State shall issue any necessary policy clarifications so that the defendants and their contractors understand their duty to provide EPSDT diagnosis and treatment services consistent with 42 U.S.C. Section 1396d, Subsection (r). Thereafter, the defendant shall inform in a timely manner and on an ongoing basis all of their contractors about what federal Medicaid law requires with respect to specific screens, diagnoses and treatments.
* * *
72. Within 30 days of the entry of this Order the defendants shall submit a notice of proposed rulemaking to withdraw state rules establishing [*27] lifetime dollar limits and absolute service limits on behavioral health services to children under 21.
73. Within 120 days of the entry of this Order, the state or the state's contractor shall monitor a sample of children entering DCS custody and assess the adequacy of services provided to them by TennCare contractors prior to their entry into custody. The review will include an assessment of the effectiveness of the services provided to the child prior to the custody arrangement being made.
* * *
82. Within 180 days, the defendant shall issue regulations and policy guidance to their contractors which incorporate strategies for ensuring coordination of EPSDT services among contractors and with other programs and services enumerated above.
* * *
88. Within 120 days, the service testing process currently performed by the Tennessee Commission on Children and Youth which assesses all services, (medical, and non medical) provided to children in DCS custody, shall include, on an ongoing basis, an audit of EPSDT compliance with regard to the children sampled. Such testing may be conducted by the State or a DCS contractor.
* * *

92. Within 60 days thereafter, the parties shall submit to the Court [*28] a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained therein for children.
Id. at PP 39, 40, 45, 53, 60, 62, 65, 72, 73, 82, 88 and 92) (emphasis added).
B. The 2001 Findings of the Defendants' Non-Compliance
In several post-consent decree filings, the parties' counsel submitted several documents reflecting the Defendants' intention to file a "remedial plan." (Docket Entry Nos. 27, 31 and 38). The Defendants later filed a remedial plan, but after a period of time operating under the Defendants' remedial plan, the Defendants moved to stay and to modify the Consent Decree (Docket Entry No. 69) and the Plaintiffs moved for a finding of contempt (Docket Entry No. 79). After an evidentiary hearing, the Honorable John T. Nixon, the then presiding judge, found the Defendants' remedial plan to be fatally defective in structure and performance. In a ruling filed on December 18, 2001 (Docket Entry No. 227), Judge Nixon made the following findings of fact and conclusions about the Defendants' remedial plan and their proposed revised remedial plan:
I. Findings of Fact
A. Defendants' Revised Remedial Plan- [*29] Findings of Fact
1. Pursuant to the Consent Decree, the parties were to submit a specific remedial plan addressing the coordination and delivery of services under EPSDT law for children in State custody or at risk of entering State custody. After extensive negotiations, the parties jointly submitted a Remedial Plan for Children in State Custody and the Plan for children at Serious Risk for Entering State Custody (collectively, "Remedial Plan") on May 11, 2000. The Court approved the Remedial Plan on May 16, 2000, in two Agreed Orders. (Doc. Nos. 58, 60).
2. The May, 2000 Agreed Orders imposed on the Defendants several requirements designed to improve the care of children in, or at risk of entering, State custody. The children became a subclass that was to be carved out from the larger class implicated by the Consent Decree. The Remedial Plan had four basic components. First, Defendants were to develop a Best Practice Network (BPN) comprised of primary care providers and other health care resources. The BPN would coordinate the dissemination of medical and behavioral health services to children in the subclass.
* * *
6. Soon after the entry of the May 2000 Agreed Orders, the Remedial Plan [*30] proved to be unworkable. The State created the Implementation Team, which was headed by a capable pediatrician, Dr. Larry Faust. Dr. Faust began recruiting for the Best Practice Network in May, 2000, by contacting pediatricians all over the State via e-mail, telephone, and in person, and also spoke to Steering Panel members. The Steering Panel was appointed, and subcommittees were formed. The Steering Panel and the Executive Oversight Committee met frequently.
7. However, the State has not fully adhered to the Remedial Plan. First, the State was unable to recruit sufficient physicians for the BPN. The providers were hesitant to contract with the State's MCOs because of past negative experiences with the MCOs. The State was unable to contract with COE's because they, too, had concerns about dealing with the MCOs and about ultimately serving as "safety nets." These concerns were not unfounded, given the fact that Xantus was in receivership and Access MedPlus went into supervision. The Court notes that access MedPlus is no longer part of the TennCare system. Hence, the Remedial Plan was never fully implemented.
8. The State has now proposed a revised Remedial Plan. Central to the State's [*31] proposed revisions is a "carve-out" for the delivery of health services to children in State custody. The plan contemplates that these children will be enrolled in a single MCO and BHO, rather than being distributed among all of the TennCare contractors. As of July 1, 2001, the State has already reassigned all children in State custody to TennCare Select, to be administered by BlueCross.

9. The State believes that limiting the plan to only one MCO and one BHO will address many of the problems that providers had with the original Remedial Plan, including the hassle of having to deal with multiple TennCare contractors. The Revised Remedial Plan also allows advocates other than DCS to make referrals to the Implementation Team, and requires the State to contract with an advocacy group to make available additional resources for concerned individuals seeking to access services for children at risk of entering State Custody. Although the revised Remedial Plan proposes other changes, the forgoing are the most salient proposals.
10. The Revised Remedial Plan was formally approved by both the Steering Panel and the Executive Oversight Committee, with only Plaintiffs' counsel and an advocate disapproving. [*32] The State has begun to move forward with its plans for the revised Remedial Plan by working with Blue Cross to develop the infrastructure necessary to create the Best Practice Network. The State opines that only this Court's Order is necessary for it to proceed with the Revisions.
* * *
B. EPSDT Failures
Outreach
8. . . . [T]he evidence presented at trial demonstrates that some outreach activities are more effective than others. While State officials have opined that "[n]o strategy [has] necessarily been proven better than the other, they implicitly acknowledge that other states have effectively and creatively conducted outreach activities. The evidence submitted at trial proves that the State's strategy of mailing fliers and brochures to inform TennCare recipients of their EPSDT rights is inadequate. The State is aware that its outreach strategies are insufficient. In fact, at least one TennCare employee recognized that a statewide broadcast and media campaign was necessary in order to inform children and their parents of EPSDT...
* * *
10. Most importantly, the trial record demonstrates that at least some TennCare members and their parents were unaware of what EPSDT represents, or even that [*33] it conferred certain benefits upon them. . . .
Screenings
11. Under the Consent Decree, the State must comply with the federal requirements for EPSDT screens. An adequate screen must contain all components required by EPSDT law. The State was to create a committee that would devise a plan and specific guidelines to ensure the effectiveness of the screens. Additionally, the Consent Decree specified a method for quantifying and measuring screening performance, and established goals over time for adjusted periodic screening percentage (APSP) rates.
12. Specifically, the State agreed to improve its APSP annually, and reach a goal of 80% by September, 2001. The Defendants proof submitted at trial indicated that the State has failed to meet its goals. The adjusted screening rate for 1999 was 19.8% and rose to 31.5% in 2000, far short of the baseline goals for those years, and the ultimate goal of 80% for 2001. Dental Screening rates also fell short of their targets.
13. The Consent Decree also required that 100% of Children in State custody were to receive full EPSDT screening after September 1999. As of May, 2001, 91% of children in State custody had received the appropriate screens. Although [*34] this figure is still short of the 1999 target, the 91% may be inflated because it may not represent fully EPSDT compliant screens because the Department of Children's Services (DCS) reports a child having been adequately screened even if that child has not received the seven components required by federal law...
* * *
[Conclusions of Law]
The Court agrees that the current Remedial Plan is unworkable, and that modification may, in theory be appropriate. However, the Court is not convinced that the revised Remedial Plan ade-

quately addresses the main problem associated with the original Remedial Plan. Specifically, the managed care structure of Tenncare may create the problems encountered by and among the State, MCOs and BHOs and providers. The new premedical plan does nothing to assuage the providers' distrust of the MCOs. The Revised Remedial Plan also does not address the apparent disconnect between the Bureau of TennCare and the Implementation Team at the Department of Health. A new Remedial Plan that still operates under the very same managed care system may not adequately address the Court's concerns with the TennCare system as it relates to the under-21 population. The Defendants have [*35] not made a showing of how the revised Remedial Plan will ultimately succeed where the current Remedial Plan has failed.
The Court also does not find sufficient reasons for modifying any part of the Consent Decree at this time, for the reasons discussed in relation to the Agreed Orders. The Defendants have failed to show how the factual situation in this case mandates revision of the Consent Decree under the Rufo test.
(Docket Entry No. 227 at pp. 40-41, 42-44, 10-11, 12-14, and 45-46) (emphasis added and footnotes omitted).
In its accompanying Order, the Court reiterated the Defendants' lack of an effective plan and stated: "The Court finds that a special master is necessary to mediate and ultimately to submit to the Court an EPSDT compliant plan." (Docket Entry No. 228). The predicates for the appointment of a special master are reflected in the following findings of fact of systemic deficiencies:
The record demonstrates that the Defendants have been, for the most part, well-intentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements. In fact, Defendant officials sometimes attempted to implement the very strategies that Plaintiffs' counsel [*36] advocated, but were constrained by the realities of State Government.
* * *
However, from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system. The record shows that the Defendants' efforts were indeed scuttled because "essential providers and tertiary pediatric care centers refused to contract with all of the managed care companies currently participating in the TennCare program." The record also confirms that the Defendants have faced a challenging task in melding Medicaid and managed care - a challenge that is by no means unique to Tennessee. Nevertheless, the institutional difficulties faced by the Defendants do not excuse their failures to follow the law. Defendants have not shown why their failure to fully comply with the 1998 Consent Decree or federal law should be excused, and thus have neither proven compliance nor any excuse for failure to comply with the federal EPSDT provisions.
* * *
Pursuant to the Consent Decree, Defendants have a responsibility to achieve and maintain outreach efforts designed to reach all members of the Plaintiff class with information and materials in conformance [*37] with federal law. . . The record reflects the fact that the Defendants mostly delegated the responsibility to conduct outreach to MCOs and BHOs, who have not successfully implemented the outreach requirements contained in the Consent Decree. However, the Defendants are ultimately responsible for conducting proper outreach. If the Defendants choose to delegate this responsibility, they must do so with the understanding that they will remain ultimately responsible for the failure of any delegatee.
* * *
TennCare employees appear to hold a laissez faire attitude toward the EPSDT outreach procedures of their contractors, preferring to allow the contractors to creatively reach out to their patient populations. That approach has not yielded effective outreach. Creative government is only effective when that creativity spurs positive change. The MCOs' outreach efforts have been insufficient, and the State has failed to engage in adequate oversight to ensure adequate outreach. As the Seventh Circuit Court of Appeals recognized twenty-seven years ago, "EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the [*38]

congressional purpose [of EPSDT]." Stanton v. Bond, 504 F.2d 1246 (7th Cir. 1974). Indeed, without proper outreach, EPSDT is worthless.
* * *
It is clear from the record that not only have Defendants failed to comply with the Department of Health and Human Services' regulations, but Defendants have simply failed to meet the bare requirements of the EPSDT laws. Defendants indicate that low screening rates in this region are partly attributable to both an ill-informed physician corps and a patient population that is not as willing to see a doctor for well-child care. However, Governments' job is to inform both the provider and consumer communities of the federal screening requirements. In fact, federal law requires that the State engage in outreach to inform the patients of EPSDT. The Court agreed that Tennessee may have a "harder road to hoe" than some other states, but that does not mean that the entrenched attitudes of providers and patients can be used as a shield against liability for failure to implement EPSDT requirements. Defendants concede that they "have not and will not meet the EPSDT percentages required by the Consent Decree." The Court agrees.
Id. at pp. 6, 7, 8, 28, 30.
Judge [*39] Nixon cited as a causal factor of the Defendants' noncompliance, the Defendants' wholesale delegation of matters to the MCCs. Judge Nixon found that "most of what TennCare does has to happen through its contracts with the MCOs and BHOs." Id. at p. 25.
The State is also required to issue and implement procedures to facilitate coordination among various contractors. Although the State issued its contracts a list of other agencies and programs with which they should coordinate EPSDT services, the exchange of information between contractors remained "disorganized" and few of the Defendants' proposals to achieve coordination were implemented. Coordination between various private health agencies is still inadequate. The lack of coordination among various non-governmental agencies is directly attributable to the very system under which public health is administered. Tennessee State government has failed to properly coordinate and implement proper case management and coordination services.
Id. at p. 22.
In 2001, the Defendants relied on their contractors as witnesses to justify their request for modification. 11 Judge Nixon made specific findings and conclusions about the deficient performance [*40] of the MCCs or MCOs and BHOs:
15. Defendants have made progress in achieving the target screening rates by contractually requiring their contractors to meet certain EPSDT screening goals. The most recent contracts show that an MCO that has not reached an 80% adjusted screening ratio is now required to contract with the county health department to perform EPSDT screening. . . .
* * *
17. As discussed above in relation to outreach and screening, systemic deficiencies have also made compliance with the Consent Decree's diagnosis provisions difficult. First, where there are overlapping medical and mental health issues, the MCOs and BHOs quibble over which entity is responsible for providing coverage. The State's TennCare contracts contribute to this ambiguity by sometimes failing to specify the responsible party, even though the BHOs do have coordination agreements with MCOs. In practice, individuals with overlapping issues sometimes "fall in the cracks" and fail to receive services from either a BHO or MCO, as with, for example, attention deficit disorder patients.
18. Additionally, the MCO and BHO contractors often refuse to authorize health assessments. Larry Faust of the Department of [*41] Health testified that even when MCOs and BHOs authorized services, they sometimes refused to pay the provider once the service was rendered.

19. Even worse, the State's managed care system often provides incentives for financiallymotivated denials of coverage by both MCOs and BHOs. TennCare's contractors essentially gamble that they will be able to provide services to TennCare enrollees and still be able to make a profit. Tennessee pays the MCOs and BHOs a set amount of money for all of the services that an individual requires. Hence, the contractors have an incentive to cut costs by denying coverage.
20. Further, as discussed above, MCOs and BHOs often lack adequate provider networks, creating a barrier to adequate diagnostic evaluations. The lack of provider networks is attributable, in part, to the failure of the BHOs and MCOs to pay its providers for services rendered. The lack of a provider network is also attributable to a scarcity of certain specialists across the nation. While the State notes this problem, it has been unable to stop the hemorrhaging of the provider networks. The proof at trial demonstrates that, in some circumstances, provider participation has drastically declined. [*42] . . .
* * *
22. [T]he record demonstrates that even where the TennCare Bureau agrees that the denied services is medically necessary, the State routinely grants the BHOs and MCOs a 'good cause' extension of time in which to provide services that the TennCare Solutions Unit has deemed medically necessary. The trial record is that children often wait for extended periods of time to receive medically necessary services. . . The record reflects similar situations involving medically necessary services that, for various reasons, were either delayed or never provided to the patient.
23. On the behavioral/mental health side, the BHOs sometimes fail to connect children to an appropriate diagnostic resource capable of performing the required behavioral health assessment. As with MCOs, there is an inadequate provider network for psychologists, psychiatrists and other behavioral health professionals. The record also demonstrates that State policy makers are well-aware of the limited BHO provider network.
24. The record reveals that a number of the providers within the limited BHO provider network are not taking new patients, thus rendering those providers unavailable to new TennCare patients.
25. [*43] Additionally, there is only one BHO in Tennessee. The BHO does engage in some oversight, as the testimony of Deborah Cagle, Vice President at Advocare, demonstrates, Ms. Cagle testified that Advocare reviews and audits its providers, and has hired an independent auditor to review Advocare's providers. However, the record shows, that although there is only one BHO, the State has failed to adequately monitor the BHO's provisions of EPSDT and Consent Decree-mandated services. More specifically, the State has not ensured that the BHO strictly mandate that its providers offer adequate services to their patients. The testimony of Dennis Elliot, Manger of the Network Adequacy Unit at TennCare, demonstrates that TennCare does not adequately assure that the BHO corrects deficiencies in the BHO's provider network.
26. Thus, children frequently do not receive appropriate diagnoses through the TennCare managed care system. Defendants admit that "sometimes the system breaks down, and the Court finds that in this case, the State Government's healthcare system has indeed broken down." However, the system itself is to blame for TennCare's failures. A depleted provider network and lack of proper oversight [*44] by MCOs and BHOs is directly attributable to the TennCare managed care system, which has proven to be unable to fully comply with both the EPSDT and the Consent Decree's requirements for proper diagnosis of children under 21.
* * *
[Conclusions of Law]
TennCare does not allow individuals to receive adequate diagnosis and treatment through various providers. The incentives created by capitated payments to the MCOs and BHOs result in a failure of the State system to assure that each State resident under the age of 21 receives the care that EPSDT mandates. As the Court has previously noted, there are "pecuniary incentives that MCOs [and BHOs] have for denying, suspending, or terminating care under the TennCare system. . . ." Daniels v. Wadley, 926 F.Supp.1305, 1308 (M.D. Tenn. 1996)....

* * *
The proof shows that the State has failed to adequately ensure the coordination of EPSDT services among the various governments, private and non-profit providers of services. The TennCare program, although well-intentioned, is disjointed. ... Although the State has established an office that is essentially dedicated to ensuring EPSDT compliance, that office is powerless to address the Court's greatest concerns [*45] with the TennCare program because the office does not have the mandate to directly control the actions of the MCOs or the BHOs. Adding another sailor to a sinking ship will not prevent it from sinking. In the same way, adding yet another layer of bureaucracy to an ineffective TennCare system will not succeed in reforming it.
In many instances children lack a case manager. The Frew court recognized that failure to provide case management services may constitute a violation of EPSDT. 109 F.Supp.2d at 674. This Court concurs, and finds that failure to provide adequate case management services in this case constitutes a violation of federal law. Without effective case management, the individual child lacks an effective coordination of various services that he or she needs to ensure that EPSDT services are rendered.
Id. at pp. 15, 16-17, 18-20, 32-33 (emphasis added). Judge Nixon reserved a finding of contempt: "However, because the Court bases its decision on failure to comply with federal law, the Court will hold in abeyance a decision whether Defendants' actions thus far constitute civil contempt....The record indicates that the State made great efforts to comply with the Court's Orders. [*46] However, the Court reserves the right to find the Defendants in contempt in the future." Id. at p. 35.
11 See, e.g., Docket Entry No. 156, June 19, 2001 Transcript, Vol. 11, at pp. 282-294 (Dr. Gregory Preston, Chief Medical Officer of Blue Care, testified about the remedial plan and the development of a best practices network and moving all children in DCS custody into a single MCO); Vol. XVII-A, 8-1-01 at 2047-21 15 (Deborah Cagle, Vice President for Planning and Programming at Advocate testified on network adequacy, coordination with the MCOs and PCPs, and prior authorization process and criteria). The Defendants acknowledge that "the MCCs play an intricate and important role in ensuring that the State fully complies with its obligations under both the Consent Decree and the federal EPSDT law." (Docket Entry No. 932, Exhibit A thereto).
The Court then directed "[t]he parties...[to] attempt to work to reach a consensus on a workable plan [, and i]f, and only if, the special master determines that the parties are unable to agree on a plan, the parties shall submit plans to special master for his consideration." (Docket Entry No. 275 at p. 2). In an October 14, 2002 Order, the Court required [*47] the Defendants to prepare an "Itemized Assessment Protocol" ("IAP") as well as an "Initial Work Plan"("IWP"), under the Special Master's supervision. (Docket Entry No. 291 at pp. 3-4). In a subsequent Order, the Court ordered the Defendants to submit an "Initial Work Plan" ("IWP") to the Special Master and later granted the Defendants an extension "that defendants shall submit their initial work plan by December 13, 2002." (Docket Entry No. 303). As discussed below, the Defendants did not meet their obligation on the IWP or the IAP.
C. The 2004 Findings of the Defendants' Non-Compliance
On June 16, 2004, Plaintiffs filed another motion to show cause (Docket Entry No. 403) asserting the Defendants' continuing violations of the Consent Decree. After discovery and an evidentiary hearing, in a Memorandum entered on October 22, 2004, citing testimony of two key state policymakers, Judge Nixon found that the Defendants were again not in compliance with the Consent Decree and significantly, lacked a reliable system to measure their progress.
On June 23, 2004, the Plaintiffs deposed Dave Goetz, Tennessee Commissioner of Finance and Administration, and on June 24, 2004, Plaintiffs took the deposition [*48] of Manny Martins, Deputy Commissioner of Finance and Administration for TennCare. Both deponents attested to sincerity, good intentions, and hard work of those State employees who have labored since 2001 to comply with EPSDT. Mr. Martins testified that the State is making inroads in the area of outreach. "From 1999 to 2003 we had a 175 percent increase, I believe, in our screening rates from, as an example, 19.8 percent to 53 percent. We've had a 60 percent increase in our dental screening rates, 55, 56 adjusted--the raw is 36 to 62 for 2002, raw 54, adjusted 41.9." [Quoting the Martins Deposition at 57]. Mr. Martins also reported that TennCare has staffed 22 dental clinics and has contracted with the Department of Health for dental out-

reach, dental operatory, and mobile operatory. Mr. Martins has stated that by the way of a new contract with the Department of Health for $ 7 million, effective July 1, 2004, every single TennCare enrollee child would be contacted by their local health department from newly set-up call centers...
Mr. Goetz also made statements in his deposition which conveyed progress. With respect to screening results, Mr. Goetz noted "dramatic improvements" over the last [*49] couple of years and stated, "efforts to work through the county health officials have borne fruit, and that's also what we were funding, continuing outreach in the budget that was just passed into law" [Quoting the Goetz Deposition at 41. Nonetheless, while some progress has been made since the Court's approval of the Consent Decree in 1998, testimony from Mr. Martins and Mr. Goetz along with reports made to the Court by the Special Master, make clear that not enough progress has not been made. The Court is not convinced that Defendants, acting on their own, will reach full compliance with the terms of the consent decree within a reasonable period of time. As the well-being of 550,00 children is at stake, something more must be done to ensure that the state's EPSDT requirements are met in accordance with the terms of the Consent Decree.
As recently as August 2004, the Special Master concluded in his status report to the Court that no feasible plan yet exists to achieve compliance for an indispensable section of the Consent Decree. The Special Master reported that the State has failed to honor its renewed commitment to produce an IAP satisfactory to the Special Master, last made in September [*50] 2004, and still refuses to engage its key officials in planning efforts to achieve compliance, verification of the quality of its data, and evaluation of the successes or failures in attaining compliance.
The Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network adequacy, case management, outreach, the effective use of information systems, and system level coordination, to name a few. The Special Master's status report informs the Court that because Defendants have never created a list of precise "outcomes" towards which their efforts are focused, not only have they failed to meet the terms of the Consent Degree, but they are not even in a position to be able to assess their own shortcomings for the purpose of making improvements.
The Court finds that the deposition testimony of Mr. Goetz and Mr. Martins conclusively support this Court's finding that, to date, the State has not achieved compliance with the terms of the Consent Decree. Mr. Martins, the senior state official with direct responsibility for EPSDT compliance, testified, "I'm not sure [*51] that compliance with the consent decree is achievable." Martin's Dep. 29. He testified that the 100 percent screening requirement for children in state custody mandated by the Consent Decree "should be achievable" and that the Consent Decree's stated dental screening rate "can be achievable over a period of time."
Martins Dep. at 33. When asked about barriers to compliance that he saw, Mr. Martins replied, "There are numerous external barriers that are out there. Some of them involve coordination with other departments, some of them involve the inability to have good data in terms of being able to have information on the system - on the child and following that child through the system." Martins Dep. 35. Mr. Martins also discussed the socio-economic barriers to achieving compliance with the consent decree and "barriers in understanding" on part of families of TennCare enrolled children who sometimes do not seek services for their children when they are healthy, in spite of the importance of preventative EPSDT measures to the continuing health of their children. Martins Dep. 35-36. Finally, Mr. Martins stated, "I think we have barriers from the standpoint of not totally understanding [*52] all the gaps that we have in our delivery systems." Martins Dep. at 36.
Specifically, with respect to the screening requirements in the Consent Decree, Mr. Martins testified that the State is not meeting the 80 percent standard in the Consent Decree. Mr. Martins testified that while he would like to review the numbers, the last figures he had seen indicated that the state is not meeting the 100 percent screening requirements under the Consent Decree for children who are in State custody. Further, Mr. Martins stated that with respect to dental screening and dental service, the State is not in compliance with the Consent Decree. Other areas of particular concern testified to by Mr. Martins include the current inadequacy of behavioral health networks, and the

State's failure to meet the Consent Decree's required provision of EPSDT services to the children in DCS custody. Martins Dep. 187.
Mr. Goetz testified that one factor that impedes implementation of the Consent Decree is the sheer enormity of the task, given the 550,000 children enrolled in TennCare. Goetz Dep. at 37. He also testified to learning that breakdowns in communications have also created barriers to the State's ability to [*53] achieve compliance with the terms of the consent Decree. Goetz Dep. at 37.
This is not a finding that the State has acted in bad faith or has intentionally failed to comply with the Consent Decree. To the contrary, the Court acknowledges, as set forth above, that the state has made some progress toward compliance in some areas. However, these efforts have not produced the results mandated by the Consent decree some six years ago. The Court is compelled to grant further relief to the Plaintiffs, 550,000 TennCare enrolled children, to ensure that their EPSDT needs are met as quickly as possible....
...[A] motion for relief looks to the future, rather than the past. In looking to the future, the Court has instructed the Special Master and his experts to create a comprehensive plan to put the State in compliance with the terms of the Consent Decree. The plan is attached to this Order...This plan is not a modification of the terms of the consent decree.
(Docket Entry No. 465, Memorandum and Order at pp. 4-8) (emphasis added). The Court then set a deadline for objections and authorized depositions and proposals for modifications of the plan attached to its Memorandum. Id. at p. 8.
On December 13, [*54] 2005, the Court ordered that the Defendants "immediately disclose to Plaintiffs and the Special Master the plan, if any, under which the State is operating to comply with the Consent Decree and the EPSDT law as well as file by January 31, 2006, its SemiAnnual Report..." (Docket Entry No 558, Order at p. 2). On December 19, 2005, Linda Ross, a Deputy Attorney General on behalf of the Defendants wrote the Special Master that:
Compliance with both EPSDT law and the Consent Decree is a high priority of the State, but neither require that the State develop a single document setting forth a "plan" for maintaining compliance. Rather, the State has put in place a clearly defined process, under the leadership of the Governor's Office of Children's Care Coordination, to ensure that both the spirit and the letter of EPSDT law and the Consent Decree continue to be met.
(Docket Entry No. 559-2).
On January 9, 2006, the Defendants' submission to the Court construed the Court's December 13th Order to relieve the Defendants from submission of any plan. This submission reads, in pertinent part:
The Court's December 13 Order did not place an affirmative obligation on Defendants to have a written plan, and [*55] no such obligation is contained in either the Consent Decree or EPSDT laws. At one time, the State was subject to an analogous obligation in this case. In its August 14, 2002 Order, see Doc. 291, at 3-4, P 4b, the Court appointed a Special Master and his selected Experts to oversee the creation and implementation of an Itemized Assessment Protocol ("IAP") and Initial Work Plan ("IWP") to be used in evaluating the State's compliance with the Consent Decree and federal EPSDT law... The IAP and IWP requirements were not resurrected in the Court's December 13 Order (Doc. No. 558 at 2). In fact, in this most recent order, the Court affirmatively limited the Special Master's responsibilities to "evaluating the State's implementation of the terms of the Consent Decree and EPSDT law." (Doc. No. 558 at 2).
Following the Court's December 13 Order, the State promptly informed both Plaintiffs and the Special Master in a letter dated December 19, 2005 that the State does not have a single document setting forth a "plan." Instead, the State has put in place a clearly defined process to ensure that both the spirit and letter of the EPSDT law and the Consent Decree continue to be met.

(Docket Entry No. [*56] 569-2 at pp. 3-4). 12
12 The Court has concerns about Defendants' counsel's statements that the Consent Decree does not require a "plan." The Consent Decree reads in pertinent part, "Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained therein for children." (Docket Entry No. 12, Consent Decree at P 92). As to Defendants' apparent reliance on Court Orders as limiting this provision of the Consent Decree, the Defendants have argued to the Court: "Thus, a consent decree depends, by definition, on the consent of the parties. The scope of the obligation to which the parties have consented is set by the terms and conditions memorialized in the consent decree. Any attempt by a district court to hold a party to terms other than those to which it has agreed is an abuse of discretion per se. See Local No. 93, Intern. Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 529, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986), United States v. Ward Baking Co., 376 U.S. 327, 334, 84 S. Ct. 763, 11 L. Ed. 2d 743 (1964); King v. Walters, 190 F.3d 784, 788 (7th Cir.1999)." (Docket Entry No. 739, Defendants' [*57] Memorandum in Support of Renewed Motion to Vacate the Consent Decree at pp. 2-3).
D. The Recusal Order and Reassignment
In November 2004, Judge Nixon held this action in abeyance to facilitate settlement negotiations. (Docket Entry No. 495). During this suspension, the parties litigated other TennCare actions. (Docket Entry No. 550). The Consent Decree, however, remained in effect (Docket Entry Nos. 509 and 546) and during this period, the Defendants continued their discovery efforts in this action. (Docket Entry Nos. 498, 501, 508, 511, 512, 560 and 562). In particular, the Defendants issued discovery requests to depose the Special Master to inquire about discussions of the Special Master with Plaintiffs' counsel and the Court.
In the midst of these controversies, Judge Nixon set aside the plan that had been filed by the Special Master and recused himself, stating:
Without taking into account the October 22, 2004 order, the history of this case reveals that this Court has consistently found the State to be in violation of the Consent Decree and EPSDT requirements. Indeed, the State's own documents show that they are not in compliance with the terms of the Consent Decree. (See docket entry [*58] 546 at 1, (showing that, even in 2004, the State is still below screening targets that should have been achieved in 2001)). Notwithstanding this repeated finding, the Court took to the unusual path of not holding the State in contempt or imposing monetary sanctions. Indeed, the Court has attempted to steer this case away from the needless and acrimonious litigation and focused on fashioning a solution that would increase compliance with the Consent Decree and federal EPSDT requirements. This constructive approach has been fueled by one goal: To provide the underserved children of Tennessee the entire spectrum of medical benefits to which they are entitled under federal law.
The State's pending Discovery Motion attempts to push this goal to the wayside and refocus the case on wholly unnecessary, time-consuming, costly, and highly divisive litigation. I refuse to condone a path that will waste resources and time in the face of the urgent need to improve healthcare for the children of Tennessee. Importantly, no substantive activity has occurred in this case since November 2004; it is imperative that the parties now turn their attention to the merits of the case. Accordingly, and after [*59] much consideration, I have decided to sua sponte recuse myself from this case to remove any barrier - perceived or real - to the ultimate goal of increasing the State's compliance with EPSDT requirements. Let it be clear, however, that my recusal in no way adjudicates the merits of, or reflects an opinion on the allegations contained in, Defendants' Discovery Motion. Rather, it is a reflection of my view that the healthcare of Tennessee's children must come first.
Thus, I hereby RECUSE myself from the above-styled case, and direct the Clerk of the Court to reassign it to another United States District Court Judge in the Middle District of Tennessee. In light of my recusal, Defendants' Discovery Motion and Defendants' Motion to Expedite are DENIED as MOOT. Pending reassignment of the case, the Office of the Special Master shall remain intact, but INACTIVE.

The new presiding Judge may decide the continuing necessity of the Office of the Special Master, and all motions pending at this time.
(Docket Entry No 584, Memorandum and Order at pp. 4-5) (emphasis added). As a related action, the action was transferred to this member of the Court.
As the succeeding judge, the Court set a status conference [*60] on February 10, 2006 to discuss outstanding issues with the parties' counsel. At that time, a point of contention was whether the Defendants were required to file a plan to remedy Judge Nixon's earlier findings of their violations of federal law. The Defendants' position on this issue, as quoted earlier, is as follows:
Compliance with both EPSDT law and the Consent Decree is a high priority of the State, but neither require that the State develop a single document setting forth a "plan" for maintaining compliance. Rather, the State has put in place a clearly defined process, under the leadership of the Governor's Office of Children's Care Coordination, to ensure that both the spirit and the letter of EPSDT law and the Consent Decree continue to be met.
(Docket Entry No. 559-2, Letter from Linda Ross to Richard Carter, MD). See also, Docket Entry No. 569 at p. 4 and Docket Entry No. 596, Transcript of Hearing of February 10, 2006 at p. 10).
At the February 10th conference, the Court reviewed those portions of the record on this issue. First, paragraph 92 of the Consent decree reads: "Within 60 days thereafter, the parties shall submit to the Court a proposed agreed order containing a specific [*61] remedial plan addressing the coordination and delivery of services under EPSDT law and laws contained therein for children." (Docket Entry No. 12 at P 92) (emphasis added). In an Agreed Order submitted by counsel for the parties, counsel cited "the remedial plan called for by paragraph 92 of the consent decree." (Docket Entry Nos. 39 and 40). In an earlier submission, the Defendants reiterated that they were willing to engage a mutually agreeable expert "to facilitate further development of a plan." (Docket Entry No. 31 at p. 2). Later, the Defendants requested a conference with the Court, stating: "The proposed remedial plan was developed pursuant to Paragraph 92 of the consent decree." (Docket Entry No. 52). See also Docket Entry Nos. 54, 55, 57, 58, 59, 60, 76 and 88 that refer to the Defendants' "remedial plan." In one Agreed Order, counsel stated: "Pursuant to paragraphs 88-92 of the consent decree, the parties submitted a "remedial plan." (Docket Entry No. 59). In another Order, the Court stated that the "Consent decree provides for implementation of a remedial plan." (Docket Entry No. 103). See also Docket Entry No. 164, Order. 13 After reviewing these entries and Orders, the [*62] Court directed the Defendants to file whatever the Defendants deem to be their plan to comply with the Consent Decree. 14 (Docket Entry No. 601).
13 To be sure, in a more recent Order, Judge Nixon stated that the Consent Decree does say that the state will implement a "plan" or "process for implementing the consent decree." (Docket Entry No. 578 at p. 4). This member of the Court deems paragraph 92 controlling and the parties' filings establish the requirement for the Defendants' filing and implementation of a remedial plan. 14 The Defendants filed a series of documents, (Docket Entry Nos. 581-1, 581-2, 624), but upon review, the Court seriously questions whether those submissions constitute a coherent plan. Of course, the Defendant insist that despite its clear language the consent does not require a plan. The Consent Decree reads, in pertinent part: "Nonetheless, present officials cannot correct problems overnight which have been years in the making. Their development of the remedial plan is itself evidence of their genuine commitment to reform. . ." (Docket Entry No. 12, Consent Decree at P 30) (emphasis added).
After a review of the record, the Court retained the former Special Master [*63] and his assistants as technical advisors so as not to lose the most knowledgeable experts who had expended extraordinary resources to inform the Court about the Defendants' compliance efforts. Given Judge Nixon's prior findings of non-compliance, the contentious exchanges between the parties' counsel, the extensive scope of the Consent Decree and the state of the record, the Court deemed necessary the appointment of monitors to assist the parties and the Court in identifying issues that remain for discovery and any evidentiary hearing. A strict protocol was defined for the monitors' activities. The Monitors filed a report that the Court deemed helpful in identifying the remaining issues in the litigation. (Docket Entry Nos. 795 and 796). Regrettably, despite Judge Nixon's prior repeated findings of their non-compliance, the Defendants expressed to

