Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 1 of 13
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:15−cv−01874−SEB−MPB

JACKSON v. SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION Assigned to: Judge Sarah Evans Barker Referred to: Magistrate Judge Matthew P. Brookman Cause: 42:1983 Civil Rights Act
Defendant

Date Filed: 11/25/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION in his official capacity

represented by Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−234−6685 Fax: 317−232−7979 Email: benjamin.jones@atg.in.gov ATTORNEY TO BE NOTICED

Jennifer Elizabeth Lemmon INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−232−4848 Fax: 317−232−7979 Email: jennifer.lemmon@atg.in.gov ATTORNEY TO BE NOTICED

Kelly Suzanne Thompson INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204 317−234−7113 Fax: 317−234−7979 Email: kelly.thompson@atg.in.gov

Patricia H. Strachan INDIANA ATTORNEY GENERAL 302 West Washington Street Indiana Government Center South, Fifth Floor Indianapolis, IN 46204 (317)232−0018 Fax: (317)232−7979 Email: patricia.strachan@atg.in.gov ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff TENNEIL SELNER

represented by Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 (317) 635−4059 ext.106

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Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED
Kenneth J. Falk ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

Date Filed 11/25/2015
11/25/2015 11/25/2015 11/25/2015 11/25/2015 11/25/2015 11/25/2015 12/09/2015 12/09/2015
12/09/2015 12/09/2015 12/11/2015 12/14/2015 12/14/2015

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief (Class Action) against SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, filed by SARAH JACKSON. (Filing fee $400, receipt number 0756−3686215) (Attachments: # 1 Exhibit 1 (CMS Notice), # 2 Exhibit 2 (2014 FSSA Policy), # 3 Exhibit 3 (2015 FSSA Policy), # 4 Exhibit 4 (Denial Notice), # 5 Civil Cover Sheet, # 6 Proposed Summons)(Rose, Gavin) (Entered: 11/25/2015)
2 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 11/25/2015)
3 MOTION to Certify Class , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 11/25/2015)
4 BRIEF/MEMORANDUM in Support re 3 MOTION to Certify Class , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 11/25/2015)
5 NOTICE of Appearance by Francis Ignatius Quigley on behalf of Plaintiff SARAH JACKSON. (Quigley, Francis) (Entered: 11/25/2015)
6 Summons Issued as to SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (JRT) (Entered: 11/25/2015)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (JRT) (Entered: 11/25/2015)
8 NOTICE of Appearance by Dennis E. Mullen on behalf of Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Mullen, Dennis) (Entered: 12/09/2015)
9 MOTION for Extension of Time to File Response to December 21, 2015 re 3 MOTION to Certify Class , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Mullen, Dennis) (Entered: 12/09/2015)
10 NOTICE of Appearance by Kelly J. Pautler on behalf of Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Pautler, Kelly) (Entered: 12/09/2015)
11 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) (Entered: 12/09/2015)
12 ORDER granting 9 Motion for Extension of Time to File Response to 12/21/2015 re 3 MOTION to Certify Class . Signed by Magistrate Judge Denise K. LaRue on 12/11/2015. (CBU) (Entered: 12/11/2015)
13 NOTICE of Initial Automatic Extension of Time, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION (Mullen, Dennis) (Entered: 12/14/2015)
14 Second MOTION for Extension of Time to File Response to January 18, 2016 re 3 MOTION to Certify Class , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of

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12/16/2015 12/29/2015
12/29/2015 01/05/2016
01/15/2016 01/15/2016 01/19/2016 01/19/2016 01/29/2016 01/29/2016 02/01/2016 02/04/2016 02/05/2016

Proposed Order)(Mullen, Dennis) (Entered: 12/14/2015)
15 ORDER granting 14 Motion for Extension of Time to File Response to 1/18/2016 re 3 MOTION to Certify Class . Signed by Magistrate Judge Denise K. LaRue on 12/16/2015. (CBU) (Entered: 12/16/2015)
16 *** WITHDRAWN PER ORDER 77 *** MOTION for Preliminary Injunction , filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Exhibit 1 (Aff. of Dr. Hays), # 2 Exhibit 2 (Aff. of Ms. Jackson), # 3 Exhibit 3 (FSSA Policy 1), # 4 Exhibit 4 (FSSA Policy 2), # 5 Exhibit 5 (Annals of Internal Medicine Publication), # 6 Exhibit 6 (CMS Guidance), # 7 Exhibit 7 (Indiana Preferred Drug List))(Rose, Gavin) Modified on 8/29/2016 (CKM). (Entered: 12/29/2015)
17 BRIEF/MEMORANDUM in Support re 16 MOTION for Preliminary Injunction , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 12/29/2015)
18 SCHEDULING ORDER: Telephonic Status Conference set for 1/6/2016 at 02:00 PM before Magistrate Judge Denise K. LaRue. The purpose of the conference is to discuss Plaintiff's Motion for Preliminary Injunction [Dkt. 16 ]. Counsel will receive call−in information for the conference via separate email notification. Signed by Magistrate Judge Denise K. LaRue on 1/5/2016.(REO) (Entered: 01/05/2016)
20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Mullen, Dennis) (Entered: 01/15/2016)
21 BRIEF/MEMORANDUM in Support re 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Mullen, Dennis) (Entered: 01/15/2016)
22 MOTION for Agreed Briefing Schedule for Plaintiff's Motion for Class Certification and Motion for Preliminary Injunction, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Mullen, Dennis) (Entered: 01/19/2016)
23 MOTION to Stay Proceedings Pending Ruling on Motion to Dismiss, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Mullen, Dennis) (Entered: 01/19/2016)
24 RESPONSE in Opposition re 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 23 MOTION to Stay Proceedings Pending Ruling on Motion to Dismiss , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 01/29/2016)
25 MINUTE ENTRY for proceedings held before Magistrate Judge Denise K. LaRue: Status Conference held on 1/6/2016 − Parties discussed the Motion for Preliminary Injunction [Dkt. 16 ] and discovery. The conference concluded without further order. Signed by Magistrate Judge Denise K. LaRue. (REO) (Entered: 01/29/2016)
26 Reassignment of Case to Magistrate Judge Matthew P. Brookman. Magistrate Judge Denise K. LaRue is no longer assigned to the case. Please include the new case number (1:15−cv−01874−SEB−MPB), which includes the initials of the newly assigned judge, on all future filings in this matter. (MAC) (Entered: 02/01/2016)
30 CORRECTED ORDER re 27 Order on Motion to Stay Proceedings. Telephonic Status Conference set for 4/5/2016 at 12:00 PM (EST) Indianapolis time, before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman on 2/4/2016.(TMB) (Entered: 02/08/2016)
27 ORDER granting Defendant's 23 Motion to Stay proceedings pending a ruling on his Motion to Dismiss. Status Conference set for 4/5/2016 11:00 AM (CST) Evansville time in Telephonic before Magistrate Judge Matthew P. Brookman. The information needed to participate in this telephonic conference will be provided by a separate notification (see Order for additional information). Signed by Magistrate Judge Matthew P. Brookman on 2/5/2016.(SWM) (Entered: 02/05/2016)

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02/05/2016 02/08/2016 03/28/2016 03/31/2016 04/05/2016 04/05/2016 04/12/2016
04/13/2016
04/19/2016
04/26/2016 04/27/2016 05/05/2016 05/06/2016

28 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by SARAH JACKSON re 27 Order on Motion to StayScheduling (Rose, Gavin) (Entered: 02/05/2016)
31 REPLY in Support of Motion re 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Mullen, Dennis) (Entered: 02/08/2016)
32 ***PLEASE DISREGARD − SEE ENTRY AT 33 ***First MOTION to Withdraw Attorney Appearance , filed by Plaintiff SARAH JACKSON. (Quigley, Francis) Modified text and terminated motion on 4/5/2016 (TMB). (Entered: 03/28/2016)
33 First MOTION to Withdraw Attorney Appearance , filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to Withdraw)(Quigley, Francis) (Entered: 03/31/2016)
34 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 4/5/2016. Telephonic Status Conference set for 6/30/2016 at 09:30 AM (EDT) before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 04/05/2016)
35 ORDER granting 33 Motion to Withdraw Attorney Appearance. Attorney Francis Ignatius Quigley withdrawn as co−counsel for the Plaintiff. Signed by Magistrate Judge Matthew P. Brookman on 4/5/2016. (CBU) (Entered: 04/06/2016)
36 ORDER − DENYING MOTION TO DISMISS; Defendant's Motion to Dismiss Dkt. No. 20 and OVERRULE Plaintiff's Objections to Magistrate Judge's Order Staying Proceedings Dkt. No. 28 as MOOT. The stay imposed by Docket Number 27 is lifted. We instruct the Magistrate Judge to hold a status conference as soon as possible to establish a briefing schedule for the motions currently pending on the docket. Signed by Judge Sarah Evans Barker on 4/12/2016. (CKM) (Entered: 04/12/2016)
37 ORDER RESETTING TELEPHONIC STATUS CONFERENCE: The TELEPHONIC STATUS CONFERENCE set for June 30, 2016, is hereby VACATED and RESCHEDULED to TUESDAY, APRIL 19, 2016, at 11:45 a.m., Indianapolis time (EDT), before Magistrate Judge Matthew P. Brookman. Pursuant to the Order entered at docket #36, the purpose of this conference is to establish a briefing schedule for the motions currently pending on the docket. The information needed to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 4/13/2016.(SWM) (Entered: 04/13/2016)
39 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 4/19/2016. The Motion for Agreed Briefing Schedule for Plaintiff's Motion for Class Certification and Motion for Preliminary Injunction [Dkt. 22] is GRANTED. The briefing schedule for the Motions [Dkts. 3 and 16] is as follows: The Defendant is to respond to both Motions by May 9, 2016. The Plaintiff's reply to the Defendant's response is to be filed by May 23, 2016. The parties request a one−day evidentiary hearing on both Motions before the Court at a time thereafter. Telephonic Status Conference set for 8/23/2016 at 09:30 AM before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman. (NRN) (Entered: 04/20/2016)
40 ANSWER to 1 Complaint for Declaratory and Injunctive Relief and Statement of Defenses, filed by SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION.(Mullen, Dennis) (Entered: 04/26/2016)
41 NOTICE of Appearance by Jonathan Paul Nagy on behalf of Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Nagy, Jonathan) (Entered: 04/27/2016)
42 SCHEDULING ORDER− Motion Hearing on certify class and for preliminary injunction set for 6/15/2016 at 1:30 PM in room #216, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Signed by Judge Sarah Evans Barker on 5/5/2016.(CBU) (Entered: 05/05/2016)
43 MOTION to Withdraw Attorney Appearance , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION.

