          United States Court of Appeals
                     For the First Circuit

Nos.  19-1262
     19-1767

  ROSIE D., by her parents John and Debra D.; TYRIEK H., by his
 mother Christine H.; JOSHUA D., by his mother Emelie D.; SHEENA
    M., by her mother Deborah D.; DEVIN E., by his grandmother
  Barbara E.; ANTON B., by his mother Lisa A.; SHAUN E., by his
  grandmother Jacquelyn E.; JERRY N., by his mother Susan P. on
      behalf of themselves and all others similarly situated,

                     Plaintiffs, Appellees,

NATHAN F., by his mother Tracey F.; SAMUEL L.; JOSE M.; TERRENCE
   M.; MARC ST.  L.; NATISHA M.; SARAH B.; FORREST W.; JASON S.;
  SHENTELLE G.; CHRISTINE Q.; KRISTIN P.; CHRIS T.; CHELSEA T.;
      RALPH B.; TEVIN W.; DANIELLE H.; JANICE B.; KRISTIN H.,

                           Plaintiffs,

                               v.

  CHARLES D. BAKER, Governor of Massachusetts; MARYLOU SUDDERS,
 Secretary of the Executive Office of Health and Human Services;
     MICHAEL HEFFERNAN, Secretary of the Executive Office of
Administration and Finance; DANIEL TSAI, Assistant Secretary for
                           MassHealth,

                     Defendants, Appellants. 


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon.  Michael A. Ponsor, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
                Lynch and Lipez, Circuit Judges. 
     Daniel J. Hammond, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, and Douglas S.
Martland, Assistant Attorney General, were on brief, for
appellants. 
     Steven J. Schwartz, with whom Cathy E. Costanzo, Kathryn
Rucker, Center for Public Representation, Daniel W. Halston,
Wilmer Hale, LLP, and Frank Laski were on brief, for appellees. 
     Martha Jane Perkins and National Health Law Program on brief
for National Health Law Program, American Academy of Pediatrics,
Massachusetts Chapter of the American Academy of Pediatrics, Judge
David L. Bazelon Center, and National Center for Youth Law, amici
curiae. 


                           May 4, 2020
          LYNCH, Circuit Judge.          We issue this narrow opinion in

response to an appeal from the denial of the "Motion Regarding

Substantial    Compliance   and   To    Terminate    Monitoring    and    Court

Supervision" filed by the Commonwealth Defendants in long-running

class-action    litigation.        The    underlying    suit    concerns       the

Commonwealth's compliance with federal statutory requirements for

provision of services to a plaintiff class of Medicaid-eligible

children with serious emotional disturbances.                  See 42 U.S.C.

§§ 1396a(a)(8), -(a)(10)(A), -(a)(43), 1396d(a)(4)(B), -(r)(5). 

For the reasons that follow, we reverse the district court's order

denying Defendants' motion and remand for further proceedings. 

          Plaintiffs first sued the Commonwealth in 2001.  In 2006,

the district court held a non-jury trial and issued an opinion

finding the Commonwealth liable for violating Medicaid provisions

as to "reasonable promptness" and "early and periodic screening,

diagnosis, and treatment" ("EPSDT") services.                See Rosie D. v.

Romney, 410 F. Supp.  2d 18 (D. Mass. 2006). 

          The    court   sought    filings    from    the     parties    as    to

appropriate remedial orders.        In 2007, the district court issued

a final judgment, in the form of an injunction, largely adopting

the Commonwealth's proposed remedial plan.            Part I of the Judgment

was broken down into sections A ("Education and Outreach and

Screening"), B ("Assessment and Diagnosis"), C ("Intensive Care

Coordination and Treatment Planning"), D ("Covered Services"), and


                                   - 3 -
E ("Implementation," including data collection and monitoring as

to the Commonwealth's compliance with the Judgment).  The reporting

and monitoring obligations set forth in sub-section I.E.31 were

set to "terminate five years after the date of entry of this

Judgment," or in approximately July 2012.             A court monitor was

appointed in April 2007 and has continued.           The Judgment included

a provision for its own modification, which can be ordered "for

good cause upon application to the Court by either party; or . . . 

by agreement of the parties." 

           At the end of June 2012, the district court proposed

that the sub-section I.E.3 reporting and monitoring requirements

continue while the parties negotiated a "plan for disengagement." 

The parties agreed and submitted a joint disengagement plan in

June 2013.      By agreement of the parties, the court extended the

Court Monitor's tenure for discrete six-month periods ten times. 

Each of these extensions constituted a modification of the Judgment

by the agreement of the parties. 

           The period of agreed upon extensions ended on December

31,   2018.2    On   September   27,   2018,   at   the   district   court's



      1   These obligations include designating a compliance
coordinator, holding quarterly compliance meetings, submitting
semi-annual compliance reports, and appointing a court monitor. 
      2   The district court has extended the Court Monitor's
tenure two more times over the Commonwealth's objection: once until
June 30, 2019 while the motion was pending, and once while this



                                  - 4 -
direction, the Commonwealth filed the motion at issue.                  The

Commonwealth's   motion   asked   that    the   court   "terminat[e]   all

monitoring and reporting requirements set forth in the Judgment." 

This was not a request to modify the Judgment to end the monitoring

and reporting requirements early, before the final agreed upon

extension of the Court Monitor's term expired on December 31, 2018. 

The Commonwealth was clear that it was "not asking to modify or

terminate the Judgment in this case. "3

          The Commonwealth's motion presented three arguments:

          First, the Judgment expressly provided that
          the monitoring and reporting requirements
          would "terminated" [sic] in 2012, and the
          Court should now, based on the substantial
          compliance showing, give effect to that
          mandate.    Second, where, as here, the state
          government   defendants   have   substantially
          complied with a remedial judgment, there is no
          basis for ongoing court oversight.          See
          Milliken v. Bradley, 433 U.S. 267, 282 (1977);
          Horne v. Flores, 557 U.S. 433 (2009). 
          Finally, there has been no proven non-
          compliance through any motion for or finding
          of contempt against the Defendants. 




appeal is pending, "unless and until the Court of Appeals orders
differently." 
     3    The dissent mischaracterizes the case before the
district court and before us in several ways, including when it
characterizes this appeal as about "two competing requests for
modifications of the judgment."         Regardless of how the
Commonwealth's motion is styled, the district court's decision
went beyond declining to terminate monitoring requirements early
and instead modified the Judgment to extend the monitoring
requirements.  Our task is to review that decision. 


                                  - 5 -
The Commonwealth's motion does not ask to vacate the entire

injunction.     At oral argument, the Commonwealth was explicit that

it agrees that the district court should retain jurisdiction over

the case and that Plaintiffs remain free to pursue claims of

violation of the express terms of the injunction. 

            In their response to the motion, Plaintiffs agreed that

the Commonwealth was in substantial compliance with sections I.A

and I.E of the Judgment but argued that the Commonwealth was not

in    compliance   with    large   parts       of   the   Judgment,   especially

provisions in sections I.B, I.C, and I.D.                 The Plaintiffs agreed

the    court   could      "terminate     monitoring       and   reporting,   and

relinquish active supervision over paragraphs 2-11, 36, and 39-

45."  The Plaintiffs argued the court needed to continue monitoring

for "all other sections of the Judgment." 