the Monitors their concerns about this Court's continuing oversight of this program. (Docket Entry No. 795, Monitors' Report at p.5). 15
15 This sentiment was also expressed in the Defendants' memorandum in opposition to Plaintiffs' earlier motion to compel: "As the Court is surely aware, the Governor's commitment to constitutional federalism [*64] and his abiding faith in policy-making by democratically elected state officers, in preference to the commandeering of state agencies by federal judges, extends far beyond the present dispute over EPSDT." (Docket Entry No. 720 at p. 23) (emphasis added). In sum, the Court has intervened only when the Defendants repeatedly failed to meet their obligations to the children under the Consent Decree and federal law.
E. The 2006 Discovery Proceedings
At the February 10, 2006 conference, Michael Kirk, one of the Defendants' counsel announced that the Defendants had achieved compliance with the Consent Decree. (Docket Entry No. 596, Transcript at p. 47). "I would just like to note for the record that it is the State's view that they have been in compliance with the consent decree." Id. That contention resulted in the Plaintiffs' commencement of discovery.
The Court held a series of conferences that included discussions of ESI production. (Docket Entry Nos. 599, 601, 615, 642, 645 and 646). At a February 28, 2006 hearing, the Court heard the testimony of Brent Antony, the chief information officer of the TennCare Bureau, on the Defendants' motion for a protective order concerning a utilization [*65] data request from Mr. Carter, the former Special Master appointed by Judge Nixon. Anthony's experience is in health care and Antony's computer knowledge was "really from [his] job experience." (Docket Entry No. 614, February 28, 2006 Transcript at p. 82). Anthony described the Defendants' change of computer systems.
At the April 17, 2006 conference on the Monitors' review of relevant state data, the Court "suggested" to the Defendants that "whatever is electronically available . . . be made available to the Monitors and the Plaintiffs in electronic form unless, of course, there is an issue of privilege." (Docket Entry No. 646 at p. 33). This instruction was to provide a common base of information so as to ensure a meaningful dialogue among the parties, the monitors and the Court on contested issues. Id. The Court then denied the Plaintiffs' motion to compel such information (Docket Entry No. 651), but without prejudice to renew because the Defendants were going to provide to Plaintiffs any ESI information provided to the monitors. (Docket Entry No. 656).
On March 31, 2006, Plaintiffs propounded discovery requests seeking information and documents, including ESI, related to the State's [*66] contention of compliance with the Consent Decree. (Docket Entry No. 711). Plaintiffs' interrogatories and related document requests included the following two definitions:
9. "Communications" means any transmittal of information in any form or format, whether oral, written, or electronic, including, without limitation, all correspondence, inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations and message logs, letters, notes, memoranda, telegrams, faxes, emails, or recordings. It is understood that all categories of documents described above shall include with respect thereto all communications as defined, whether or not expressly stated. The production of electronic communications should be accompanied by a description of the software and technology used to prepare the communications and needed to read them.
* * *
15. The term "document" means all writings of any kind, including the originals and all nonidentical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including without limitation, correspondence, e-mail, memoranda, notes, diaries, statistics, checks, statements, [*67] receipts, returns, summaries, pleadings, affidavits, depositions, pamphlets, books, prospectuses, inter-office and intra-office communications, offer notations of any sort of conversations, telephone calls, meetings or other communications, bulletins, printed matter, computer printouts, information contained in any computer although not yet printed in hard copy, teletypes, telefax, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing), graphic or oral records or representations of any kind, (including without limitations, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pic-

tures) and electronic, mechanical or electrical records or representations of any kind, (including without limitations, tapes, cassettes, discs, recordings).
(Docket Entry No.626-2, at pp. 3, 4) (emphasis added). Plaintiffs' discovery requests also sought information and documents in the possession of the Defendants' agents and included an instruction that, "when [*68] answering an interrogatory, to the extent that an activity or responsibility has been delegated to a contractor, identify the contractor and the scope of the delegation." Id. at 2. Some interrogatories explicitly requested information related to contractors' actions and information. 16
16 See Docket Entry No. 626-2, Interrogatory 18 (f) ("Identify each class member whose death or injury has come to the attention of state officials or their contractors and that may have followed a denial of health care to the child or the child's inability to access health care"); Interrogatory 19 (i) (seeking any process in place by Defendants or their contractors to ensure employment of the correct definition of "medical necessity"); and Interrogatory 54 (c) (seeking information related to "any process or measure used by the Defendants or their contractors to assess compliance with the Consent Decree requirements.").
On May 15, 2005, the Defendants responded, but converted their ESI to hard paper copies. (Docket Entry No. 709, Plaintiffs' Brief in Support of Motion to Compel Discovery at pp. 14-15). The Defendants insisted that the hard paper copies were identical to any responsive ESI and therefore [*69] did not produce the documents in ESI computer format. (Docket Entry No. 720 at p. 13, Docket Entry No. 815-2 at p. 4 and Docket Entry No. 988 at p. 186). Nicole Moss, a defense counsel, conceded the Plaintiffs served discovery requests for electronic discovery. (Docket Entry No. 734, November 6, 2006 Transcript at p. 23). Of particular note is that the Defendants' following objection: "8. Defendants object to the Interrogatories' definition of "document" to the extent it reaches electronic versions of documents separate and apart from a hard-copy version of the identical document that has been identified and made available in the hardcopy form." (Docket Entry No. 815-2, Defendants' Response to Plaintiffs' Third Set of Interrogatories at p. 4) (emphasis added). The Plaintiffs provided ESI in response to the Defendants' discovery requests. Id. at pp. 24-38. Plaintiffs' ESI production included some metadata. (Docket Entry No. 719, Antony Declaration at p. 5, P 7).
The Defendants objected to providing potentially responsive information or documents from the MCCs, contending that these files are not within their own possession, custody or control except documents already provided to the [*70] State by the MCCs.
The State contends that it can fully and accurately respond to plaintiffs' discovery requests and that it need not require its EPSDT contractors to search their files for potentially responsive information or documents, and that the defendants are only obligated to produce documents or information that the contractors have already provided to the State because the rules only require the production documents in a parties' possession, custody or control. Further, the State contends that to require its contracts to have to independently respond to Plaintiffs' discovery requests would be unduly burdensome and prohibitively expensive.
(Docket Entry No. 711, Joint Discovery Statement at p. 4).
The parties' counsel continued to disagree on discovery issues and in an August 16th letter, the Plaintiffs' counsel reaffirmed that: "On that broader question regarding electronic production, we agreed to disagree, since it continues to be the Plaintiffs' position that we are owed such production under Rule 34." (Docket Entry No. 712-3 at p. 20). Further negotiations between the parties narrowed some issues, but as this Memorandum reflects, the parties did not resolve their significant [*71] discovery disputes.
On October 13, 2006, the Plaintiffs filed another motion to compel (Docket Entry No. 708), that the Defendants opposed. (Docket Entry No. 720). The Defendants also filed a motion to compel on non-ESI issues involving Plaintiffs' contacts with advocacy groups and law firms (Docket Entry No. 706) that was denied on First Amendment principles and the work product privilege. (Docket Entry No. 743). In support of their objections to Plaintiffs' ESI discovery requests, the Defendants submitted affidavits, but those affidavits made only generalized assertions of an undue burden and the interruption of the work of state employees to respond to the Plaintiffs' ESI requests. (Docket Entry No. 720 at Exhibits B and C thereto).

The Court held a discovery hearing on November 6, 2006 to decide the parties' pending discovery motions and to mediate the parties' differences on ESI discovery. As to the Plaintiffs' discovery request for ESI, the Court reiterated its understanding from the April 17, 2006 conference that whatever ESI was given to the monitors was to be provided to the Plaintiffs. (Docket Entry No. 734, November 6, 2006 Transcript at pp. 34-36). The Court also expressed [*72] the view: "it makes sense to me that if it's available on an electronic data form, that you all would share that instead of generating all of this paper." Id. at p. 68. The ESI was to be produced for the fifty (50) key custodians as agreed upon by the parties. 17 (Docket Entry No. 734 at pp. 35, 68; Docket Entry No. 743 at p. 2). The Court further ordered the production of documents and information, including ESI, in the possession of the MCCs (Docket Entry No. 734 at pp. 71-74; Docket Entry No. 743 at pp. 1-2). The Court directed counsel to prepare an Order specifying the information sought from the MCCs, id. at pp. 69-70, because "[a]s I understand it, there is no real objection to producing what the MCOs have." Id. at p. 69. The Court, however, directed that the ESI discovery would be produced under an agreed protocol, id. at pp. 65-66 and told the parties to exchange information about their computers and software among their computer experts. Id. at pp. 66-68, 74-75, and 86-87). The Court granted the Defendants leave to seek relief if the computer experts were unable to agree on the terms of the protocol. Id. at pp. 75, 82, 90.
17 The Plaintiffs' initial designation was for more [*73] than 100 key custodians.
At the November 6th hearing, Plaintiffs' counsel also expressed concerns about the Defendants' ambiguous responses to their discovery requests on destruction of evidence. The Court ordered the Defendants to give assurances that the State had preserved responsive information and responded fully and accurately to the Plaintiffs' discovery. The Court ordered that individuals identified by the Defendants as key custodians to answer Plaintiffs' revised and simplified requests for admissions about destruction of evidence and to sign their answers personally. (Docket Entry No. 734 at pp. 56-64; Docket Entry No. 743 at p. 3; Docket Entry No. 786 at pp. 40-42). The Plaintiffs propounded their third requests for admissions and fifth set of interrogatories on this issue. (Docket Entry No. 799).
In an Order entered on November 21, 2006, the Court ordered the Defendants to "provide responsive documents that are in electronic format." (Docket Entry No. 743, Order at p. 2.). In response to this Order, the Defendants offered Plaintiffs what the Defendants deemed an "eminently reasonable alternative solution," i.e., to provide "production of supplemental materials and those documents [*74] where record of blind carbon copy may have been omitted from prior production." (Docket Entry No. 907 at 13-14). The Defendants offered to produce only ESI after April 15, 2006, and the ESI for any "documents prior to that date that were blind copied to any recipients." Id. at p. 14. 18
18 The Defendants assert that there was not any agreement or ruling previously about how far back discovery should run. (Docket Entry No. 907 at pp. 20-21). The parties agreed that discovery would relate back to June 2004, when the last round of discovery was conducted. This agreement is reflected in the Defendants counsel's letter to the MCCs that they needed to produce information since June 2004. (Docket Entry No. 899, Exhibit A at p. 5).
On December 6, 2006, a conference was held with the parties' computer experts to decide unresolved issues on the protocol for the production of ESI under the November 21st Order. (Docket Entry No. 764 at pp. 28, 51). 19 In reliance upon precedents in this district involving complex matters, the Court directed the parties' computer experts to confer, without the presence of their counsel, to develop a protocol and/or memorandum of understanding to address the cited [*75] problems with electronic discovery. (Docket Entry No. 764, at pp. 5-6). The "experts only conference" was held without objection by any counsel and yielded positive results that were appreciated by the parties' counsel 20 . At the end of the December 6th conference, the parties' experts announced their ESI discovery protocol and for the prospective preservation of responsive ESI, and electronic searches with keywords to be identified by the Plaintiffs. Id. at pp. 14-20. To ensure that all responsive ESI is preserved and searched, the Defendants were to survey the individuals identified as key custodians and ascertain whether those custodians had saved relevant ESI. At the December 6th conference, the Court also suggested that the parties hold a series of similar conferences with the MCCs, with a court reporter, to negotiate any further protocol issues on ESI production.
19 At this conference Plaintiffs insisted that without an enforced litigation hold, emails of state employees would be routinely destroyed. (Docket Entry No. 764: Transcript of December 6, 2006 at pp. 28-30, 42-50). Plaintiffs' counsel also raised the lack of a litigation hold at the November 6, 2006 hearing. (Docket [*76] Entry No. 734 at pp. 61-62). 20 Counsel for both parties responded favorably to the first "experts only conference":

[Plaintiffs' Counsel] MR. BONNYMAN: Thank you, Your Honor. We think this process has been very productive. It was very helpful for the two experts to talk. And I will acknowledge that part of the reason why that was so useful was because our side lacked -- -- until the pro bono help that Mr. Tigh has supplied we've lacked the sophistication to perhaps be as constructive in this as we needed to be. So we really welcome that and welcome to be able to be on a par with the resources of the State.
* * *
[Defendants' Counsel] MS. MOSS: Your Honor, the State also welcomed this opportunity. We believe that this has greatly helped in coming up with a reasonable protocol that the State can live with and takes into account the limitations that the State has.
(Docket Entry No. 764, December 6, 2006 Conference at pp. 27, 51).
As requested, the parties' computer experts submitted an order that reflected their agreement. (Docket Entry No. 784-3 and Docket Entry No. 785). Mr. Tigh, Plaintiffs' computer expert, also submitted his declaration on the need to ask custodians an additional question [*77] as to whether the custodians had removed any responsive information to any non-attached media. (Docket Entry No. 785-2, Tigh Declaration P C). On January 14, 2007, the Court entered another Order adopting Tigh's suggestion and ordered that "[t]he Defendants shall file certifications of the key custodians as to whether any material has been removed." (Docket Entry No. 789 at p. 3, citing the Tigh affidavit at P C). In the Court's view, these certifications would ensure all relevant ESI would be retrieved.
Plaintiffs' proof is that the Defendants reneged on the computer experts' agreements at the December 6th conference to use 50 keywords or search terms, (Docket Entry No. 759) and the Defendants unilaterally selected two search terms and insisted upon a date-limited search. (Docket Entry No. 810, Exhibit A). Defendants initially responded that this restriction was necessary to complete the search to meet the Court's date for an earlier scheduled evidentiary hearing. Later, the Defendants would contend that the ESI production was too costly.
Based upon the parties' filings, the Court concluded that the out-of-court conferences of the experts had not been as productive as the Court contemplated. [*78] Once the parties left Court, their disputes over basic ESI issues resurfaced. Given the technical nature of the discovery controversy, the Court scheduled an "experts only" conference for April 11, 2007 for the parties' and MCCs' computer experts. (Docket Entry No. 857, Order) This conference was to define the parties' technical disputes and to implement the Court's Orders requiring the production of responsive ESI. A series of Orders were entered to ensure that the Court and the participants shared the same core information about the capabilities of the Defendants' and MCCs' respective computer systems, including their retention policies and software programs. (Docket Entry Nos. 858 and 859). Such information was ordered to be treated as confidential. Id. All participants were also requested to file a list of outstanding discovery issues. (Docket Entry No. 859). The Defendants filed a statement of disputed issues, requested that "the November 2006 orders be modified" and raised questions about the form of the Plaintiffs' Third Request for Admission and Fifth Interrogatories. (Docket Entry No. 860, Exhibit G thereto).
The "experts only" conference was a discussion of the parties' and [*79] the MCCs' computer experts without the presence of the Court or counsel, 21 except to announce protocol for the conference and to hear the experts' reports on their progress. (Docket Entry No. 872). At the end of the conference, the parties' and the MCCs' computer experts unanimously agreed that the conference was productive. The Court directed the State's computer expert to prepare a written summary of the experts' agreements and to circulate that document among all experts for comment and file that report with the Court. (Docket Entry No. 872 at p. 228). After the April 11th conference, the parties and the MCCs had out of court conferences, and their disputes resurfaced.
21 At the beginning of the conference, counsel for two MCCs objected to the conference format. The Court cited the absence of any objections by the parties' counsel to the first such conference and quoted the parties' counsel's favorable reactions to that conference. The Court overruled those objections. A transcript of that conference was deemed confidential and ordered to be filed under seal. At the end of the conference, the Court again inquired whether any counsel objected. Plaintiffs' counsel did not object to [*80] this conference, but all counsel for the Defendants' and the MCCs objected. The legal authority for that conference is noted supra.

The Plaintiffs renewed their earlier motion to compel on all outstanding discovery and ESI issues and the Court set an evidentiary hearing on that motion. With this brief history of the litigation, the Court sets forth below its findings of fact and conclusions of law on all outstanding discovery disputes.
II. Plaintiffs' Renewed Motion to Compel
A. Findings of Fact
1. Information Requirements and Discovery Rights under the Consent Decree
In their motion, Plaintiffs rely, in part, upon the Consent Decree that requires the collection and maintenance of the data on the Defendants' compliance with the Consent Decree. In several paragraphs, under the heading, "Monitoring and Enforcement of MCO and DCS Compliance," the Consent Decree has the following paragraphs requiring the Defendants and the MCCs to track and report the medical screening and services to individual class members:
91. Upon request, the evaluators shall be afforded access to such records (including electronic data files) or persons as necessary to fulfill the responsibilities imposed by this order. [*81] Each party shall have access to information and materials obtained by the evaluators; however, except for information which originated with the parties' counsel, the evaluators may withhold the source of any information they have received. The evaluators may communicate ex parte with the parties, their agents or counsel; upon request, the evaluators shall disclose to the opposing party the general substance of such communications. The evaluators shall otherwise treat all records as confidential.
* * *
94. Within 180 days, the Defendants shall require their contractors to achieve and maintain the capability of tracking each child in the plaintiff class, for purposes of monitoring that child's receipt of the required screening, diagnosis and treatment. The tracking system shall have the capacity of generating an immediate report on the child's EPSDT status, reflecting all encounters reported to the contractor more than 60 days prior to the date of the report.
95. Within 150 days, DCS shall achieve and maintain a tracking system as reflected above. The tracking system shall have the capacity to generate a report on the child's EPSDT screening status and shall reflect all screens received [*82] by the child more that 30 days prior to the report. DCS shall establish a procedure for notification of TennCare if a DCS case manager suspects that action or inaction by an MCO in performing its duties under the TennCare contract has caused a child to inappropriately enter DCS custody. TennCare shall receive such notification as part of its complaint processes and take whatever action is appropriate. DCS shall include this procedure as part of its departmental training.
97. The state shall compile, in a standardized electronic format capable of supporting flexible, customized analysis and reporting, data on all pertinent provider encounters which involve children, and which are covered by the TennCare program.
98. The state shall conduct ongoing audits for the purpose of authenticating such encounter data. In order to ensue the integrity of the audit reports, such audits shall be conducted by qualified personnel and shall meet generally accepted standards regarding sample size and selection.
(Docket Entry No. 12, Consent Decree at PP 91, 94, 95, 97 and 98) (emphasis added). In addition, the Consent Decree created a "process for monitoring and reporting [by the Defendants] their compliance [*83] with the requirements of this order." Id. at P 96. For these tracking and monitoring systems, the Consent Decree sets a semiannual reporting requirement for the Defendants. Id. at P 104.
Another provision of the Consent Decree also grants Plaintiffs' counsel a right of access to the data on monitoring and tracking compliance through the Defendants. Upon Plaintiffs' counsel's request, the Defendants agreed to produce this data to Plaintiffs' counsel.
Upon 30 days prior notice to TennCare, plaintiffs counsel shall have access during normal business hours to any public records relating to the state's compliance with the terms of this order, or

to the monitoring, auditing or testing of such compliance. Subject to any applicable federal laws limiting the authority of a court to grant access to such records, plaintiffs' counsel shall have access to the records of members of the plaintiff class. All information related to plaintiff class members provided to plaintiffs' counsel shall be considered to be confidential and shall not be used for functions other than those directly related to compliance with this order. All such records shall be obtained, if necessary, and provided to plaintiffs' [*84] counsel through TennCare, rather than through individual MCOs.
Id. at P 105. (emphasis added).
The Defendants' and MCCs' contracts contain the following provisions on the Defendants' and other governmental agencies' access to any MCC's information about any TennCare enrollee:
The CONTRACTOR shall insure within its own organization and pursuant to any agreement the CONTRACTOR may have with any other providers of service, including, but not limited to providers, subcontractors or any person or entity receiving monies directly or indirectly by or though (sic) TennCare, the TENNCARE representatives and authorized federal, state, and Comptroller personnel including but not limited to TENNCARE, the Office of Inspector General (OIG), the Medicaid Fraud Control Unit (MFCU), the Department of Health and Human Services, Office of Inspector General (HHS OIG) and the Department of Justice (DOJ) and any other duly authorized state or federal agency shall have immediate and complete access to all records pertaining to the medical care and services provided to TennCare enrollees.
(Plaintiffs' Exhibit 28) (emphasis added).
2. The Lack of Preservation of Relevant Records
From the Court's perspective, the [*85] core of this ESI discovery controversy is the absence of any effective attempt by the Defendants to preserve and segregate relevant ESI, since the filing of this action in 1998. Despite the entry of the Consent Decree in 1998, the proof is that only in March, 2004 did the Defendants prepare a litigation hold memorandum for its employees and MCCs in the TennCare program. This March 17, 2004 memorandum, prepared by then counsel for the Governor and a member of the State Attorney General's office, sets forth a detailed process for the retention, segregation and preservation of documents on this and other TennCare actions. 22
22 The March 17, 2004 memorandum or litigation hold appears to represent a shift in the Defendants' focus to a litigation strategy to seek relief from the Consent Decree on its Medicaid programs in this and related actions. The Defendants' proof is that this shift was because the Governor wanted relief from the Consent Decrees. Another manifestation of this policy shift, beyond the March 17, 2004 litigation hold memorandum, was the retention of new counsel shortly thereafter. (Docket Entry No. 383, 385).
The March 17th memorandum referred to this action by name and stated [*86] that it was "critical that we take every reasonable step now to preserve the information, documents, and/or data produced or received by the work teams, whether in hard copy or electronic form." (Plaintiffs' Exhibit 24A). 23 This memorandum refers to a variety of electronic records to be preserved, including such information from "outside sources":
[The material that must be preserved] includes, but is not limited to: (1) email and other electronic communications; (2) word processing documents, including drafts of documents; (3) spreadsheets; (4) databases; (5) power point presentations; and (6) personal notes. The material to be preserved also includes any information or data received by a work team from outside sources.
(Docket Entry No. 828, Exhibit 20 thereto).
23 At one point, Defense counsel asserted that their duty was only to issue the litigation hold, not to ensure that it was implemented. (Docket Entry No. 828, Exhibits 9, Moss Letter to Bonnyman at p. 2 ("I did suggest that the

State does not have an obligation to preserve all documents simply because a consent decree is in place, but my comment was merely directed to the issue of whether the State had an obligation to do more [*87] than instruct state officials to preserve documents relevant to this litigation, which the State has done.")). There is not any documentary evidence of a litigation hold issued by current private counsel. Plaintiffs note that current lead counsel describes his firm as well experienced in "cases [that] were paper intensive, involving literally millions of documents, which we were able to index, store, and search electronically." (Plaintiffs' Exhibit No. 35 at p. 2).
In summary, this memorandum constituted a "litigation hold" for the preservation of all potentially responsive materials as well as the collection and review of such materials by designated records custodians. Provisions for contemporaneous designation and segregation of privileged materials communications are included, as this memorandum described in some detail:
An initial step that needs to be implemented immediately is the appointment of a records custodian for each work group, who will be responsible for maintaining and preserving all data received and produced by each work group. In order to assist these individuals in this task, it is imperative that they receive copies of all documents, including drafts, and other [*88] materials and that they be included in all communications, including electronic. Further, any materials that are privileged either as attorney client communication or as attorney-work product should be designated as such, so that the record custodians can segregate out those materials to preserve their confidentiality...
Limit written documents, especially the distribution of written documents ... Mark all draft materials "Working Drafts": Keep in mind that any written document could be deemed a "public record" and publicly distributed.
* * *
Preservation of all records pertaining to TennCare Reform is of the highest priority. This includes all electronic documents (email, memo[], etc.).
* * *
To preserve documents as efficiently as possible: All e-mails and attachments should be cc to: AG_TennCare Team.
All email and attachments should be cc to: The F&A team Representative ("records custodian")
All future documents and email should be saved immediately to the server or as email archive or filed if "hard copy" only.
Should any employee involved in this effort leave state service, their hard drive should be imaged and retained.
Plaintiffs' Exhibit Nos. 24-F and 24-G. (emphasis added). Notwithstanding [*89] these documents, the TennCare Team mailbox was not made available by December 2, 2004, and there remained a "need to establish a policy of centralized retention of all electronic documents, (emails, files, reports, presentations, etc.), for returning to Medicaid." Plaintiffs' Exhibit 24-B.
The extent, if any, of the actual distribution of this Memorandum is unclear as the Defendants did not offer any proof on this issue. The Defendants did not present any proof from the working group's designated records custodians whose positions were identified in the March 17th Memorandum to collect all ESI from their groups so as to implement the memorandum. At the November 6, 2006 hearing, defense counsel stated that privileged documents had not been reviewed nor segregated for the Plaintiffs' ESI discovery requests until beginning in December 2006 or January 2007.
The State is not equipped today to be able to do this sort of electronic production. It doesn't have the inhouse capabilities to do it. Mr. Antony's declaration that we filed with our responses to their motion to compel details the very convoluted and complicated process that we would try to come up with, which would require State officials [*90] to try to forward all of their e-mails and electronic documents to a

separate e-mail account, then have attorneys to on that account and try to review each one, and then forward it either to a non-responsive e-mail box or a privileged email box.
We're talking a tremendous amount of time and expense, both that attorneys' time certainly in the review, but we're talking time that the State officials are going to have to take time away from their normal obligations to send literally thousands and thousands of e-mails.
(Docket Entry No. 734, Transcript at p. 26). These facts are inconsistent with any effective implementation of the March 17, 2004 memorandum/ litigation hold, as described by its terms.
The proof establishes that even if the March 17, 2004 litigation hold memorandum were distributed, there was not any implementation of its provisions. 24 The proof is undisputed that the March 17th memorandum was never disseminated to the staff of the Governor's Office for Children's Care Coordination (GOCCC), the agency that was created to coordinate and oversee implementation of the Consent Decree. (Docket Entry No. 938, Flener Deposition at pp. 42 - 43; cf. Docket Entry No. 569-4, Declaration [*91] of Thomas Catron at PP 2-4), nor to the TennCare official in charge of information technology. (Docket Entry No. 984 at p. 192). Pertinent State agencies were not monitored for compliance. (Docket Entry No. 984 at pp. 194-95 and Plaintiffs' Exhibit 23 at p. 54). GOCCC did not monitor the state agencies within its charge for document and ESI preservation procedures. Id. at pp. 54, 55. Rob Bushong, the State's paralegal in charge of document preparation had never seen the March 17th Memorandum. (Docket Entry No. 988 at p. 203). Neither counsel who prepared the March 17th Memorandum testified as to the distribution of that memorandum nor how the litigation hold was implemented.
24 After the June 2006 evidentiary hearing, the Defendants submitted the affidavit of Linda Ross, a Deputy Attorney General and counsel for the Defendants. (Docket Entry No. 998). Defendants' counsel contended that for the "first time" in closing argument, Plaintiffs' counsel argued that private defense did not issue a litigation hold. (Docket Entry No. 997 at p. 5). In her affidavit, Ross asserts that she wanted to assure the Court that the Defendants' private counsel "fully supported" and "fully implemented" the [*92] March 17th litigation hold. Id. The Court disregards this affidavit for several reasons.
First, the Court made it clear that live testimony would be required for the issues at that hearing. The Court earlier struck affidavits submitted on this motion. (Docket Entry Nos. 1008 and 1009). The reasons for this requirement are that the Defendants' prior discovery affidavits have been conclusory, inadequate and at times, inaccurate. See Docket Entry No. 596, February 10, 2006 Transcript at pp. 35-36. Ross's affidavit exemplifies this problem with her conclusory references that private defense counsel "fully supported" and "fully implemented" the litigation hold. Ross's assertions are unsupported by any specifics facts as to what private defense counsel actually did so as to assess the credibility of her conclusory assertions. This affidavit is written, as other affidavits submitted by the Defendants' counsel, with conclusory assertions to support an argument.
Second, Plaintiffs' counsel raised the issue of the absence of a litigation hold at the November 6, 2006 conference (Docket Entry No. 734 at pp. 14-19, 49-64) and the December 2006 conference (Docket Entry No. 764 at pp. 28-30, 42-50). [*93] Plaintiffs' counsel expressly raised this issue in their brief before the June 19th hearing:
B. The Defendants nonetheless failed to monitor and maintain an effective litigation hold within state government.
Although the litigation hold was issued, it was not implemented. Present defense counsel assert that their duty was only to issue the litigation hold, not to ensure that it was implemented. (Doc. 828, Ex. 9 and 10). [FN4] But the state failed to perform this duty as well - the litigation hold was never disseminated to the staff of the Governor's Office for Children's Care Coordination (GOCCC), the agency responsible for coordinating and overseeing implementation of the Consent Decree in this case. (See Doc. 938, Flener Deposition at 42:11 - 43:12; cf Doc. 569 at Paras. 2-4). Nor was there monitoring of state agencies to determine whether to document and ESI preservation procedures outlined in the litigation hold were being observed. (Doc. 938, Flener Deposition at 54:8-55:6).

The State's failure to implement the procedures outlined in the litigation hold was widespread, if not universal. Defense counsel reported to the Court at the November 6, 2006 hearing that yet custodians had [*94] not been forwarding potentially responsive information, and that privileged documents had not been reviewed or segregated. (Doc. 734 at 26).
N.4 The March 17, 2004 litigation hold, which was developed by the Attorney General and the Governor's Counsel, acknowledged the duty and intention not merely to issue the memorandum but to take steps to ensure the actual preservation of relevant evidence. The role of lead counsel in this case passed to outside counsel shortly thereafter. (Doc. 383. 385).
(Docket Entry No. 941-1 p. 8).
Third, Nicole Moss, a defense counsel, earlier acknowledged on this issue that: "I did suggest that the State does not have an obligation to preserve all documents simply because a consent decree is in place." (Docket Entry No. 828, Exhibit 9, Moss letter at p. 2). Moss added: "my comment was merely directed to the issue of whether the State had an obligation to do more than instruct state officials to preserve documents relevant to this litigation, which the State has done. The State believes that the document preservation policies and instructions it has issued fulfill its obligations to reasonably ensure that all documents relevant to this case are not destroyed [*95] and that there is no further legal requirement that all documents created by the State, even those not related to this litigation, be preserved for all time." Id. (emphasis supplied).
The Court concludes that the Defendants cannot utilize Plaintiffs' counsel's closing argument to justify proof that should have been presented at the June 2007 hearing where Ross's conclusory assertions could be tested.
If this litigation hold were implemented, as outlined in the March 17th memorandum, then these complex discovery issues about ESI discovery and related costs of privilege review issues would be moot as, for example, all privileged documents would have been aggregated, centrally located, preserved, and segregated after a privilege review by the State Attorney General's office. As the circumstances now stand, the Defendants' counsel argue that none of this ESI should be produced because an expensive and costly privilege review of this information is necessary and that this review is so costly that members of the class or class counsel should be required to pay for the Defendants' privilege review and ESI production.
To be sure, at the December 6th hearing, Nicole Moss, one of the defense counsel, [*96] did state that after Plaintiffs renewed their discovery, a litigation hold was issued in June, 2006, but those instructions, if written, were not introduced at the June 19th hearing. At the December 6th hearing, Moss told the Court that there was not any litigation hold until 2004 because this was a consent decree case. (Docket Entry No. 764 Transcript at p. 42). According to Moss, "[w]hen this case went into litigation, at that point, we put a litigation hold on responsive documents." Id. The Court finds this assertion flawed, given the clearly contested contempt proceedings in this action in 2000 and 2001 (Docket Entry Nos. 63, 65, 69, 79, 123 and 124) as well as the contested issues in 2002 (Docket Entry No. 281, Defendants' Motion to Modify the Consent Decree) that was set for a hearing in 2003 (Docket Entry No. 332). On May 20, 2004, Plaintiffs filed a motion for an evidentiary hearing. (Docket Entry No. 375).
In addition, the Defendants cite the testimony of GOCCC director Natasha Flener that there was a litigation hold and that she tried to save everything on her computer. Flener's actual testimony was: "You know, after I had been there a few months, I think I was told that we [*97] needed to be keeping all e-mail correspondence." (Defendants' Exhibit 17, Flener deposition at p. 44) (emphasis added). Flener also testified: "I mean, we had conversation, obviously, about it, because we were all doing it. I don't know that - I don't know if we talked about specifics on, you know, what we needed to be producing." Id. at 68 (emphasis added). 25 On the critically important issue of preservation of records by the person in charge of oversight of this part of the TennCare programs, the Court would expect greater clarity in her testimony or a reference to the March 17th memorandum.
25 The only other uncertainty she expressed about the litigation hold concerned whether it extended to every single draft of a document, even hard copy drafts that merely reflected non-substantive grammatical and stylistic changes. Id. at 42 ("Like, if we had, you know, multiple drafts of something we were working on, I don't know

that I really knew whether or not I needed to keep every draft hard copy of it.") Flener further testified that she received instructions regarding her preservation duties at the time Plaintiffs' Third Set of Interrogatories and Third Set of Document Requests were disseminated. [*98] See id. at 80 (testifying that she received instructions regarding "what things we might need to be keeping or maintaining or saving").
Defendants also cite Brent Antony, the TennCare official designated by the State to address the technical aspects of electronic discovery. Antony testified about a litigation hold in 2000, but there is not any documentary evidence of such. In his earlier affidavit, Antony described the collection of ESI in a single mailbox, as requested by the Plaintiffs, as an undue burden. (Docket Entry No. 720, Exhibit C thereto). Later, Antony characterized this method as "very convoluted and complicated process . . . which would require State officials to try to forward all of their emails and electronic documents to a separate e-mail account," for the ESI production. (Docket Entry No, 734, November 6, 2006 Transcript at p. 26). These assertions are contrary to the March 17th memorandum/litigation hold that actually requires a single mail box for all relevant ESI at two offices; Finance and Administration and the State Attorney General's offices. The Defendants did not actually have a single mail box for all emails until 2006 or 2007.
Plaintiffs argue that the lack [*99] of a litigation hold resulted in the destruction of responsive information from the Governor's Office for Children's Care Coordination, and e-mail boxes of some key custodians in other agencies, citing Docket Entry No. 799 and Docket Entry No. 828, Exhibit 11 at TJC 85, TJC 173, TJC 188, TJC 209 and Exhibit 16 at TJC 196. Plaintiffs argue that the Defendants are well aware of the importance of e-mails as evidence because in 2001, the Defendants submitted numerous emails as evidence to support their assertions of compliance. See Docket Entry No. 223, admitting Plaintiffs' Exhibit D1, H09, H11, H14, H19, H39, H51. Defendants strongly dispute this destruction of evidence assertion.
The Defendants' standard retention policies on ESI are that items older than 180 days would roll off the system. In their discovery report to the Court, the Defendants described the loss of ESI in their system and the lack of organized retention of ESI:
For email the State has policies and procedures regarding the removal of aged emails, and backups for disaster recover purposes. The State regards emails that have been in a mailbox for six calendar months as aged emails. When emails reach the 6 month age they [*100] automatically become eligible for removal. Unless specific action is taken by a mailbox user, emails are removed from the system one month following their six month anniversary. The State performs disaster recovery backups on its email servers on a daily basis. The backup media is retained for a period of five days from the day of the backup. If during that five day period an email server were to fail and lose the mailboxes it supports, the disaster recovery backup would be used to restore the mailboxes on a repaired or replaced server. Backup media is not maintained following the five day period. It is reused for backup, recycled into other uses, or destroyed.
While the State has issued instruction to archive emails so as preserve them from automatic deletion as described above, the State does not have a specific policy or procedure on how to archive emails for future reference since there are so may myriad places and ways to archive. It is the responsibility of each email account owner to maintain archival copies of emails as instructed by their supervisors, or if not instructed, as they believe appropriate.
(Docket Entry No. 740-2, TennCare E-Discovery Report at p. 10) (emphasis added).
Defendants [*101] elicited some proof that some custodians were instructed to retain relevant ESI in their archives. (Docket Entry No. 984, June 20, 2007 Transcript at pp. 162-63). Defendants' key custodians have individual work stations, where they maintain individuals' "my documents" file/folders and "home folders." These work stations lack any backup retention. In a word, "there are no tapes for the designated custodians." (Docket Entry No. 786, December 20, 2006 Transcript at pp. 7-10). Only at the December 2006 conference did Antony describe the measures taken in 2006 to collect the key custodians' mail boxes into a single tape. Id. at p. 7.
Yet, in a December 7, 2006 response to the Plaintiffs' second request for admission, the Defendants acknowledged "a few isolated instances in which individuals had not archived their emails" and admitted that there was "one isolated instance" in which a former employee's entire email box had been deleted. (Docket Entry No. 771, Exhibit A thereto at pp. 5-6). The Defendants also admitted that "many electronic documents, in particular email, having been produced in

hard copy form may no longer exist electronically." Id. at p. 5. In response to the Plaintiffs' [*102] Third Request for Admissions, the Defendant disclosed that when several key custodians left employment, they were never told to preserve relevant documents and their computers were reconfigured for other reasons. See Docket Entry No. 828, Exhibit 16 at pp. 4-7; id. at Exhibit 11 at pp. 1-3; id. at pp. 11-13; id. at pp. 4-7; id., at pp. 8-10. Plaintiffs cite as other proof lost emails. 26
26 See e.g., Rebecca Poling: Docket Entry No. 980 at 89 of 90 ("I don't typically have documents that relate to John B. What I would have would be emails concerning specific cases. So . . . I don't have anything stored anywhere on my computer that relates directly to John B. (Except where I've stated saving the emails")) with Docket Entry No. 799 at pages 44-45 of 64).
Jim Shulman; Docket Entry No. 980-2 at 15 ("I do not archive documents nor do I put them in folders. I am not very good with the computer.") with Docket Entry No. 799-10 at pp. 18-19.
Dick Chapman: Docket Entry No. 980-2 at 66 of 71 (GroupWise archive is empty).
Carol Kardos: Docket Entry No. 980 at 85 of 90 ("[N]o email archived.") with Docket Entry No. 799-13 at pp. 20-21.
(Docket Entry No. 996, Plaintiffs' Post-Hearing Memorandum of Facts [*103] and Law at pp. 12, 13).
As discussed earlier, some key custodians did not provide any email. Plaintiffs note that several of the 50 key custodians failed to produce any responsive e-mails; notably the Governor, Dave Cooley, the governor's deputy, and David Goetz, the Commissioner of Finance and Administration who is in charge of TennCare and a named defendant in this action. These omissions are reflected in emails from other officials that were copied to these key custodians or mention their involvement. (Docket Entry No. 828, Exhibit 1, at p. 2 P 9 and Plaintiffs' Exhibits 3, 4, 5, and 15). Plaintiffs' proof is that these state officers have been "actively involved" in the shaping of TennCare policy affecting EPSDT over the preceding two years. (Docket Entry No. 709 at 23-24; Docket Entry Nos. 712 and 713). As examples, Plaintiffs introduced Goetz's handwritten notes of weekly meetings with the Governor, who is identified in Goetz's notes by the initials, "PNB", and other state officials in 2004 and early 2005 that were produced in discovery in March 2005 in the Rosen action. 27 Plaintiffs' proof also includes an email addressed to Cooley about this action and a copy of another email [*104] to Cooley on issues in this action. (Plaintiffs' Exhibit Nos. 3 and 5). Two former directors of TennCare were not asked for their answers to the RFAs, and others purported to answer on behalf of the Governor and others. (Docket Entry No. 828, Exhibit 16 at pp. 1-3, 11-13; id. at pp. 8-10; id. at pp. 14-16). These facts are also inconsistent with the March 17th memorandum. Moreover, the Defendants failed to instruct some key custodians regarding their responsibilities to archive ESI or how to do so that leads the Court to find that in all likelihood, significant responsive ESI was destroyed after 180 days. (See Docket Entry No. 786 at p. 43; Docket Entry No. 734 at p. 62; Docket Entry No. 740-2, TennCare E-Discovery Report at p. 5).
27 Rosen v. Goetz, No. 3:98-627 (M.D. Tenn.).
Significantly, the Defendants did not tell the MCCs (where most EPSDT services are processed or provided) to preserve and produce responsive information until weeks after the Court's bench ruling of November 6, 2006. (Docket Entry No. 734 at pp. 73-74). After the Court's Order of November 21, 2006, the Defendants informed its contractors of the existence of the outstanding discovery requests. (See Docket Entry No. [*105] 745 at pp. 1-2; Docket Entry No. 751 at pp. 1-2). The Defendants did not require its contractors to institute a litigation hold and some MCCs did not issue preservation or litigation holds until December 2006 and in some cases January 2007. (Docket Entry No. 872, April 11, 2007 Transcript at p. 165). As a result, the MCC's document retention policies systematically overwrote or otherwise destroyed e-mails and other responsive documents. (See, e.g., Docket Entry No. 751 at p. 2; Docket Entry No. 745 at p. 2; Docket Entry No. 828 at pp. 5-6). At the April 11, 2007 conference, some MCC representatives cited their continued destruction of potentially responsive ESI in December 2006 or in January 2007. (Docket Entry No. 872 at p. 165).
In contrast to the Defendants' preservation practices, when the MCCs were advised to preserve responsive information, some MCCs issued directives to "lock down" any responsive ESI to avoid deletion by individual custodians or by routine document retention policy. (Docket Entry No. 986 at pp. 115-116 (AmeriChoice); Docket Entry No. 984 at pp. 96-97 (Doral); Docket Entry No. 988 at p. 84 (BlueCross); Docket Entry No. 986 at p. 91 and Docket Entry No. 872 at [*106] p. 154 (Unison)). Prior to that, MCCs' policies resulted in the automatic destruction of ESI on a daily basis without protection of responsive materials. (See Docket Entry No. 816, Exhibit 10: 12/19/06, Roberts letter on behalf of Doral at p. 2 of 28; Docket Entry No. 816, Exhibit 10: 12/19/06, Paul letter on behalf of United Healthcare at p. 7 of 28;