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05/09/2016
05/09/2016 05/09/2016 05/09/2016 05/10/2016 05/16/2016 05/17/2016 05/18/2016 05/20/2016 05/24/2016 05/25/2016

(Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw Appearance)(Mullen, Dennis) (Entered: 05/06/2016)
44 *** SEALED PER ORDER DATED 6/29/2016 *** SEALED RESPONSE re 16 MOTION for Preliminary Injunction , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit 1 − Affidavit of Dr. Zerr, # 2 Attachment 1 Dr. Zerr's CV, # 3 Attachment 2 − WHO Media on Hepatitis C, # 4 Attachment 3 − 2015 Article re: Alimentary Pharmacology and Therapeutics, # 5 Attachment 4 − Starting Treatment of Acute HCV Earlly article, # 6 Attachment 5 − Natural Hsitory of Hepatitis C, # 7 Attachment 6 − Clinical Manifestations and Natural History of Chronic Hepatitis C Virus Infection, # 8 Attahcment 7 − State Medicaid Coverage Policies, # 9 Attachment 8 − Jackson's Medical Records, # 10 Attachment 9 − Harvonie Insert Packet, # 11 Attachment 10 − AASLD Publication, # 12 Attachment 11 − NIH Publication, # 13 Attachment 12 − Senate Report, # 14 Exhibit 2− Affidavit of Paul Bowling, # 15 Attachment 1 to Bowling Affidavit, # 16 Exhibit 3 − Dr. Hays Deposition Excerpts, # 17 Exhibit 4 − Dr. Zerr's Deposition Excerpts, # 18 Exhibit 5 − USPSTF A&B Recommendation)(Jones, Benjamin) Modified on 7/1/2016 (SWM). (Entered: 05/09/2016)
45 *** SEALED PER ORDER DATED 6/29/2016 *** SEALED RESPONSE re 3 MOTION to Certify Class , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) Modified on 7/1/2016 (SWM). (Entered: 05/09/2016)
46 MOTION to Maintain Document Under Seal 45 SEALED Response to Motion, 44 SEALED Response to Motion , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 05/09/2016)
47 MOTION to Compel Plaintiff to Sign Medical Release Authorizations, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Jones, Benjamin) (Entered: 05/09/2016)
48 ORDER granting 43 Motion to Withdraw Attorney Appearance. Attorney Dennis E. Mullen withdrawn. Signed by Magistrate Judge Matthew P. Brookman on 5/10/2016. (SWM) (Entered: 05/11/2016)
49 SCHEDULING ORDER: Status Conference set for 5/17/2016 at 02:00 PM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. The purpose of this conference is to discuss the pending motions before the Court. Signed by Magistrate Judge Matthew P. Brookman on 5/16/2016.(TMB) (Entered: 05/16/2016)
52 Minute Entry for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 5/17/2016. The parties are granted leave to file a proposed Uniform Protective Order in accordance with Fed. R. Civ. P. 26(c)(1), and are directed to the Uniform Protective Order approved in the Southern District of Indiana. (NRN) (Entered: 05/18/2016)
51 Unopposed MOTION for Extension of Time to File Reply to 05/31/2016 re 3 MOTION to Certify Class , 16 MOTION for Preliminary Injunction , filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 05/18/2016)
53 ORDER granting Plaintiff and the Putative Class' 51 Motion for Extension of Time to File Reply to 5/31/2016 re 16 MOTION for Preliminary Injunction and 3 MOTION to Certify Class . Signed by Magistrate Judge Matthew P. Brookman on 5/20/2016. (SWM) (Entered: 05/20/2016)
54 MOTION for Protective Order [Uniform Stipulated], filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit Proposed Order)(Jones, Benjamin) (Entered: 05/24/2016)
56 UNIFORM STIPULATED PROTECTIVE ORDER 54 APPROVED. Signed by Magistrate Judge Matthew P. Brookman on 5/25/2016.(SWM) (Entered: 05/26/2016)

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05/26/2016
05/31/2016
05/31/2016 05/31/2016 06/01/2016
06/02/2016 06/07/2016 06/09/2016 06/13/2016 06/14/2016 06/15/2016 06/15/2016 06/15/2016 06/29/2016

55 RESPONSE in Opposition re 47 MOTION to Compel Plaintiff to Sign Medical Release Authorizations, 46 MOTION to Maintain Document Under Seal 45 SEALED Response to Motion, 44 SEALED Response to Motion , filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Exhibit 1 (Apr. 26, 2016 emails), # 2 Exhibit 2 (May 11, 2016 letter from plaintiff to defendant), # 3 Exhibit 3 (May 13, 2016 letter from defendant to plaintiff), # 4 Exhibit 4 (May 13, 2016 email from plaintiff to defendant), # 5 Exhibit 5 (May 16, 2016 email from defendant to plaintiff))(Rose, Gavin) (Entered: 05/26/2016)
57 NOTICE of Filing of Additional Evidence in Support of Preliminary Injunction Motion by SARAH JACKSON (Attachments: # 1 Exhibit 1−3 (Zerr Dep.) (Part 1), # 2 Exhibit 1−3 (Zerr Dep.) (Part 2), # 3 Exhibit 1−3 (Zerr Dep.) (Part 3), # 4 Exhibit 4 (Hays Dep.), # 5 Exhibit 5 (Hays Supp. Aff.), # 6 Exhibit 6 (Jackson Supp. Aff. − unsigned), # 7 Exhibit 7 (U.S. Dep't of Veterans Affairs Memo.), # 8 Exhibit 8 (Associated Press Article), # 9 Exhibit 9 (About the USPSTF)) (Rose, Gavin) (Entered: 05/31/2016)
58 MOTION for Leave to File Excess Pages (Over−Sized Reply Brief in Support of Mot. for Prelim. Inj.), filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Appendix (Oversized Reply Brief in Support of Mot. for Prelim. Inj.), # 2 Text of Proposed Order)(Rose, Gavin) (Entered: 05/31/2016)
59 REPLY in Support of Motion re 3 MOTION to Certify Class , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 05/31/2016)
60 ORDER granting Plaintiff's 58 Motion for Leave to Over−Sized Brief. IT IS THEREFORE ORDERED that the plaintiff is GRANTED leave to file an over− sized reply brief in support of her Motion for Preliminary Injunction, and the reply brief shall be filed as a separate entry in this case within five (5) days from the date of this order. Signed by Magistrate Judge Matthew P. Brookman on 6/1/2016. (SWM) (Entered: 06/02/2016)
61 REPLY in Support of Motion re 16 MOTION for Preliminary Injunction , filed by Plaintiff SARAH JACKSON. (Rose, Gavin) (Entered: 06/02/2016)
62 NOTICE of Filing of Supplemental Affidavit of Sarah Jackson by SARAH JACKSON (Attachments: # 1 Affidavit of Sarah Jackson (Supplemental)) (Rose, Gavin) (Entered: 06/07/2016)
63 MOTION for Leave to File Surreply in Opposition to Motion for Preliminary Injunction, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Entry)(Jones, Benjamin) (Entered: 06/09/2016)
64 ORDER granting Defendant's 63 Motion for Leave to File a surreply. Defendant shall file his surreply within two (2) days from the date of this order. Signed by Magistrate Judge Matthew P. Brookman on 6/13/2016. (SWM) (Entered: 06/13/2016)
65 Surreply re 16 MOTION for Preliminary Injunction , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) (Entered: 06/14/2016)
66 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff SARAH JACKSON. (Falk, Kenneth) (Entered: 06/15/2016)
67 SCHEDULING ORDER: The hearing on Plaintiff's motions to certify class and for preliminary injunction on Wednesday, June 15, 2016 has been rescheduled to 1:00 p.m. in Room 216 of the United States Courthouse in Indianapolis, Indiana. Please note the time change.(KR) (Entered: 06/15/2016)
68 COURT ENTRY AND SCHEDULING ORDER: Settlement Conference set for 7/26/2016 02:00 AM before Judge Sarah Evans Barker.(CKM) (Entered: 06/15/2016)
69 ORDER granting Defendant's 46 Motion to Maintain Document Under Seal; denying Defendant's 47 Motion to Compel. The Court ORDERS that Docket No. 44 and Docket No. 45 be maintained under seal. The Court further ORDERS FSSA to file redacted versions of the same within five (5) days of this Order. See Order for additional information. Signed by Magistrate Judge Matthew P. Brookman on 6/29/2016. (SWM) (Entered: 07/01/2016)

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07/05/2016 07/05/2016 07/20/2016 07/26/2016
07/26/2016
08/24/2016 08/26/2016 08/31/2016
09/15/2016

70 REDACTED RESPONSE in Opposition re 44 MOTION for Preliminary Injunction 16 , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit 1 − Zerr Affidavit − Part 1 of 2, # 2 Exhibit 1 − Zerr Affidavit − Part 2 of 2, # 3 Exhibit 2 − Affidavit of Bowling, # 4 Exhibit 3 − Hays Depo, # 5 Exhibit 4 − Zerr Depo, # 6 Exhibit 5 − USPSTF Recommendation)(Jones, Benjamin) Modified on 7/6/2016 (CKM). (Entered: 07/05/2016)
71 REDACTED RESPONSE in Opposition re 45 , re 3 MOTION to Certify Class [Redacted], filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) Modified on 7/6/2016 (CKM). (Entered: 07/05/2016)
72 ENTRY − In preparing for the settlement conference scheduled for July 26, 2016 at 2:30 PM, the parties shall familiarize themselves with the recent amendments to Medicare Hepatitis C treatment policies in Florida, New York, Delaware, Washington, Massachusetts, Connecticut, and Maine as well as recent policy changes adopted by private insurers. The parties should also be prepared to discuss the decision in B.E. and A.R. v. Teeter, 2016 WL 3033500 (W.D. Wash. May 27, 2016).(CKM) (Entered: 07/21/2016)
73 *** PLEASE DISREGARD DOCKETED IN ERROR *** Minute order for settlement conference held before Judge Sarah Evans Barker on 7/26/2016. The Plaintiff appeared by counsel Gavin Rose and Kenneth Falk, and the Defendant appeared by Counsel Benjamin Jones and Kelly Pautler, and by Dr. Ann Zerr, Chris Johnson, Allison Taylor and Elizabeth Fiscus, representatives of the Family and Social Services Administration. The parties reached a tentative agreement, and agreed to exchange settlement proposals and finalize a draft by August 31, 2016, which will allow for an October 1, 2016, implementation date.(KR) Modified on 7/27/2016 (CKM). (Entered: 07/26/2016)
74 AMENDED ENTRY re Settlement Conference ; The Court conducted a settlement conference. The Plaintiff appeared by counsel Gavin Rose and Kenneth Falk, and the Defendant appeared by counsel Benjamin Jones and Kelly Pautler, and by Dr. Ann Zerr, Chris Johnson, Allison Taylor and Elizabeth Fiscus, representatives of the Family and Social Services Administration. The Court discussed the outlines of a possible agreement with the parties. The parties agreed to exchange settlement proposals and to finalize a draft by August 31, 2016, which will allow for an October 1, 2016, implementation date. The proceedings were adjourned. (CKM) (Entered: 07/27/2016)
76 MOTION to Withdraw 16 MOTION for Preliminary Injunction , filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 08/24/2016)
77 ORDER − granting 76 Motion to Withdraw Plaintiffs' Motion for Preliminary Injunction (ECF No. 16) is hereby withdrawn, without prejudice to its refiling as circumstances dictate. Signed by Judge Sarah Evans Barker on 8/26/2016. (CKM) (Entered: 08/29/2016)
78 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 8/23/2016. If Defendant objects to the current discovery propounded related to a replacement representative Plaintiff, it is to do so on or before September 15, 2016. If the Defendant does not object, Defendant must respond to discovery on or before September 30, 2016. Plaintiff is to file a Motion to Intervene by a new representative Plaintiff and/or Motion to Amend the Complaint on or before November 30, 2016. Plaintiff is to file a Stipulation of Dismissal of Representative Plaintiff Sarah Jackson on or before December 30, 2016. Status Conference set for 10/13/2016 at 03:00 PM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman. (TMB) Modified on 9/2/2016 (TMB). (Entered: 09/01/2016)
79 NOTICE of Objection to Discovery Request , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION (Jones, Benjamin) Modified on 9/16/2016 (CKM). (Entered: 09/15/2016)