            The district court denied the Commonwealth's motion in

its entirety,4 even though it only based its denial on and only

analyzed the Commonwealth's compliance with section I.C. The court

specifically declined to address the Plaintiffs' arguments about

sections I.B or I.D of the Judgment.             It held that the Commonwealth

was out of compliance as to section I.C of the Judgment with

respect to "reasonable promptness."  It concluded as to "reasonable



       4  The court denied the entire motion after it noted that
"[n]o further oversight or monitoring is needed" for section I.A
of the Judgment. 



                                       - 6 -
promptness" that the Judgment incorporates a requirement that

services be provided to class members within fourteen days.                      It

also said the fourteen-day requirement was itself imposed by

regulation.       In denying the motion, the district court stated that

it "retain[ed] the power and the responsibility to continue its

supervision and monitoring, with the essential assistance of the

Court       Monitor,    until    reasonable     compliance       is    achieved,"

presumably as measured relative to the fourteen-day standard.5

              The    district   court's    analysis    was    flawed    from   the

outset.       While it declined to decide who bore the burden of proof,

it   treated    indefinite      continuation    of    the    monitoring   as   the

baseline from which it would depart only if the Commonwealth

demonstrated (or the Plaintiffs demonstrated lack of) substantial

compliance with the Judgment.              To that end, the district court

concluded      its   analysis   by   stating,   "For    almost    seven   years,

Defendants have tacitly agreed to the extension of the monitoring

function.       They have failed to show that it must end now."                  But

the extensions of the monitoring period agreed to by the parties



        5 Since the monitoring provisions were set to expire in
2012 and only continued until the end of 2018 with the consent of
both parties, the district court's statement constitutes a
continuation of the Judgment, which gives us jurisdiction to hear
this appeal under 28 U.S.C. § 1292(a)(1).      See Sierra Club v.
Marsh, 907 F.2d 210, 212-13 (1st Cir.  1990). 
          The Commonwealth also appealed the district court's
decision to extend the tenure of the Court Monitor while this
appeal is pending.  The analysis as to this appeal is the same. 


                                      - 7 -
were set to terminate automatically on December 31, 2018.                        It was

a further extension of the monitoring period, not its termination,

that constituted a modification of the Judgment, which, without an

agreement of the parties, could only be accomplished "for good

cause upon application to the Court by either party."                           Neither

that "good cause" standard nor any examination of it appear

anywhere in the district court's analysis.6

              A judgment may be modified if "the judgment has been

satisfied, released, or discharged; it is based on an earlier

judgment      that     has   been   reversed      or    vacated;    or    applying   it

prospectively is no longer equitable; or . . .  any other reason

that       justifies     relief."           Fed.     R.    Civ.     P.      60(b)(5)-(6). 

Interpreting Fed.  R. Civ.  P. 60(b) in the analogous context of a

consent      decree    arising,     like    this   Judgment,       in    a   litigation

demanding institutional reform, the Supreme Court found that the

"party seeking modification of a consent decree bears the burden

of   establishing        that   a   significant         change     in    circumstances

warrants revision of the decree."               Rufo v. Inmates of Suffolk Cty. 

Jail, 502 U.S. 367, 383 (1992); see also Quinn v. City of Bos., 

325 F.3d 18, 45 (1st Cir.  2003) (Lipez, J., dissenting) ("While a


       6  We note as well that the district court undertook this
analysis in the context of the Commonwealth's motion, not in
response   to  any   motion  from   the   Plaintiffs  requesting
modification.    And it never entered anything into the docket
suggesting the Judgment had been modified, as it had done
previously. 


                                       - 8 -
modification of a consent decree is warranted if there is 'a

significant change either in factual conditions or in law,' 'a

party seeking modification of a consent decree bears the burden of

establishing that a significant change in circumstances warrants

revision of the decree.'" ( citation omitted) (quoting Rufo, 502

U.S. at 383-84)).          Elaborating on that standard, the Court set

forth circumstances in which changed facts warrant modifying a

decree, including "when changed factual conditions make compliance

with the decree substantially more onerous[,] . . .  when a decree

proves to be unworkable because of unforeseen obstacles[,] . . . 

or when enforcement of the decree without modification would be

detrimental to the public interest."               Rufo, 502 U.S. at 384. 

Finally, the Court clarified that modification should "ordinarily

. . .    not    be   granted"    if    the   changed    facts   "actually   were

anticipated" at the time of the initial decree, and that, where

changed circumstances do warrant a modification, the "court should

consider whether the proposed modification is suitably tailored to

the changed circumstance."            Id. at 383-85. 

              The district court failed to apply anything resembling

Rufo's standard in examining whether it was appropriate to modify

the Judgment to extend the monitoring requirements.                 Instead, it

focused   on    whether   the   Commonwealth     had    achieved   substantial

compliance, an inquiry that would have been appropriate if the

Commonwealth was seeking to modify the Judgment.                That failure is


                                       - 9 -
not academic.       The power of federal courts to interfere with the

policy prerogatives of a state's democratically elected government

is limited "to reasonable and necessary implementations of federal

law."      Frew ex rel.  Frew v. Hawkins, 540 U.S. 431, 441 (2004)

(expressing concern that overly broad enforcement against states

"may    improperly   deprive    future    officials       of   their   designated

legislative    and      executive   powers"    or    "lead     to   federal-court

oversight of state programs for long periods of time even absent

an ongoing violation of federal law").                 The precarious balance

between    protecting      state    sovereignty       and      implementing      the

supremacy of federal law undergirds the practical enforcement of

our federal system.          See U.S. Const.  amend.  XI (restricting the

ability of federal courts to hear suits against states); Ex parte

Young, 209 U.S. 123 (1908). 

            Furthermore, any such modification cannot be used to

sidestep the demanding requirement needed to get an injunction in

the first place.          See Salazar v. District of Columbia, 896 F.3d

489 (D.C. Cir.  2018); see also Fed.  R. Civ.  P. 65(d) (requiring

that an order granting an injunction "state its terms specifically"

and    "describe   in    reasonable    detail"      the   "acts     restrained   or

required"). 

            The district court's denial of the Commonwealth's motion

also is not justified as a way to "enforce its own orders."                       "A

court's power to enforce a judgment is confined to the four corners


                                      - 10 -
of the judgment itself."        Harvey v. Johanns, 494 F.3d 237, 244

(1st Cir.  2007).    This is to make sure the parties do not "short-

circuit   the   usual   adjudicative      processes"   and   violate   the

principles of fair notice.        Id.   Nothing gave the Commonwealth

fair notice that the fourteen-day standard would be treated as an

independently enforceable provision of the Judgment by which the

Commonwealth would be in noncompliance with the Judgment if its

contractors did not consistently meet the fourteen-day standard. 