Docket Entry No. 816, Exhibit 10: 12/19/06 Norwood letter on behalf of VHP at p. 10 of 28; Docket Entry No. 816, Exhibit 10: 12/19/06 Miller letter on behalf of PHP at pp. 14-15 of 28; Docket Entry No. 816, Exhibit 10: 12/18/06 letter on behalf of Memphis Managed Care at p. 21 of 28). Thus, except for Blue Cross's preservation of materials starting in January 2006, the other MCCs continued the destruction of responsive materials until at least November 2006.
The Defendants initially denied any duty to provide any MCC information, contending that except for documents provided to the State, such information was not in the Defendants' "possession, custody, or control." (Docket Entry No. 711 p. at 4). Defendants' counsel repeated that argument in their post-hearing brief.
[I]t is well settled that a party has no obligation to preserve evidence [*107] that is not in its possession, custody or control. See, e.g., MacSteel, Inc. v. Eramet N. Am., No. 05-74566, 2006 U.S. Dist. LEXIS 83338, at *4 (E.D. Mich. Nov. 16, 2006). ("[T]he duty to preserve evidence does not extend to evidence which is not in a litigant's possession or custody and over which the litigant has no control.") (quotation marks and alterations omitted)...
(Docket Entry No. 997 at p. 25).
At the November 6th conference, Defendants' counsel told the Court:
MS. MOSS: And I want to be clear on the State's position. We're not saying that these documents are not in the State's custody or control or that we can't produce documents from our contractors. In fact, we've produced -- -- our response to details, entire categories of documents that we have produced from our contractors.
(Docket Entry No. 734, November 6, 2006 Transcript at p. 42).
3. Inadequacies in the Defendants' 2006 Paper Production
In their fourth request for production of documents, Plaintiffs focused on two major categories of ESI. First, Plaintiffs sought transactional or quantitative data that the Defendants are required to maintain so as to monitor, track and report their compliance with the Consent Decree. As [*108] the Court understands, for the Defendants and most MCCs, with some exceptions, the transaction data controversy is now moot. The second and contested category includes emails and other such ESI among persons, including the Defendants' employees and the MCCs' employees with substantial responsibility to implement, monitor and measure compliance with the Consent Decree as well as other ESI about class members.
Plaintiffs challenge the adequacy of the Defendants' 2006 paper production and the Defendants' and MCCs' estimated costs of recovering the ESI sought by the Plaintiffs. At the June 19th evidentiary hearing, Plaintiffs' proof established several substantial and serious deficiencies in the Defendants' June 2006 paper production. As stated earlier, Plaintiffs note that several of the 50 key custodians failed to produce any responsive e-mails, notably the Governor, Dave Cooley, the governor's deputy and David Goetz, the Commissioner of Finance and Administration who is in charge of TennCare. These omissions are reflected in emails from other officials that were copied to these key custodians or mentions their involvement. (Docket Entry No. 828, Exhibit 1, at p. 2 P 9 and Plaintiffs' [*109] Exhibits 3, 4, 5, and 15). Plaintiffs' proof is that these state officers have been "actively involved" in the shaping of TennCare policy affecting EPSDT over the preceding two years. (Docket Entry No. 709 at 23-24; Docket Entry Nos. 712 and 713). As examples, Plaintiffs introduced Goetz's handwritten notes of weekly meetings with the Governor, who is identified in Goetz's notes by the initials, "PNB", and other state officials in 2004 and early 2005 that were produced in discovery in March 2005 in the Rosen action. 28 Although incomplete, Goetz's notes reflect that the Governor, Commissioner, and other senior officials discussed not just TennCare in general, but specific TennCare matters relating to children. (Docket Entry No. 728-3). As another example, despite the Defendants' denial of the involvement of Dave Cooley, the deputy governor, in overseeing TennCare or making policy affecting EPSDT, Plaintiffs' proof included an email addressed to Cooley about this action and a copy of another email to Cooley on issues in this action. (Plaintiffs' Exhibit Nos. 3 and 5). On the cited inadequacy of this production, Defendants' counsel elicited from Thomas Tigh, Plaintiffs computer expert, [*110] testimony about the likely prospect for differences among custodians in their selection of documents for

production. This fact, however, underscores the need for an independent entity to collect discoverable ESI, as Tigh testified is an industry standard for ESI production.
28 Rosen v. Goetz, No. 3:98-627 (M.D. Tenn.).
Second, Thomas Tigh, Plaintiff's computer expert who is well experienced in ESI production with twenty-seven years experience in complex litigation, scanned the Defendants' June 2006 paper production for search capabilities. In his electronic search of the Defendants' June 2006 paper production, Tigh found that J.D. Hickey, a key TennCare official, was named in about 500 emails in the Defendants' 2006 paper production. Tigh compared that number to the Defendants' ESI contractor's compilation of Hickey's emails from the Defendants' database. The Defendants' ESI contractor lists 30,000 emails in Hickey's files. In Tigh's opinion, this substantial disparity undermines the integrity of the Defendants' June 2006 paper production. The Court agrees.
Third, Tigh reviewed the Defendants' proof about the burdensomeness of the Plaintiffs' ESI. The Defendants identify millions of pages [*111] of responsive documents. According to the Defendants, using Plaintiffs' search words, the State's files from June 2004 forward resulted in 193 gigabytes of information from a total of 430 gigabytes. (Docket Entry No. 984 at p. 131). This 193 gigabytes comprises 118 gigabytes of data for the period prior to April 2006 and 75 GB for the period after April 2006. Id. at pp. 157, 158. A gigabyte in the State's system is equal to 77,000 pages. Id. at p. 116. The Defendants contend that, using Plaintiffs' key term searches and upon review by their counsel, twenty percent of the documents located are responsive to Plaintiffs' requests. (Docket Entry No. 988 at p. 193). The calculation of 1.8 million responsive pages is: 118 gigabytes data for the period of June 2004 through April 2006 x 77,000 pages per GB = 9.1 million pages, and then 20% yield of responsive documents x 9.1 million pages = 1.8 million pages. (Docket Entry No. 984 at pp. 213-214).
Tigh testified that the Defendants' June 2006 paper production contains only approximately 71,0000 documents. (Docket Entry No. 982 at p. 88). Defendants' counsel contend that their 2006 paper production included their 2005 production in Rosen v. [*112] Goetz, a related action. Yet, Rob Bushong, the Defendants' paralegal in charge of documents testified that the Rosen documents were made available for Plaintiffs' inspection, but were not copied unless Plaintiffs requested copies. (Docket Entry No. 988 at p. 187). On cross-examination, the Defendants' counsel suggested that Tigh cited a larger number of pages (183,000) in the State's paper production at the April 11th "experts only conference." Accepting the Defendants' assertions of the higher number, the actual number of responsive ESI in the Defendants' ESI contractor's database remains multiples of the total documents produced in Defendants' 2006 paper production.
Fourth, Tigh explained that the Defendants' method of collecting of ESI from its key custodians was flawed because the Defendants' custodians were left to determine for themselves whether to exclude unfavorable ESI on their computers. In addition, the Defendants provided little guidance or supervision for this production. Natasha Flener, GOCCC's director whose agency coordinates compliance under the Consent Decree, did not receive any such directions or instructions. (Docket Entry No. 938, Flener Deposition at pp. 67, [*113] 68). The Defendants did not issue instructions to the MCCs beyond the copies of the State's written objections and responses to the interrogatories and requests for production. According to Tigh, the Defendants' method of collection is known to leave gaps in production and violates industry standards for ESI collection. (Docket Entry No. 982 at pp. 38, 39). For example, under industry standards, an independent entity collects relevant ESI and industry protocol provides for an audit to ensure that the search is properly conducted. An independent entity's collection of all responsive ESI from individual custodians ensures against the non-production or destruction of e-mails that a particular custodian deems unfavorable. See also Docket Entry No. 764 at pp. 19, 20.
Fifth, Plaintiffs noted that the May 2006 log identified 3,201 pages of documents produced from the Department of Finance and Administration, but the log did not identify the specific individual(s) in the Department from whom the documents were collected.
Sixth, the Court ordered a survey of the custodians on removal of documents, but some of those surveys were oral, not written. (Docket Entry No. 734 at p. 26). Defense counsel [*114] assured the Court that, ". . . the survey, my understanding was most of those answers were oral, not written. So there is nothing to submit or provide to the plaintiffs..." (Docket Entry No. 984 at p. 150). When the Court ordered any completed written survey to be filed, the written survey responses were 161 pages. (Docket Entry No. 980). The survey questions do not reflect the Court's question about whether a custodian removed any data to another media. Id. Thirteen (13) custodians did not provide any information regarding the location of documents and files pursuant to the first question in the survey and thirty-nine (39) custodians

did not provide information regarding the location of emails. Compare Plaintiffs' Exhibit 2 (list of custodians) with Docket Entry No. 980 (survey responses).
Out of thirty-one DCS custodians, four people responded and three gave a standard non-responsive answer: "According to state policy and software program defaults, all created documents are stored on user directories and shared folder locations that reside on servers." (Docket Entry No. 980-2 at p. 13 (Miller); id. at p. 19 (Franklyn); id. at p. 21 (Jones)). Other custodians responded that they did [*115] not have any responsive documents. (Docket Entry No. 980-3 at p. 54 (Williams); id. at p. 56 (Whitlock); id. at p. 58 (Dwivedi); id. at p. 85 (Kardos); id. at p. 89 (Poling)). These answers are non-responsive because the survey was to elicit information on the custodians' storage or removal of responsive documents. (See Docket Entry No. 789 at p. 2-3).
Seventh, prior to Antony's production of the surveys for the January 14th Order, the Defendants asserted that the custodians' answers to the Plaintiffs' Third Request for Admissions and Fifth Interrogatories were also responsive to the January 14th Order. (Docket Entry No. 799; Defendants' Notice of Filing, January 30, 2007; Docket Entry No. 816-1 at pp. 14-15). Plaintiffs' counsel disagreed and requested the certifications required by the January 14th Order, and defense counsel refused. (Docket Entry No. 828, Exhibit 15: Bonnyman letter of February 5, 2007).
Many of the emails sent from the custodians to Antony and then filed with the Court after the Court's June 20th Order have also been redacted without explanation about the information removed. (See, e.g., Docket Entry No. 980-3 at p. 49 (Outlaw); id. at p. 52 (Burley); id. at p. 54 [*116] (Williams); id. at p. 56 (Whitlock); id. at p. 58 (Dwivedi); id. at p. 61 (Edgar); id. at p. 68 (Carver); id. at p. 70 (Dean); id. p. 80 (Carter)). The Court finds that the Defendants never complied with the January 14th Order requirement that each custodian must certify that none of the responsive ESI had been removed.
Eighth, a paper production that is converted from ESI to hard copy undergoes a process that strips "metadata" from the electronic version of the documents. "Metadata" is information created with an electronic document to capture imbedded edits and other non-screen information that are integral elements of the ESI documents. (Docket Entry No. 720 at p. 3). Tigh explained that in his experience, metadata is important and reliable information that describes the path of a document among the Defendant's officials, when the document was created and edited. Metadata provides information that is not present in the State's paper production. As examples of metadata, Plaintiffs cite the following:
1. BegAttach, associated with the first page of a document
2. EndAttach, associated with the last page of an attachment
3. Master_Date, the actual date of the parent document
4. Create_Date, [*117] the date a document was created
5. Create_Time, the time a document was created
6. LastMod_Date, the date the document was last modified
7. LastMod_Time, the time the document was last modified
8. ParentFolder, which denotes the full path and folder information of a document
9. BCC, which displays the names of the blind copyee(s) of a document
10. Custodian, the custodian of a document
11. Nativepath, the full path to a native copy of a document
12. Attachcount, the number of attachments to a document
See Docket Entry No. 941, Plaintiffs' Reply Brief at p. 16.
Tigh testified that the absence of metadata in the Defendants' hard copy production creates a deficiency in information as to who received the document, who received copies of the document or email, who edited the documents, whether there were attachments to the documents and when the document was created. Plaintiffs deem metadata critical to their ability to understand any ESI provided and to challenge the Defendants' assertion of compliance with the Con-

sent Decree, especially given Judge Nixon's finding that the Defendants lack reliable statistical measures of their actual progress.
Finally, Tigh analyzed the MCCs' responses to interrogatories [*118] and noted several instances in which some MCCs did not respond at all. (Plaintiffs' Exhibit No. 9). Significantly Plaintiffs cite a disturbing and misleading discussion with a state official about the Defendants' answer to Plaintiffs' Interrogatory No. 22:
INTERROGATORY NO. 22 Wendy this is a tricky one since the MCC's would have files, but we have answered that this is unanswerable.
During the twelve-month period prior to January 10, 2006, how many members of the plaintiff class received TennCare services that, since that date, have been excluded by TennCare Rule. 1200-13-13.10 as non-covered services?
a. With respect to each such child, identify the pertinent documents relating to the nowexcluded service. This request includes documents that identify the child, identify the service and address the child's purported need for the service.
b. Identify any documents that discuss, analyze, evaluate, justify, criticize or implement the exclusion or speculate on their potential impact on members of the plaintiff class; this request includes any documents containing potential cost saving estimates or other budget effects associated with the exclusions as applied in plaintiff class members; [*119] this request also includes any documents containing analyses or estimates of the number of children or number of service requests that might be affected by the exclusions.
(Plaintiffs Exhibit 12-D at p. 16).
The Defendants introduced their actual response to this interrogatory.
Defendants reiterate their General Objections as if each is specifically set forth immediately below in response to this interrogatory. In addition, Defendants object to this Interrogatory to the extent it implies that the items on the exclusions list in TennCare Rule 1200-13-13-.10 are newly non-covered services. Defendants further object to this Interrogatory to the extent it would require them to impose on their contractors to provide information not kept in the ordinary course and not tracked in a manner that would allow them to readily respond to this request without undue burden and expense. Because the information Plaintiffs appear to be seeking in this Interrogatory is not maintained in a readily accessible database, a response would require Defendants to review potentially hundreds of thousands of individual children's medial files, which is an unreasonable and objectionable request not contemplated by [*120] the Federal Rules or sanctioned by any court order in this case. Without waiving these objections, Defendants respond as follows.
TennCare Exclusions Rules were promulgated through the ruling making process with a public hearing conducted on August 15, 2005. The rules became effective January 10, 2006. Further clarifications were promulgated as Public Necessity Rules on May 3, 2006 to reflect TennCare's compliance with EPSDT and the John B. Consent Decree. Coverage policy defined in the exclusions rules, including identification of certain services that are non-covered even for children under age 21, are not changes in TennCare's policy regarding these services, but rather, clarifications of coverage policy, and reflect services that the State believes are not covered even under EPSDT because they are services for which FFP is not available and/or are never medically necessary for children. These are not "now-excluded" services, but rather services which have always been excluded from coverage and for which clarification that such services are not covered has now been provided. While the State acknowledges that it is possible that an MCC, absent these clarifications, may have, in fact, [*121] covered one of these services in the past, it is not because such services were covered under TennCare or mandated by EPSDT. Furthermore, because the kinds of services identified are services for which FFP is not available and/or are never medically necessary for children, obtaining claims information regarding possible

inappropriate payments by an MCC for these services is impossible. There are no ICD-9 or CPT codes for such items as Lovaas therapy, trampolines, or swimming pools.
For documents generally responsive to this request, in addition to all documents previously produced in this and the Rosen matter and being generally produced herewith, see documents produced at TCJB0406-D-00233 to 00315; TCJB0406-D-00480 to 00516; TCJB0406-D-00537 to 00554; TCJB0405-D-0056-00612; TCJB0406-D-00631 to 00655.
(Defendants' Exhibit 12) (emphasis added). Both parties emphasized different portions of the underscored portions of this interrogatory answer.
Neither "Wendy" nor the person writing to Wendy testified about this statement: "Wendy this is a tricky one since the MCC's would have files, but we have answered that this is unanswerable." (Plaintiffs Exhibit 12-D at p. 16). It is unclear to the [*122] Court if this discussion occurred before or after the Defendants' response quoted above. The Defendants' failure to call "Wendy," an employee of the Defendants' about this controversy adds to the Court's concern, as does the inclusion of the statement in the Defendants' actual answer to Interrogatory 22, i.e.: "Furthermore, because the kinds of services identified are services for which FFP is not available and/or are never medically necessary for children, obtaining claims information regarding possible inappropriate payments by an MCC for these services is impossible." (Defendants' Exhibit 12), The latter statement, without explanation, is inconsistent with the statement "Wendy this is a tricky one since the MCC's would have files, but we have answered that this is unanswerable." (Defendants' Exhibit 12). This increases the Court's confusion about the Defendants' answer to Interrogatory 22. The Court will order a complete a response and will further address this issue at a conference with counsel.
4. The Necessity of Plaintiffs' ESI Discovery Requests
As to the probative value of Plaintiffs' ESI discovery requests, Plaintiffs initiated this recent round of discovery based upon Defendants' [*123] counsel's assertion that the Defendants were in compliance with the Consent Decree. Given Judge Nixon's findings in 2001, 2004 and in his statements about the Defendants' non-compliance in his Order of recusal in 2006, the Court finds that Plaintiffs' ESI discovery requests are for legitimate purposes. In addition, in his 2004 opinion, Judge Nixon found that the Defendants had not cooperated with the Special Master and at one point, refused to "honor [the State's] renewed commitment to produce an IAP [Initial Action Plan] satisfactory to the Special Master, last made in September 2004, and still refuses to engage its key officials in planning efforts to achieve compliance, verification of the quality of its data, and evaluation of the successes or failures in attaining compliance." (Docket Entry No. 465, Memorandum at p. 5).
Significantly, Judge Nixon also noted that "[t]he Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network adequacy, case management, outreach, the effective use of information systems, and system level coordination, to name [*124] a few. [T]he ... Defendants have never created a list of precise "outcomes" towards which their efforts are focused, not only have failed to meet the terms of the Consent Degree, but they are not even in a position to be able to assess their own shortcomings for the purpose of making improvements." Id. at pp. 5-6.
Moreover, Judge Nixon found that the MCCs that actually provide the EPSDT services were also contributors to the Defendants' violations of the Plaintiffs' class's rights under the EPSTD statutes and the Consent Decree.
[W]here there are overlapping medical and mental health issues, the MCOs and BHOs quibble over which entity is responsible for providing coverage. The State's TennCare contracts contribute to this ambiguity by sometimes failing to specify the responsible party, even though the BHOs do have coordination agreements with MCOs. In practice, individuals with overlapping issues sometimes "fall in the cracks" and fail to receive services from either a BHO or MCO, as with, for example, attention deficit disorder patients.
(Docket Entry No. 227, Findings of Fact and Conclusions of Law at p. 16).
As to the need for transactional data, the Consent Decree sets agreed percentages [*125] for screenings of children. In 2004, six years after the decree, the medical screening for most class members was 53% (Consent Decree set no less

80% by 2001) and dental screening was 41.9% (Consent Decree requires no less than 80% required by September 2003). Id. at p. 4. In 2004, the Defendants had not met the 100% screening of children in DCS's custody that was to be achieved by September 11, 1999. See also Docket Entry No. 12, Consent Decree at PP 50 and 52). As Judge Nixon found, as of 2004, none of these percentages had been met.
Dr. Rose Ray, Plaintiffs' expert reviewed the transactional data from the Defendants for her analysis. Dr. Ray and other scientists at her research firm perform a failure analysis and design quality improvement tests using statistics about various products, including medical products and medications. Dr. Ray who was awarded a Ph. D. in statistics from the University of California at Berkeley in 1972, specializes in statistical analyses of business practices and products with an emphasis in medical research analysis. Dr. Ray's analysis of the Defendants' transactional data to date, reveals that for children who are members of the Plaintiffs' class and [*126] between ages 0 to 24 months, the number of paid screening visits at 12 months reveals that 20% of these children had three (3) or fewer screenings and 72% have had 5 or more screenings . (Plaintiffs's Exhibit No. 18). For children in this group, at 23 months, 26% have had 5 or fewer screenings and 56% have had nine (9) or more screenings. Id. For children who have had a mental health diagnosis 34% are rehospitalized within 30 days of their mental health diagnoses. Id. This latter fact on readmission within 30 days is 2 to 30 times more likely than for children admitted within 30 days in 16 other States. Id. at p. 2. In the Consent Decree, the Defendants committed to achieve an eighty percent (80%) screening rate. Dr. Ray's initial report raises serious issues on whether the Defendants are currently meeting the screening percentage standards in the Consent Decree.
The most significant remaining transactional database dispute is between Plaintiffs and some MCCs arising from Plaintiffs' demand for data underlying Health Employer Data and Information Set ("HEDIS") that are calculations to measure a provider's compliance with Medicaid regulations, rule and standards. HEDIS is cited in the [*127] Consent Decree as one standard to measure and set screening percentages. (Docket Entry No. 12, Consent Decree at P 46).
HEDIS is a nationally recognized set of standardized measures of MCO performance. The MCCs collect HEDIS data according to detailed specifications developed by the National Committee for Quality Assurance ("NCQA"), a private, non-profit entity dedicated to improving health care quality. NCQA assesses and scores a MCC's performance and serves as an independent accrediting organization for MCOs. Selected HEDIS measures are evaluated and scored by NCQA as a part of the accreditation process. NCQA requires that MCOs submit HEDIS data annually. For collection of HEDIS data, NCQA specifications requires each MCO to have an independent NCQA-certified HEDIS auditor to conduct the detailed analysis to validate the accuracy and reliability of MCC's reported HEDIS data. NCQA licenses auditors for these audits. See Docket Entry No. 907.
Dr. Ray seeks the MCCs' HEDIS data that are extracts and summaries of a class member's medical history as well as the HEDIS score reports. Some MCCs respond that HEDIS data is available from the State's production and in some instances is unavailable [*128] because that data is compiled on outside vendors' proprietary software. Several MCCs agreed to provide their HEDIS data to Dr. Ray, but other MCCs object because to do so imposes significant burdens upon them, and Dr. Ray lacks the qualifications to perform the only task for which she anticipates using the data. Unison and PHP asserted that to produce HEDIS-related data would require "extract[ing] and review[ing] for production medical record review data that already underlies audited HEDIS reports," a process these MCCs asserted is "unduly burdensome." (Docket Entry No. 907, Exhibit 10 thereto, PHP Letter). Except for HEDIS data on independent entities' proprietary software, the Court finds that this HEDIS should be provided by all MCCs in their native format.
5. The Costs of ESI Production
For their cost assertions, the Defendants explain that in January, 2007, the Defendants retained Document Solutions, Inc. ("DSI"), an ESI contractor to assist with the ESI production sought by Plaintiffs. Under the experts' protocol, DSI's search result was actually 350 gigabytes, but that data was uncompressed and thereby increased to 430 gigabytes. (Docket Entry No. 907 at p. 11; Docket Entry No. [*129] 984 at pp. 116, 120-22; 131). Defendants do not justify the need to uncompress their extract that yielded a 25% increase in the ESI production. Plaintiffs note that the Defendants' brief cited 600 gigabytes. (Docket Entry No. 907 atpp. 9-10). With Plaintiffs' revised search terms, the Defendants' proof is that the search from June 2004 to present for 50 search terms and the 50 key custodians would capture 493 gigabytes of data. A gigabyte can range from 75,000 to 77,000 pages and Defendants determined that their gigabyte is 77,000 pages. Tigh explained that a software program can be used to "deduplicate" or eliminate duplicate documents from the 493 gigabytes, resulting in approximately 193 gigabytes that represents about 15 million pages of documents for review. The Defendants have reviewed approximately 75 gigabytes of non-duplicative e-mails and other ESI and found only 20 percent of that data is non-privileged and actually responsive to Plaintiffs discovery requests.

Once the initial search is performed, DSI then provides a post-search process or "delivery" to render the data collected reviewable to the human eye. To perform these post-search processes, DSI charges the State $ 1200 [*130] per gigabyte for the first 50 gigabytes "delivered" over the total life of the contract, $ 1000 per gigabyte for the next fifty "delivered," and $ 800 per gigabyte for delivery of any additional gigabytes. The Defendants assert that $ 458,000 that has been spent in gathering and preparing their data for review. Any search itself would cost over $ 70,000 (430 gigabytes x $ 165 per gigabyte) and to "deliver" or translate the selected documents into a format reviewable to the human eye would cost approximately $ 184,000. The latter figure is calculated with 193 gigabytes at $ 1200 per gigabyte for the first 50 gigabytes, $ 1000 per gigabyte for the next fifty, and $ 800 per gigabyte for the final ninety-three.
With the earlier results of 20 percent of the 193 gigabytes as responsive and non-privileged documents, Defendants project that from 193 gigabytes, only 39 gigabytes, about 3 million pages, of documents will have to be produced. At six cents a page, the Defendants estimated an additional $ 180,000 to Bates-stamp these documents in a producible format. In addition to the $ 458,000 in consolidation and "extraction" costs to run the Plaintiffs' final search terms, the search of the [*131] TennCare file server and the 50 key custodians would cost the State approximately $ 434,000.
Another component of their costs projections Defendants cited are TennCare and other child-serving agencies' employees who examined the individual computers of the over 150 custodians to capture the ESI from their email archives, "My Documents," equivalent folders servers and home directories. The Defendants consolidated the active e-mail boxes of those custodians onto a single e-mail server to facilitate harvesting their active e-mail as well. The costs of this process is approximately $ 200,000. The State also captured the ESI on the TennCare file server and the Defendants cite the substantial costs of time to State's agencies' personnel.
A significant element of the Defendants' estimated costs is for privilege review by Defendants' and the contractors' counsel, including the costs of Defendants' attorneys and paralegals to create a privilege log and conduct a responsiveness review of the millions of pages generated in response to Plaintiffs' searches. The Defendants' estimates are based on a manual review by their counsel of the electronic documents for privilege. (See Docket Entry No. 907 [*132] at p. 11).
The Court finds the Defendants' costs estimates are highly exaggerated for several reasons. First, the Defendants' representative who is charge with overseeing this production explained that the State has two servers containing ESI, a report or document server and an email server. Michael Kirk, defense counsel, conceded that the Defendants' real concern is with the email server, as the document server has data compilations, such as public reports, spreadsheets and statistics. Thus, the volume of documents requiring attorney review is greatly reduced.
Second, as Tigh, Plaintiffs' computer expert, testified, the amount of time to search for potentially attorney client and work product privileges can be efficiently accomplished by use of selective search terms, such as names of counsel to identify and words such as "confidential" and "privilege" to identify potentially privileged information. The Court finds that independent of the Defendants' data systems, the defense counsel's firm's computers should be readily able to identify all clearly privileged correspondence with their clients from their computers.
Third, as Tigh explained and as the Defendants' private counsel have actually [*133] done, contract attorneys can be hired to perform any privilege reviews at significantly lower costs than the hourly rate of the Defendants' current counsel. Plaintiffs noted that Defendants' lead counsel's description of his firm's significant experiences on ESI discovery and his firm's use of contract attorneys to control costs in ESI discovery. "Our use of well-trained, closely supervised contract lawyers to assist with document discovery is designed to hold down the ratcheting litigation costs of our clients. In document-intensive litigation, deploying expensive litigation associates to perform the initial review, indexing, and electronic coding of documents would dramatically increase the client's litigation expense." Plaintiffs Exhibit No. 35 at p. 2 (emphasis added). For any oversights by contract attorneys, the Court's November 21st Order made ESI production "[s]ubject to Defendant's right to 'claw-back' privileged documents." (Docket Entry No. 743 Order at p. 2).
As to the Defendants' estimated costs and time for review for privilege issues, the Court adopts Tigh's testimony that the use of attorney names and other privilege filters as well as the use of contract attorneys should [*134] substantially reduce the Defendants' and MCCs' costs for any privilege review. (Docket Entry No. 988 at pp. 279, 282; Docket Entry No. 984 at p. 133).
Another significant factor to reduce production costs is a clawback right for any inadvertent production of privileged material. At an earlier conference, the defense counsel complained that the Court had not afforded it clawback protection for privileged documents that were inadvertently disclosed. (Docket Entry No. 720 at pp. 19-20). In their prehearing brief, the Defendants stated that "Plaintiffs at various points have urged the Court to compel the State to avoid

the costs and delays involved in the State's review for privilege and responsiveness by compelling the State to produce the documents without reviewing them under a 'claw-back' agreement." (Docket Entry No. 907, Defendants' Response to Plaintiffs' Renewed Motion to Compel at p. 11). Citing a Committee Report on the 2006 Rule amendments, the Defendants argue that only a voluntary claw-back agreement is permitted by these rules.
The Court discussed this clawback provision with Nicole Moss, a defense counsel and as the Court understood her, Moss agreed to a clawback agreement [*135] for any ESI production to Plaintiffs.
THE COURT: And if we've got a claw back provision, as I understood the plaintiffs agreed to, then, if something sort of slips through, then you have the right to come back and claim it as privileged. I mean, that's what I understood you wanted, isn't it?
MS. MOSS: We do, Your Honor. Certainly that would be part of the provision.
(Docket Entry No. 734 at p. 80). Thus, it was at the Defendants' counsel's request and with the Plaintiffs' counsel's agreement, the Court entered an order with a clawback provision for the Defendants. Id. at p. 74. and Docket Entry No. 743, Order at p. 2. In a word, the Court did not impose any "compulsory" or "mandatory" clawback upon the Defendants, and neither did the Plaintiffs.
The Defendants' also expressed concerns about disclosures of ESI to their unnamed "political enemies" and "political opponents." (Docket Entry No. 907, Defendants' Response at pp. 11, 13). A protective order limits the disclosure of sensitive information for use solely in this action. (Docket Entry No. 878).
Assuming the correctness of the Defendants' gigabytes, the Court also credits Tigh's testimony that in his experiences in complex litigation, [*136] such estimates are reasonable for this complex action. This action involves a class of more than 550,000 children and their rights to various medical services, including dental and behavioral services provided throughout the State. The EPSDT statutes and the Consent Decree clearly contemplate multiple screenings and any necessary followup medical care for each member of the class through TennCare or more MCCs. In these circumstances, vast amounts of data are inherent in the operation of this system that the Defendants elected to establish. Even with the 2006 paper production, ESI is necessary to restore relevant metadata that was removed when the Defendants converted electronic documents to hard copy before producing them to the Plaintiffs in 2006. (Docket Entry No. 982 at pp. 49, 58).
For the MCCs, Plaintiffs accepted all of the contractors' proposed lists of key custodians and developed a protocol and search terms. Plaintiffs' ESI requests have been resolved with the largest MCOs Bluecross/Blueshield of Tennessee, Doral and the smallest MCO (Memphis Managed Care). (Docket Entry No. 893; Collective Exhibit A). The Court notes that BlueCross estimated a review of the 42GB of information [*137] would take 30 days to review with 10 reviewers. (See Docket Entry No. 988 at pp. 72,76). BlueCross BlueShield and Doral also agreed to impose filters to eliminate its non- TennCare business. Plaintiffs Exhibit 26 at p. 4. BlueCross BlueShield also agreed on production of HEDIS data and case management data. BlueCross BlueShield, Doral and Memphis Managed Care seek an equitable allocation of costs for the ESI, primarily for attorney review for confidential and privileged information.
As to the other MCCs, AmeriChoice, First Health, Magellan, Memphis Management, and Unison agreed to produce transactional data and HEDIS data as well as care plan data. PHP agreed only to produce transaction data from January 1, 2006 to April 11, 2007. UAHC agreed only as to the number of custodians (11) for the ESI search as well as transaction data and case management information. As to the other ESI searches, AmeriChoice estimates that reviewing the search results from its estimated 17-19 gigabytes of information would take 8 months to 1.5 years with 10 reviewers. (See Docket Entry No. 986 at pp. 122, 129). First Health, has estimated its cost for Plaintiffs' e-mail production demands would run as high [*138] as $ 1.6 to $ 1.7 million. Prior to the April 11th Status Conference, First Health had "estimate[d] that undertaking the key word search proposed by plaintiffs would require close to 18,000 hours of work and cost almost $ 3.0 million dollars." (Docket Entry No. 907, Exhibit 2 thereto). See also Docket Entry No. 907, Exhibit 3 thereto, Moss Letter dated May 24, 2007 (reporting First Health's estimate that it will take "two and one half years to harvest and produce ESI for the six First Health custodians"). Unison asserts, "[i]t is clear that, for the seven relevant Unison custodians within the relevant time frame, the costs to conduct the . . . search and review [methodology on which Plaintiffs currently insist] will be excessive and, depending on the costs of outsourcing, may well approach seven figures." Id. at Exhibit 5.