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09/19/2016 09/21/2016 09/30/2016 10/19/2016 10/20/2016 11/10/2016 11/15/2016 11/30/2016
11/30/2016 11/30/2016 11/30/2016 12/19/2016 12/22/2016 12/30/2016 01/03/2017

80 Joint MOTION for Administrative Closure, filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 09/19/2016)
81 ORDER − The Court now finds that said Motion 80 should be GRANTED. The pending Motion to Certify Class Dkt. 3 is hereby administratively closed without prejudice, subject to re−opening as circumstances dictate. Signed by Judge Sarah Evans Barker on 9/21/2016. (CKM) (Entered: 09/21/2016)
82 ORDER VACATING TELEPHONIC STATUS CONFERENCE: Comes now the Court, sua sponte, and VACATES the TELEPHONIC STATUS CONFERENCE currently set in this matter on Thursday, October 13, 2016 at 3:00 p.m. Signed by Magistrate Judge Matthew P. Brookman on 9/30/2016.(SWM) (Entered: 09/30/2016)
83 SCHEDULING ORDER: Discovery Conference set for 10/20/2016 at 12:30 PM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman on 10/19/2016.(TMB) (Entered: 10/19/2016)
85 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Discovery Conference held on 10/20/2016. Parties were represented by counsel. No further orders are entered at this time. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 10/20/2016)
86 MOTION to Withdraw Attorney Appearance , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Pautler, Kelly) (Entered: 11/10/2016)
87 ORDER granting 86 Motion to Withdraw Attorney Appearance. Attorney Kelly J. Pautler withdrawn. Signed by Magistrate Judge Matthew P. Brookman on 11/15/2016. (SWM) (Entered: 11/16/2016)
88 MOTION to Intervene as Named Plaintiff and Class Representative (Permissive Intervention), filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Class Action Complaint in Intervention for Declaratory and Injunctive Relief, # 2 Exhibit 1 (2016 Policy), # 3 Exhibit 2 (CMS Guidance), # 4 Exhibit 3 (2014 Policy), # 5 Exhibit 4 (2015 Policy), # 6 Exhibit 5 (Selner Denial))(Rose, Gavin) (Entered: 11/30/2016)
89 BRIEF/MEMORANDUM in Support re 88 MOTION to Intervene as Named Plaintiff and Class Representative (Permissive Intervention) , filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 11/30/2016)
90 NOTICE of Appearance by Gavin Minor Rose on behalf of Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 11/30/2016)
91 NOTICE of Appearance by Kenneth J. Falk on behalf of Intervenor Plaintiff TENNEIL SELNER. (Falk, Kenneth) (Entered: 11/30/2016)
92 NOTICE of No Objection, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, re 88 MOTION to Intervene as Named Plaintiff and Class Representative (Permissive Intervention). (Jones, Benjamin) (Entered: 12/19/2016)
93 Submission of Proposed Order , re 88 MOTION to Intervene as Named Plaintiff and Class Representative (Permissive Intervention), filed by Plaintiff SARAH JACKSON, Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 12/22/2016)
94 Unopposed MOTION for Extension of Time to 30 days after decision on ECF No. 88 to File Dismissal Papers Concerning Sarah Jackson, filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 12/30/2016)
95 ORDER − granting 88 Motion to Intervene; Tenneil Selner is hereby granted leave to intervene in this action as a plaintiff and representative of the putative class pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, and that her Class Action Complaint in Intervention for Declaratory and Injunctive Relief is deemed filed as of this date. The Clerk is directed to administratively re−open this case. Signed by Judge Sarah Evans Barker on 1/3/2017. (CKM) (Entered: 01/04/2017)

Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 9 of 13

01/06/2017 01/10/2017 01/17/2017 01/24/2017 01/26/2017
03/23/2017
06/23/2017 06/23/2017 06/28/2017 07/24/2017 07/27/2017 08/08/2017
08/10/2017 08/14/2017

97 ORDER granting 94 Motion for an extension of time to and including 30 days after the Court issues a decision on Tenneil Selner's Motion for Permissive Intervention 88 , to file appropriate papers dismissing Sarah Jackson's individual claims. Signed by Judge Sarah Evans Barker on 1/6/2017. (CBU) (Entered: 01/06/2017)
98 STIPULATION of Dismissal of Sarah Jackson, filed by Plaintiff SARAH JACKSON. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 01/10/2017)
99 DISMISSAL − SARAH JACKSON (on her own behalf and on behalf of a class of those similarly situated) terminated. Approves Parties Stipulation of Dismissal from the case, with prejudice. Signed by Judge Sarah Evans Barker on 1/17/2017.(MAC) (Entered: 01/17/2017)
100 Def's ANSWER to 1 Complaint , filed by SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION.(Jones, Benjamin) (Entered: 01/24/2017)
101 SCHEDULING ORDER: Status Conference set for 3/23/2017 11:45 AM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. The information needed by counsel to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 1/26/2017.(SWM) (Entered: 01/26/2017)
103 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 3/23/2017. The briefing schedules for Plaintiff's anticipated Motion to Certify Class and Motion for Preliminary Injunction shall be as follows: A. Plaintiff's motions shall be filed on or before June 30, 2017. B. Defendant's responses to the motions shall be filed on or before July 28, 2017. C. Plaintiff's replies shall be filed on or before August 18, 2017. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 03/23/2017)
104 Joint MOTION for Extension of Time to 08/14/2017 Extension of Briefing Schedule for Mot. for Prelim. Inj. & Mot. for Class Cert., filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/23/2017)
105 NOTICE of Appearance by Jennifer Elizabeth Lemmon on behalf of Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Lemmon, Jennifer) (Entered: 06/23/2017)
106 ORDER − granting 104 Motion for Joint Motion to Amend Briefing Schedule. *** SEE ORDER FOR DATES AND DEADLINES ***. Signed by Judge Sarah Evans Barker on 6/28/2017. (CKM) (Entered: 06/29/2017)
107 NOTICE of Substitution of Appearance by Kelly Suzanne Witte replacing Jonathan P. Nagy on behalf of SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION (Witte, Kelly) (Entered: 07/24/2017)
108 ORDER − Acknowledges the Notice of Appearance and Substitution . Jonathan P. Nagy is hereby withdrawn. The appearance of Kelly S. Witte is entered. Signed by Judge Sarah Evans Barker on 7/27/2017. (marginal notation)(CKM) Modified on 7/27/2017 (CKM). (Entered: 07/27/2017)
109 SCHEDULING ORDER − Telephonic Discovery Conference set for 8/9/2017 at 10:30 AM (Eastern Time) before Magistrate Judge Matthew P. Brookman. The information needed to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 8/8/2017.(JRB) (Entered: 08/08/2017)
111 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Discovery Conference held on 8/9/2017. Parties were represented by counsel. No further orders entered at this time. Signed by Magistrate Judge Matthew P. Brookman. (JRB) (Entered: 08/10/2017)
112 Unopposed MOTION for Extension of Time to 10/13/2017 to file Prelim. Inj. Mot. & to 08/28/2017 to file Class Cert. Mot., filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 08/14/2017)

Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 10 of 13

08/15/2017
08/25/2017 08/25/2017 09/08/2017 09/14/2017 09/14/2017
09/14/2017 09/27/2017 10/03/2017 10/05/2017 10/10/2017 10/10/2017 10/12/2017 10/13/2017 10/17/2017 10/25/2017

113 ORDER − granting 112 Motion for Extension of Time to File; The plaintiff is hereby granted a 14−day extension of time, to and including August 28, 2017, within which to file her Motion for Class Certification and supporting brief. The plaintiff is hereby granted a 14−day extension of time, to and including August 28, 2017, within which to file her Motion for Class Certification and supporting brief. Signed by Judge Sarah Evans Barker on 8/15/2017. (CKM) (Entered: 08/15/2017)
114 ***WITHDRAWN PER ORDER OF 3/27/2018*** MOTION to Certify Class (Renewed), filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Exhibit 1 (Interrogatory Responses))(Rose, Gavin) Modified on 3/28/2018 (CBU). (Entered: 08/25/2017)
115 BRIEF/MEMORANDUM in Support re 114 MOTION to Certify Class (Renewed) , filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 08/25/2017)
116 RESPONSE in Opposition re 114 MOTION to Certify Class (Renewed) , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) (Entered: 09/08/2017)
117 REPLY in Support of Motion re 114 MOTION to Certify Class (Renewed) , filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 09/14/2017)
118 ***PLEASE DISREGARD. WITHDRAWN BY 125 *** MOTION to Compel Discovery, filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Exhibit 1 (Discovery Requests to Dft.), # 2 Exhibit 2 (Dft.'s Responses to Interrs.), # 3 Exhibit 3 (Discovery Letter to Dft.), # 4 Exhibit 4 (E−mail Communications Re: Discovery), # 5 Exhibit 5 (E−mail Communications Re: Discovery [Part II]))(Rose, Gavin) Modified on 10/12/2017 (JRB). (Entered: 09/14/2017)
119 BRIEF/MEMORANDUM in Support re 118 MOTION to Compel Discovery , filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 09/14/2017)
120 Unopposed MOTION for Extension of Time to File Response to 10/05/2017 re 118 MOTION to Compel Discovery , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 09/27/2017)
121 ORDER granting 120 Motion for Extension of Time to File Response to 118 MOTION to Compel Discovery to 10/5/17. Signed by Magistrate Judge Matthew P. Brookman on 10/3/2017. (JRB) (Entered: 10/03/2017)
122 Second MOTION for Extension of Time to File Response to 10/10/2017 re 118 MOTION to Compel Discovery Unopposed, filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 10/05/2017)
123 MOTION to Withdraw 118 MOTION to Compel Discovery , filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 10/10/2017)
124 ORDER granting 122 Motion for Extension of Time to File Response to 118 MOTION to Compel Discovery to 10/10/17. Signed by Magistrate Judge Matthew P. Brookman on 10/10/2017. (JRB) (Entered: 10/10/2017)
125 ORDER granting 123 Motion to Withdraw 118 Motion to Compel. Signed by Magistrate Judge Matthew P. Brookman on 10/12/2017. (JRB) (Entered: 10/12/2017)
126 Unopposed MOTION for Extension of Time to 11/22/2017 to File Preliminary Injunction Motion (Third), filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 10/13/2017)
127 ORDER − granting 126 Motion for Extension of Time to File up to and including November 22, 2017, within which to file her Motion for Preliminary Injunction and supporting brief. Signed by Judge Sarah Evans Barker on 10/17/2017. (CKM) (Entered: 10/17/2017)
128 SCHEDULING ORDER − Telephonic Status Conference set for 10/26/2017 at 10:00 AM (Eastern Time) before Magistrate Judge Matthew P. Brookman. The information

Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 11 of 13

10/26/2017
11/22/2017
11/22/2017 12/04/2017 12/06/2017
01/08/2018 01/08/2018 02/09/2018 02/26/2018

needed by counsel to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 10/25/2017.(JRB) (Entered: 10/25/2017)
130 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 10/26/2017. The briefing schedule for the anticipated Motion for Preliminary Injunction shall be as follows: Defendant's Response to Plaintiff's Motion for Preliminary Injunction shall be filed on or before December 22, 2017. Plaintiff's Reply shall be filed on or before January 12, 2018. The Parties jointly recommend the Court set aside one (1) day for hearing on the Preliminary Injunction Motion. However, upon review of the briefs, the Parties may adjust their hearing recommendation to one half (1/2) day. Status Conference set for 1/18/2018 at 10:00 AM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 10/26/2017)
131 ***WITHDRAWN PER DKT. 156*** MOTION for Preliminary Injunction (Renewed), filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Exhibit 1 (Decl. of Dr. Gish) (Part 1 of 2), # 2 Exhibit 1 (Decl. of Dr. Gish) (Part 2 of 2), # 3 Exhibit 2 (Aff. of Dr. Hays), # 4 Exhibit 3 (Supp. Aff. of Dr. Hays), # 5 Exhibit 4 (Dep. of Dr. Hays), # 6 Exhibit 5 (First Dep. of Dr. Zerr), # 7 Exhibit 6 (Second Dep. of Dr. Zerr), # 8 Exhibit 7 (Exhs. to Zerr Deps.) (Part 1 of 3), # 9 Exhibit 7 (Exhs. to Zerr Deps.) (Part 2 of 3), # 10 Exhibit 7 (Exhs. to Zerr Deps.) (Part 3 of 3), # 11 Exhibit 8 (Aff. of Selner), # 12 Exhibit 9 (Interr. Responses), # 13 Exhibit 10 (CMS Guidance on Hep C), # 14 Exhibit 11 (CMS Guidance on Viagra), # 15 Exhibit 12 (Policy of the Dep't of Veterans Affairs), # 16 Exhibit 13 (Edlin Article), # 17 Exhibit 14 (Selected Prior Authorization Denials))(Rose, Gavin) Modified on 9/28/2018 (LDH). (Entered: 11/22/2017)
132 BRIEF/MEMORANDUM in Support re 131 MOTION for Preliminary Injunction (Renewed) , filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 11/22/2017)
133 MOTION for Extension of Time to File Response to December 22, 2017 re 131 MOTION for Preliminary Injunction (Renewed) , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 12/04/2017)
134 ORDER granting 133 Motion for Extension of Time to File Response to 131 MOTION for Preliminary Injunction to 2/9/17. Plaintiff shall have up to and including February 26, 2018 to file her response − IT IS FURTHER ORDERED that the Telephonic Status Conference currently set for January 18, 2018 at 10:00 a.m. (EST) is VACATED and RESET to THURSDAY, MARCH 1, 2018 at 12:15 p.m. (EST), before Magistrate Judge Matthew P. Brookman The information needed to participate in this telephone conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 12/6/2017.(JRB) (Entered: 12/06/2017)
135 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Gavin Minor Rose hereby notifies the Clerk of the court of changed contact information. (Rose, Gavin) (Entered: 01/08/2018)
136 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Kenneth J. Falk hereby notifies the Clerk of the court of changed contact information. (Falk, Kenneth) (Entered: 01/08/2018)
137 RESPONSE in Opposition re 131 MOTION for Preliminary Injunction (Renewed) , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Exhibit 1 − Deposition Excerpts of Dr. Robert Gish, # 2 Exhibit 2 − Deposition Excerpts of Dr. Travis Hays, # 3 Exhibit 3 − 2/11/16 Deposition Excerpts of Dr. Ann Zerr, # 4 Exhibit 4 − 11/15/17 Deposition Excerpts of Dr. Ann Zerr, # 5 Exhibit 5 − Order from J.E.M., et al. v. Tidball, et al.; 16−cv−4273−SRB)(Jones, Benjamin) (Entered: 02/09/2018)
139 REPLY in Support of Motion re 131 MOTION for Preliminary Injunction (Renewed) , filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Exhibit 1 (Gish Deposition), # 2 Exhibit 2 (Jezequel Study), # 3 Exhibit 3 (McCombs Study), # 4 Exhibit 4 (Zahnd Study), # 5 Exhibit 5 (Ovrehus Study))(Rose, Gavin) (Entered:

Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 12 of 13

03/01/2018
03/13/2018 03/26/2018 03/26/2018 03/27/2018 04/09/2018 04/10/2018 04/23/2018 06/05/2018
06/19/2018 08/08/2018 08/08/2018 09/28/2018 09/28/2018

02/26/2018)
140 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 3/1/2018. Status Conference set for 3/13/2018 at 11:00 AM (Eastern Time) in Telephonic before Magistrate Judge Matthew P. Brookman. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 03/01/2018)
142 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 3/13/2018. Parties were represented by counsel. No further orders are entered at this time. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 03/13/2018)
143 ***WITHDRAWN PER DKT. 156*** MOTION to Certify Class (Second Renewed Motion), filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) Modified on 9/28/2018 (LDH). (Entered: 03/26/2018)
144 MOTION to Withdraw 114 MOTION to Certify Class (Renewed) , filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 03/26/2018)
145 ORDER withdrawing First Renewed 114 Motion to Certify Class and granting 144 Motion to Withdraw 114 . The Second Renewed Motion for Class Certification 143 , remains pending before the Court. Signed by Judge Sarah Evans Barker on 3/27/2018. (CBU) (Entered: 03/28/2018)
146 MOTION for Extension of Time to File Response to April 23, 2018 re 143 MOTION to Certify Class (Second Renewed Motion) , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 04/09/2018)
147 ORDER granting 146 Motion for Extension of Time to File Response to 4/23/2018 to 143 MOTION to Certify Class (Second Renewed Motion).. Signed by Magistrate Judge Matthew P. Brookman on 4/10/2018. (JRB) (Entered: 04/10/2018)
148 RESPONSE to Motion re 143 MOTION to Certify Class (Second Renewed Motion) , filed by Defendant SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION. (Jones, Benjamin) (Entered: 04/23/2018)
149 SCHEDULING ORDER − Telephonic Status Conference set for 6/18/2018 at 03:00 PM (Eastern Time) before Magistrate Judge Matthew P. Brookman. The information needed to participate in this telephonic conference will be provided by a separate notification. Signed by Magistrate Judge Matthew P. Brookman on 6/5/2018.(JRB) (Entered: 06/05/2018)
151 MINUTE ORDER for proceedings held before Magistrate Judge Matthew P. Brookman: Status Conference held on 6/18/2018. Parties were represented by counsel. No further orders are entered at this time. Signed by Magistrate Judge Matthew P. Brookman. (TMB) (Entered: 06/19/2018)
152 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Gavin Minor Rose hereby notifies the Clerk of the court of changed contact information. (Rose, Gavin) (Entered: 08/08/2018)
153 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Kenneth J. Falk hereby notifies the Clerk of the court of changed contact information. (Falk, Kenneth) (Entered: 08/08/2018)
154 STIPULATION to Class Certification, filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Exhibit 1 (2016 Policy), # 2 Exhibit 2 (2018 Policy), # 3 Text of Proposed Order)(Rose, Gavin) (Entered: 09/28/2018)
155 MOTION to Withdraw 131 MOTION for Preliminary Injunction (Renewed), 143 MOTION to Certify Class (Second Renewed Motion) , filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 09/28/2018)

Case: 1:15-cv-1874 As of: 02/12/2019 02:22 PM EST 13 of 13

09/28/2018 11/08/2018 11/08/2018 11/09/2018 11/26/2018
01/28/2019 01/30/2019
02/04/2019 02/05/2019
02/07/2019 02/12/2019

156 ORDER granting 155 Motion to Withdraw − Plaintiffs' Renewed Motion for Preliminary Injunction (Dkt. 131) and their Second Renewed Motion for Class Certification (Dkt. 143) are hereby withdrawn, without prejudice to the refiling of either motion as circumstances dictate. Signed by Judge Sarah Evans Barker on 9/28/2018. (LDH) (Entered: 09/28/2018)
157 STIPULATION to Enter Into Settlement Agreement Following Notice to the Class and a Fairness Hearing, filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Settlement Agreement, # 2 Exhibit 1 (2016 Policy), # 3 Exhibit 2 (2018 Policy))(Rose, Gavin) (Entered: 11/08/2018)
158 Joint MOTION to Approve Manner and Form of Notice to the Class and to Set Fairness Hearing, filed by Intervenor Plaintiff TENNEIL SELNER. (Attachments: # 1 Proposed Class Notice, # 2 Text of Proposed Order)(Rose, Gavin) (Entered: 11/08/2018)
159 ORDER − approving 157 Motion to Certifying Cause As Class Action ; The Court now finds that said Stipulation should be APPROVED and that this cause should be certified as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Signed by Judge Sarah Evans Barker on 11/9/2018. (CKM) Modified on 11/27/2018 (CKM). (Entered: 11/09/2018)
160 ORDER − Approving 158 Motion To Approve Manner and Form of Notice to the Class and Setting Fairness Hearing ; Fairness Hearing set for 2/5/2019 02:00 PM in room #216, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Class counsel shall file a report concerning any comments received from the class no later than seven days prior to the fairness hearing. Signed by Judge Sarah Evans Barker on 11/26/2018. (CKM) (Entered: 11/27/2018)
161 REPORT of Class Counsel and Request to Approve Settlement Agreement by TENNEIL SELNER. (Attachments: # 1 Exhibit (Class member e−mail))(Rose, Gavin) (Entered: 01/28/2019)
162 SCHEDULING ORDER − The fairness hearing currently set for February 5, 2019 at 2:00 p.m. in Room 216 U.S. Courthouse, Indianapolis, Indiana is VACATED. The fairness hearing is instead set for a TELEPHONIC CONFERENCE on February 5, 2019 at 2:00 p.m. Counsel shall participate in this conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system(CKM) (Entered: 01/30/2019)
164 NOTICE of Substitution of Appearance by Patricia H. Strachan replacing Jennifer E. Lemmon and Kelly S. Thompson on behalf of SECRETARY OF THE INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION (Attachments: # 1 Text of Proposed Order) (Strachan, Patricia) (Entered: 02/04/2019)
165 Minute Entry for Fairness Hearing held before Judge Sarah Evans Barker on 2/5/2019. Counsel for the parties appeared telephonically. The parties discussed the status of class notice mailing, the settlement agreement, and the attorney fee request. The settlement agreement and the attorney fee request were approved by the Court. Counsel for the plaintiff will submit a proposed order. The proceedings were adjourned. (Court Reporter Laura Howie−Walters.) (LDH) (Entered: 02/05/2019)
166 Submission of Proposed Order Approving Settlement Agreement, filed by Intervenor Plaintiff TENNEIL SELNER. (Rose, Gavin) (Entered: 02/07/2019)
167 ORDER − FINDING SETTLEMENT AGREEMENT TO BE FAIR, REASONABLE, AND ADEQUATE, AND APPROVING SETTLEMENT AGREEMENT; The Court finds that class notice was provided in a reasonable manner that was calculated to apprise the class of the proposed Settlement Agreement and that meets the standards of Federal Rule 23(e) and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). The Court further finds, after applying the factors enumerated in the 2018 amendments to Federal Rule 23(e) as well as the factors articulated by the Seventh Circuit in Synfuel Technologies, Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006), that the Settlement Agreement is a fair, reasonable, and adequate resolution of this cause, and that the Settlement Agreement should be, and hereby is, approved. Signed by Judge Sarah Evans Barker on 2/12/2019. (CKM) (Entered: 02/12/2019)

Case #: 1:15−cv−01874−SEB−MPB

 
 Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 1 of 10 PageID #: 1

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SARAH JACKSON, on her own behalf and on )

behalf of a class of those similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

SECRETARY OF THE INDIANA FAMILY

)

AND SOCIAL SERVICES ADMINISTRATION, )

in his official capacity,

)

)

Defendant.