          In addition to the district court's failure to apply the

proper standard, the Commonwealth also argues that its substantive

holdings were in error.  We agree that it was error for the district

court to conclude, at least without proper analysis, that the

fourteen-day standard was required by federal law and that the

Judgment set forth an obligation by the Commonwealth to see that

its contractors provided services within fourteen days.7

          The   fourteen-day    standard     crucial   to    the   district

court's conclusion does not appear in the underlying Medicaid

statute or regulation.     Federal Medicaid law requires that states

must provide medical assistance with "reasonable promptness," 42

U.S.C. § 1396a(a)(8), and must create "reasonable standards . . . 


     7    The dissent is incorrect that the district court treated
the failure of the Commonwealth's contractors to universally meet
the fourteen-day standard as mere "evidence that the processes
employed by the Commonwealth were not sufficient to satisfy the
regulation."    The fourteen-day standard was the sole benchmark
employed by the court. 


                                 - 11 -
for   determining     eligibility     for     and    the   extent    of     medical

assistance under the plan," id. § 1396a(a)(17).                  To implement both

requirements, federal Medicaid regulation, 42 C.F.R. § 441.56(e),

requires the following:

             [T]he [Commonwealth] must set standards for
             the timely provision of EPSDT services which
             meet reasonable standards of medical and
             dental   practice,   as  determined   by   the
             [Commonwealth]    after   consultation    with
             recognized medical and dental organizations
             involved in child health care, and must employ
             processes to ensure timely initiation of
             treatment, if required, generally within an
             outer limit of 6 months after the request for
             screening services. 

             Neither the statute nor the regulation specifies a time

for "reasonable promptness," much less fourteen days.                 The federal

Medicaid regulation at 42 C.F.R. § 441.56(e) requires that states

establish standards in consultation with medical professionals,

generally    within   six   months    after    the    request      for    screening

services.      The Commonwealth has done that and set standards for

compliance    for   its   contracted      service    providers      who   actually

provide these services to the Plaintiff class. 

             The crux of the Plaintiffs' argument is not that the

Commonwealth has failed to set standards, but that it has violated

the Judgment if the contractors who are obligated to meet those

standards    fail   to    achieve   the   initiation       of    services   within

fourteen days.       The plain text of the statute and regulation do

not compel the Plaintiffs' conclusion.                  True, the regulation


                                     - 12 -
requires the Commonwealth to "employ processes to ensure timely

initiation of treatment," but there is no dispute that it has

employed      at    least    some    processes      to   ensure    compliance.         A

requirement to "employ processes" to meet a goal is not the same

as a requirement that the goal be met in all cases.                    It is possible

that the processes that have been employed by the Commonwealth are

not     sufficient      to     satisfy      the     regulation,       or    that     the

Commonwealth's        actual      performance       on   timeliness    still       falls

outside       42    U.S.C.     § 1396a(a)(8)'s           "reasonable       promptness"

requirement.         But it was error for the district court to conclude

with such little formal analysis that the Commonwealth's failure

to achieve universal compliance within the fourteen-day standard

was, by itself, a violation of federal law.                        See Jeffrey Chen,

Note,    In   the    Nick    of     Time:   Using    the   Reasonable      Promptness

Provision to Challenge Medicaid Spending Cutbacks, 15 Yale J.

Health Pol'y L. & Ethics 349, 374 ("[T]he regulations and case law

related to the Reasonable Promptness Provision do not provide a

clear answer to the question of what constitutes a violation of

reasonable promptness."). 

              Nor has anything in the text of the Judgment at any time

imposed an obligation on the Commonwealth to see that its providers

initiated services within a fourteen-day period.                    The Judgment was

only formally amended once, in 2009, in ways not relevant to this

appeal.        We reject the Plaintiffs' argument that the Judgment,


                                         - 13 -
despite its plain text, was so modified.  In 2012, the Commonwealth

notified the court in a letter that it had adopted a standard for

its contractors to provide services.         A March 20, 2012, district

court order approved the Commonwealth's submission that it wished

to use a fourteen-day standard for its contractors.         That approval

order was not a modification of the Judgment.          See Fed.  R. Civ.  P.

60 (describing the grounds and procedure for modifying a judgment);

Rufo, 502 U.S. at 383-85 (interpreting Fed.  R. Civ.  P. 60 to set

standards for modification of a consent decree in a similar context

to that of the Judgment at issue here).         Nor was it an agreement

by   the   Commonwealth   that   the   fourteen-day   standard   for   its

contractors could be entered into the Judgment or was a standard

to which it could be held in violation of the Judgment.           No order

modified the Judgment to incorporate the fourteen-day standard.8


      8   The dissent improperly attempts to recharacterize the
Commonwealth's positions and arguments related to its initial
adoption of the fourteen-day standard in 2012. 
          In 2012, the Commonwealth consulted with medical
professionals to establish a fourteen-day access standard, in line
with its obligations under the Medicaid regulations.  See 42 C.F.R.
§ 441.56(e).    It had previously used a three-day standard, but
that standard was never officially adopted for purposes of the
Medicaid regulation. 
          On February 28, 2012, the Commonwealth notified the
court in a letter that it intended to formally adopt the fourteen-
day standard despite the Plaintiffs' disagreement: "This letter,
then, serves not to argue the merits of the dispute, but merely to
clarify the defendant's understanding of the mechanics of this
process . . . ." 
          Although the district court said it "approved" this
standard and notified the parties that it would "be monitoring



                                  - 14 -
           The Commonwealth also did not waive any right to file

the   instant    motion    when   it       agreed   to    extend   the    monitoring

provisions from July 2012 while it worked with the Plaintiffs

towards a negotiated end to the injunction.                  That agreement ended

as of December 31, 2018. 

           The    issue    is   not    whether      the    Judgment      contained   a

"reasonable promptness" requirement that the Commonwealth was

obligated to meet.  The issue is whether the Judgment ever required

the   Commonwealth    to     meet      a    fourteen-day      standard      for   its

contractors to deliver services.              It did not.      The Plaintiffs have

never proven a case that failing to meet a fourteen-day standard

is a violation of federal law, nor have they attempted to, and the

Commonwealth has never agreed failure to comply with the fourteen-

day standard would violate federal law.               The fourteen-day standard

is not a term in the Judgment. 

           On remand, the judge assigned to the case,9 on proper

application, may examine whether the Plaintiffs have demonstrated



data regarding access carefully," it did so only after the
Commonwealth assured it at a hearing that it did not "have any
problem reporting to the Court and the plaintiffs as to how that's
going." 
          As the Commonwealth argues to us, this "sua sponte"
"purpot[ed]" approval was never part of a "litigated dispute" over
the timeliness standard, as the dissent claims. 
      9   Judge Ponsor, who issued the order on appeal, is no
longer assigned to this case.  See Rosie D. v. Baker, 362 F. Supp. 
3d 46, 49 n.5 (D. Mass. 2019) ("Plaintiffs' additional arguments



                                       - 15 -
good   cause    to    modify    the   Judgment   to   extend   the    monitoring

requirements under the framework provided by Rufo.                    It may also

address the Plaintiffs' arguments about sections I.B and I.D of

the Judgment and any other arguments about the Medicaid reasonable

promptness requirements, and the Defendants' arguments concerning

its other grounds for the motion, including the effects of Milliken

v. Bradley, 418 U.S. 717 (1974), and Horne v. Flores, 557 U.S. 433

(2009),    on   the    Commonwealth's     motion.       As   the   Commonwealth

concedes, the Plaintiffs are free to pursue claims of violation of

the express terms of the Judgment, including that the Commonwealth

is in violation of the Judgment because a fourteen-day standard is

required by federal law.           We do not decide whether the Plaintiffs

are prevented on remand from moving, under the Rules, for the

district    court     to    incorporate   a    timeliness   standard    for   the

provision of ICC services into the Judgment. 

