ascertainable, as it is here, that purpose “is given great weight.” See Restatement § 202(1); Silicon Image, 271 F. Supp. 2d at 851 (interpreting agreement to effectuate its purpose). 2. The State’s Prior Conduct Confirms that the Parties Intended to Count Only Occupied Housing Slots. The conduct prior to this controversy confirms that the parties intended to measure compliance with section III(B)(3) by counting only the individuals occupying Housing Slots on given compliance dates. See Mgmt Sys. Assocs., Inc., 762 F.2d at 1171–72 (holding evidence highly persuasive); Crowder Constr. Co., 134 N.C. App. at 200–01, 517 S.E.2d at 186 (holding manner in which parties have carried out agreement indicative of how the parties construe the terms). During the two years of implementation, the State, consistent with the Agreement, regularly submitted reports to the United States and the Independent Reviewer that reported on compliance by counting only occupied Housing Slots. For example, the State described its July 2013 housing obligation as requiring “100 individuals living in supported housing.” Jessica Keith, N.C. Dep’t of Health & Human Servs., Year One Summary (Aug. 7, 2013) Ex. T, at 5. In January 2014, the State reported only the number of individuals “[c]onfirmed as in housing.” N.C. Dep’t of Health & Human Servs., Transitions to Community Living Update as of January 6, 2014 Ex. U, at 1. Furthermore, a chronological review of the monthly reports reveals how the State’s interpretation evolved as it abandoned the parties’ intent in the face of significant noncompliance. Until August 2014, the State’s monthly reports were devoid of any references to vacant Housing Slots or individuals who had vacated their Housing Slots. Instead, the State reported on compliance by counting only occupied Housing Slots. See July 2014 Monthly Rep. Ex. B, at 2 (reporting net number of occupied Housing Slots in summary table as well as
it did not count those individuals toward compliance. See, e.g., Dec. 2014 Monthly Rep. (Jan. 27, 2015) Ex. W, at 2 (reporting compliance as serving 62 individuals “in or at risk of [adult care home] placement”). For example, in May 2015, the State reported that of the 460 individuals receiving Supported Employment Services, it was “providing those services to 62 individuals that meet the requirements of the settlement.” 2014 Annual Rep. (May 15, 2015) Ex. X, at 2. It described those 62 individuals as in or at risk of entry to an adult care home. See id. at 4. Furthermore, the State did not report on compliance in its June 2015 and July 2015 reports because the State was “assess[ing] if all individuals reported [met] the in or at risk definition for supported employment.” July 2015 Monthly Rep. (Aug. 25, 2015) Ex. Y, at 2; June 2015 Monthly Rep. Ex. K, at 2. Similarly, the State conducted reviews to ensure that those receiving services met “the definition of ‘in or at risk of entry to an adult care home’ as laid out in the settlement.” E.g., Oct. 2014 Monthly Rep. (Nov. 25, 2014) Ex. Z, at 2 (emphasis added). For three years, the State reiterated its understanding that only individuals in the target population count toward compliance with section III(D)(3). It recognized that individuals outside the target population receive employment services, but it did not count them toward compliance. It cannot do so now to avoid its obligations under the Agreement. B. The State Has Failed to Meet Its July 2016 Employment Services Obligation. The has failed to meet the Agreement’s requirement that it provide Supported Employment Services to 1,166 individuals in the target population by July 1, 2016. See S.A. § III(D)(3). As of June 30, 2016, only 708 individuals in the target population received Supported Employment Services, representing a shortfall of 458 individuals. See June 2016