)

No. 1:15-cv-01874 COMPLAINT – CLASS ACTION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introductory Statement

1. In recent years, an outpatient drug marketed under the trade name Harvoni has been

developed to cure Hepatitis C, a chronic disease primarily affecting the liver that can lead

to cirrhosis, liver failure, cancer, and other serious and potentially life-threatening

concerns. The progression of Hepatitis C is determined through a patient’s “fibrosis

level,” which is measured on a scale of F0 (no fibrosis) through F4 (cirrhosis of the liver)

and which reflects the degree of liver damage suffered by that patient. For persons with

Hepatitis C, the early provision of Harvoni is of paramount importance: curing Hepatitis

C in the early stages of fibrosis prevents pain and additional damage to the liver, and

dramatically reduces the risk that a patient will develop liver failure, cancer, or other

undeniably serious consequences of the disease. Nonetheless, even though Harvoni is

otherwise available through the Medicaid program, the Indiana Family and Social

Services Administration (“the agency”) has instituted a policy whereby it will only be

1

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 2 of 10 PageID #: 2
provided to Medicaid recipients with severe fibrosis (F3 or F4), unless those persons are co-infected with HIV or AIDS or are post-liver transplant. The effect of this policy is to curtail access to a potentially life-saving or life-sustaining drug to thousands of Hoosiers. The agency accordingly refuses to provide Harvoni to Medicaid recipients even when that drug is “medically necessary,” and it is therefore acting in violation of federal Medicaid law. Declaratory and injunctive relief is warranted on behalf of the named plaintiff, a Medicaid recipient diagnosed with Hepatitis C, and a class of those similarly situated. Jurisdiction, Venue, and Cause of Action 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331. 3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by federal law. Parties 6. Sarah Jackson is an adult resident of Allen County, Indiana. 7. The Secretary of the Indiana Family and Social Services Administration is the duly appointed head of that agency, and is sued in her official capacity. Class Action Allegations 8. This cause is brought by Ms. Jackson on her own behalf and a class of those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 9. The class is defined as follows:
2

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 3 of 10 PageID #: 3
Any and all adult Medicaid recipients in Indiana, current and future, with a diagnosis of Hepatitis C, but with a fibrosis level lower than F3, unless those persons are co-infected with HIV or AIDS or are post-liver transplant.
10. As defined, the class meets all requirements of Rule 23(a) of the Federal Rules of Civil
Procedure. Specifically:
a. The class is so numerous that the joinder of all members is impracticable. While the precise size of the class is currently unknown, a report generated by the Indiana State Department of Health indicates that there were 5,289 known cases of Hepatitis C in Indiana during calendar year 2014. See Indiana State Department of Health, Hepatitis C: January 1, 2014 – December 31, 2014, at https://secure.in.gov/isdh/files/Hepatitis.pdf (last visited Nov. 19, 2015). Moreover, because persons must have lower fibrosis levels before progressing to a fibrosis level of F3 or F4 and because even rapid fibrosis progression may take years, see Patrick Marcellin, et al., Fibrosis and Disease Progression in Hepatitis C, 36 Hepatology 47, 50 (Nov. 2002) (available at http://citeseerx.ist.psu.edu/ viewdoc/download?doi=10.1.1.327.6749&rep=rep1&type=pdf [last visited Nov. 19, 2015]), it stands to reason that the majority of these persons have a fibrosis level lower than F3. The class will also continue to grow in number as more persons contract Hepatitis C. Additional information concerning the size of the class will be ascertained during the discovery process.
b. There are questions of law or fact common to the class, specifically whether the agency’s limitations on which patients with Hepatitis C may receive Harvoni violate federal Medicaid law.
c. The claim of the representative party is typical of that of the class.
d. The representative party will fairly and adequately represent the class.
11. The class meets the further requirements of Rule 23(b)(2) of the Federal Rules of Civil
Procedure insofar as the party opposing the class has, at all times, acted or refused to act
on grounds generally applicable to the class.
12. Undersigned counsel is skilled and experienced in litigation of this type and, as such,
should be appointed as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil
Procedure.
Factual Allegations
3

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 4 of 10 PageID #: 4
The Hepatitis C Virus and Harvoni 13. Hepatitis C is an infectious disease affecting primarily the liver, which is caused by the
hepatitis C virus (“HCV”). HCV has six major strains, known as “genotypes.” Genotype 1 is the most common strain in the United States and, as used herein, “Hepatitis C” refers to the disease caused by Genotype 1 of the HCV (although the outpatient drug at issue in this litigation, Harvoni, is effective against at least some other genotypes as well). 14. Hepatitis C is a chronic condition that can lead to scarring of the liver and to cirrhosis, liver failure, liver cancer, the need for liver transplantation, or death. 15. For patients with Hepatitis C, the extent of liver damage is measured in terms of the fibrosis (or tissue scarring) of the liver. Fibrosis levels are scored on a five-level scale, from F0 through F4, where F0 indicates that no fibrosis has occurred and F4 indicates that the patient has suffered cirrhosis. (The fibrosis level is also sometimes referenced as the “metavir score.”) 16. Since October 2014, the two-drug combination ledipasvir/sofosbuvir has been marketed under the trade name Harvoni (and thus referenced as “Harvoni” herein). If taken daily for 12 weeks, Harvoni completely cures Hepatitis C in 94% to 99% of patients, irrespective of the fibrosis level or the presence or absence of liver cirrhosis. 17. Although persons with higher fibrosis scores (F3 and F4) are no doubt in greater need of immediate treatment with Harvoni—insofar as they are at greater risk of liver failure and liver cancer—even patients with lower fibrosis scores can and do benefit greatly from Harvoni. 18. While Harvoni is highly efficacious at curing Hepatitis C, untreated chronic Hepatitis C can result in significant fibrosis and scarring to the liver (also known as cirrhosis and
4

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 5 of 10 PageID #: 5
end-stage liver disease), which can be irreversible. Once a person has developed endstage liver disease, there remains a real and significant future risk of liver-related decompensation, liver cancer (hepatocellular carcinoma), and death. The timely provision of Harvoni can prevent the further progression of liver disease in those individuals without significant fibrosis (less than F3), and can prevent the development of cirrhosis and end-stage liver-related disease—with the potential for morbidity and mortality inherent in these conditions—for these persons. 19. Even for patients with lower fibrosis scores, Harvoni serves to completely cure Hepatitis C, thus preventing any further deterioration of the liver and greatly reducing the risk of liver failure, liver cancer, or other serious conditions. If the provision of Harvoni to these persons is delayed until their liver deteriorates further and the level of fibrosis increases, the damage to their liver in the interim—and the increased risk of liver failure, liver cancer, or other serious conditions—will likely prove irreversible even with the delayed provision of Harvoni. This is because, while Harvoni cures Hepatitis C, it does not reverse the effects of Hepatitis C that have already been caused. 20. Thus, national guidelines published online in a joint statement by the Infectious Disease Society of America and the American Association for the Study of Liver Diseases (IDSA/AASLD) state that Hepatitis C treatment—through Harvoni—is recommended for all patients except for those with short life expectancies. In addition to halting liver fibrosis and preventing end-stage liver disease, studies have shown that quality of life— including emotional, physical, and social health—is substantially improved in individuals cured of Hepatitis C. Treating persons with lower fibrosis scores has also been shown to result in reduced mortality compared to those people with Hepatitis C who were not
5

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 6 of 10 PageID #: 6
treated or cured at that time. And, persons cured of Heptatitis C are no longer able to transmit the virus, such that curing persons early is of great benefit to the public health. 21. The provision of Harvoni to persons with Hepatitis C, even if they have a lower fibrosis level, is thus medically necessary. 22. On October 10, 2014, the Food and Drug Administration approved Harvoni for the treatment of persons with Hepatitis C. The provision of Harvoni to persons with Hepatitis C is thus for a medically accepted indication as defined by 42 U.S.C. § 1396r8(k)(6). The manufacturer of Harvoni has entered into, and has in effect, a rebate agreement as described in 42 U.S.C. § 1396r-8(a). 23. On November 5, 2015, the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services issued a “Notice” to states concerning the provision of Harvoni to persons with Hepatitis C. In pertinent part, that Notice provides as follows:
CMS is concerned that some states are restricting access to . . . HCV drugs contrary to statutory requirements . . . by imposing conditions for coverage that may unreasonably restrict access to these drugs. For example, several state Medicaid programs are limiting treatment to those beneficiaries whose extent of liver damage has progressed to metavir fibrosis score F3, while a number of states are requiring metavir fibrosis scores of F4. A true and correct copy of this Notice is attached and incorporated herein as Exhibit 1. The Policy of the Indiana Family and Social Services Administration 24. The Indiana Family and Social Services Administration (“the State” or “the agency”) is responsible for operating the Medicaid program in Indiana. 25. On or about December 30, 2014, the agency issued a “Bulletin” establishing requirements for Medicaid recipients to receive Harvoni. In pertinent part, the agency refused to provide coverage for Harvoni to persons whose fibrosis score was lower than F4—that is,
6