            The denial by the district court is reversed and the

case is remanded for further proceedings.              No costs are awarded. 



                           -Dissenting Opinion Follows-




. . .  may   be taken up, as needed, by the judge to whom this case
will now    be transferred.").     It has been reassigned to Judge
Stearns.     Order Transferring Case Pursuant to Local Rule 40.1(I),
Rosie D.,   362 F. Supp.  3d 46 (D. Mass. 2019) (ECF No.  882). 



                                      - 16 -
            LIPEZ,      Circuit      Judge,   dissenting.         The   majority's

analysis    reveals     a    misunderstanding      of    the   district    court's

decision, a failure to grasp the history of this case, and a

disregard for the district court's careful attention to this case

over many years.         As a result, the majority reaches two erroneous

conclusions: (1) that the district court's detailed, forty-five

page   analysis   of     the    Commonwealth's      non-compliance       with     the

judgment and federal law was somehow insufficiently "formal" to

justify its decision to modify the judgment to extend the period

for compliance monitoring, and (2) that the district court could

not    consider   the    Commonwealth's         non-compliance    with     its    own

fourteen-day reasonable promptness standard as evidence of good

cause for that modification.            Both conclusions reflect the triumph

of form over substance.               We should affirm the district court's

decision, solidly grounded as it is in the law and the facts of a

lengthy dispute so consequential for thousands of children in

Massachusetts. 

                                         I.

            My colleagues fail to adequately describe either the

posture of the case at the time the district court denied the

Commonwealth's request to terminate compliance monitoring or the

extensive    litigation         and     negotiation       that    preceded        the

Commonwealth's adoption of the fourteen-day reasonable promptness

standard.      Hence,        before    setting    forth   my    analysis,    I    must


                                       - 17 -
supplement the majority's abbreviated and misleading recitation of

the facts. 

              This case was first filed nearly twenty years ago by a

class    of    Medicaid-eligible         children    suffering       from    serious

emotional disturbances ("SED") and their parents.                    After a lengthy

bench trial, the district court ruled that the Commonwealth had

violated federal Medicaid provisions mandating EPSDT services, as

well as the statute's "reasonable promptness" requirements for

providing those services to children suffering from SED.                      Rosie D.

v. Romney, 410 F. Supp.  2d 18, 54 (D. Mass. 2006). 

              In     2007,   in    the     aftermath        of   that       liability

determination, the district court entered a detailed judgment to

remedy the federal law violations found in its liability opinion,

including the Medicaid Act's "reasonable promptness" provision, 42

U.S.C.    § 1396a(a)(8).           Three    aspects     of    that    judgment     are

particularly relevant here.          First, the judgment set reporting and

monitoring     requirements       for    the     Commonwealth,      including     the

appointment of a Court Monitor, that "will terminate five years

after the date of entry of this Judgment," or in approximately

July 2012.          Second, it stated that its terms and deadlines were

subject to modification "for good cause upon application to the

court by either party," or "by agreement of the parties."                      Third,

the judgment required that the Commonwealth create an Intensive

Care    Coordination     ("ICC")    service,      available      upon   request   to


                                        - 18 -
eligible children, to coordinate across multiple service providers

and create a coherent treatment plan tailored to each child's

individualized needs.          At the time, no such program was widely

available for Medicaid-enrolled children in Massachusetts.                      See

id. at 33, 38, 52-53. 

            In   accordance    with    the     deadlines   set   forth    in   the

judgment, ICC services became available to eligible children in

the summer of 2009.       The Commonwealth also developed ICC program

specifications.        The original program specifications required

providers to make telephone contact with family members within

twenty-four hours of referral to the ICC service, and required

providers "to offer a face-to-face interview with the family, which

shall occur within three (3) calendar days to assess their interest

in participation and gain consent for service." 

            In early 2010, the plaintiffs and the Court Monitor

reported lengthy waiting lists for ICC.                The plaintiffs filed a

motion asking the court to order the Commonwealth to reduce wait

times for ICC and other services, in order to comply with the

"reasonable      promptness"   requirement       of   federal    law     and   the

judgment.    The court reserved ruling on the motion and ordered the

parties to collect, analyze, and report more data on timely access

to ICC. 

            In a subsequent filing, the Commonwealth stated that new

research on the timeliness standards in other states' analogous


                                      - 19 -
programs,   as     well   as   consultations    with   experienced      medical

professionals, suggested the need to revisit the three-day access

requirement.       Importantly, the Commonwealth never stated that its

obligation to provide ICC with reasonable promptness, measured by

its own timeliness standard, was beyond the scope of federal law,

the judgment, or the court's authority to enforce. 

            In November 2011, the court granted the plaintiffs'

motion in part, directing the parties to meet with the Court

Monitor, discuss the Commonwealth's proposal for a new reasonable

promptness standard, and report back to the court.                  In January

2012, the Commonwealth reported that it intended to adopt a

modified ICC access standard of fourteen days following the initial

contact with a provider. 

            Although the plaintiffs initially objected to the new

fourteen-day standard as too lengthy and not clinically supported,

they reluctantly agreed to its implementation.             The district court

approved    the     fourteen-day    access     standard   during    a    status

conference.        It then memorialized the approval in an order dated

March 20, 2012.       The order stated:

            The court approved a fourteen-day access
            standard for Intensive Care Coordination
            ("ICC") access.  This means that no more than
            fourteen days will elapse between the initial
            contact with the ICC provider and the first
            offered date for a face-to-face meeting.  The
            court   approved   this  standard  with   the
            understanding     that     the    contractual
            obligations of the ICC providers as contained


                                    - 20 -
              in their performance specifications would
              require that the period be three days for at
              least 50% of the clients, ten days for 75% of
              the clients, and no more than fourteen days
              for 100% of the clients.  The court will be
              monitoring data regarding access carefully to
              [e]nsure that the approval of the more
              generous standard does not result in longer
              delays.     Defendants will copy the court,
              Plaintiffs, and the court monitor with the
              monthly data reports on this issue. 

The order did not modify the language of the judgment; rather, it

expressed      the    court's      approval    of   the     Commonwealth's     new

reasonable      promptness      standard      for   measuring     compliance    in

conformity with the extant portion of the judgment mandating the

ICC service. 