At the June 2007 evidentiary hearing, the Court inquired of Tigh whether an ESI word search limited to the terms "John B." "ESPTD" and "TennCare," coupled with the names of MCC personnel who responded to or wrote to the Defendants about any compliance or complaint(s) as well as the names of those responding TennCare officials, would alleviate any undue burden for [*139] the ESI production for the MCCs. A similar question was put to Unison's chief of information who teaches college courses on computer science. Both witnesses agreed. Thus, the Court finds that for the remaining ESI searches for those MCCs that have not reached agreements with the Plaintiffs, will be so limited. Plaintiffs, however, may renew an ESI request if the initial search is shown to be inadequate or seriously deficient.
Some MCC contractors have taken the position that cost allocation issues must be resolved prior to commencement of any electronic production. See e.g., (Docket Entry No. 907 at Exhibit 8 thereto) ("Sixty days from a final determination of who bears the costs of production, BCBS will have collected and processed all of the data from its twenty-two key custodians."). The MCCs' contracts with the State provide that the costs of production are to be borne by the contractor. Yet, in this discovery dispute, the Court will assess costs of production at issue on Plaintiffs' renewed motion to compel under federal law.
Since the entry of the Consent Decree the State has received $ 7,434,375,701 in federal funds for class members of which $ 6,691,980,359 constitute the total [*140] federal funds for the direct provision of heath care services to class members. (Docket Entry No. 948 at p. 2). The difference in these two amounts, $ 742,395,342, was expended on "outreach, case management, disease management, claims processing, provider network maintenance and other administrative services related to providing care." Id. at pp. 2-3. In addition, the State receives separate and undisclosed amount of federal funds "for administrative costs incurred by state personnel to operate the TennCare program." Id. at p. 3.
The gross amounts of the federal funds that the State has distributed among the MCCs for services for the class members, since the entry of the Consent Decree, are reported as follows:
Americhoice $ 115,853,341.67;
Blue Cross/Blue Shield of Tennessee $ 1,413,851,994.20
Doral Dental of Tennessee $ 74,757,246
First Health Services $ 28,795,619
Magellan (TennCare Partners) $ 1,428,295,294.26
Preferred Health Partnership of Tennessee $ 520,116,405.14
Unison Health Plan of Tennessee $ 152,638,134
Windsor Health Plan, Inc. $ 77,777,037
Volunteer State Health Plan $ 1,413,851,994.20
(Docket Entry Nos. 947, 950, 951, 953, 954, 957 and 958). 29
29 The Defendants and MCCs provided [*141] this data in response to an Order (Docket Entry No. 885) to state the amounts of federal funds provided to each entity. The Order also required data on the amounts expended on class members, but the MCCs' responses on the latter varied. Without more information on the different methodologies for their various statements on expenditures, the Court elected to present the gross amount of federal funds received by each MCC. Under Fed. R. Evid. 614, the Court can question witnesses at an evidentiary hearing. Given the Defendants' and MCCs' submissions about the costs of Plaintiffs' ESI production, the Court intended to ask questions on the amounts of federal funds given to the Defendants and the MCCs for the benefit of the class. See Fed. R.Civ. P. 26(b)(2)(C). Because the responses may require some time to compile, the Order was entered prior to the June 19th evidentiary hearing.
6. Privileged Information in the ESI Production
Defendants assert various privileges to bar production of some ESI. Defendants first assert the attorney-client and work product privileges for documents that are principally drafts of documents that defense counsel or in-house counsel commented upon, revised, or reviewed. [*142] These drafts are mostly of semi-annual reports ("SARs") required to be

filed under the Consent Decree as well as initial assessment protocol ("IAP") and initial work plan ("IWP") that were ordered by the Court. (Docket Entry No. 303; see also Docket Entry No. 485).
At the November 6, 2006 hearing on discovery motions, the Court discussed with both counsel potential privilege issues in the ESI production.
THE COURT: So the drafts would be moot. If we work out the electronic protocol, the drafts would be moot
MR. BONNYMAN: Correct. And the advantage of that is, we would then be able to compare and - -
THE COURT: All I want to know is whether it's moot or not.
MS. MOSS: Does that then moot our obligation to log as privileged those drafts which were exchanged with counsel?
THE COURT: Yes. What I said on the electronic protocol is that there is a claw back provision so that you - - so you have the right to come back and assert the privilege if there is some disclosure of privileged - - inadvertent disclosure of privilege information.
MS. MOSS: But Your Honor, an additional large part of the burden is knowing that a substantial amount of these drafts, maybe hundreds and hundreds of them, are privileged. [*143] And if we are going to produce some, do we then have to take each one of those drafts individually, log them on a privilege log as a draft of the SAR, - -
THE COURT: I take it that these policy writers are a relatively small group. So I would think that, of that relatively small group, you would be able to identify what's on the electronic database that they wrote that they think is privileged.
MS. MOSS: But, Your Honor, there are - -
THE COURT: And I'm saying this on the basis of what I saw en camera in Rosen.
MS. MOSS: Sure. In terms of reports that discuss - - the State puts together - - I mean, it probably is not an exaggeration to say 20, 30 reports. Every MCO has an outreach report; there's annual external quality review reports.
THE COURT: Now let me say this. I know there are cases out of the Seventh Circuit that say, just because a lawyer wrote it doesn't mean it's work product. If it's a document that is written in the course of the business of the client, then it's not work product, because just because a lawyer wrote it. It's Searles, out of the Seventh Circuit. (actually the Eighth Circuit).
So what I'm saying to you is, you ought to think about that in terms of - - you know [*144] when you make these assertions of work product. Just because you put a lawyer's name on it doesn't necessarily means that it's a work product.
MS. MOSS: But Your Honor, I think if they are reviewing documents to offer advice on compliance with the consent decree and compliance with this Court's orders, it's the same work product that they have asserted over their own materials.
THE COURT: Yes, but that's the point. You can't - - I'm uncertain as to whether you can take a lawyer - - take lawyers, put them as part of the deliberative process, and blanket from discovery everything you have to do under a consent decree. I don't know that you can do that.
You look at this Searles case. It may be a little dated, but you look at it, because that's what I'm going to be looking at. That's why I'm telling you about it.
MS. MOSS: I guess, Your Honor, I would direct your attention - - I don't have the name off the top of my head, but in our memorandum, we also cited some case law that suggests that reports that are created as part of the consent decree, even if it's a consent decree in another case, that are reviewed and created and overseen by counsel, are entitled to work product protection. So [*145] I would suggest there is, at a minimum, competing authority out there on this issue.

THE COURT: Well, I've cited and approved of Searles on prior occasions. So just keep that in mind. What I'm saying is, if you apply Searles, then I think that should reduce that number of truly work product assertions. And if we've got a claw back provision, as I understood the plaintiffs agreed to, then, if something sort of slips through, then you have the right to come back and claim it as privileged.
I mean, that's what I understood you wanted, isn't it?
MS. MOSS: We do, Your Honor. Certainly that would be part of the provision. It was offered, I suggest, less in terms of these drafts and more in terms of the State reviewing all of the metadata associated with these documents that would be produced electronically, which would be extraordinarily burdensome. And their suggestion, well, just produce it, and you can claw it back. And to provide them with privileged information that they are not otherwise entitled to, --
THE COURT: Well, every part of preparing anything in compliance with the report is going to be mental impression. I mean, how can you go through the exercise without forming a mental impression? [*146] And that way you insulate everything.
I think that's overly broad. I'm not sure it's work product.
MS. MOSS: Well, the objection was, the substantive reviews and edits primarily come from attorneys, whereas the typographical or formatting edits - - and it was simply a - -
THE COURT: I think that's what Searles addresses, is where the lawyer is placed in the posture of actually doing the business of the client.
MS. MOSS: Well, when it's a consent decree that governs the Medicaid program, where we're under a court order - -
THE COURT: Yes, but it's also policies for the State. I mean, thus far, Judge Nixon hasn't found anything that complies with the consent decree.
MS. MOSS: It isn't the policies. It would be substantive edits about the -- it would be substantive edits about the compliance with the decree. This is a lawyer's advice to the client on how to follow the consent decree.
THE COURT: Well, you can submit them under seal like we did in Rosen, if we get to that. I mean, if we're going to get to the finer points, you will just have to submit it under seal.
MS. MOSS: Again, we would welcome that...

(Docket Entry No. 734 at pp. 77-81) (emphasis added). Despite the Court's instructions, the [*147] Defendants did not submit any purportedly privileged documents for an in camera inspection. Once again, Defendants' counsel ignored the Court's instructions.

As to drafts of documents, the privileges asserted and the specific document purportedly covered by privileges are

as follows:

Bates Number

Document Type

Date of

Document Author

(Letter, Date of

(Title/Agency)

(Range)

Document

memo, Email,

etc.

Susie Baird

JB-A-001 57-001 65

7/31/2002

Email

JB-A-001 09-001 12

Draft

Laura Stewart

Remedial

Plan

JB-A-00268-00270

Email with

4/28/2004

Susie Baird

Attachment

JB-A-00282-00287

Email with

4/6/2004

Linda Ross

Bates Number
(Range)
JB-A-01 581-01 584 JB-A-01 775-01 778
JB-A-01 574 JB-A-01099-01210
JB-A-01 820-01 825
JB-B-00020-00022
JB-B-01917-01929
JB-00598 JB-C-00541 -00553 JB-C-00557-005564 JB-C-00573 JB-C-00607 JB-C-00608 JB-C-00609 JB-C-006010 JB-C-006011 JB-C-006012 JB-C-006013 JB-C-006014 JB-C-006015 JB-C-006016 JB-C-006017 JB-C-006018 JB-C-006019 JB-C-006020 JB-C-006021 JB-C-006022 JB-C-006023 JB-C-006024 JB-C-006025 JB-C-006026 JB-C-006027 JB-C-006032 JB-C-006033 JB-C-006034 JB-C-006035 JB-C-006036 JB-C-006037 JB-C-00643 JB-C-00644 JB-C-00645

Document Type (Letter, Date of
memo, Email, etc. Attachment Draft Policy Email
Email Draft Contract Email with Attachment Email with Attachment Draft Agreement Email Email Email Email Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo

Date of
Document
6/4/2003 5/21/20045/24/2004 3/19/2002
2/24/20043/15/2004 7/11/2002
11/21/2002
5/25/2004 3/18/2004 4/8/2004 3/26/2004 6/17/2003 6/21/2004 6/21/2004 6/30/2003 6/30/2003 6/30/2004 7/1/2002 7/1/2002 6/17/2003 6/30/2003 6/30/2003 6/30/2003 6/21/2004 6/21/2004 6/30/2003 7/1/2002 6/30/2003 7/17/2003 6/30/2003 6/21/2004 6/21/2004 7/1/2002 6/17/2003 6/30/2003 6/30/2003 6/30/2003 6/21/2004 6/30/2003 7/1/2002 6/30/2003

Document Author (Title/Agency)
Susie Baird
Mary Griffin Mary Griffin
Mary Griffin Patricia Newton
Annette Goodrum Mary Griffin
Christy Ballard
Tam Gordon Theresa Lindsey Theresa Lindsey Theresa Lindsey Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner

Bates Number
(Range)
JB-C-00646 JB-C-00647 JB-C-00648 JB-C-00649 JB-C-00650 JB-C-00651 JB-C-00652 JB-C-00653 JB-C-00654 JB-C-00655 JB-C-00656 Bates Number
(Range)
JB-A-001 57-001 65

Document Type (Letter, Date of
memo, Email, etc. Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Memo Document Recipient(s) (Title/Agency)
Mary Griffin

JB-A-001 09-001 12 JB-A-00268-00270

Mary Jane Davis Linda Ross

JB-A-00282-00287

Susie Baird, Betty Boner

JB-A-01 581-01 584

JB-A-01 775-01 778 JB-A-01 574

Michael Drescher, Tam Gordon, Theresa Lindsey
Stephanie Anderson

JB-A-01099-01210

Date of Document

Document Author (Title/Agency)

6/21/2004 6/30/2003 6/17/2003 6/21/2004 6/30/2003 6/17/2003 6/21/2004 6/30/2003 7/1/2002 6/30/2003 6/21/2004 Basis of Privilege
(subject Matter detailed) Attorney-client communication re Andrea Thaler's proposed final draft Draft remedial plan prepared for counsel's review Attorney-client communication re request from counsel for client's review of draft EPSDT Attorney-client communication requesting comments re draft letter to Special Master Counsel's working copy of draft EPSDT transportation assistance policy Attorney-client communication re counsel's edits to the content of EPSDT brochure Counsel's edits to EPSDT section of contract and attaching documents Draft amended and restated CRA with

Susie Baird Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner Betty Boner
Privilege Type (A/C, W/P) A/C, W/P
A/C
A/C
A/C, W/P
A/C, W/P
A/C, W/P
A/C, W/P
A/C, W/P

Bates Number (Range)
JB-A-01 820-01 825

Document Type (Letter, Date of memo, Email, etc.
Mary Jane Davis

JB-B-00020-00022 JB-B-01917-01929
JB-00598

Stephanie Anderson Mary Griffin

JB-C-00541 -00553

Mary Griffin

JB-C-00557-005564

Linda Ross

JB-C-00573

Robert Cooper, Tam Gordon

Date of
Document
counsel's edits and notes Attorney-client communication discussing draft of EPSDT guidelines Counsel's edits to MCO Contract Counsel's edits to Interagency Agreement Attorney-client communication re providing instructions for the IWP/IAP to the clients; the IWP was drafted and/or reviewed by counsel during each stage of process Attorney-client communication re DOH's proposed outreach plan for the IAP, the IAP was drafted and/or reviewed by counsel during each stage of process Attorney-client communication forwards counsel copy of the DOH outreach plan for the IAP, previously sent to Mary Griffin; the IAP was drafted and/or reviewed by counsel during each stage of process Attorney-client communication re previous draft of format for EPSDT activities and the responses received to

Document Author (Title/Agency) Susie Baird
A/C A/C, W/P W/P A/C, W/P
A/C, W/P
A/C, W/P
A/C, W/P

Bates Number (Range)
JB-C-00607 JB-C-00608 JB-C-00609 JB-C-006010 JB-C-006011 JB-C-006012 JB-C-006013 JB-C-006014 JB-C-006015 JB-C-006016 JB-C-006017 JB-C-006018 JB-C-006019 JB-C-006020 JB-C-006021 JB-C-006022

Document Type (Letter, Date of memo, Email, etc. Robert Barlow
Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow

Date of
Document
the initial draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from

Document Author (Title/Agency) Susie Baird
A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C

Bates Number (Range)
JB-C-006023 JB-C-006024 JB-C-006025 JB-C-006026 JB-C-006027 JB-C-006032 JB-C-006033 JB-C-006034 JB-C-006035 JB-C-006036 JB-C-006037 JB-C-00643 JB-C-00644 JB-C-00645 JB-C-00646

Document Type (Letter, Date of memo, Email, etc. Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow Robert Barlow

Date of
Document
counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft.

Document Author (Title/Agency) Susie Baird
A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C

Bates Number (Range) JB-C-00647 JB-C-00648 JB-C-00649 JB-C-00650 JB-C-00651 JB-C-00652 JB-C-00653 JB-C-00654 JB-C-00655 JB-C-00656

Document Type (Letter, Date of memo, Email, etc. Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow
Robert Barlow

Date of
Document
Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft. Comments from counsel on contract draft.

Document Author (Title/Agency) Susie Baird
A/C A/C A/C A/C A/C A/C A/C A/C A/C A/C

The [*148] Defendants' privilege log (Docket Entry No. 941-3) is not the model of clarity, as the first sixteen pages list the documents and the next sixteen pages list the privileges. The Court does not know the capacities of several of these persons, except for counsel of record and Mary Griffin who was named as in-house counsel and Tam Gordon. (Docket Entry No. 720, Moss Declaration). At the June 2007 conference, Defendants did not offer any proof on these privileges. In her prior declaration, Moss cited counsel's necessity to review documents prior to submission to the Court and referred "substantive edits to the [SAR] report come from counsel." Id. at p. 19. The SAR is a technical document. See e.g., Docket Entry No. 728.

In their response to the Plaintiffs' renewed motion to compel, the Defendants assert a privilege based upon various state statutes. Plaintiffs' ESI requests include various health information from different state agencies and the MCCs about children in the certified class. The purpose of Plaintiffs' requests for this data is to allow Dr. Ray, one of Plaintiffs' experts, to cross reference or validate any failures revealed by her statistical analyses. This data is from principally [*149] three state agencies. The Tennessee Department of Mental Health and Developmental Disabilities ("DMHDD) has a "Incident Reporting System" database that is utilized by the State's five Regional Mental Health Institutes (RMHIs) to record information on incidents affecting mental health patients in these institutes. This database contains narrative descriptions of various incidents (such as elopements, falls, injuries, assaults, or property destruction) relating to mental health patients, including demographic information about the patient, the nature and circumstances of the in-

cident and any injury resulting therefrom, the names of witnesses to the incident, and medical and management review of the incident.
Plaintiffs also seek the DCS Incident Reporting data to study the consequences of the lack of available and appropriate health care to members of the Plaintiffs' class. This DCS information discloses the treatment needs of children in DCS custody and what medical and mental health treatment the children are actually receiving. Dr. Ray analyzed this data for children in DCS's custody to determine if all of a child's medical and mental health needs are being met while the children are [*150] in state custody.
Plaintiffs also request the TNKids database that includes a child's case manager's narrative case recordings about the child or any information the case manager deems appropriate. For example, a narrative case recording might include a case manager's summary of medical services received by the child, visits of DCS Health Advocacy nurses describing health services the child is receiving, and number and frequency of case management contacts with the child. A database count of the records on April 10, 2007 showed that since January 1, 2004 there have been 5,377,286 case recordings. Since April 1, 2006 there have been 1,431,048. The TNKids system data can range from a few paragraphs to several pages for each recording. A child in custody will typically have multiple recorded entries. The sort of health services information that would be responsive to Plaintiffs' requests are in any one of four narrative fields. These fields are labeled to record the purpose, the content, the observation/assessment, and the plan. However, each field is a free form text field without any required format.
The Defendants contend that there is not any automated method to determine if these records [*151] contain the health services information responsive to Plaintiffs' requests. Some MCCs contend that this information is already available to Dr. Ray and the Plaintiffs through other sources, such as the State's Interchange database, DCS's monthly EPSDT reports, and the Face-To-Face Contact reports. As to the readmission statistics on mental health issues for children, the Defendants contend that Dr. Ray earlier stated that this information would not be useful because this data cannot be converted to Excel as she had originally anticipated. (Docket Entry No. 907 at 35). The Defendants also cite Dr. Ray's April 6, 2007 email to Brent Antony in which she states: "Large numbers of .pdf files do not suit Plaintiffs purposes very well." Id. at Exhibit 1. The Court finds that if Plaintiffs assert that they can access this data for their experts, the Defendants must provide the data in its current or native format.
The Defendants also object to disclosure of incident reporting data because of privacy protections under state and federal laws and related policy considerations. For example, Defendants presented proof that if persons who report abuse of children, knew that their statements and identity [*152] could be disclosed to others, then such persons would not report abuse. For these privilege concerns, Plaintiffs agree to an appropriate protective order to protect the identities of any person reporting a serious incident and assure the Court that they do not seek the information to identify particular clinicians or physicians. The state and federal statutes cited by the Defendants will be addressed infra.
The proof establishes that the Defendants already provide this information to a private group, Tennessee Assistance Committee that monitors the Defendants' TennCare program. Two magistrate judges earlier ordered the Defendants in this and a related action to produce these same materials. Moreover, the Defendants actually file this data regularly in another action in this Court. Brian v. Sundquist, No. 3-00-0445 (M.D. Tenn). (Docket Entry No. 219 at p. 14; Docket Entry No. 244 at p. 18; Docket Entry No. 245; Docket Entry No. 253 at p. 3; Docket Entry No. 262). As quoted supra at p. 43, under the MCCs' contracts that includes behavioral or mental health providers, the MCCs and the State agreed to provide any information "pertaining to" a class member's care to a number of state and [*153] federal agencies.
Although there was testimony from some MCC witnesses that email has not been required to be provided to the Defendants under their TennCare contracts, the Court deems controlling the unequivocal language in the MCCs' contracts that create a legal duty to provide any information "pertaining to" a TennCare member to the state or other federal agencies upon their request. (Plaintiffs' Exhibit 28). In these circumstances, the Court finds that the disclosure of MCC email about TennCare is appropriate information to disclose to class members' counsel under a protective order in recognition of the privacy interests of the affected individuals.
The MCCs also have privacy concerns arising under federal law, HIPPA, and their contractual obligations with customers and providers under separate contracts, non-Medicaid contracts and business as well as business in other states. Plaintiffs agreed to a filter in the ESI search to exclude protected information involving other businesses and programs in other states. As to HIPPA disclosures, Judge Knowles ruled earlier in this action that disclosure of class members' protected information to class counsel does not violate federal law. [*154] (Docket Entry No. 103, Order). The MCCs have not shown that a properly tailored protective order would not adequately address their concerns. If any such report or data is presented at an evidentiary hearing, the names of the persons involved can be redacted.

Subject to the legal analysis of the privileges asserted, the Court finds that these collective facts establish the Plaintiffs' need for transactional data and ESI, including policy statements, drafts thereof and emails for several purposes to discover how the Defendants and the MCCs deliver services to class members; to evaluate the Defendants' purported compliance with the Consent Decree; and to understand the measures the Defendants considered in remedying their past violations found by the Court.
7. Defendants' Failures to Answer Plaintiffs Requests for Admissions and to Comply with the January 14th Order
Plaintiffs next contend the Defendants' custodians' responses to Plaintiffs' requests for admissions ("RFAs") on destruction of ESI were inadequate because "for nine former employees...as well as the Governor, the State did not provide responses from the custodians themselves." (Docket Entry No. 828-1, Plaintiffs' Renewed Motion [*155] To Compel at p. 16). Plaintiffs also contend that the Defendants also did not comply with the January 14th Order requiring the Defendants to file certifications with the Court that ESI had not been "removed" from the Defendants' designated custodians' work station computers.
The first of Plaintiffs' revised two RFAs asked key custodians if they were aware of any documents, including ESI, that had been "destroyed, deleted, thrown away or lost for any reason." See e.g., Docket Entry No. 828-12 at p. 1. The second RFA asked custodians if they had searched "all paper and electronic records in their possession or control (including both state and private email accounts and computers, including removable drives or storage)." See id. at p. 2 (emphasis added). Two companion interrogatories sought information that had been destroyed or lost. If the person answered "NO" to RFA No. 2, then Interrogatory No. 2, requested the identity of "any record, e-mail account (including removable drives or storage) in your possession or control that you believe potentially contained information or documents requested by the plaintiffs and that you did not search." See id. at p. 2 (emphasis added)
As for the [*156] "nine former employees" to whom Plaintiffs refer, Defendants explain that these former employees no longer work for the State and that Defendants lack the authority or control over their responses. The State officials who actually performed searches of former employees' files, and participated in preparing the State's discovery responses on their behalf signed a Request for Admission for each former employee. These signed assurances were offered to satisfy any concerns Plaintiffs might have "to obtain assurances on completeness of discovery responses." (Docket Entry No. 743 at p. 3). Yet, three former employees who performed their own searches, left employment before the Requests for Admission were served on the Defendants. In Plaintiffs' view, the RFAs and interrogatories were also intended to resolve gaps in the State's paper production in May, 2006.
Plaintiffs argue that in the 318 pages of documents submitted on behalf of 166 custodians, none provided the information required by the January 14th order. Plaintiffs cite correspondence with Defendants' counsel and a February 13th meeting with defense counsel, at which Plaintiffs' counsel stated that neither the RFAs nor companion interrogatories [*157] had asked each custodian for the information required in the Court January 14th Order. (Docket Entry No. 828, Exhibit 5 Bonnyman letter of February 5, 2007; Exhibit 4, Bonnyman letter of February 23, 2007). The Defendants' counsel responded that the custodians' responses to Plaintiffs' RFAs also answered the question in the January 14th Order and refused to provide any further responses. (Docket Entry No. 828, Exhibit 5: Moss letter of February 27, 2007). In a letter, defense counsel responded that it would be too burdensome to comply with the January 14th Order:
...[W]ith respect to the issue of burdensomeness in sending yet another survey/request to custodians asking them "whether any material has been removed," to be clear the State's burdensomeness objection is based both on the fact that these custodians have already been asked to sign and did in fact submit RFA responses which covered this issue, but in addition, because the Court's Order requiring a certification came after the custodians had already been surveyed about the location of their My Documents or equivalent folders. It is our strong belief that yet another survey will be confusing and will prompt numerous questions and [*158] concerns and will further task the resources of the State's IT personnel who have already expended hundreds of hours already in attempting to respond to the Plaintiffs' overly broad discovery requests.
Id. (emphasis added)
The Court finds that the Defendants' custodians' RFA answers do not comply with the January 14th Order that required certifications on whether any ESI had been "removed" from any storage media. Plaintiffs' RFAs asked only if

"removable" files had been "searched". The January 14th Order addressed actual removal of ESI by anyone. The Defendants' custodians' RFA replies are not responsive to that issue. The Defendants did not seek relief in the January 14th Order nor ask the Court to treat the Defendants' custodians' RFA responses as satisfying the Order. Defense counsel elected to nullify the Court's Order. The Court finds the Defense counsel's position reflects yet another instance of the Defendants' disrespect and disregard for the Court's Orders in this action.
The sole remaining factual dispute involves the Governor's failure to sign a copy of his responses to Interrogatories and Requests for Admission that were signed by Steve Elkins, his legal counsel. See Docket [*159] Entry No. 799. Defendants argue that Plaintiffs' insistence on a personal assurance from the Governor is groundless, impugns the integrity and intolerably intrudes upon the prerogatives of the State's Chief Executive, as well as impugning the credibility of the Governor's legal counsel. The Defendants designated the Governor as a key custodian and emails were sent to the Governor who also attended a meeting on this action. The Defendants' counsel has disclosed the Governor's response. Whether to compel the Governor's personal signature is discussed infra.
At the April 11, 2007 "experts only" conference, there were two occasions on which the Court inquired of the experts' progress and at such times, the Court received reports on their agreements in the presence of their counsel. At the conclusion of the hearing, the Court then directed Brent Antony, the Defendants' expert, to prepare a written "summary" of those agreements and circulate that document to all experts at the conference for comment, and thereafter to file the summary agreement with the Court. Counsel for the parties were present when the experts gave their reports and when the Court gave its directive to Antony. From the [*160] Court's review of the transcript of that conference, the experts gave two reports of their agreements, as follows:
[First Report]
MR. TIGH: Your Honor, this is Tom Tigh. We have spent -- shall we review the morning as well?
THE COURT: Well, it's really more of a report on how much longer you think you might need to complete your discussions.
MR. TIGH: We finished the discussions on the transactional data. We have a plan to move forward that provides a two week delivery schedule for the analysis of plaintiff's -- of the MCCs data, and a schedule for when they can provide that data to the State for distribution to the plaintiffs.
THE COURT: That's the transaction data?
MR. TIGH: That's the transactional data. That was finished before lunch. Since one o'clock, we've been reviewing the ESI, which is proving to be a little bit more difficult to get our hands around.
We have identified the fact that all of the MCCs currently have a litigation hold in place. In many cases, that litigation hold was put into place in December or January of 2007. December of 2006 or January of 2007. And that data back to 2004 is not available. All of the MCCs have in place or will have in place a preservation system [*161] so that no data from the point when they put their litigation hold into place forward will be eliminated from their systems.
The point that we were just about to cover was how we can reduce the search terms to something that would be suitable for each of the systems.
The largest or the most feedback comes from the fact that there may very well be a significant number of documents that have to be reviewed, even after the search terms are applied, in order to determine what has to be produced.
THE COURT: For the State? The State experts?
MR. ANTONY: Yes, Your Honor. As reported, following the morning session, with respect to both the transaction systems and the searching of electronic data, the parties were largely in agreement as relates to the State, and so the bulk of the focus has been on the contractors.
The process after lunch has been somewhat more tedious. We've made it through a discussion of really preservation and collection of material, and not so much into the search protocol.

I would like to sort of clarify or at least at add my perspective on two points. We did address the issue of the litigation hold and the preservation techniques that the plans are implementing. Mr. Tigh [*162] noted that that data was not available back to 2004.
I would say actually what I understood from the plans is that, on the identification on key custodians, they have implemented systematic merits to ensure that data is not deleted for the key custodians. And that prior to that, data may not be available back to 2004, but on the other hand may, depending on the procedures that they have implemented on the staff level.
I will note that there was -- the point of discussion around the retention of data and sort of following on a comment by Mr. Tigh, around the practicality of implementing measures that would require attention of all information coming into or out of an e-mail system, or whether the litigation hold and preservation requirements speak to reasonable system measures to retain data and procedures to retain responsive information without requiring some of these plans that are large and national in nature, require any and every e-mail that comes in and out of their system to be retained, whether it's responsive or not.
So I think there is a point of clarification for the parties to address at some point around what the ultimate requirement is on retention and, in fact, whether [*163] it requires retaining everything or implementing reasonable measures retain responsive information, through both systematic and procedural measures.
But I generally agree with Mr. Tigh that we have continued to make progress, although we have the discussion of search ahead of us, which could promise to be substantial.
THE COURT: Okay. Do any of the other private contractors want to add any additional comments to what has been said by plaintiffs expert and the State's expert? Feel free to. Yes, sir. Identify your name.
MR. HOLDREN: Mike Holdren with First Health Services. I agree with the comments on the transactional data. I think we have a good plan in place for that. And hopefully I speak for some of the other contractors, when we have the discussion, particularly around the e-mail, the harvesting of the e-mails.
As I walked through just the nine custodians that we've identified who receive an average of 90 emails a day, and in over an 1,100 day period, that's over 900,000 e-mails that we would have to go through. And these people work on other accounts.
So if we got hits on ten percent of those, using a tool, which I really am personally not confident in the accuracy of, but I haven't [*164] seen it fully executed, that's still 90,000 e-mails that we would have to go through [m]anually to cull out protected health information for some of our client and recipients and things like that.
So that's a difficult conversation. That's the only feedback I wanted to give you there, sir.
* * *
[Second Report]
THE COURT: Why don't you restate the agreement. Peggy, mark this one.
MR. TIGH: Within two weeks from today, we will have from the MCCs their suggested revisions to the search terms, suggested revisions to the key custodian list, and suggested filters, as opposed to searches, that will reduce the number of messages or electronic documents that need to be reviewed.
Within one week after the plaintiffs receive that information, they will respond with acceptance or additional revisions to the list of search terms, acceptance or additional modification of the key custodians, acceptance or additional modification to the filters that have been suggested by the MCCs.
At that point, the MCCs would be responsible for identifying a schedule under which they could, in fact, do the searches, only identifying a schedule under which they could do the searches and extract the information for delivery [*165] to the review team. That schedule is what we

would get the two weeks after the last -- the last two weeks, the two weeks after the plaintiffs revised search terms.
THE COURT: Is that restatement of what the agreement is acceptable to all of the MCCs?
MR. KUBLY: That's acceptable here, I believe, yes.
THE COURT: Does anybody else have any objection to that?
MR. ELKINS: Matt Elkins, Memphis Managed Care. The only other thing I think we'd like to ask is that that list become a final list. We've had three or four iterations of a key word list search here. So if each organization is going to go through that, I think we would like to, at the point the plaintiff compiles that information from all of the organizations, let's finalize that key word search so we don't keep trying to hit a moving target.
THE COURT: Any objection?
MR. TIGH: Not at all.
THE COURT: So it will be modified to reflect that. Anything else?
MR. HOLDREN: Mike Holdren with First Health Services. One thing I think was not mentioned but we did agree on. Even though it hasn't been determined if the plaintiffs would accept 13 separate lists from the MCOs, we did agree that, due to the disparate lines of business, that there would [*166] be at least one list accepted from the MCOs, one from the PBM, the dental, and Magellan for behavioral health. Is that not a correct interpretation?
MR. TIGH: That is correct.
MR. HOLDREN: Thank you.
THE COURT: So there will be a common list of similarly situated entities?
MR. TIGH: There will be four lists, Your Honor. The search terms will essentially be consistent across the floor, but there may be some modifications, depending upon the type of business. So there will be one for the seven health care organizations. There will be one for -- that will be essentially similar, but with some slight modifications for the dental, and so on.
THE COURT: Is that acceptable to the MCCs? Is there anything else any member of the MCC, any MCC, wants to address? We heard two. Are there any others?
MR. MOSER: Your Honor, one thing we really --
THE COURT: Your name and company.
MR. MOSER: Excuse me, Dave Moser with Blue Cross Blue Shield. One thing we really haven't gotten to yet is formats with a different number of organizations. We all run different kind of systems, different kind of e-mails. Formats are going to be somewhat different. And we would like to produce the data and --
THE COURT: Would this [*167] work? If when you provide this two week period of reporting to the State on what you all have come up with, that you include in that your proposed format?
MR. MOSER: I think we should be able to.
THE COURT: Okay. Would that address that issue?
MR. MOSER: I think it would. I just hated for a format to be set when we didn't know whether or not we could produce that.
THE COURT: Okay. I would hope that in this exchange between search terms, that you all would finalize that before any run.
MR. TIGH: We'll certainly do that, Your Honor.
* * *