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 7 of 10 PageID #: 7
to persons not already suffering cirrhosis. A true and correct copy of this Bulletin is attached and incorporated herein as Exhibit 2. 26. On or about October 1, 2015, the agency issued revised requirements for Medicaid recipients to receive Harvoni. In pertinent part, the agency refused to provide (and continues to refuse to provide) coverage for Harvoni to persons whose fibrosis level is lower than F3, unless those persons are co-infected with HIV or AIDS or are post-liver transplant. A true and correct copy of these revised requirements is attached and incorporated herein as Exhibit 3. 27. By refusing to provide Medicaid coverage to persons with Hepatitis C and with lower fibrosis scores, the agency is refusing to provide medically necessary treatment that could prevent permanent liver damage, cancer, or other undeniably serious conditions. Sarah Jackson and the Putative Class 28. Sarah Jackson is an adult resident of Allen County, Indiana, and is a Medicaid recipient. 29. Ms. Jackson has been diagnosed with Hepatitis C, although her fibrosis level is lower than F3, she is not co-infected with HIV or AIDS, and she is not post-liver transplant. 30. Nonetheless, for all the reasons described above, Ms. Jackson would immediately benefit from the provision of Harvoni, which would prevent further liver damage, cancer, or other undeniably serious conditions. Immediate treatment with Harvoni is medically necessary for Ms. Jackson. 31. In fact, treatment with Harvoni is particular important for Ms. Jackson insofar as she has recently given birth. Hepatitis C may be transmitted from mother to child during breastfeeding, and so treating Ms. Jackson with Harvoni now might stop the spread of the disease to her infant. On top of this, Ms. Jackson could again carry a child and, if she is
7

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 8 of 10 PageID #: 8
not cured, her child would again be at risk of vertical transmission (that is, the transmission of HCV from mother to child during gestation, birth, or the post-partum period). 32. In October 2015, Ms. Jackson—through her physician—sought approval from the agency for a course of Harvoni to cure her Hepatitis C. That request was denied by the agency, with the following explanation:
The plan requires that the member have a diagnosis of chronic hepatitis C genotype 1 with >stage 2 fibrosis, co-infection with HIV or AIDS, or post liver transplant. Based on the information provided, this requirement was not met. A true and correct copy of this denial notification is attached and incorporated herein as Exhibit 4. Ms. Jackson’s physician appealed this decision through a process known as administrative review, but that appeal was rejected for the same reason. 33. Moreover, Ms. Jackson is not alone. Hundreds if not thousands of Medicaid recipients in Indiana would benefit from Harvoni immediately even though their fibrosis levels are less than F3. Harvoni is medically necessary for these persons as well. Concluding Factual Allegations 34. As a result of the actions or inactions of the defendant, the plaintiff and the putative class are suffering irreparable harm for which there is no adequate remedy at law. 35. The defendant has at all times acted or refused to act under color of state law. Legal Claim 36. The defendant refuses to provide Harvoni to Medicaid recipients even when that drug is “medically necessary,” and it is therefore acting in violation of federal Medicaid law. Request for Relief
8

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 9 of 10 PageID #: 9 WHEREFORE, the plaintiff and the putative class respectfully request that this Court do
the following: 1. Accept jurisdiction of this cause and set it for hearing 2. Certify this cause as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules
of Civil Procedure, with the class as defined above. 3. Issue a preliminary injunction, later to be made permanent, enjoining the defendant from
enforcing its requirement that Medicaid recipients with Hepatitis C but whose fibrosis level is lower than F3 may not receive Harvoni unless those persons are co-infected with HIV or AIDS or are post-liver transplant, and requiring the defendant to provide Harvoni to all patients for whom it is medically necessary. 4. Award the plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988. 5. Award all other proper relief.
9

Case 1:15-cv-01874-SEB-MPB Document 1 Filed 11/25/15 Page 10 of 10 PageID #: 10
Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059, x106 <grose@aclu-in.org> /s/ Fran Quigley Fran Quigley Health and Human Rights Clinic Indiana Univ. McKinney School of Law 530 West New York Street Indianapolis, IN 46202 317/274-1911 <quigley2@iupui.edu> Attorneys for the plaintiff and the putative
class
10

 
 Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 1 of 6 PageID #: 460

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SARAH JACKSON on her own behalf and )

on behalf of a class of those similarly

)

situated,

)

)

Plaintiff,

)

)

vs.

)

)

SECRETARY OF THE INDIANA

)

FAMILY AND SOCIAL SERVICES

)

ADMINISTRATION in his official

)

capacity,

)

)

Defendant.

)

1:15-cv-01874-SEB-MPB

ORDER DENYING MOTION TO DISMISS This matter comes before us the Motion to Dismiss filed by Defendant Secretary of

the Indiana Family and Social Services Administration in his official capacity on January

15, 2016, pursuant to Federal Rule of Civil Procedure 12(b)(6). [Dkt. No. 20.] For the

following reasons and in the manner explained below, Defendant’s Motion to Dismiss is

DENIED.

Background This dispute involves the access of Medicaid recipients to a Hepatitis C drug called

Harvoni. Harvoni has been on the market since October 2014 and, if taken daily for 12

weeks, completely cures Hepatitis C in 94% to 99% of patients; however, Harvoni cannot

reverse the effects of Hepatitis C. When left untreated, Hepatitis C can result in significant

fibrosis and scarring to the liver (cirrhosis). Plaintiff Sarah Jackson is a Medicaid recipient

Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 2 of 6 PageID #: 461
diagnosed with Hepatitis C. She claims that Harvoni is medically necessary to prevent liver damage, cancer, and other serious conditions, and to protect her newborn child as well as future children to whom she might give birth.
In October 2015 and through her physician, Ms. Jackson sought approval from the Indiana Family and Social Services Administration to receive a course of Harvoni medication. That request was denied on the following grounds:
The [Medicaid] plan requires that the member have a diagnosis of chronic hepatitis C genotype 1 with >stage 2 fibrosis, co-infection with HIV or AIDS, or post liver transplant. Based on the information provided, this requirement was not met. [Compl. ¶ 32.]1 Ms. Jackson attaches to her Complaint a November 5, 2015 notice from the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services as well as two bulletins issued by Defendant which she contends establish the above-referenced prerequisites before Medicaid recipients can receive Harvoni. On behalf of herself and a putative class, Ms. Jackson alleges that “[D]efendant [is refusing] to provide Harvoni to Medicaid recipients even when that drug is ‘medically necessary,’ and it is therefore acting in violation of federal Medicaid law.” [Id. ¶ 36.] On February 5, 2016, the Magistrate Judge granted a Motion to Stay the Proceedings filed by Defendant [Dkt. No. 27] to which Plaintiff filed a Federal Rule of Civil Procedure 72(a) objection on the same day [Dkt. No. 28]. The stay of pre-trial proceedings approved
1 The Complaint explains that the progression of Hepatitis C is measured by the patient’s fibrosis level, with F0 indicating no fibrosis through F4 indicating cirrhosis of the liver. [Compl. ¶ 1.]
2

Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 3 of 6 PageID #: 462
by the Magistrate Judge expires upon the resolution of Defendant’s Motion to Dismiss. [Dkt. No. 27.] Our Order herein resolves Defendant’s Motion to Dismiss and, as a result, the stay is lifted and Plaintiff’s Objections to the Magistrate Judge’s Order are overruled as moot.
Analysis In the procedural context of a motion based on Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all well-pled factual allegations in the complaint and draw all ensuing inferences in favor of the non-movant. Lake v. Neal, 585 F.3d 1059, 1060 (7th Cir. 2009). Nevertheless, the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” and its “[f]actual allegations must . . . raise a right to relief above the speculative level.” Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (citations omitted). The complaint must therefore include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed. R. Civ. P. 8(a)(2). Stated otherwise, a facially plausible complaint is one which permits “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendant originally sought the dismissal of Plaintiff’s Complaint on the ground that it “does not provide any specification as to what portion of federal Medicaid law is violated by the Bulletin and Defendant’s policies.” [Dkt. No. 21 at 1.] In its Reply, Defendant recasts its motion as one seeking a more definite statement of Plaintiff’s claim. [Dkt. No. 31 at 3 (describing Plaintiff’s preliminary injunction briefing as providing “more
3

Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 4 of 6 PageID #: 463
clarity” and agreeing that it would be appropriate and reasonable to treat its motion to dismiss as a motion for more definite statement).] According to Defendant, because “Medicaid is an intricate program,” to state a claim upon which relief can be granted, Plaintiff must identify which portion(s) of the Medicaid law are being violated by the policy she describes. [Dkt. No. 21 at 3-4.]2
Plaintiff’s rejoinder is two-fold. First, she focuses our attention on what Defendant does not argue, to wit, that Plaintiff’s Complaint lacks sufficient factual particularity. According to Plaintiff, Defendant is seeking to compel her to plead a legal theory, which neither the Rules of Procedure nor Seventh Circuit jurisprudence requires. In light of Defendant’s lack of an argument otherwise, we find no difficulty concluding that Plaintiff’s Complaint includes sufficient facts to put Defendant on notice of her claims.
Second, Plaintiff argues that it is not enough to dismiss her Complaint (or require a more definite statement) based solely on Plaintiff’s failure to supply statutory citations in her pleading. Federal Rule 8’s notice pleading requirements demand that a complaint contain sufficient factual detail (which is not in dispute here) and do not require a complaint to include legal theories or point to specific statutory provisions.
Even in the wake of Iqbal and Twombly, the federal rules are devoid of any requirement that a complaint set forth a legal theory or cite to a specific statute in order to
2 According to the Complaint, “[t]he Indiana Family and Social Services Administration . . . is responsible for operating the Medicaid program in Indiana.” [Compl. ¶ 24.] As a result, we do not find persuasive Defendant’s argument that it “is unable to adequately evaluate the Plaintiff’s claims” without a citation to the specific portion of the Medicaid law at issue. [Dkt. No. 31 at 12.] Defendant should have a greater than average understanding of the Medicaid law and should possess the ability to navigate its complexities.
4

Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 5 of 6 PageID #: 464
put the Defendant on notice of the claims against it. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (cited by Defendant) (citing to Twombly and stating that “the factual allegations in the complaint ‘must be enough to raise a right to relief above the speculative level’”). Defendant concedes that under Seventh Circuit precedent, “Plaintiff is not required to plead their [sic] legal theory,” but argues that Plaintiff should be required to identify which of the “complex series of statutes and regulations” under the Medicaid law are at issue. [See Dkt. No. 21 at 4, 2-3 (relying on Iqbal, 129 S.Ct. at 1948; Twombly, 550 U.S. at 554-55 which point to the requirement of sufficient factual content and not a legal theory requirement).] The Seventh Circuit in B. Sanfield, Inc. v. Finlay Fine Jewelry Corp. held:
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claim”; it does not require the plaintiff to plead legal theories. E.g., Goren v. New Vision Int’l, Inc., 156 F.3d 721, 730 n. 8 (7th Cir.1998). It is of no moment, consequently, that the complaint did not identify either of the two regulations on which [Plaintiff] stakes its case. See id. (complaint's citation of single statutory subsection did not preclude reliance upon another subsection that was not cited), citing Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (complaint need not cite statute on which claim is based). 168 F.3d 967, 973 (7th Cir. 1999). We reach the same conclusion here. Plaintiff is not required to identify the specific provision of the Medicaid statute[s] that Defendant allegedly violated to avoid dismissal. See Cook v. Winfrey, 141 F.3d 322, 328 (7th Cir. 1998) (“A Rule 12(b)(6) motion cannot be used to dismiss a complaint on the ground that it does not include information that Rule 8 does not require it to contain.”); Darnell v. Hoelscher, Inc., No. 09-CV-204-JPG, 2009 WL 1768655, at *2 (S.D. Ill. June 23, 2009) (citing Shah v. Inter–Continental Hotel
5

Case 1:15-cv-01874-SEB-MPB Document 36 Filed 04/12/16 Page 6 of 6 PageID #: 465
Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002) (“The plaintiff is not required to plead facts or legal theories or cases or statutes, but merely to describe his claim briefly and simply.”)). Plaintiff has sufficiently placed Defendant on notice of her claims.
Defendant has not established that Plaintiff’s Complaint fails to state a claim upon which relief can be granted, nor has it demonstrated a need to compel Plaintiff to file a more definite statement under Federal Rule of Civil Procedure 12(e). Accordingly, we DENY Defendant’s Motion to Dismiss [Dkt. No. 20] and OVERRULE Plaintiff’s Objections to Magistrate Judge’s Order Staying Proceedings [Dkt. No. 28] as MOOT. The stay imposed by Docket Number 27 is lifted. We instruct the Magistrate Judge to hold a status conference as soon as possible to establish a briefing schedule for the motions currently pending on the docket.
Date: __4_/_1_2_/2_0_1_6____ Distribution: Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov Dennis E. Mullen INDIANA ATTORNEY GENERAL dennis.mullen@atg.in.gov Kelly J. Pautler INDIANA ATTORNEY GENERAL kelly.pautler@atg.in.gov
6

 
 Case 1:15-cv-01874-SEB-MPB Document 69 Filed 06/29/16 Page 1 of 4 PageID #: 1667

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SARAH JACKSON on her own behalf and on )

behalf of a class of those similarly situated,

)

)

Plaintiff,

)

)

vs.