              At the end of June 2012, at the court's prompting, the

parties agreed to negotiate a "plan for disengagement."                  The plan

included various criteria, developed jointly by the parties, which

the Commonwealth would endeavor to meet to ensure that all aspects

of the judgment had been satisfied in advance of the wind-down of

the court's oversight.              During this disengagement phase, the

Commonwealth consented to approximately ten extensions of the

Court Monitor's term, typically for six months at a time.                 Each of

these extensions constituted a modification of the judgment by

agreement of the parties, extending its five-year sunset provision

for   reporting      and   monitoring.         The   final   consented-to     order

extending the Court Monitor's appointment was entered on April 7,

2017,   and    stated      that,   "per   agreement    of   the   parties,"    the


                                      - 21 -
Monitor's appointment would be extended "through and including

December 31, 2018." 

             In   May      2018,      after    the    plaintiffs     reported    that

approximately two thirds of the Commonwealth's providers were

regularly    failing       to    offer     initial      ICC   appointments      within

fourteen days, the plaintiffs filed a motion styled, "Motion to

Improve Access to Remedial Services."                   The motion requested that

the court enter an order "setting 2018 goals for access to ICC." 

At a hearing in June 2018, rather than ruling on the plaintiffs'

motion, the court decided to "bring the matter to a head" and

ordered the Commonwealth to file a motion regarding its substantial

compliance    with      the     judgment      and    the   plaintiffs   to    file   a

corresponding      motion        to     incorporate        various    disengagement

criteria10 as an order of the court.                   See Rosie D. v. Baker, 362

F. Supp.  3d 46, 57 (D. Mass. 2019).                    Both motions were filed in

August    2018.       The      Commonwealth's         motion   was   titled,   "Motion

Regarding Substantial Compliance and to Terminate Monitoring and

Court Supervision."              It asked the court to "terminat[e] all

monitoring and reporting requirements set forth in the Judgment." 

The plaintiffs vigorously opposed the motion with respect to the

ICC service and requested that the court extend the timeframe for


     10 Notably, one of the disengagement measures that the
plaintiffs asked the court to order was that "[b]y December 31,
2018, at least 70% of youth seeking ICC services will be offered
an initial appointment within 14 days." 


                                         - 22 -
monitoring compliance with that portion of the judgment, due to

the   Commonwealth's     failure   to   provide    the    ICC   service    with

"reasonable promptness." 

             With the December 31, 2018 deadline for the end of the

Court Monitor's appointment rapidly approaching, the court, over

the Commonwealth's objection, issued an order extending the Court

Monitor's appointment to June 30, 2019 to maintain the status quo

while it considered the motions.           The district court denied the

Commonwealth's motion to terminate monitoring on February 7, 2019,

and the Commonwealth promptly appealed.11                See id. at 61-62. 

Monitoring remains ongoing at this time because the district court

entered an order on July 1, 2019 extending the appointment of the

Court Monitor during the pendency of this appeal.12

                                    II. 

             The above history of the case captures its present

procedural    posture:    essentially,      two   competing     requests   for

modifications of the judgment, previously modified by consent of

the parties to terminate monitoring on December 31, 2018.                   The


      11Because the Commonwealth noticed its appeal before the
district court ruled on the plaintiffs' motion to enter the
disengagement criteria as an order of the court, the district court
denied plaintiffs' motion without prejudice, explaining that, by
appealing, the Commonwealth had deprived the district court of
"the power to act substantively . . .  until proceedings on appeal
conclude." 
      12
       The Commonwealth also appealed this second order, and the
two appeals were consolidated. 


                                   - 23 -
Commonwealth's motion, filed at the direction of the district court

approximately four months prior to that date, sought to end

monitoring     early     based   on    its     purported    demonstration     of

substantial compliance with the judgment.                   The plaintiffs, in

opposing that motion, asked the court to extend the period for

compliance    monitoring     beyond     the    existing    December   31,   2018

deadline.13

             Because the data regarding the Commonwealth's compliance

(or lack thereof) with the judgment was undisputed, and both

parties sought modifications of the same deadline in the judgment,

the court determined that it was not necessary to assign the burden

of proof.      See Rosie D., 362 F. Supp.  3d at 57.             In other words,

because both parties bore the burden of proof for their own

requested modifications, see Horne v. Flores, 557 U.S. 433, 447

(2009) (holding that the party seeking modification of a judgment

bears the burden of proof), and those modifications were squarely

at   odds   with   one   another,     the     district    court   conducted   an


      13 To the extent that the majority suggests that the
plaintiffs' request to extend monitoring was not a "proper
application" for modification of the judgment because it was not
presented as a separate motion, that position elevates form over
substance.  The majority cites no rule or language in the judgment
requiring a formal motion for modification.  In any event, as I
have described, the district court effectively treated the
plaintiffs' opposition as a motion -- it assessed whether the
plaintiffs had carried their burden to demonstrate good cause for
an extension of monitoring, or whether the Commonwealth had carried
its burden to demonstrate good cause for a termination of
monitoring. 


                                      - 24 -
independent analysis of the uncontested evidence submitted by the

parties to assess whether the Commonwealth had met its burden to

show substantial compliance with the judgment, or whether the

plaintiffs had met their burden to show a lack of substantial

compliance with the judgment, see Rosie D., 362 F. Supp.  3d at 57-

61. 

          The     majority      concedes    that      an    inquiry    into     the

Commonwealth's substantial compliance with the judgment "would

have been appropriate if the Commonwealth was seeking to modify

the judgment."       That statement reveals a misunderstanding of the

posture of this case:       the Commonwealth did seek a modification of

the judgment.     So did the plaintiffs.         Based on its assessment of

the   parties'      evidentiary    submissions,          the     district     court

determined   that    the    Commonwealth     had   not     met   its   burden    to

demonstrate good cause and that the plaintiffs had. 

          Yet, remarkably, the majority declares that "[n]either

th[e] 'good cause' standard nor any examination of it appear

anywhere in the district court's analysis."                 The district court's

entire decision is a good-cause analysis.              The determination that

good cause existed to modify the judgment by extending monitoring

was premised on the district court's finding that the Commonwealth

did not substantially comply with the judgment and federal law. 

Put   differently,        the   district     court's       finding     that     the

Commonwealth     failed    to   employ     adequate      processes     to   ensure


                                   - 25 -
compliance with the fourteen-day reasonable promptness standard

constituted "good cause" to extend the period for compliance

monitoring. 

           A   close     examination        of   the       district   court's     order

demonstrates      the   error   in    the    majority's        assertion   that     the

district   court    never   made      a   good   cause       finding.       The    court

repeatedly stated that the undisputed evidence submitted by the

parties revealed that the Commonwealth was not in compliance with

the reasonable promptness requirement of the judgment and federal

law, leading to "grave potential consequences for the health and

welfare of [] vulnerable children."               Rosie D., 362 F. Supp.  3d at

48.    It called the Commonwealth's failure to provide the ICC

service    with    reasonable        promptness        a    "manifest   and      easily

quantified failure" to comply with the judgment and federal law

that "makes denial of Defendants' motion to terminate oversight

inevitable."       Id. at 48-49.        The court explained:

           The undisputed facts of record confirm that
           for a very substantial portion of the
           Plaintiff children, Defendants have for years
           failed, and continue to fail, to satisfy [the
           reasonable      promptness]      requirement. 
           Depending on the particular month and year,
           between thirty and sixty percent of the
           Plaintiff children seeking ICC services
           continue to wait beyond the fourteen-day
           period for their first appointment, often for
           much longer. . . .  Recent reports ominously
           suggest that the fail rate for providing
           timely ICC services is increasing, not
           diminishing.          Moreover,    and    most
           frustratingly,    Defendants     in    status


                                       - 26 -
             conferences over the past eighteen months have
             offered no concrete plan to rectify this
             situation and have begun to profess themselves
             neither able nor obliged to take any specific
             steps to alleviate this glaring failure in
             compliance. 