THE COURT: ...I would like to have plaintiffs and defendants and anyone from the MCCs summarize again the agreement on the transactional data.
DR. RAY: I guess I can do that. The agreement on the transactional data is by Monday, I will provide to Brent Antony, who will pass it on to the others, a generic but specific list of the kind of variables and the values of those variables I'm hoping to get from the transactional data. Then one week after that, we will have a general conference call to ask questions. And in addition to that, any of the MCOs that want to contact me individually will be able to do that to ask questions.
MR. MOSER: The HEDIS people were going [*168] to be involved with that call also.
DR. RAY: And the HEDIS people, that's correct. There were three kinds of information that we put together: The information around the HEDIS measures, specifically, the kind of information that's not contained in the claims data that I'll already be getting; information relating to requests for services and denial of services; and the third is information related to individual case management.
DR. RAY: Does anyone want to add to that, for the State?
MR. ANTONY: Your Honor, Brent Antony again for the State. I think Dr. Ray provides -- has given an accurate summary of the discussion on transactions systems with respect to the MCCs. I would add that we did address a couple of other points with respect to the State systems, and specifically have a course of action to follow for discussion around the TennKids system from the Department of Children's Services, wherein DCS will provide additional information to Dr. Ray around the data that she has requested from that system. And she will provide some further guidance to them on the specifics of what she is seeking that will allow them to respond regarding their production.
Dr. Ray did also clarify, with respect [*169] to the Department of Health and the PTBMIS managed care module, and specifically the CFS cases that the plaintiffs were agreeable to the sampling methodology that the parties had previously discussed.
We also touched on the incidents database, which had been the subject of discussion and which Your Honor will recognize the State had asserted was protected by state law for peer review privilege. So that's still an open matter.
There are no technical matters there, with the exception of potentially being able to identify the members of the class, should the parties reach an agreement on that peer review issue. So that's the only items I would have.
* * *
MR. ANTONY: Yes, Your Honor. There is one issue with respect to that incidence database, which is still an open issue, beyond the peer review issue. There is minimal identifying information stored in that system. It is maintained for the purposes of peer review. So there are social security numbers and other things that might allow us to definitively identify class members. So there will be some complexity of that, should we get past the peer review issue.
DR. RAY: I didn't finish describing the schedule for the transaction data, I'm sorry. [*170] One week after we have the conference call, then the MCOs were to provide their estimate of when they would be able to provide the transaction data and in what format.
THE COURT: Do any of the MCCs want to add to the transactional data production? Well, there is a transcript of this, and I'm going to ask that the last session of this be made available as soon as we can practically get it done, to Mr. Tigh and to -- Mr. Helton?
MR. ANTONY: Antony, Your Honor, for the State.
THE COURT: Antony, I'm sorry. To reflect a summary of the memorandum of what were the deadlines and the agreements. And send that to you all of the technical people who were present during the discussion, for them to have comments and suggestions. And then, if you all would, after

you've done that process, submit it to the Court, and it will just be a preservation and perhaps a much more cohesive than this truncated process we've been going through.
(Docket Entry No. 872, Transcript at pp. 165-168, 216-219, 224-228) (emphasis added).
After a period of time, Antony had not filed the report and the Court entered an Order directing him to do so. The Defendants' counsel responded that there was no such directive. The Court [*171] then cited the pages of the transcript setting forth the Court's directive. Defendants' counsel then contended that their prior notice of the experts' activities after the April 11th conference satisfied the Court's directive. At the June 2006 hearing, Antony testified, in essence, that he distributed the transcript of the April 11th conference to the MCCs and that the "Notice" filed by his counsel was all that the Court required of him.
Upon review of the Defendants' Notice (Docket Entry No. 875) that is relied upon by Antony and defense counsel, the Court notes that this "Notice" does not contain any reference to the MCCs' institution of a litigation hold nor the MCCs' implementation of systems to ensure that the ESI of key custodians is not deleted. Of particular note is that the Defendants' "Notice" omits the request of Mr. Elkins's of Memphis Managed Care (that was adopted without objection) that the list of search terms and key custodians become finalized after the Plaintiffs make revisions and suggestions. Specifically, the record reflects the following: "MR. ELKINS: Matt Elkins, Memphis Managed Care. The only other thing I think we'd like to ask is that that list become a final [*172] list...
THE COURT: Any objection? MR. TIGH: Not at all. THE COURT: So it will be modified to reflect that." (Docket Entry No. 872 at pp.217-218). None of the MCCs objected to Elkins' request nor to the Court's modification to the stated agreement. The Defendants' counsel's Notice, however, states: "By May 16, 2007... The MCCs have commented, however, that this proposed schedule does not provide for a mechanism for resolving any dispute(s) that may remain after the MCCs propose (1) search terms, (2) custodians, and (3) filters to be applied in searching the MCCs' ESI, and because, at this point, the MCCs do not know the 'final' list that will be used...." (Docket Entry No. 875-1 at p. 3). Another effect of the Defendants' Notice is to set aside what was an agreement on a final list of search terms.
9. Other ESI Production Issues
The Plaintiffs next contend that the Defendants and the MCCs can complete their ESI productions within 90 to 100 days. (Docket Entry No. 882 at 10). Subject to the analysis of the Defendants' and MCCs' legal challenges, the Court finds that 60 days is sufficient time for these MCCs to produce the ESI sought by the Plaintiffs. This finding is based upon the Court's limitations [*173] for the ESI search for those MCCs who lack an agreement with the Plaintiffs on ESI production and the cost saving technological methods for such production and any privilege review. Based upon the estimates of BlueCross, the Defendants' largest MCC and the cost saving technology for ESI production and privilege review, the Court finds the 100 days limitation is a reasonable deadline for the Defendants to produce their ESI. Given the extraordinary delays with ESI discovery, the Court will not grant any extension of these deadlines.
B. Conclusions of Law
1. Discovery from The MCCs
A threshold legal issue is the Defendants' and MCCs' argument that the MCCs are not parties and are not subject to Plaintiffs' ESI discovery requests nor the Court's Orders to produce ESI. In Tennessee Assn. of Health Maintenance Orgs. Inc.v. Grier, 262 F.3d 559, 565 (6th Cir. 2001), the Sixth Circuit held that where, as here, a Consent Decree grants injunctive relief, the common law and Fed. R. Civ. P. 65(d) bind not only the State, but its contractors that participate in the implementation of the Consent Decree. The MCCs "are [*174] agents of the State and are bound by the consent decree to which the state was a party." Id. Here, as in Grier, the Consent Decree contains several paragraphs setting forth the responsibilities of the MCCs. (Docket Entry No. 12 Consent Decree at PP 18, 22, 60, 61, 74-83). To be sure, Grier limited the contractors' liabilities to the extent of their contract with the State. 262 F.3d at 565.
As to the scope of MCCs' obligations under the Consent Decree, for these discovery requests, the Court deems a brief reference to the rules of construction for such a decree to be necessary. As the Sixth Circuit stated that "[s]ettlement agreements are a type of contract subject to principles of state law." Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Natural Resources, 141 F.3d 635, 641 (6th Cir. 1998) (quoting Van-

guards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017, 1018 (6th Cir. 1994)). Tennessee's longstanding principle is that the clear language of a contract controls. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355, 358 (1955).
The Consent Decree here requires that the Defendants and MCCs maintain a reliable "tracking system" with "the capability of [*175] tracking each child in the plaintiff class, for purposes of monitoring that child's receipt of the required screening, diagnosis and treatment." (Docket Entry No. 12, Consent Decree at PP 94 and 95). The Consent Decree also require that the MCCs' tracking system must "have the capacity to generate an immediate report on the child's EPSDT status, "reflecting all encounters reported to the contractor more than 60 days prior to the date of the report." Id. at P 94. In addition, the Consent Decree expressly provides that "all such records shall be obtained, if necessary, and provided to plaintiffs' counsel through TennCare, rather than through individual MCOs." Id. at PP 105.
Given, the MCCs' contractual obligations to maintain a reliable monitoring and reporting system of each MCC's services to children, the Court concludes that Plaintiffs' ESI discovery requests for the Defendants' and MCCs' transactional data clearly fall within the scope of the Consent Decree. Moreover, given the express and expansive language of the MCCs' contracts with the State to perform duties under the Consent Decree and to provide any information "pertaining to" the TennCare program (Plaintiffs' Exhibit 28), [*176] the Court concludes that this express language in the Defendants' contract with the MCCs grants the Defendants unrestricted access to the MCCs' data systems for any information "pertaining to" a TennCare member. This language negates testimony about the Defendants' not requesting emails from MCCs. The Court concludes that Plaintiffs' other ESI discovery requests, including emails, also fall within the scope of the Consent Decree and the MCCs' contracts thereunder.
The MCCs insist that any ESI discovery from them must be obtained by a subpoena under Fed. R. Civ. P. 45. Yet, several discovery rules permit discovery from a party's "agent", or "managing agent," including "documents and tangible things otherwise discoverable," Fed. R. Civ. P. 26(b)(1) and Rule 26 (b)(3); depositions, Fed. R. Civ. P. 30(b)(6); and interrogatories. Fed. R. Civ. P. 33(a). The term "managing agent" is in several current Rules and was utilized in prior rules of civil procedure. For the purposes of Rule 4(h)(1), the Sixth Circuit defined: "[A] managing agent [as] one authorized to transact all business of a particular kind at a particular place and must be vested with powers of discretion rather than being under [*177] direct superior control." Bridgeport Music Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 624 (6th Cir. 2004). Under the former Fed. R. Civ. P. 43(b), the Eighth Circuit defined a "managing agent" is an individual: "(1) [whose] interests in the litigation are identified with his principal, and (2) He acts with superior authority and general autonomy, being invested with broad powers to exercise his discretion with regard to the subject matter of the litigation." Lowry v. Black Hills Agency, Inc., 509 F.2d 1311, 1315 (8th Cir. 1975) (quoting Skogen v. Dow Chemical Company, 375 F.2d 692, 701 (8th Cir. 1967). The Sixth Circuit cited Skogen approvingly in Jones v. Hancock Mut. Life Ins. Co., 416 F.2d 829, 833 (6th Cir. 1969).
Here, the MCCs are independent and sophisticated companies with contracts with the Defendants to provide medical and related services in different areas of the state, as required by the Consent Decree and federal law. The Consent Decree expressly refers to their responsibilities to provide these services. (Docket Entry No. 12, Consent Decree at PP 18, 22, 60, 61, 74-83). By their nature, these services require a degree of autonomy and superior skills. As the actual providers [*178] of these services, the MCCs possess critical information on the named Defendants' compliance with the Consent Decree. The Court concludes that the MCCs are managing agents subject to discovery under Rule 26(b)(1) and (3), Rule 30(b)(1) and (b)(6) and Rule 33(a).
Moreover, Fed. R. Civ. P. 34(a) permits document requests for documents in a party's "possession, custody or control." "Control" has been broadly construed to mean "the legal right, to obtain the documents requested upon demand...even though [the party] presently may not have a copy of the document in its possession." 7 Moore's Federal Practice at ß 34.14[2][b] (Matthew Bender 3d Ed.) (hereinafter cited as "Moore's"). In their post hearing Memorandum, the Defendants argue that the MCCs' ESI is not under their control. (Docket Entry No. 997, Defendants' Supplemental Memorandum at pp. 24-28). "[I]t is well settled that a party has no obligation to preserve evidence that is not in its possession, custody or control." Id. at p. 25. Yet, at the November 6th conference, Defendants' counsel told the Court:
MS. MOSS: And I want to be clear on the State's position. We're not saying that these documents are not in the State's custody or [*179] control or that we can't produce documents from our contractors. In fact, we've produced - - our response to details, entire categories of documents that we have produced from our contractors.

(Docket Entry No. 734, Transcript at p. 42). Moreover, the Consent Decree expressly provides that "All such records shall be obtained, if necessary, and provided to plaintiffs' counsel through TennCare, rather than through individual MCOs." (Docket Entry No. 12, Consent Decree at P 105). The Court concludes that this express language in the Defendants' contract with the MCCs grants the Defendants unrestricted access to the MCCs' data systems for any information "pertaining to" a TennCare member.
Another Court reached a similar conclusion. In In Re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 2007 U.S. Dist. LEXIS 6198, at *59-60 (S.D.N.Y. Jan. 30, 2007), the district court sanctioned a defendant who argued, as the Defendants do here, that the ESI and other relevant documents were not in its "control," because a nonparty with whom the defendant contracted had the ESI. The district court ruled that when a duty to preserve evidence arises, a defendant is required to issue a litigation hold to maintain responsive [*180] information and materials. Id. at *66. Second, if the defendant's agreement with the third party grants access to any documents necessary litigation then the defendant had control over document held by its contractors. Finally, the Court concluded that even without an agreement, the defendant still retained control over the relevant documents because a party cannot nullify its contract to "evade the rules of procedure." Id. at *63 (citing Bank of New York v. Meridien Biao Bank Tanzania Ltd.., 171 F.R.D. 135, 148 (S.D.N.Y. 1997)).
The Court concludes that the MCCs' ESI is within the Defendants' possession or control within the meaning of Rule 34(a) and was so at the time of the Court's discovery orders to produce ESI.
As a practical matter, even if the Plaintiffs had issued subpoenas under Rule 45, the Court is at a loss to understand what procedural benefits would enure to the MCCs that have not been provided. Under Rule 45, the MCCs have an opportunity to identify and offer proof on why the ESI discovery sought by the Plaintiffs should not be had. The only real difference is that under Rule 45, the Plaintiffs would have to go to the districts where the information is located, if more [*181] than 100 miles from the site of this Court. For those courts in other districts and states to decide these issues would require a multiplication of these discovery proceedings throughout other districts. The Court would not wish that misfortune on any of its colleagues. In any event, the Sixth Circuit has consolidated issues in institutional litigation in this district affecting different districts of this state as a matter of judicial efficiency. See e.g., Carver v. Knox County, Tenn, 887 F.2d 1287, 1293 (6th Cir. 1989).
Further, as a matter of law, the TennCare Bureau, is the "single state agency" designated by federal law to administer Tennessee's Medicaid program, TennCare. Linton v. Commissioner of Health and Environment, 779 F. Supp. 925, 936 (M.D. Tenn. 1990), affd. on other grounds 65 F.3d 508 (6th Cir. 1995). The Defendants cannot delegate the administration of this program nor vest the MCCs with ultimate control over information necessary to determine compliance with federal law. The Defendants must provide any records the Secretary requires. 42 C.F.R. 431.17(c). Federal regulations also require that the TennCare agency maintain or supervise the maintenance of the records [*182] necessary for the proper and efficient operation of the program, including individual records on each applicant and recipient as well as statistical and fiscal records necessary for reporting and accountability as required by the Secretary of Health and Human Services. 42 C.F.R. 431.17(a)-(b). To receive federal funding, a State's contract with any provider must grant the State the right to audit and inspect any books and records for services provided by the MCO. 42 U.S.C. ß 1369b(m)(2)(A)(iv). Under 42 C.F.R. 434.6, the MCC's contract must "provide that the contractor maintains an appropriate records system for services to enrolled recipients" that are accessible "through inspection or other means." 42 C.F.R. ß 434.6(a)(5) and 7. A state must have a plan for maintenance of records to ensure the "proper and efficient" operation of the plan." 42 C.F.R. ß 431.17(b)(ii).
The Court concludes that as a matter of federal law, the Defendants and the MCCs operate as a single entity, with the Defendants responsible for the plan's ultimate performance. These federal statutes and regulations grant the Defendants the legal right to these documents directly related to services to the class members. [*183] Thus, aside from Grier, with the rules permitting discovery of a party's managing agent or agent, the Consent Decree and the MCCs contracts, the Court concludes that these federal laws clearly require the submission of any relevant MCCs' information to the State. Thus, the Court concludes that MCCs are the Defendants' agents, not independent third parties, and also stand in the shoes of the Defendants so as to be subject to Plaintiffs' discovery requests as are the Defendants.
2. Discovery Standards
With the notice pleading standard under the Federal Rules of Civil Procedure for most actions, the relevancy standard for discovery has been "construed broadly." Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). A party may seek any information that is not privileged and is relevant to his claims or de-

fenses. Fed. R. Civ. P. 26(b)(1). For discovery purposes relevant means information that is probative on a party's claim or defense and information that the Court determines could "lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
In addition, "a presumption is that the responding party must bear the expense of complying with discovery requests." Oppenheimer, 437 U.S. at 358. [*184] Yet, district courts can limit discovery, if the information sought is overly broad or imposes an undue burden upon the party from whom discovery is sought. Fed. R. Civ. P. 26(b)(2) allows the Court to relieve any undue burden on the responding party. In Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007), the Sixth Circuit observed that: "Th[e] desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant." (quoting Scales v. J.C. Bardford, 925 F.2d 901, 906 (6th Cir. 1991)).
As to the judge's role in discovery disputes, "[t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery." Surles, 474 F.3d at 305. The Advisory Committee notes reflect that the 1983 and 1993 amendments to Rule 26(b) "contemplate[] greater judicial involvement in the discovery process." Fed. R. Civ. P. 26(b), advisory committee's notes (1993). For example, one court appointed a special master to supervise electronic discovery. Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 558-59 (W.D. Tenn. 2003). [*185] Given the Defendants' history of creating collateral litigation in this action on the Court's appointment of a special master and the state of these proceedings, the Court deemed the appointment of a special master to resolve ESI discovery disputes counterproductive.
The Court also possesses inherent authority to manage litigation. As the First Circuit observed, "[a]s lawyers became more adept at utilizing the liberalized rules", "[t]he bench began to use its inherent powers to take a more active, hands-on approach to the management of pending litigation." In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1011 (1st Cir. 1988). "The judiciary is 'free, within reason to exercise this inherent judicial power in flexible pragmatic ways'." Id. at 1011 n.2 (quoting HMG Property Investors, Inc. v. Parque Industrial Rio Canas, Ins., 847 F.2d 908, 916 (1st Cir. 1988). 30
30 As to legal authority for the "experts only conference," to resolve discovery disputes, the Court, on its own motion, can convene a discovery conference and "may order the parties or attorneys to attend the conference in person." Fed. R. Civ. P. 26(f). (emphasis added). The purpose of a discovery conference [*186] is "to address and discuss the propriety of asserted objections. [The parties] must deliberate, confer, converse, compare views, or consult with a view to resolve the dispute without judicial intervention." Cotracom Commodity Trading Co. v. Seabord Corp., 189 F.R.D. 456, 459 (D. Kan. 1999).
In addition, Fed. R. Civ. P. 16(c)(12) authorizes the district court to adopt "special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems". For such procedures, Rule 16 grants the district court the authority to require attendance of any party to the case at any session of the court where the judge deems his presence to be necessary. In re LaMarre, 494 F.2d 753, 756 (6th Cir. 1974) (citations omitted).
These authorities collectively support the "experts only" conference to allow an unrestricted dialogue among the most knowledgeable persons, the parties' computer experts. The "experts only" conference was conducted in the same format as the earlier successful discovery conference to which neither the parties, their agents nor counsel objected. Given the historical successes of this [*187] format in this district, the number of Defendants' contractors, the multiple and different computer systems of the Defendants' and their contractors, and the broad scope of the discovery disputes, the Court deemed the "experts only" conference an effective and efficient method to resolve these discovery disputes. There was not any prospect of the Plaintiffs' two experts pressuring the Defendants' and contractors' experts who numbered twenty or more. The participants are highly skilled persons so that there was not any prospect for abuse or overreaching by any participant and none was reported at the end of the conference. At the end of the conference, the experts were uniform in their comments that the conference was productive. One expert suggested that an earlier conference, such as this one, would have been beneficial. The Defendants acknowledge that the right to counsel applies to formal proceedings. The Court sealed the record of that conference (Docket Entry No. 872), but without leave of Court, the Defendants' counsel violated that seal with public disclosures in their Memorandum that led to other disclosures of that conference. At least Plaintiffs' counsel sought leave of court [*188] and filed their submissions referring to statements at the conference under seal.

3. Discovery Rules on Electronic Discovery
As to relevant discovery rules, since 1970, Fed. R. Civ. P. 34 has expressly referred to "data compilations," and the Advisory Committee comments to the 1970 amendments to Rule 34 clearly reflect that the "data compilations" included electronic discovery.
Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form.
Williams v. Sprint/United Management Co., 230 F.R.D. 640, 648 (D. Kan. 2005) (emphasis added and footnotes omitted). In addition, former Fed. R. Civ. P. 33(d) allowed a party to rely upon a "compilation to answer an interrogatory." The 2006 amendments to Rule 34 added the phrase "electronically stored information" to that Rule.
The current discovery motion was first filed in June 2006, but the current controversy over ESI production arose on February 21, 2006 with the Defendants' motion [*189] for a protective order concerning the Special Master's request for utilization data (Docket Entry No. 604). The Defendants' motion was granted, in part and denied, in part, (Docket Entry No. 615), at the February 28, 2006 conference. (Docket Entry No. 616 at pp. 42-102). At the April 17, 2006 conference, the Court "suggested" that the Defendants provide to the Plaintiffs any ESI that the Defendants provided to the monitors. (Docket Entry No. 646 at p. 33). On November 6 and 21, 2006, the Court ordered the production of the ESI subject to a protocol to be determined by the parties' computer experts. (Docket Entry No. 734 at p. 65-66, 74). These orders were prior to the December 1, 2006 effective date of the new amendments on ESI.
The Supreme Court's Order adopting the 2006 amendments on ESI states that these amendments "shall take effect on December 1, 2006, and shall govern . . . insofar as just and practicable, all proceedings then pending." Order of the Supreme Court of the United States, April 12, 2006. Defendants note that the Supreme Court announced the 2006 amendments in April 2006, and therefore, the parties were on notice that the amendments "would take effect long before the [*190] close of the discovery period in this litigation," (Docket Entry No. 907 at p. 4) (citing In Re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., No. MD 05-1720, 2007 U.S. Dist LEXIS 2650, *13 (E.D.N.Y. Jan. 12, 2007) (applying new ESI amendments to pending Rule 34 issue).
Yet, the law of the case doctrine provides that a prior order of the Court in an action controls unless a showing of a manifest injustice arises. Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983). Here, in February 2006, the Court directed ESI to be made available to Plaintiffs. Prior to the November, 2006 rulings and Order on Plaintiffs' earlier motion to compel, the parties had extensively briefed the ESI issues. (Docket Entry Nos. 709, 720 and 727). The parties argued several of the same decisions on ESI, as they do on the Plaintiffs' renewed motion to compel. Id. This Court's published rules of local practice require any party asserting an undue burden of a discovery request 31 to present quantitative proof of that asserted burden. The Defendants offered only conclusory affidavits. (Docket Entry No. 720, Exhibits B and C thereto). Only after the November 2006 Orders were entered did the Defendants [*191] provide necessary quantitative evidence of what they contend is an undue burden for any ESI production. The Defendants did not move to seek relief from the November 2006 Orders.
31 Of course, absent a contrary order, the Sixth Circuit rule has been that for any party that contends discovery requests present an undue burden, the appropriate response is a motion for protective order. Tarleton v. Meharry Medical College, 717 F.2d 1523, 1534 n.4 (6th Cir. 1983). The wisdom of this rule is that the party asserting an undue burden is in the better position to explain what the undue burden is.
To be sure, the November 2006 rulings left some issues on the ESI protocol to be decided, namely the search terms and the protocol for the MCCs. From the Court's perspective, the Defendants stalled on any unresolved issues until the 2006 amendments to the discovery rules on ESI became effective, because after the 2006 amendments became effective, the Defendants agreed to accept Plaintiffs' search terms. By this delay, the Defendants were able, in effect, to shift the burden of proof at the June 2007 hearing to the Plaintiffs on the absence of an undue burden under the revised rules 32 In some cases, such [*192] a strategic decision may be appropriate, but here there were outstanding Orders in November 2006 to produce this ESI. With the 2006 amendments, the Defendants can now argue that such production imposes an undue burden measured principally by monetary costs, whereas the earlier judicial standards, as discussed infra, were based primarily on technical availability.

32 As it were with prior law, see n.28, under amended Ruled 26(b)(2)(B), the Defendants could have filed a motion for a protective order on ESI before June 2007 hearing on the rulings, but did not do so.
The Court is reluctant to reward the Defendants for their intransigence, but in the event of an appeal of these rulings, the Court will consider the 2006 amendments because the Court lacks any interest in repeating this costly, timeconsuming analysis, if the 2006 amendments were ruled to be controlling on appeal.
These 2006 amendments on electronic discovery amended several discovery rules that as pertinent here, are as follows:
Rule 26(b)(2)(B)
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to [*193] compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
Rule 26(b)(2)(C)
The frequency or extent of use of the discovery methods otherwise permitted under the rules and by any local rule shall be limited by the court if it determines that:
* * *
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Rule 26(b)(5)(B)
Information [*194] Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Rule 34
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect [and], copy, test or sample any designated documents or electronically stored information -- including writings, drawings, graphs, charts, photographs, [phonorecords] sound recordings, images, and other data or data compilations stored in any medium from which information [*195] can be obtained[,] --translated, if necessary, by the respondent [through detection devices] into reasonably usable form [)], or to inspect [and], copy, test, or

sample and designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served.
(b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. . .
...The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, [in which event] including an objection to the requested form or forms for producing electronically stored information, stating the reason for the objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining [*196] parts. If objection is made to the requested form or forms for producing electronically stored information -- or if no form was specified in the request -- the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
Unless the parties otherwise agree, or the court otherwise orders: (i) a party who produces documents for inspection shall produce them as they are kept
in the usual course of business or shall organize and label them to correspond with the categories in the request;
(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(iii) a party need not produce the same electronically stored information in more than one form.
(c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to submit to an inspection [*197] as provided in Rule 45.
Rule 37
Failure to Make Disclosure or Cooperate in Discovery; Sanctions.
* * *
(f) Electronically stored information.
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. 33
(emphasis added). 34
33 By the underscored language in Rule 37(f), the court retains its inherent authority to impose sanctions. See First Bank of Marietta v. Hartford Underwriters, Ins. Co., 307 F.3d 501, 513 (6th Cir. 2002). 34 These amendments are not without critics as to their need and potential for abuse. As to need for the amendments:
Amendments to the Federal Rules are not warranted today because there is no clear demand for reform. In its case study of electronic discovery issues, the Federal Judicial Center found that seven out of the ten judges interviewed for the study believed no changes were necessary. While a majority of attorneys believed that the Federal Rules should be changed to address electronic discovery, almost half of the participants expressed that the "problems" that arise in electronic

[*198] discovery are not unique to electronic discovery...Arguably, the need for reform of the discovery of electronic information is limited to the defense bar's need to further limit the scope and amount of discovery.
Henry S. Noyes, Is E-Discovery So Different that it Requires New Discovery Rules? An Analysis of Proposed Amendments to the Federal Rules of Civil Procedure, 71 TENN. L. REV. 585, 615-16 (2004).
As to potential abuses:
If adopted, the proposed Rules may enable litigants to engage in discovery abuse by hiding or destroying incriminating digital evidence. The proposed Rules also provide greater protection to data that is not reasonably accessible and restrict the judiciary's ability to impose sanctions on litigants. By providing greater protection for data that is not reasonably accessible, the proposed Rules encourage both software programmers and system architects to design and develop software storage solutions that render data "not reasonably accessible" by making access to the data fiscally or technically impractical. By re-characterizing accessible data as "not reasonably accessible," these parties obviate their production duties pursuant to the proposed Rules. These litigants [*199] would store data on inefficient storage systems, making it unduly burdensome or expensive to (1) search for data, (2) restore data, or (3) change the data's format, therefore, making discovery more difficult....
The first loophole created by Rule 26(b)(2)(B) promotes the development of digital document storage systems that enable litigants to re-characterize their data by saving it in inaccessible forms to eliminate discovery production obligations while maintaining access to their data. Thus, the first loophole is likely to provide an advantage to wealthy litigants and will likely create a software market that allows companies to re-characterize their data with the hopes of subverting the judicial process.
The second potential loophole created by proposed Rule 26(b)(2)(B) is created by the requirement that the Rule requires requesting parties demonstrate "good cause" to permit a court to consider ordering discovery of "not reasonably accessible" information. This Rule not only restricts the actions of the bench, it also fails to define what constitutes "good cause," creating further ambiguity. .... Specifically, if a producing party fails to disclose the existence of certain documents, [*200] a discovering party will not know they exist, thereby making it difficult to show good cause to compel production based upon the value of discovering specific electronic documents.
Proposed Rule 26(b)(2)(B)'s two loopholes in its provisions placing "not reasonably accessible" data presumptively beyond the scope of discovery and requiring a showing of "good cause" to compel production of "not reasonably accessible data" may be exploited if the proposed Rules are adopted in their current form. Instead of merely expediting and facilitating electronic discovery production requests, proposed Rule 26(b)(2)(B) threatens to strengthen the hand of wealthy litigants by giving them additional tools to evade electronic discovery requests and to wear down their opponents financial resources.
Daniel B. Garrie, et al., Hiding the Inaccessible Truth: Amending the Federal Rules to Accommodate Electronic Discovery, 25 Rev. Litig. 115,118-19, 125, 126 (2006). See also Rebecca Rockwood, Note, Shifting Burdens and Concealing Electronic Evidence: Discovery in the Digital Era, 12 RICH. J.L. & TECH. 16, 34 (2006) ("The combined effect of proposed Rules 26(b)(2)(B) and 37(f) is that companies can get the "benefits [*201] of a data deletion policy" without actually deleting anything. Although these new rules will help corporate defendants get through the litigation process without incurring a great deal of expense, it will also allow them more room to conceal important files and electronic documents. In the future, technically savvy defendants will have a distinct advantage in evading discovery of potentially damaging documents. In many cases, this could change the entire outcome of the litigation.") (internal citations omitted).

Under the 2006 amendments to Rule 26(b)(2), if the party from whom ESI is requested, considers the ESI request unduly burdensome, then that party can file a motion for a protective order 35 or the requesting party can file a motion to compel. Upon the filing of either motion, the Court first assesses whether the ESI production is an undue burden. If so, then the Court considers whether the ESI discovery request is duplicative or available elsewhere or whether the requesting party could have sought the ESI earlier. If an undue burden is shown, the requesting party must show "good cause" to justify the ESI production. For the "good cause" determination, the Court is to consider [*202] whether the discovery request's "burden or expense ... outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C)(i)(ii) and (iii)
35 Prior to the 2006 amendment, in Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (E.D.Md.2005), the court summarized the American Bar Association litigation section's protocol for counsel's approach to addressing the issue of ESI discovery. These measures were accomplished here primarily by the discovery conferences.
Indeed, the newly revised Civil Discovery Standards for the American Bar Association Section on Litigation contain detailed information about the issues that the parties should discuss in their effort to agree upon an electronic records discovery plan. At a minimum, they should discuss: the type of information technology systems in use and the persons most knowledgeable in their operation; preservation of electronically stored information that may be relevant to the litigation; the scope of the electronic records sought [*203] (i.e. e-mail, voice mail, archived data, back-up or disaster recovery data, laptops, personal computers, PDA's, deleted data) the format in which production will occur (will records be produced in "native" or searchable format, or image only; is metadata sought); whether the requesting party seeks to conduct any testing or sampling of the producing party's IT system; the burdens and expenses that the producing party will face based on the Rule 26(b)(2) factors, and how they may be reduced (i.e. limiting the time period for which discovery is sought, limiting the amount of hours the producing party must spend searching, compiling and reviewing electronic records, using sampling to search, rather than searching all records, shifting to the producing party some of the production costs); the amount of preproduction privilege review that is reasonable for the producing party to undertake, and measures to preserve post-production assertion of privilege within a reasonable time; and any protective orders or confidentiality orders that should be in place regarding who may have access to information that is produced.
Id. at 245.
In contrast, prior to the 2006 amendments, courts determined accessibility [*204] of ESI production based primarily on the technical availability of the data. If the data were not technically available, then the courts would consider whether to apportion costs to retrieve the ESI based on several factors, with some exceptions, discussed infra. Prior to the 2006 amendments, factors similar to Rule 26(b)(2)(B) were referred to as the "proportionality" test. Zubulake v. UBS Warburg, 217 F.R.D. 309, 316 (S.D.N.Y. 2003) 36 ("Zubulake I"). Under prior law, an undue burden did not arise merely because the discovery request involved an ESI production. Id. at 318 n.48.
36 Another often cited decision is Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002), but the Court finds Zubulake I and its related decisions more persuasive on the factors to be considered on whether electronic discovery is inaccessible. For example, "Rowe makes no mention of either the amount in controversy or the importance of the issues at stake in the litigation ....Courts applying Rowe have uniformly favored cost-shifting largely because of assumptions made concerning the likelihood that relevant information will be found ....such proof will rarely exist in advance of obtaining [*205] the requested discovery. The suggestion that a plaintiff must not only demonstrate that probative evidence exists, but also prove that electronic discovery will yield a "gold mine," is contrary to the plain language of Rule 26(b)(1) which permits discovery of "any matter" that is "relevant to [a] claim or defense." Zubulake, 217 F.R.D. at 321, 323.
4. Duty to Preserve

In the Court's view, the critical and threshold issue that impacts the undue burden analysis is the Defendants' breach of their legal duty to preserve ESI relevant to this action. As set forth below, if such a hold were accomplished here, then this extensive commitment of the parties', the MCCs' and the Court's resources would have been mooted.
With the 2006 amendments on electronic discovery, the Advisory Committee Notes to Rule 26(b)(2) emphasize that: "A party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence." Independent of the rules of procedure, a legal duty to preserve relevant information arises when a person "knew or should have known that the documents would become material at some [*206] point in the future then such documents should have been preserved." Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2003).
As to when this duty arises, the federal courts have held that the duty to preserve relevant information clearly arises when a complaint is filed with a court. Computer Associates, Intern., Inc. v. American Fundware, Inc., 133 F.R.D. 166, 169 (D. Colo. 1990); Telectron Inc. v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D. Fla. 1987). A duty to preserve may also arise before the filing of the complaint, if a party has notice that litigation of a matter is likely to be filed. Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D. Minn. 1989); Alliance to End Repression v. Rochford, 75 F.R.D. 438, 440 (N.D. Ill. 1976). The duty to preserve does not include evidence that the party "had no reasonable notice of the need to retain." Danna v. New York Tel. Co., 752 F. Supp. 594, 616 n.9 (S.D.N.Y. 1990), but includes information that party "has control and reasonably knew or could reasonably foresee was material to a potential legal action." Krumwiede v. Brighton Associates, LLC, No. 05 C 3003, 2006 U.S. Dist. LEXIS 31669, 2006 WL1308629 at *8 (N.D. Ill. May 8, 2006) (citations omitted).
Clearly [*207] with the filing of Plaintiffs' complaint in February 1998, the duty of preservation arose for all parties to take reasonable measures to preserve all relevant evidence. Here, the Defendants' duty to preserve evidence probably arose at least several months before the filing of the Consent Decree in 1998, given the extensive and negotiated details in the Consent Decree. The Consent Decree provides ample guidance and clarity on what information is relevant and material and therefore should be retained. The MCCs' information "pertaining to" a TennCare enrollee was under the Defendants' control under federal law and their contracts with the MCCs. Yet, the proof establishes the Defendants did not create any meaningful litigation hold until the March 17, 2004, Memorandum when this action was more than six years old.
Despite defense counsel's assertions that prior to 2004 a litigation hold was not required because this is a consent decree action, not litigation, the decisions cited above are to the contrary. Moreover, on December 18, 2000, the Defendants moved to modify the Consent Decree (Docket Entry No. 69) and on January 29, 2001, the Plaintiffs moved for contempt (Docket Entry No. 79). [*208] The contempt hearing started in June 2001 and Judge Nixon entered his findings and conclusions on December 19, 2001. (Docket Entry No. 227). The parties were involved in other contested issues in 2002 and 2003. (Docket Entry Nos. 238, 251, 258, 266, 275, 291, 301 and 319). These docket entries clearly undermine the Defendants' contention on the appropriate timing of a litigation hold. Even after a written and detailed March 17, 2004 memorandum/litigation hold, the proof establishes that the Defendants did not implement this litigation hold, as outlined in the March 17th memorandum.
"Once on notice [that evidence is relevant], the obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligations to retain pertinent documents that may be relevant to the litigation." Telecom International Am. Ltd. v. AT & T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999) (citing Kansas-Nebraska Natural Gas Co. v. Marathon Oil Co., 109 F.R.D. 12, 18 (D.Neb. 1983)). Neither a preservation demand letter nor a court order is required. Wiginton v. Ellis, 2003 U.S. Dist. LEXIS 19128, 2003 WL 22439865 at ** 4, 5 (N.D. Ill. Oct. 27, 2003). A preservation order only clarifies the parties' [*209] particular obligation. Treppelv. Biovail Corp., 233 F.R.D. 363, 369 (S.D.N.Y. 2006).
This preservation duty extends to potential evidence relevant to the issues in the action, including electronic information. Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V"); Renda Marine, Inc. v. United States, 58 Fed. Cl. 57, 60-61 (2003). As the Zubulake V Court explained in an ESI controversy and the lack of preservation thereof:
Once a party reasonably anticipates litigation, [the defendant] must suspend its routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled

on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.
Id. at 431 (emphasis added) (quoting Zubulake v. USB Warburg, LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) ("Zubulake IV")).
In Zubulake V, [*210] the Court excluded from the back-up tapes exception, the back-up tapes of "key players" that exist:
"[I]t does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of 'key players' to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes."
229 F.R.D. at 431 (quoting Zubulake IV, 220 F.R.D. at 218) (emphasis in original).
This preservation duty extends to the parties' outside counsel and beyond the mere issuance of a litigation hold. In Zubulake V, contrary to outside and in-house counsel's instructions, key employees of the defendant deleted e-mails that the plaintiff alleged would support her claims. In Zubulake V, the court summarized its 2003 decision in Zubulake IV 37 and delineated the types of measures stated therein as necessary for outside counsel to monitor his client's behavior and the timely production of information. 229 F.R.D. at 435. The Court regrets the following lengthy quotation, but its purpose is to illustrate the level [*211] of guidance available to counsel on the preservation of ESI, including that occasionally telling clients that they need to preserve relevant ESI is legally insufficient.
A party's discovery obligations do not end with the implementation of a "litigation hold"--to the contrary, that's only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party's efforts to retain and produce the relevant documents. Proper communication between a party and her lawyer will ensure (1) that all relevant information (or at least all sources of relevant information) is discovered, (2) that relevant information is retained on a continuing basis; and (3) that relevant non-privileged material is produced to the opposing party.
1. Counsel's Duty to Locate Relevant Information
Once a "litigation hold" is in place, a party and her counsel must make certain that all sources of potentially relevant information are identified and placed "on hold," to the extent required in Zubulake IV. To do this, counsel must become fully familiar with her client's document retention policies, as well as the client's data retention architecture. This will invariably involve speaking with information [*212] technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm's recycling policy. It will also involve communicating with the "key players" in the litigation, in order to understand how they stored information. In this case, for example, some UBS employees created separate computer files pertaining to Zubulake, while others printed out relevant e-mails and retained them in hard copy only. Unless counsel interviews each employee, it is impossible to determine whether all potential sources of information have been inspected. A brief conversation with counsel, for example, might have revealed that Tong maintained "archive" copies of e-mails concerning Zubulake, and that "archive" meant a separate on-line computer file, not a backup tape. Had that conversation taken place, Zubulake might have had relevant emails from that file two years ago.
To the extent that it may not be feasible for counsel to speak with every key player, given the size of a company or the scope of the lawsuit, counsel must be more creative. It may be possible to run a system-wide keyword search; counsel could then preserve a copy of each "hit." [*213] Although this sounds burdensome, it need not be. Counsel does not have to review these documents, only see that they are retained. For example, counsel could create a broad list of search terms, run a search for a limited time frame, and then segregate responsive documents. [FN75] When the opposing party propounds its document requests, the parties could negotiate a list of search terms to be used in identifying

responsive documents, and counsel would only be obliged to review documents that came up as "hits" on the second, more restrictive search. The initial broad cut merely guarantees that relevant documents are not lost.
n.75 It might be advisable to solicit a list of search terms from the opposing party for this purpose, so that it could not later complain about which terms were used.
In short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. This is not to say that counsel will necessarily succeed in locating all such sources, or that the later discovery [*214] of new sources is evidence of a lack of effort. But counsel and client must take some reasonable steps to see that sources of relevant information are located.
2. Counsel's Continuing Duty to Ensure Preservation
Once a party and her counsel have identified all of the sources of potentially relevant information, they are under a duty to retain that information (as per Zubulake IV) and to produce information responsive to the opposing party's requests. Rule 26 creates a "duty to supplement" those responses. Although the Rule 26 duty to supplement is nominally the party's, it really falls on counsel. As the Advisory Committee explains,
Although the party signs the answers, it is his lawyer who understands their significance and bears the responsibility to bring answers up to date. In a complex case all sorts of information reaches the party, who little understands its bearing on answers previously given to interrogatories. In practice, therefore, the lawyer under a continuing burden must periodically recheck all interrogatories and canvass all new information.
To ameliorate this burden, the Rules impose a continuing duty to supplement responses to discovery requests only when "a party[,] [*215] or more frequently his lawyer, obtains actual knowledge that a prior response is incorrect. This exception does not impose a duty to check the accuracy of prior responses, but it prevents knowing concealment by a party or attorney."
The continuing duty to supplement disclosures strongly suggests that parties also have a duty to make sure that discoverable information is not lost. Indeed, the notion of a "duty to preserve" connotes an ongoing obligation. Obviously, if information is lost or destroyed, it has not been preserved.
See OXFORD ENGLISH DICTIONARY (2d ed.1989) (defining "preserve" as "[t]o keep safe from harm or injury; to keep in safety, save, take care of, guard"); see also id. (defining "retain" as "[t]o keep hold or possession of; to continue having or keeping, in various senses").
The tricky question is what that continuing duty entails. What must a lawyer do to make certain that relevant information--especially electronic information--is being retained? Is it sufficient if she periodically re-sends her initial "litigation hold" instructions? What if she communicates with the party's information technology personnel? Must she make occasional on-site inspections?
Above all, [*216] the requirement must be reasonable. A lawyer cannot be obliged to monitor her client like a parent watching a child. At some point, the client must bear responsibility for a failure to preserve. At the same time, counsel is more conscious of the contours of the preservation obligation; a party cannot reasonably be trusted to receive the "litigation hold" instruction once and to fully comply with it without the active supervision of counsel.
There are thus a number of steps that counsel should take to ensure compliance with the preservation obligation. While these precautions may not be enough (or may be too much) in some cases, they are designed to promote the continued preservation of potentially relevant information in the typical case.