)

)

SECRETARY OF THE INDIANA FAMILY )

AND SOCIAL SERVICES

)

ADMINISTRATION in his official capacity, )

)

Defendant.

)

No. 1:15-cv-01874-SEB-MPB

ORDER This matter comes before the Court on two pending motions filed by Defendant, Secretary of the Indiana Family and Social Services Administration (“FSSA”)—a Motion to Maintain Documents Under Seal (Docket No. 46) and a Motion to Compel (Docket No. 47). The Court will now address each motion in turn.
I. FSSA’s MOTION TO COMPEL (Docket No. 47) FSSA filed a Motion to Compel on May 9, 2016, requesting that the Court order Plaintiff to provide a signed authorization for the release of her protected health information. (Docket No. 47 at 2). FSSA asserted that it was not permitted to discuss Plaintiff’s health information during the litigation of this matter without a signed HIPAA-compliant release. For the following reasons, the Court DENIES FSSA’s motion to compel. FSSA’s position is Jackson has sued the FSSA claiming she is being denied a medically necessary prescription drug treatment and, therefore, has placed her protected health information at issue in the case. (Docket No. 47 at 1). On January 26, 2016, FSSA requested

Case 1:15-cv-01874-SEB-MPB Document 69 Filed 06/29/16 Page 2 of 4 PageID #: 1668
that Jackson’s counsel provide a signed HIPAA-compliant release and authorization for the release of records so that Jackson’s protected health information could be released and discussed during the litigation of this matter. (Docket No. 47 at 1). FSSA sent a second and third request to Jackson on February 5, 2016, and April 26, 2016, respectively. (Docket No. 47 at 2). Correspondence between the parties during this time indicates both sides were determining whether a protective order would suffice in lieu of a HIPAA-compliant authorization. (Docket No. 55-1). During a telephonic status conference on May 17, 2016, this Court directed the parties to file a Uniform Protective Order in accordance with Fed. R. Civ. P. 26(c)(1), which the Court approved on May 25, 2016. (Docket No. 56).
In this instance, a motion to compel Jackson to provide a HIPAA-compliant authorization is not necessary. Information may be disclosed in a judicial proceeding if parties have agreed to a qualified protective order and presented it to the court. 45 C.F.R. 164.512 (e)(1)(iii). A qualified protective order prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested and requires the return to the covered entity or destruction of the protected health information at the end of the litigation or proceeding. 45 C.F.R. 164.512 (e)(1)(v). The aforementioned protective order provides both safeguards. First, part V(A) provides that information produced or exchanged in the course of the action may be used solely for this litigation. Second, part VII(A) requires that upon conclusion of the action parties are responsible for ensuring that any shared or disclosed designated information in the action is returned or destroyed, regardless of a medium.
Given that the uniform protective order entered into in this case meets the requirements set forth in 45 C.F.R. 165.512(e)(1)(v) the FSSA is authorized to release and discuss Jackson’s

Case 1:15-cv-01874-SEB-MPB Document 69 Filed 06/29/16 Page 3 of 4 PageID #: 1669
protected health information in this judicial proceeding. See 45 C.F.R. 164.512 (e)(1)(iii). A motion to compel Jackson to sign a HIPAA-compliant authorization is unnecessary and this motion to compel is, therefore, DENIED. See Gile, 95.F.3d at 495.
II. FSSA’s MOTION TO MAINTAIN DOCUMENTS UNDER SEAL (Docket No. 46)
FSSA also filed a Motion to Maintain Documents under Seal on May 8, 2016, requesting that the Court grant leave to maintain its filed responses in opposition to preliminary injunction and class certification. (Docket No. 46 at 2). Jackson supports this motion to seal. (Docket No. 55 at 1). The Court being duly and sufficiently advised now GRANTS the motion.
A court may order a filing maintained under seal without redaction if it determines good cause exists. Fed. R. Civ. P. 5.2(d); Fed. R. Civ. P. 26(c)(1)(H). Good cause must exist, as the public interest in transparent court proceedings may outweigh the property and privacy interests of the litigants. Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999). To prevail on a motion to seal a specific document, therefore, the moving party must assert that the privacy interests of the litigant outweighs the public’s interest. See id.
Upon an in camera review by this Court of the documents in question, the Court finds that FSSA’s responses in opposition to the preliminary injunction and class certification do contain information concerning Ms. Jackson that is protected by HIPAA. therefore, good cause exists to seal these documents. As this case continues counsel should not expect any and all future FSSA filings will be ordered to be filed under seal. The Court will weigh the privacy

Case 1:15-cv-01874-SEB-MPB Document 69 Filed 06/29/16 Page 4 of 4 PageID #: 1670
interests of the litigant against the public’s interest as the cause progresses. The Court ORDERS that Docket No. 44 and Docket No. 45 be maintained under seal. The Court further ORDERS FSSA to file redacted versions of the same within five (5) days of this Order.
SO ORDERED.
Date: June 29, 2016
Service will be made electronically on all ECF-registered counsel of record via email generated by the court’s ECF system.

 
 Case 1:15-cv-01874-SEB-MPB Document 159 Filed 11/09/18 Page 1 of 2 PageID #: 4106

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TENNEIL SELNER, on her own behalf and on )

behalf of a class of those similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

SECRETARY OF THE INDIANA FAMILY

)

AND SOCIAL SERVICES ADMINISTRATION, )

in her official capacity,

)

)

Defendant.

)

No. 1:15-cv-01874-SEB-MPB

ORDER CERTIFYING CAUSE AS CLASS ACTION

The plaintiff having filed her Second Renewed Motion for Class Certification (Dkt. 143),

and the parties having subsequently filed their Stipulation to Class Certification (“Stipulation”),

and the Court having read and reviewed the same and being duly advised, the Court now finds that

said Stipulation should be APPROVED and that this cause should be certified as a class action

pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.

IT IS THEREFORE ORDERED that this cause is hereby certified as a class action

pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.

IT IS FURTHER ORDERED that the certified class is hereby defined as follows:

Any and all adult Medicaid recipients in Indiana, current and future, with a diagnosis of chronic Hepatitis C, genotype 1, who have been prescribed one of the direct-acting antiviral medications enumerated in the 2016 Policy or 2018 Policy, by or in consultation with an Infectious Disease or GI specialist, but do not meet the medical requirements of such policy to receive Medicaid reimbursement for that prescribed medication.

The “2016 Policy” refers to the document attached to the parties’ Stipulation to Class Certification

as Exhibit 1 and the “2018 Policy” refers to the document attached to the parties’ Stipulation to

1

Case 1:15-cv-01874-SEB-MPB Document 159 Filed 11/09/18 Page 2 of 2 PageID #: 4107

Class Certification as Exhibit 2. IT IS FURTHER ORDERED that Gavin M. Rose and Kenneth J. Falk of the ACLU of
Indiana are hereby appointed as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
SO ORDERED.

________1_1_/_9_/2__0_1_8________ Date

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

Distribution: All ECF-registered counsel of record

2

 
 Case 1:15-cv-01874-SEB-MPB Document 160 Filed 11/26/18 Page 1 of 3 PageID #: 4108

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TENNEIL SELNER, on her own behalf and on )

behalf of a class of those similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

SECRETARY OF THE INDIANA FAMILY

)

AND SOCIAL SERVICES ADMINISTRATION, )

in her official capacity,

)

)

Defendant.

)

No. 1:15-cv-01874-SEB-MPB

ORDER APPROVING MANNER AND FORM OF NOTICE TO THE CLASS AND SETTING FAIRNESS HEARING

The parties having filed their Joint Motion to Approve Manner and Form of Notice to the

Class and to Set Fairness Hearing (“Motion”), and the Court having read and reviewed the same

and being duly advised, the Court now APPROVES the proposed manner and form of providing

notice to the class and SETS this matter for a fairness hearing pursuant to Rule 23(e) of the Federal

Rules of Civil Procedure.

IT IS THEREFORE ORDERED that the class notice attached to the Motion as Exhibit

1 is hereby approved.

1. IT IS FURTHER ORDERED that notice shall be given in the following manner:

a. Counsel for the plaintiff shall cause it to be sent individually to every physician that has requested prior authorization on behalf of a patient for one or more of the directacting antiviral medications at issue in this litigation since October 1, 2014.

b. The defendant shall publish it in a conspicuous location on the website of the Indiana Family and Social Services Administration.

The individual notice sent to the physicians of class members shall be accompanied by a letter

1

Case 1:15-cv-01874-SEB-MPB Document 160 Filed 11/26/18 Page 2 of 3 PageID #: 4109
prepared by class counsel explaining the nature of this litigation and requesting that the physicians
provide a copy of the class notice to any of their patients that have been denied prior authorization
for the direct-acting antiviral medications. In order to permit counsel for the plaintiff to send
appropriate notice, the defendant shall, as soon as possible, provide counsel for the plaintiff with
the names and addresses of all physicians that have requested prior authorization on behalf of a
patient for one or more of the direct-acting antiviral medications at issue in this litigation since
October 1, 2014.
IT IS FURTHER ORDERED that the defendant shall publish the following notice,
providing the URL to the location that the class notice is published on the website of the Indiana
Family and Social Services Administration, in the largest newspapers of general circulation in
Indianapolis, Fort Wayne, Evansville, Gary, New Albany, and Richmond as a legal notice for at
least three consecutive weeks:
To: all adult Medicaid recipients who have been denied coverage by the Indiana Family and Social Services Administration for prescribed direct acting antiviral medications to treat their Hepatitis C. A class action lawsuit was filed in federal court challenging restrictions imposed that limit many Medicaid recipients’ ability to obtain medications prescribed by their doctors to cure their Hepatitis C. The parties have now proposed a settlement of this lawsuit that may result in your ability to obtain these medications, although that settlement cannot be approved until members of the class have an opportunity to comment on the settlement and the judge finds the settlement to be fair, reasonable, and adequate. The lawsuit does not request, and the settlement does not provide for, monetary damages. If you believe that you have been denied coverage for these medications, you might be a member of the class and this settlement might affect your rights. To learn more about the settlement and to express your opinions on the settlement, you may contact Gavin M. Rose, attorney for the class, at 317-635-4059, x106, or you may visit (INSERT URL).
IT IS FURTHER ORDERED that a fairness hearing is hereby scheduled for the ___5_t_h____ day of ___F_e_b_r_u_a_ry_______________, 2019, at 2:00 p.m. in Room 216, the Birch Bayh Federal Building and U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana.
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Class counsel shall file a report concerning any comments received from the class no later than seven days prior to the fairness hearing.
SO ORDERED.