Id. at 48. 

             Later in its analysis, the district court revealed that

the Commonwealth's own evidentiary submissions -- not just the

plaintiffs' -- demonstrated its failure to provide the ICC service

with reasonable promptness.     The court explained that "Defendants'

own statement of material facts acknowledges that since 2010 over

twenty percent of class members have not received initial ICC

appointments within the required fourteen days. "14     Id. at 58-59. 

In the end, the court concluded:

             [N]o dispute exists as to the fundamental fact
             that, after years of outcry from Plaintiffs
             and persistent prodding by the court, in any
             given month Defendants are violating the
             Medicaid standard -- the standard that they
             themselves adopted -- for one-third to one-
             half of the SED children needing services. 



     14 As noted, the district court's March 2012 order approving
the fourteen-day access standard explained that "[t]his means that
no more than fourteen days will elapse between the initial contact
with the ICC provider and the first offered date for a face-to-
face meeting."    The order also stated that it approved the new
standard "with the understanding that the contractual obligations
of the ICC providers as contained in their performance
specifications would require that the period be three days for at
least 50% of the clients, ten days for 75% of the clients, and no
more than fourteen days for 100% of the clients." 



                                - 27 -
Id. at 60.         Indeed, no factual dispute did exist, nor does one

exist now:     neither party requested an evidentiary hearing before

the district court, id. at 52, and the Commonwealth does not

challenge on appeal the factual basis for the district court's

decision.15

             As   the    majority   acknowledges,   federal      Medicaid   law

requires that states provide medical assistance with "reasonable

promptness,"      42    U.S.C.   § 1396a(a)(8),   and   create    "reasonable

standards . . .  for determining eligibility for and the extent of

medical assistance under the plan," id. § 1396a(a)(17).                      The

Department of Health and Human Services' regulations implement

these requirements by mandating that a state Medicaid agency

             must set standards for the timely provision of
             EPSDT services which meet reasonable standards
             of medical and dental practice, as determined
             by   the  agency   after   consultation   with
             recognized medical and dental organizations
             involved in child health care, and must employ
             processes to ensure timely initiation of
             treatment, if required, generally within an
             outer limit of 6 months after the request for
             screening services. 

42 C.F.R. § 441.56(e) (emphasis added). 




     15 At oral argument, counsel for the Commonwealth explained
that "we do have a quarrel with which numbers the court decided to
frontline, but this is not a factual dispute.  This is a pure legal
question as to whether the court . . .  could use a term not in the
four corners of the judgment as a basis for denying our motion." 



                                     - 28 -
           Contrary to the majority's insinuation, the district

court's order does not suggest, with "little formal analysis,"

that "[a] requirement to 'employ processes' to meet a goal is []

the same as a requirement that the goal be met in all cases. "16

Rather, quite logically, the district court concluded that the

Commonwealth's providers' frequent failure to meet the fourteen-

day standard for access to the ICC service was evidence that the

processes employed by the Commonwealth were not sufficient to

satisfy the regulation.       Indeed, the district court's order is

laden with examples of not just the Commonwealth's demonstrated

failure to provide the ICC service with reasonable promptness, but

also its reluctance to undertake any concrete steps to remedy that

failure. 

           For   example,   the   district   court   explained   that   the

Commonwealth presented no plan to address its staffing problems

and "resist[ed] any efforts by the court or by Plaintiffs to

identify possible strategies to address the access problem."             See

Rosie D., 362 F. Supp.  3d at 60.       The court concluded that it had

"no confidence that we have a plan to deal with the access issue." 

Id. at 57.    That conclusion, based on a "formal analysis" by any


     16 The district court's order states no fewer than six times
that it found a lack of "substantial compliance" with the judgment. 
See Rosie D., 362 F. Supp.  3d at 48, 49, 51, 57, 61.  The use of
the term "substantial compliance" belies the notion that the
district court required the Commonwealth to meet the fourteen-day
standard in every instance. 


                                  - 29 -
measure, clearly reflects the court's considered judgment that the

Commonwealth was failing to employ adequate processes "to ensure

timely initiation of treatment."        42 C.F.R. § 441.56(e). 

             In a further misguided critique of the district court's

order, the majority declares without elaboration that the district

court "failed to apply anything approaching [the] standard [in

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)] in

examining whether it was appropriate to modify the Judgment to

extend the monitoring requirements."           But the district court's

good-cause analysis aligns with the analysis prescribed by Rufo,

even if the court did not explicitly cite to that case.              The

majority's insistence on some formalistic invocation of Rufo again

elevates form over substance and neglects Rufo's central holding

that the inquiry into modification of a judgment should be flexible

and compatible with the court's inherent equitable authority. 

             Rufo   involved   a    consent    decree   governing   the

institutional reform of a county jail.           502 U.S. at 371.     The

defendant-petitioners sought to modify the decree pursuant to

Federal Rule of Civil Procedure 60(b)(5) to allow double-bunking

in the jail, in order to increase the capacity of the facility due

to an allegedly unanticipated increase in the number of pretrial

detainees.     Id. at 376.    At the time, Rule 60(b) read, in relevant

part:




                                   - 30 -
           On motion and upon such terms as are just, the
           court may relieve a party or a party's legal
           representative from a final judgment, order,
           or     proceeding    for     the     following
           reasons: . . . ( 5) the judgment has been
           satisfied, released, or discharged, or a prior
           judgment upon which it is based has been
           reversed or otherwise vacated, or it is no
           longer equitable that the judgment should have
           prospective application; . . . 

Id. at 378 (quoting Fed.  R. Civ.  P. 60(b) (1988)).17

           The Supreme Court concluded that the district court and

Court of Appeals had erred by holding that Rule 60(b)(5) codified

the "grievous wrong" standard from United States v. Swift & Co.,

286 U.S. 106, 119 (1932), which required "[n]othing less than a

clear showing of grievous wrong evoked by new and unforeseen

conditions" for modification of the judgment.    See Rufo, 502 U.S.

at 380.    Instead, the Court interpreted Rule 60(b), in the context

of institutional reform litigation, to adopt a more "flexible

approach," noting that such flexibility "is often essential to

achieving the goals of reform litigation."    Id. at 381. 

           The Court provided some guidance to lower courts on how

to conduct that flexible inquiry.        It stated that the "party



     17 The current version of Rule 60(b) is substantively
identical.    The analogous portion reads:   "On motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following
reasons: . . . ( 5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; . . ." 