First, counsel must issue a "litigation hold" at the outset of litigation or whenever litigation is reasonably anticipated. The litigation hold should be periodically re-issued so that new employees are aware of it, and so that it is fresh in the minds of all employees.
Second, counsel should communicate directly with the "key players" in the litigation, i.e., the people identified in a party's initial disclosure and any subsequent supplementation thereto. [*217] Because these "key players" are the "employees likely to have relevant information," it is particularly important that the preservation duty be communicated clearly to them. As with the litigation hold, the key players should be periodically reminded that the preservation duty is still in place.
Finally, counsel should instruct all employees to produce electronic copies of their relevant active files. Counsel must also make sure that all backup media which the party is required to retain is identified and stored in a safe place. In cases involving a small number of relevant backup tapes, counsel might be advised to take physical possession of backup tapes. In other cases, it might make sense for relevant backup tapes to be segregated and placed in storage. Regardless of what particular arrangement counsel chooses to employ, the point is to separate relevant backup tapes from others. One of the primary reasons that electronic data is lost is ineffective communication with information technology personnel. By taking possession of, or otherwise safeguarding, all potentially relevant backup tapes, counsel eliminates the possibility that such tapes will be inadvertently recycled.
229 F.R.D. at 432-34 [*218] (emphasis added) (some footnotes omitted). See also Rebecca Rockwood, Note, Shifting Burdens and Concealing Electronic Evidence: Discovery in the Digital Era, 12 RICH. J.L. & TECH. 16, 22 (2006) ("It is counsel's responsibility not just to tell the client that they have to retain and produce all information relevant to the case, but also to follow up with the client and continuously remind them of what they are required to do....Clients must be aware of all duties to preserve information, 'whether imposed by litigation or state or federal regulation.' Until the client begins to realize the impact of technology in litigation, the lawyer must educate them to provide the best service and avoid sanctions litigation that could be damaging.") (emphasis added and footnotes omitted)
37 There are a series of Zubulake decisions on ESI discovery issues that are summarized in Zubulake v. Warburg, LLC, 229 F.R.D. 422, 425 n. 5 (S.D.N.Y. 2004). District courts, in the Sixth Circuit, have recognized that although "Zubulake IV is not technically binding on this court, it has received wide recognition at the federal bar as authoritative." Kemper Mortgage, Inc. v. Russell, 2006 U.S. Dist. LEXIS 20729, 2006 WL 2319858 (S.D. Ohio 2006).
In [*219] Zubulake V, that Court noted cases where counsel and the clients failed to understand each other on ESI issues:
Keir v. UnumProvident Corp, provides a disturbing example of what can happen when counsel and client do not effectively communicate. In that ERISA class action, the court entered an order on December 27, 2002, requiring UnumProvident to preserve electronic data, specifically including e-mails sent or received on six particular days. What ensu[]ed was a comedy of errors. First, before the court order was entered (but when it was subject to the common law duty to preserve) UnumProvident's technical staff unilaterally decided to take a "snapshot" of its servers instead of restoring backup tapes, which would have recovered the e-mails in question. (In fact, the snapshot was useless for the purpose of preserving these emails because most of them had already been deleted by the time the snapshot was generated.) Once the court issued the preservation order, UnumProvident failed to take any further steps to locate the e-mails, believing that the same person who ordered the snapshot would oversee compliance with the court order. But no one told him that.
Indeed, it was not until January [*220] 13, when senior UnumProvident legal personnel inquired whether there was any way to locate the e-mails referenced in the December 27 Order, that anyone sent a copy of the Order to IBM, who provided "email, file server, and electronic data related disaster recovery services to UnumProvident." By that time, UnumProvident had written over 881 of the 1,498 tapes that contained backup data for the relevant time period. All of this led to a stern rebuke from the court. Had counsel in Keir promptly taken the precautions set out above, the e-mails would not have been lost. [FN87]

FN87. See also Metropolitan Opera Assoc., Inc. v. Local 100, Hotel Employees & Restaurant Employees International Union, 212 F.R.D. 178, 222 (S.D.N.Y. 2003) (ordering default judgment against defendant as a discovery sanction because "counsel (1) never gave adequate instructions to their clients about the clients' overall discovery obligations, [including] what constitutes a 'document' ...; (2) knew the Union to have no document retention or filing systems and yet never implemented a systematic procedure for document production or for retention of documents, including electronic documents; (3) delegated document production [*221] to a layperson who ... was not instructed by counsel[] that a document included a draft or other nonidentical copy, a computer file and an e-mail; ... and (5) ... failed to ask important witnesses for documents until the night before their depositions and, instead, made repeated, baseless representations that all documents had been produced.")
Zubulake V, 229 F.R.D. at 434 (emphasis added and some footnotes omitted).
The Court concludes that the proof establishes that the Defendants did not issue any litigation hold in this action until March 17th, 2004 and then did not implement that March 17th litigation hold memorandum. Significantly, the March 17th Memorandum required collection of relevant documents by the assigned custodian for each working group and the ongoing segregation and review of relevant documents for privileges by the State Attorney General's Office. The Defendants now assert that to respond to Plaintiffs' ESI request, as ordered by the Court, will cost them millions of dollars and a number of years due to their need to segregate documents and to conduct a privilege review of massive amounts of information. This evidence establishes that the March 17th Memorandum was never [*222] implemented.
The proof, at best, is that on "several occasions," Defense counsel told state employees to save emails and responsive documents. In their earlier papers, Defendants' counsel insisted that "[k]ey state officials have periodically been reminded of their duty to preserve documents and the instructions have even been expanded as the potential issues in dispute have expanded." (Docket Entry No. 720 at p. 27) (citing Docket Entry No. 720, Moss Declaration at PP 7-8) (emphasis added). Moss's 2006 declaration actually states that "state officials had been reminded on several occasions about their continuing obligation to preserve responsive documents." "Periodically" connotes "communications at regular intervals of time," Webster's Third New International Dictionary at p. 1680 (1981), "several occasions" does not.
In any event, the proof is that Defendants left their employees to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant on material information in this complex action. Under the State's computer system, after six to seven months emails were destroyed. Some key custodians did not have backup tapes [*223] for their work station computer. Given the complexity of this action, isolated statements about the litigation hold over a period of several years are equivalent to a lack of any meaningful litigation hold. The inadequacy of these isolated occasions is evidenced by the detail in the March 17th memorandum that describes reasonable methods to accomplish effective preservation of relevant information in this action.
Significantly, the Defendants did not provide the MCCs with any instruction to preserve relevant information until November 2006. The significance arises because, as Judge Nixon found, all of the substantive activities under the Consent Decree occur, at least initially, at the MCC level. The MCCs are the sites for services and where all of the substantive decisions are initially made. Without a litigation hold, the MCCs' ESI data has been regularly destroyed from 1998 to 2006, when the MCCs issued their litigation holds in 2006 to halt the loss of their ESI. The Defendants did not undertake any efforts to ensure the systemic preservation of the MCCs' data that is particularly disturbing in light of Judge Nixon's findings in 2001 and 2004.
In their post hearing submission, the [*224] Defendants argue that they did not have any obligation to preserve the MCCs' data because the MCCs' ESI is not within their possession, custody, or control. (Docket Entry No. 997 at pp. 2428). "[I]t is well settled that a party has no obligation to preserve evidence that is not in its possession, custody or control." Id. at p. 25. At the November 6th conference, Defendants' counsel told the Court:
MS. MOSS: And I want to be clear on the State's position. We're not saying that these documents are not in the State's custody or control or that we can't produce documents from our contractors. In fact,

we've produced - - our response to details, entire categories of documents that we have produced from our contractors.
(Docket Entry No. 734 at p. 42).
For these reasons stated earlier, since the entry of the Consent Decree, the Defendants had control over the MCCs because paragraph 105 of the decree expressly states that "All such records shall be obtained, if necessary, and provided to plaintiffs' counsel through TennCare, rather than through individual MCOs." (Docket Entry No. 12, Consent Decree at P 105). Under their contracts with their MCCs, the Defendants and "any other duly authorized [*225] state or federal agency shall have immediate and complete access to all records pertaining to the medical care and services provided to TennCare enrollees". (Plaintiffs' Exhibit 28) (emphasis added). To repeat the governing legal principle: "Control" has been broadly construed to mean "the legal right, to obtain the documents requested upon demand...even through it presently may not have a copy of the document in its possession." 7 Moore's ß 34.14[2][b]. Under the evidence and applicable law, the Court concludes that the Defendants possessed the clear legal right and control over the MCCs' ESI and thereby owed a duty to take reasonable measures to preserve the MCCs' relevant information, but the Defendants breached that duty.
Courts have imposed sanctions for a party's failures to preserve electronic information. As to sanctions for failure to preserve ESI, as stated earlier in Zubulake V, the defendant deleted e-mails that the plaintiff alleged would support her claim. 229 F.R.D. at 425. This destruction occurred contrary to outside and in-house counsel's instructions to key employees not to deleted relevant e-mail. Id. at 426-28. For sanctions, the court ruled that it would give an [*226] adverse inference instruction at trial, and required the defendant to restore backup tapes and to pay for depositions that had to be retaken as well as granting an award of attorney fees and costs. Id. at 437.
In other courts, in United States v. Philip Morris USA, Inc., 327 F.Supp. 2d 21, 23 (D.D.C. 2004), the Court entered a broad preservation order, but for at least two years under company practices, the defendant's employees continued to delete e-mail messages more than sixty days old. Defense counsel later learned of this destruction, but waited four months to inform the Court. Id. Upon a motion for sanctions, the court found that eleven of the company's highest officers and supervisors violated not only the court order, and the company's stated policy for electronic records retention. Id. at 25. The court fined each defendant $ 250,000 per employee, and precluded the defendant from calling any of the eleven employees as witness at trial. Id. at 26, n.1. In In re Cheyenne Software, Inc., Securities Litigation, 1997 U.S. Dist. LEXIS 24141, 1997 WL 714891, at *2 (E.D.N.Y. Aug. 18, 1997), a securities action, the court ordered the defendant to pay $ 15,000 in fees and fines for the routine recycling of computer [*227] storage media. In Renda Marine, 58 Fed. C1. 57 (2003), the court granted the plaintiffs motion to compel to order the U.S. Army Corps of Engineers to produce the backup tapes at its own expense and to provide access to the contracting officer's computer hard drive. There, the Defendant's policy was that after an e-mail was read, the e-mail had to be deleted or moved to a personal folder immediately. Despite the notice of litigation, this practice continued resulting in the court's sanctions.
Where a defendant contends that business necessity required or caused the destruction of relevant electronic discovery, a court rejected this defense because the party did not make a prior request for judicial relief on this issue. As stated in Cheyenne Software:
[t]he defendants, not entirely unreasonably, argue that they cannot "freeze" their business by maintaining all hard drives inviolate, but rather must erase and reformat their computer hard drives as people leave and as business needs dictate. The documents could have been preserved, however, without keeping the hard drives inviolate; the information on those drives could simply have been copied to other relatively inexpensive storage media. [*228] If the defendants found that to be so burdensome, an application to the court was the appropriate procedure, not ignoring the court's orders.
1997 U.S. Dist. LEXIS 24141, 1997 WL 714891 at *1. Defendants sought no such relief here.
The Court reserves any discussion of sanctions for the Defendants' failure to implement an effective litigation hold until completion of the ESI discovery ordered by the Court.
5. The Undue Burden Analysis

The undue burden analysis will discuss the types of ESI subject to production, the Defendants' databases subject to the ESI searches, the costs of that production and an application of the Rule 26(b)(2)(C) factors to the circumstances of this controversy.
(i) Types of ESI Data
As to what ESI must be produced, at the time of the November 2006 Order, the issues of the accessibly of the ESI was determined primarily based on the technical availability of the ESI This analysis was formulated in Zubulake I, and its progeny, often cited decisions. Under Zubulake I, the issue of undue burden due to costs of production was reserved for data that was technically inaccessible.
Whether electronic data is accessible or inaccessible turns largely on the media on which it is stored. Five categories of [*229] data, listed in order from most accessible to least accessible, are described in the literature on electronic data storage:
1. Active, online data: "On-line storage is generally provided by magnetic disk. It is used in the very active stages of an electronic records [sic] life--when it is being created or received and processed, as well as when the access frequency is high and the required speed of access is very fast, i.e., milliseconds." Examples of online data include hard drives.
2. Near-line data: "This typically consists of a robotic storage device (robotic library) that houses removable media, uses robotic arms to access the media, and uses multiple read/write devices to store and retrieve records. Access speeds can range from as low as milliseconds if the media is already in a read device, up to 10-30 seconds for optical disk technology, and between 20-120 seconds for sequentially searched media, such as magnetic tape." Examples include optional disk.
3. Offline storage/archives: "This is removable optical disk or magnetic tape media, which can be labeled and stored in a shelf or rack. Off-line storage of electronic records is traditionally used for making disaster copies of records [*230] and also for records considered 'archival' in that their likelihood of retrieval is minimal. Accessibility to off-line media involves manual intervention and is much slower than on-line or near-line storage. Access speed may be minutes, hours, or even days, depending on the access-effectiveness of the storage facility." The principled difference between nearline data and offline data is that offline data lacks "the coordinated control of an intelligent disk subsystem," and is, in the lingo, JBOD ("Just a Bunch Of Disks").
4. Backup tapes: "A device, like a tape recorder, that reads data from and writes it onto a tape. Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably ... The disadvantage of tape drives is that they are sequential- access devices, which means that to read any particular block of data, you need to read all the preceding blocks." As a result, "[t]he data on a backup tape are not organized for retrieval of individual documents or files [because] ... the organization of the data mirrors the computer's structure, not the human records management structure." Backup tapes also typically employ [*231] some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression.
5. Erased, fragmented or damaged data: "When a file is first created and saved, it is laid down on the [storage media] in contiguous clusters ... As files are erased, their clusters are made available again as free space. Eventually, some newly created files become larger than the remaining contiguous free space. These files are then broken up and randomly placed throughout the disk." Such broken-up files are said to be "fragmented," and along with damaged and erased data can only be accessed after significant processing.

Id. at 318-19 (emphasis added).
Applying this technical viewpoint on the accessibility of ESI, the Zubulake Court deemed the first three types of ESI, presumptively accessible.
Of these, the first three categories are typically identified as accessible, and the latter two as inaccessible. The difference between the two classes is easy to appreciate. Information deemed "accessible" is stored in a readily usable format. Although the time it takes to actually access [*232] the data ranges from milliseconds to days, the data does not need to be restored or otherwise manipulated to be usable. "Inaccessible" data, on the other hand, is not readily usable. Backup tapes must be restored using a process similar to that previously described, fragmented data must be defragmented, and erased data must be reconstructed, all before the data is usable. That makes such data inaccessible.
Id. at 319-20.
One commentator cited the number of custodians to be searched as posing the risk of increasing production costs. Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 7 Sedona Conf. J. 1 (2006) (hereinafter "Withers"):
To the extent that the appropriate technology is readily available to render the electronically stored information intelligible, it is considered "accessible." However, much of the electronically stored information that may be subject to discovery is not easily rendered intelligible with the computers, operating systems, and application software available in every-day business and personal environments. This electronically stored information may be considered "not reasonably accessible" [*233] due to the cost and burden associated with rendering it intelligible.
* * *
Electronically stored information, if kept in electronic form and not reduced to paper printouts, can be very inexpensive to search through and sort using simple, readily available technologies such as word or "string" searching. The cost of copying and transporting electronically stored information is virtually nil. The costs for the producing side, however, have increased dramatically, in part as a function of volume, but more as a function of inaccessibility and the custodianship confusion. Organizations without state-of-the art electronic information management program in place, which classify information and routinely cull outdated or duplicative data, face enormous (often self-inflicted) costs and burdens.
* * *
While we may informally refer to "accessible data," the emphasis is really on the data source-the media and formats in which the data is kept. This subtle distinction becomes more important when we consider the second tier of discovery of electronically stored information-data from sources that are "not reasonably accessible." We concentrate on the characteristics of the data source, as opposed to [*234] the data, because the difficulties presented by a data source that it "not reasonably accessible" prevent us from knowing anything about the data itself. Most importantly, the medium or the format prevents us from knowing whether the data itself is relevant to the litigation. Costs must be incurred and burdens borne before that threshold determination of relevance can reasonably be made.
Id. at pp. 5, 9 and 21 (emphasis added).
Special mention, however, is necessary for two types of discoverable ESI sought by the Plaintiffs, namely "deleted" data and "metadata". To the extent that any information of 50 key custodians work station has been deleted, the reference to "deleted" information from a computer system is a misnomer.

The term "deleted" is sticky in the context of electronic data. "'Deleting' a file does not actually erase that data from the computer's storage devices. Rather, it simply finds the data's entry in the disk directory and changes it to a 'not used' status--thus permitting the computer to write over the 'deleted' data. Until the computer writes over the 'deleted' data, however, it may be recovered by searching the disk itself rather than the disk's directory. Accordingly, [*235] many files are recoverable long after they have been deleted--even if neither the computer user nor the computer itself is aware of their existence. Such data is referred to as 'residual data.'" Deleted data may also exist because it was backed up before it was deleted. Thus, it may reside on backup tapes or similar media. Unless otherwise noted, I will use the term "deleted" data to mean residual data, and will refer to backed-up data as "backup tapes."
Zubulake, 217 F.R.D. at 313, n.19 (quoting Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. Rev. 327, 337 (2000) (footnotes omitted).
Deleted information in a party's computer's backup tapes is as discoverable as electronic documents in current use. "[I]t is a well accepted proposition that deleted computer files, whether they be e-mails or otherwise, are discoverable....[C]omputer records, including records that have been 'deleted,' are documents discoverable under Fed. R. Civ. P. 34." Zubulake, 217 F.R.D. at 317 n.38 (quoting Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002) and Simon Property Group L.P. v. mvSimon, Inc., 194 F.R.D. 639, 640 (S.D. Ind. 2000). [*236] See also Renda Marine, Inc. v. United States, 58 Fed. Cl. 57 (2003) (U.S. Army Corps of Engineers ordered to produce backup tapes at its own expense and to provide access to the contracting officer's computer hard drive) and Williams v. Armstrong, 2007 U.S. Dist. LEXIS 35045, 2007 WL 1424552 *2 (W.D. Mich. May 14, 2007) ("Typically speaking, [email], even when deleted is maintained in a computer system as replicant data, archival data or residual data, which is subject to production and discovery") (citations omitted).
Thus, the Court concludes that any deleted data recoverable from the work stations of the 50 key custodians is technically accessible. The Court cannot find the same for the statewide email server for lack of proof.
Another type of electronic data at issue in these discovery disputes that impacts the costs issue is "Metadata" that is a different type of ESI.
Metadata, commonly described as "data about data," is defined as "information describing the history, tracking, or management of an electronic document." Appendix F to The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age defines metadata as "information about a particular data set [*237] which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information.)" Technical Appendix E to the Sedona Guidelines provides an extended description of metadata. It further defines metadata to include "all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records." Some examples of metadata for electronic documents include: a file's name, a file's location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.
Sprint/United Management Co., 230 F.R.D. at 646 (emphasis added and footnotes omitted).
Sprint/United Management Co. [*238] directed that if the metadata is viewable in the ordinary usage in the defendant's business, and probative then the metadata should be produced absent an agreement of the parties or order of the court.
Certain metadata is critical in information management and for ensuring effective retrieval and accountability in record-keeping. Metadata can assist in proving the authenticity of the content of elec-

tronic documents, as well as establish the context of the content. Metadata can also identify and exploit the structural relationships that exist between and within electronic documents, such as versions and drafts. Metadata allows organizations to track the many layers of rights and reproduction information that exist for records and their multiple versions. Metadata may also document other legal or security requirements that have been imposed on records; for example, privacy concerns, privileged communications or work product, or proprietary interests.
* * *
It is important to note that metadata varies with different applications. As a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application's output. At one end of [*239] the spectrum is a word processing application where the metadata is usually not critical to understanding the substance of the document. The information can be conveyed without the need for the metadata. At the other end of the spectrum is a database application where the database is a completely undifferentiated mass of tables of data. The metadata is the key to showing the relationships between the data; without such metadata, the tables of data would have little meaning.
Id. at 647 (emphasis added and footnotes omitted). See also Bahar Shariati, Zubulake v. UBS Warburg: Evidence that the Federal Rules of Civil Procedure Provide the Means for Determining Cost Allocation in Electronic Discovery Disputes," 49 VILL. L. REV. 393, 404 n.49 (2004) (hereinafter "Shariati") ("[F]ormatting codes and other information are means to manipulate electronic data . . . and metadata tells 'when the document was created, the identity of the user who have accessed the document, [and] whether the document was edited'.")
To be sure, the 2006 amendment to Rule 34(a) no longer requires production of ESI in its native format that would include metadata. The Defendants note an emerging judicial trend that [*240] metadata should not be produced, absent some showing of necessity. "[E]merging standards of electronic discovery appear to articulate a general presumption against the production of metadata" and "[i]t is likely to remain the exceptional situation in which metadata must be produced." Sprint/United Management Co., 230 F.R.D. at 652. Accord Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 2006 U.S. Dist. LEXIS 79761, at *4 (D. Del. 2006) ("Emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata. The Default Standard for Discovery of Electronic Documents utilized in this District follows this general presumption."); Kentucky Speedway, LLC v. NASCAR, Inc., No. 05-138WOB, 2006 U.S. Dist. LEXIS 92028, at *22-23 (E.D. Ky. Dec. 18, 2006) ("Emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata. . . [T]his court is convinced - at least on the facts of this case - that the production of metadata is not warranted. The issue of whether metadata is relevant or should be produced . . . . ordinarily should be addressed by the parties in a Rule 26(f) conference."). [*241] 38 By Administrative Order, this Court joined the Default Standard under which the need for metadata must be shown.
38 The Defendants' counsel too often attempt to ignore the history of this case and seek to recast this action and its discovery dispute as if this were a recently filed action. With the filing of a Consent Order contemporaneous with the filing of a complaint, a Rule 26(f) conference was not required.
A noted treatise on federal practice explained the value of "metadata" in the context of litigation:
A printout or hard copy version of a computer-generated document does not contain all the embedded metadata. Similarly, the metadata, other than a file name, is not shown on the document when viewed on the monitor screen, but it can be easily retrieved. Different software applications may generate different types of metadata. In some cases, metadata can include significant information essential to a full understanding of the document. For example, metadata or system data in computer-generated information can reveal the evolution of a document. A record of earlier drafts, dates of subsequent revisions or deletion, and the identity of persons revising a document are routinely captured [*242] in software applications. System data may also identify anyone downloading, printing, or copying a specific document. Metadata may also assist in evaluating the authenticity of a document. For example, the relationship and arrangement of a particular file with other electronic files in a directory listing may offer helpful information regarding its authenticity. This data can be particularly useful when earlier drafts differ or the authenticity of an original document is disputed.

A document produced electronically may be more useful than a hard copy of the data or document in certain cases because it may contain metadata that is not revealed in a printout but that can be essential to a full understanding of the document. For example, a printout of an email message may include only a generic reference to a distribution list that fails to refer to the individuals who received the message.
Metadata that identifies the author, creation date, and dates when the document was modified remain on a computer's hard drive and can be retrieved when the information is stored on a CD-ROM, floppy diskette, or other media.
7 Moore's ß 37a.03[1] (footnotes omitted).
Although the Defendants contend that [*243] metadata cannot be "Bates stamped" and is subject to alteration as a live document, Tigh described the "Hash" coding that can be attached to metadata to ensure its integrity. The Honorable Shira Scheindlin, the author of the Zubulake opinions, likewise observed that:
"Native format, on the other hand, may create authenticity problems, as careless handling (or intentional alteration) can affect the integrity of the data. Unless protective measures are taken, the data may change each time the information is viewed or sorted. Thus, it is difficult to be sure that the information is maintained as it is produced and it is difficult to identify, or "Bates stamp" the original production, although technologies now exist to solve this problem."
Shira A. Scheindlin, U.S. District Judge Southern District of New York, "E-Discovery: The Newly Amended Federal Rules of Civil Procedure," Moore's Federal Practice (2006) (emphasis added).
The significance of metadata in litigation is evidenced in Williams, an employment class action suit involving layoffs, where the defendant produced spreadsheets showing reduction-in-force calculations in a static image format that had been "scrubbed" to eliminate metadata [*244] that included the mathematical formulae behind the spreadsheets. Referring to the "Sedona Principles" as well as then proposed Rule 34(b), the district court determined that the defendant should have produced the spreadsheets "as they are maintained in the regular course of business," that is, in native format. 230 F.R.D. at 654. The court also stated that other measures should have been taken to preserve the metadata within the electronic files because such information, such as calculations and text would be relevant and material to the claims in the action. Id. at 652-53. Accord In re Verisign, Inc. Securities Litigation, No. C 02-02270, 2004 U.S. Dist. LEXIS 22467, 2004 WL 2445243 (N.D. Cal. March 10, 2004). Metadata in this action will assist in understanding the tracking data required by the Consent Decree and what Judge Nixon found to be unreliable statistics. Metadata may disclose any attachments to email and assist in tying related documents with their respective custodians. Metadata would be necessary to understand the multiple policies and reports prepared and published by the Defendants. ESI is also necessary in light of the inconsistencies and gaps in Defendants' 2006 paper production and the Defendants' [*245] failure to preserve relevant data, as discussed above. The Metadata will facilitate understanding changes and alterations of documents, particularly reports filed with the Court. Here, the Court credits Tigh's testimony that metadata is important to understand the path of a document. Metadata is especially important to understand what remedial measures the Defendants took after this Court's repeated findings of the Defendants' non-compliance with the Consent Decree.
The amended version of Fed. R. Civ. P. 34(b)(iii) reflects that a party can produce ESI in one format, "unless the Court orders otherwise." The Court concludes that the metadata here is technically accessible and that Plaintiffs have satisfactorily shown that metadata is relevant and necessary for meaningful ESI production. Thus, pursuant to Rule 34(b)(iii), the Court concludes that the Defendants' and the MCCs's ESI production must include metadata.
(ii) The Defendants' and MCCs Databases
The proof here establishes that the Defendants have two servers: a document server and an email server. In addition, the Defendants agreed to establish a storage facility for the ESI on the computers of the Defendants' 50 key custodians. [*246] These work stations have separate folders for which there is no backup, but whatever relevant ESI remains, has been collected. Thus, from a technical viewpoint, the information under the November, 2006 Orders remains accessible. All information on these media storage devices that are not found to be privileged is discoverable and all transactional data is discoverable.

Subject to privileged information, all other ESI data bases are discoverable, but several of the MCCs' systems do not possess the same capabilities as the Defendants' systems. With the Court's modifications of the ESI production for those MCCs that have not resolved the ESI search conditions, the cited differences in those MCCs' systems will not affect those MCCs' ESI searches.
(iii) The Costs of Production
The issue remains of whether the ESI production sought of the Defendants and MCCs imposes an undue burden upon them. In their Opposition Brief, Defendants describe this "undue burden" in terms of "multiple millions of pages" and hundreds of gigabytes of information as well as exorbitant amounts of attorney time for privilege reviews. (Docket Entry No. 907, Defendants' Response at pp. 22, 24).
The Defendants' costs of [*247] production can be substantial depending upon the scope of the search and the number of custodians included in the search:
[e]lectronically stored information, if kept in electronic form and not reduced to paper printouts, can be very inexpensive to search through and sort using simple, readily available technologies such as word or "string" searching. The cost of copying and transporting electronically stored information is virtually nil. The costs for the producing side, however, have increased dramatically, in part as a function of volume, but more as a function of inaccessibility and the custodianship confusion.
Withers at p. 9 (emphasis added).
For the custodian factor in the undue burden analysis, the Court concludes that the 50 agreed custodians for the Defendants and the Plaintiffs' acceptance of the MCCs' designated custodians are reasonable and will not create an undue burden for the Defendants or the MCCs.
As to the search terms, the Defendants agreed to accept the Plaintiffs' 50 search terms. The ESI that Plaintiffs request is targeted by these 50 select key words that should eliminate a substantial amount of documents. Here, the Defendants' and MCCs' proof establishes that [*248] the ESI sought by the Plaintiffs is on active and stored data, except for the ESI that was destroyed as part of the Defendants' and MCCs' routine business practices. To the extent this data is on an active system, Zubulake 39 supports the Court's earlier Order requiring the production at the Defendants' expense, but given the 2006 amendments, the Court must consider whether the Defendants can show an undue burden. For the reasons stated below, the Court deems the Defendants' proof does not establish an undue burden their proof submitted prior to the earlier Order was conclusory and insufficient. See Docket Entry No. 720, Exhibits A and B thereto.
39 Prior to the 2006 amendments, the district court in Zubulake set forth a tri-part test to resolve these discovery issues. The first two factors are as follows:
First, it is necessary to thoroughly understand the responding party's computer system, both with respect to active and stored data. For data that is kept in an accessible format, the usual rules of discovery apply: the responding party should pay the costs of producing responsive data. A court should consider cost-shifting only when electronic data is relatively inaccessible, such [*249] as in backup tapes.
Second, because the cost-shifting analysis is so fact-intensive, it is necessary to determine what data may be found on the inaccessible media. Requiring the responding party to restore and produce responsive documents from a small sample of the requested backup tapes is a sensible approach in most cases.
Id. at 324. (emphasis added). Zubulake I factors are similar to Rule 26(b)(2)(C)(iii)'s provisions on whether ESI discovery imposes an "undue burden or expense on the responding party." 217 F.R.D. at 318.
As to the Defendants' proof of an undue burden, the Defendants' computer search based upon Plaintiffs' 50 word search with 50 key custodians reflects a total of 493 gigabytes of information which equals approximately 15 million pages with a maximum cost of $ 10 million. (Docket Entry No. 907 at pp. 2, 9). Assuming the estimates are reliable, for a class size of more than 550,000 children, the unit cost for this ESI discovery is approximately 25 pages per class

member at a cost of $ 16.66 per Plaintiff class member. If Plaintiffs were individuals with unproven claims, then the expenditure of millions of dollars for electronic discovery, after balancing equities, might [*250] be unjustified. Yet, with repeated judicial findings of the Defendants' violations of children's rights, this cost of ESI discovery is not an undue burden for the Defendants. Moreover, as to whether this expense for ESI discovery outweighs its benefits, Congress has authorized in excess of $ 7 billion dollars to the Defendants to provide the medical services at issue in this action. Of the Defendant's two systems, the Defendants and most of the MCCs reached an agreement on the ESI production of transaction data, the Defendant concerns about privilege is for ESI on the State's email server and the individual computers of key custodians. The significant costs identified by the Defendants is for privilege review.
As to the costs of privilege review, "the most significant contributor to the cost of privilege screening, however, is fear." Withers at p. 11. As Tigh noted, a word search can be employed using the names of counsel and other search terms, such as "privileged" and "confidential" to identify clearly of course, privileged information before any production defense counsel's computer can identify clearly privileged information. Courts recognize that scanning of vast amounts of ESI [*251] utilizing key words to identify privileged information can significantly reduce the costs of a privilege review. Zubulake I, 217 F.R.D. at 318 ("key words can be run for privilege checks"). "'By comparison [to the time it would take to search through 100,000 pages of paper], the average office computer could search all of the documents for specific words or combination[s] of words in minute[s], perhaps less.'" Id. at n. 50 (quoting Scheindlin & Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task? 41 B.C. L.REV. 327, 364 (2000) and citing Public Citizen v. Carlin, 184 F.3d 900, 908-10, 337 U.S. App. D.C. 320 (D.C. Cir. 1999)).
The Court finds that the Defendants have unduly exaggerated the costs for their ESI collection and any privilege reviews of this ESI. As stated earlier, courts have recognized computers' capabilities to perform select word searches from massive ESI material on privilege in a matter of seconds. The Court agrees with Tigh that selective word searches of ESI are viable options to reduce privilege review costs significantly for the Defendants and the MCCs. The Court also deems the defense counsel's internal data system and the availability of selective word [*252] searches to eliminate any excessive costs or undue burden arising from any privilege search of the ESI that the Court ordered to be produced.
For those MCCs that did not reach an agreement with the Plaintiffs, as stated in Rule 34(a), a threshold measure, before consideration of any undue burden is a sampling of the databases, particularly backup tapes to determine the likely yield of the information sought, as to avoid the costs of an extended search. Prior to the 2006 amendments, courts engaged in this analysis. As Zubulake I observed, "by requiring a sample restoration of backup tapes, the entire costshifting analysis can be grounded in fact rather than guesswork." 217 F.R.D. at 324, accord Bills v. Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985) ("[S]ome courts have required the responding parties to develop programs to extract the requested information and to assist the requesting party in reading and interpreting information stored on computer tape.") and McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001) ("The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own [*253] expense the less likely it is, the more unjust it would be to make the [responding party] search at its own expense. The difference is 'at the margin...'"). See also Zubulake I, 217 F.R.D. at 323 (the "test run" established in McPeek is the best solution for preventing courts from basing cost-shifting analysis on assumptions).
With the lack of a preservation or litigation hold, the Court questions the viability of sampling for the Defendants' and the MCCs' data bases. The Defendants' actual ESI search based upon Plaintiffs' 50 word search with 50 key custodians reflects a total of 493 gigabytes of information which equals approximately 15 million pages (Docket Entry No. 907 at p. 9) with an estimated maximum cost of $ 10 million. Id. at 2. With Defendants' estimates, the unit cost for this ESI discovery is approximately 25 pages per class member at a cost of $ 16.66 per class member for this class. This cost is not an undue burden. As to the MCCs', with the Court's modification of the MCCs' ESI search, Plaintiffs' expert and Unison's expert agreed that this modified ESI search would not be unduly burdensome nor costly.
6. Good Cause and The Rule 26(b)(2)(C) Factors
Even if the Court agreed [*254] with the Defendants that this ESI discovery presents an undue burden, Rule 26(b)(2) also states that if the party seeking discovery can show "good cause," then the ESI production can be ordered. Fed. R. Civ. P. 26(b)(2)(C)(i)(ii) and (iii). Amended Rule 26(b)(2)(C)(i) requires consideration first of whether the ESI is duplicative or available elsewhere as less burdensome and less expensive.
The Defendants contend that their 2004 paper production provides the identical or the same data as the ESI production for that period and therefore, Plaintiffs' ESI discovery is duplicative. The Court disagrees. Since 1972, courts have held that a paper production does not preclude an ESI production of the same material. Adams v. Dan River Mills, Inc.,