______1__1_/2_6_/_2_0_1_8_________ Date

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

Cc: All ECF-registered counsel of record

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 Case 1:15-cv-01874-SEB-MPB Document 157-1 Filed 11/08/18 Page 1 of 7 PageID #: 4082

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TENNElL SELNER, on her own behalf and on )

behalfof a class of those similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

SECRETARY OF THE INDIANA FAMILY

)

AND SOCIA1 SERVICES ADMINISTRATION, )

in her official capacity,

)

)

Defendant.

)

No.1 :15-cv-01874-SEB-MPB

SETTLEMENT AGREEMENT

Introduction and Procedural Background

1. On November 25, 2015, Sarah Jackson filed her Class Action Complaint for

Declaratory and Injunctive Relief (ECF No. 1). On November 30, 2016, Tenneil Selner

filed her Motion for Permissive Intervention and to Join in Pending Motion for Class

Certification ("Motion to Intervene") (ECF No. 88), to which she appended her Class

Action Complaint in Intervention for Declaratory and Injunctive Relief ("Complaint-in-

Intervention") (ECF No. 88-1 through 88-6). The Motion to Intervene was granted on

January 3, 2017, and the Complaint-in-Intervention was deemed filed as of that date.

(ECF No. 95). Ms. Jackson's individual claim was thereafter dismissed (ECF Nos. 98 &

99), and the parties agree that the Complaint-in-Intervention is the operative complaint in

this cause.

2. In her Complaint-in-Intervention, Ms. Selner alleges generally-on her own

behalf and on behalf of a putative class of those similarly situated-that the policy of the

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Indiana Family and Social Services Administration governing when Medicaid recipients with chronic Hepatitis C may receive Medicaid reimbursement for several direct-acting antiviral medications, or DAAs, violates federal Medicaid Jaw. 3. The defendant generally denies the allegation made against her, and does not concede the merits of any claim advanced by the plaintiff. 4. The parties agree and understand that in reaching this Settlement Agreement ("Agreement"), defendant has denied and continues to deny any fault, wrongdoing, or liability on her part, the State of Indiana, the Indiana Family and Social Services Administration, or on the part of any of the agency's officers, employees, or agents,~ with respect to all of the claims that are made or could be made against her as part of the above-referenced claim. This Agreement has been reached solely to avoid the uncertainties of litigation and the expenses that have been or will be incurred in the defense of this matter. 5. All parties want to reach a settlement of this matter and therefore enter into this Agreement, which is designed to fully settle all issues tl1at were raised or could have been raised by this action, and which all parties intend to be binding upon them. 6. The parties have stipulated to the certification of this cause as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The putative class is defined as follows:
Any and all adult Medicaid recipients in Indiana, current and future, with a diagnosis of chronic Hepatitis C, genotype 1, who have been prescribed one of the direct-acting antiviral medications enumerated in the 2016 Policy or 2018 Policy, by or in consultation with an Infectious Disease or GI specialist, but do not meet the medical requirements of such policy to receive Medicaid reimbursement for that prescribed medication.
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The "2016 Policy" refers to the document attached to the parties' Stipulation to Class Certification_as Exhibit 1 and the "2018 Policy" refers to the document attached to the parties' Stipulation to Class Certification as Exhibit 2. This Agreement is made expressly contingent on the approval of the parties' stipulation tD have this cause certified as a class action, and on the certification of this cause as a class actiDn. In the event tnat this cause is not certified as a class action, this Agreement shall be deemed null and void. 7. Additionally, given that this Agreement is contingent on the certification of this cause as a class action, the pruties recognize that this Agreement may not be finally approved until notice to the class is provided and a fairness hearing is conducted pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, and the Court finds the Agreement to be fair, reasonable, and adequate. Contemporaneously with the parties' filing of their stipulation to enter into this Agreement, the pmties have filed their Joint Motion to Approve Manner and Form of Notice to the Class and to Set Fairness Hearing. 8. The parties intend that, once this Agreement is approved by the Court, all pending claims will be dismissed, with prejudice, subject to the terms and conditions set forth below. However, the parties agree that this Agreement is a contract, supported by good and valuable consideration, and that all contractual remedies for breach of the Agreement remain in full force and effect after this case is dismissed with prejudice. 9. This Agreement is contingent upon approval by the Governor of Indiana upon recommendation by the Attorney General. The defendant will request the necessm·y approval promptly upon execution of the Agreement by the pmties. The parties agree to submit this Agreement to the Court for approval within a reasonable time after the Agreement has been approved by the Govemor ofindiana.
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Substantive Terms of Agreement 10. By July 1, 2019, the Indiana Family and Social Services Administration ("the agency") will eliminate any restrictions based on fibmsis level or severity of disease for Medicaid recipients with chronic Hepatitis C to receive Medicaid reimbursement for direct-acting antiviral medications or DAAs: By July 1, 2019, the agency will approve all pending and future requests for prior authorization for the DAAs submitted on behalf of class-members, provided that the class-member on whose behalf a prior authorization request is submitted meets all other requirements to receive Medicaid reimbursement for the DAAs. However, nothing in this Agreement prohibits the agency from continuing to require that prior authorization requests be submitted by or in consultation with a qualified specialist, or from maintaining an "order of preference" amongst the DAAs whereby one DAA may not be approved unless a patient demonstrates that another DAA is not medically appropriate or is less likely to be effective. The plaintiff does not concede that any such requirements are or would be legal. 11. Effective promptly upon the approval of this Agreement, the agency will approve any request for prior authorization for the DAAs submitted on behalf of the named plaintiff, Tenneil Selner. 12. Until July 1, 2019, the 2018 Policy shall remain in effect and shall govern the circumstances under which Medicaid recipients in Indiana with chronic Hepatitis C may receive Medicaid reimbursement for the DAAs. The agency agrees that the phrase "other comorbidity associated with rapid progression," as used in the 2016 Policy and 2018 Policy, is and shall be interpreted to allow Medicaid recipients with chronic Hepatitis C to receive Medicaid reimbursement for the DAAs, without regard to their level of
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fibrosis, either if they possess a co-morbidity that has been shown to be associated with the rapid progression of fibrosis or if their Hepatitis C is actively symptomatic, demonstrating an individual medical need. Such symptoms might include, for instance, debilitating fatigue or debilitating depression associated with Hepatitis C. The agency agrees that it will provide notice of this interpretation to all Medicaid providers through the use of a Medicaid Provider BuHetin. Should the agency choose, this notice may be provided before the approval of this Agreement by the Court, although in no event shall it be sent more than sixty days after the approval of this Agreement. 13. Nothing in this Agreement shall be c0nstrued to prohibit the agency from adjusting the prior authorization criteria for a DAA to reflect changes in FDA approval parameters or to reflect changes in the order of preference on the Preferred Drug List. 14. Within 14 days after the approval of this Agreement by the Court and payment of plaintiff's counsels' attorney fees, the parties shall execute and file a stipulation to the dismissal of this cause, with prejudice. 15. For purposes of this Agreement, "the 2016 Policy" shall refer to the "Criteria for Indiana Medicaid Hepatitis C agents," which is attached to this Agreement and incorporated herein as Exhibit 1, and "the 2018 Policy" shall refer to the "Criteria for Indiana Medicaid Hepatitis C agents," which is attached to this Agreement and incorporated herein as Exhibit 2. 16. For purposes of this Agreement, the term "direct-acting antiviral medications" or "DAAs" shall refer to prescription drugs or combinations of drugs that have been approved by the Food and Drug Administration for the treatment of Hepatitis C and/or the Hepatitis C virus and are eligible for reimbursement pursuant to 42 U.S.C. § 1396r-8;
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Case 1:15-cv-01874-SEB-MPB Document 157-1 Filed 11/08/18 Page 6 of 7 PageID #: 4087
I.C. 12-15-35; I.C. 12-15-35.5; and applicable federal and state regulations. DAAs may be subject to a Preferred Drug List established and approved by the Indiana Drug Utilization Review (DUR) Board. 17. Either party may seek modification of this Agreement in the event of a significant change in facts or law following the approval of this Agreement. Such a proposed modification will be governed by the standards of Rufo v. Inmates ofSuffolk County Jail, 502 U.S. 367, 393 (1992), which require, inter alia, that the party seeking modification "establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance." In the event that the parties are unable to agree on a proposed modification, either party may seek modification by filing an action in a court of competent jurisdiction, which shall be governed by the aforementioned standard.
Miscellaneous Provisions 18. The defendant agrees to pay counsel for the plaintiff $117,500.00 in full satisfaction of any claims for attorneys' fees and costs in this case. This payment shall be made within a reasonable time after the Court's approval of this Agreement. 19. This Agreement is the final, integrated written agreement between the parties and supersedes all prior negotiations or drafts. It may only be modified upon written agreement between the parties, and with approval by the Court as necessary. All parties were fully represented by counseLin the drafting and consideration of the Agreement, and no party shall be construed as the only drafter for purposes of agreement interpretation. 20. Upon approval by the Court, this Agreement is entered into by and between plaintiff, on her own behalf and on behalf of the class identified in paragraph 6, above, in
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full settlement and satisfaction of any and all claims that were brought or could have been brought by her, as well as any and all claims for injunctive relief that were or could have been brought by members of the class, related to the events alleged in the complaints filed in this action and plaintiffs allegations that she and those similarly situated were denied prior authorization for a DAA in violation of federal Medicaid law, whether in state or federal courts, through and including the date ofthe approval of this Agreement. 21. Plaintiff agrees that, upon approval by the Court; she is releasing defendant from liability for any injuries, costs, or damages allegedly incurred as a result of or incidentally related to any and all of plaintiffs claims that were brought or could have been brought related to the events alleged in the complaints occurring prior to the approval of this Agreement. 22. Each party shall bear their own costs and expenses associated with this cause, except as specifically provided herein. 23. This Agreement shall be enforceable by the bringing of an action for declaratory judgment and/or a breach of contract action, or any other cause of action.

For the Plaintiff and the Class:

For the Defendant:

Benjamin Jo s Office oft diana Attorney General IGCS- S'h Floor
302 W. Washington St. Indianapolis, IN 46204

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