                               - 31 -
seeking modification of a consent decree bears the burden of

establishing that a significant change in circumstances warrants

revision of the decree."            Id. at 383.            The Court chose not to

explicitly    define      the   concept   of    "a       significant    change    in

circumstances."       Rather, it described, in an open-ended fashion,

some circumstances that might permit modification of a judgment. 

Accord United States v. W. Elec.  Co., 46 F.3d 1198, 1203–04 (D.C.

Cir.  1995) ("[T]he Court in Rufo . . .  describe[d] circumstances

that might warrant revision of consent decrees.                      We stress the

'might'    because       the    Court,    having         first   pronounced Rule

60(b)(5) 'flexible,' was careful not to reintroduce rigidity."). 

One of those potential circumstances was "when enforcement of the

decree without modification would be detrimental to the public

interest."     Rufo, 502 U.S. at 384. 

             In   this     case,    the    district         court      found     that

unanticipated     circumstances      required        a    modification     of    the

judgment     in   order    to   serve     the   public       interest.           Those

circumstances,     of    course,   were   the   Commonwealth's         failure    to

achieve substantial compliance with the judgment by the deadline

originally set forth in the judgment.            The district court's order

extending monitoring reflected its realization that the judgment's

original deadline was "unrealistically optimistic."                  See Rosie D.,

362 F. Supp.  3d at 52.           Moreover, the court determined that an

extension of monitoring, in order to assess the Commonwealth's


                                    - 32 -
ongoing efforts to achieve compliance with the judgment, served

the public interest.            As detailed above, the court determined that

the Commonwealth's non-compliance with the reasonable promptness

requirement of federal law put vulnerable children at risk for

crises    that    could    be    "analogously          acute    [to    appendicitis],"

requiring      emergency       intervention       to    the     detriment       of    those

children, their families, and the public health system.                               Id. at

51.      Thus, there was good cause to modify the judgment to extend

monitoring.        The district court's robust good-cause analysis was

consistent with Rufo. 

            Finally,      citing       to    Rufo,     the     majority   accuses       the

district court of "interfer[ing] with the policy prerogatives of

a state's democratically elected government" by extending the

timeframe for monitoring.            But the district court has demonstrated

meticulous sensitivity to the sovereignty of the Commonwealth

since    the     start    of    this    case,        repeatedly       looking    to     the

Commonwealth to generate specific plans and criteria to bring

itself into compliance with federal law.                          In 2007, after the

district court entered its liability decision and asked the parties

to submit proposed remedial plans, it adopted -- nearly in its

entirety -- the Commonwealth's proposed plan, rather than the

plaintiffs'.       See Rosie D. ex rel.  John D. v. Romney, 474 F. Supp. 

2d 238, 239 (D. Mass. 2007).                 Likewise, as detailed infra Section

III, consistent with federal law, the court declined to dictate a


                                        - 33 -
timeliness standard for the ICC service.             Rather, it allowed the

Commonwealth to adopt its own standard, and later, over the

objection of the plaintiffs, permitted it to modify that standard

once it determined that the new standard was medically reasonable. 

           In sum, by allowing the Commonwealth to craft a remedy,

develop its own timeliness standard, and modify that standard when

its own data indicated compliance was challenging, the district

court demonstrated respect for the principles of federalism.                 The

court's    refusal,    however,    to    disregard     the     Commonwealth's

violation of federal law was also consistent with those principles. 

See Horne, 557 U.S. at 450 (explaining that, despite the importance

of respect for state sovereignty, "[i]t goes without saying that

federal courts must vigilantly enforce federal law"). 

                                   III. 

           The majority concludes that the district court should

not have used the fourteen-day standard as a metric for assessing

"reasonable   promptness"    because      neither    federal    law   nor   the

judgment   expressly    states    that    timeframe.          That   conclusion

reflects a flawed interpretation of federal law and misconstrues

both the nature of the judgment entered in this case and the

doctrine limiting enforcement of a judgment to its four corners. 

           Again, I return to the text of the EPSDT implementing

regulation, which says that a state Medicaid agency




                                  - 34 -
            must set standards for the timely provision of
            EPSDT services which meet reasonable standards
            of medical and dental practice, as determined
            by   the  agency   after   consultation   with
            recognized medical and dental organizations
            involved in child health care, and must employ
            processes to ensure timely initiation of
            treatment, if required, generally within an
            outer limit of 6 months after the request for
            screening services. 

42 C.F.R. § 441.56(e).     The regulation explicitly requires states

to consult with medical professionals to develop standards for the

timely provision of care.      It defies logic that those carefully

crafted, medically supported standards are unenforceable once

adopted by a state, and that only the backstop timeframe of six

months may be used as a metric to assess reasonable promptness. 

            As quoted above, federal law gives states, not federal

courts, the initial responsibility of developing a timeliness

standard.    See id.   In the event of a litigated dispute about this

timeliness requirement, the court has two roles.      First, it must

ensure that the standard that a state adopts is "reasonable" based

on evidentiary submissions by the state.     This is the process the

court undertook in 2012 when the Commonwealth sought to change the

ICC access standard from three days to fourteen days, over the

plaintiffs' initial objection.     Second, after the court determines

that a state's timeliness standard meets "reasonable standards of

medical and dental practice" and enters an order to that effect,

the court has continuing authority to ensure that the state's



                                - 35 -
providers meet the timeliness standard.            See id.   That continuing

authority was specified in the court's 2007 judgment which set

forth a monitoring procedure and timeframe.               In the exercise of

that authority, the court rejected the Commonwealth's request to

end monitoring in 2018, based on the Commonwealth's undisputed

failure to employ adequate processes to implement the fourteen-

day requirement. 

             That the judgment implemented these elements of federal

law, and the Commonwealth understood it to do so, is beyond

dispute.      The judgment explicitly stated that its purpose was to

remedy the federal law violations found in its liability opinion,

including the Medicaid Act's "reasonable promptness" provision, 42

U.S.C. § 1396a(a)(8).      It also expressly required the Commonwealth

to both "establish standards for [providers] that will include

. . .  service delivery standards" and "amend its managed care

behavioral    health   contract    to   require    the   behavioral   health

contractor to procure a network of [providers] that meet the

standards established by [the Commonwealth]," echoing the commands

of federal law. 

              The   Commonwealth   itself   described       this   scheme   in

multiple submissions to the court urging the court's approval of

the fourteen-day access standard back in 2012.                  In a letter

addressed to the court, the Commonwealth explained:




                                   - 36 -
           EOHHS18 wishes to make clear its understanding
           of the mechanics by which a state Medicaid
           agency sets timeliness standards for EPSDT
           services.     The controlling regulation, 42
           C.F.R. § 441.56(e), mandates that a state
           agency "set standards for the timely provision
           of EPSDT services which meet reasonable
           standards of medical and dental practice
           . . . ."  The regulation goes on to state that
           such standards shall be "determined by the
           agency after consultation with recognized
           medical and dental organizations involved in
           child health care . . . ."  The Judgment in
           this case implicitly adopts that requirement,
           insofar as it directs the defendants to
           "establish standards for CSAs" that "will
           include,"   among   other   things,   "service
           delivery standards."  Judgment at ¶ 38(b). 