54 F.R.D. 220 (W.D. Va. 1972). See also; National Union Electric Corp. v. Matsushita Electric Industrial Co., Ltd., 494 F.Supp. 1257 (E.D. Pa. 1980). In In re Honeywell International Inc. Securities Litigation, 230 F.R.D. 293, 297 (S.D.N.Y. 2003), despite the defendant's prior paper production, the district court ordered ESI production that would cost $ 30,000. The court reasoned the prior paper production was "insufficient because they were not produced [*255] as kept in the usual course of business." Id. In In re Verisign the court ordered the defendant to convert existing TIFF images that had to be searchable in electronic format and ordered the production of metadata. 2004 U.S. Dist. LEXIS 22467, 2004 WL 2445243 at *3.
The reasons for this difference between paper production and ESI production may be explained in Sprint/United Management Co., 230 F.R.D. at 646. To be sure, some courts differ on this issue. Compare Williams v. Owens-Illinois, 665 F.2d 918 (9th Cir. 1982) (denying such a request) and Anti-Monopoly, Inc.v. Hasbro. Inc., 1995 U.S. Dist. LEXIS 16355, 1995 WL 649934 at *2 (S.D.N.Y. Nov. 3, 1995) (ordering production of hard-copy and computerized data). Commentators recognize that "paper copies of e-mail differ from electronic copies of e-mail." Shariati at 405, n.49.
Given the technical and substantial differences in ESI and paper production, the Court adopts the Hasbro ruling: "the rule is clear: production of information in "hard copy" documentary form does not preclude a party from receiving that same information in computerized/electronic form." 1995 U.S. Dist. LEXIS 16355, [WL] at *2. The inconsistency and gaps in the Defendants' 2006 paper production for this time period, discussed supra, further demonstrate [*256] that the ESI sought and ordered by the Court is neither duplicative nor otherwise obtainable by other means. As discussed earlier on metadata, paper production does not provide the same information as does ESI. The ESI here contains metadata that is invaluable to Plaintiffs' understanding of the Defendants' data and reports. Some emails originally contained attachments, but those attachments generally are not included in reply messages in the paper version of reply messages.
Further, a paper document may not disclose hidden data that an ESI production may disclose. "Selected passages, which are not visible when the document is printed, can be marked as hidden text under options in various software programs." 7 Moore's ß 37a.03[1] citing Robins, "Computers and the Discovery of Evidence - A New Dimension to Civil Procedure", 17 J. MARSHALL J. COMPUTER & INFO. L. 411, 414-415 (1999).
Another commentator noted the historical importance of electronic data. "[E]lectronic data, especially e-mail, often contains damaging evidence cause of its informal nature. Commentators state that e-mail has proven to contain the 'smoking gun' in many cases. One commentator asserts that e-mail is the source [*257] of such honest and important information because it is quick medium for dialogue that appears secure from eavesdroppers, due to the lack of personal interaction and minimal likelihood of being reduced to paper form." Shariati at 406. These collective authorities and the serious deficiencies found in the Defendants' 2004 production render meritless the Defendants' contention that ESI production for the same period is duplicative.
The Defendants' related argument is that the prior discovery in this action and related actions establishes that paper production was the agreed method of discovery production. The Defendants elicited proof on this issue at the June 2007 hearing. See also Docket Entry No. 997, Defendants' Supplemental Memorandum atp. 36, citing United States v. Jenkins, No. 99-4451, 2000 U.S. App. LEXIS 4472, at *2 (4th Cir. May 22, 2000) (noting that "prior dealings between the parties" in discovery may control the parties' discovery obligations); Sty-Life Co. v. Eminent Sportswear Inc., No. 01.Civ.3320 (CBM), 2002 U.S. Dist. LEXIS 119, at *13 (S.D.N.Y. Jan. 4, 2002) Harris Corp. v. Amperex Elec. Corp., No. 86 C 6338, 1987 U.S. Dist. LEXIS 14055, at *2-3 (D.Ill. Feb. 24, 1987). [*258] See also Docket Entry No. 734, Transcript at pp. 32-33.
The Court disagrees for several reasons. First, the Consent Decree expressly provides that the Defendants would create and provide Plaintiffs extensive data in an electronic format:
91. Upon request, the evaluators shall be afforded access to such records (including electronic data files) or persons as necessary to fulfill the responsibilities imposed by this order. Each party shall have access to information and materials obtained by the evaluators; however, except for information which originated with the parties' counsel, the evaluators may withhold the source of any information they have received. The evaluators may communicate ex parte with the parties, their agents or counsel; upon request, the evaluators shall disclose to the opposing party the general substance of such communications. The evaluators shall otherwise treat all records as confidential.
* * *

97. The state shall compile, in a standardized electronic format capable of supporting flexible, customized analysis and reporting, data on all pertinent provider encounters which involve children, and which are covered by the TennCare program.
98. The state shall conduct [*259] ongoing audits for the purpose of authenticating such encounter data. In order to ensue the integrity of the audit reports, such audits shall be conducted by qualified personnel and shall meet generally accepted standards regarding sample size and selection.
(Docket Entry No. 12, Consent Decree at PP 91, 97 and 98) (emphasis added).
Second, in an earlier discovery dispute in this action, the Defendants filed a motion for a protective order on April 13, 2001, inter alia, on Plaintiffs' document request No. 34 for "encounter data for class members in electronic media, in ASCII format, for the calendar years 1993-2000". (Docket Entry No. 92, Defendants' Memorandum at p. 9). With a modification of subject matter, the Magistrate Judge denied the Defendants' motion and ordered production on document request no. 34. (Docket Entry No. 103, Order at pp.7-8). Since at least the February 28, 2006 conference, the Court has entertained ESI issues. (Docket Entry No. 616, Transcript at pp. 82-100). The Plaintiffs' definitions for their 2006 discovery requests clearly reflect that Plaintiffs sought ESI. See the quotation supra at pp. 33-347.
Third, ESI issues did arise in Rosen where testimony was taken [*260] on the State's computer system's capabilities to provide notice and reverification data. Rosen v. Goetz, No.3:98cv0627, Docket Entry No. 277, November 9, 2001 Transcript at pp. 72-84; Docket Entry No. 279, November 14, 2001 Transcript at pp. 8, 17-20; Docket Entry No. 286, November 13, 2001 Transcript at pp. 12, 16-17).
Fourth, the Court is uncertain about the substantive issues in the Grier and Newberry actions, but Rosen was a procedural due process case. This action involves complex substantive issues of detailed medical treatment of children. Given the size of the class at the time of the Consent Decree (550,000) and with the extensive terms of the Consent Decree, the Court concludes that it is unreasonable to assume that only paper discovery would be provided. To do so would overwhelm counsel and the Court. By its nature, ESI enables parties to manage and evaluate efficiently massive and detailed information on the complex issues in this action. Such purposes are the essential value of ESI. In these circumstances, the legal authorities and limited testimony cited by the Defendants, do not justify limiting discovery to a paper production.
As Tigh explained, a party cannot search [*261] a paper production, and to manage the massive amounts of information in this action requires an ESI production. In this action, information must be in a computer format for any effective understanding and searching of discovery material. The Court is gravely concerned that the Defendants' insistence on paper discovery is to obscure the ascertainment of material information on their compliance with the Consent Decree.
As to Rule 26(b)(2)(C)(ii), the Plaintiffs made their ESI discovery requests because it was not until February 2006 that the Defendants' counsel insisted that the Defendants were in compliance with the Consent Decree. As discussed earlier, Plaintiffs sought and were awarded ESI, but only for the earlier time period. (Docket Entry No. 103).
Amended Rule 26(b)(2)(C)(iii) requires the Court to consider whether the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. 40
40 The comparable Zubulake I factors are:
1. the likelihood of discovering [*262] critical information;
2. the availability of such information from other sources;
3. the amount in controversy as compared to the total cost of production;
4. the parties' resources as compared to the total cost of production;
5. the relative ability of each party to control costs and its incentive to do so;
6. the importance of the issues at stake in the litigation; and

7. the relative benefits to the parties of obtaining the information.
217 F.R.D. at 322. Under Zubulake each factor is not considered equally and "cannot be mechanically applied." Id. at 323. Yet, "[t]he first two factors-- comprising the marginal utility test-- are the most important." Id.
As to the likely benefits of the ESI production, if Plaintiffs were individuals with unproven claims, then the expenditure of the Defendants' estimated millions of dollars for electronic discovery, after the balancing equities, might be unjustified. Yet, with repeated judicial findings of the Defendants' violations of children's rights to medical care under federal law, any cost of ESI discovery is far outweighed by the benefits of the improved health of the children in this state. On this weighing factor, the Congress appropriated in excess [*263] of $ 7 billion dollars to the Defendants to provide these medical services to the children in this action. The proper and effective use of this amount of federal funds is yet another indicator of the likely benefits in this action
The "needs of the case" factor weighs heavily in Plaintiffs' favor. The Defendants and the MCCs possess virtually all of the critical information on whether the Plaintiffs' class members are receiving medical services required by federal law and the Consent Decree. The magnitude of the issues here is reflected in the more than 550,000 members in the Plaintiffs' class. Without this discovery from the Defendants and MCCs, the Court cannot assess whether the Defendants are in compliance with Consent Decree and have taken all reasonable measures to address the Court's prior findings on the deficiencies in the Defendants' system for meeting the requirements of the Consent Decree and federal law.
As to the amount in controversy, since the entry of the Consent Decree, more than $ 7 billion of federal funds have been distributed to the Defendants and the MCCs to provide the medical services to the Plaintiffs' class. The Consent Decree provides injunctive relief until [*264] the Defendants meet the stated percentages of screenings. The fact that the Defendants have never been found to meet those standards in over nine years, leads the Court to conclude that in all likelihood, additional time for compliance is necessary so that the actual amount in controversy could be additional billions of dollars.
As to the parties' resources, the class consists of 550,000 children whose economic resources are non-existent. For the Defendants to argue that Plaintiffs should pay the costs of production is outrageous. Plaintiffs' lead counsel are in a not-for-profit organization that has limited financial resources and relies significantly on the pro bono services of large law firms and pro bono experts to protect the interests and rights of this large class of children. The Defendants are public officials who have received well in excess of a half of a billion dollars in federal funds for the administration of the EPSDT program alone, and additional undisclosed amount of federal funds for the administration of the TennCare program. Hopefully from state funds, the Defendants have retained two private law firms and computer experts. Defendants also have the services of the [*265] staffs of the State Attorney General's office, the TennCare program, the Department of Finance and Administration, the Department of Children's Services and the Department of Mental Health. The resources of the parties are grossly disproportionate in the Defendants' favor.
As to the "importance of the issues at stake," 41 the Consent Decree provides injunctive relief to enforce a Congressional mandate finding that the public interest requires children to have early screenings for their medical needs and to provide any medically necessary care, as revealed by those screenings. For these purposes, Congress appropriated and the Secretary distributed more than $ 7 billion in federal funds to the Defendants to benefit the Plaintiffs' class of children who are located throughout the State. The health of any child, particularly a child in economic and medical need, is immensely important. In addition, the Consent Decree awarded injunctive relief to enforce Congress' mandate, but on two prior occasions, this Court has found that the Defendants have not honored the Court's Orders. Judge Nixon also found that the Defendants have failed to comply with the Court's Order to submit an Initial Action [*266] Plan ("IAP") to cure the deficiencies cited by the Court. Judge Nixon stated:
As recently as August 2004, the Special Master concluded in his status report to the Court that no feasible plan yet exists to achieve compliance for an indispensable section of the Consent Decree. The Special Master reported that the State has failed to honor its renewed commitment to produce an IAP satisfactory to the Special Master, last made in September 2004, and still refuses to engage its key officials in planning efforts to achieve compliance, verification of the quality of its data, and evaluation of the successes or failures in attaining compliance.
The Special Master also reports that the State is incapable of reporting progress to the Court because it lacks a valid and reliable system of measuring progress in such key areas as provider network ade-

quacy, case management, outreach, the effective use of information systems, and system level coordination, to name a few.
(Docket Entry No. 465, Memorandum at p. 5) (emphasis added).
41 Zubulake suggested an exception to the proportionality test for institutional litigation on public policy issues.
Last, "the importance of the issues at stake in the litigation" [*267] is a critical consideration, even if it is one that will rarely be invoked. For example, if a case has the potential for broad public impact, then public policy weighs heavily in favor of permitting extensive discovery. Cases of this ilk might include toxic tort class actions, environmental actions, so-called "impact" or social reform litigation, cases involving criminal conduct, or cases implicating important legal or constitutional questions.
Zubulake I, 217 F.R.D. at 321 (emphasis added).
The combination of the Defendants' violations of this Congressional mandate for children's medical care, the medical needs of the children, the Defendants' receipt of $ 7 billion dollars of federal funds to meet this mandate and the Defendants' violations of this Court's Orders to enforce that mandate, presents issues of utmost importance.
As to the importance of the ESI discovery in resolving these important issues, the Plaintiffs' discovery requests seek information to assess the Defendants' insistence that they are in compliance with the Consent Decree. As the officials charged with operating and managing this program, the Defendants and the MCCs are the only sources for this information. To assert [*268] that they are in compliance and then refuse to permit full discovery to test that assertion is unfair. With the structural deficiencies in the Defendants' management and statistical systems found by Judge Nixon and the absence of a coherent remedial plan or even the Initial Action Plan that Judge Nixon ordered to be filed, the Plaintiffs present a compelling need for this ESI discovery. The importance of the issues at stake are the health and welfare of needy children who thus far, have not been receiving the medical services that federal law requires and that federal funds have been appropriated to provide. The expenditure of these federal funds without delivery of the requisite services to a significant percentage of class members present a serious issue. Neither the members of the class, children nor Plaintiffs' counsel possess anywhere near the resources of the Defendants. At stake are billions of federal funds that are not being expended to comply with federal law.
Thus, the Court concludes that to provide the ESI required by the Court's directives and Orders is not an undue burden 42 and to the extent any burden exists, the Plaintiffs have amply demonstrated good cause to order [*269] this ESI production.
42 The Zubulake remaining factors also support this conclusion that is wholly in accord with the Court's earlier rulings. The third Zubulake factor, the "total cost of production, compared to the amount in controversy," disfavors cost-shifting. 216 F.R.D. 280, 287-88 (S.D.N.Y.2003). Under Zubulake "a responding party should not be required to pay for the restoration of inaccessible data if the cost of that restoration is significantly disproportionate to the value of the case." Id. at 288. Here, the amount in controversy is literally billions of federal funds that the Defendants agreed to administer for Tennessee's children's health care through the TennCare program. These funds dwarf the State's estimated $ 10 million cost of their ESI production. (Docket Entry No. 907 at p. 6). The "total cost of production, compared to the resources available to each party," the fourth Zubulake factor, counsels against cost-shifting. 216 F.R.D. at 284. Here, the Defendant's resources are extensive and Plaintiffs' resources are minuscule. Therefore this factor, weighs against cost-shifting.
The fifth Zubulake factor concerns the "relative ability of each party to control costs and [*270] its incentive to do so." Id. In Zubulake, the court found that this factor was neutral because the requesting party "already made a targeted discovery request" and the producing party had already selected the vendor to restore its backup tapes, so neither party could do anything more to reduce costs. Similarly, Plaintiffs here narrowed their search request to 50 terms that will produce relevant electronic responsive documents, so there is nothing else Plaintiffs can do to reduce the cost of production. The Defendants overly exaggerated their cost estimates with failure to

utilize key word searches and filters to reduce the cost of reviewing for privilege. This factor has neutral effect in this case.
The sixth Zubulake factor, "importance of the issues at stake in the litigation." Id. at 289. The issue here involves mismanagement of billions of federal dollars intended for the health and welfare of over half a million of Tennessee's most vulnerable and needy children. This issue is of paramount importance.
7. Privilege Issues
The Defendants and MCCs assert several privileges as barring Plaintiffs' ESI discovery. To assert privileges in response to a discovery request, Fed. R. Civ. P. 26(b)(5)(A) [*271] requires a privilege log:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial-preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
The 1993 Advisory Committee Notes are informative on a party's failure to submit a privilege log with all privilege assertions:
A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection. To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.
(emphasis added).
Courts have held that a party's failure to assert a privilege on a privilege log constitutes a waiver of that privilege. Bowling v. Scott County, Tenn., 70 Fed. R. Evid. Serv. 959, 2006 WL 2336333 at *3 (E.D. Tenn. Aug. 10, 2006); [*272] Carfagno v. Jackson National Life Ins. Co., 2001 U.S. Dist. LEXIS 1768, 2001 WL 34059032 at *2 (W.D. Mich. Feb. 13, 2001); Butler Mfg. Co. v. Americold Comp., 148 F.R.D. 275, 277 (D.Kan. 1993); Hampton v. City of San Diego, 147 F.R.D. 227, 228-29 (S.D. Cal. 1993); Gottlieb v. Wiles, 143 F.R.D. 241, 246 n.9 (D. Colo.1992); Carey-Canada, Inc. v. California Union Ins. Co., 118 F.R.D. 242, 249 (D.D.C.1986).
In their privilege log, the Defendants asserted only the work product and attorney client privileges. (Docket Entry No. 707-2). Although not asserted, the deliberative privilege was recognized by Judge Nixon in an earlier ruling, (Docket Entry No. 401), but in the Defendants' response to Plaintiffs' first motion to compel, the Defendants unequivocally stated that they "waived" their deliberative process privilege in their objections to discovery in Rosen, a related action. (Docket Entry No. 720, Defendants' Memorandum at p. 3)
Under paragraph 105 of the Consent Decree, the Defendants waived any state law privilege because Plaintiffs were granted access to the Defendants' data "subject to any applicable federal law." (Docket Entry No. 12 at P 105). In their response to the Plaintiffs' first motion to compel, the [*273] Defendants cited only Tenn. Code Ann. ßß 68-142-101, 68142-105(3) and 68-142-108(a) involving child fatality review and did not argue for privilege based upon any state law. (Docket Entry No. 720, Defendants' Memorandum at pp. 6). In their response to Plaintiffs' renewed motion to compel, the Defendants now cite Tenn. Code Ann. ßß 63-6-219(b)(1), 37-5-107(b), (d) and 37-1-409(a)(2) as well as 42 U.S.C. ß 5106a (b)(2)(A). (Docket Entry No. 920 at pp. 27-38).
The Court concludes first that all privileges, other than attorney client and work product privileges, have been waived for defense counsel's failure to assert them in the Defendants' privilege log. Yet, in the interests of judicial economy, the Court addresses the merits of the waived privileges in the event of an appeal.
Before addressing the substantive issues of privilege, the Court first addresses a procedural issue on privilege. The Defendants now argue that any clawback agreement on ESI discovery to avoid a waiver of privilege is available only upon a voluntary agreement of the parties. (Docket Entry No. 907, Defendants' Response at pp. 11-13). "[A] mandatory clawback cannot be justified." Id. at p.13. Thus, Defendants argue [*274] that without their consent, a clawback provision is unavailable to the Court thereby reinforcing the need for the time consuming privilege review, as described by the Defendants. Id.

As to the clawback option for any privileged material in the Defendants' ESI production, the Court notes the following colloquy with Nicole Moss, defense counsel at the November 6, 2006 hearing:
THE COURT: And if we've got a claw back provision, as I understood the plaintiffs agreed to, then, if something sort of slips through, then you have the right to come back and claim it as privileged. I mean, that's what I understood you wanted, isn't it?
MS. MOSS: We do, Your Honor. Certainly that would be part of the provision.
(Docket Entry No. 734, Transcript at p. 80). The Court then entered an Order granting the ESI discovery with a clawback provision for any post-production assertion of privilege. (Docket Entry No. 734, Order at p. 2)
The 2006 ESI amendments to the rules of civil procedure expressly contemplate a clawback protection for ESI discovery to address post-production privilege issues and to avoid any finding of waiver by the producing party in any other litigation:
If information is produced in discovery [*275] that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5)(B).
Defendants quote the Advisory Committee on this rule provision referring to clawback agreements as "voluntary arrangements." (Docket Entry No. 907, Defendants' Response at p. 11). The Advisory Committee Notes to the 2006 Amendments also reflect that Rule 26(b)(5) was intended "to provide a procedure for a party to assert a claim of privilege or trial preparation material protection after information is produced in discovery," and that Rule 26(b)(5)(B) in conjunction [*276] with other rules, "allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection."
A commentator described the types of agreements in an ESI production that may cause a waiver of any privilege in other actions.
[A] "claw back," under which counsel on both sides agree to surrender any documents they receive from the other if a privilege claim is asserted in a timely manner after production, and if there is a disagreement, to place the document on a privilege log for review by the judge at an appropriate time. While a claw back agreement may reduce tension in litigation, it might not actually reduce costs. If the issue of privilege waiver comes before the judge, one of the considerations will likely be the degree of care taken by the producing party to avoid such an error. Therefore producing parties will still exercise a high degree of care in the screening process, at a high cost. Perhaps more frightening is the prospect that while the "claw back" agreement may be useful and constructive between the parties, it does not bind non-parties, who may claim in parallel litigation in another [*277] court, perhaps operating under a stricter standard, that any privilege claimed over the documents "clawed back" had been waived by the fact of production.
A second type of agreement is the "quick peek." Under this agreement, the parties can dramatically reduce the scope and cost of privilege review, and the scope and cost of discovery itself. The parties agree to an "open file" review of each other's data collections prior to formal discovery, reserving all rights to assert privilege when responding to the actual document request. After the review, the parties designate the files or data sources that they believe are most relevant to their case, and submit a formal Rule 34 request listing those items. The producing party then has a much narrower task of privilege review, focusing on just those files or data sources before responding to the request.

Withers at p. 23.
Courts have adopted both types of agreements on privilege issues and have incorporated such provisions in Orders to avoid any finding of future waiver. Hopson v. The Mayor and City Council of Baltimore, 232 F.R.D. 228, 246 (D. Md. 2005) ("claw back" agreement was incorporated into court order to avoid any assertion of waiver [*278] of a privilege); Murphy Oil USA, Inc. v. Fluor Daniel, Inc, 2002 U.S. Dist. LEXIS 3196, 2002 WL 246439 at *8 (E.D. La. Feb. 19, 2002) (reciting various options for a "quick peek" agreement). 43
43 For detailed procedures and protocols for a privilege production, see Fluor Daniel, 2002 U.S. Dist. LEXIS 3196, 2002 WL 246439 at *8-9.
Here, the Court first concludes that Moss's statement at the November 6th hearing establishes that the Defendants consented to the clawback provisions in the Court's Order. Second, as stated earlier, the defense counsel's computer should identify any clearly privileged ESI. Third, the Court adopts its earlier finding on the costs of a privilege review and recognizes that a select word search of Defendants' computers is a viable method to ensure that clearly privileged material is not disclosed in the initial ESI production; to avoid initially any waiver of clearly privileged material; and to protect against any inadvertent disclosure. With the clawback provision incorporated into a court order, such protection should insure against any future claim of the Defendants' waiver in any other litigation. The separate protective order prohibits the disclosure or use of material in this action for any other use.
Finally, as [*279] to the impact of In re Columbia/HCA Corporation Billings Practices Litigation, 293 F.3d 289 (6th Cir. 2002) on any clawback arrangement, the Sixth Circuit made it clear that any waiver of any privilege requires a "voluntary disclosure." Id. at 294. To the extent any privileged material is produced under an Order of this Court in this action, no reasonable person would consider these Defendants to have made a "voluntary disclosure" of any privileged information.
a. Attorney Client Privilege
A party asserting the attorney-client or work product privilege to bar discovery bears the burden of establishing that either or both is applicable. United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). In evaluating assertions of attorney-client and work product privileges, as procedural matter, the district court should require an in camera review of the disputed document(s). In re Antitrust Grand Jury, 805 F.2d 155, 169 (6th Cir. 1986). ("[W]e hold that the district court erred in not reviewing the documents in Exhibit C in camera in order to determine whether they reflect communications or work product made in furtherance of a contemplation or ongoing Sherman Act violation. . ."). The Court [*280] instructed defense counsel that for any documents subject to a claim of privilege, those documents should be filed under seal for an in camera inspection. (Docket Entry No. 734, November 6, 2006 Transcript at p. 81). The Defendants' counsel did not do so.
The attorney-client privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976) (holding inter alia, that the mere transfer of a document to counsel does not render the document subject to the attorney-client privilege). The privilege can be asserted by a governmental entity. Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005) (quoting United States v. Collis, 128 F.3d 313, 320 (6th Cir.1997) "The attorney-client privilege is 'narrowly construed' because it reduces the amount of information discoverable during the course of a lawsuit." Id.
Communications, including memoranda or notes on such communications, by corporate employees to corporate counsel and outside counsel are covered by the attorney client and work-product privileges. Upjohn Company v. United States, 449 U.S. 383, 391, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). As the Supreme [*281] Court explained, "[t]he client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney. . . . [T]he courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer." Upjohn, 449 U.S. at 396 (citations omitted). The communications at issue in Upjohn were questionnaires that were marked clearly as from the corporate general counsel. Id. at 394-95. The legal implications of the questionnaires were also readily apparent to the corporate employees and officers. Id.
The Sixth Circuit Court described the purposes of the attorney client privilege:

The purpose of the attorney-client privilege is to encourage clients to communicate freely and completely with their attorney. The privilege also serves the purpose of promoting "broader public interest in the observance of law and administration of justice." However, it is not an absolute privilege. It applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice. Under [*282] some circumstances the privilege is to be very narrowly construed.
In re Antitrust Grand Jury, 805 F.2d at 162 (citations omitted).
The privilege protects not only the confidentiality of communications by the client to an attorney, but the privilege also includes:
Communications by the attorney to the client in the consultation process when they state or imply facts communicated to the attorney in confidence. . . It is true that a client's knowledge of facts may not be cloaked under the attorney-client privilege by incorporating a statement of those facts in a communication to the attorney. But privileged advice does not lose its protection when the client adopts it. To allow a litigant to probe beyond the assertion of privilege to the substance of the legal advice because the client takes that advice to heart and acts upon it would effectively circumvent the protection of the privilege. For this reason when a deponent answered a question about his reasons by saying that he was only relying on his attorney's legal advice, that answer is a sufficient response.
SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 516-17 (D. Conn. 1976) (citations omitted).
In ruling on issues of privilege, "[t]he mere [*283] fact that a person is an attorney does not render privileged everything he does for and with a client...." United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1968). The Second Circuit stated, "it is important to bear in mind that the attorney client privilege protects communications rather than information; the privilege does not impede disclosure of information except to the extent that the disclosure would reveal confidential communications." In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2nd Cir. 1984).
Humphreys, Hutchenson & Mosley v. Donovan, 568 F. Supp. 161, 175 (M.D. Tenn. 1983), aff'd, 755 F.2d 1211 (6th Cir. 1985), is instructive on the determination of whether the attorney-client privilege applies. In Humphreys, Judge Nixon relied on the doctrine formulated in United States v. United Shoe Machinery Corporation, 89 F. Supp. 357, 35859 (D. Mass. 1950) and held that the attorney client privilege applies only if:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) [*284] the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Humphreys., 568 F.Supp. at 175. See also 4 Moore's ß 26.60 [2]: "communications from a client to his attorney are privileged if legally related and having an expectation of confidentiality so long as the privilege has neither been waived nor lost."
On appeal in Humphreys, the Sixth Circuit explained that the attorney client privilege "does not envelope everything arising from the existence of an attorney-client relationship... [t]he attorney-client privilege is an exception carved from the rule requiring full disclosure, and as an exception, should not be extended to accomplish more than its purpose." 755 F.2d at 1219. (citations omitted). Accord United States v. Goldfarb, 328 F.2d 280, 281-82 (6th Cir.1964) (Attorney-client relationship does not create an automatic "cloak of protection...draped [*285] around all occurrences and conversations which have any bearing, direct or indirect, upon the relationship of the attorney with his client.").
Where the facts suggest combined business and legal advice in a document, courts can inquire about which purpose predominates. "It was also proper...to inquire into the nature of the 'legal services' rendered by [the Defendant]. Attor-

neys frequently give to their clients business or other advice that, at least insofar as it can be separated from their professional legal services, gives rise to no privilege whatever." Colton v. United States, 306 F.2d 633, 638 (2d. Cir.1962); See also United States v. International Bus. Mach. Corp., 66 F.R.D. 206, 212-13 (S.D.N.Y. 1974). After such inquiries, if the lawyer acted as a business advisor or agent, then the information is not privileged. Asset Value Fund L.P. v. Care Group, No. 97 Civ. 1487, 1997 U.S. Dist. LEXIS 17968, 1997 WL 706320 at *4 (S.D.N.Y. Nov. 12, 1997); Park Ave. Bank, N.A. v. Bankasi, No. 93 Civ. 1483, 1994 U.S. Dist. LEXIS 18636, 1994 WL 722690 at *1 (S.D.N.Y. Dec. 30, 1994).
In the context of business dealings, where a lawyer acts as a business advisor, several courts found that there is not any special relationship to give rise to a privilege [*286] to protect counsel's advice from disclosure. In re Grand Jury Subpoena, Duces Tecum Dated September 15. 1983,731 F.2d 1032, 1037 (2nd Cir. 1984); Standard Chartered Bank PLCv. Ayala Intern. Holdings, Inc., 111 F.R.D. 76, 80 (S.D.N.Y. 1986); Coleman v. American Broadcasting Co., Inc., 106 F.R.D. 201, 205-06 (D.D.C. 1985). As one court explained,
[T]he attorney-client privilege protects only communications pertaining to legal assistance and advice and does not extend to business advice given by an attorney to a client, or to inter-client communications designed to communicate only business or technical data. [Citations omitted.] Where an attorney gives advice of a general nature to a corporate client and also advises on the resolution of troubled loans made by the client, the line between business and legal advice may be fine indeed.
First Wisconsin Mortg. v. First Wisconsin Corp., 86 F.R.D. 160, 174 (E.D. Wis.. 1980) (emphasis in the original and citations omitted). Accord SCM Corp., 70 F.R.D. at 517 ("To protect the business components in the decisional process would be a distortion of the privilege. The attorney-client privilege was not intended and is not needed to encourage businessmen [*287] to discuss business reasons for a particular course of action.").
Other courts have held that the attorney-client privilege does not extend to every memorandum or draft document exchanged between corporate employees and corporate counsel. Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987). In Searle, the Eighth Circuit held that "Risk management" documents with statistical analysis prepared by nonlawyer corporate officials on the costs of product-liability litigation, not to be privileged.
Moreover, a number of courts have determined that the attorney-client privilege does not protect client communications that relate only business or technical data. Just as the minutes of business meetings attended by attorneys are not automatically privileged, business documents sent to corporate officers and employees, as well as the corporation's attorneys, do not become privileged automatically. Searle argues, however, that the special master formulated a per se rule barring privilege claims where a document is sent to corporate officials in addition to attorneys. We do not read the special master's report as establishing such an approach. Client communications intended to keep the attorney [*288] apprised of business matters may be privileged if they embody "an implied request for legal advice based thereon."
816 F.2d at 403-404. (citations omitted). See also Christman v. Brauvin Realty Advisors, Inc., 185 F.R.D. 251, 256; 185 F.R.D. 251, 1999 U.S. Dist. LEXIS 4860 at * 13 (N.D. Ill. 1999) (Drafts of proxy statements and comments thereto are not legal advice and are not privileged); United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) (copies of drafts edited by attorneys, including counsel's handwritten notes are not privilege because "[a] corporation cannot be permitted to insulate its files from discovery simply by sending a "cc" to in-house counsel."); Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 444 (S.D.N.Y. 1990) (lawyer's business advice was not protected from disclosure).
Another district court ruled that the privilege does not extend to communications about "business or technical data" or "technical matters."
It should be emphasized, however, that no privilege will attach for documents designed merely to communicate non-privileged business or technical data. Nor will the privilege attach when the element of confidentiality is lacking. [*289] Furthermore, no privilege will attach to those documents directed to the attorney for the purpose of shielding the documents from disclosure.

* * *
In order to invoke the privilege, however, the party seeking protection must make a clear showing that documents containing technical matters are communicated in confidence and are primarily legal in nature. There must be a finding that each document is involved in the rendition of legal assistance.
Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 39 (D.Md. 1974). (citations omitted).
The Defendants rely upon Liberty Environmental Systems, Inc. v. County of Westchester, 1997 U.S. Dist. LEXIS 12200, 1997 WL 471053 (S.D.N.Y. Aug. 18, 1997) that involved a consent decree where a magistrate judge concluded that "withheld documents...principally or exclusively to assist in two related litigations" were privileged. 1997 U.S. Dist. LEXIS 12200, [WL] at *7. The Court notes that in Liberty Environmental, the documents at issue were submitted for the magistrate judge's in camera inspection, 1997 U.S. Dist. LEXIS 12200, [WL] at *1, and counsel submitted their affidavits to explain the specific circumstances of the privileged communications. 1997 U.S. Dist. LEXIS 12200, [WL] at *2.
Despite the Court's instructions to submit any privileged documents at issue for an [*290] in camera inspection and the Court's warnings about its prior reliance upon Searle, the Defendants' counsel ignored both. Moreover, unlike Liberty Environmental that the Defendants rely upon, the drafts of the documents at issue here were not filed with the Court nor were affidavits of counsel filed (under seal, if necessary) to provide the Court with the factual context for these documents. The Court's concern is that defense counsel are actually writing the policies and plans about the Defendants' EPSDT system and the facts for those policies. The semi-annual reports, particularly, are highly technical documents,. See e.g., Docket Entry No. 1012. With conclusory descriptions of the purportedly privileged documents and without in camera inspection or counsel's affidavits to provide specific factual context, the Court concludes that the Defendants have not carried their burden that the documents listed at pp.79-85, qualify for the protection of the attorney-client privilege.
b. The Work Product Privilege
This privilege protects the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party that is usually reflected in a document sought [*291] for production. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Under Hickman, this protection does not intend to bar discovery of facts, but rather "the work product of the lawyer" where disclosure of the documents reveals counsel's "mental impressions, personal beliefs," and reflections of what counsel believes to be important, such as in witness statements and documents acquired by counsel and notes on witness interviews conducted by counsel. 329 U.S. at 510-11.
In Toledo Edison v. G.A. Technologies. Inc., 847 F.2d 335 (6th Cir. 1988), the Sixth Circuit set forth the procedural framework for assessing the assertion of this privilege:
1. The party requesting discovery must first show that, as defined in Rule 26(b)(1), the materials requested are "relevant to the subject matter involved in the pending litigation" and not privileged. Because the application of subdivision (b)(3) is limited to "documents and tangible things otherwise discoverable under subdivision (b)(1)," the burden of making this showing rests on the party requesting the information.
2. If the party requesting discovery meets this burden and the court finds that the claimed material is relevant and not privileged, the burden [*292] shifts to the objecting party to show that the material was "prepared in anticipation of litigation or for trial" by or for that party or that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer or agent. This showing can be made in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories. This showing can be opposed or controverted in the same manner. The determination of this matter is the second sequential determination that must be made by the court.
3. If the objecting party meets its burden as indicated above and the court finds that the material was prepared in anticipation of litigation or for trial by one of the persons named in the rule, the burden shifts back to the requesting party to show that the requesting party (a) has substantial need of the materials in preparation of the party's case, and (b) that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In doing this, attention is directed at alternative

means of acquiring the information that are less intrusive [*293] to the lawyer's work and whether or not the information might have been furnished in other ways.
4. After the application of the shifting burdens, even if the court determines that the requesting party has substantial need of the materials in the preparation of its case and that the requesting party is not able, without undue hardship, to obtain the substantial equivalent of the materials by other means, the rule flatly states that the court is not to permit discovery of "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the party concerning the litigation." On this issue, the burden of showing that the nature of the materials are mental impressions, conclusions, opinions or legal theories of an attorney or representative, rests on the objecting party. The term "representative of the party" embraces the same persons as did the term "party's representative" set out earlier in the rule including "... consultants ... agent...."
5. The court may not order discovery of materials if discovery of such materials would violate Rule 26(b)(4) involving trial preparation, i.e., experts. Different standards and procedures are set forth because of the [*294] nature of experts and the different purposes for which they are employed. Experts are used by parties for different purposes just as information is prepared or acquired by parties for different purposes.
Id. at 339-40.
Applying these standards, the Court concludes that the Plaintiffs have demonstrated relevance because these drafts involve documents required by the Consent Decree. Given that the filings were required by the Consent Decree, the Court concludes that the Defendants have established the second factor. As to the third factor, because the Court has found that the Defendants have not met their burden of proof on the attorney client privilege for most of these documents, the Court concludes that alternate avenues exist to obtain the substantial equivalent of the information in these related documents. Yet again, the Defendants did not provide any documents for which the work product privilege is asserted, as directed by the Court and as done in Liberty Environmental that is relied upon by the Defendants. But for Toledo Edison, the Court would conclude that the Defendants have not met their burden to establish the work product privilege for these documents.
c. The Joint Defense [*295] Privilege
During the June 2007 hearings, the Defendants' counsel and some MCCs' counsel objected to questions about their communications on the ESI discovery matters based upon the joint defense privilege. The joint defense privilege is an extension of the attorney-client privilege and protects as confidential communications among defendants and their counsel, where defendants are "part of an on-going and joint effort to set up a common defense strategy." Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3d Cir. 1992). Because the privilege may apply outside the context of actual litigation, the "joint defense" privilege is sometimes referred to, in such instances, as the "common interest" privilege. In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)).
The burden to establish the privilege rests with the Defendants. United States v. Moss, 9 F.3d 543, 550 (6th Cir. 1993). The Defendants must prove an agreement among its members to share information arising out of a common legal interest in litigation. Id. An oral joint defense agreement may be valid, In re Grand Jury Subpoena, A. Nameless Lawyer, 274 F.3d 563, 569-70 (1st Cir. 2001), [*296] and person need not be a named party to join the agreement. See Russell v. General Electric, 149 F.R.D. 578 (N.D. Ill. 1993); U.S. v. LeCroy, 348 F.Supp.2d 375, 381 (E.D. Pa. 2004).
This privilege extends only to the exchanges of information among persons with the shared interest, In re Santa Fe Intern. Corp., 272 F.3d 705, 712 (5th Cir. 2001), In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990); United States v. Duke Energy Corp., 214 F.R.D. 383, 388 (M.D.N.C.2003), but usually applies to protect documents. See Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 152 F.R.D. 132, 140 (N.D. Ill. 1993) citing United States v. McPartlin, 595 F.2d 1321, 1336 (7th Cir. 1979). Any participant in the agreement, however, remains free to disclose his own communications. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997). The jointdefense privilege shields some communications between co-defendants made outside of their counsel's presence, but only if the communications were pursuant to specific instructions of their counsel. United States v. Mikhel, 199 Fed. Appx. 627, 628 (9th Cir. 2006).

For this privilege, parties must have a common legal interest in the [*297] subject matter of a communication, Allendale Mut. Ins., 152 F.R.D. at 140, and the communication must be to further the joint agreement. United States v. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997). The common interest must be identical and not solely commercial. Allendale Mut. Ins., 152 F.R.D. at 140. See also In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407, 416-17 (N.D. Ill. 2006).
The Court will not add unnecessarily to this already lengthy memorandum and adopts and incorporates its rulings at the June 2007 hearing that the Defendants' and MCCs filings of their communications with the Court on substantive matters, operate to waive this privilege as to ESI discovery issues.
d. Deliberative Process Privilege
Defendants next assert the deliberative-process privilege to prevent disclosure of their planning documents. The Sixth Circuit has recognized this privilege to bar disclosure of executive communications to encourage frank deliberations on governmental policy and to protect federal officials from ridicule. Schnell v. United States Dept. of HHS, 843 F.2d 933, 939 (6th Cir. 1988). The Defendants do not cite any legal authorities applying this federal law privilege to a state official. [*298] In any event, despite their recent protestations in this action, the Defendants concede unequivocally that they waived this privilege in Rosen, a related action. (Docket Entry No. 720, Defendants' Response to Plaintiffs' Motion to Compel at p. 3) (citing the affidavit of counsel). That waiver applies in this related action. Thus, any extended analysis of this privilege is unnecessary.
e. State Statutory Privileges
The Defendants next assert a privilege for information sought from the Department of Mental Health and Developmental Disabilities (DMHDD), the Department of Children's Services (DCS) and the TNKids program (Docket Entry No. 907, Defendants' Response at pp. 31-39). The Defendants contend that these state statutes (that were not asserted in the Defendants' initial response to this motion to compel nor in their privilege log) create substantial and important state interests against disclosure of this information and therefore, such information should qualify as a cognizable privilege under Rule 501 and Fed. R Civ P. 26(b) to bar discovery of this information.
The DMHDD has an Incident Reporting System that the Defendants contend falls under Tenn.Code Ann. ß 63-6219 (b) that prohibits [*299] the disclosure of information contained in the DMHDD Incident Reporting System. This statute was enacted to "encourage committees made up of Tennessee's licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers' professional conduct, competence, and ability to practice." Id. at (b)(1); see Docket Entry No. 907, Defendants' Response at p. 32. The Defendants assert that this Incident Reporting System is available to quality performance improvement committees and related safety committees of the State's five RMHIs. These committees perform the peer-review functions of monitoring and evaluating the quality of patient care and improving safety by reducing the risk of system or process failures. These Committees report to the quality committee of the DMHDD and are designed to serve as "medical review committee[s]" or "peer review committee[s]," as defined in the Peer Review Law. 44 For such records, Tennessee law deems "confidentiality is essential." Tenn. Code Ann. ß 63-6219(b)(1). Defendants also cite Tenn. Code Ann.ß 63-6-219(e) that bars disclosure of peer-review reports:
All information, interviews, incident or other reports, statements, memoranda [*300] or other data furnished to any committee as defined in this section, and any findings, conclusions or recommendations resulting from the proceedings of such committee are declared to be privileged. All such information, in any form whatsoever, so furnished to, or generated by, a medical peer review committee, shall be privileged. The records and proceedings of any such committees are confidential and shall be used by such committee, and the members thereof only in the exercise of the proper functions of the committee, and shall not be public records nor be available for court subpoena or for discovery proceedings.
Tenn. Code Ann. ß 63-6-219(e) (emphasis added). The Tennessee Supreme Court deemed the broad language of the Peer Review Law to encompass "any and all matters related to the peer review process." Stratienko ChattanoogaHamilton County Hosp. Auth., 226 S.W.3d 280, 285-86 (Tenn. 2007).
44 The statutory definition of "medical review committee" and "peer review committee" "means any committee of a state or local professional association or society, including...a committee of any licensed health care in-

stitution...the function of which, or one (1) of the functions of which is to evaluate [*301] and improve the quality of health care rendered by providers of health care services..." Tenn. Code Ann. ß 63-6-219(c).
As to DCS's reports, the Defendants cite Tenn. Code Ann. ßß 37-1-409(a)(2) and 37-1-615(b) that bar disclosure of the identity of person(s) who reports child abuse and related disclosures. (Docket Entry No. 907 at p. 36): DCS issued administrative rules under Tenn. Code Ann. ßß 37-1-409(e)(1) and 37-1-612(f)(1). See Rules of the Tennessee Department of Children's Services, Child Protective Services, Chapter 0250-7-9, a violation of section 37-1-409 is a Class B misdemeanor. Tenn Code Ann. ß 37-1-409(g). A violation of the confidentiality requirements of section 37-1-612 is a Class A misdemeanor. Tenn. Code Ann. ß 37-1-615(b). Defendants note that federal funds for child abuse prevention and treatment are contingent upon complying with the confidentiality requirements of the Child Abuse Prevention and Treatment Act ("CAPTA"), 42 U.S.C. ß 5106a(b)(2)(A). (Docket Entry No. 907 at p. 36). Due to the confidential nature of Child Protective Services information, case recordings are inaccessible to DCS employees, except those employees granted security clearance.
From June [*302] 1, 2004 through April 30, 2007, there were 29,843 children in DCS custody; 1,110 of those could reasonably be excluded as non John B. class members because they were placed in detention or a Youth Development Center (YDC) throughout DCS custody. From May 1, 2006 through April 30, 2007, there were 16,026 children entering DCS custody with 668 placed in a YDC or detention and the latter are not John B. class members. Such placement renders them ineligible for TennCare.
Defendants contend that information about these non-class members can include medical, mental health, and substance abuse information that is protected from disclosure by state and federal privacy laws. (Docket Entry No. 907 at p. 38) (citing 45 C.F.R. Subtitle A, Subchapter C, Part 164, Subpart E; 42 C.F.R. Chapter I, Subchapter A, Part 2; Title 33 of Tennessee Code). Signed authorizations for release of information, including a HIPAA release, would be required from each individual non-class member. DCS is expressly required by statute to follow state and federal confidentiality laws. Tenn. Code Ann. ß 37-5-107(b), (d).
The third database is the "TNKids" database within DCS. The TNKids database was originally developed [*303] for DCS as its State Automated Child Welfare Information System (SACWIS). This database includes case management information about children in DCS custody, including both child-welfare and juvenile justice cases, as well as children at risk in DCS custody and adopted through DCS. Case recordings can refer to court proceedings involving neglected, unruly, or delinquent children and termination of parental rights, that is confidential under Tenn. Code Ann. ßß 37-5-107, 37-1-409, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 and the Adoption Assistance and Child Welfare Act (AACWA), codified at 42 U.S.C. ß 671(a)(8). As stated earlier, the State's federal funding is contingent upon its compliance with the confidentiality requirements of AACWA.
Dr. Ray, Plaintiffs' statistical analyst, requested information from these databases, including case management records for health services for the children. The "case management" records are narrative recordings and written reports with notes of child welfare and juvenile justice case managers. These narratives are not indexed by content and are akin to a journal entry about a child in DCS custody or "biography" of the child in DCS's custody. [*304] Dr. Ray utilizes this data to cross-reference with statistical data and thereby validate the statistical studies.
For the Defendants' assertion of state law privileges, Rule 501 of the Federal Rules of Evidence provides as follows:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Fed. R. Civ. P. 26(b)(1) also provides that "privileged" information is not discoverable absent order of the court.
Federal courts are not required to recognize state law privileges when deciding cases arising under federal law, but the presence of a state law privilege must be considered, particularly where a significant number of states recognize such a privilege. Jaffee v. Redmond, 518 U.S. 1, 12-13, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996) (state-created psychologist-patient privilege recognized in 50 states). In Freed v. Grand Court Lifestyles, Inc., 100 F. Supp. 2d 610 (1998), [*305] the district court summarized the governing principles on any privilege based upon state law:

[E]videntiary privileges are strongly disfavored in federal practice and must be narrowly drawn because they "contravene the fundamental principle that 'the public ... has a right to every man's evidence.'" University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); see also Jaffee, 518 U.S. at 9. ("When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule."); In re Zuniga, 714 F.2d 632, 638 (6th Cir. 1983) (quoting United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and recognizing that" 'exceptions to the demand for every man's evidence are not lightly created nor expansively construed for they are in derogation of the search for the truth'"). At the same time, comity favors recognizing a state law privilege, as a component of federal common law, to the extent [*306] that doing so will not impose a substantial cost on federal policies. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir.1981); Farley v. Farley, 952 F.Supp. 1232, 1237 (M.D. Tenn. 1997) ("Principles of federalism and comity dictate that, should a federal Court depart from a state law privilege in concluding that discovery may proceed, some deference (and in certain cases a great deal of deference) must be given to the state interests underlying the privilege.").
Id. at 618.
The Defendants rely upon Farley v. Farley, 952 F.Supp. 1232 (M.D. Tenn. 1997), wherein the Honorable Thomas A. Wiseman, Jr. deemed Tenn. Code Ann ßß 37-1-409 and 37-1-612 to be a cognizable privilege under Rule 501:
By the enactment of these statutes, the Tennessee General Assembly has asserted in no uncertain terms that the reporting, systematic examination and prevention of child abuse is of fundamental public importance.
* * *
This Court has little difficulty in concluding that T.C.A. ßß 37-1-409 and 37-1-612 establish an evidentiary privilege that is entitled to deference under the principles of federalism and comity that are an implicit component of Rule 501 [of the Federal Rules of Evidence]. [*307] The confidentiality provisions at issue in this case have been construed by the Tennessee courts to block discovery in civil actions and are clearly designed to protect the anonymity of reporters, victims and perpetrators of child abuse. Taken together, these elements fulfill the functional definition of an evidentiary privilege set forth above.
952 F. Supp. at 1238-39. Notwithstanding this conclusion, Judge Wiseman ordered production of the reports with redactions: "The Court finds that redaction of identifying information is a proper and sufficient means of furthering the public policy of Tennessee by protecting the anonymity of those who report child abuse." Id. at 1240.
As pertinent here, Judge Wiseman explained that his finding of privilege was not intended to shield state regulators who are responsible for children's welfare and may be liable to them.
[The statutes'] primary purpose is the protection of the privacy of those who are not likely to be parties to a federal civil rights suit. . . . the confidentiality of official records is generally guaranteed by statute to protect those who are regulated by a state agency rather than the agency itself. Lewis v. Radcliff Materials, Inc., 74 F.R.D. 102, 104 (E.D.La. 1977). [*308] Accordingly, the agency should not be permitted to use a privilege designed to ensure the welfare of those it governs when it is in possession of relevant evidence and is the target of a lawsuit. Id.
* * *
T.C.A. ßß 37-1-409 and 37-1-612. . . . are clearly designed to protect the anonymity of reporters, victims and perpetrators of child abuse. Taken together, these elements fulfill the functional definition of an evidentiary privilege set forth above.
* * *

Without full and fair disclosure of relevant proof, the public is likely to lose confidence in the administration of justice by the federal courts. It is therefore of paramount importance that litigants be accorded the authority to seek out relevant evidence that they have been granted by the federal rules.
* * *
The confidentiality granted child abuse records under Tennessee law may not be invoked as a shield with which to block scrutiny of governmental practices. The federal courts have repeatedly held that the interest in ensuring governmental compliance with federally-guaranteed civil rights is paramount to the state interest in confidentiality. See e.g., ACLU of Mississippi, Inc. v. Finch, 638 F.2d at 1336, 1343-44 (5th Cir. 1981) [*309] ("The purpose of enacting ß 1983 was to ensure an independent federal forum for adjudication of alleged constitutional violations by state officials; ... there is a 'special danger' in permitting state governments to define the scope of their own privilege when the misconduct of their agents is alleged.").
Id. at 1238, 1239, 1240 (emphasis added). Accord Puricelli v. Houston, 2000 U.S. Dist. LEXIS 7976, 2000 WL 760522, at *14 (E.D. Pa. 2000) (granting Plaintiffs' access to redacted versions of child abuse investigations contrary to similar Pennsylvania statute). Farley clearly does not support the Defendants' contention here, as the Defendants' liability to the class is plainly at issue here.
In Seales v. Macomb County, 226 F.R.D. 572 (E.D. Mich. 2005), the District Court rejected a similar Michigan law on juvenile records as a cognizable federal privilege.
"Merely asserting that a state statute declares that the records in question are confidential does not make out a sufficient claim that the records are privileged within the meaning of Fed.R.Civ.P. 26(b)(1) and Fed R. Evid. 501." Martin v. Lamb, 122 F.R.D. 143, 146 (W.D.N.Y.1988). See also Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1205 (9th Cir.1975) ("The records [*310] are confidential but not privileged"). Given the absence of any express statutory language or judicial interpretation creating an evidentiary privilege, this Court declines to read one into the above confidentiality statutes.
* * *
Defendants, somewhat ironically, appear to invoke the state laws designed to protect juveniles, to protect themselves from possible liability as a result of their alleged mistreatment of wards. "'[T]here is a "special danger" in permitting state governments to define the scope of their own privilege when the misconduct of their agents is alleged.'" Pearson v. Miller, 211 F.3d 57,68 (3d Cir.2000), quoting ACLU v. Finch, 638 F.2d 1336, 1344 (5th Cir.1981). See also Longenbach v. McGonigle, 750 F.Supp. 178, 180-81 (E.D.Pa.1990) ("Nor does it make any sense to allow the state, under whose color of authority officers have allegedly violated rights, to limit unilaterally the availability of evidence.")
Id. at 576, 577.
For their assertions for an absolute privilege for the peer review information, the Defendants rely upon decisions where the parties who sought the information about the peer review process intended to use the identity of the person who provided the [*311] information to prove their claims. Doe v. UNUM Life Ins. Co. of Am., 891 F. Supp. 607 (N.D. Ga. 1995) (insurance company sought information about doctor's drug problem to deny his coverage claim for benefits) and Holland v. Muscatine Gen. Hosp., 971 F.Supp. 385 (S.D. Iowa 1997) (plaintiff sought peer review records to prove her hostile work environment claim).
The Court adopts the rationale of Farley and the other similar decisions to conclude that in this action, particularly with the Court's prior findings of the Defendants' repeated violations of federal law, these Defendants cannot rely upon these state statutes as bars to discovery of this ESI data from DMHDD or the DCS's incident reporting data or the TNKids database. All of this data contains highly relevant information on the Defendants' violation of federal law and Plaintiffs' federal constitutional rights. An appropriate protective order for discovery and trial can avoid disclosures of the identities of the children, doctors and other protected persons.

As to the state criminal sanctions for disclosure of certain state data, the fact that another sovereign's laws have criminal sanctions to block disclosure of certain information [*312] does not preclude a federal court from ordering disclosure of that information under federal discovery rules. United States v. First National Bank of Chicago, 699 F.2d 341, 345 (7th Cir. 1983) ("The fact that foreign law may subject a person to criminal sanctions in the foreign country if he produces certain information does not automatically bar a domestic court from compelling production."); In re Westinghouse Electric Corp. Uranium Contract Litigation, 563 F.2d 992, 997 (10th Cir. 1977) ("In our view Societe holds that, though a local court has the power to order a party to produce foreign documents despite the fact that such production may subject the party to criminal sanctions in the foreign country...")(interpreting Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958)). These courts apply a balancing approach.
This Courts applies these authorities to the State's laws, as an independent sovereign. Here, the Defendants' repeated violations of federal law, as found by Judge Nixon, present compelling circumstances to justify disclosure. The Defendants have already produced the information covered by some of these laws to others, [*313] including filing of some of this information in another action in this district without any threat of state prosecution. Any disclosure pursuant to a Court order should render unrealistic any state prosecution.
As to the HIPPA statutes and regulations, it is noteworthy that on April 24, 2001, Judge Knowles denied the Defendants' motion for a protective order, citing HIPPA and its regulations and expressly ruled that "to the extent that [the Defendants' motion] is based upon [42 U.S.C.] ß 290dd-2, [it] is hereby DENIED" because "[t]he information sought on behalf of the class members cannot be considered 'confidential' with regard to the class members themselves (or their counsel)." (Docket Entry No. 103, Order at pp. 5-6). The Court adopts that ruling as the law of the case and applies that ruling to 42 U.S.C. ß 671(a)(8). Moreover, 42 U.S.C. ß 5106a(b)(2)(A)(V) permits disclosures of children's records to a "court, upon a finding that information in the record is necessary for the determination of an issue before the court." Federal law does not bar the ESI production ordered by the Court. To the extent some children are not class members, those individuals are not numerous and those [*314] childrens' and others' names shall be redacted by the Defendants as in Farley.
8. Defendants' Failures to Answer Discovery Requests and to Comply with the January 14th Order
The next controversies involve: (1) the Defendants' failures to obtain all designated custodians' answers to the Plaintiffs' requests for admissions ("RFA"), as authorized by the Court on the issue of destruction of evidence, including the Defendants' refusal to have the Governor personally sign his response to his RFA; (2) the Defendants' misleading answer to Plaintiffs' Interrogatory 22; and (3) the Defendants' failure to file their key custodians' certifications required by the January 14th Order to certify that ESI had not been removed from the key custodians' computers. Issues 1 and 3 are related and will be addressed together.
At the December 20, 2006 discovery hearing, Plaintiffs' counsel raised the issue about the loss or destruction of relevant evidence and the inadequacies in the Defendants' responses to the discovery requests on this issue. (Docket Entry No. 786, Transcript at pp. 31-36). After reviewing the requests, the Court directed Plaintiffs' counsel to simplify the wording of the requests and send [*315] the revised requests to all of the Defendants' key custodians as designated by the Defendants. Id. at pp. 38-39. The Court denied the Plaintiffs' motion to compel on that point, but without prejudice to renew.
Plaintiffs' revised RFAs asked each custodian whether the search of his or her files had included all private email accounts and computers, including removable drives and storage, where the custodian had stored potentially responsive ESI. The RFAs sought assurances of the adequacy and completeness of the State's document preservation and production. In particular, RFA No. 1 reads as follows: "Other than e-mail that was deleted or destroyed pursuant to the State's routine document retention policy, are you aware of any paper documents or electronic records, stored in any location, that were requested by the plaintiffs, and that were destroyed, deleted, thrown away, or lost for any reason? (This includes e-mails that should have been archived but weren't, or that were archived and then deleted)." (Docket Entry No. 799-2 at p. 1). RFA No. 2 asked the custodians:
When you searched for information and documents requested by the plaintiffs, did you search all paper or electronic records [*316] in your possession or control (including both state and private email accounts and computers, including removable drives or storage) that potentially contained requested information or documents, and did you provide to the State's lawyers all requested information or documents that you found?

Id. (emphasis added). If the respondent answered "yes" to these RFAs, Plaintiffs' Interrogatory Nos. 1 and 2 were propounded for follow-up discovery.
Aside from Plaintiffs' RFAs, on January 14, 2007, this Court entered an Order based upon Plaintiffs' computer expert's declaration on the need to be assured that ESI had not been removed from the computers subject to the ESI search ordered by the Court. To do so, Plaintiffs' expert recommended certifications of nonremoval by each custodian. Given that removal of ESI could clearly compromise the ESI production ordered by the Court, the January 14th Order directed that "[t]he defendants shall file certifications of the key custodians as to whether any material has been removed." (Docket Entry No. 789, Order at p. 3) (emphasis added). The Court's Order cited the pertinent paragraph from the Plaintiffs' expert's declaration on this subject. Id.
The Defendants [*317] did not seek relief from the January 14th Order. Defendants insist that their custodians answers to Plaintiffs' RFAs are the same as any "certifications" required by the January 14th Order. See, e.g., (Docket Entry No. 828, Exhibit 5, February 27, 2007 Letter of Nicole Jo Moss at p.2) (noting that "these custodians have already been asked to sign and did in fact submit RFA responses which covered this issue") (emphasis added). The January 14th Order expressly referenced Thomas Tigh's declaration (Docket Entry No. 785-2), about the need for assurances that electronic documents had not been removed from the key custodians' computers. Tigh's specific suggestion was: "The question should ask the same key custodians if they have moved material from their local machine or the network to any nonattached media, such as CDs or USB devices ... The answer to this question, disclosed with the answers to those in the proposed Order, will provide the information required to determine if material was moved from the network . . .". Id.
Clearly, the January 14th Order's concern was whether ESI material was removed from Defendants' network's computers, such as a compact disks or DVDs, not to the destruction [*318] or loss of ESI. Plaintiffs' RFAs asked each custodian whether, he or she had "search[ed] all paper and electronic records in your possession or control (including both state and private email accounts and computers, including removable drives or storage) that potentially contained requested information or documents." See Docket Entry No. 799-2 (Request for Admission No. 2) (emphasis added). A gap remains between the RFAs and the January 14th Order because a search by a custodian of a removable drive does not answer whether any ESI was actually removed. Accordingly, the Defendants shall be compelled to have their 160 designated custodians to file certifications that ESI has not been removed from their computers by them or anyone else.
Plaintiffs also note that Defense counsel could not attest to the accuracy or completeness of all answers to their RFAs. (Docket Entry No. 799). At a February 13th meeting of the parties' counsel, Defense counsel stated that the Defendants' custodians' answers had been filed without personally asking the custodians the questions. (Docket Entry No. 828, Exhibit 4 thereto, Bonnyman Letter Dated 02/23/07 at pp. 3-4 and Exhibit 5 thereto, Moss Letter Dated [*319] 02/27/07 at p. 2). The Defendants concede that they did not ask the key custodians who are former employees because defense counsel "has no authority or control over them to require them to submit a response". (Docket Entry No. 907 at 61-62).
The Court agrees with the Plaintiffs that good faith required the Defendants at least to ask those former key individuals, as directed by the Court. The question of authority or control would only arise if the former employees refused to answer. Courts have held that former employees and agents of a party remain subject to discovery. See e.g., Alcan Intern. Ltd. v. S.A. Day Mfg. Co. Inc., 176 F.R.D. 75, 79 (W.D.N.Y. 1996) (retired employee); Boston Diagnostic Dev. Corp. Inc. v. Kollsman Mfg. Co. Div.of Sequa Corp., 123 F.R.D. 415, 416 (D. Mass. 1989) (former agent). Absent a showing that a former employee refused to answer these RFAs, the Defendants shall request their answers and undertake their best efforts to secure the former custodians personal records or notify Plaintiffs' counsel with the former employees' addresses and telephone numbers. The latter information will be subject to the protective order.
Next, the Defendants identified the Governor [*320] as a "key custodian" and Plaintiffs assert that the Governor has had a crucial role in the formulation and implementation of policies on compliance with the Consent Decree. Citing the Governor's counsel's affidavit, the Defendants responded that Plaintiffs' insistence upon the Governor's personal signature to the RFAs "groundlessly impugns the integrity and credibility of the State's and the Governor's legal counsel". (Docket Entry No. 907 at p. 62). In an October 27, 2006 declaration, Nicole Jo Moss, a defense counsel asserted that she personally spoke with the Governor and other senior officials
... to ensure that they had searched their files and produced all responsive documents and to ensure that they had been archiving (i.e. preserving) responsive documents since the last production in 2004. My

conversations reconfirmed what Plaintiffs had already been told, that these individuals saved and produced all responsive documents either as part of the production last May or the prior production in the Rosen matter. . . . each confirmed that they have not been actively involved in matters directly related to EPSDT; nevertheless, they have been archiving their responsive TennCare documents, [*321] but they do not recall having received any documents related specifically to John B. or EPSDT.
(Docket Entry No. 717 at P 5) (emphasis added). Plaintiffs cite the bold portion of Moss's declaration to contend that upon closer examination, Moss's declaration never states that these officials actually searched all of their relevant files for documents responsive to discovery requests, only that they "do not recall" having "received" any responsive information. Plaintiffs deem the omission significant on whether these officials sent any documents related specifically to John B. or EPSDT. The ambiguity gives rise to Plaintiffs' concerns that are legitimate.
The discovery standard is not whether a person has been actively involved, but rather whether the person has knowledge of discoverable matters or at this point, whether the person's knowledge could lead to the discovery of relevant information. The Defendants do not cite any legal authority to exclude the Governor from discovery and such exclusion runs counter to the Supreme Court's principle that "there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, [*322] being so many derogations from a positive general rule." Jaffee, 518 U.S. at 9. The Defendants' counsel listed the Governor as a key custodian and have disclosed his statements albeit through his counsel. In any event, as a matter of comity, the Court will give the Defendants the option of the Governor's personal signature or an inspection of the Governor's computer by the Plaintiffs' computer expert or his designated expert, to assess if any removal of ESI has occurred.
The next controversy is Plaintiffs' contention that the Defendants deliberately provided a misleading response to Interrogatory No. 22. "INTERROGATORY NO. 22 Wendy this is a tricky one since the MCC's would have files, but we have answered that this is unanswerable." (Plaintiffs' Exhibit 12d at p. 16). The disputed portion of Defendants' actual response to Interrogatory No. 22 is as follows: "because the kinds of services identified are services for which FFP is not available and/or are never medically necessary for children, obtaining claims information regarding possible inappropriate payments by an MCC for these services is impossible." Id. at 108-09.
Neither "Wendy" nor the person communicating with her testified [*323] about this statement to provide some context to understand its meaning. The Sixth Circuit has stated: "'[E]vasive or incomplete answers to proper interrogatories impede discovery.' Badalamenti v. Dunham's Inc., 118 F.R.D.437, 439 (E.D. Mich. 1987) (citing Bell v. Automobile Club of Michigan, 80 F.R.D. 228, 232 (E.D. Mich. 1978) (misleading interrogatory answers tantamount to failure to answer interrogatories))." See also Jackson v. Nissan Motor Corp. in USA, 888 F.2d 1391, 1989 WL 128639, No. 886132 at *2 (6th Cir. Oct. 30, 1989). The Defendants did call Tina Brill, an MCC representative who testified that it might have been possible to run the searches referenced by Plaintiffs' interrogatory by stating that "it depends if they came in as a claim and how they were coded and so forth. We certainly have all of our claims data. So to the extent they are specific enough to be able to responsively show that, then, yes." (Docket Entry No. 988, June 25, 2007 Transcript at p. 31). In response to Plaintiffs' counsel's question, Brill also testified "[i]f we had anything responsive, we were told to provide it." Id. at 33. The Court found Brill difficult to understand and the Defendants' failure [*324] to call "Wendy" leads the Court to consider this response incomplete.
At the end of the expert's discussions at the April 11, 2007 conference, the Court requested the Defendants' expert and the Plaintiffs' expert to summarize any agreements that had been reached (Docket Entry No. 872, Transcript at pp. 211-228). After those summaries, the Court instructed Antony, the Defendants' computer expert, to prepare a written summary of the experts' agreement and to distribute that summary to all participants for comment and then file the summary agreement with the Court. This filing was to reflect a "summary" of the agreements at the April 11th conference. Antony, however, distributed the transcript of the conference to experts who attended the conference.
The Defendants' April 26, 2007 Notice of Filing (Docket Entry No. 875) announced meeting dates, but was not the written agreement that the Court requested at the end of the April 11th conference. When the Court entered an Order requiring the agreement to be filed, the Defendants disputed the existence of any such Court directive. After another Order, citing the pages of the transcript of the April 11th conference, Docket Entry No. 982, April [*325] 11, 2007 Transcript at p. 228, lines 10-17, the Defendants then responded that their prior Notice was that agreement. The notice, however, reports on the follow-up meeting of the parties' experts and the MCCs' technical and computer experts.

(Docket Entry No. 875 at pp. 2, 3-4). Antony testified that he thought the information provided in the April 26, 2007 Notice of Filing satisfied the Court's instructions.
The Court concludes that the April 26th Notice does not comply with the Court's directive at the conclusion of the April 11th conference. The significant omission are the MCCs' implementation of a litigation hold and the MCCs' agreement on the request of Mr. Elkins of Memphis Managed Care that the list of search terms and key custodians become finalized after the Plaintiffs made revisions and suggestions. The Defendants' Notice left the MCCs without knowing the 'final' list to be used. The effect of the Notice is to ignore or set aside significant parts of the experts' agreements at the April 11th conference, and those omissions were by defense counsel, who prepared the Notice, not Antony.
III. REMEDIES
Plaintiffs' renewed motion to compel was filed under Rule 37(a). (Docket Entry [*326] No. 826, Renewed Motion to Compel at p. 1). Fed. R. Civ. P. 37(a)(4) provides, in pertinent part:
(4) Expenses and Sanctions.
(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
* * *
(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26 (c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
The Court has granted the Plaintiffs' motion [*327] with some modifications for some MCCs, but without prejudice to renew their original ESI requests as to some MCCs.
Thus, the Court concludes that Plaintiffs have prevailed on their renewed motion to compel and consideration of an award to Plaintiffs for their attorney fees and costs on this motion, as well as the production costs and attorney fees of the MCCs, is appropriate. The Defendants are given eleven (11) days from the date of entry of the Order to file their position on whether the Court should award Plaintiffs their attorney fees and costs for their work on this motion as well as the production costs and attorney fees of the MCCs. These costs would be imposed for the Defendants' breaches of their duty to preserve responsive information of its agencies, officers, employees and its contractors with responsibilities under the Consent Decree in this action.
The Defendants insist that any remedies should not include sanctions because Plaintiffs' renewed motion to compel was filed under Rule 37(a). Defendants assert that without notice and for the "first time" during closing argument at the June 2007 hearing, Plaintiffs' counsel engaged in a "classic bait and switch" by asking for [*328] sanctions for the Defendants' spoliation of responsive information. (Docket Entry No. 997, Defendants' Supplemental Memorandum at pp. 1-2). Actually, in their response to Plaintiffs' renewed motion to compel prior to the June 2007 hearings, Defendants contended that: "In short, Plaintiffs urge that the Defendants be punished now for the alleged spoliation, by adverse rulings on five discovery issues, while postponing Plaintiffs' proof of the alleged spoliation until later." (Docket Entry No. 907-1 at pp. 3-4) (emphasis in the original). By their own brief, the Defendants were well aware of this contention prior to the June 2007 hearing and now complain when Plaintiffs met their evidentiary challenge.
The Court notes that the Defendants again ask the Court to sanction Plaintiffs' counsel, upon its own motion, under Rule 11 for the Plaintiffs' counsel's assertions about the Defendants' response to Interrogatory 22 and Plaintiffs' counsel's assertions about spoliation of evidence. From the Court's perspective, Plaintiffs' counsel's assertions and argument are well within the proof and the realm of advocacy. With the Defendants' raising this issue, if the Court were to sanction upon its [*329] own motion, the Court would consider sanctions upon defense counsel, who are responsible for

some questionable assertions and argument. As noted earlier, the Court's authority to sanction is not limited to Rule 37(b)(2), supra at p.114, n. 31. Aside from the Defendants' failure to preserve evidence, the Court will discuss certain matters at a conference with lead counsel for the parties and defense firms and the Attorney General of Tennessee.
The Court has shared Judge Nixon's goal of attempting to focus this controversy to ensure that the class gets the benefits owed to them under the Consent Decree that the Defendants agreed to provide and that federal law requires. With these most recent discovery disputes, the Court has come to share Judge Nixon's view of the lead defense counsel, Cooper and Kirk, and their litigation practices on an earlier discovery motion:
[T]he Court has attempted to steer this case away from the needless and acrimonious litigation and focused on fashioning a solution that would increase compliance with the Consent Decree and federal EPSDT requirements. This constructive approach has been fueled by one goal: to provide the underserved children of Tennessee the [*330] entire spectrum of medical benefits to which they are entitled under federal law.
The State's pending Discovery Motion attempts to push this goal to the wayside and refocus the case on wholly unnecessary, time-consuming, costly, and highly divisive litigation. I refuse to condone a path that will waste resources and time in the face of the urgent need to improve healthcare for the children of Tennessee.
(Docket Entry No. 584, Memorandum and Order at p. 4). The Defendants' responses to Plaintiffs' motions to compel raise the same concerns with this member of the Court.
In any event, the Court reserves the exercise of its authority to sanction until after the actual ESI production and complete responses to the January 14th Order as well as a conference with counsel for the parties.
For the above stated reasons, the Plaintiffs' renewed motion to compel should be granted.
An appropriate Order is entered herewith.
ENTERED this the day of October, 2007
/s/ William J. Haynes, JR.
WILLIAM J. HAYNES, JR.
Unites States District Judge
ORDER
In accordance with the Memorandum filed herewith, the Plaintiffs' renewed motion to compel (Docket Entry No. 826) is GRANTED except as modified by the Court for [*331] certain managed care contractors.
It is ORDERED that the Defendants shall provide complete responses to the Plaintiffs' discovery requests for ESI with the agreed search terms, the designated key custodians and for the time period of June 1, 2004 to the present within one hundred (100) days from the date of entry of this Order. The ESI required under this Order and responsive to Plaintiffs' discovery requests shall include all metadata as well as all deleted information on any computer of any of the Defendants' designated key custodians.
Given the need for hash coding of the ESI, Brent Antony's limited formal computer training and the Defendants' position about possible alteration of ESI, the Plaintiff's expert, Thomas Tigh or his designee shall be present for the Defendants' ESI production and shall provide such other services to the Defendants as are necessary to produce the metadata, as ordered by the Court. Mr. Tigh or his designee shall inspect the Defendants' computer system to assess whether any changes have been made to hinder the ESI production required by the Consent Decree or previously Order by the Court.
Given the intensity and sensitivity of these discovery disputes, the [*332] Court is considering the appointment of a monitor who has the Court's confidence and is likely to be acceptable to all parties to serve as monitor to oversee the Defendants' and MCCs' ESI production. Given the extensive delays in discovery, within three (3) days after entry of this Order, any party may submit the names of persons for this appointment. The parties have six (6) days from the date of

entry of this Order to file any objections to the names submitted. As it were with the other monitors, the Monitor will communicate with the Court only in writing and will have the authority to hire a computer expert. The Monitor and any expert hired by the Monitor shall be paid by the Defendants whose conduct has caused these discovery disputes and this Order.
It is ORDERED that within eleven (11) days from the date of entry of this Order, the Defendants shall provide a complete and accurate response to Interrogatory 22 by the person whose name is mentioned in Plaintiffs' Exhibit 12. It is further ORDERED that within thirty (30) days from the date of entry of this Order, the Defendants shall provide the personal responses of each of the current key custodians and shall use their best efforts [*333] to secure responses from former key custodians to the Plaintiffs' last set of requests for admissions, as directed in the accompanying Memorandum.
It is further ORDERED that with fifteen (15) days of the entry of this Order, the Defendants shall comply with the January 14, 2007 Order requiring the Defendants' current and former key custodians to file certifications on whether any ESI has been removed from any state computer or personal computer provided by the State to the Defendants' designated current and former key custodians.
Effective upon entry of this Order, the Defendants shall implement the March 17, 2004 Memorandum and shall report to the Court instanter the names of the custodians for each working group in their agencies and the names of the lawyers in the State Attorney General's Office who, on a continuing basis, shall receive and review all ESI relevant to the Consent Decree in this action from any state agency or person who has any supervisory authority within or over the agencies that are charged with implementation of the services, policies, plans and reports required under the Consent Decree in this action.
It is ORDERED that within sixty (60) days from the date of entry [*334] of this Order, those managed care contractors ("MCC" or "MCCs") that have not agreed with the Plaintiffs on ESI discovery, shall respond to Plaintiffs' ESI discovery requests, as modified by the Court in the accompanying Memorandum. These MCCs' modified ESI production shall be with the search terms: "John B.", "ESPTD", "TennCare," and the names of any person from the MCC, who communicates with TennCare or state government and the names of those persons in state government with whom the MCC has had or has communications on matters under the Consent Decree in this action. These search terms shall be used to search any computer of the employee(s), agent(s) or officer(s)s of the individual MCC who respond to the Defendants or their employees or agents about any compliance or complaint(s) and who are responsible for preparation of compliance reports for ESPTD services . If the Court's modifications of the ESI production for select managed care contractors results in a seriously inadequate production, Plaintiffs may renew their motion to compel for the original search terms for the electronically stored information ("ESI") production from these MCCs. The other MCCs shall provide their ESI [*335] discovery to the Plaintiffs within 100 days of the entry of this Order and pursuant to their agreements with the Plaintiffs as to all other terms for their ESI search.
Within eleven (11) days of the entry of this Order, the Defendants shall respond why the Defendants should not be required to pay the production costs of the MCCs under this Order or any agreement between the Plaintiffs and any MCC, including the MCCs' attorney fees and costs.
In light of this Order, the MCCs' related motions to allocate discovery costs, (Docket Entry Nos. 920, 921, 935) are DENIED as moot. The MCC, BlueCross /BlueShield's motion to alter or amend the June 1, 2007 Order or motion for a partial new trial (Docket Entry No. 931) is DENIED as moot.
It is so ORDERED
Entered this the day of October, 2007.
WILLIAM J. HAYNES, JR.
United States District Judge

 
 Dave Goetz, Commissioner, Tennessee Department of Finance and Administration, et al., Petitioners v. John B., by his next friend, L. A., et al. No. 06-901. SUPREME COURT OF THE UNITED STATES
549 U.S. 1279; 127 S. Ct. 1831; 167 L. Ed. 2d 319; 2007 U.S. LEXIS 3042; 75 U.S.L.W. 3497
March 19, 2007, Decided PRIOR HISTORY: John B. v. Menke, 176 F. Supp. 2d 786, 2001 U.S. Dist. LEXIS 23090 (M.D. Tenn., 2001) JUDGES: [*1] Roberts, Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Alito. OPINION
Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.