           The Commonwealth also submitted to the court a copy of

a memorandum that it had sent to the president of the New England

Council of Child and Adolescent Psychiatry ("NECCAP"), seeking

guidance   from   NECCAP   on   an    appropriate   reasonable   promptness

standard for the ICC service.          The memorandum began:

           Federal law requires a state to set standards
           for the timely provision of EPSDT services,
           which must meet reasonable standards of
           medical practice.      To that end, we are
           consulting    with   medical    professionals
           familiar with high fidelity Wrap-around to
           determine what time standard is medically
           reasonable.  We seek your guidance as to an
           appropriate outside limit beyond which no
           member eligible for ICC should wait to obtain
           ICC -- a time period that you would consider
           to be reasonably prompt. 



     18 "EOHHS" stands for "Executive Office of Health and Human
Services," the Massachusetts agency in charge of administering the
Commonwealth's Medicaid program. 


                                     - 37 -
          These    submissions      unambiguously      reflect    the

Commonwealth's understanding that federal law and the judgment

entered by the district court grant the Commonwealth the initial

opportunity to develop a standard for reasonably prompt access to

the ICC service, which is then subject to the court's approval and

subsequent monitoring to ensure compliance with that standard --

the so-called "outside limit."     Thus, the fact that the judgment

itself does not explicitly dictate a timeliness standard is beside

the point.    Given that the judgment incorporates the federal

mandate to ensure compliance with the standard adopted by the

Commonwealth, the fourteen-day obligation necessarily became part

of the judgment when it was approved by the court as medically

reasonable under federal law. 

          Moreover, to the extent that there was ever any doubt

that the court would affirmatively monitor compliance with the

Commonwealth's own fourteen-day reasonable promptness standard,

the March 2012 order put that doubt to rest.         After stating the

court's approval of the fourteen-day standard, the order dictated

that:

          The court will be monitoring data regarding
          access carefully to [e]nsure that the approval
          of the more generous standard does not result
          in longer delays.     Defendants will copy the
          court, Plaintiffs, and the court monitor with
          the monthly data reports on this issue. 




                                - 38 -
The Commonwealth never appealed that order; for the past eight

years, the fourteen-day standard has governed the Commonwealth's

conduct. 

           The need to limit enforcement of a judgment to its text

is grounded in principles of fair notice and preventing plaintiffs

from   "short-circuit[ing]    the     usual    adjudicative   processes." 

Harvey v. Johanns, 494 F.3d 237, 245 (1st Cir.  2007).               For the

reasons described above, there is no question that the Commonwealth

has been on notice of the enforceability of the fourteen-day

standard since it was adopted.              The fourteen-day standard was

extensively discussed between the parties and the court in post-

judgment proceedings and adopted over the initial objection of the

plaintiffs.      Consistent with the language in the 2007 judgment

incorporating    the   "reasonable    promptness"    requirement   of   the

Medicaid Act, the court's March 2012 order reiterated that the

fourteen-day reasonable promptness standard for ICC was more than

aspirational -- it was an obligation enforceable against the

Commonwealth.     Thus, the majority's assertion that the judgment

did not give the Commonwealth fair notice that it was required to

take adequate steps to ensure that its providers comply with the

fourteen-day access standard is implausible. 

                                     IV. 

           The majority calls its opinion "narrow" and minimal in

its impact because the plaintiffs remain "free to pursue claims of


                                - 39 -
violation of the express terms of the Judgment, including that the

Commonwealth is in violation of the Judgment because a fourteen-

day standard is required by federal law."              The majority's decision

is   not    remotely   narrow    or    minimal       in   its    impact.        Most

fundamentally,     given   the   undisputed      findings       of   the   district

court, its decision will delay even further delivery of essential

services to vulnerable children with SED in the Commonwealth. 

Inevitably, given this reality, the plaintiffs will follow the

majority's instruction and seek to establish a violation of the

fourteen-day standard by largely duplicating the case that they

have already made to the district court in support of their request

to extend monitoring.        The Commonwealth will undoubtedly respond

with much of the same evidence that it has already submitted to

the district court in support of its substantial compliance motion. 

Hence, the proceedings envisioned by the majority will largely

duplicate the proceedings that have already taken place before the

district court, wasting everyone's time, energy, and resources. 

             The   majority's    decision      may   also   have     a   disruptive

effect on the Commonwealth.  The Court Monitor's appointment, which

requires state funding and significant advance coordination, will

lapse.      If the court later determines, for the exact same reasons

detailed in its order at issue here, that monitoring must continue,

the Commonwealth will have to reallocate the funds and reorganize

its staff to meet that obligation. 


                                      - 40 -
           Moreover, the majority's unwarranted criticism of the

district court belies the court's laudable effort to foster a

collaborative spirit between the parties for nearly fifteen years,

often acting as a mediator in the status conferences it held with

them every three to six months.           See Rosie D., 362 F. Supp.  3d at

53 n.10.    These efforts have been productive: "[d]ue to the hard

work of [the Commonwealth], the Plaintiffs, and the Court Monitor,

a system of care for Medicaid-eligible SED children has emerged in

the Commonwealth that bears little resemblance to the random,

meager programming available when this lawsuit was filed."               Id. at

52.    Vulnerable children with SED throughout the Commonwealth have

benefited from the district court's sound judgment and ability to

facilitate voluntary compliance from all parties. 

           Still,    despite      that    progress,     there   remains    the

Commonwealth's critical failure related to the ICC service.  Hence,

the district court properly found that the judgment and federal

law require the Commonwealth to take adequate steps to ensure

reasonably prompt access to the ICC service as measured by the

fourteen-day standard.       As I have explained, the district court

committed no legal error in making that determination.               Instead,

there are only the unchallenged factual findings of the district

court and the exercise of its discretion, based on those factual

findings, in concluding that there was good cause to decline to

end   monitoring    early   and   to     modify   the   judgment   to   extend


                                   - 41 -
monitoring.      See Fortin v. Comm'r of Mass. Dep't of Pub.  Welfare,

692 F.2d 790, 798 (1st Cir.  1982) (holding that a district court's

decision to modify a judgment is "reviewable only for abuse of

discretion"). 

             That exercise of discretion should not be disturbed.            We

owe special deference to the district court's nearly twenty years

of experience with this case.            See, e.g., Rufo, 502 U.S. at 394

(O'Connor, J., concurring in the judgment) ("Our deference to the

District Court's exercise of its discretion is heightened where,

as in this litigation, the District Court has effectively been

overseeing a large public institution over a long period of time");

Hutto v. Finney, 437 U.S. 678, 688 (1978) (holding that, in the

context of institutional reform litigation, the district court's

"exercise of discretion . . .  is entitled to special deference

because of the trial judge's years of experience with the problem

at hand").     The majority's opinion reflects an unjustified refusal

to   respect,    understand,    and     defer    to   the   district   court's

discretion      in   this   matter,     with    profound    consequences   for

thousands of needy children in the Commonwealth. 

             I respectfully dissent. 




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